text:
    Camp vs. Martin.
    Words spoken of a physician, charging him merely with ignorance or misconduct, in the treatment of a particular case, are not actionable in themselves; but they become so, if, in addition, they convey* the charge of general professional ignorance or incompetency, or want of integrity.
    Where, however, special damage, arising from the speaking of such words, is alleged and proved, they become actionable.
    In an action of slander, the declaration, after alleging that the plaintiff, as a practicing physician, had visited and prescribed for Sarah M., averred that the defendant falsely and maliciously said of the plaintiff, that his treatment of her was rascally,—but contained no averment, which varied the ordinary and popular meaning of these words, or showed the particular circumstances under which they were uttered, and no special damage was alleged: held, that such declaration was insufficient.
    The case of Sumner v. Utley, 7 Conn. R., 257, commented on, and shown to be reconcilable with the above principles.
    The plaintiff, who was a physician, brought his^action of slander, against the defendant, which was tried at the term of the superior court holden at Litchfield, in November, 1853.
    The declaration contained two counts. In the first, the plaintiff averred that the defendant, falsely, wickedly and maliciously, spoke, of and concerning the plaintiff, in his profession of a physician, and of and concerning his treatment, and professional attendance, the false, scandalous and malicious words following, viz.: “ If Dr. C. had continued to treat her, she would have been in her grave before this time; his treatment of her was rascally;” meaning, “that the plaintiff’s professional treatment to the said Sarah M. was such that, had it been continued, it would have 'caused her death prematurely, from the ignorance, corruption and unskillfulness of the plaintiff.”
    The alleged slanderous words in the second count were, “Your treatment of her was rascally;” with an innuendo that “ the defendant meant to charge the plaintiff with being guilty of base, dishonest, and vile conduct towards the said Sarah M. in his treatment of her, as her physician aforesaid, and that the plaintiff was a low, vile person, and unworthy of public confidence.”
    The declaration then averred, that the plaintiff was thereby greatly injured in his good name, credit, and reputation, as such physician, and otherwise, and brought into public scandal, infamy, disgrace, contempt and ridicule; and, by reason of the committing of the said grievances by the defendant, divers persons, from thence, wholly refused to have any transaction, acquaintance or discourse with the plaintiff, as they were before used and accustomed to have, and otherwise would have had; and the plaintiff was, by means of the premises, greatly injured in his said profession and business, and otherwise;. all of which, &c.
    The defendant pleaded the general issue, with notice.
    The jury having rendered a verdict in favor of the plaintiff, the defendant moved for an arrest of judgment, for the insufficiency of the declaration; and also moved for a new trial, for a misdirection of the jury. But, as the case was decided on the questions arising on the motion in arrest, a detail of the facts upon which the latter motion was founded, is unnecessary.

      J. H. Hubbard and Sedgwick, in support of the motion in arrest, contended,
    1. That the declaration was insufficient to uphold the verdict, inasmuch as it contained no averment of any special damages. The law permits a physician to recover damages, for words falsely published, in derogation of his general reputation as a practitioner, without proof of special damages on the ground that some damage must necessarily accrue in such case. But, for a misrepresentation of his practice in a particular case, he may recover such special damage as he can prove he has sustained, provided he lays the foundation for it, by an appropriate averment in his declaration. The words alleged in the plaintiff’s declaration are limited, by the innuendo, to a particular case, and no extrinsic circumstance is stated, to authorize their application to the general reputation of the plaintiff. Vanvecher v. Hopkins, 5 Johns. R., 211, 223. Foot v. Brown, 8 Johns. R., 64. Poe v. Mondford, Cro. Eliz., 620. Frieze v. Linder, 3 Bos. & P., 372. Mix v. Woodward, 12 Conn. R., 262. Sumner v. Utley, 7 Conn. R., 257..
    2. That the principle contended for by the defendant, was not within the ruling of the majority of the court, in the case of Sumner v. Utley, 7 Conn. R., 257, where several acts of gross and willful malpractice were charged upon the plaintiff, in distinct instances, from which the court could see, that damages must necessarily result. The words in the plaintiff’s declaration may have had an innocent meaning, and have been used, by the speaker, in reference to a system of practice, or mode of treatment. No ignorance, unskillfulness, or specific act of malpractice, is imputed to the plaintiff thereby ; and they do not import such scandal as will justify a verdict for the plaintiff, in the absence of injury.

      Hollister and Graves, contra, contended,
    1. That it was not necessary to allege, or prove, special damage, to entitle the plaintiff to recover. This can not be done without great difficulty, and the law holds men responsible,, for the reasonable and natural effect that ordinarily follows, and may be expected to follow, from any malicious conduct. Our supreme court has recently settled this question, in the case of Sumner v. Utley, 7 Conn. R., 257.
    2. That the slander, as proved and charged in the declaration, discloses (in connection with other evidence in the case) a purpose of the defendant, to break down the professional character of a physician, from wicked motives. The charges come clearly within the rule, as established by the court, in Sumner v. Utley.

   Storrs, J.

The question, on the motion in arrest of judgment in this case, is, whether the declaration is sufficient, and that depends on the question, whether the words alleged to have been spoken by the defendant, fall within the rule which renders words actionable, that tend to the prejudice of a person, in his profession, trade, or business. No special damage to the plaintiff is1 alleged in the declaration, and the enquiry therefore is, whether the words laid are actionable, in themselves.

