papers. received, and stating in very general terms the purpose for which they had been received. Under the circumstances it is difficult to believe that either party supposed or intended the words "for collection" to be a contract on the part of the defendants to personally collect the note. In this view of the matter the court clearly did not err in admitting the testimony in question. But we need not, and do not mean to, decide whether or not the receipt has the effect claimed for it by the plaintiff; for, even if it has, and if it be true, as claimed, that the court erred in admitting the evidence, still this cannot avail the plaintiff, because, on the facts admitted, and found without reference to this evidence, its admission did him no harm, and a new trial in the present case would not change the result. The plaintiff admits that he authorized and directed the defendants to collect the note, and this empowered them to deliver it up on full payment. He admits, in his reply, that it has been paid in full, and his real claim is that the proceeds of it, in law, and so far as he is concerned, were paid to the defendants. As we have already seen, they thus did with the note just what the plaintiff claims he empowered them to do, namely, deliver it up on full payment. This being so, he can never recover for the conversion of the note in this or any other suit. A new trial, if one should be granted for the claimed error in question, would therefore be of no avail, as, upon the conceded facts, the result would not be changed. "The court therefore will not grant a new trial of the case, which, if granted, must come to the same result as the former trial." Scofield v. Lockwood, 35 Conn. 425429. There is no error, and a new trial is denied. The other judges concurred.

SHALLEY et al. v. DANBURY & B. H. RY. CO.

(Supreme Court of Errors of Connecticut. June 29, 1894.)

ACTION AGAINST STREET RAILWAY DEFECT IN STREET-NOTICE BEFORE SUIT - WAIVER -EVIDENCE-CONSTITUTIONAL LAW.

1. Gen. St. § 2673, provides that no action for injuries caused by a defective road shall be maintained against any town, city, corporation, or borough, unless written notice of such injury, and of the time and place of its occurrence, shall, within 60 days, be given the selectmen of such town, or the clerk of such city, corporation, or borough; and, when the injury is caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. Held, that where an injury is caused by the removal of earth from between its tracks by a street-railway company, which, by its charter, is required to keep that portion of the street in repair, the company is entitled to the statutory notice.

2. Such statute, as so construed, is constitutional. 3. Where a railway company was, under Gen. St. § 2673, entitled to notice of certain in

jury within 60 days, in order that suit might be brought therefor, a statement by its president to the husband of the person injured, when he demanded damages, that he must present his claim to the company which insured the railway company against losses, and not to the railway company, as the latter had nothing to do with the losses in such cases, and that the insurance company would see to it, and to wait and follow his (the president's) instructions, was not waiver of notice.

Appeal from superior court, Fairfield county; F. B. Hall, Judge.

Action by Margaret Shalley and another against the Danbury & Bethel Horse-Railway Company to recover damages for personal injuries. A demurrer to the complaint was sustained, and plaintiffs appeal. Affirmed.

Lyman D. Brewster and Samuel A. Davis, for appellants. Samuel Tweedy and Howard B. Scott, for appellee.

TORRANCE, J. The defendant is a corporation owning and operating a street railroad in the towns of Danbury and Bethel. By the provisions of its charter, it is made the duty of the defendant, among other things, to keep in repair that portion of the streets and highways over which its railway is laid down, and a space of two feet on each side of its tracks, without expense to the municipalities through which its road is laid, or to the owners of land adjoining said railway. The complaint alleges in substance that on the 21st of September, 1892, in the course repairs to the defendant's tracks at the corner of West and Montgomery streets, in Danbury, "the same were, by said railway company, negligently and carelessly left at night in a hazardous and dangerous condition, by reason of the natural soil or earth between and around said tracks having been removed by said company to a considerable depth, viz. six inches or more, and said tracks were left exposed without lights by said company, or other warning to those in passing vehicles on the public highway," and that the plaintiff, on the night of said 21st of September, while riding with her husband in a vehicle on said highway at the corner of West and Montgomery streets, "drove upon and across said railway tracks, then and there being in said negligent and dangerous and exposed condition, and with no lights or warning to give notice of their condition, and said Margaret Shalley was violently thrown from said vehicle upon the ground," and sustained the injuries for which she now seeks to recover.

