author: Stores, J.

text:
    Ransom vs. The State of Connecticut.
    Lost goods may be the subject of larceny, and should receive the same protection, from the civil, and criminal law, as goods in any other situation.
    But the finder of lost goods, who takes possession of them, not intending to steal them at tire time of the original taking, is not rendered guilty of larceny, by any subsequent felonious intention to convert them to his own use.
    Therefore, where, on the trial of an indictment, for stealing apocket-book, and sundry bank bills, which had been lost on the highway, the judge instructed the jury, that if the defendant, at the time he found the property, knew, or had the means of knowing the owner, and did not restore it to him, but converted it to his own use, he was guilty of larceny; it was held a misdirection,—because, if the defendant, at the time he took possession of the property, meant to act honestly, with regard to it, no subsequent felonious intention to convert it to bis own use, could render him guilty of larceny.
    This was an information, brought to the county court, against Robert Ransom, for theft, charging him with having stolen a pocket-book and various bank-bills, amounting to the sum of forty-three dollars,—the property of Charles H. Cooper.
    The defendant pleaded not guilty, and, upon the trial to the jury, the prosecutor introduced evidence to prove, that, on the 28th day of April, 185J, the pocket-book and money described in the information, were lost on the public highway, in the town of Montville, near the inn of Russell Sheldon ; that within two hours after said property was so lost, it was found, at the place where lost, by the defendant. About the time the defendant found 'said property, the said Cooper made known at said inn, that he had lost the same, and publicly offered a reward for its recovery and restoration. The defendant used no means, by inquiry or otherwise, to ascertain who was the owner of said property, but wholly concealed the fact, that he had found it, and all the knowledge he had in relation to it, and converted said property to his own use.
    There was no mark upon the property, which indicated who the owner was; nor was there any evidence except that furnished by the facts aforesaid, tending to prove that, at the time the defendant found said property, he knew, or had the means of knowing, the owner. The counsel for the defendant thereupon requested the court to charge the jury, that if the defendant, at the time he found said property, honestly believed it to be his, by right of finding, he could not be found guilty. But the court omitted so to charge the jury.’
    The counsel for the defendant further claimed, and requested the court to charge the jury, that unless the defendant, at the time he found the property, knew, or had the means of knowing the owner, by marks upon it, or other information at the time, he could not be found guilty. The court did not so charge the jury, but charged them that, “ if the defendant, at the time he found the property, knew, or had the means of knowing the owner, and did not restore it to him, but converted it to his own use ; or, if the defendant, at the time he found the property, did not know the owner, still, if he then determined to convert the property so found to his own use, and to deprive the owner of it, at all events, even should he discover the owner before he had so converted it, or any part of it, and afterward concealed said property, and appropriated it to his own use, he was guilty of larceny.
    The jury found the prisoner guilty, and the court rendered judgment accordingly. The prisoner’s counsel filed a bill of exceptions, and thereupon, by motion in error, brought the record before the superior court for revision ; and the question arising on such motion was referred to this .court for advice.

      Goddard and Park, in support of the motion,
    contended, 1. That the charge was erroneous, inasmuch as it gave the jury to understand, that the intent with which the property was taken, was of no consequence, and that it was the subsequent intent of the party, entirely, which constituted the crime; whereas the felonious intent is the essence of larceny, and must exist at the time of taking the property. If it does not then exist, no subsequent acts can render the taking felonious. 2 Stark. Ev., 826. Rose. Cr. Ev., 541. 3 Chitt. Cr. L., 926. 2 Sw. Dig., 312.
    2. The accused must know, or have the means of knowing the owner, at the time of the finding. State v. Weston, 9 Conn. R., 527. People v. Cogdell, 1 Hill, 94. People v. Anderson, 14 Johns., 294. 5 Kin. Law Comp., 157. Archbold Cr. L., 173.
    3. The statute prescribes the course to be taken by the finder of personal property, and inflicts a forfeiture, for noncompliance. Stat. 1849, p. 625.

      Wait and .Halsey, contra,
    contended, 1. that although it is laid down in the earlier books, that where the finder of lost goods converts them to his own use, it is no felony, still the rule must now be understood, with the qualification, that there was no fraudulent intent. Thompson, Ch. J., 14 John., 301. People v. M’Garren, 17 Wend., 460. And the modern authorities are to the effect, that if the finder of lost property, not abandoned, knows, or has the means of knowing the owner, and converts it to his own use, he may be guilty of larceny. State v. Weston, 9 Conn. R., 527. 6 Am. Com. L., 392. 2 Russ, on Crimes, 14.
    2. It should be left to the jury, to find the intention of the party, in taking the property. Roscoe, 538. Rex v. Pope, 25 E. C. L., 432. State v. Jenkins, 2 Tyler, 379. 2 Russ., 14.
    3. The court is not bound to instruct the jury, in the precise form in which it is put by counsel, but only in such manner as comports with the real merits of the case. Pitts v. Whitman, 2 Story, 609. Churchill v. Rosebeck, 15 Conn. R., 359. Williams v. Cheeseborough, 4 Conn. R., 356.
   Stores, J.

It must be assumed, on this -motion, that the goods, which the defendant was charged with having stolen, were, by the owner, lost, in the ordinary sense of that term, that is, casually, and not in a manner to indicate, that he intended to abandon or part with his property in them; and the first question made by the defendant, and which was involved in the charge below, is, whether such goods can, under any circumstances, be the subject of larceny. We are of opinion, that both on principle, and on a just consideration of the authorities, there is no difference, between lost goods and those in any other situation : and justice and public policy require, that both should be equally protected, by the criminal and the civil law.

' T?he most approved definition of larceny is, the wrongful or fraudulent taking and carrying away, by any person, the mere personal goods of another, from any place, with the felonious intent to convert them to his (the taker’s) own use, and make them his, property, without the consent of the owner. 2 East C. L., 553. Each branch of this definition is strictly, and according to the meaning which has been uniformly attached to it, by judicial construction, applicable, as well to goods thus lost, as to any other. The owner, by losing them, is not divested of his property in them, nor is his title to them in the least degree impaired; it remains in him absolutely and to all intents, as before. There is no difficulty in describing the ownership of it, in the indictment, according to the established rules of framing that instrument. The name of the owner must be stated, if it is known, and if not, it may be alleged to be the property of some person unknown. Nor is there any difficulty, arising out of the established principle, that, to constitute larceny, the taking must be a trespass. There can be no doubt, that trespass may be maintained for a fraudulent taking and conversion of goods found. As remarked by Parke, B., in delivering the judgment of the court in Merry v. Green, (7 M. & W., 623,) “ If the finder, from the circumstances of the case, must have known who was the owner, and, instead of keeping the chattel for him, means, from the first, to appropriate it to his own use, he does not acquire it, by a rightful title, and the true owner might maintain trespass.” And this principle is established, by the numerous modern cases of conviction for larceny, where the property was obtained by the prisoner, by finding. In the case of The People v. Anderson, (14 Johns., 294.) where a majority of the court seem to have gone the whole length of deciding, that the finder of lost goods can not, under any circumstances, be guilty of larceny, they appear to have come to that conclusion, on the ground, that where a person comes to the possession of property in that manner, no fraud is practiced on any one, in first acquiring the possession,—that the very nature of the case excludes a premeditated intention to steal it,—that therefore, the taking of it is not a trespass,—and hence, that it can never be a question, whether one who has found a chattel, intended to steal it; and they therefore conclude, that in the case of such finding, and a subsequent conversion by the finder to his use, the same test can not be applied, in order to ascertain the intention with which it was first taken, as is applied, where a person has feloniously applied for, and obtained goods, under the pretence, that he would use them for a certain specified purpose, and then has converted them to his own use. This reasoning appears to proceed on the ground of the impossibility, in the case of finding, of the existence of a felonious intention, on the part of the finder, and of a want of possession in the owner. With the greatest respect for the eminent judges, by whom that decision was made, we can not accede to this reasoning, but concur rather in the views of the able judge who dissented. In each of those cases, there must, undoubtedly, in order to constitute larceny, be a felonious intention, in the original taking of the property, and that taking must also be from the actual or constructive possession of the owner, either of, which is sufficient. If therefore, it be true, where there is a finding of lost property, either that it can not be taken by a finder, with a felonious intention, or that the actual and constructive possession' of the owner, is devested, by his losing it, then one of the essential ingredients would be wanting. But we think that such a case is not necessarily attended with either of these consequences'. As to the first, it is certainly not impossible, from the nature of the case, for a person who discovers the goods of another, which have been lost, in a highway or any other place, to -form a fraudulent intention to appropriate them to his own use, and to take them with that intention. The place where they are found is immaterial, as it respects the offence of larceny, because the definition of it extends i'.to the taking and carrying away of goods “from any place.” There is nothing in the circumstance, that they were there, because they were accidentally lost, which any more precludes the possibility of forming such a fraudulent intention, than if they had been placed there designedly, by the owner. This is so far from being true, that the very fact, that they were apparently thus lost, and that their location is therefore unknown to the owner as well as others, and also that he is unknown or the loss undiscovered, may and often does constitute a motive, on the part of the finder, arising from the difficulty of detection, and hope of impunity, which induces him to take possession of the property, and convert it to his owm use. Nor do we perceive the justness of the distinction, suggested between the case of goods, obtained fraudulently from the owner, and of those lost by him and afterward found and taken by another person, with a fraudulent intention, in the latter, to convert them to his own use, founded on the supposed want of possession, by the owner, in the latter case, and consequently, on the want of an unlawful violation of that possession. The possession of goods lost remains, in judgment of law, in the owner, because his property in them is not devested by losing them, and that property draws to it, constructively, the possession of them. If, while they are thus in his possession, another person obtains possession of them fraudulently, as he does, if he takes them with an intention to deprive the owner of them, the latter possession is as tortious, as if he had obtained possession of them fraudulently, by delivery from th'e owner, in which case, such possession is clearly as tortious as if there had not been such a delivery. (2 East P. C. 693.) Indeed, the law considers, that there was no delivery; and as there is not even a color of authority, in the case of finding, the fraudulently taking possession of them is more palpably tortious than in the other case. And, such possession being tortious, the taking by which it was acquired is not a lawful taking, and therefore, trespass may be maintained by the owner against the taker, as has already been mentioned, although such possession of the latter is good, as between him and any other person, excepting the owner, as it is in every case, where the possession of goods is obtained tortiously.