On an examination of the authorities, we think it is clear, that, to' charge a physician merely with mismanagement in the treatment of a particular case, is not, of itself, actionable. Such a charge implies nothing more than ignorance or unskillfulness in that case, and does not materially affect his reputation, as it respects his .general competency to practice in his profession. The most eminent physician may mistake the symptoms or treatment of a particular case, without detracting from his general professional skill or learning. To say of him, therefore, that he was mistaken in that case, would not be calculated to impair the confidence of the community in his general professional competency. In the language of the supreme court of New York, in Foot v. Brown, 8 Johns. R., 64, “ To carry the right of action so far as to sustain a suit for words, charging a professional man with ignorance in a particular case, “would be unnecessary for the protection of any profession, and would be an unreasonable check upon the freedom of discussion.” In that case, the court say, that there is not an instance, in the books which they have met with, of a suit sustained for such a charge. Our investigation has led us to the same conclusion. It has, however, been strenuously urged, by the plaintiff’s counsel, that the rule on this subject was extended in the case of Sumner v. Utley, 7 Conn. R., 257, so as to render a charge of ignorance or unskillfulness in a particular case, actionable. We think that the court, in that case, so far from varying the rule, as we have given it, clearly intended to sanction it; and that that case was decided for the plaintiff, not on the ground, that the words charged imputed to him merely ignorance or a want of skill, in the particular case respecting which they were spoken, but that, by a fair construction of them, they amounted to an imputation upon him, of a want of general professional knowledge and skill. That a charge of the latter description would be, in itself, actionable, there was not any question. The division between the members of the court did not arise from any difference of opinion, as to the principles of the law of slander, but only as to the application of those principles to the words laid in that' case. The question on which they differed was, whether the words there charged, imputed to the plaintiff general incompetency, or only ignorance or unskillfulness, in the particular case alluded to. All the judges admitted, that the words were actionable, or not, according as they did, or did not, impute to the plaintiff, ignorance or incompetency generally, in his profession. The dissenting judge thought, that they did not amount to such an imputation, and on this point only, differed from the majority of the court. That there was no diversity of opinion, as to the legal principles applicable to the case, is quite obvious, from the language of Hosmer, C. J., in expressing the opinion of the court. He says, “ I readily admit, that falsehood may, be spoken of a ph'ysician’s practice in a particular case, ascribing to Mm only such want of information and good management as is compatible with great general knowledge and skill in his profession, and that, when such a case arises, unless some special damage exists, his character will be considered as unhurt, and no damages will be presumed. But, on the other hand, it is indisputably clear, that a calumnious report concerning a physician, in a particular case, may imply gross ignorance and unskillfulness, and do him irreparable damage. A physician may mistake the symptoms of a patient, or may misjudge as to the nature of his disease, and even as to the power of a medicine; and yet his error may- be of that pardonable kind, that will do him no essential prejudice, because it is rather a proof of human imperfection, than of culpable ignorance or unskillfulness. On the contrary, a single act or omission of his, may evince gross ignorance, and such a deficiency of skill, as will not fail to injure his reputation, and deprive him of general confidence.” And, after noticing the cases cited by the defendant’s counsel, he examines the words charged to have been spoken by the defendant, and shows that, in their fair import, they impute to the plaintiff, such monstrous and culpable ignorance and mismanagement, that every person of sense and reflection, who should believe the imputations cast upon him, would consider him generally as a. man of ignorance and unskillfulness, and unworthy of confidence, and not merely, that there was that w;ant of knowledge or skill which would arise from the common imperfections of humanity. ¥e think,’ therefore, that no new principle is established, in that case, and that the court meant only to decide that, while words imputing to a physician merely professional ignorance or mismanagement in a particular case, are not actionable in themselves, they become so, if, in addition to that, they convey the charge of general professional ignorance or ineompeteney.

The declaration in this case, after alleging, that the plaintiff was a practicing physician, and, as such, had been called to, and visited and prescribed for, Sarah M., states that the words laid were, by the defendant, falsely and maliciously spoken, of and concerning the plaintiff, and his professional treatment in her case, and they must be deemed to have been so spoken. If, however, those words are not in themselves actionable, it is obviously immaterial, that they were spoken falsely and maliciously, since their falsity, or the motive with which they were uttered, would not, in that case, make them slanderous, and there is no averment of any special damage, to render them so. It does not appear, from the declaration, that the words were spoken with any meaning, which was peculiar or different from their ordinary signification. The innuendo in the first count does indeed state that, by the expression of the defendant, that the plaintiff’s treatment of the person mentioned was rascally, the defendant meant, that the plaintiff’s treatment of her was such that, if it had been continued, it would have caused her death prematurely, from the ignorance, corruption and unskillfulness of the plaintiff; and, in the second count, that, by that expression he meant, that the plaintiff was guilty of base, dishonest and vile conduct towards her in his treatment of her, as her physician, and that the plaintiff’ was a low, vile person, and unworthy of public confidence. But it is well settled, that the meaning of the words laid can not be extended by the innuendo, the office of which is merely explanatory of those words. Looldng then, as we must, at the words laid in the first count, in their ordinary signification, we áre of opinion, that it appears, that they were spoken only with reference to the particular case in which it is stated the plaintiff was employed, and that they do not necessarily, naturally or fairly, impute to him general ignorance or unskillfulness, or corruption, or a want of integrity, either, generally or in the treatment of that case. But for the last expression of the defendant, that the plaintiff’s treatment of the said Sarah M. was rascally, it would not be susceptible of a doubt, that the words laid conveyed no imputation on the plaintiff, not compatible with his being a practitioner of skill and learning generally, and perfect integrity. That expression, as connected with the previous words, certainly implies, that there was mismanagement of some kind, on the part of the plaintiff, in the treatment of that case. But it does not appear, from the language used, or any averment in the declaration, what constituted that mismanagement, or whether it consisted of negligence or inattention to his patient, in that case, or of some other conduct, which would indicate a want of integrity or general capacity. If the words spoken imputed to the plaintiff the former only, they would not, in our opinion, be slanderous; and we do not think that we should be warranted in giving them a more extended meaning. With respect to the second count, the words laid therein consist merely of the single expression above recited; and the considerations to which we have adverted, in regard to that expression, as constituting a part of the words laid in the first count, are applicable to this count, and show that the words laid in it are not in themselves slanderous.

The declaration being insufficient, it is unnecessary to consider the questions arising on the motion for a new trial.

The superior court is advised, that the judgment should be arrested.

In this opinion the other judges concurred, except Waite, J., who was absent, and Ellsworth, J., who tried the cause in the court below, and was disqualified.

Judgment arrested.


source: Caselaw Access Project

author: Church, C. J.

license: Public Domain

text:
    Richardson and another vs. Monson and others.
    The act, which authorizes the superior court as a court of equity to order a sale of any real estate, and of any rights existing in, or issuing out of, the same, held in joint tenancy, tenancy in common, or coparcenary, and to distribute the proceeds, (Stat. 1853, c. 58,) is a constitutional act.
    On. a bill for that purpose, such court may order the sale of an ore bed, and a distribution of the proceeds thereof, among the tenants in common, owning the same, in conformity with such act.
    This was a bill brought to the superior court for the county of Litchfield, by Leonard Richardson and William H. Barnum, alleging, that they were tenants, in fee simple and in common, with the defendants, of a certain ore bed, called the Davis Ore Bed, situated in the town of Salisbury, together with the privilege of digging and carrying away the ore from said bed.
    The rights and interests of a portion of the defendants were alleged to be subject to a lease, in writing, to the defendants, dated January 1, 1851, whereby it was agreed, that the latter should hold and occupy said land and ore bed, for the term of four years from the date thereof. The bill averred, that said rights were incapable of partition; that, although the owners -had attempted to enjoy said property jointly, yet great difficulties, embarrassments and quarrels had arisen in such joint occupation; and that a sale thereof would promote the interest of all parties. The plaintiffs, therefore, prayed the court to make sale of the interests of all parties in said property, and, by an order of the court, to distribute the money arising from such sale, among the several persons interested in said estate, in proportion to their several interests therein, in conformity with the statute passed in 1853, which authorizes the superior court, upon the petition of any person interested, to order the sale of any real estate, and if any rights, corporeal or incorporeal, existing in, or issuing-out of, the same, held in joint tenancy, tenancy in common, or coparcenary, to order a sale of the same, and a distribution of the proceeds, among all persons interested in the estate, in proportion to their interest, whenever a sale will, in the opinion of the court, better promote the interests of all parties, than a partition, and whenever the property can not be conveniently occupied in common.
    To this bill the defendants demurred, and the questions thereon' arising were reserved for the advice of this court.