No statutory notice of the accident or injuries was alleged to have been given, but the complaint, in paragraph 4, sets forth in detail certain facts which the plaintiffs I claimed either amounted to a waiver of the required notice by the defendant, or estopped the defendant from availing itself of the want of such notice. That paragraph reads as follows: "Said John Shalley, husband of Margaret Shalley, and in her behalf

deemed by the legislature to be reasonable, upon the exercise of such right. We think the legislature had the power to impose such a restriction, and that section 2673 of the General Statutes requires the prescribed notice to be given in cases like the one at bar. Fields v. Railroad Co., 54 Conn. 9, 4 Atl. 105. The complaint in question must also, we think, be treated as one founded upon the duty and liability thus imposed upon the defenuant by its charter and by statute. Whether a private corporation, in a case like this, can waive the statutory requirement, may perhaps admit of scme doubt; but, in the view we take of the case at bar, it is unnecessary to decide that question. The case was argued before us, in one aspect of it, on the assumption that this could be done; and for the purposes of the discussion, merely, we will proceed on the same assumption.

The question then is, as before stated, whether the facts set forth in paragraph 4 constitute a waiver of the requirement of statutory notice, or estop the defendant from availing itself of the want of notice. In discussing it we will also assume, for the purposes of the discussion, that it sufficiently appears from the complaint that Mr. Holley had authority to bind the defendant by what he said and did. What, then, are the facts relied upon to constitute such waiver and estoppel? They relate to what took place at the interview between Shalley and Holley on the day after the accident, and to certain acts of the defendant after the 60 days had expired. At that interview, Mr. Shalley told Mr. Holley all about the accident, and ended by demanding damages. Mr. Holley tells him to ascertain the whole extent of the damage, and then to present his claim to the insurance company, and not to the railway company. He assured him that the insurance company would see to it, and directed him to wait, and follow his (Holley's) instructions. This last direction-to wait, and follow Holley's instructions-must, we think, have reference to waiting till the entire extent of the damage was ascertained, and then presenting the claim to the insurance company, and not to future instructions to be given by Holley in this matter. This seems to be a reasonable construction to give to this sentence, under the circumstances, because Holley then and there had instructed Shalley, to a limited extent, what to do; and, after the instructions then given, it would hardly seem that any further instructions were contemplated, unless we assume that Holley then and there promised to counsel and advise Shalley as to all or some of the steps necessary to perfect his claim against the defendant, and as this is neither expressly nor impliedly asserted the assumption would be a very violent one. These parties occupied at this interview a hostile attitude, so to speak, towards each other. The defendant was under no duty to tell

Shalley what to do to obtain redress for the injuries to his wife, nor did Shalley go to him to obtain information upon this point. We must presume that they both knew the law, and dealt with each other at arm's length, and upon an equal footing. Shalley went there to state his injuries and to demand redress, and not to be advised as to his legal rights. In the absence, then, of any clear allegation to that effect, we ought not to construe the sentence in question as alleg ing a promise to give future instructions. But, if we did, the complaint nowhere alleges that the defendant failed to give such future instructions; so that, even if it should be held that he promised to do so, this point may be laid out of the case.

This, then, is the extent, and the whole extent, of the interview: Shalley informs the defendant of the accident, and demands damages. The defendant tells him to wait till he ascertains the whole extent of his damage, and then to present his claim to the insurance company, and not to the railway company, because it had nothing to do with the matter, and assures him that the former company "would see to it." Holley neither admits nor denies the validity of the claim or the extent of the damage. He simply says, in effect, "Whatever claim you have, present it to the insurance company, as we have nothing to do with the losses in such cases." He does, indeed, in words, deny that his company is liable. But this is said, not with reference to Shalley's case only, but with reference to all such cases; and he gives the reason for his denial in the fact that his company was insured against such losses in cases where damage might be justly due. This is plainly what he meant, and all he meant, by his denial of liability, and we think Shalley must have so understood him. For aught that appears, Holley's advice was given in entire good faith, in the honest belief that the claim should be presented to the insurance company. Presumably, and for aught that appears, Shalley knew just as much about the legal aspect of this matter as Holley did; but, however this may be, it is nowhere alleged that the plaintiffs followed this advice, or that they were in any way misled or prejudiced thereby. It is indeed alleged that in reliance upon it they did not give the statutory notice, but we fail to see how they had a right to rely upon it for any such purpose. The parties at that interview were each standing upon their legal rights, and dealing with each other as prospective litigants. Nothing whatever is said about the rights or duties of each to the other, further than is stated, and certainly there is not the slightest allusion to the statutory notice during the interview. Indeed, for aught that appears, it was not then present to the minds of the parties at all. The plaintiffs had ample time after the interview in which to give it, and nothing was said or done

there, calculated to mislead them with respect to giving notice, or that can be reasonably construed as a waiver of such notice on the part of the defendant. Nor is there anything in what it is alleged the defendant did, after the 60 days expired, which can be or ought to be construed as a waiver of the statutory notice. In short, looking carefully at the facts alleged in paragraph 4, it is impossible to find anything to justify the conclusion that the defendant waived the statutory notice, or anything that estops it from denying that such notice was given. There There is no error. The other judges concurred.

