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2. NEGLIGENCE (§ 125*)-EVIDENCE-SIMILAR ACTS.

occasion cannot be shown by proving his negIn general, a person's negligence on one ligence on other occasions.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 239-244; Dec. Dig. § 125.*] 3. DAMAGES (§ 62*) - PERSONAL INJURIES— DEFENSES.

son left a descendant, the property should be given to such descendant or descendants. Here is language of direct gift in fee simple. The surviving descendants are designated as the beneficiaries of the testatrix's bounty. The Indication is plain that she conceived that she was giving to them directly in the same way that she was giving to other persons named or described in the paragraph juries, consulted a reputable physician, recov Where plaintiff, who suffered personal inand not making a mere provision for a suc-ery could not be diminished on the theory that cession in perpetuity by inheritance to that his treatment was not the most expert. which had been given to an ancestor. The [Ed. Note. For other cases, see Damages, gift is direct and in absolute terms to per- Cent. Dig. §§ 119-131; Dec. Dig. § 62.*] sons described, and not a provision for a 4. APPEAL AND ERROR (§ 1071*)- ASSIGNtransmission of title to descendants in unMENTS OF ERROR-FINDINGS OF FACT. ending sequence which the law arbitrarily which, if included, would not affect the correctAn omission from the finding of facts converts into a fee simple in the issue of the ness of the rulings made is not a ground of erfirst donee. In other words, the testatrix ror. attempted to make the designated descendants her beneficiaries by her own act and not to provide for a beneficiary succession to which the law operating contrary to her will would, for reasons of public policy, give the same effect. The erasure at the end of the thirteenth paragraph, whether it was occasioned by a wish to vest in the descendants an absolute estate or a desire to avoid a perpetuity, or other reason, emphasizes the fact that the testatrix had in mind a gift

direct.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4234-4239; Dec. Dig. §

1071.*]

5. TRIAL (8 395*)-FINDINGS-SUFFICIENCY. Where evidence, the admission of which was assigned as error, was in each instance by the same witness and as to the same subjectmatter, it was unnecessary, under the direct provisions of Practice Book 1908, p. 267, § 5, to include it twice in the finding.

[Ed. Note.-For other cases, see Trial, Cent.. Dig. §§ 927-934, 939; Dec. Dig. § 395.*1 6. COSTS (§ 256*)-APPEAL-RECORD-UNNECESSARY EXPENSE.

An appellant is not entitled to have costs taxed for the printing of the evidence, where, on his motion, it was all made part of the record, though much of it was unnecessary.

[Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 968-971; Dec. Dig. § 256.*]

As the final gift over to the heirs of D. C. Rand, Jane S. Smith, and Catherine H. Carnahan is void as being in contravention of the statute against perpetuities, we have no occasion to inquire as to the effect of the quitclaim of Catherine H. Carnahan and her Appeal from Court of Common Pleas, Fairchildren, who proved to be her heirs, as ac-field County; Frank L. Wilder, Acting Judge. complishing a release of all interest of her heirs, had the terms of the will been effective to create one in them. They could take nothing by the will, and there could therefore be no interest in them to release.

The superior court is advised that the defendant, at the time of his said conveyance to the plaintiff, was seised and possessed of the land therein described as of a good, indefeasible estate in fee simple, and that judgment be rendered for the defendant. The other Judges concur.

(88 Conn. 260)

ROSS v. CITY OF STAMFORD. (Supreme Court of Errors of Connecticut. June 10, 1914.)

1. MUNICIPAL CORPORATIONS ($ 818*)-INJURIES TO PERSONS ON SIDEWALK-ACTIONS -EVIDENCE.

As the duty of a municipality with respect to snow and ice on sidewalks is limited, and as those conditions are not at all permanent, evidence, in an action for injuries due to a fall on an accumulation of ice on the sidewalk, that the sidewalk was icy and slippery at a time not shown to be the same as that of the accident was improperly received, not tending to show negligence, and tending to mislead the jury. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1726-1738; Dec. Dig. § 818.*]

Action by Isabel M. Ross against the City of Stamford. From a judgment for plaintiff for $2,000, defendant appeals. Reversed

and remanded.

