plaintiff was upon defendant's premises by vir- tion and agreement more than a year betue of an express license, and was not a tres- fore the injury complained of, and, in the

passer.

[Ed. Note. For other cases, see Animals, Cent. Dig. §§ 225, 226.]

3. PLEADING 412-GENERAL DENIAL-SPE

CIAL DEFENSES.

Section 160 of the rules under the practice act provides that no facts can be proved under general or special denial except to show that plaintiff's statement of facts are untrue, and that consistent facts which, however, show he has no cause of action must be specially alleged. In an action for injuries from an attack by a vicious dog, defendant claimed on appeal that plaintiff's denial of its defense of trespass did not lay any foundation for proof of liHeld that, if section 160 applies, it is a rule for the benefit of the party whose pleading is denied, and may be insisted upon by such party, whether actually surprised or not, but he may waive the statute at the trial by failing to object to evidence offered.

cense.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1387-1394.]

absence of any finding to the contrary, it must be assumed that the defendant either authorized or ratified the daughter's act, without which he could not have obtained a supply of gas.

that it shall at all reasonable times, by its One of the gas company's rules provides authorized agents, have the right of access into premises to which gas is supplied, for the purpose of examining its gas piping and We think it is clear that apparatus, etc.

the plaintiff was at the time of the injury acting as the agent of the gas company authorized to examine gas apparatus on the defendant's premises. It is true that the authority afterwards appeared to have been given to him as the result of a mistake; but the mistake was made by the company in directing the plaintiff to the wrong place,

Appeal from City Court of New Haven; and not by the plaintiff in going to a place John R. Booth, Judge.

Action by Edwin M. Bradley against Vincent Sobolewsky. Judgment for defendant, and plaintiff appeals. Reversed, and new trial ordered.

to which he was not authorized to go. In going to the defendant's premises, he went precisely where the gas company told him to go and for a purpose for which the defendant had agreed that the authorized agent of the company might come.

The plaintiff, who was in the employ of the New Haven Gaslight Company, was in[2] The defendant's application, under thestructed by it to call at the defendant's rules of the gas company, gave the comhouse to examine a gas range concerning pany's agents a right of access not merely to which it was supposed that a complaint had answer complaints by the defendant, but at been made. He opened the front gate and all reasonable times. In this case the occaentered the premises, following a path which sion for sending the plaintiff to the defendled to the rear door. While on the path he ant's premises was a reasonable one, and sowas attacked and bitten by the defendant's was the hour at which he was sent. It must dog, without provocation on the plaintiff's be assumed that the gas company's instrucpart. It afterwards appeared that the gas tions to the plaintiff were given in good company had made a mistake in sending the faith, and that its agent, who was charged plaintiff to the defendant's house, and that with the business of acting on complaints of the complaint in response to which he was customers, believed that the defendant's gas sent there came from another customer. range was out of order. Under these circumSection 5 of chapter 121 of the Public Acts stances the gas company would have failed of 1911 provides, in substance, that the own- to perform its duty if it had not sent a man er or keeper of a dog shall be liable for any to the defendant's premises within a reainjury done by it to person or property, ex-sonable time. We conclude that the plain-cept where the injured person is at the time tiff was upon the defendant's premises by of the injury committing a trespass or other virtue of an express license. tort; and the only question on this appeal is whether the plaintiff was committing a trespass when he was bitten by the defendant's dog.

Eliot Watrous, of New Haven, for appellant. George W. R. Hughes, of New Haven, for appellee.

[3] The defendant claims that plaintiff's denial of its defense of trespass did not lay any foundation for proof of license. On the other hand, the record does not show that the defendant objected to the proof of license; and if section 160 of the rules under the practice act applies to this case, as to which we express no opinion, it BEACH, J. (after stating the facts as is evidently a rule for the benefit of the above). [1] The regulations of the New party whose pleading is denied, for the purHaven Gaslight Company required that the pose of protecting him against possible surdefendant, as a condition precedent to ob- prise at the trial. Whether actually surtaining a supply of gas, should sign a writ-prised or not, he may insist on the rule at ten application containing an agreement to the trial or waive it, and in this case it wasbe bound by the rules and regulations of not insisted on so far as the record shows. the company. The defendant's name was There is error, and a new trial is ordered. signed by his daughter to such an applica- The other Judges concurred.

MEMORANDUM DECISIONS.

BLONDIN v. CONNECTICUT CO. (two cases). (Supreme Court of Errors of Connecticut. Jan. 25, 1917.) Appeal from Superior Court, New Haven County; William L. Bennett, Judge. Actions by Joseph Blondin and by Archie Blondin against the Connecticut Company. Judgments for defendant on directed verdicts, and plaintiff in each case appeals. Error, and new trial ordered in each case. William E. Thoms and Philip N. Bernstein, both of Waterbury, for appellants. Joseph F. Berry, of New Haven, for appellee.

PER CURIAM. Both of the above-entitled actions were tried upon the same evidence, and a verdict in each case was directed for the defendant. We think that the record shows that there was evidence upon which the cases should have been submitted to the jury. There is error,

and a new trial is ordered in each case.

FULLER v. WEBSTER. (Supreme Court of Delaware. Oct. 27, 1916.) Error to Superior Court, New Castle County. Action by Alvan T. Fuller against William J. Webster to recover the possession or value of a certain motor car, to which the plaintiff claimed he was entitled under a contract of conditional sale. Judgment for defendant (5 Boyce, 539, 95 Atl. 335), and plaintiff brings error. Affirmed by divided court. Argued before CURTIS, Ch., PENNEWILL, C. J., and RICE and HEISEL, JJ. Andrew C. Gray, of Wilmington, for plaintiff William S. Hilles, of Wilmington, for

in error.

defendant in error.