We do not deem it necessary to examine minutely the authorities, on the question we are now considering. They certainly furnish a strong color for the opinion, which perhaps is generally entertained, that, anciently, goods casually lost, were not considered to be the subject of larceny, under any circumstances. We are, however, by no means satisfied that a critical and just examination of the old authorities will justify so broad a conclusion. The peculiar and somewhat loose forms of expression which they use, are certainly not absolutely inconsistent with the general current of modern authorities, in which it is stated, that those of an ancient date must not be understood in an unlimited sense; and Mr. East, who is one of the ablest writers on criminal law, appears to be of this opinion, (2 East C. L., 665;) although a previous expression of his seems to countenance an universal application of the principle, as laid down in the ancient books. But, whatever may have been the principle adopted anciently, the modem authorities, so far as we have examined, with the single exception of the case decided by the supreme court of the state of New York, and the subsequent decisions on this point by the same court, uniformly hold, that goods lost are the subject of larceny: and the cases are very numerous, in which the finder of them has been convicted of that offence, on the ground of having feloniously taken them, in the first instance. A reference to them, in England and in this country, will be found in Ruggfill on Crimes, 5th Am. from 3 Lond. ed., p. 11 to 19. •

In prosecutions for the stealing of lost 'goods, the question, whether they were originally taken by the accused feloniously, animo furandi, is always a question of fact. and ^usually the principal one, for the jury to determine. For the purpose of showing such intention, inquiries as to his conduct, and all the circumstances preceding, accompanying, or following such taking, so far as they are relevant, are, as in all other cases of a similar accusation, admissible ; and where the goods were obtained by finding, it is, from the nature of the case, very important to ascertain, whether the accused knew, or had the means of knowing, the owner, or endeavored to discover him, or made known or concealed his acquisition ; and generally, how he conducted with the goods, in order to determine whether he intended originally to convert them to his own úse, or to restore them to the owner. No arbitrary or artificial importance or effect is attached to these circumstances, when they are disclosed by the evidence; they are only evidential of the intention of the accused, and, as such, to be weighed by the jury. In many of the reported trials for larceny, where it appears, that the accused obtained possession of the goods by finding, the form in which the court instructed the jury was, that if the accused, knowing or having the means of knowing the owner, concealed them or converted them to his own use, he is guilty of the. crime. It is, however, obviously not true, nor was such charge intended to be understood as laying down the legal proposition, that these circumstances constitute the offence, or that one is necessarily guilty of it} where these facts exist. All that was intended by it was, that these circumstances furnish evidence, that the original taking was felonious, animo furandi, and that if there is no countervailing proof, they are sufficient, in point of weight, to warrant the inference of such an intention. It was not designed to be the declaration of a definition or legal principle, but only as the expression of the opinion of the judge, upon the strength of the evidence. We think that this mode of instructing the jury, in these cases, carries too much the appearance of giving to the circumstances in the casé an arbitrary or artificial legal effect; and that, unless there is an entire absence of any explanatory or exculpatory evidence, in favor of the accused, which is seldom the case, it is calculated to mislead the jury, by withdrawing their minds from a due consideration of the evidence: and we therefore much prefer, as being more simple and intelligible to the jury, that, after they are informed of what constitutes the offence, these circumstances, together with any others bearing on the question, should be submitted to them, distinctly, as evidential only of the intention with which the goods were at first taken.

The plaintiff in error excepts to the charge of the county court, in this case, because it withdrew from the jury the question on which his guilt depended, namely, whether the goods were originally taken by him, with a felonious intention, and made it depend on an intention, which might have been formed subsequently. We think that, in this respect, the charge was erroneous. There is no doubt that, to constitute larceny in this case, an intention to steal must have existed, at the time of the original taking. If there was no such intention, when the first taking took place, but it was formed afterward, it would not be larceny; and the jury should have been so informed. But, consistently with the charge given, the accused might have been found guilty, although he first took the goods honestly, and intended to return them to the owner, but subsequently changed his mind, and resolved not to restore them, but to convert them to his own use. The conviction was, by this charge, made to depend on the question, whether, with a knowledge or the means of knowledge, as to the owner, the accused converted the goods to his own use, after he first took them, and not upon the question, whether, at the time of such taking, he intended so to convert them. The subsequent conversion was evidence of the intention, with which they were first taken, but did not of itself, make that taking felonious. In Regina v. Preston, 5 Cox C. C. 390. 2 Den. C. C., 350. 8 Eng. Law & Eq. R., 589, (ed. of Little & Brown,) it was held to be a misdirection, on an indictment for stealing a bank note, which had been lost in a public street, but which'had the name of the owner thereon, where the judge told the jury, that if the prisoner knew the owner, or had reasonable ground for believing that he could be found, at the time token ke first resolved to appropriate the. note to kis own use, he was guilty of larcenyon the ground, that if the prisoner, when he first took possession of the note, so as to know what it was, meant to act honestly with regard to it, no subsequent alteration of that intention, and conversion of the note to his own use, could render him guilty of larceny. The charge in the present case is obnoxious to the same objection, for the same reason.

The judgment complained of should therefore be reversed.

In this opinion the other Judges concurred.

Judgment reversed.


source: Caselaw Access Project

author: Church, C. J.

license: Public Domain

text:
    State of Connecticut vs. The Town of New London.
    By the second section of the act relating to the assessment and collection of taxes, passed in 1849, towns were required annually, not only to appoint assessors, but also to cause them to be sworn.
    A town can not discharge a penalty, incurred in 1850, by a violation of this act, by subsequently paying into the state treasury, as its tax for that year, its proportion of the state tax, on the list of the previous year.
    Forfeitures and penalties, already incurred, under the act of 1849, are excepted from the repealing clause of the act of 1851, relating to the same subject.
    This was an action of debt, brought by the state of Connecticut, against the town of New Londoz^S^mvSí^tíie sum of fifteen hundred dollars, as a peimt^.JfeP'a of the statute requiring towns to appoint assessors, and tq cause them to be sworn. Stat. 1849, p. jplk/lW SCHQ0> A
    The declaration contained two coun|s, in one of which, it was alleged, that, at a town-meeting oiWm■‘tmvnmr I\eyé London, warned and held according to K>s£^Qnth«^fifst Monday of October, 1850, Reuben Heath, Charles W. Strickland, and Alexander Merrill, electors of said town, were chosen assessors; and no other person or persons were, on said day, or at any other time, within the year next preceding, and ending on said day, or have since been, chosen assessors of said town, but the said town did not, either on said first Monday of October, 1850, or at any time afterward, cause said assessors, so chosen as aforesaid, or either of them, to be sworn, according to law, but have, at all times, neglected, and still neglect, so to do, and such assessors have never taken the oath, prescribed by law.
    In the other count it was alleged, that said town did not, on the first Monday of October, 1850, or at any other time, within the year next preceding, and ending on said day, or afterward, appoint, or cause to be duly sworn, an assessor, or assessors, but wholly neglected, and still neglect so to do.

