used by the statutes, and the duties imposed must be substantially the same. That arbitrators are not officers of the court, as are committees, does not change the power or the duty of the court in this respect. The purpose of the acceptance in either case is the same,-to establish the award in the one case, and the report in the other, as the judg. ment of the court. In most of the cases where courts are authorized to accept the report of a committee, or other like board, the power is expressly given to reject it for cause, as in the case of a highway committee. Section 2715. But the power to accept would seem to carry with it the power to refuse to accept. The former implies the latter. In re Clinton Oyster Ground Committee, 52 Conn. 8; Stebbins v. Waterhouse, 58 Conn. 370, 20 Atl. 480. "Where a submission is made by rule of court, it is competent for the party aggrieved by it, when it is returned to court, and before acceptance, to impeach it, not only for apparent defects, but extrinsic causes. In the case of defects apparent on the award, he can only question it before the acceptance; but if he should not object to it for extrinsic causes before acceptance, especially if he had no knowledge of their ex istence, he may, after acceptance, file his bill in equity to be relieved against it, on the same ground as where the submission is not by rule of court." 1 Swift, Dig. top p. 480. The rule so stated has been followed in this state for many years. Parker v. Avery, Kirb. 353; Lewis v. Wildman, 1 Day, 153; Halsey v. Fanning, 2 Root, 101; Belton v. Halsey, 1 Root, 221; Bray v. English, 1 Conn. 498; Fisher v. Towner, 14 Conn. 26.

This rule requires that for defects apparent on the award the parties can obtain relief only before the acceptance, unless they are such as absolutely to deprive the court of jurisdiction; but for extrinsic causes it permitted a party to obtain relief after the acceptance. As, since the practice act, parties are enabled to obtain equitable and legal relief in the same action, there is no reason why a party who seeks to impeach an award for any cause, whether it be apparent on the award or not, should not do so by way of remonstrance to the acceptance. We think this is the better practice, and the one which now ought to be followed. Arbitration is an arrangement for taking and abiding by the judgment of selected persons in some disputed matter, instead of carrying it to the established tribunals of justice; and is intended to avoid the formalities, the delay, the expense, and vexation of ordinary litigation, When the submission is made a rule of court, the arbitrators are not officers of the court, but are the appointees of the parties, as in cases where there is no rule of court. In either case the submission names the disputed matter upon which the arbitrators are to adjudge, and often prescribes the principles according to which they are to proceed, and the rules they are to follow in their de

cision. The submission in the present case does this in an ample manner. It provides that the arbitrators "shall proceed upon the principle of equity, in hearing the matters in dispute and making their award; it being the desire of both parties that the matters in dispute between them shall be equitably settled and adjusted so each may have all that is equitably due to him from the other." Counsel for the appellant, in their brief, speak of this designation of the authority given to the arbitrators as a limitation. We do not so read it. To us it seems rather a liberal and highly creditable grant of power. In hearing the matter committed to them, and in making their award, the arbitrators are commanded to act upon the principles of equity, to the end that each of the parties may have from the other all that he is equitably entitled to. This is not "equity” in any narrow or limited meaning. It is "equity" in its broadest and most generous sense. It means good conscience; fair dealing; justice. It is in the spirit of the precept "to live honestly, to injure no man, and to render to every man his due." It is the golden rule, to do by others as we would that others should do by us. It is in the light of this direction to the arbitrators that we are to inquire whether their award should have been set aside for any of the reasons alleged in the remonstrance.

It is to be observed that in the remonstrance the appellant does not charge any willful or intentional misconduct to the arbitrators; nothing in the nature of fraud, or corruption, or of partiality. He seems rather to have studiously avoided any such charge. He asks the court not to accept the award for the reasons stated, "in respect to which said arbitrators erred and acted improperly in a legal sense." The reasons of remonstrance are not entirely harmonious. In some respects, indeed, they are inconsistent. And they do not admit of any very accurate classification; but, in a general way, they may all be brought into these three classes: First. That the arbitrators did not make, and refused to make, a finding of the facts on which they based their judgment. If within the term "finding of facts" is included a statement of the amounts found due on each of the several claims of the parties, then to this class may be referred the 1st, 2d, 3d, 4th, 5th, 6th, 7th, 10th, and 11th reasons of the remonstrance. Second. That the arbitrators erred in admitting parol testimony to vary a writing. To this class may be referred the 8th, 9th, 12th, 13th, and 15th reasons. Third. That the majority of the arbitrators did not consult with the minority in coming to their conclusion as to some parts of the award. Under this head fal the 16th and 17th reasons. The 14th reason does not come into either of these classes.

