cause is more properly called 'nil dicit,' but the term 'default' is usually extended to cover this case also." In Lennon v. Rawitzer, 57 Conn., on page 585, 19 Atl. 334, Loomis, J., delivering the opinion of the court, defines a default as "a common-law judgment which was entered when the defendant neglected or refused to appear, or when he acknowledged the action to be just, and withdrew his appearance,"-a definition which clearly does not embrace judgments upon demurrer, whether such judgments be regarded as final or interlocutory. They are, indeed, doubtless the latter in such a case as the one now under consideration, for two reasons: First, because, being in an action for unliquidated damages, it is, as a default also would be in such a case, an incident which entitles the plaintiff to judgment, but does not determine the amount of such judg ment, (Sheldon v. Sheldon, 37 Vt. 152; Holcomb v. Town of Winchester, 52 Conn. 448;) and, second, because the statute passed in 1872, allowing a party upon the overruling of a demurrer to plead over, causes the interlocutory judgment of respondeat ouster to be entered. But in reference to the latter point, as said by this court in Denton v. Town of Danbury, 48 Conn. 372, “if the party entitled to plead or answer over refuses or neglects so to do, the court must render judgment in favor of the plaintiff for his damages and costs, if the demurrer be determined in his favor." And this judgment, when rendered and final, either because immediately so, the damages being liquidated, or after damages assessed if unliquidated, is a judgment upon demurrer, and not on default. Even if it were admitted that the defendant was bound to answer over, and that he was, in common parlance, in default for failing so to do, we do not see as that would support the plaintiff's contention, for in the single case where at common law a judgment of respondeat ouster was rendered upon a defendant's demurrer,—that is, where a defendant demurred for a variance between declaration and writ, and pending demurrer leave was granted to amend, and thereupon demurrer was overruled, (Walker v. Walker, 6 How. [Miss.] 500,)-or in the cases where the plaintiff's demurrer to the defendant's dilatory plea is sustained, and thereupon the defendant is ordered to answer over or further, (Cook v. Crawford, 1 Tex. 9; Trow v. Messer, 32 N. H. 361,) "the practice is to give judgment that he answer over, after which, and on his failure to plead to the merits, he may be defaulted," (1 Black, Judgm. § 89.) This is akin to the rules under our practice act. See 58 Conn. p. 566, § 1, 20 Atl. vii., which provides that upon failure to plead agreeably to rule or the order of the court "the court may, on motion of the other party, order a nonsuit, default, or judgment on a cross complaint, counterclaim or set-off, as the case may be." Why order a default

in such case, if failure to plead itself constituted a default without such order?

But, after all, to do the plaintiff's case full justice, the real contention appears to be that the overruling of the defendant's demurrer, with failure of the defendant further to answer within the time limited by the rules of court is equivalent in its effect to a default; that the right established to a final judgment for damages and the procedure to ascertain and fix the amount of such damages, are identical in both cases; and, that being so, there is no reason to infer that the legislature intended by the act in question to create a difference where none existed before in fact, or now exists in principle, but that the opposite inference should be drawn, and the act construed as extending to demurrers overruled, with failure to answer over, as being "the clear intention of the legislature, sufficiently expressed." We fully agree that there is force in the claim that such intention should be imputed to the legislature, and will further say that the claim is strengthened by the consideration of the language which has sometimes been used by this court. Thus, in Daniels v. Town of Saybrook, 34 Conn. 377, the court, (Butler, J.,) said on page 381: "The defendants in this case, by demurring to the declaration, defaulted as to the facts sufficiently alleged and essential to constitute a cause of action, and thereby admitted them. When their demurrer was overruled, their case stood as upon default, with all the essential elements of the cause of action, and the right of the plaintiffs to recover some damages, conclusively admitted;" and this language thus made use of in that case, before the act of 1872 permitting answer over was passed, was repeated with apparent full approval in Crane v. Transportation Line, 48 Conn. 366, after the passage of that act. Nor does it substantially weaken the argument as to the inferred intent of the legislature to say, as is undoubtedly true, that such language was uttered with no reference to any point under consideration in this case, and that, properly understood, with the words "defaulted as to the facts" limited by the subsequent expression that "the case stood as upon default, with all the essential elements of the cause of action and the right of the plaintiffs to recover some damages conclusively admitted," means nothing more than that a judgment upon demurrer,-that is, on an issue of law, establishes the same right in the plaintiff, and entitles the plaintiff to the same further procedure to perfect such right, as would follow from a default.