      The cause was tried at New London, at the March term, 1852, when the court found the following facts, and reserved the case for the advice of this court, as to the judgment to be rendered.
    A town-meeting of the town of New London was legally warned and held, for the choice of assessors and board of relief, and selectmen, on the first Monday of October, 1850, at which Reuben Heath, Charles W. Strickland and Alexander Merrill, were duly chosen assessors of said' town; and no other person, within the year next preceding said day, or since said day, and before the commencement of said suit, was chosen an assessor of said town; nor was any other meeting called or held, for the purpose of choosing assessors subsequent to said meeting and before the commencement of said suit. Neither of the persons so chosen assessors took the oath prescribed by law, for such assessor, nor were either of them, sworn as such; nor did either of them ever in terms assent to, or perform any of the duties of said office. The said Strickland was not present at said meeting, and he was so chosen, without his knowledge. Said Merrill was present at said meeting, and knew of the choice of said three assessors. Strickland and Heath were, at said meeting, also chosen selectmen of said town, and served in said office. Strickland was not, but Heath was, one of the selectmen of said town, the year next preceding said meeting. Neither said Strickland, Heath or Merrill was ever, by said town, called on, or requested to accept, or take the oath of said office of assessor. No assessment list for said town was made out in the year 1850. The tax of said town for the year 1850, was levied and collected on the assessment list for the year 1849. The list for 1849 amounted to $90,299TVo-; and the state tax of one and one-fourth cent on the dollar, laid by the legislature, amounting to $1,128t7/-5> was, by the town-clerk, on behalf of the town, paid to, and received by, the treasurer of the state, who acknowledged the receipt and application of the same, by letter. Previous to the writing and sending of which letter, another letter, dated Feb. 26, 1852, was sent by said treasurer, to, and received by, the selectmen of said town of New London, as follows :
    • “ State of Connecticut,

      “ Treasury Office, Hartford, Feb. 26, 1852.
    “ To the Selectmen of the Town of New London : •
    “ Gentlemen:
    “ The list of your town, as returned to the comptroller of public accounts, in March, 1849, is $90,299TVV- The state tax of one and one-fourth cent on the dollar, amounts to $1,128TV„, and is payable at this office, on or before the 20th day of February, 1852, without any abatement or deduction.
    THOMAS CLARK, Treasurer

    Excepting the aforesaid facts, there was no evidence to prove, that said town caused, or took any measures to cause, the persons chosen as assessors, to accept said office, or to take the oath, or be sworn into the office of assessor.

      Wait and Hovey, for the plaintiffs,
    contended, 1. That the defendants have forfeited the penalty, sought to be recovered in this action, by neglecting to cause the assessors, by them chosen on the first Monday of October, 1852, to be duly sworn. Stat. 1849, p. 601.
    2. The refusal of persons, chosen assessors, to serve as such, does not exempt the defendants from liability to pay the penalty thus forfeited. 1. They were never requested, by the defendants, to be sworn. 2. They could have been compelled to take the oath, and to serve, by a writ of mandamus. Angelí & Ames on Corp., 561. The King v. Bedford, 1 East, 80. If the assessors chosen were at liberty to refuse to serve as such, so that the superior court, by a writ of mandamus, could not have compelled them to be sworn, it was the duty of the defendants to hold another meeting and choose other assessors in their stead. Stat. 1849 p. 139. The payment, by the defendants, of $l,128TVo> as their state tax, in March, 1852, does not, in any manner, affect their liability in this action, or the assessment of damages to which the plaintiffs are entitled.

      Foster and H. Willey, for the defendants,
    contended, 1. That the plaintiffs seek to recover, under a penal statute, which should be construed most strongly against the state. Rawson v. State, 19 Conn. R., 299. By the words of the statute, the refusal or neglect to appoint, and to cause to be sworn, are connected by the word and, and must both occur, before the town is liable for the penalty. Different offences, in the same section of a statute, are uniformly designated by the word or.

    2. It is sufficient, if the town appointed one assessor, and caused him to be sworn. They chose their assessors in the usual way,—one or more of whom they had every reason to believe, would act. They had no power to appoint an assessor, after the first Monday in October, and any such appointment would have been of no legal validity. The town of New. London has paid the tax for the year 1850, on the levy of 1849. The state received it, and should be es-topped from collecting a double tax, in shape of a penalty.
    3. The statute, upon which this action is brought, was repealed before the commencement of the suit, and therefore it is improperly brought.
   Church, C. J.

This is an action of debt, brought by the state, against the town of New London, to recover a forfeiture, or penalty, of fifteen hundred dollars, under the provisions of the second section of the act for the assessment and collection of taxes.” The facts are so fully detailed, by the. finding of the superior court, that I shall not recur to them in detail.

By the section of the statute referred to, it is enacted, “ If any town shall refuse, or neglect, to appoint an assessor, or assessors, and cause them to be duly sworn, such town shall forfeit the sum of fifteen hundred dollars, for the use of the treasury of the state,” &c. The town of New London, at its annual meeting, orí the first Monday of October, 1850, elected three assessors, two of whom were selectmen of the town, and all of them declined to accept, and be sworn into office, and no further action was had, either by the selectmen or the town, so that no assessment list was made for that year.

The first section of the same statute is directory only, and requires the several towns in the state, on the first Monday of October, in each year, to choose a board of assessors and a board of relief; and without the penal provision of the second section, the law would be without effect.

Our whole financial system, as it affects the state, and each county, town, society, school and highway district in the state, depends upon the prompt and faithful performance, by the respective towns, of the duties required of them by the first section of this act. Stat. 1849, p. 611.

The object of the legislature, in the enactment of the penal section of the law, upon which this action is founded is obvious and can not be mistaken: it was to secure the appointment, organization and qualification of an acting board of assessors, in each town, in each year. This purpose is so obvious, that no strictness of construction can be admitted to control or evade it.

This law demands of the towns, not only that they shall appoint an assessor, or assessors, but that they shall cause them to be sworn. To appoint them, and nothing more, would be only a partial performance of the duties required. Until they have accepted, and have been sworn, they are not assessors, and it can not, in strictness, be said, that before they have been thus sworn, they have been appointed assessors.

It is claimed by the town, in its defence, that it could do no more than to elect assessors, on the first Monday of October, 1850; it could not compel them, either to accept, or to act. But, it was the duty of the town, to elect such men as would be sworn to act, according to law: to elect such as would not accept the appointment, was a nugatory act, and of no avail. The town,was bound to do, in this matter, all it had power to do, either by its selectmen, or in town-meeting, to constitute an acting board of assessors; but this has been neglected.

By the twenty-third section of the act concerning communities and corporations,” Stat., 1849, p. 139, it is required; that the selectmen shall forthwith, after the choice of town officers, by the town-meetings, cause the officers, of whom an oath is required by law, to be summoned and sworn to a faithful discharge of their respective offices and trusts. There was no attempt to do this; so far from it, that two of the persons chosen, who w'ere themselves selectmen, refused to be sworn, without apology, or excuse, and'by their neglect of duty and rule of righteousness, in this respect, showed a manifest purpose to nullify the operation of the tax laws in that town.

The duty of the selectmen was plain: they were present at the town meeting, and if any or all who were chosen, declined to accept the office of assessor, to which they had been elected, they should have so declared to the meeting, that others might then have been chosen in their stead. Or it was their duty, forthwith to have summoned the assessors, so chosen, to be sworn, and upon their refusal, immediately to have called another town-meeting, to supply the vacancy, as they were empowered to do by the twenty-fourth section, of the aforesaid “ act concerning communities and corporations.” Stat, 1849, p. 139.

The claim of the town now' is, that it could not control the conduct of the selectmen, and should not be made responsible for their neglect, or willful disregard of duty. We can not admit this claim; to do so would operate as an exemption of towns, in almost all cases, from the responsibilities imposed upon them by law. Towns can not act at all, except through the preliminary agency of their selectmen. They alone can warn and organize town meetings, and thus enable towns to act directly, on any subject; and if they neglect to do this, shall towns stand discharged from legal obligations ? The neglect of selectmen, or other town officers, is generally the ground and the cause of the liability of towns, for neglect of duty, as iti cases of their neglect to mahe and repair roads and bridges, and to provide for the poor, &c. They are the legally constituted agents of the towns in all such matters, and the towns must stand responsible, as principals, for their neglect.