There is no rule of law that requires arbitrators to make a finding of facts in the case on which they decide, nor does the submis

It

sion of this case require them to do so. seems to indicate the contrary. It directs the arbitrators to award to either party the amount that shall be found due to him in excess of the amount that shall be found owing from him; not the several sums due to or owing from each on the separate claims. The court certainly ought not to hold that the arbitrators had acted improperly in a legal sense, and refuse to accept their award, if nothing more was charged against them than that they had omitted some detail which neither the law nor the submission had made it their duty to observe. The award must, of course, contain that actual decision of the arbitrators, which is the result of their consideration of the various matters submitted to them. But it need contain nothing else. The means by which they have come to this conclusion, the reasoning or the principles on which they base it are, unless the submission otherwise requires, needless and superfluous. Morse, Arb. 266. The largest claim, measured by the amount of money, that existed between these parties, was the one made by Castle against Curtis for damages, because, as Castle insisted, Curtis had not worked certain new streets, just laid out in Bridgeport, in the manner he had agreed to work them. There was a written contract between them. The controversy turned on the meaning to be given to the expression "to work a street,” as used in that contract. Curtis claimed that it was a business or a trade term, and that the arbitrators should take judicial notice of its meaning; or, if they were not able to do so, that only expert testimony was admissible to inform them of its meaning. Castle, on the other hand, claimed that the expression was not a trade or business term, but was an expression used by them in the contract with a special meaning, perfectly understood by the parties, and agreed upon by them at the time the contract was made, and offered parol testimony of what that special meaning was. To this Curtis objected, but the arbitrators admitted it. We understand that there are cases in which parol testimony is admissible to show the contemporaneous understanding of the parties to a contract of the meaning of the terms used by them in the contract. Thus in Thorington v. Smith, 8 Wall. 1, it was held competent to show that the parties to a written contract by the word "dollars" intended Confederate dollars, and not lawful dollars of the United States. This decision was applied and extended in the Confederate Note Case, 19 Wall. 548. In Needle Co. v. Smith, 61 Conn. 56-64, 23 Atl. 693, it is clearly implied that, if the term "needle business" had been used in a special sense by the parties in their contract, such sense might have been shown by parol. In Macdonald v. Longbottom, 1 El. & El. 978, the defendant by a written contract had purchased of the plaintiffs, who were farmers,

a quantity of wool which was described in the contract simply as "your wool." Some time previously a conversation had taken place in which the plaintiffs stated that they had a quantity of wool consisting partly of their own clip and partly of wool they had contracted to buy of other farmers. In an action for not accepting the wool, this conversation was held admissible in evidence for the purpose of explaining what the parties meant by the term "your wool." In Shore v. Wilson, 9 Clark & F. 566, the chief justice, Tindal, in giving the opinion, says: "The true interpretation, however, of every instrument, being manifestly that which will make the instrument speak the intention of the party at the time it was made, it has always been considered as an exception, or, perhaps, to speak more precisely, not so much an exception from, as a corollary to, the general rule above stated, that where any doubt arises upon the true sense and meaning of the words themselves, or any difficulty as to their application under the surrounding circumstances, the sense and meaning of the language may be investigated and ascertained by evidence dehors the instrument itself; for both reason and common sense agree that by no other means can the language of the instrument be made to speak the real mind of the party." See, also, Hotchkiss v. Barnes, 34 Conn. 27; Avery v. Stewart, 2 Conn. 69. Cases of this kind are analogous to latent ambiguities. But they are something more than such ambiguities. In these cases the parol testimony is used, not only to explain the surrounding circumstances, but also to enable the court to look in upon the mind of the contracting parties, and to read the written words of their contract in that very sense in which they wrote them.

In the sixteenth and seventeenth reasons of remonstrance it is alleged that a majority of the arbitrators did not consult with the minority in coming to some of the conclusions reached. If these reasons are compared with the eighth, the eleventh, the twelfth, and the fifteenth reasons, to all of which reference is made in one or both of them, and with the award, which is signed by all three of the arbitrators, it will appear, not only that the majority did consult with the minority, but that the minority had a large share of success in shaping the award. The fourteenth reason avers only that the arbitrators held certain damages claimed by Castle as not too remote. This was a matter clearly within their province to decide. In considering all these reasons of remonstrance, we have not failed to be impressed with the fact that the real grounds of objection are several times repeated, with changed circumstances and with varying language, and that they are urged with a minute and technical insistence which differs widely from the confident and liberal tone used by the parties when they committed the controversy to their own