PER CURIAM. And now, to wit, this 27th day of October, A. D. 1916, the above cause having been duly heard in this court by Chancellor CHARLES M. CURTIS, Chief Justice JAMES PENNEWILL, and Associate Judges HERBERT L. RICE and THOMAS BAYARD HEISEL, and there being an equal division of opinion among the Judges who heard the cause respecting the matters assigned in this court as error in the court below. It is adjudged and ordered that the judgment of the Superior Court of the state of Delaware, in and for New Castle county in said cause for William J. Webster, the defendant below and defendant in error, be and it is hereby affirmed, and that the costs of said cause in this court, hereby taxed at the sum of $16.73 be paid by Alvan T. Fuller, the plaintiff below, plaintiff in error; and further that a duly certified copy of this order be transmitted by the clerk of this court to said Superior Court. (Signed by all the Judges sitting.)

carefully in the light of the authorities and arguments of counsel, and find no reason for sustaining the exceptions. Exceptions overruled. Judgment for the state.

In re WARD.

and

(Supreme Judicial Court of Maine. Jan. 16, 1917.) Report from Supreme Judicial Court, Cumberland County, at Law. William S. Ward appeals from a decree of the judge of probate allowing the last will of Alice J. Ward. Heard on report. Motion overruled. Argued before SAVAGE, C. J., and CORNISH, HALEY, HANSON, PHILBROOK, MADIGAN, JJ. Harry E. Nixon and Jacob H. Berman, both of Portland, for appellant. Richard Webb, of Portland, for appellee. of a will. The case was submitted to a jury PER CURIAM. Appeal from the allowance on the issue of undue influence, and the jury returned a verdict for the proponent. A careful examination of the evidence leads to the conclusion that the jury were warranted in finding as they did. Motion overruled.

BROWN v. BERRY et al. (Supreme Court of Carroll. New Hampshire, Oct. 3, 1916.) Transferred from Superior Court, Carroll County; Chamberlin, Judge. Petition by Dana J. Brown, guardian, against Oliver P. Berry and another. Transferred from the superior court. Defendant's exception overruled. Petition by the owner of the gristmill to modify the receiver's instructions. Hearing by the court. It was ordered that the receiver "deliver under the orders heretofore made 38 cubic feet of water per second for 10 hours of each working day to the gristmill wheels." The orders in force provide that, when the water in the reservoir is drawn down to the 4-foot point, the receiver shall cease drawing water until a sufficient quantity accumulates in the reservoir to run all the mills at dam C for an economical period. The defendants excepted to the court's order, on the grounds (1) the plaintiff has no right to develop electric energy to sell; (2) the plaintiff's preferential right is limited to the use of the water for gristmill purposes. Murchie, of Concord, for plaintiff. Leslie P. Snow, of Rochester, and Oscar L. Young, of Laconia, for defendants.

Hollis &

(2)

YOUNG, J. It has already been held that the plaintiff may use this quantity of water at the gristmill "for any purpose he sees fit." Hutchins v. Berry, 75 N. H. 416, 418, 75 Atl. 650. Consequently his right to use it in the way he proposes to do is not an open question. No question in respect to the plaintiff's prefSTATE v. DUANE. (Supreme Judicial Court erential right to the use of the water flowing of Maine. Dec. 23, 1916.) Demurrer and Ex- in the stream is raised by the defendants' exceptions from Supreme Judicial Court, Lincoln ception, for as the orders now stand the reCounty, at Law. James A. Duane was indict- ceiver will stop drawing water from the resered for keeping and maintaining a liquor nuis- voir when it is drawn down to the 4-foot point ance. His general demurrer was overruled, and until sufficient accumulates to run all the mills his exceptions thereto were allowed. Exceptions at dam C for "an economical period." Defendoverruled, and judgment for the State. Argued ants' exception overruled. All concurred. before SAVAGE, Č. J., and CORNISH, BIRD, HALEY, HANSON, PHILBROOK, MADIGAN, JJ. James B. Perkins, Co. Atty., of Boothbay Harbor, for the State. J. H. Montgomery, of Camden, for respondent. PER CURIAM. The respondent was indicted for keeping and maintaining a liquor nuisance. He filed a general demurrer, which was overruled, and to that ruling exceptions were

and

ROBERTSON V. Town of HILLSBOROUGH. (Supreme Court of New Hampshire. Dec. 5, 1916.) Exceptions from Superior Court, Hillsborough County; Branch, Judge. Action by Elizabeth A. Robertson against the Town of Hillsborough, under Laws 1893, c. 59,

highway. The court, subject to exception, in- | peals. Affirmed. Harry T. Davimos, of Newstructed the jury that there was no evidence on ark, for appellant. Abraham Levitan, of Jerwhich they could find that plaintiff's injuries sey City, for respondent. were due to a dangerous embankment within the meaning of the statute. Exceptions overruled. Robert W. Upton, of Concord, for plaintiff. Taggart, Burroughs, Wyman & McLane, of Manchester, for defendant.

the Court of Chancery (97 Atl. 166), dismissing | 91), correctly pointed out that the defendant's the bill, complainant appeals. Affirmed. A. V. Dawes, of Hightstown, for appellant. MeDermott & Enright, of Jersey City, for respond

END OF CASES IN VOL. 99