It is urged, also, in defence, that the town of New London has paid its proportion of the state tax into the treasury of the state, levied on the assessment list of the year 1849. This is no defence. The object of the statute, on which this action rests, was not merely to compel towns to pay their state taxes, but also, as we have said, to enable the' towns, counties, societies, &c., to levy and collect all their taxes. The law empowers towns, &c., to levy their taxes upon the assessment lists last made out, or which shall be next completed, according to law; but it presumes, because •it requires, that such lists shall be made out every year, so that taxes may be levied on the list of the year next before, or next after, the tax is voted. The town, by paying a tax on the list of 1849, into the state treasury, instead of paying it upon what might and probably would have been the larger list of 1850, even if this was legally done, did no more than its duty, in that respect; and the already forfeited penalty was not thereby discharged. To consider it differently, would be to- declare the law imposing the penalty, a nullity, and to invite all our towns to disregard it, when they suppose' their interests, would be served by so doing,

There has been no repeal of this penal section of the law, which can affect this action. The repeal was in 1851, and expressly excepted all forfeitures and penalties, already incurred, from its operation. This penalty was incurred by the neglect of the town, in October, 1850. •

The penalties, incurred by a violation of this statute, are for the use of the-treasury of the state, and the state alone has the legal interest in them, and not its officers. These officers are but agents, and can not sue, in their own names, unless' empowered to do so, by some statute. Spencer v. Huntington, 6 Conn. R., 312. Bissell v. Spencer, 9 id., 267.

A state, although a sovereignty, may sue in its own name, when it is alone interested in the subject of recovery ; and so may the United States, unless some other mode of proceeding be, by law, provided. Dugan et al. v. U. States, 3 Whea., 172.

We have not discovered any- legal excuse for the neglect of the town, complained of in this case, and must therefore advise the superior court, to render judgment for the plaintiff.

In this opinion the other judges concurred.

Judgment for the plaintiff.

      “ At a Gen11 Assembly held at Hartford, March 11, 16ff
      “This Court haueing duely considered the valuation of yeestate of N: London, apprized by Cary Latham and William Douglas, doe judge, that they haue not attended any rule of Righteousnes in their worke, but haue acted very corruptly therein, and therfore doe order the Treasurer that he send forth his Warrant to yB constable of N: London, to levy Four pounds vpon yB estate of Cary Latham, and Two pounds vpon Mr Douglas his estate, as a fine for their corupt and deceatfull actings therein, and fourty shillings more vpon Lathams estate, for neglecting to meet wu‘ yB Corn15 on j° Riuer according to order; woh fines shal be to yB publ: Treasury. And they doe further order the Treasurer to send forth his Warrant to y° constable of N: London, to levy a Rate of a penny pr pound vpon Eight thousand, fiue hundred pound estate, wBh yv judge to be at least y° estate of N: London. And doe desire the said Town of N: London to be more carefull in their choyce of List makers for the future.”
      (1 Trumbull’s Colonial Records, p. 392.)


author: Storrs, J.

text:
    Robinson vs. Cross and Pomeroy.
    A, B and C, owning certain lands, as tenants in fee and in common,—A being the owner of two undivided fifths, and B and C of three undivided fifths thereof,—A executed a mortgage to B, of his two-fifths, to secure certain promissory notes, and having forfeited the condition thereof, the mortgage was foreclosed by B; but, before the expiration of the time limited for redemption, A paid to B the amount decreed by the court. At the same term of the court, to which B brought his bill for a foreclosure, B and C brought an action of disseisin, to eject A from the lands in question. Before execution was issued in the action of disseisin, A brought a bill in equity against B and C, praying, first, for a release from B of the interest mortgaged to him; secondly, for a partition of said land between himself and the defendants; and thirdly, for an injunction restraining B and C from dispossessing him of the two-fifths recovered in the action of disseisin. Held, that such bill was not multifarious, and that A was entitled to the relief he sought. «
    Where a mortgagor pays the debt, after a decree of foreclosure, and before the expiration of the time limited for redemption, the mortgagee becomes the trustee of the mortgagor, and is bound to release the mortgaged premises, when requested by the mortgagor.
    This was a bill in chancery, brought by Nathaniel Robinson, against John H. Cross and Benjamin Pomeroy. The facts stated in the'bill were, substantially, as follows. The plaintiff and defendants were joint owners of three several tracts of land described therein, and seised of the same, as tenants in fee and in common,—the plaintiff owning two undivided fifths, and the defendant three-undivided-fifths thereof. On the 2d of March, 1849, the defendant, Cross, being the holder of certain notes, made by the plaintiff, and secured by a mortgage of the plaintiff’s two-fifths of said land, brought his bill to the superior court, to foreclose the plaintiff’s equity of redemption in the mortgaged premises. The prayer of the bill was granted, and the first Monday of December, 1849, was the time fixed for redeeming the premises. On the 17th of August, 1847, the plaintiff tendered and paid to Cross, the amount due him on said notes, according to the finding of the court. He then demanded of Cross, a release of the interest mortgaged to him by the plaintiff, which Cross refused to execute. At the term of the court, to which the bill for a foreclosure was brought, Cross and 'Pomeroy brought an action of disseisin against the plaintiff, to eject him from the entire premises described in said bill. The cause was tried in August, 1850, when the plaintiffs in said action of disseisin obtained a verdict against the plaintiff in the present bill, which was accepted by the court. The plaintiff then moved for a new trial. The motion was heard by the superior court, and a new trial refused.
    The plaintiff’s bill averred, that, at the coming term of said court, execution would be issued to the defendants, and he be liable to be ejected from the possession of the two-fifths of said premises. The bill then prayed, that the defendants (if it should appear that said Cross had acquired any title at law, to said two-fifths of said premises) should be compelled to release and quit-claim the same to the plaintiff; and further, that partition should be madé of said premises, between the plaintiff and defendants; and also, that an injunction should be issued, prohibiting the defendants from taking out, or using an execution in said action of disseisin. A demurrer to the bill was filed, at the term to which it was brought, on the ground, that it was multifarious; and also, that the matters set forth did not entitle the plaintiff to the relief sought.

      The cause came on for trial at the March term, 1852, when • it was reserved for the advice of this court, as to what decree should be passed.

      Foster and Wait, for the plaintiff,
    contended, 1. That Robinson, the mortgagor, having paid the debt, &c., after the law day had expired, the legal title remained in Cross the mortgagee; who, having refused to convey such outstanding title to Robinson, the only relief for the latter was in chancery. Phelps v. Sage, 2 Day’s R., 153. Roath v. Smith, 5 Conn. R., 136. Porter v. Seeley, 13 Conn. R., 564. Smith v. Vincent, 15 Conn. R., 14. Doton v. Russell, 17 Conn. R., 146. Parsons v. Wells, 17 Mass. R., 419.
    2. That this bill can not be treated as multifarious, because the several causes of complaint grow out of one and the same transaction, and the relief asked for, in relation to each, is of the same general character. Sto. Eq. Pl., p. 224 to 233, and pp. 407, 408, 409, 410, 411. Mix v. Hotchkiss, 14 Conn. R., 42. Avery v. Kellogg, 11 Conn. R., 562. Robertson v. Stephens, 1 Ired. Ch., 247. Watson v. Cox, 1 Ired. Ch., 389.
    3. Even if the bill is open to objection, for multifariousness, yet, if one of the subject matters of complaint be clearly within the jurisdiction of a court of equity, for redress, the court will treat the bill as if it were single, and proceed with the matter over which it has jurisdiction, as if that constituted its sole object. . Sto. Eq. PL, p. 232, § 283. Varick v. Atty. General, 5 Paige R., 137, 160. Kyne v. Moore, 1 Sim. & Stu., 61. Dew v. Clarke, 1 Sim. & Stu., 108.
    4. Therefore, if the plaintff can not have his prayer for a partition granted, he can have that for a release deed and stay of execution.

      Strong and Pomeroy, for the defendants,
    contended, 1. That the plaintiffs bill was multifarious, for the following reasons. It is' a good and well drawn bill, to redeem, against Cross alone, there being no averment or intimation therein, that Pomeroy (the other defendant) ever had any interest in the mortgage.
    In the stating part of the bill, there is no averment, that the plaintiff ever demanded of the defendants to make partition, and this seems to be necessary. Hawley v. Castle, Kirby, 218.
    The statement in the bill, on which the prayer for an injunction is based, is in fact, and necessarily, against both defendants; because the verdict and judgment are in favor of both. Therefore, the statement and prayer to redeem and enjoin, render the bill multifarious, exenif the statement makes the part relating to a partition, mere surplusage.
    2. That the plaintiff was not entitled to an injunction, from his own showing.
    When an injunction might cause great or irreparable damage to the defendant, in the event of the. plaintiff’s not being exclusively entitled, but the damage, sustained by the plaintiff, in the event of establishing his title, 'allows of compensation, the injunction will be refused. Hartridge v. Rockwell, Charl. R. M., 260. 2 U. S. Eq. Dig., 65.
    In ejectment cases, -when no discovery is sought, and the title at law is admitted, an injunction will be granted upon terms only, so as to leave the party to proceed to trial and judgment at law. Ham v. Schuyler, 2 John. C. R., 140. 2 U. S. Eq. Dig., 70.
    After a.trial at law, a party will not be aided in chancery, unless he can impeach the verdict, or report, on ground which could not have been used at law, or which he was prevented from using by fraud, accident, or the act of the opposite party, without default on his part. Duncan v. Lyon, 3 John. C. R., 351. 2 U. S. Eq. Dig., 71, 125; where all the authorities on this subject are cited. Van Wyck v. Seward, 1 Edw. Ch., 327. 1 U. S. Eq. Dig., 418,

      3. Where a party first- submits to a trial at law, with a knowledge of the facts upon which he rests, in support of his title, and a verdict is rendered against him, he can not then come into equity, and file his bill for discovery and relief, and enjoin the operation of the verdict, until he can have another trial in equity, in attempting to perfect his title. Donaldson v. Kendall, 2 Geo. Decis., 227. 2 U. S. Eq. Dig., 72. Floyd v. Jayne, 6 John. Ch. R., 479. 2 U. S. Eq. Dig., 71.
    A party, whose right to land has not been established at law, will not be protected, by injunction, against a suit at law, to recover the land from him. Thompson v. Engle, 3 Green. Ch., 271. 2 U. S. Eq. Dig., 71.
   Storrs, J.