Adelbert A. Skeel, of Stamford, for appellant. George P. Rowell, of Stamford, for appellee.

RORABACK, J. Three assignments of error relate to rulings upon evidence and another that the trial court failed to find as requested.

It is alleged in the plaintiff's complaint that on January 7, 1912, the plaintiff, when in the exercise of due care, stepped on an accumulation of snow and ice upon the sidewalk of the city of Stamford, and was greatly damaged and injured. This allegation was denied, so that one of the controlling questions in issue was whether the sidewalk in question was slippery and icy at the time and place alleged in the complaint.

[1, 2] Two witnesses called by the plaintiff upon her direct examination were allowed, against the objection of the defendant, to testify that the sidewalk in question was icy and slippery, without specifying any time.

This was error.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

This court has said that:

"It is conceded that in this rigorous climate the duty of cities and towns in respect to snow and ice is and must be very limited." Congdon v. City of Norwich, 37 Conn. 414, 419.

Snow and ice do not create a continuous and permanent obstruction to a sidewalk in this section of the country. They disappear many times suddenly, and a defect of this character of to-day may be removed before to-morrow by the action of the weather.

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It would seem to be well settled that, where one is injured by the negligence of another, if his damage has not been increased by his own subsequent want of ordinary The plaintiff had the right to show all the care, he will be entitled to recover of the facts and circumstances surrounding and wrongdoer to the full extent of the damage, connected with the accident in question. But although the physician whom he employed she had no right to show facts and circum- omitted to apply the remedy most approved stances which may have been connected with in similar cases, and by reason thereof the the condition of this walk at a remote or un- damage of the injured party was not dimincertain time or occasion. Such evidence had ished as much as it. otherwise would have a tendency to raise collateral issues to the been. Loeser v. Humphrey, 41 Ohio St. 378, inevitable prolongation of the trial and the 52 Am. Rep. 86; Eastman v. Sanborn, 3 Alprobable confusion of the jury. That which len (Mass.) 594, 81 Am. Dec. 677; McGarrathese witnesses saw at such times cannot han v. N. Y., N. H. & H. R., 171 Mass. 211; properly be said to be facts connected with 50 N. E. 610. the accident which happened to the plaintiff. As a general rule, one's negligence on a particular occasion cannot be proved by

showing his negligence on other occasions,

nor can his freedom from negligence on one occasion be shown by proof of his due care on other occasions. Our reports furnish numerous illustrations of the application of this principle. Morris v. East Haven, 41 Conn. 252, 254; State v. Goetz, 83 Conn. 437, 440, 76 Atl. 1000, 30 L. R. A. (N. S.) 458; Budd v. Meriden Electric R. Co., 69 Conn. 272, 286, 37 Atl. 683; Tiesler v. Norwich, 73 Conn. 199, 203, 47 Atl. 161; Gilmore v. American Tube & Stamping Co., 79 Conn. 498, 504, 66 Atl. 4. These are instances where an act of negligence, or the reverse, was sought to be inferred from other acts of negligence or nonnegligence. Moffitt v. Connecticut Co., 86 Conn. 527, 529, 86 Atl. 16.

[3] The plaintiff offered evidence tending to prove that shortly after she was injured she consulted Dr. E. Rowell, her family physician, a doctor of extensive experience, who, on account of the serious nature of the injury, referred her to Dr. Biggs, an expert surgeon. Evidence was also offered by the plaintiff as to the nature, extent, and permanency of her injuries.

The defendant offered in chief the testimony of a physician and surgeon who was conceded to be an expert. This doctor testified that he had made a physical examination of the plaintiff on behalf of the defendant, and he then described the condition of her injuries. He was then asked the following questions:

"Q. What was the usual custom among physicians in Stamford in January, 1912, as to using anæsthesia and X-ray examinations for fractures of this character? Q. I will ask you, Doctor, what the proper treatment for such an injury as this would have been, in your opinion?"