chosen tribunal. If we have not given attention to all of them, and in detail, it is because we think that, so far as they are not answered by what we have said, they fall clearly within the authority conferred by the submission on the arbitrators, and that the decision of the arbitrators is final. None of the reasons of the remonstrance assert that the award is not within the submission. It is not pretended that the arbitrators failed to act on all the claims submitted to them, or that they undertook to act on any matter not submitted. The uniform rule of decision has been in this state that in such cases a court of equity will not set aside an award except for partiality and corruption in the arbitrators, mistakes on their own principles, or fraud or misbehavior in the parties. Allen v. Ranney, 1 Conn. 569; Brown v. Green, 7 Conn. 536; Fisher v. Towner, 14 Conn. 30; Bridgeport v. Eisenman, 47 Conn. 37. "In general, arbitrators have full power to decide upon questions of law and fact which directly or incidentally arise in considering and deciding the questions embraced in the submission. As incident to the decision of the questions of fact, they have power to decide all questions as to the admission and rejection of evidence, as well as the credit due to evidence, and the inferences of fact to be drawn from it. So, when not limited by the terms of

the submission, they have authority to decide

questions of law necessary to the decision of the matter submitted, because they are judges of the parties' own choosing. Their decision upon matters of fact and law, thus acting within the scope of their authority, is conclusive, upon the same principle that a final judgment of a court of last resort is conclusive; which is, that the party against whom it is rendered can no longer be heard to question it. It is within the principle of res judicata; it is the final judgment for that case, and between those parties. It is among the rudiments of the law that a party cannot, when a judgment is relied on to support or to bar an action, avoid the effect of it by proving, even if he could prove to perfect demonstration, that there was a mistake of the facts or of the law. *** But when parties have, expressly or by reasonable implication, submitted the questions of law, as well as the questions of fact, arising out of the matter of controversy, the decision of the arbitrators on both subjects is final. It is upon the principle of res judicata, on the ground that the matter has been adjudged by a tribunal which the parties have agreed to make final and a tribunal of last resort for that controversy; and therefore it would be as contrary to principle for a court of law or equity to rejudge the same question as for an inferior court to rejudge the decisions of a superior or for one court to overrule the judgment of another, where the law has not given an appellate jurisdiction, or a revising power acting directly upon the judgment alleged to be erroneous." Shaw, C. J., in

EFFECT

NOTICE OF INTENTION TO DEFAULT
PLEADING AMENDMENT AFTER JUDG-
MENT-ERROR.

1. The service of a notice of intention to suffer a default, according to the provision therefor in Pub. Acts 1889, c. 157, is not a bar to a subsequent motion to strike out certain paragraphs in the pleadings, nor to a demurrer thereto.

2. The allowance by the court after judgment, in an action to recover for personal injuries, of an amendment to the complaint made on its own suggestion, and objected to by defendant, which adds to the previous averment of negligence, as a basis of recovery, one of malicious injury, is error.

Appeal from superior court, Hartford county; George W. Wheeler, Judge.

Action by Henry E. Pitkin and another, as administrators of the estate of Evelyn R. Pitkin, against the New York & New England Railroad Company, to recover for the death of plaintiffs' intestate, alleged to have been caused through defendant's negligence. From a judgment in favor of plaintiffs, on a hearing in damages after a default, defendant appeals. Reversed.

Edward D. Robbins, for appellant. George G. Sill and John A. Stoughton, for appellees.

ANDREWS, C. J. This was an appeal from a judgment awarding $4,000 and costs to the plaintiffs on a hearing in damages after a default. The plaintiffs are the administrators on the estate of Evelyn R. Pitkin, late of South Windsor, deceased. This suit was brought to recover damages for injuries done to the said deceased by the defendant. The complaint avers that on the 14th day of September, 1889, a train of the defendant came into collision with a horse and wagon driven by and in the possession of the said Evelyn R. Pitkin, at a grade crossing in the town of East Hartford; that by reason of such collision the vehicle was entirely destroyed, the said Evelyn was thrown a great distance, and received injuries from which, on said day, he died. As the complaint originally stood, the only paragraph which set forth any conduct for which damages were claimed was the fifth one, as follows: "Said collision occurred by reason of the negligence of the defendant corporation in failing to sound the whistle or ring the bell on said engine while approaching said crossing, and by reason of the great rate of speed at which they were running their train while approaching said crossing, and wholly by reason of the negligence and fault of the said railroad corporation, and without any negligence or fault on the part of the deceased, Evelyn R. Pitkin."

