and the particular building or place in such to the county commissioners, between Barttown, in which such spirituous and intoxicat-ley and some of the manufacturers that Barting liquors are to be sold, and shall not au- ley would not sell to employés of said manuthorize any sale in any other place or build- | facturers during certain hours. The finding ing. * * The county commissioners may states that the court regarded this arrangeindorse upon said license permission to the ment "as an admission against the suitability person so licensed to remove from one build- of the place rather than as making the place ing to another in said town, but the applicant suitable." Counsel for Bartley contends that for said permission shall specify the building because the finding states that more than to which he wishes to remove, and the com- one saloon in the locality of Nos. 59 and 60 missioners shall not permit such removal or would be too many, it follows that the trial transfer except upon due notice and hearing court must have held, and held erroneously, as now provided by law for original applica- that the granting of the removal permit was tions, and the law concerning appeals from the granting of another license, which should county commissioners shall apply to such have been refused under the provision of cases." section 2645; that an application for a liThe superior court found these facts: For cense may be denied when it appears that some years prior to January 27, 1908, said there already exists a sufficient number of Bartley had conducted a licensed saloon busi- licensed places in the vicinity. An applicaness at No. 60 River street, occupying the tion for a removal permit under section 2669 premises under lease from month to month. of the General Statutes might, in applying In October, 1907, one Cono Stavolo, with the the provisions of section 2645, be treated as knowledge of Bartley, purchased the premises in effect an original application for a license, from the latter's lessor by deed recorded No- when the result of granting it would be to unvember 7, 1907, and Bartley, although he had duly increase the number of saloons in a in September applied for the license for the particular locality. It was clearly not so reensuing year, which was granted November garded by the trial court in this case. The 1st, as aforesaid, and had on or before No- trial court confirmed the refusal of a license vember 1st represented to one of the com- to Stavolo for No. 60. As there appear to missioners that he expected to continue to have been no other licensed places in that occupy No. 60, had before November 1st pur- neighborhood, the transfer of Bartley's lichased the premises No. 59 River street, in-cense from No. 60 to No. 59 would have left tending to occupy them as a saloon as soon but one saloon in that vicinity. as the building thereon could be completed, The applicant Bartley next argues that, and had promised to vacate the premises No. from the finding that this part of the town 60 on or before November 1st. Bartley did is "practically a manufacturing and residennot vacate the premises No. 60 until about tial section" (and he concedes that the words the 27th of January, 1908, when his removal "practically" in the finding and "purely" in permit, for which he applied in December, the statute should be given the same mean1907, had been granted and after proceed- ing), it is apparent that the trial court erings in summary process had been brought roneously regarded the application for a re against him by said Stavolo, when he remov-moval permit "as an original application for ed to No. 59. On October 19, 1907, said Cono a new license," and not for a renewal of Stavolo applied for a license for No. 60 River a license within the exception of section street (having already agreed with the owner for the purchase of said premises, although he had not then received a deed of them), which application was refused by the county commissioners on the 8th of February, 1908: Stavolo having received no notice of a remonstrance filed against the granting of said application. Bartley is a suitable person to receive a license. "No. 59 River street is an entirely unsuitable place at which to grant a license for the sale of intoxicating liquors." No. 60 is less unsuitable than No. 59, and more than one saloon in this locality would be too many. The part of the city in which numbers 59 and 60 River street are situated is "practically a manufacturing and residential section," and that side of River street upon which No. 59 is situated is the main thoroughfare from a large residential district to the principal business street in the city, and is one over which a large number of school children pass. By consent of counsel the trial court viewed the locality. There 2647 as amended by chapter 200, p. 750, Pub. Counsel for Bartley further claim that the there was an arrangement that Bartley, and the foreclosure