On objection these questions were excluded. These objections were well taken, and the evidence properly excluded.

In Lyons v. Erie R. Co., 57 N. Y. 489, it was held, in an action to recover damages for injuries alleged to have been sustained by had given evidence tending to show the exerdefendant's negligence, where the defendant cise taken by plaintiff might have tended to retard recovery, and that quiet would have been better, that evidence that plaintiff was advised by his physician that it was right and beneficial to exercise was proper. The

court said:

and restore himself. He cannot recklessly en"He is bound to use ordinary care to cure hance his injury and charge it to another. If his arm be broken he cannot omit to have it set, and charge the loss of the arm to the wrongdoer. He is not obliged to employ the most skilled surgeon that can be found, or resort to the greatest expense to ward off the consequence of an injury which another has infaith and to resort to such means and adopt flicted upon him. He is bound to act in good such methods reasonably within his reach as will make his damage as small as he can."

[4] The defendant assigns as error that the trial court failed to find as requested in paragraph 2 of the draft finding. If the finding had been corrected by the trial court, as the defendant claimed, it would have given no better understanding of the character of the testimony which we have found was improperly admitted. The omission from the finding of certain facts which, if included, would not affect the correctness of the rulings made is not a ground of error. Hoadley v. Savings Bank of Danbury, 71 Conn. 600, 611, 612, 42 Atl. 667, 44 L. R. A: 321.

[5] Two errors assigned åre that the court erred in admitting the testimony of two certain witnesses over the objection of the defendant as set forth in certain paragraphs and subdivisions of the finding.

An examination of the finding discloses that in each instance the testimony was by the same witness and as to the same subjectmatter. In substance they were the same rulings made at different times.

"When the same ruling is made at different times, either with respect to the same or dif

fendant.

ferent witnesses, the finding should contain only | was wrongfully taken from him by the dea single ruling, unless the other rulings may be important as further illustrating the rule which determined the action of the court, or as establishing the materiality of the claimed." Practice Book, p. 267, § 5.

[6] All the evidence and rulings of the court, comprising about 130 pages, have been printed and made a part of the record upon the defendant's motion.

As we have already indicated, there was no good excuse for burdening the record with all the evidence which is now before us. Therefore no costs in favor of the defendant will be taxed for the printing of the evidence.

[1] Trover, in substance, is a remedy to recover the value of personal chattels wrongfully converted by another to his own use. It is admitted in this case that the plaintiff was the tenant of the defendant of a certain farm in Blackbird Hundred in New Castle county in this state for one year from March 1, 1913, and plaintiff claims that in addition to the farm rented to him under a verbal agreement, that the defendant left on the farm certain live stock, consisting in part of four cows, thirty-two ewes and one ramthat the number of ewes was increased by

There is error, and a new trial is ordered. the addition of twelve ewes during the tenThe other Judges concur.

(5 Boyce, 140)

BAKER v. SPRUANCE.

(Superior Court of Delaware. Kent. April 30,

1914.)

1. TROVER AND CONVERSION (8 13*)-NATURE

OF ACTION-"TROVER."

ancy, that the plaintiff was to receive the milk from the cows, and the defendant was to receive the increase from the cows, that plaintiff was to receive one-half of the lambs

that were dropped by the ewes.

On the part of defendant the above recited facts are admitted with the exception that defendant contends, that the plaintiff was to receive one-half of the lambs, if the lambs were dropped during the tenancy but if the [Ed. Note.-For other cases, see Trover and lambs were not dropped until after the tenConversion, Cent. Dig. §§ 103-116; Dec. Dig. §ancy expired, then only one-quarter of the 13.* lambs. Further, defendant claims that he

"Trover," in substance, is a remedy to recover personal chattels wrongfully converted by another to his own use.