BYRNE v. TOWN OF FARMINGTON. (Supreme Court of Errors of Connecticut. June 1, 1894.)

SURFACE WATERS-DRAINAGE OF HIGHWAYS.

A town is under no obligation to an owner adjoining a highway to keep open a culvert built opposite his premises, merely to let off the surface water.

Appeal from court of common pleas, Hartford county; Calhoun, Judge.

Action by James Byrne against the town of Farmington for damages for negligence in allowing obstruction of a culvert. Judg ment for defendant. Plaintiff appeals. Affirmed.

Roger Welles, for appellant. Noble E. Pierce and George E. Taft, for appellee.

HAMERSLEY, J. J. This is an action against the town of Farmington to recover damages for injury to the plaintiff's dwelling house and property from a flow of water into his cellar, caused by the negligence of the town in respect to a culvert under the highway in front of the plaintiff's premises. The defendant demurred to the complaint. The demurrer was overruled. No question is now raised as to the sufficiency of the complaint. The case was tried to the court upon the issues raised by the answer, and judgment rendered for the defendant. From that judgment the defendant appeals. The material facts as found by the court are as follows: The plaintiff bought the land described in the complaint in 1876, and the following year built a house thereon, where he now resides. The house is on the west side of a highway of the defendant town, and stands in a swale where surface water from melting snow or heavy spring rains tends to collect, but only occasionally, and from these causes. The highway has been built for more than 50 years. In 1878 the road commissioner of the defendant built a stone culvert in the highway in place of a wooden sluice which had become obstructed. The culvert culvert was situated just south of the plaintiff's house, in front of his lot, and at the lowest part of the swale. The sluice and culvert were built for high

way purposes only, to enable the water to pass from the west to the east side of the highway when a passage was needed. No water course ever flowed through either. The culvert, if unobstructed, was sufficient to carry off any collection of surface water on the west side of the highway, and from the plaintiff's land. plaintiff's land. Without such a waterway the surface water would be retained by the highway bank. In the winter of 1892-93, owing to the extreme and protracted cold, this culvert was frozen up, and thus became completely pletely obstructed. obstructed. The accumulations of surface water caused by melting snow and rain during January and March, 1893, were extraordinary. On three occasions during that time, the culvert being obstructed by ice, such water accumulated in the swale on the plaintiff's premises and flowed into his cellar, damaging his property. On April Sth the defendant opened and cleared the culvert. The defendant was guilty of negligence in not opening and clearing the culvert at an earlier date, if it were the duty of the defendant to keep the culvert open and unobstructed for the benefit of the plaintiff. The plaintiff claims that the trial court erred in not holding, upon the facts found, as a matter of law, that it was the defendant's duty to keep the culvert unobstructed for the benefit of the plaintiff, and that, therefore, the defendant was liable to the plaintiff for damages caused by negligence in the performance of that duty. There is no foundation for such claim. In the discharge of its obligations in the maintenance of a highway, a town, if it has any duty to an adjoining proprietor in reference to the flow of surface water, has no greater duty than is imposed on an individual owner of land. The rule in such cases is well settled. "The right of an owner of land to determine the manner in which he will use it or the mode in which he will enjoy it, the same being lawful, is too high in character to be affected by considerations growing out of the retention, diversion, or repulsion of mere surface water, the result of falling rain or melting snow." Grant v. Allen, 41 Conn. 156. "No action can be maintained for changing the course or obstructing the flow of mere surface water by erections on adjoining land. It makes no difference in the application of this rule that the land is naturally wet and swampy. A coterminous proprietor may change the situation or surface of his land by raising or filling it to a higher grade, by the construction of dykes, the erection of structures, or other improvements which cause water to accumulate from natural causes on adjacent land, and prevent it from passing off over the surface." Dickinson v. City of Worcester, 7 Allen, 19; Gould, Waters, § 256; Chadeayne v. Robinson, 55 Conn. 346, 11 Atl. 592; Smith v. King, 61 Conn. 517, 23 Atl. 923; Gannett v. Hargadon, 10 Allen, 106; Franklin v. Fisk, 13 Allen, 211; Bates v. Inhabitants of West