of the mortgage was the would not sell to employés in the neighbor- only relief demanded in the original coming factories during certain hours as evidence plaint. The amount of the matter in demand of unsuitability of place. Apparently the ex- was therefore $80, the amount of the debt istence of such an arrangement was proved secured by the mortgage. Gen. St. 1902, § for showing that the place was suitable. We 541. The defendant moved to erase the case discover no error of law in the view taken from the docket, and afterwards demurred to by the trial court that it rather indicated the complaint, the ground of both the motion the contrary. Section 2669 of the General and demurrer being that the city court of Statutes of 1902 expressly permits an appeal | Waterbury has no jurisdiction to grant equifrom the decision of the county commission- table relief. The denial of the motion to ers upon an application for a removal permit, erase and the overruling of the demurrer are and the questions 'presented by such an ap- the errors assigned in the appeal. peal are: Have the county commissioners acted legally? Have they exceeded or abused their powers? Moynihan's Appeal, 75 Conn. 35S, 361, 53 Atl. 903. The trial court committed no error of law in deciding these questions as above stated. There is no error. curred. (81 Conn. 400) * By section 533, Gen. St. 1902, justices of the peace are given jurisdiction of "all civil actions for legal relief, wherein the matter in demand does not exceed one hundred dollars. Section 534 provides that "all civil actions for equitable relief only, wherein The other Judges con- the matter in demand does not exceed five hundred dollars, * shall be brought to the court of common pleas, except in counties where there is no such court." There is such a court in the county in which this action was brought. LUDDINGTON v. MERRILL. (Supreme Court of Errors of Connecticut. Dec. 18, 1908.) 1. COURTS (§ 188*)-CITY COURTS-JURISDIC TION. Section 562 provides that "all borough, city, police and town courts and the officers thereof shall have all the powers and jurisSp. Act 1895 (12 Sp. Laws, p. 65) § 22, diction which shall have been conferred upgiving the city court of Waterbury jurisdiction on them." Jurisdiction of civil actions was of "all civil actions" involving not more than conferred by the Legislature upon the city $100, and authorizing appeals from its judg-court of Waterbury by the following lanments and decrees, confers jurisdiction of actions in which equitable or legal relief, or both, is demanded, and hence the court has jurisdiction of an action to foreclose a chattel mortgage securing an $80 note. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 412; Dec. Dig. § 188.*] 2. ACTION (§ 25*)-"CIVIL ACTIONS." The term "civil actions" as used in the practice act includes actions for equitable or legal relief, or both, [Ed. Note.-For other cases, see Action, Cent. Dig. § 156-159; Dig. Dec. § 25.* For other definitions, see Words and Phrases, vol. 2, pp. 1183-1193; vol. 8, p. 7603.] 3. COURTS (§ 20*)-JURISDICTION. Under the express terms of Practice Act, §7 (Laws 1879, p. 433, c. 83; Gen. St. 1902, 613), all courts to which civil actions as defined by the act may properly be made returnable, excepting justice courts, may, in the absence of express law to the contrary, apply both legal and equitable remedies in determining such actions. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 20.*] Appeal from City Court of Waterbury; Frederick M. Peasley, Judge. guage of section 22, Sp. Act 1895 (Sp. Laws, vol. 12, p. 65): "The city court shall have jurisdiction of all civil actions wherein the matter in demand does not exceed one hun dred dollars, provided the parties or either of them reside within the limits of the town of Waterbury, and shall have power to hear and try the same with or without a jury as may be proper and proceed therein to final judgment and execution according to law. * * But from all final judgments or decrees rendered or passed by said court except the party feeling aggrieved Νο more * * thereby may appeal. apt words than "civil actions wherein the matter in demand does not exceed one hundred dollars" could have been used to describe actions in which equitable relief only, or legal relief only, or both equitable and legal relief, to the amount named, is de manded in the complaint. That jurisdiction of actions demanding equitable relief, as well as of those demanding legal, were intended to be conferred by this section is also indicated by the use of the word "all" with the words "civil actions," and by the provision for an appeal both from all judgments rendered and all decrees passed. As used in the practice act the term "civil actions" is clearly intended to include actions demandHALL, J. This is an action to foreclose a ing equitable or legal relief, or both. To do mortgage on a piano, given to secure the pay- away with