The plaintiff, by his bill, seeks first, a release from the defendant Cross, of the interest in the land mortgaged to him by the plaintiff; secondly, a partition of the land between him and the defendants; and thirdly, an injunction restraining the defendants from dispossessing him of two-fifths of the land recovered by the latter, in the action of ejectment.

Upon the payment, by the plaintiff, of the sum decreed to be paid by him, on his mortgage to the defendant Cross, the latter became the bare trustee for the plaintiff of the interest so mortgaged, which was two undivided fifths of the land; and it was his duty, when requested by the plaintiff to release to the latter that interest. As nothing has since occurred, to change the relation between them, Cross still remains such trustee, and the same duty rests on him. The plaintiff is, therefore,- entitled to a decree, that Cross shall release to him such interest, or to a decree, by which the legal title to the said two-fifths shall be directly vested in the plaintiff; which latter course w'e deem most advisable in this case. It is more simple and direct than the other, and has been more commonly taken, since the passing of the statute, giving that power to courts of equity, especially where the object is merely to transfer a legal title; and it would moreover, in this'instance, expedite a partition of the land between the plaintiff and the defendants, to which, in our opinion, the former is entitled, and take away all color from the objection sometimes urged against that proceeding, on the ground of the parties having only an equitable title. Whichever of these modes of transfer is adopted, we see no good reason, why such an objection ought to prevail in a court of equity, nor has any authority been adduced in support of it, in a case like the present, where the legal title of the whole land is in the defendants, but one of them is the bare trustee of a certain proportion of it for the plaintiff, 'and there are no circumstances which can produce any possible injustice or inconvenience to either of them, from a separation of their interests.

The plaintiff is also entitled, on the plainest principles of justice and equity, to the injunction which he seeks. The legal title of. the plaintiff’s interest’in the land having been vested in Cross, by the mortgage, and the defendants being the legal owners of the rest, it was not in the power of the plaintiff to prevent a recovery of the whole, by the defendants, in their action of ejectment; there was, therefore, no laches in the plaintiff, in suffering that recovery. But it would be obviously inequitable, for the defendants to use the execution which they may obtain on their judgment, in that action, for the purpose of dispossessing the plaintiff of that part of the land recovered, which was so mortgaged, of which he is now the absolute equitable owner, which .the defendant Cross holds.only as his naked trustee; and the legal title to which, as we have already decided, it is the duty of Cross to convey to him. The only effect, of refusing an injunction against such a use of the execution, would be to suffer the plaintiff to be deprived of the possession to which he is equitably entitled, and to compel him, after the legal title shall have been vested in him, pursuant to the decree in this case, to bring an action of ejectment against these defendants, for the restoration of that possession, in which he would, of course, recover it. It is unnecessary to refer to authorities, to show that, in such a case, there is ample power in the court to grant such injunction, or that it ought to be exercised.

The right of the plaintiff to the relief he asks for, is, therefore, clear, but for the objection of multifariousness, set up by the defendants, in their demurrer, and which is alleged to consist in the joinder, in the bill, of distinct and independent matters and grounds of relief, which can not properly be united.

The plaintiff seeks to obtain a legal title to that part of the land, which was mortgaged by him, and which legal title is withheld, by one of the defendants, who holds it as a bare trustee for the plaintiff; and also to quiet himself in the possession of it, which is threatened by both defendants, in whom is now vested the legal title of the whole land, and also a legal right to the possession of it. This object can be accomplished, only by obtaining a release of the legal title from the defendant, who thus holds it as such trustee, and an injunction, restraining both defendants from dispossessing the plaintiff, as they have the legal, although not the equitable, right and power to do, on the execution to be issued on their judgment, in the action of ejectment. The plaintiff’s title being useless, without the possession, and the possession being precarious, without the title, his remedy, to be effectual and ample, must consist of a combination of both of these branches of relief: both, therefore, should be granted in this case; and for that purpose, both defendants should be made parties. Indeed, there is such a privity and connection between these defendants, as to the title and possession, that full justice can not be done to the plaintiff, without bringing both of them before the. court; and the joinder of them is, therefore, sanctioned by the well-established rules on this subject. Nor do we see any objection to the prayer for a partition, in addition to, and connection with, that for the other relief sought; and we are of opinion, that both may be granted on this bill. The right to the partition results from the facts which had been stated, as a foundation for such other relief; and in a case where the plaintiff thus shows himself entitled, against the same defendants, on the same facts, to these two different kinds of relief, one of which is only additional to the other, and both connected with the same subject matter, and no injustice can arise from granting both together, we. think that convenience and propriety require that course* rather than that we should put the plaintiff to the necessity of multiplying suits, by resorting to separate bills against these defendants, for these purposes. The bill, therefore, is not exceptionable, in either of these respects.

We advise that the demurrer be overruled.

In this opinion, the other judges concurred.

Demurrer overruled.


author: Ellsworth, J.

text:
    The Towns of Groton and Ledyard vs. Hurlburt and others.
    The county court accepted a report of the county commissioners, laying out a highway, which passed through a cove, or creek, setting in from the river Thames, where, at all times, the tide ebbs and flows, but which is not navigable for any useful purpose connected with trade or agriculture, except by scows or other flat-bottomed vessels, and the passage of which up and down said cove would not be materially obstructed by a bridge placed across the same, on the line of- said highway. It was held, 1. That such laying but was not exceptionable, as being an obstruction to navigation, and contrary to the constitution of the United States and the acts of Congress. 2. That the power of laying out highways, with necessary bridges, over coves and creeks and other highways, has been delegated to the county commissioners, and consequently, that no special act of the legislature, authorizing said highway, was requisite.
    The act relating to courts, (Stat. 1849, p. 220,) which disqualifies judges and justices of the peace from acting in civil actions, by reason of relationship, does not apply to the acts of commissioners, in surveying and laying out highways. Such acts are not judicial in their character, nor is a waiver of a claim, that commissioners are disqualified from acting in such cases, required by statute to be made in writing; but the same may be by matter in pais. Therefore, where a highway had been surveyed and laid out by county commissioners, one of whom was a brother, by marriage, of one of the petitioners, and before the hearing of the petition, the respondents had notice of such relationship, but took no exception to the action of the commissioners, on that account, until their report was presented to the court for acceptance; it was held, first, that such commissioner was not disqualified by such relationship; secondly, that the right to claim such disqualification had been waived by the respondents.
    This was a petition, brought to the county court of New London county, by Asaph Hurlburt and others, praying for a highway, to be laid out as near the shore of the river Thames as might be found practicable and expedient, from Gale’s ferry in the town of Ledyard, to the present highway, at Groton Bank, in the town of Groton.
    The petition was referred to the county commissioners, who surveyed and laid out the highway, and made their report to said court, at its February term, 1851. Against the acceptance of the report, the defendants filed a remonstrance, based upon the following facts, which were found by the court upon the hearing. Said petition was heard and decided by Latham Hull, Sabin K. Smith and Marsh-field S. Parker, county commissioners for New London county. The highway, therein prayed for, was surveyed and laid out by two of said commissioners only—viz., Hull and Smith. Said Hull, at the time of hearing and deciding the petition, and surveying and laying out said highway, was a brother, by marriage, of William Browning, one of the signers of the petition. The respondents had notice, before the hearing of the petition commenced, that this relationship existed, but took no exception to the said Hull’s acting, as one of the commissioners, in hearing and deciding the petition, and in surveying and laying out said highway.
    The highway, as laid out, necessarily .crossed the mouth of an inlet or recess, in the shore of the river Thames, known as “ Long Cove,” which is a body of water, about one hundred rods in length, three hundred and fifty-five feet in width, at its mouth, and from four to seven feet in depth, and is the outlet of a small stream of water, called “ Long Cove Brook,” on which there is a-saw-mill, about half a mile above the head of said cove. The river Thames being navigable, and an arm of the sea, the tide ebbs and flows in said cove; the channel of which, from its mouth to points above the location of said highway, is navigable for scows and other vessels of light draught; but toward its head, the depth of water, at high tide, is scarcely sufficient to float a small flatboat. Said cove is not now navigable for any useful purposes connected with trade or agriculture, except by flat-bottomed boats, the passage of which, up and down the same, would not be materially obstructed by a bridge across the mouth of said cove on the line of said highway. Such bridge, however, would prevent its navigation, by vessels with masts, but would not thereby- interrupt commerce, carried on with foreign nations, or between different states, nor would it be an essential obstruction to the navigation of the cove,, by the class of vessels generally used upon the same.
    The court accepted the report of the commissioners, and established the highway as laid out by them.
    The towns of Ledyard and Groton, the original respondents, thereupon brought a writ of error in the superior court, which was reserved for the advice of this court.