But, notwithstanding these strong grounds, we are forced to the conclusion that we ought not to construe the act in question as claimed by the plaintiff. There are, as appears to us, even more conclusive reasons for the opposite conclusion. The as

sessment of unliquidated damages by the court, in cases both of default and of demurrer overruled, is not alone in consonance with "the uniform practice of the courts of this state ever since they have existed," (Lennon v. Rawitzer, 57 Conn. 584, 19 Atl. 334,) but also a statute originally passed in 1821, ever since continued upon our statute book, and now Gen. St. § 1106, provides that "in all cases where a judgment is rendered otherwise than on a verdict, in favor of the plaintiff, the court shall assess the damages which he shall recover." Against the settled policy of the state, so often declared by the courts, so long and uninterruptedly continued, for more than 70 years sanctioned by the direct and positive provisions of the statute, it appears to us that no rules or canons of construction justify our extending the provisions of the act of 1889 beyond its express terms. In more than a score of Connecticut cases in the supreme court Reports, as also in Gen. St. § 1118, and in Swift's Digest, the expression, "default or demurrer overruled," has been used as clearly meaning and intending two things, not one, and not convertible. In the general rules of practice in the book containing the practice act and rules of

1879, at page 248, in the arrangement of cases for assignment and trial according to the order of privilege, hearings in damages on default stand as one class. (No. 14,) and hearings in damages on demurrer overruled as another, (No. 15.) This is now changed, however, (58 Conn. p. 576, 20 Atl. xi.,-No. 9,) embracing "hearings to the court in damages on default or demurrer overruled." Such being the case, it seems to us that, if the legislature had purposed to change the law, both common and statute, in reference not only to defaults properly and commonly so called and understood, but also in regard to demurrers overruled, in which no judgment of default for failure to plead had ever been moved for by counsel or ordered by the court, it would have been natural and easy to adopt the form of expression so popularly and universally in use; and that, failing to do so, it may be and ought to be inferred that such was not its intention; and we therefore hold that the plaintiff was not entitled to have her damages assessed by the jury. There is error in the judgment complained of, and the case is remanded for a new trial or hearing in damages by the court. The other judges con

curred.

Acquiescence.

Pleas in abatement, see "Pleading," 2.

Death of party.

1. An action, as provided by statute, to re-
cover money paid by plaintiff to a liquor dealer
for beer sold in violation of the liquor law to
plaintiff, a retail liquor dealer, survives on the
death of the seller.-Yerteau v. Bacon's Estate,
(Vt.) 27 A. 198.

2. An action against a railroad company
for discrimination in freight rates does not
abate by death of the shipper sul sequent to the
bringing thereof.-Tucker v. Providence & W.
R. Co., (R. I.) 27 A. 448.

Substitution of heirs.

3. Where, after an action of ejectment is
at issue, plaintiff dies, his heirs are properly
substituted as plaintiffs on petition of defendant.
-Ballantine v. Negley, (Pa. Sup.) 27 A. 1051.

A replication of an account stated to a

ACTION.

See, also, "Limitation of Actions:" "Pleading;"
"Practice in Civil Cases;" "Witness."
"Assumpsit;" "Cove-
Particular actions, see
nant, Action of;" "Death by Wrongful Act;"
"Entry,
"Deceit;" "Divorce;" "Ejectment;'
Writ of;" "False Imprisonment;" "Forcible
Entry and Detainer:" "Fraud;" "Injunction;"
"Libel and Slander;" "Malicious Prosecu-
tion;" "Partition;" "Qui Tam and Penal
Action:" "Replevin;" "Specific Performance;"
"Trespass;" "Trover and Conversion."
Against husband and wife, see "Husband and
Wife," 18, 19.
Arrest in civil cases, see "Arrest."
By and against personal representatives, see
"Executors and Administrators," 16, 17.
By assignee and assignor, see 'Assignment,"
3, 4.