      Chapman and T. H. Hubbard, in support of the demurrer, contended,
    1. That the plaintiffs’ bill was insufficient, because the act of 1853 can not have a retrospective operation. The right of the defendants, to have and enjoy their mine, and to have partition of it, is a vested right, and it would be unjust to deprive them of this right. It was the intention of the legislature, that the act should have a prospective operation only. 14 Conn. R., 339. Dash v. Van Kleeck, 7 Johns. R., 777. Bridgeport v. Hubbell, 5 Conn. R., 243. Starr v. Pease, 8 Conn. R., 545. Goshen v. Stonington, 4 Conn. R., 210.
    2. That the act was unconstitutional and void, because it impairs the obligation of contracts, and also authorizes the taking of property from one person, and vesting it in another, when the owner has been guilty of no default. It is calculated to defeat the very contracts disclosed by the bill itself, and it authorizes the substitution of one kind of property for another, against the will of the owner. Reynolds v. Reynolds, 15 Conn. R., 85. 20 Conn. R., 474. Osborn v. Humphrey, 7 Conn. R. 335. 2 Peters, 658. 2 Johns. Ch. R., 162. 2 Kent Com., 327, 328.

      Warner and Woodruff, contra, contended, °
    1. That the act of the legislature, upon which the plaintiffs rely, is constitutional, and that any act of the legislature, not manifestly inconsistent with justice, if not prohibited by the constitution of this state, or the constitution of the United States, is valid. Starr v. Pease, 8 Conn. R., 548. Pratt v.
      Allen, 13 Conn. R., 119. Clark v. Saybrook, 21 Conn. R., 312.
    2. That the act does not deprive the defendants of their property, but authorizes an enforcement of a right to a partition, which is in danger of being defeated. So far as the defendants’ title is interfered with, it is by due process of law, as is the case when a minor’s land, sold by order of a court of probate, or the property of insane persons, is sold by order of the General Assembly..
    3. That the validity of an act of the legislature will be presumed, unless its unconstitutionality is so obvious as to admit of no doubt. State v. Cooper, 5 Black., 258. A similar statute has existed and been regarded as constitutional, in the state of New York, since the year 1811. And in Ohio, a statute authorizing a sale of land owned by several devisees.
    4. That the act is just and reasonable, and not retrospective in its operation.
   Church, C. J.

The plaintiffs allege, in their bill, that j they, together with the defendants, are tenants in common of ¡certain rights of digging, raising and carrying away iron ore .from the Davis ore bed in Salisbury; that they are disturbed in the exercise of this right, by the improper interference of some of the defendants, by reason of which they are deprived of the enjoyment of their common property. They pray for a partition, by a sale of the premises, according to the provisions of the statute of 1853, entitled “ an act in addition to an act for the regulation of proceedings in equity.” This act authorizes a sale, by an order of a court of equity, of real estate, and of any rights, corporeal or incorporeal, existing or growing out of the same, which are held in joint tenancy, tenancy in common, or coparcenary; whenever partition can not conveniently be made in any other way, and directs a distribution of the avails among the tenants, in proportion to their respective rights.

The bill is demurred to, and the facts alleged are admitted to be true.

The grounds of demurrer are, that the statute is unconstitutional ; or at least, has an unconstitutional effect upon the rights of these defendants.

It is claimed, that it authorizes the court, upon the application of one or more tenants in common, and representing, as in this case, a small minority of interest, to compel the sale of the rights of all others, depriving them, in invitmi, of their property, merely to accommodate others, and without reference to the public interests. There may be extreme hardship in this, but is it therefore unconstitutional ?

The statute in question does not profess to deprive any one of any interest in his property, but only to afford a reasonable remedy for its enjoyment, by partition.

The right of partition is incident to all real estate holden in common, whether corporeal or incorporeal, and especially whenever it can not be otherwise enjoyed. The right of beneficial enjoyment of property is as essential as the right of ownership. And, indeed, by the principles of the common law, recognized by stat. 31 apd 32, Hen. VIII., this right of partition enters into the very nature of the title of estates holden in common, and is inseparable from them. The only question is, how can it best be made ?

The statute giving the power of sale introduces, as we think, no new principle; it provides only for an emergency, when a division cannot be well made, in any other way. The Earl of Clarendon v. Hornby, 1 P. Wms., 446. 4 Kent’s Com., 365.

A partition of joint estates, made by a writ of partition, at common law, or as provided by statutes, operates to divest one tenant of his interest in some part of the joint or common estate, and vest it solely in another. The tenants are seized per my, or per my et per tout,—this seizin is, by partition, destroyed, as much as in a case like the present.

It is said, that this common right is incapable of assessment or valuation; that its essential value is beneath the ground, and beyond the inspection and judgment of men. This may be true, and yet it presents no constitutional objection to the law; nor indeed any greater difficulty, than if the same rights were to be appraised upon execution against one or all of the tenants.

The instances are common, wherein it becomes necessary to cause the sale of real estate, without the concurrence or consent of the proprietor; and statutes authorizing this are to be found in every state; as in the cases of the sale of minors’ land, and the lands of idiots, lunatics and persons under conservators and guardianship. No constitutional objections to any such statutes have ever been urged.

But it is further claimed, that this statute is retroactive, and subversive of the great principles of moral right, and is therefore unconstitutional.

If this were, in fact, a retroactive law, it would not, for such cause, be an unconstitutional one. And for the reasons to which we have before adverted, we do not discover in it any of those features of injustice, which should characterize it, as destroying vested rights, or as being otherwise destructive of the fundamental principles of the rights of property, secured by the constitution.

But this statute is not retroactive, within the legal import of that term. It is purely a remedial law, acting upon existing rights, and providing a remedy ;for existing evils ; disturbing no titles.

The bill avers, that the right or claim of Landon & Co., who are some of the defendants, as the plaintiffs suppose, is derived, as lessees under Forbes Monson, one of the tenants in common; and therefore the further claim of the- plaintiffs is, that the effect of the statue referred to, if enforced in this case, will be, to destroy this right under the lease, and impair the obligation of this contract.