For other definitions, see Words and Phras- was to be at liberty to remove the above es, vol. 8, pp. 7111-7113, 7821.]

2. TROVER AND CONVERSION (§ 16*) -ELEMENTS OF ACTION. In order to entitle plaintiff to recover in trover, he must prove property in himself and a right of possession at the time of conversion and conversion of the property by defendant to his own use.

[Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. §§ 119-147; Dec. Dig. § 16.*]

3. TROVER AND CONVERSION (§ 46*) DAM

AGES.

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The measure of damages in an action for trover and conversion is the value of the property at the time of the taking and conversion. [Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. § 263; Dec. Dig. § 46.*] 4. EVIDENCE (§ 588*)-CONFLICTING EVIDENCE -DUTY TO RECONCILE.

Where evidence is conflicting, it is the jury's duty to reconcile it if possible; otherwise to give credit to that which in the jury's opinion is entitled to the most credit, considering the bias, prejudice, or interest that the witnesses may have in the outcome of the case.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*]

Action by William J. Baker against Edgar Spruance. Verdict for plaintiff.

Argued before BOYCE and CONRAD, JJ. Charles H. Le Fevre, of Dover, for plaintiff. James M. Satterfield, of Dover, for defendant.

CONRAD, J., charging the jury:

Gentlemen of the jury:-This is an action of trover, brought by the plaintiff William J. Baker against the defendant, Edgar Spruance, wherein the plaintiff claims the value of certain personal property which he alleges

stock from the farm if disagreements arose between him and the plaintiff, or if he failed' to properly care for the stock; and still further the defendant claims that he was notified by the plaintiff to remove his stock from the farm. The plaintiff denies that he so notified the defendant, either in person or by another, and plaintiff claims that he properly cared for the stock while in his possession.

[2] To entitle the plaintiff to recover in an action of trover he must prove (1) property in himself and a right of possession at the time of the conversion, and (2) a conversion of the property by the defendant to his own use. The matter of the taking and conversion of the property in this case is admitted by the defendant, so that the one question left for your determination is whether the defendant at the time of taking the property had the right of possession under the agreement of lease with the plaintiff, or was requested to remove the stock from the prem

ises.

If you are satisfied from the evidence that defendant reserved to himself the right to take back or remove the stock if disagreements arose between him and the plaintiff in the course of the tenancy, or if, as defendant claims, the plaintiff failed to properly care for the stock and if that fact has been established by the evidence, or if the witnesses have convinced you that plaintiff notified defendant to remove his stock from the premises, then defendant would be entitled to a verdict.

[3] If on the other hand the evidence pro

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

issue to the persons interested therein, and at the return thereof a caveat was filed on behalf of two of the persons so interested.

Robert H. Richards, of Wilmington, for propounders. Edward G. Cooke and Charles W. Bush, both of Wilmington, for caveators.

duced on the part of the plaintiff satisfies | An order was made directing that citations your minds that he was in the rightful control and possession of the stock under the agreement of lease, and thereby entitled to possess and enjoy them during the continuance of the tenancy; and that plaintiff did not consent to or direct their removal, then plaintiff should be given a verdict, and the measure of damages is the value of the property at the time of the taking and conversion, not exceeding the sum of one hundred and forty-seven dollars and fifty cents, the amount claimed by him.

The real matter for your consideration is the scope and meaning of the verbal agreement between the parties, and this you must determine from the preponderance of the evi

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In re LECARPENTIER'S WILL

(Orphans' Court of Delaware. New Castle. May 7, 1914.)