66

By husband for injuries to wife, see "Husband
and Wife," 20.

By state, see "States and State Officers."
For price, see "Sale," 18, 19.

On contract, see "Contracts," 16.

On insurance policy, see "Insurance," 14.
On lost note, see "Lost Instruments."

On note, see "Negotiable Instruments," 10.
On part of claim, see "Assignment," 4.
To construe will, see "Wills," 42.
Form of action.

1. Where plaintiff has a remedy by an ac-
tion of covenant on a sealed instrument. he
cannot waive it, and bring assumpsit.-McKay
v. Darling, (Vt.) 27 A. 324.

2. Where a cause is referred by consent of
the parties, defendant does not thereby waive
the objection that plaintiff improperly brought
assumpsit instead of covenant, as a reference
cures only legally amendable defects.-McKay
v. Darling, (Vt.) 27 A. 324.

Ademption.

See "Wills," 35.

Adequate Remedy at Law.

See "Equity," 1-3; "Specific Performance," 1.
Adjoining Landowners.

See "Boundaries."

Injunction against adjoining owner for waste
of natural gas, see "Natural Gas."
Injuries caused by digging gas well, construc-
tion of bond, see "Bonds," 2.

Adjournment.

v.27A.-71

Administration.

See "Executors and Administrators."

I. APPELLATE JURISDICTION.

Who may appeal.

1. A ward may appeal from a decree
granting or refusing guardianship over him.-
Appeal of Witham, 27 A. 252, 85 Me. 360.
Appealable judgments and orders.

2. To a creditors' bill making a mortgagee
of the debtor defendant, and seeking a redemp-
tion from the mortgage and a sale for the ben-
efit of the creditors, defendant mortgagee de-
murred on the ground that complainant, being
only a general creditor, had no right to redeem.
Held, that an order sustaining the demurrer
was final, as to proceed further on the credit-
ors' bill would have been fruitless.-McNiece v.
Eliason, (Md.) 27 A. 940.

3. Under Act March 11, 1875, providing
for a review by the supreme court where a non-
suit has been entered and a motion to set
aside the judgment of nonsuit has been denied,

error does not lie to the entry of a judgment
of nonsuit, but only to a refusal to set such
judgment aside.-Scanlon v. Suter, (Pa. Sup.)
27 A. 963.

4. A judgment of a court of common pleas
on certiorari to a justice of the peace setting
aside the justice's judgment is not reviewable
on appeal to the supreme court.-Jacobs v. El-
lis, 27 A. 297, 156 Pa. St. 253.

II. REQUISITES.

Time of taking.

5. Where an order for the removal of pau-
pers is made on the overseers of a district on
January 29, 1892, and the next court of quar-
ter sessions commences on February 1, 1892,
an appeal to the April sessions is too late, un-
der Act June 13, 1836, § 19, requiring an ap-
peal to the next court of quarter sessions after
the order is made.-Overseers of Walker Tp. v.
Directors of the Poor and House of Employ-
ment of Perry County, (Pa. Sup.) 27 A. 17.

6. Under Rev. St. c. 70, § 12, requiring
appeals from the insolvency court to be taken
to the supreme judicial court next to be held
in the county, an appeal taken by consent of
parties to the court then sitting is premature,
and confers no jurisdiction, and, on objection
by one of the parties, will be dismissed.-Mil-
liken v. Morey, 27 A. 188, 85 Me. 340.
Bond.

7. Rev. St. c. 63, § 24, requiring bonds on
appeals from the probate court, except in con-
troversies between a person under guardian-
ship and his guardian, on appeal by the ward,
applies to an appeal by a minor from an order
appointing a guardian for him.-Appeal of
Witham, 27 A. 252, 85 Me. 360.