The object of the statute in question is only to provide a reasonable remedy for joint owners of real estate, and has no reference to contracts, even remotely. Many laws affect contracts incidentally, and are not, for such cause, to be treated as unconstitutional; such as embargo laws, commercial regulations in general, revenue laws, &c.

But we can not know, at this time, how Landon & Co’s lease will be affected by a sale of the property in question: Monson may become the purchaser, and confirm the lease; or the court, perhaps, by its decree, may protect all such or other rights connected with the estate to be sold.

We must advise the superior court, that the bill is sufficient.

In this opinion the other judges concurred.

Bill sufficient.


author: Hinman, J.

text:
    Dayton vs. Dean.
    The plaintiff proposed to labor for the defendant, for three months, at one dollar per day, payable quarterly. The defendant acceded to the proposal, and added, that the plaintiff could have his pay every night. Having entered the service of the defendant, the plaintiff left the same, before the end of said three months, without any sufficient cause, and against the will of the latter. Held, that full performance of said three months’ labor, before any payment could be claimed by the plaintiff, had been waived; and that, in an action of debt on book, he was entitled to recover for the services he had rendered.
    This was an action of debt on book, brought to the county court for the county of Litchfield.
    The cause was referred to an auditor, who, after a hearing, found and reported as follows:

      About the 1st of April, 1852, the plaintiff bound himself to labor for the defendant, for the term of three months, at least, from said 1st of April. As to the time and rate of payment for the plaintiff’s services, the plaintiff proposed to the defendant, to labor for him, for the period aforesaid, at one dollar per day, payable quarterly. The defendant acceded to the plaintiff’s proposition, and, to such assent, added, that the plaintiff could have his pay every night.
    The plaintiff then entered into the defendant’s service, under said contract, and continued therein, till the 26th day of May, 1852. The plaintiff, on said 26th day of May, left the service of the defendant, without any sufficient cause, and against the will of the defendant.
    If the court should be of opinion, that, under the facts above stated the plaintiff was entitled to recover, the auditor found a balance of $44.21, due from the defendant to the plaintiff; otherwise, he found that nothing was so due.
    The county court having rendered judgment in favor of the plaintiff, the defendant filed a motion in error, and removed the cause to the superior court. ,
    At the term of the superior court, holden at Litchfield, in November, 1853, the judgment of the county court was affirmed. The defendant thereupon filed a motion in error, and brought- the cause to this court.

      Buel and Hickox, in support of the motion.

      Johnson and Woodruff, contra.
   Hinman, J.

The report of the auditor leaves little doubt, as to what was the real agreement-between the parties. The plaintiff proposed to labor for the defendant, for the period of three months, at one dollar per day, payable quarterly. The defendant acceded to the proposition,"and added, that the plaintiff could have his pay every night. The plaintiff’s proposition made his labor a condition precedent to his right to claim any compensation, while the defendant’s acceptance of it was so qualified as to compel him to pay from day to day, as fast as the wages were earned, and demanded. Full performance of the three months’ labor, before any payment could be claimed, was a condition in the plaintiff’s proposition, which was introduced for the defendant’s benefit, and might be waived; and, taking the whole together, we think the parties understood it to have' been waived. There is, therefore, no error in the judgment of the county court.

In this opinion the other judges concurred, except Waite,J., who was absent, and Ellsworth, J., who, having heard the case in the court below, was disqualified.

Judgment affirmed.