In

borough, 151 Mass. 174, 23 N. E. 1070. the present case, the use of its land by the town, in raising slightly the grade of the traveled part of the highway, was a lawful

The town was not liable in damages for the obstruction of the flow of mere surface water caused by such raising of grade. It was under no obligation to the adjoining proprietor to build a culvert. It had a right, as against such proprietor, to close the culvert, either permanently, or by failing to remove a temporary obstruction. As the court says in Chadeayne v. Robinson, 55 Conn. 350, 11 Atl. 592: "It is the right of the defendants to erect for the entire depth of their lot a structure which will be a perfect barrier to surface water. Of course, that which they may do perfectly and permanently they may do imperfectly and temporarily, and the plaintiffs must accept the consequences." The facts found by the trial court bring this case clearly, and without any room for doubt, within this well-established rule. It is unnecessary to consider what rule might apply, if the plaintiff had succeeded in proving, as he seems to have claimed upon the trial, that the water obstructed and set back upon his land was not merely the natural and occasional accumulations of surface water, but was in the nature of a water course which the defendant undertook to control, and by its negligence diverted or repelled from its natural course, to his dam

age.

The plaintiff claims that section 2683 of the General Statutes makes the defendant liable in damages for neglecting to clear the culvert. That section is: "Persons authorized to construct or repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person's land so far as necessary to drain off such water; and when it should be necessary to make any drain upon or through any person's land for the purpose named in this section it shall be done in such way as to do the least damage to such land; provided that nothing in this section shall be so construed as to allow the drainage of water from such highways into or upon any door-yard, in front of any dwelling house, or into and upon yards and inclosures used exclusively for the storage and sale of goods and merchandise." This statute has no application to the plaintiff's case. The defendant has neither made nor cleared any watercourse or place for draining water from the highway into or through the plaintiff's land, and therefore has not, within the meaning of the statute, drained any water from the highway into or upon the plaintiff's dooryard. If the plaintiff has been aggrieved by the judgment of the trial court, his grievance consists solely in his failure to convince the court that he had proved the facts alleged in his complaint. Upon the facts, as found, the court correctly held that the defendant was not liable to the plaintiff for

damage caused by its failure to keep the culvert open for the benefit of the plaintiff. There is no error in the judgment of the court of common pleas. The other judges concurred.

PRICE v. SOCIETY FOR SAVINGS. (Supreme Court of Errors of Connecticut. May 31, 1894.)

EXEMPTIONS-PENSION MONEY-DEPOSIT IN BANK.

Under Gen. St. § 1164, exempting from levy any pension moneys received from the United States while "in the hands of the pensioner," proceeds of a pension check are exempt if made the subject of a single deposit entered on a pass book, in a mutual savings bank, of whose assets he thereby becomes a proportional part owner.

Case reserved from court of common pleas, Hartford county; Calhoun, Judge.

Scire facias by Robert Price against the Society for Savings, garnishee. On defendant's demurrer, case reserved for the advice of the supreme court of errors. Judgment advised for defendant.

William F. Henney, for plaintiff. Joseph L. Barbour, for defendant.

BALDWIN, J. Rev. St. U. S. § 4747, provides that "no sum of money due, or to become due, to any pensioner shall be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, whether the same remains with the pension office, or any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner." This statute protects pension money from attachment so long as it remains due to the pensioner, but not after it has been actually paid over, and has come into his possession. Spelman v. Aldrich, 126 Mass. 113; Friend v. Garcelon, 77 Me. 25; Rozelle v. Rhodes, 116 Pa. St. 129, 9 Atl. 160. Gen. St. § 1164, exempts from attachment or execution "any pension moneys received from the United States, while in the hands of the pensioner." The validity of the plaintiff's attachment must therefore depend on whether that part of Covel's pension money which he deposited with the defendant can be considered as still in his hands. The deposit, as soon as made, transferred the title to the particular bills or specie which were deposited from the pensioner to the savings bank. But he also became substantially a part owner of all the assets of the bank. It was an agency for receiving and loaning money on account of its depositors. Savings Bank v. New London, 20 Conn. 111; Bunnell v. Society, 38 Conn. 203; Osborn v. Byrne, 43 Conn. 155. A pension is a bounty for past services rendered to the public. It is mainly designed to assist the pensioner in providing for his daily wants. Statutes protecting his interest in it, until so used, are of a remedial nature, and entitled to a liberal construction. Montague v. Richardson, 24 Conn. 338, 348;