1. WILLS (§ 116*)-ATTESTATION-COMPETENCY OF WITNESSES.

The register of wills is competent to testify as an attesting witness to the execution of a will, for the Constitution provides that in case the register is interested the Orphans' Court shall take jurisdiction of the proceedings for probate.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 284-298; Dec. Dig. § 116.*]

2. WILLS (§ 116*)-ATTESTATION-COMPETENCY OF WITNESSES - "CREDIBLE" - "COMPETENT.

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Under Act Gen. Assem. April 6, 1881 (16 Del. Laws, c. 537 [Rev. Code 1893, p. 798]); which made persons interested in the event of the suit competent to testify, a shareholder in a corporation appointed executor of a testator's last will is "competent" to testify as an attesting witness to the will; the statute requiring two "credible witnesses" to a will, and "credible" being synonymous with "competent." [Ed. Note.-For other cases, see Wills, Cent. Dig. 88 284-298; Dec. Dig. § 116.*

For other definitions, see Words and Phras

es, vol. 2. pp. 1709; vol. 8, p. 7622; vol. 2, pp. 1358, 1359.]

In the matter of the probate of the paper writing purporting to be the last will and testament of Alfred D. Lecarpentier, deceased. Will admitted to probate.

The register of wills being disqualified to probate the paper writing purporting to be the last will and testament of Alfred D. Lecarpentier, deceased, a petition was presented on behalf of those named therein as executors asking the Orphans' Court to take jurisdiction thereof and to probate the will.

CURTIS, P. J. Alfred D. Lecarpentier died March 1, 1914, leaving a will dated July 10, 1912, the two attesting witnesses to which were Francis M. Walker, Esq., and George A. Elliott, Esq. Mr. Walker was at the time of the execution of the will, and at the death of the testator and still is, register of wills for New Castle county. Being disqualified to probate the will, a petition was presented to the Orphans' Court by those named in the will as executors, setting forth the disqualification of Mr. Walker and asking that the Orphans' Court take jurisdiction, as provided in the Constitution of the state. Thereupon this court made an order taking cognizance issued to all the parties interested and noof the cause, and directing that citations be tice given by publication in the usual way. according to the practice in the register's court. All the parties were cited, or notified, or appeared. A caveat in general form was filed by two of the parties interested, and on motion of the attorney for the proponent of the will, the caveators were required to set out the grounds on which the caveat was based. Objections were made to the competency of both of the attesting witnesses; to Mr. Walker because he was register of wills, and to Mr. Elliott because he was a stockholder and director of the Equitable Guarantee & Trust Company, which was one of the executors and was also appointed trustee of the estate.

[1] The first ground of objection was not further urged and was distinctly abandoned. Inasmuch as by the Constitution in case a register of wills is interested in questions concerning the probate of wills, the cognizance thereof belongs to another tribunal, the Orphans' Court, there is, of course, no basis for an objection to the competency of the register of wills to testify as an attesting witness at the probate of the will in the Orphans' Court.

Against the sufficiency of this objection the attorney for the will cited authorities to show that a person is not disqualified to act as subscribing witness to a will because at the time of the execution of the will he was a judge of a court for the probate of wills. Schouler on Wills, 172; Patten v. Tallman, 27 Me. 19; Panaud v. Jones, 1 Cal. 488;. McLean v. Barnard, 1 Root (Conn.) 462; Ford's Case, 2 Root (Conn.) 232. He would, of course, be disqualified to probate the will.

[2] The other ground of objection related to the competency of Mr. Elliott. Testimony was heard before the Orphans' Court which

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

showed that Mr. Elliott was a stockholder | an attesting witness. It was also there held and director of the Equitable Guarantee & that the proviso of the act did affect the reTrust Company, and that the number of shares of the stock of the company held by him were 50. There was no evidence of any other interest which he had in the estate of the decedent in any way.

sult. This decision is binding on this court. It was by the Superior Court on an issue from the register of wills, and by the Constitution made final, and it is, therefore, final so far as the Orphans' Court is concerned when it takes cognizance of the probate of a will in cases where the register of wills is disqualified.