author: Hinman, J. Church, C. J., and Waite, J.,

text:
    The Housatonic Railroad Company vs. Waterbury.
    Where, in an action on the case, against a railroad corporation, for killing the plaintiff’s cow, by carelessly and unskillfully running their locomotive against her, the declaration contained no averment, that this was done on the defendants’ railroad track; it was held that such averment was not necessary.
    Where, in such action, it appeared, that such railroad divided the plaintiff’s farm into two parts, and it did not appear that there was any highway or ordinary passway that enabled him to get from one side of his farm to the other, without crossing said railroad, and the defendants requested the court to instruct the jury, that they had the exclusive right to the use and occupancy of their railroad track, through the lands of the plaintiff, and if they were in the ordinary and proper use of said railway, when said cow was killed, and said cow was trespassing upon said track, the defendants were not liable, unless they were guilty of gross and willful neglect, and that the plaintiff, in permitting his cow to stray or stand upon said track, as claimed to have been proved by the plaintiff, was a trespass against the defendants; but the court instructed the jury, that the defendants held their easement, subject to the plaintiff’s right to cross and recross, to and from the different sections of his farm, separated by said road, provided the same was reasonably exercised; that it was their duty to ascertain, if either party had been guilty of negligence: if the plaintiff saw his cow on the railroad track, about the time when the train ordinarily passed the road, at that place, or if his cattle were turned upon land adjoining said railroad track, and-were loitering along near the track, such facts might be evidence of negligence which it was proper for them to consider. It was held, that such in'structions were correct. (Two judges dissenting.)
    This was an action on the case, brought by Uriel Waterbury, against the Housatonic Railroad Company.
    The declaration contained two counts. In the first, it was alleged, that the plaintiff, on the 20th day of May, 1851, at Cornwall, was lawfully possessed, and was the owner of a, certain cow, of the value of thirty-five dollars, and that the defendants, on said day, were in the possession of a certain railroad locomotive, which was under the care, government and direction of a certain servant of the defendants; and that the defendants, by their said servant, so carelessly, negligently and unskillfully managed and directed said locomotive, as to run the same against and upon said cow. The second count contained the additional averment, that said cow, at the time of the commission of said act, by the defendants, was upon a crossing of the track of the road of the defendants, which crossing was necessary to the plaintiff, in the use and occupation of his land, and over which crossing he was accustomed to drive his cows and other animals.
    The cause was tried before the jury, at the term of the county court, holden in Litchfield, in December, 1853. On the trial, the plaintiff testified, that the defendants’ railway divided his" farm into two parts ; that, in May, 1851, he and his hired man, one Foster, were at work in the plaintiff’s field, adjoining said railroad, when the plaintiff observed, that 'his cows had broken into his meadow on the east side of said railway; that he directed said Foster to turn said cows out of the meadow, into the highway running parallel with said railroad, on the east side of the same, and about seven rods distant therefrom, to remain a little time, while the plaintiff and said Foster could finish plowing a narrow strip of land; the plaintiff remarking to said Foster, at the same time, that all the regular trains had gone past; and that said cows were accordingly turned upon said highway. From the place where the cow was killed, on the track of said railway, to said highway was about six rods. There was a strip of land, lying between said railway and said public highway, of about six rods in width, which belonged to him, but which he did not occupy, but the same was occupied by the defendants, as a place of deposit for stones taken from the earth, in the construction of their railway; which-stones were piled up in the form of a wall. There was a gap in said wall, through which the plaintiff had been accustomed to drive his cattle across said strip of land, and across said railway to his lands on the other side, and he could communicate with his lands on each side of the railroad, only by crossing the railroad track.
    About an hour after said cows were turned into the highway, he saw the defendants’ engine coming round a curve, and saw his cow on the track of said railway, on the passway over which he had been used to drive his cattle; he heard no sound of the whistle, till the cow-catcher caught the cow, and the train did not stop. He heard no bell rung, and the train did not'slacken its speed. In his opinion, the engineer on said locomotive could have seen the cow, where she stood, from thirty rods north of the place where she was killed.
    The plaintiff also testified that, from the place where he was, they could have seen the cows all the time, from the-place where they wore turned into said highway, till said cow came upon said track, but that he did not know how long said cow had been there, before she was killed, and that it was about one hour after said cows were turned on said highway. The train that killed said cow was an extra freight train, and the regular train of the defendants had passed, before said cows were turned upon said highway, and came down the road, at about the usual time of its passage. When an extra freight train ran up the road, at the time this did, it usually returned south about the time this freight train passed down, on this day.
    Said Foster testified substantially to the same facts.
    Judson Wells testified, that the engineer of said locomotive could have seen the cow, thirty rods north of the place where she was killed; and that he had once known a train of cars stopped, in going the distance of about fifteen or sixteen rods, but he did not measure the distance.
    The plaintiff also offered Henry Beers; as a witness, who swore, that the cow could have been seen by said engineer, about twenty-nine rods north of where sheWas killed.
    To all which evidence the defendants objected, because the, plaintiff had not laid the foundation for it, by the averments in his declaration; but the court overruled said objection, and admitted said testimony.
    The defendants offered to prove, and claimed they had proved, that all possible care and caution was observed, by the engineer, to avoid running upon said cow, and that she was killed, by the fault of the plaintiff, he having been guilty of negligence, in permitting his cow to stray upon said track, and it was impossible for said engineer to have seen said cow, at a greater distance than six or seven rods above the place where she was killed, and that it was impossible for said engineer to have avoided running upon said cow.
    The evidence in said case being closed, the defendants requested the court to instruct the jury, that they had the exclusive right to the use and occupancy of their railway track, through said lands of the plaintiff, and that, if they were in the ordinary and proper use of said railway, running their cars over it, at the time when said cow was killed, and said cow was trespassing upon said track, the defendants were not liable, unless they were guilty of gross or willful neglect.
    Also, that the plaintiff had no right to permit his cow to stand upon said track, in the manner stated by the testimony of the plaintiff, and that, in so doing, the plaintiff was a trespasser against the defendants.
    But the court declined to instruct the jury, as requested by the defendants, but did charge the jury as follows : “ That, it being proved, that the plaintiff, owning a farm through which a railroad was laid and built, and after the building of said road, and that at the time of the injury, the plaintiff owned the land on each side of said railroad track, the plaintiff had a right of way to pass and repass from one side to the other, by implication of law. That the corporation held their easement, subject to the right of way of the plaintiff, to cross and recross to and from the different sections of his farm, separated by said road, provided the same was reasonably exercised, at the time of the injury. If they were in the improper and unreasonable exercise of such right, at the time of the injury, then this right might be laid out of consideration. That it was the duty of the jury, to ascertain, if any of the parties had been guilty of negligence. If they found that the plaintiff saw his cow on the railroad track, about the time the train ordinarily passed the road at this place, and the plaintiff was not passing over the track from one side to the other, in conformity to his right of way, it might be received, as important evidence of negligence. And if the cow and cattle were turned on to land adjoining the railroad track, and were loitering along near the track, then it was evidence of negligence, which it was competent for them to consider.”
    The jury returned a verdict in favor of the plaintiff. After verdict and before judgment was rendered thereon, the defendants filed their motion in arrest of judgment, for the insufficiency of the plaintiff’s declaration, which motion was, by the court, overruled, and final judgment rendered on the verdict. The defendants, thereupon, filed their motion in error, and removed the cause to the superior court, where it was reserved for the advice of this court.

      Wheaton and J. H. Hubbard, contended,
    1. That the declaration was insufficient, because it did not show, that the plaintiff’s cow, at the time of the injury, was rightfully on the railway of the defendants; nor that the plaintiff was driving his cattle along any public highway, which crossed the railroad, nor that he was driving them across the track, at any other point, nor is any fact or circumstance averred, from which it can be presumed that the plaintiff’s cow was on the track, without his fault. A declaration must state the right of the plaintiff, .the wrong of the defendant, and consequent damage, and everything is to be taken most strongly against the pleader.

      2. That the court should have charged the jury, that the defendants had the exclusive right to the use of their railway track through the plaintiff’s lands;, and that, if they were in the ordinary and proper use of said railway, by running their cars over it, at the time the cow was killed, and said cow was trespassing on the track, the defendants were not liable, unless they were guilty of gross and willful neglect. A railway corporation is a purchaser, entitled to the exclusive right of possession to the ground occupied by their track and paid for, to the proprietors of it. There can be no exceptions to this rule, unless in case of public highways or private ways crossing the track, duly laid, under the statute.
    3. That the charge, that the plaintiff had a right of way across the defendants’ railroad track, by implication, of law, was erroneous. The common law rule applied to railroad companies, would be the destruction of all railroad improvements. The defendants take their'right from the state, and the lands are taken for public use, and the owner of the land reserves no right of way, by implication. In the present case, no facts were proved, which, at common law, would give any right of way, by necessity. There are public highways over which the plaintiff may pass and repass to his lands. N. Y. & Erie R. R. Co. v. Skinner, Am. Law Rep., vol. 1, 97. Foot v. Wiswal, 14 Johns. R., 304. Bush v. Brainard, 1 Cow., 78. Rust v. Low, 6 Mass. R., 94. Barnes v. Cole, 21 Wend., 188. Rathbun v. Payne, 19 Wend., 399. Tonna R. R. v. Munger, 5 Denio, 255. Beers v. H. R. R. Co., 19 Conn. R., 566.