      Foster and Wait, for the plaintiffs in error,
    contended, 1. That, by the common law of England, all arms of the sea, where the tide ebbs and flows, are the property of the sovereign, subject to rights of fishing and navigation, common to all the subjects, under restrictions and regulations, such as the sovereign power shall impose. East Haven v. Hemingway, 7 Conn. R., 186. Com. v. Charlestown, 1 Pick., 182. Charlestown v. Middlesex, 3 Met., 202.
    2. That, by the charter of 1662, the king granted all his interest in such navigable waters, and the soil under such waters, with all his right in other lands, in this part of the state, to the colony of Connecticut, with all his powers over the same, subject to the rights of the citizens of this colony, to fish and navigate the same.
    3. That any river, creek, cove, &c., where the tide ebbs and flows, and which is capable of being navigated, is an arm of the sea. In this state, it is not necessary, that a stream should he navigated hy boats of any description, or that it should he of any particular width or depth, to come within the meaning of what our law terms an arm of the sea. If it is a stream where the tide ebbs and flows, capable of sustaining vessels of any description, with their lading, for purposes really useful to trade or agriculture, it is navigable water. 21 Pick., 344. 3 Met., 202.
    4. That the legislature of this state, not having, by any general law, delegated to the county commissioners, the power of determining when public convenience and necessity require that navigable streams shall be bridged, that tribunal has no power to authorize any such obstruction to be built; and the proceedings of that body, in laying out a road requiring such a bridge, are void.
    5. That no individual corporation or community could obstruct navigable waters, by the erection of a bridge over the same, except by a law of the legislature, authorizing the same to be done. Com. v. Charlestown, 1 Pick., 182.
    6. The county commissioner, w’ho was connected by marriage with, and a brother-in-law of one of the petitioners, was disqualified by such relationship. Stat. 1849, p. 220. The act of 1843 was repealed, in the edition of 1849.

      All the county commissioners must act: two can not act in the matter. Stat. 1849, pp. 422-429, 211.

      Lippitt and E. Perkins, for the defendant in error,
    contended, 1. That the public would not be injured, if the mouth of the cove were closed. The creek above the cove is the place for landing, and will be used, whether there be a bridge or not. There is no error therefore, if the cove is not now navigable, within the meaning of the law upon that subject. The finding of the court shows, that it is not essentially valuable for any purpose connected with trade or agriculture. Wethersfield v. Humphrey, 20 Conn. R., 227. Rowe v. Granite Bridge Co., 21 Pick., 347. Wadsworth v. Smith, 2 Fair., 278-281. Commonwealth v. Charlestown, 1 Pick., 180. If the cove be not navigable, within the principle of these cases, the commissioners could lay out a road across it. 3 Met., 202.
    2. The road is beneficial and not injurious to the public, and is therefore no nuisance. 5 U. S. Dig., 462. Pilcher v. Hart, 1 Hump., 524.
    3. The fact that Hull is related, as brother by marriage, to one of the petitioners, will not disqualify him, unless it be shown, that the petitioner had some private or special interest in the highway. Inhabitants of Wilbraham v. County Commissioners of Hampden, 11 Pick., 322. Even if such relationship be a disqualification, in the present case, it was waived. Quinebaug Bank v. Leavens and another, 20 Conn. R., 87. Crone v. Daniels, id., 331. Selleck v. Sug. Hol. Turnp. Co., 13 Conn. R., 453. Halleck v. Inhabitants of Franklin Co., 2 Metc., 558. Inhabitants of Ipswich v. County Commissioners of Essex, 10 Pick., 519.
   Ellsworth, J.

This is a writ of error, reserved for advice. The error complained of, is, that the county court accepted the report of county commissioners, laying out a highway, which passes through a cove or creek, setting in from the river Thames, where, at all times, the tide ebbs and flows. The plaintiffs insist, that this portion of the highway will interrupt commerce, and is contrary to the constitution of the United States, and acts of Congress, whose power is supreme, in regulating commerce in this creek. The plaintiffs further insist, that a highway has not been authorized, by the legislature of this state, through the cove, which, they say, is the least which can be required.

These objections, if true, are of the gravest character, and entirely decisive of the merits of the case. But we think, they are not true.

It is a familiar principle, that that commerce, which is rightfully regulated and protected by the acts of Congress, can not be essentially interrupted, even with the license of a state legislature. But it is an equally familiar principle, that not everything which relates to commerce, is a regulation of it; much less to foreign commerce, and that between the states, which is the only commerce to be regulated by Congress ; such as the deepening of rivers, making canals, railroads, turnpikes and the like. Nor is every charter which is designed to facilitate commercial intercourse on land or water, where a reasonable toll is allowed, for the expenditures incurred, a regulation of commerce.

Were it necessary, we should doubtless hold, that the commercial powers, originally vested in the states of the Union, so far, certainly, as relates to commerce within the limits of the states, remain unimpaired, except so far as the acts of Congress conflict with state laws. Here, however, there has been no regulation of Congress whatever; at the most, it could be claimed to be only an obstruction to it. But on the facts found, it is not an obstruction, and especially, to the commerce which may be regulated by Congress. So that it comes to be a case, where the state may act, according to its own views of expediency and propriety.

The question, where we are to draw the line between what is a regulation of foreign commerce, and commerce between the states, and a regulation of commerce within the states, has been repeatedly before the court of the United States, and has been decided, as we believe, in conformity with the views of this court, as expressed in the case of the Thames Bank v. Lovell, 18 Conn. R., 500. We especially refer to Wilson et al. v. Blackbird Creek Marsh Company; 2 Pet., 250, and the more recent case of Cooley v. Board of Wardens of Port of Philadelphia, 12 How., 300, where the pilot law of Pennsylvania was held to be within the* legislative power of the state, although it had a direct bearing upon commerce between the states and with foreign states. The distinctions laid down in the cases, between what is a regulation of commerce for federal purposes, and for local purposes, are, as it seems to us, well taken and unanswerably sustained.

In the case of Wilson et al. v. Blackbird Creek Marsh Company, 2 Pet., 250, this question came directly before the court. That was a company, incorporated to construct a dam over Blackbird Greek, in the state of Delaware, where the tide-ebbed and flowed, in order to drain the marsh, and, by that means, improve the health of the neighborhood. Marshal], C. J., in speaking of the structure of the dam, the drainage of the marshes, and the improvement of the health of the neighborhood, says: “Means calculated to produce the objects, provided they do not come into collision with the powers of the general government, are undoubtedly within those which are reserved in the states. But the measure, authorized by this act, stops- a navigable, creek, and,must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it comes in conflict with the constitution, or a law of the United States, is an affair between the government of Delaware and its citizens, of which this court can take no cognizance.” And he observes, “If Congress had passed any act which bore upon the case, any act in execution of the power to regulate commerce, the object of which was to control state legislation over those small navigable creeks into which the tide flows, &c., we should feel not much difficulty in saying, that a state law, coming in conflict with such act, would be void. But Congress has passed no such act. The repugnance of the law of Delaware to the constitution, is placed entirely on its repugnance to the power to regulate commerce with foreign nations, and among the states; a power which has not been so exercised as to affect the question.” Judge McLean, speaking of this case, in giving his opinion, in Smith v. Turner, and in Norris v. The City of Boston, 7 How., says: “This creek was admitted to be navigable, but of so limited an extent, that it might well be doubted, whether the general regulation of commerce would apply to it.” He says: “hundreds of creeks, within the flow of the tide, are similarly situated. In such cases, involving doubts whether the jurisdiction may not be exclusively exercised by the state, it is politic and proper in the judicial power, to follow the action of Congress. Over the navigable waters of a state, Congress can exercise no commercial power, except as regards an intercourse with other states of the Union, or foreign countries. And, doubtlesaj there are many creeks made navigable by the flowing of the tide, or by the back water from large rivers, which the general phraseology of an act to regulate commerce may not embrace. In all such cases, and many others that may be found to exist, the court could not safely exercise a jurisdiction, not expressly sanctioned by Congress. The construction of this dam was not complained of, as a regulation of commerce, but as an obstruction to it, and the court held, that, as Congress had not assumed to control state legislation over those small navigable creeks, into which the tide flows, the judicial power could not do so. The act of the state was an internal and police power, to guard the health of its citizens. By the erection of the dam, commerce could only be affected consequentially and contingently, as charged. The state neither assumed nor exercised a commercial power. In the whole case, nothing else is found, than a forbearance to exercise power over a doubtful- object, which should ever characterize the judicial branch of the government.”