the old names and forms of the ment of the defendant's note for $80. It different actions at law and in equity and was brought to the city court of Waterbury, enable a plaintiff to always demand and ob Action by Frank J. Luddington against Mrs. Jay E. Merrill. From a judgment for plaintiff, defendant appeals. Affirmed. Edward B. Reiley, for appellant. H. Pierce, for appellee. Wilson tain, in one proceeding called a "civil action," both such equitable and legal relief as the facts alleged in his complaint entitled him to receive were some of the principal purposes and results of the adoption of our practice act. Section 7, Practice Act (Laws 1879, p. 433, c. 83; section 613, Gen. St. 1902), provides that "In every civil action, not brought before a justice of the peace, the plaintiff may include in his complaint both legal and equitable rights, and causes of action, and demand both legal and equitable remedies." It follows that all our courts to which civil actions, as defined by the practice act, may properly be made returnable, excepting justice courts, may, in the absence of express law to the contrary, apply both legal and equitable remedies in the determination of such actions. Under Gen. St. 1902, §§ 2997, 2998, authorizing the imposition of a military tax on every person liable to military duty, etc., one apparently well and strong is not exempt from a military tax because of his poverty. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 204; Dec. Dig. § 106.*] 5. TAXATION (§ 468*)—ASSESSMENt—ReducTION OF AMOUNT OF TAXES-VALIDITY. Where one was liable to an annual military tax of $2 imposed by Gen. St. 1902, §§ 2997, 2998, a resolution of a town meeting reducing the amount of the tax was ineffectual. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 837; Dec. Dig. 8 468.*] 6. TAXATION (§ 602*)-COLLECTION-PROCEEDINGS. The city court properly denied the motion to erase, and overruled the demurrer. There is no error. The other Judges con- amended by Pub. Acts 1907, p. 619, c. 50, aucurred. (81 Conn. 367) ATWATER, Tax Collector, v. O'REILLY. (Supreme Court of Errors of Connecticut. Dec. 18, 1908.) 1. TAXATION (8 572*)-TAXES-COLLECTIONPROCEEDINGS. A tax collector of a town who institutes a proceeding under Gen. St. 1902, § 2395, as thorizing the collection of military taxes by imprisonment for an order for the commitment of defendant for nonpayment of a military commutation tax, and shows that he was the tax collector, that the rate bills and warrant for the collection of the taxes were delivered to him, that payment of the tax had been demanded of defendant and refused, establishes the facts essential to the relief demanded, and, on defendant failing to show sufficient reason why the tax had not been paid, an order of commitment was proper. A proceeding under Gen. St. 1902, § 2395, as amended by Pub. Acts 1907, p. 619, c. 50, [Ed. Note. For other cases, see Taxation, authorizing the commitment of persons failing Cent. Dig. §§ 1222, 1223; Dec. Dig. § 602.*] to pay military taxes, etc., is a special statutory PERproceeding, and is not an action governed by 7. EVIDENCE (§ 83*) - PRESUMPTIONS ordinary rules of pleading in civil or criminal FORMANCE OF OFFICIAL DUTY. cases, and its purpose is not to enable the tax Public officers acting officially are presumcollector to obtain a judgment for the amounted to have done their duty until the contrary of the taxes, nor to require him to establish before a court the validity of the same. [Ed. Note.-For other cases, see Taxation, Cent. Dig. § 1132; Dec. Dig. § 572.*] 2. TAXATION (§ 573*)—MILITARY TAXES-COL LECTION-STATUTES. Gen. St. 1902, § 2395, as amended by Pub. Acts 1907, p. 619, c. 50, authorizing the collection of military taxes by imprisonment, does not expressly or impliedly repeal the general provisions for the collection of military taxes in sections 2381, 2394, 2412, and 2998, providing for the collection of taxes by levy on taxable goods and chattels, etc., and a tax collector may proceed under the latter sections afterwards and for want of goods or cha.tes of a delinquent taxpayer on which to levy, and on further legal demand, the collector may levy on the taxpayer's body, and, without granting him a hearing, commit him to jail until the tax is paid. [Ed. Note.-For other cases, see Taxation, Cent. Dig. 1143; Dec. Dig. § 573.*] 3. TAXATION (8 602*)-COLLECTION-ACTIONS -COMPLAINT SUFFICIENCY. A complaint under Gen. St. 1902, § 2395, as amended by Pub. Acts 1907, p. 619, c. 50, authorizing the collection of military taxes by imprisonment, which describes complainant as the tax collector of a town, duly appointed and qualified, and that defendant has failed to pay the military commutation taxes assessed against him for the annual town taxes of designated years, which taxes became due on designated dates, that payment thereof was legally demanded, and that defendant failed to pay the same, is sufficient to give the court jurisdiction to appears. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 105; Dec. Dig. § 83.*] Appeal from City Court of Meriden; Frank S. Fay, Judge. Complaint by Francis Atwater, tax collector, against Fred O'Reilly, for an order of commitment of defendant for nonpayment of a military commutation tax. From an order of commitment entered after a hearing after overruling a demurrer to the complaint, defendant appeals. Affirmed. Oswin H. D. Fowler, for appellant. George A. Clark and Patrick T. O'Brien, for appellee. HALL, J. Section 2395 of the General Statutes of 1902, as amended by chapter 50, p. 619, Pub. Acts 1907, provides that "when any person shall neglect or refuse to pay any poll or military tax assessed against him, after payment of the same has been legally demanded, the collector of the town to which said tax is due, and who is authorized to collect said tax, may at any time within three years after said tax shall become due, prefer his complaint to any justice of the peace residing in said town, or to any city, town or borough court established within said town, alleging the nonpayment of said tax, and such justice of the peace or court shall there one of the reasons of appeal. This is not an action to which the ordinary rules of pleading in either civil or criminal cases must be applied. It is a special statutory proceeding. The purpose of it is of goods or chattels of the delinquent taxpayer upon which to levy, and after legal demand upon him could have levied upon his body, and without granting him any opportunity for a hearing have committed him to jail until the tax was paid. The distinctive features of section 2395, as amended in 1907, are found in the provisions that any person committed to jail "under the provisions of this section" may be required to work out his military tax at the rate of $1 a day for his labor, and to pay his own board during his commitment, and that the county commissioners are required to pay the tax to the town. Before the delinquent taxpayer can be committed under this section, he must be given an opportunity to show some "proper or sufficient reason why the tax has not been paid." The averments of the complaint, as above set forth, were a sufficient compliance with the provisions of this section to give the court jurisdiction to make the order. collector. By way of answer, the delinquent taxpayer alleged that he was too poor to pay the tax, and that the town, to avoid litigation regarding the validity of military taxes, had voted to accept $1 from every person owing a military tax in full settlement of the same, and that he had tendered that sum to the tax insufficient reasons for failure to pay said These were properly held to be taxes. The poverty of O'Reilly, who was found to be a young man apparently well and tax. Gen. St. 1902, §§ 2997, 2998. The resolustrong, did not exempt him from a military tion of the town meeting was ineffectual to reduce the amount of a tax duly laid. State ex rel. Coe v. Fyler, 48 Conn. 145-158. In the city court these facts were proved: The complainant was elected tax collector of the town of Meriden in October, 1907, succeeding one Holt, who had held the office during the preceding 15 years. The compensation of both said collectors was fixed by ceived from Holt the rate bills signed by the salary. The plaintiff filed his bond, and reselectmen for the uncollected back taxes, innot to enable the tax collector to obtain a Icluding the two against the defendant dejudgment for the amount of the taxes, nor to require him to establish before a court the scribed in the complaint. In the books convalidity of the tax, his authority to collect taining these rate bills were warrants issued it, and that it has been legally demanded be- and directed to said collector Holt in 1905 and 1907, respectively. In March, 1908, the fore he can procure a delinquent taxpayer to be committed to jail. The court or justice to selectmen of Meriden procured a warrant to which such a complaint as this is preferred be issued to the complainant for the collec renders no judgment of indebtedness. Sec- tion of the taxes laid in the previous Oction 2395, enacted in 1901 and amended in tober and of the uncollected taxes of certain 1905, and again in 1907, does not either ex- previous years, including said military taxes pressly or by implication repeal the general due from O'Reilly. In January, 1908, O'Reilprovisions regarding the collection of mili- ly received a bill from the complainant notitary commutation taxes contained in sec-fying him that military taxes to the amount tions 2381, 2394, 2412, and 2998. The col- of $4 were due to the collector. On the 14th lector Atwater could therefore, if he had of March, 1908, the complainant personalseen fit, have proceeded under the warrant ly demanded payment of said taxes issued to him in March, 1908, under sections O'Reilly; but he failed to pay them. of At INGS. is limited by the facts alleged in the complaint. Under the practice act, the right to recover [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 434, 439, 440; Dec. Dig. § 248.