      Hollister and Andrews, for the defendant in error, contended,
    1. That the declaration was sufficient; it describes the company, and states that it was in possession of a railroad locomotive, which was so unskillfully and negligently managed, by the servants of the company, that the plaintiff’s cow was killed.
    2. That the part of the charge to the jury, relating to the right of way, by implication of law, was correct. This is a case between the original owner of land and a private corporation, that has acquired, by authority of law, and not by consent of the other party, a right to pass over said land. The owner must pass over, or he loses the use of the farm thus divided. If he could have made the contract himself, he could have reserved his right in set terms; but the law forbids him to make it. It would be to say, that, in selling an easement, by compulsion of law, he also loses his reasonable right, to pass from one half of his farm to the other. The doctrine of necessity, as existing between grantor and grantee, does not apply to this case ; there is no privity, no meeting of the minds of the parties, which is the basis of that doctrine. Collins v. Prentice, 15 Conn. R., 44. Beers
      v. H. R. R. Co., 19 Conn. R., 566. If there had been a public highway, running at right angles with the track, the risk of crossing would have been the same, at this point, as at any other point on the plaintiff’s farm. The plaintiff never intended to part with his right, nor did the defendants ever pay for it. It was worth as much as the freehold of the farm. The law will give effect to the grant, according to the presumed intent of the parties. 15 Conn. R., 44.
   Hinman, J.

We have not been able to discover, that any material fact, essential to the plaintiff’s cause of action or right of recovery, has been omitted in the declaration. It states the plaintiff’s ownership of his cow, where she was, and her value, with precision; that the defendants were in possession of a certain railroad locomotive, under the care and government of their servant, and that said servant so carelessly and unskillfully managed it, as to run it against said cow, on a day named, and kill her, by means of which she was lost to the plaintiff. We do not see what more need be said, to make the plaintiff’s loss, or the cause of it, any clearer. It was said, that it ought to have appeared, that it was done upon the defendants’ railroad track. But we see no reason for this. A locomotive may be carelessly managed, in any place, and when an injury is caused by it, it would seem, the managers of it ought to be liable. Besides, the second count does state that the cow, at the time she was killed, was upon a crossing of the track of the road of the defendants, which crossing was necessary to the plaintiff, in the use and occupation of his land, and over which he was accustomed to drive his cows and other animals. We think, therefore, the declaration is well enough, and the motion in arrest must be overruled.

The ruling of the county court, in respect to the plaintiff’s right of way across the railroad, is said to be incorrect. The railroad, by passing through the plaintiff’s farm, divided it into two parts, and it did not appear, that there was any highway, or other ordinary passway, that enabled him to get from one part to the other, without crossing the railroad. Under these circumstances, the court charged the jury, that the plaintiff had a right to pass from one side of his farm to the other, across the railroad, by implication of law.

We think this charge correct, under the circumstances. Any other rule would deprive parties of the entire use of lands, situated like a portion of the plaintiff’s farm. The legislature, in authorizing the defendants to construct their railroad, never intended thus to destroy the right of proprietors to enjoy their lands, especially without providing for compensation for lands thus injured. If the plaintiff had, by deed, conveyed a strip of land, running through his farm, so that he could not get from one portion to the other, without crossing the strip thus conveyed, the law would give him a way, of necessity, and we should be very reluctant to hold, that, by taking the land under their charter, they acquire any greater right to it than an absolute deed would give them. We do not, however, rest the case on this ground. We know, indeed, that expressions can be found, in some modern American cases, that seem to countenance the idea, that railroad corporations acquire a full and complete title to land, taken for their use. But expressions of this sort are not much to be regarded, when made in cases where the question arises, between the railroad corporation and some party who was obviously trespassing upon their rights, without any color or claim of right. No such principle has ever been decided, to our knowledge, in any case, where the question arose between the company and the former owner of the soil; and if it has been, we can only say, that such is not our opinion. :-'The principle conflicts directly with the principle that prevails in the analogous case of land taken for the use of an ordinary highway, and we know of no reason that should give a railroad corporation, a full and complete title to the land taken by them, that would not apply, with the same force, to land taken for an ordinary turnpike road. If it be said, that the railroad company must have a more exclusive use of the land, than is necessary .for a turnpike company, it is so, undoubtedly; and this circumstance may affect the value of the property, to the. owner of the soil, but does not touch the question of the title to the soil. As against third persons, courts have treated railroad corporations as the owners of the lands, because, from the nature of their business, it is necessary, that they should be so far in the exclusive possession as to exclude all others, whose joint possession would be inconsistent with the free use of the railroad, in the manner in which it is accustomed to be operated ; and this, undoubtedly, is all that is meant, when lands are spoken of, as the property of the railroad corporation. Owners of the soil would have no right to pasture their cattle upon the railroad, because such a right would endanger the public, who travel upon it, and is, therefore, inconsistent with the use to which it is appropriated. But the right to cross a railroad is not inconsistent with such use. Such a right exists in the whole public, wherever an ordinary highway crosses a railroad. It exists in individuals, wherever there is a private passway across one, and we think it also exists, as the county court charged the jury, in this case, that it did, wherever a proprietor’s land is so divided that he can not pass from one portion of it to the other, without crossing a railroad, t If the plaintiff had a right to pass from one portion of his farm to the other, with his cows, across the railroad, he was not, necessarily, trespassing upon the rights of the company, at the timé his cow was killed. That would depend upon whether he was in the reasonable exercise of his right of passing. Now, that question was very fairly submitted to the jury,—certainly in a manner of which the company can not complain.

It maybe, that the jury did not find the fact, as we should have done, but that is no ground of error. As a question of fact,' merely, there was, undoubtedly, evidence tending to show, that the plaintiff’s cow was not in the exercise of the right of passage across the railroad, but was loitering along upon the track, and that the plaintiff was guilty of negligence, in suffering her to do so. But all this was submitted to the jury, and they found a verdict for the plaintiff. This, whatever we may think of it, as a matter of fact, we have nothing to do with, on the question of whether there was any error in the charge. As we have not been able to find this, the judgment must stand.

The court charged the jury, that the plaintiff .could not justify the presence of his cow on the railroad track, by any right to depasture there; and, if the defendants below, had requested it, would undoubtedly have charged them, that he had no right to suffer her to loiter, or stray upon, or to stand upon the track. Indeed, such, in substance, was the charge, when the jury were told, that the plaintiff’s right of crossing must be exercised reasonably, and that the right to cross might be laid out of the case, if it was unreasonably exercised, at the time. But, in requesting the court to charge the jury, that the plaintiff had no right to permit his cow to stray, or stand upon the track, in the manner stated by the testimony of the plaintiff, they attempted to withdraw the question of fact from the jury, and to induce the court to draw the inference, from the plaintiff’s testimony, which, it appears to us, could only be drawn by a jury. While, therefore, we see ground to suppose, that the jury may have judged incorrectly, we are not satisfied, that they were misled by the court. We do not find any error in the judgment complained of.

In this opinion Storrs and Ellsworth, Js., concurred.