III. PRACTICE.

Assignment of errors.

8. On failure of appellant to furnish a copy
of his assignment of errors, the appellate court
may accept, as such, the errors assigned in the
record, where they are the same as the copy
in the record of appellant's exceptions to the
conclusions of law of the trial judge.-Spalding
v. Ferguson, (Pa. Sup.) 27 A. 945.
Briefs.

9. One appealing from an order denying a
motion to strike out a judgment need not take
a bill of exceptions; and, if the motion rests
on questions of fact, a transcript of the record,
which contains a statement of the evidence ad-
mitted by counsel to have been given at the
hearing of the motion, and approved by the
court, is sufficient. Coulbourn v. Fleming,
(Md.) 27 A. 1041.
Record.

---

10. Where the clerk's affidavit to the tran-
script certifies that the delay in its transmis-
sion was caused by his own inadvertence and
omission, the court will not dismiss the ap-

peal on the ground of such delay.-Bixler v.
Sellman, (Md.) 27 A. 137.

11. Where plaintiff in error submits the
case to the law court on anything less than a
full transcript of the extended, unabbreviated
record, the writ will be dismissed.-Atkinson
v. People's Nat. Bank, 27 A. 255, S5 Me. 368.

12. An assignment of errors relating to the
admission of testimony will not be considered
on appeal, where there is nothing in the paper
books to show for what purpose it was offered,
nor why it was objected to, nor on what ground
admitted.-Norbeck v. Davis, (Pa. Sup.) 27 A.
Appeals from inferior courts.

712.

14. When, in a cause tried before a court
without jury, a motion to nonsuit for failure
of proof is made and refused, error assigned on
such refusal will draw into review only the
question whether, on the whole case, there was
evidence sufficient to support the finding for
plaintiff.-Monmouth Park Ass'n v. Warren,
(N. J. Err. & App.) 27 A. 932.
Necessity of exceptions.

15. Under Act April 18, 1874, providing that
for want of a sufficient affidavit of defense, and
in all actions plaintiff may ask for judgment
may except to the decision of the court denying
his right thereto, and take a writ of error to
the supreme court, the latter court cannot con-
action in discharging a rule for judgment for
sider an assignment of error to the trial court's
want of a sufficient affidavit of defense, unless
the record shows that an exception was taken
thereto.-Commonwealth v. Fleming, (Pa. Sup.)
27 A. 783.

Remarks of counsel.

16. The remarks of counsel to the jury are
not reviewable on appeal.-McCloskey v. Bell's
Gap R. Co., (Pa. Sup.) 27 A. 246.
Discretion of trial court.

17. The refusal of the trial court, in the
exercise of its discretion, to grant a new trial,
have an opportunity to present his case, owing
asked for on the ground that plaintiff did not
to an unexpected ruling of the trial court, will
not be disturbed on appeal.-Johnson v. Wat-
son, (Pa. Sup.) 27 A. 772.
Presumptions.

18. Where the denial of a motion to recom-
mit the report of a referee for further findings
may have been based on the ground that the
request for special findings was not seasonably
made, or on some other ground of fact, the
order denying such motion will not be dis-
turbed.-Knight v. Whitcher, (N. H.) 27 A.
140.

19. The court, on appeal, could not, where
the whole evidence was not brought up in an
action for personal injuries, determine that
there was no relevant evidence on the point of
contributory negligence to justify the refusal
ant.-Ryan v. Town of Bristol, 27 A. 309, 63
of the trial court to direct a verdict for defend-
Conn. 26.

Weight and sufficiency of evidence.

20. In an action against a town for injuries
resulting from a defective highway, the ques-
tion whether defendant exercised reasonable
supervision over its highways is for the trial
court alone.-O'Neil v. Town of East Windsor,
27 A. 237, 63 Conn. 150.
Harmless error.

21. Defendant demurred to a replication on
the ground that it was a departure from
the declaration, but the court struck out the