*] 5. TRIAL (§ 251*)-ISSUES-INSTRUCTIONS-AP PLICABILITY. The instructions of the court must be corthe guidance of the jury. rect, adapted to the issue, and sufficient for [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*] 6. TROVER AND CONVERSION (§ 35*)-ISSUESBURDEN OF PROOF. ous claims of law, by objections to evidence | 4. JUDGMENT (§ 248*)-CONFORMITY TO PLEADand otherwise, among which were these: That it did not appear that O'Reilly's name, although entered upon said rate bills, was ever placed upon the enrollment list, as required by sections 2995 and 2998; and that the complainant was required to prove, and that by the writing itself, that notice of the time and place at which the collector would receive payment of taxes had been published and posted as required by section 2391 of the General Statutes. These claims are apparently based upon a misunderstanding of the real purpose of this proceeding and of the evidence necessary to be offered by the complainant to enable him to obtain an order of commitment. He was not compelled to present proof that the various town officers in assessing these taxes against O'Reilly had taken each particular step required by statute. Public officers acting officially are presumed to have done their duty until the contrary appears. State v. Main, 69 Conn. 123-7. 140, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30; Hart v. Tiernan, 59 Conn. 521-526, 21 Atl. 1007. Having proved that he was the tax collector of the town, that the rate bills and warrant for the collection of these taxes had been delivered to him, that payment had been demanded and refused, the complainant had established all the facts which the statute required him to prove, and, the delinquent taxpayer having shown no proper or sufficient reason why the taxes had not been paid, the order of commitment was properly made. There is no error. The other Judges concurred. (81 Conn. 403) BERMAN v. KLING. general denial, plaintiff had the burden of prov- [Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. § 216; Dec. Dig. § 35.*] TROVER AND CONVERSION (§ 7*)-ACTS CON- An employer who allows the tools of an employé to remain on his premises after the employé has quit work, and who refuses to carry the tools to plaintiff's house or such place as plaintiff designates, and who opens the chest containing the tools for the sole purpose of repossessing himself of tools belonging to himself, they are lost or misappropriated by some one is not guilty of converting the tools, though on the employer's premises, and the employer is not liable unless it is proved that he, either by himself or by some one under his direction, misappropriated the tools. [Ed. Note. For other cases, see Trover and Conversion, Dec. Dig. § 7.*] 8. TRIAL (§ 214*)-EVIDENCE-INSTRUCTIONS. Where evidence is offered by either party to prove a certain state of facts, and the claim is made that they are proved, and the court is correctly requested to charge the jury what the law is as applicable to the case, the court must comply. [Ed. Note.-For other cases, see Trial, Cent. Dig. 480; Dec. Dig. § 214.*] (Supreme Court of Errors of Connecticut. Dec. 9. TRIAL (§ 260*)-REFUSAL TO GIVE INSTRUC 18, 1908.) 1. TRIAL (§ 251*)-PLEADINGS-INSTRUCTIONS -APPLICABILITY. Where the complaint alleged a conversion of plaintiff's tools by defendant, and the conversion was the controlling issue presented, an instruction which assumed that plaintiff's cause of action was based on the neglect of defendant in breaking and leaving open plaintiff's tool chest was erroneous because not presented by the pleadings. [Ed. Note. For other cases, see Trial, Cent. Dig. 587-595; Dec. Dig. § 251.*] 2. JUDGMENT (§ 251*)-CONFORMITY TO PLEAD INGS. A judgment based on facts found by the trial court, but not involved in the issue raised by the pleadings, is erroneous. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 437; Dec. Dig. § 251.*] 3. JUDGMENT (§ 250*)-CONFORMITY TO PLEAD TIONS COVERED BY THOSE GIVEN. It is not error to refuse requested instructions sufficiently covered by the instructions given. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] Appeal from City Court of New Haven; Albert McC. Mathewson, Judge. Action by William Berman against Lawrence Kling to recover the value of tinner's tools which plaintiff alleged were converted to the use of defendant. There was a judgment for plaintiff, and defendant appeals, alleging errors in refusing to set aside the verdict as being against the evidence, in refusing to direct for defendant, and for errors in the charge of the court. Reversed, and new trial ordered. Charles S. Hamilton, for appellant. Carl A. Mears, for appellee. RORABACK, J. The complaint, in substance, alleges: That on or about January |