The case before us is not materially different from Wethersfield & Glastenbury v. Humphrey et al., 20 Conn. R., 218, where we held, that a creek setting back from the Connecticut River, was not navigable water, within.the meaning of the constitution of the United States. If the case now in question is of that character, and we think it is, the argument of the plaintiffs’ counsel is arrested in limine. There is no national commerce to be regulated or impeded, and the supposed nuisance will produce no essential injury.

Quite too much importance has been given to the supposed commercial character of this cove. It is time the public should understand, that not every ditch, in which the tide ebbs and flows, through the extensive salt marshes along the coast, and which serve to admit -and drain off the salt water from the marshes, can be considered a navigable stream. Nor is every small creek, in which a fishing skiff or gunning canoe can be made to float, deemed navigable ; but in order to have this character, it must be navigable for some general purpose, useful to trade or business.

The county court find, “ that the said cove is not now navigable for any useful purpose, connected with trade or agriculture, excepting perhaps by scows or other flat-bottomed vessels; and that the passage of such vessels up and down said cove, from and to the river Thames, would not be materially obstructed or affected, by a bridge, placed across the mouth of said'cove, on the line of said highway.” The court does find, that “ a bridge across said cove, at or near its mouth, would prevent the navigation of said-cove, by vessels with masts, but would not thereby interrupt commerce carried on with foreign nations, or between this state and any of the United States; nor would said bridge be an essential obstruction to the navigation of said cove, by that class of vessels which has generally been used for the purpose of taking wood and timber from said cove, and landing sea-weed upon its shores.”

Upon these facts, we are satisfied, that no useful commerce of the country will be obstructed, if there shall be, as there doubtless will be, a suitable bridge placed in the structure of the road. There can be no objection, unless it is unlawful, of course, for commissioners, under the general statute, to lay out a highway through a creek in any degree navigablé, or in which the tide regularly ebbs and flows ; which is the second point made.

Any such doctrine would prevent selectmen, or county commissioners, from building causeways and bridges through or over salt marshes and creeks, wherever there is water enough to float a scow, or a canoe, or from wharfing out into deeper navigable waters, to the great advantage of commerce. The common law of this state is certainly otherwise.

We attach no particular importance to the fact, that the bed of such a flow of water is not private property; for, whether it be public or private, such waters are natural highways for the people, and in them, if public, all may fish at their pleasure ; and, beyond the preservation of these rights, there is no necessity or propriety in interfering with private enterprises, or public improvements. Hundreds of instances of the kind exist along our sea-board, showing what has ever been understood to be our law.. Were it otherwise, it would follow, that the numerous roads and bridges over private but navigable waters of the state, or over the inlets and coves and marshes along the sea-shore from Greenwich to S-toningfon, or wharves extending into deep water, would become public nuisances, to be destroyed by any one, with impunity, although they might be of the greatest benefit to the commercial intercourse of the people. These views are fully sustained in the first Sw. Dig., 109; East Haven v. Hemingway, 7 Conn. R., 203; Nichols v. Lewis, 15 Conn. R., 137; Wethersfield & Glastenbury v. Humphrey et al., 20 Conn. R., 222; and many other cases of like import.

We are aware, it has been held, in several cases in Massachusetts, that, where a river, inlet or cove is an arm of the sea, capable of being navigated, for valuable commerce, county commissioners, (whose duty there it is to lay out necessary highways,) are not authorized by the statute law, to license the building of bridges over, or oí highways through, or across them. The reason assigned is, that the river, inlet or cove, being already a highway, can not be destroyed or injured, by the making of another highway, by said commissioners. Those cases hold, that special authority must be obtained from the legislature. This reasoning we do not fully appreciate, or more properly, we are not possessed of adequate information to decide upon. We know not what is the peculiar language of their statute,— what powers are delegated to commissioners, and what are reserved to the legislature. Besides, the construction put upon a statute of that state, though it be on the same general subject, gives us but little aid, in construing a statute of our own. Nor are we satisfied, that this limitation has not its origin in their ancient colonial laws, or in some peculiar usage. Indeed, something of this kind is inferable from the fact, that in Commonwealth v. Charlestown, 1 Pick., 180, Parker, C. J., in giving the opinion of the court, says: “ Among the earliest acts of0 legislation, was an exercise of sovereignty, with respect to the shore or flats of coves, creeks &c., which abounded all over the sea-coast. By the common law, it has been seen, that he, to whom a house-lot was granted, bounded upon the sea, would be the proprietor, only, so far as high-water-mark. The desire and necessity of wharves, quays or piers was soon felt by individuals and the community, and the occupation of flats became indispensable. The government, then, to encourage these objects and prevent disputes and litigations, transferred its property in the shore of all creeks, coves and other places upon the salt water, where the sea ebbs and flows, giving the proprietor of the land adjoining, the property of the soil, to low-water-mark, where the sea does not ebb above one hundred rods. This was a grant of so much of the shore as would be contained within the exterior lines, of the upland lot, extended from high-water-mark to low-water-mark, provided it did not extend more than one hundred rods. Ancient Charters, &c., 148.”

But, whatever may be the law of their courts, in a case where there is, according to their views, a material and valuable commerce to be preserved, (and which we, think, they would not hold of the commerce in this cove,) we must decide this case for ourselves, according to our own view of the facts and the interpretation of our own laws. And we hold, that there is not, in this instance, any navigation which will be seriously obstructed, and certainly none which will not be secured by a suitable bridge. We have no doubts, that under our statute, county commissioners are fully authorized to lay out highways, with necessary bridges, and to discontinue them, whenever they become useless, and in doing this, if necessary, may pass over existing highways, whether they be coves, creeks, marshes or highways already existing. Certainly the legislature have this power, and they have, for the best of reasons, delegated it to the commissioners, who are but agents of the public law, a standing committee of the legislature, to make personal observation and careful inquiry, and to see that necessary roads are established, and unnecessary ones discontinued.

Another question is made, whether one of the two commissioners, who surveyed and laid out the road, was not disqualified; and if so, then it is said, there was but one commissioner who approved of the highway; which is not enough. Undoubtedly two of three commissioners can survey and lay out a highway, if all have had due notice to be present, this being the rule in relation to public agents. Here all had notice, and the question therefore is, was Mr. Hull disqualified l If he was, the highway was not legally laid out, and the report should not have been accepted.

- Hull, it is said, was disqualified, because he was a brother-in-law of William Browning, one of the petitioners. It will be observed, the objection is ■ altogether personal, and not that he was not a commissioner, duly appointed and qualified generally, or in this case, if it was not for this objection.

We do not stop to inquire, whether Browning was a litigant party, so that, by reason of relationship, he was within the statute of judicial disqualification. The plaintiffs insist that he was not, for he had only united with others, to ask that a certain public duty might be performed, and therefore, bore the character more of an agent'of the public,’than of a party in a civil action. See, on this subject, Wilbraham v. County Commissioners, 11 Pick., 322. And they say as to any interests in costs, these were contingent and hypothetical. But, we pass over these things, because we are satisfied, that, on two grounds, the objection can not be sustained. First, because’ the commissioner was not a judge; and secondly, if he was, the objection was one which could be waived and actually was waived.