Church, C. J., and Waite, J.,

dissented from that part of the opinion of the court, relating to the questions arising upon the bill of exceptions, and were of opinion, that the judgment of the county court ought to be reversed, in consequence of their refusal to instruct the jury, in the manner requested by the defendants.

Judgment affirmed.


author: Ellsworth, J.

text:
    Andrews vs. Wheaton.
    Where a tribunal has no jurisdiction, by law, over a cause, the parties can not, by consent, confer it.
    The declaration, in an action of assumpsit, embraced a count upon a promis- • sory note, and the common counts, and, before any bill of particulars was filed, an auditor was appointed, by agreement of the parties, who were heard by him, without objection as to his power, or appointment. Having made his report, the same was accepted by the court, although no claim, other than said note, was made the ground of recovery, and judgment was rendered in' favor of the plaintiff. Held, that there was no error in the proceeding.
    The tenant of the plaintiff, owning a quantity of hay, subject to a lien thereon, in favor of the latter, sold the same to the defendant, who gave his promissory note therefor, to the plaintiff, to be applied, in payment of said tenant’s rent. In an action upon such note, it appearing that the tenant, in presence of the plaintiff, misrepresented the value and quantity of said hay, and that the defendant had received only a part of the same, and refused to take the remainder; it was held, that there was a partial failure of the consideration of said note, and "that the plaintiff was only entitled to recover the value of the hay, actually used by the defendant.
    This was an action of assumpsit, brought to the county court, for Litchfield county, and thence appealed to the superior court.
    The declaration embraced a count upon a promissory note, and the common counts. Before any bill of particulars had'been filed by the defendant, an auditor was appointed in said cause, by consent of the parties, who, after a hearing, made his report to said court, at the term, holden in February, 1854, substantially as follows.
    On the 12th day of February, 1849, the plaintiff "executed a lease of land, situated in Cornwall, to one John S. "Williams. In the month of September, 1850, said Williams had a quantity of hay, in the barn on said farm, estimated by him to be fifteen tons; which hay was his property, subject only to a provision, in said lease, to the effect, that the plaintiff should have a lien thereon, as security for the payment of said tenant’s rent. Said Williams made application to the defendant, to sell to him said hay, and recommended it to be good horse hay, and estimated the quantity to be about fifteen tons. Williams and the defendant went to said barn, for the purpose of examining the quality and quantity of said hay, which was not in a situation to be thoroughly examined by the defendant; but no contract was fully completed, at that time, between the defendant and said Williams. Afterward, in said September, Williams notified the plaintiff’, that he had bargained with the defendant, for the sale of said hay, for the sum of one hundred dollars. On the 2nd day of October, 1850, said Williams was indebted to the plaintiff, for the rent of said farm, in the sum of one hundred dollars and upwards, which debt the plaintiff was desirous of securing; and on said day, the plaintiff and defendant went to said barn, and there met said Williams, and the defendant again examined said hay, which was in the same situation as when the defendant and said Williams were there before; at which time said Williams, in the presence of both plaintiff and defendant, recommended said hay to be good hay, and said it was cut upon said farm, and was in quantity fifteen tons. The hay appeared in said barn, like good horse hay, as far as the defendant could discover. The plaintiff informed the defendant, at the time they went to look at said hay, that said Williams had told him, that the defendant had agreed, if he took said hay, to give the plaintiff the defendant’s note, for the sum of one hundred dollars, which note was to apply on the rent due from said Williams to the plaintiff’. On the 2nd day of October, 1850, the defendant purchased said hay, for the sum of one hundred dollars, and, at the request of said Williams, executed and delivered to the plaintiff’ his promissory note for one hundred dollars, payable on the first day of April, 1851. Upon the receipt of said note, the plaintiff released and discharged said Williams from the payment of the sum of one hundred dollars, due the plaintiff, on his rent. Said Williams, at the time of the sale of said hay, misrepresented the quality and quantity of said hay, a portion of which was badly cured, exposed to the rain, and was not all cut on the meadow, or meadows, as represented by said Williams, to the defendant, and was not good horse hay, and fell short in quantity. The whole of said hay was actually worth the sum of fifty-one dollars; and the defendant moved, and fed out but three and one-half tons of said hay from said barn; the remainder was never taken by any person ; the hay, so actually removed by the defendant, was worth twenty-one dollars. The plaintiff had no interest whatever in the hay in said barn, and Williams was not, in any way, his agent, any further than is expressed, or may be inferred from said lease. The plaintiff had never seen the hay in said barn, prior to said sale, knew nothing of its quality, and had no knowledge that the representations of said Williams were false.
    Against the acceptance of this report, the defendant remonstrated, on the ground, that-said auditor was not legally appointed. But the court found, that no bill of particulars, or claim other than said note, was presented, or made the ground of recovery in said action, and that said auditor was appointed, by agreement of the parties, who were heard by him, without objection from either of them, as to his power or appointment, and rendered judgment in favor of the plaintiff’, in the sum of sixty dollars damages, and his costs.
    The defendant, thereupon, by motion in error, brought the cause before this court.

      Hollister and Andrews, in support of the motion, contended,
    1. That the present, being an action of assumpsit, upon a note, and not upon an account, no evidence of account having been offered to the auditor, it is not within the statute of 1850, authorizing the appointment of auditors, in an action of assumpsit, upon an account.
    No consent of parties can' confer jurisdiction upon a tribunal, which has no authority, by law, over the subject matter of the dispute. 2 U. S. Dig., 675. 5 U. S. Dig., 251.

      2. That the defendant in error sold his interest in the hay, for the note in question, and thus, the hay is the true consideration of the note. This being true, a failure of consideration may be shown, by which the note becomes entirely void. 7 Cow., 322. 6 Conn. R., 521. 11 Johns. R., 50. 1 Conn. R., 329. 11 Conn. R., 432, 438.

      J. H. Hubbard and Wheaton, contra, contended,
    1. That, under the present action of assumpsit, the plaintiff’ could have proved the sale of goods, money loaned, promissory no:es, work and labor performed for the defendant, and many other items, chargeable in an account, and therefore, that said action was within the statute of 1850.
    2. That the defendant waived all objections to the appointment of an auditor. He consented to the appointment, went to trial without objection, has put the plaintiff" to the expense of a trial, and delayed the termination of the suit. King v. Lacy, 8 Conn. R., 500. Selleck v. The Sugar Hollow T. P. Co., 13 Conn. R., 453. State v. Smith, 19 Conn. R., 494. Crane v. Daniels, 20 Conn. R., 332. Town of Groton v. Hurlbut, 22 Conn. R., 178. Kelley v. Smith, 1 Black. R., 290.
    3. That, upon the facts found by the auditor, the court should have rendered judgment for the plaintiff-, in the whole amount of the note. Pulsifer v. Hotchkiss, 12 Conn. R., 234.
   Ellsworth, J.

