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CASES NOT REPORTED IN FULL.

Hart's Appeal from Probate.

575

EMILY C. HART'S APPEAL FROM PROBATE.

First Judicial District.

[Argued January 3d-decided February 8th, 1894.J

APPEAL by Emily C. Hart from a judgment of the Superior Court of Middlesex County, rendered on a verdict sustaining the will of Erastus Brainerd of Portland in said county, deceased. Upon the trial a certain account of the testator against the appellant amounting to $41,000, was introduced in evidence, and it was conceded that this account and the several items or sums which made it up, constituted a gift from the testator to the appellant. The appellant so testified, and no evidence to the contrary was offered.

After the jury had retired to consider the case, they returned and submitted to the court the following written. question: "Are the jurors allowed to consider whether the account against Mrs. Hart (the appellant) is a part of Mr. Brainerd's assets?" The court (Robinson, J.), replied: "All I can say to you with reference to this inquiry is this: You have a right to consider the amount of the estate,-the whole estate of Mr. Brainerd for the purpose,-in connection with other facts, of determining the question of undue influence, and you have the right to consider this account with reference to the question of undue influence and unsoundness of mind; but whether it is an asset, or a part of the assets of Mr. Brainerd's estate, I don't think you have anything to do with that. I will not instruct you that you have anything more to do with it than what I have suggested."

Charles E. Perkins and Washington F. Willcox, for the appellant.

Levi Warner and William T. Elmer, for the appellees.

BY THE COURT: The question whether or not the account was an asset of the estate of Mr. Brainerd, was not a fact in issue under the pleadings; and the finding of the jury either way would not conclude any one.

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63 576 71 460

Cothren v. Atwood.

It was, however, a relevant fact because it might possibly have a bearing on the questions that were in issue, and especially on the claim of undue influence. In this aspect of the case it was the duty of the jury to consider it, and the judge so instructed the jury. The instruction was adapted to the issues raised by the pleadings, and was sufficient for the guidance of the jury in the case before them.

There is no error. All concur. Opinion by Andrews, C. J., filed with the clerk of the Superior Court, Middlesex County.

WILLIAM COTHREN vs. RODERICK ATWOOD.

Third Judicial District.

[Submitted January 25th-decided February 8th, 1894.]

APPEAL by the plaintiff in an action of book debt, from a decision of the Superior Court (Ralph Wheeler, J.), in New Haven County, sustaining the remonstrance of the defendant and rejecting the report of committee in favor of the plaintiff.

Edward F. Cole, for the appellant (plaintiff.)

Henry C. Baldwin and John O'Neill, for the appellee (defendant.)

BY THE COURT: Under § 1129 of the General Statutes, a party can appeal only from the "judgment of the court in. such cause or action." Such appeal may undoubtedly present for review questions of law arising in the trial; but until there is a judgment rendered there can be no right of appeal. In the case before us the action of the Superior Court in sustaining the defendant's remonstrance and declining to accept the committee's report, was not a "judgment" within the meaning of the statute; hence the appeal must be erased from the docket. All concur. Appeal erased

from the docket.

RULES OF PRACTICE.

SUPREME COURT OF ERRORS.

THIRD JUDICIAL DISTRICT, June Term, 1893.

It is ordered by the court that rule XXII of the Rules of Practice (58 Conn., 588), be amended so that section 1 of said Rule will read as follows:

Section 1. The clerk of the Supreme Court of Errors, at each term thereof, shall furnish for each judge a printed copy of every case that is to be heard at said term; and such copy shall contain any opinion or memorandum of decision which may have been filed in said case by the judge of the trial court.

Rule XXII, § 3 (58 Conn., 589), is hereby amended by adding the following:

The clerk shall annex to the printed copy of the record in each case a table of contents giving the title or nature of each separate paper, in its order as printed, and the page on which it is to be found.

Amendment to Rule XXII (58 Conn., 589.)

Add the following as § 6:

The regular hours for the sessions of the Supreme Court of Errors will be from 10 A. M. to 1 P. M., and from 2 P. M. to 4 P. M.; but no new case will be taken up on Fridays after 1 P. M., except by special order of the court, and with the consent of counsel on both sides of the case.

Amend Rule XVII, § 3 (58 Conn., 584), as follows:

Add the words "in duplicate" after the word "filed" in the 6th line of said section, and after the word "counterfinding" in the 9th line, insert the words "which counterfinding shall be filed in duplicate."

The following rule was adopted February 12th, 1894, to go into effect on the first Monday in April, 1894:

VOL. LXIII.37

(577)

To the prevailing party, upon all motions required to be in writing which are determined by the court, shall, unless the court remits the same in whole or in part, be taxed the sum of ten dollars, which shall be paid by the opposing party before he shall be entitled to plead further.

Certified by,

CHARLES B. ANDREWS,
Chief Justice.

SUPPLEMENT.

BURTON MANSFIELD, INSURANCE COMMISSIONER, vs. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY.

The Superior Court while holding a stated term must be deemed "in session" during the interval between an adjournment from the afternoon of one day to the morning of the day following, within the meaning of § 2869 of the General Statutes providing that a petition by the insurance commissioner for the appointment of a receiver of an insurance company shall be brought to the Superior Court, "if in session, and if not, to a judge of the Supreme Court of Errors."

PETITION by the insurance commissioner, under § 2869 of the General Statutes, for the appointment of a receiver and the annulment of the charter of the defendant company; brought to a judge of the Supreme Court of Errors and heard upon a plea to the jurisdiction.

The case is fully stated in the opinion.

Charles E. Perkins and George G. Sill, for the defendant.

John R. Buck and Henry Stoddard for the Insurance Commissioner.

BALDWIN, J. This proceeding was brought before me as a judge of the Supreme Court of Errors, under General Statutes, § 2869, which requires the insurance commissioner, if such a state of facts exists as is alleged in the complaint, to bring such an action to the Superior Court of the county in which the defendant company is located, if in session, and if not, to a judge of the Supreme Court of Errors.

The defendant has filed a plea to the jurisdiction, upon which it has been found that the complaint was brought before me at New Haven, in the evening of June 8, 1893, and that the regular March session of the Superior Court for Hartford County, in which county the defendant is located, had not then been terminated, the court having been ad

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