The complaint was returned to the superior court in Hartford county on the first Tuesday of October, 1890. On the 29th day of November following, the defendant gave notice of its intention to suffer a default according to the provision of chapter 157, Pub. Acts 1889. There was afterwards a motion to strike out paragraph 4 of the complaint, and certain words of the fifth paragraph. There was also a demurrer to the fourth paragraph, and to the same words of the fifth paragraph, and to the whole complaint. The motion to strike out was denied, and the demurrers were overruled. It was suggested in the argument before this court that the notice of intention to suffer a default has the same effect upon the pleadings as an actual default, and that the motion to strike out and the demurrers came too late. We cannot agree with this argument. The only effect of the act of 1889, above cited, is that, in a case where a default is suffered and no such notice has been given, the hearing in damages must be by a jury, and not by the court. The notice is not itself a default. Falken v. Railroad Co., 63 Conn. 258, 27 Atl. 1117. The motion to strike out the fourth paragraph should have been allowed. That paragraph, as it stands, does not allege any fact which forms a part of the plaintiffs' cause of action. As there was afterwards a default in the case, this error has become immaterial, and may be disregarded. Vail v. Hammond, 60 Conn. 374, 22 Atl. 954. The motion to strike out, so far as it applied to parts of the fifth paragraph, was properly denied. The same may be said in respect to the demurrer to these parts of the complaint. The demurrer to the whole complaint was properly overruled. In the absence of averments to the contrary, it will always be presumed that, if there is no widow or husband or lineal descendants, there are heirs to whom a distri bution of personal estate can be made according to section 1008 of the General Statutes.

Subsequent to the hearing and argument of the case, and, indeed, after the judgment had been rendered, an amendment to the complaint was made and allowed against the objection of the defendant, under circumstances stated in the finding, as follows: "After the hearing in damages was concluded, and before the judgment was rendered, the court instructed the clerk of the court to notify the plaintiffs that, if they desired, they would be permitted to amend their complaint as by amendment on file. Immediately after so instructing the clerk, the court rendered judgment as on file. The plaintiffs immediately thereafter amended their complaint as on file. The defendant objected to the allowance of this amendment, and duly objected to said ruling of the court as on file." The amendment so made was this: "Par. 6. The defendant, without right or authority, changed said highway crossing from one passing under said railroad to a grade crossing. It con

The

structed the approaches by an incline on each side of said railroad, by narrow embankments of nine feet on the surface thereof, and left the same unprotected by railings. The incline on the south side was irregular in its grade, in part five feet in one hundred, and in part eleven feet in one hundred. defendant erected no warning posts at said crossing, nor did it place planks between the rails or between the tracks, nor did it erect any whistling posts for said crossing. The engineer and fireman on said train saw the deceased before he reached the track, and saw the danger which threatened him, but no effort was made to warn him of said danger, and did not whistle until within fifty feet of said crossing and of said Evelyn R. Pitkin. And plaintiffs say that, by reason of the facts aforesaid, the defendant was guilty of willful and intentional neglect and disregard of human life, and that by its recklessness and intentional negligence it caused the death of the said Evelyn R. Pitkin." The action of the trial court in respect to this amendment, as well as the amendment itself, call attention to other parts of the finding, where the court says: "I find that the engineer was willfully and intentionally careless in not stopping his train when he first saw Pitkin, or taking any means to warn him of the danger or to prevent a collision.

* * I find that the injury resulted from the said negligence of the defendant road, to which the plaintiff did not contribute in anyway, and I find that the injury was the result of the defendant's willful and intentional disregard of its duty, and its gross, reckless and criminal disregard of human life; and I so find, whether the foregoing facts constitute such crossing a highway crossing or not." In its memorandum of decision the court had said: "I have found that the injury complained of resulted from the willful and intentional negligence of the defendant. If this is a proper deduction to make from the facts in this case, then contributory negligence of the deceased, if in fact it existed, has no place in the case, and the plaintiffs are entitled to recover."

These expressions pretty clearly indicate that the trial court perceived that its finding included facts not averred in the complaint, and that, as its judgment rested upon such facts, the judgment could not be supported unless such other facts should be set forth in the complaint. Hence the suggestion to the counsel for the plaintiffs that the complaint be amended. The term "negligence" is used by courts and by text writers with some indefiniteness of meaning. Sometimes it is applied to an act, and sometimes to the consequences of an act, and at other times to an act and its consequences taken together. In the first of these instances the word is correlative to "diligence"; in the second, to "intention." In this sense it is practically synonymous to "heedlessness" or "carelessness," the not taking notice of matters rele-.