The statute of this state requires that there be two, or more, "credible" witnesses to a will. It seems to be settled by uniform decisions that "credible" is synonymous with "competent." Page on Wills, § 191; 40 Cyc. 1109. The case of Sutton v. Sutton, 5 Har. 459, seems to have a different definition and to make it synonymous with 'creditable," but it was not so there said respecting the testimony of an attesting witness. There are two cases which were decided before 1881, when the act removing the disability of interest of witnesses was passed. They were Sutton v. Sutton, 5 Har. 459, and Davis v. Rogers, 1 Houst. 44. But neither of them decided that a person named as executor in. a will was disqualified as an attesting witness to the will. In each of the cases the court considered whether persons named as executors were competent to testify, not as attesting witnesses, but as general witnesses. In the former case (Sutton v. Sutton), there were two executors called to prove the circumstances under which the will was found after the death of the testator. One of them was interested in a codicil and was excluded, Just as all persons interested in a suit were at that time excluded, but the other executoring or applying our own statute. not being so interested was admitted. In the later case, Davis v. Rogers, William H. Rogers, the executor named in the will, but not an attesting witness, was also a trustee under the will, which expressly provided that he should be paid fair and liberal compensation as such trustee. It was held that he was incompetent by reason of his interest. Chief Justice Harrington, however, intimat-1. ed that there would have been a difference if he had been an attesting witness, and the only disqualification urged was based on his being such.

The case of In re Spiegelhalter's Will also decides that a trustee under a will is not disqualified to be an attesting witness, for interest in the event is no longer a disqualification. If Mr. Elliott had been executor and trustee under this will, he would not have been incompetent as an attesting witness, much less would he be here since he is not executor or trustee, but an officer and holder of a small number of shares of stock of a corporation named as executor and trustee.

Counsel for the will in his brief cites authorities of other courts which sustain the decision of the Superior Court, but it is not necessary to advert to them.

The argument for the caveators is based largely on the decisions of a Pennsylvania statute respecting gifts by will to or in trust for charities. This statute expressly requires that in such cases the witnesses to the will shall not only be credible, but "at the time disinterested." Of course, decisions respecting this statute are not helpful in interpret

There is no ground to sustain the caveat, and an order will be made admitting the will to probate.

(10 Del. Ch. 308) GREIF et al. v. JAMES H. WRIGHT CO. (Court of Chancery of Delaware. June 15, 1914.)

CORPORATIONS (§ 567*) - RECEIVERSHIPS —
SET-OFFS OF OR AGAINST CLAIMANTS.

The right to set off mutual debts due to and from a corporation, under Rev. Code 1852, amended to 1893, p. 793, c. 106, § 21, providing that mutual debts between parties to an action, due at the time of action brought in the same right, may be the subject of set-off, ceiver for the corporation under a statute auwas not defeated by the appointment of a rethorizing the appointment of a receiver for insolvent corporations on the application and for the benefit of any creditor or stockholder, tee and as a representative of the insolvent, and acquires no greater interest in the estate than the corporation had, and the assets are brances as exist at the time of the appointment. subject to such set-offs, liens, and incum[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 2287; Dec. Dig. § 567.*] 2. CORPORATIONS (§ 567*) — RECEIVERSHIPS

Whatever may have been the decisions before 1881, one decision has been rendered in Delaware since that time which is decisive of this case, and binding on this court. The act of April 6, 1881 (chapter 537, vol. 16, p. 798, of Revised Code), removed the disability of interest in a witness and made a person interested in the event of the suit or matter to be determined competent as a witness, except in proceedings by or against executors, in which a judment or decree may be render-brances as exist at the time of the appointment. ed for or against them.

In the case of In re Spiegelhalter's Will, 1 Pennewill, 5, 39 Atl. 465 (1897), the executor was one of the attesting witnesses, and it was held he was not disqualified to prove the execution of the will. The court relied on the act of 1881, above referred to, as making the executor competent as

since such receiver takes the assets as a trus

SET-OFFS OF OR AGAINST CLAIMANTS. A debt due to the receiver of an insolvent corporation, as distinguished from a debt due to the corporation, cannot be set off against a debt due from the corporation.

[Ed. Note.-For other cases, see Corporations, Cent. Dig. § 2287; Dec. Dig. § 567.*}

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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