We hold that these commissioners are not judges, within the statute relating to “ Courts,” but are rather to be held to be a legislative committee, taking the place of committees, formerly appointed upon each application for a new highwáy, whose business it is, to report facts to the court for judicial action, rather than to act judicially themselves. They are nowhere called judges, and they perform very few duties which partake of a judicial character. Their duties, as prescribed by statute, are to take care of the property of the county, to sell and purchase property for the county, to license persons to keep the jail, to remove deputy sheriffs, to recover possession of the lands of the county, by summary process, to attend to laying, and collecting county taxes, to report to the county court when new highways are necessary and old ones unnecessary, to administer oaths to poor debtors, to act with commissioners on turnpike roads, in changing the location of toll gates, to direct the sale of personal property under attachment, to sit with a justice of the peace, in cases of forcible entry and detainer, and, in certain cases, to order the giving of notice. With one exception, these duties are administrative, and not judicial; and that exception is, sitting with a justice of the peace, in cases of forcible entry and detainer. And, excepting this, they never proceed as a court, trying civil causes. There are no litigant parties before them, no fixed rules of procedure or evidence, no bills of exception, or judgments which can be reviewed by writ of error, or certiorari. In the case of Wethersfield & Glastenbury v. Humphrey et al., we held, that they were not confined to' any certain evidence and modes of trial, but might hear the parties themselves, and everybody else, and receive any satisfactory evidence, or act from their own knowledge and observation. We see not how these commissioners essentially differ from commissioners on bridges, ferries, sewers, or turnpike roads, or fence viewers or committees of courts, or selectmen; and these are certainly not judges, though they are required to exercise sound judgment. Would any individual, in any of the foregoing classes, be-ab'solutely disqualified-from acting, because of a relationship to a person who might be affected by the decision, as for instance, a commissioner on turnpike roads ? Hence we say, these county commissioners, in this act, were not judges, but administrative agents of the legislature.

It is said that, in the cases of Stoddard v. Moultrop, 9 Conn. R., 502, and English v. Smith, 13 Conn. R., 225, we have decided, that commissioners on insolvent'estates exercise a judicial power and are within the spirit of the act of judicial disqualification of judges ; and it was therefore held, that one of the commissioners was not a disinterested and judicious person. The reasons for this application of the statute were given at length, by the chief justice, where he dwelt upon the features of the case, which distinguish and characterize the power of the commissioner, as possessing a judicial character. We are not disposed, nor have we occasion, to call in question the conclusion to which the court came in those cases, because wé are satisfied, if commissioner Hull was disqualified, within the spirit of the act, the obligation could be waived, otherwise than by a writing, as it can be, in the case of a juror or auditor; though, in the case of commissioners on insolvent estates, the objection can not perhaps be waived, not because of its nature or the language of the statute, but because of the situation of the case, there being so many parties, as creditors, heirs and devisees : this is the reason why we w'ould not disturb those decisions. There was no waiver, and probably could be none, within the statute.

But if it be true, that commissioners, in laying out a highway, and other commissioners above alluded to, in discharging their public duties, exercise powers of a judicial character, the reason above mentioned, viz., that there can be a waiver in most cases, is a perfect answer to the objection in this case. The argument is this: the commissioner is a judge, and therefore, by the statute 1849, p. 220, was disqualified, and so could not act in that character, as there was no written waiver. This is quite a non sequitur, even if the first part of the proposition be admitted to be true. The statute, in every section of it, relates to courts. The title of the act is, Of certain general provisions respecting courts.” The first section provides how judges of the supreme court, of the county courts, of probate courts and justices of the peace, shall be appointed. The second section provides at what time those who are annually elected shall cease to act; and the third section provides that they shall not hold the office of sheriff, deputy sheriff, or constable. Thus far, none but the judges of these courts and justices of the peace are spoken of,—certainly not commissioners on bridges, on ferries, on sewers or turnpike roads, or selectmen, or committees of courts, or fence viewers, or auditors, or jurors, or appraisers of land on execution, or arbitrators, or county commissioners. None of them constitute a court, and none of them are judges, in common parlance. To hold otherwise, and apply to them or their acts the judicial disqualification mentioned in the next section of the statute, would produce great confusion and alarm. Suppose one of them to be a sheriff, or a sheriff’s deputy, or a constable: then he would forfeit his office; for, by the third section already recited, a judge can not hold these executive offices. We come next to the fourth section of> the act, and here the language is clear and precise. “ Wherever there shall be so near a relationship between any judge or justice of the peace, and any party in a civil action, &c.” Who can mistake the person pointed out, and the occasion, and the place? It is a court. And then, at the close of this section we find, “ In all such actions the said judge or justice shall be disqualified to act as judge, or render judgment.”

We do not deny, that the statute, in the fourth section, does incapacitate these judges and trustees, unless the objection is waived in writing; but we suppose this specific kind of waiver applies only to the judges and justices sitting in court. In court, the statute directs that the writing shall be executed and preserved. Here is the important point, allowing that this fourth section is, in spirit, to be applied to all the classes of persons herein before enumerated. The written waiver is not the exclusive mode and means of waiver. It may be, in courts,' where civil actions are tried and determined; but when we come to the various classes of public agents, to whom the spirit of the law is only applied, it is impossible to have a written waiver, and none such was intended. Who are the parties to sign such a writing, in settling an insolvent estate ? But, to put an end to the question, we have decided that a written waiver is not essential. In the case of Quinebaug Bank v. Leavens, 20 Conn. R., 87, we decided, that an objection to a juror, on the ground of relationship, (and he is within the spirit of the statute,) did not require a written waiver; and the same in the case of Crone v. Daniels, same volume, p. 331, and the like in Selleck v. Sugar Hollow Turnpike Co., 13 Conn. R., 453, as to auditors. In all these cases, it was decided, that there could be a waiver by matter in pais. The same doctrine is held in Hallock v. County of Franklin, 2 Met., 559, as to a county commissioner ; Howland v. Gifford, 1 Pick., 43, note; Merrill v. Inhabitants of Berkshire, 11 Pick., 269 ; and Fox v. Hazleton, 10 Pick., 275. And we should now perhaps hold that there might be a waiver of a personal objection, by estoppel at least, in case of an appraiser of land on execution, notwithstanding the case of Tweedy v. Picket, 1 Day, 109, where, one of the freeholders, a relative of the creditor, was appointed, by the justice, without the consent or knowledge of the debtor, and where, of course, the question of waiver of a mere personal objection did not arise. The same is true of Fox v. Hills, 1 Conn. R., 295, which was a similar case. Nor did any question of waiver arise in the before cited cases of Stoddard v. Moulthrop and English v. Smith. Nor do we know of any cases where the question has arisen, unless it be Mitchell v. Kirtland, 7 Conn. R., 229, where it might have been, but was not raised; for it is there found, after each of the parties had appointed an appraiser, that the third appraiser, who was appointed by the agreement and concurrent act of both parties, was the tenant of the debtor in the execution. The claim of waiver was not made on the trial, and had it been, on principle, certainly it should not have prevailed; and if a similar case should arise again, we trust it would not, under the more liberal exposition of the law in subsequent cases. This decision, too, was only following up Chapman v. Griffin, 1 Root, 196; and there the question was not made. It appears that' three appraisers were agreed upon by the parties, all of whom were qualified!, except that one of them did not live within the limits of the town. The court allowed the debtor, after the land was set off to him, to go back, and object to the title on that ground. This may be law, but it does not accord with our sense of justice and propriety. It is not good sense, at all events, nor in harmony with more modern decisions: the debtor should have been estopped. See Cowles v. Bacon, decided on the present circuit. Brown v. Wheeler, 17 Conn. R., 346. Roe v. Jerome, 18 Conn. R., 138. Bushnell v. Church, 15 Conn. R., 419. Whitaker v. Williams, 20 Conn. R., 98, 101, 527. Pickard v. Sears et al., 33 English Common Law Reports, 115. Gosling v. Birnie, 20 id., 153. Heane v. Rogers et al., 17 id., 449. Gregg v. Wells, 37 id., 54. Welland Canal v. Hathaway, 8 Wend., 480. Davidson v. Franklin, 20 English Common Law R., 363. East Haddam Bank v. Shailor, 20 Conn. R., 18.

At this day, few men would be bold enough to contend, that a litigant party in a court of justice, would receive favor, who, having knowledge of a personal objection to a juror, auditor, ^committee-man, or commissioner, does not take exception on that ground, but prefers to take the chance of a favorable result, and, when disappointed, goes back and sets up the objection, even though it be a relationship to himself. In Tweedy v. Picket and Fox v. Hills, and Stoddard v. Moulthrop, there had been no opportunity to waive the objections ; which in our view, is quite material.

In the language of Shaw, Ch. J.: “A party litigant, knowing of matter of personal exception to a juror, lies by, taking his chance of a favorable verdict: if, when that verdict is against him, he could go back and' take the exception, it would work great injustice. By consenting to go on, with a knowledge of the exception, he consents to abide the result, either favorable or unfavorable.” The same remarks are made, in relation to a commissioner, in 10 Pick., 519.

We need not remark, that relationship is no legal disqualification to a judge, at common law; and that, if, in this case, the disabling clause of the statute does not extend to this commissioner, or if it does, and the mode of waiving the objection is not exclusively that pointed out in the statute, he was competent to act, and the proceedings were entirely regular.

It will be observed, we have said nothing of the evidence of the waiver in fact; we have thought it too clear to require any comments.

We advise that there is no error.

In this opinion, the other judges concurred.

Judgment affirmed.