vant to the business in hand, of which notice might and ought to have been taken. 2 Steph. Cr. Law, p. 123; 1 Aust. Jur. p. 440. In civil proceedings, acts, including omissions, apart from their consequences, are indifferent. It is only when an act occasions injury to another that the person doing the act becomes liable in damages to the person injured by the act. In such cases the act and its consequences are blended together, and the term "negligent injury," or simply "negligence," is applied. It is an essential ingredient of actionable negligence that the injury be the result of inadvertence or inattention. "Negligence" signifies a want of care in the performance of an act, by one having no positive intention to injure the person complaining of it. Where such an intention exists, the injury ceases to be merely a negligent one, and becomes one of violence or fraud, i. e. a malicious one. It needs hardly to be stated that a complaint charging a negligent injury is, in its legal sense, a very different thing from one charging a malicious injury. The proof by which the complaint in a case of malicious injury must be sustained must go further than is required in the other; and the defenses by which the charge may be met and repelled are quite different. In a case for negligent injury, proof of contributory negligence is a perfect defense; but in a case for a malicious injury, that defense cannot be made. Up to the time the judgment was rendered, and until the amendment was made, the complaint in this case charged only negligent injury. After the amendment it charged also a malicious one. A judgment must be according to the facts alleged as well as according to the facts proved; otherwise it is erroneous on the face of the record. It was necessary that the charge of a malicious injury be in the complaint, lest the facts which the court had found to be proved, and upon which the assessment of damages was predicated, should not be supported by any averments therein contained. The amendment alleged a new and different cause of action from the one that was before charged in the complaint,-one of which the defendant had had no notice, to which it had had no opportunity to make answer, upon which it had not been heard, and in respect to which it had not been in default. As this cause of action was considered by the court in the assessment of damages, there was error, and a new trial must be had. Shepard v. Northampton Co., 45 Conn. 58; Rowland v. Railroad Co., 63 Conn. 415, 28 Atl. 102. It is certainly irregular, and we believe it to be unprecedented, for a court to do what was done in this case, i. e. grant authority to a plaintiff to amend his complaint in a material matter after the judgment is rendered. To do so against the objection of the defendant was, as we think, manifestly erroneous. The reasons given by this court in Bennett v. Collins, 52 Conn. 1, why the amendment in that case was erro

neous, apply with added force to the amendment made in this case. There is error, and a new trial is granted. The other judges concurred.

(64 Conn. 553)

MERIDEN SAV. BANK v. WELLINGTON et al. (Supreme Court of Errors of Connecticut. July 9, 1894.)

GIFT EVIDENCE OF INTENTION-ADMISSIBILITY— APPEAL-FINDINGS OF FACT.

1. Deceased having given her savings-bank book to defendant, saying, "This is yours; I give it to you, and all there is in it,"-evidence of deceased's declarations of attachment for defendant, and of an intention to do more for defendant in the disposition of her property at her death than for any other relative, was competent, in an action by the administrator to recover the book, as tending to support defendant's claim thereto.

2. Under Act 1893, p. 318, § 6, providing that, in the trial of any civil action in which an appeal lies to the supreme court of errors, “all the evidence material to the questions of fact shall be made part of the record," and section 7, permitting either party to "appeal from any finding or refusal to find any fact *** in the manner now by law provided," that court will not consider exceptions to the finding of the court below, or to its refusal to find, other than those relating to matters affecting the admissibility of the evidence upon which such finding rests. Styles v. Tyler, 64 Conn. 432, 30 Atl. 165, followed.

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

Proceedings in the nature of an interpleader, brought by the Meriden Savings Bank, to determine the ownership of certain deposits, as between Hiram B. Wellington and another, administrators with the will annexed of the estate of Harriet B. Clark, deceased, and Harriet B. Wolcott, a niece and legatee. Deceased was more attached to defendant Wolcott than to any of her other relatives, and had declared she should leave more of her property to her than to them. It was deceased's intention to transfer certain bank stock to defendant, but, being fearful of dying before accomplishing the transaction, handed her two savings-bank books, with the remark, "This is yours; I give it to you, and all there is in it." Deceased died one week later. From a judgment in favor of defendant Wolcott, the administrators appeal. Affirmed.

John W. Alling and Frank S. Fay, for appellant Hiram B. Wellington. George A. Fay and William L. Bennett, for appellee Harriet B. Wolcott.

BALDWIN, J. The evidence of Mrs. Clark's declarations of her attachment to Mrs. Wolcott, and her intention, in the disposition of her property, to do more for her than for any of her other relatives, was relevant and material. The fact of giving being in dispute, proof of an intention to give, and to give largely, tended directly to support Mrs. Wolcott's claim; and whether the expression