The objection, that this case was improperly sent to an auditor, cannot, we think, be sustained. The claim is, that the parties, by an agreement of their own, created a tribunal to try their cause, which the law does not recognize, and whose proceedings cannot lay the foundation for any judgment of the court.

The principle, supposed to be involved in this objection, is undoubtedly correct, and in its general application, of unquestionable importance. For no one pretends, that parties, of themselves, can create courts of justice, or judges, or other tribunals, or clothe them with legislative authority : these can be created only by the legislature. Arbitrators may be chosen by the parties, and clothed with such power and authority as they agree to, and their doings will, in that case, be as final and conclusive as the judgment of a court would be; not however, as the doings of a court, constituting an integral part of the judiciary of the state, but the court of the parties. The report of the auditor, in this case, cannot, as we think, be considered as an act unauthorized by the superior court.

By the law of 1850, auditors' can be appointed, in actions of assumpsit, if the cause of action embraces matter of account. This declaration, certainly, may embrace such matter; for, it contains all the common counts, and the defendant is actually found liable for the hay of the plaintiff, which he took away, and subsequently used. Of course, in the preliminary stage of the trial, acting upon the record, as it stood, the court had full power to appoint an auditor. The court could not know, without a bill of particulars, what accounts, or charges, or claims, would be presented before the auditor. Besides, the parties agreed to the course pursued, and we cannot now hold, that the court wrongfully assumed jurisdiction, in reference to this matter.

Moreover, as the contrary did not appear, and the parties, in open court, agreed, that it was a proper case to go to auditors, the court might well proceed upon that assumption, and the parties ought to be estopped from raising such an objection, after the result of a trial. Their agreement was made, on purpose to facilitate the trial over which the court had jurisdiction, and why should not the parties abide by it ? The case is not unlike one of frequent occurrence in our courts, where the parties are held to waive an objection to the judge, commissioner, juror, or the panel of jurors, by the course pursued. Eleven jurors do not constitute a full panel, but they may be treated as a full panel, by the agreement of the parties. So, informal testimony may be received on the trial, and it is no uncommon thing for a judge, the parties wishing it, to refer a matter to a member of the bar, on the spot, to examine and report the facts, and then himself adopt the report, as his own finding. In this instance, Mr. Peet, a member of the bar, was agreed upon, to find and report the facts in controversy, and he acted on such reference, for all concerned, in the capacity of an auditor. If he were not exactly and technically such, yet he may be treated as such. The parties appeared before him, tried their cause, and took each his chance for a finding in his favor. Now we ask, what jurisdiction, unknown to the law, or unsanctioned by it, is assumed in this instance, or what court, or judge, or trial, is created, contrary to the law ? The superior court, certainly, had general jurisdiction of the cause, and power to bring it to a conclusion, and slight irregularities in its proceedings, at the request of the parties, ought not to be received, to defeat the result arrived at. It may be true, that, on the trial before an auditor, the party may present his claim, or his defence, in an exceptionable and illegal manner, but, even if it were so in this case, this is not the exact objection urged by the defendant, and if it were, it cannot make the original appointment of the auditor erroneous, and unauthorized. In King v. Lacy, 8 Conn. R., 500, the court appointed an auditor, when the pleadings stood on a demurrer, yet the court held, that the party had waived the irregularity. In Selleck v. Sugar Hollow T. P. Co., 13 Conn. R., 453, the court say, that the objections to the qualifications of jurors may be waived. So in State v. Smith, 19 Conn. R., 494; Crane v. Daniels, 20 Conn. R., 332; Quinebaug Bank v. Leavens, 20 Conn. R., 87; Groton and Ledyard v. Hurlbut et al., 22 Conn. R., 178, similar principles are recognized, sustaining all that is held in this case.

The plaintiff' contends, that he was no party to the supposed unfairness or fraud practiced by Williams, his tenant, and so, cannot be affected by it. In the opinion of the court, the plaintiff was a participator in the whole transaction, as the real owner, and is to be held responsible, as much as if he was the exclusive vendor.

We think, also, that the partial failure of consideration of the note, can be set up in the defence. A.t this day, a cross action to obtain relief, in such a case as this, is not believed to be necessary,—the rule is much more liberal now, than it was formerly. It is our opinion, then, that the plaintiff was entitled to recover; but only for the amount of the hay which the defendant took away, and afterwards used. Beyond this, upon the evidence, we think the party not entitled to recover; for we hold, as to the rest, that the consideration failed. There is manifest error.

In this opinion the other judges concurred, except Church, C. J., who was disqualified.

Judgment reversed.


author: Waite, J.

text:
    Peck vs. Harrison and another.
    Where claims, allowed in the report of the commissioners on an insolvent estate, are subsequently paid, it is the duty of the court of probate, to allow dividends, only upon such as remain unsatisfied.
    An administrator, having sold land, belonging to the insolvent estate of a deceased person, conveyed to the appellant and purchaser, all the interest, which the deceased had in said lands, at the time of his death. A promissory note, allowed, by the commissioners, as a claim against such estate, and secured by a mortgage upon the land sold, was afterwards paid by the purchaser, to whom the mortgagee delivered said note, with the name of the deceased erased therefrom, and released his interest in said land. On an appeal, by such purchaser, from a decree of said probate court, directing the administrator to pay a dividend upon all the claims allowed by the commissioners, excepting such note, which the court found had been cancelled; it was held, 1. That parol evidence was admissible, to show that, at the time of such sale, said administrator, with the knowledge of the purchaser, gave public notice that said land would be sold, subject to the incumbrances thereon, and that the buyer must remove them, and therefore, that, in paying said note, said purchaser was discharging an obligation which he had himself assumed; and, 2. That said order was valid.
    This was an appeal from a decree of the court of probate, for the district of Cornwall, made in the progress of the settlement of the insolvent estate of Hopkins T. S’. Johnson, deceased. The cause was heard before the superior court for Litchfield county, at the February term, 1854, when the court found the following facts, and reserved the case, for the advice of this court.
    Johnson, at the time of his decease, was indebted to Thomas and Myron Bartholomew, by note given for the sum of $1,060, and secured by a' mortgage upon certain real estate. The commissioners upon the estate, in their report» allowed the Bartholomews a debt of $478.67, being the balance due on their note.
    After their report was made, the court of probate, by an order, directed the administrators to sell all the real estate of the deceased, for the payment of his debts. Under this order, they sold the lands, mortgaged to the Bartholomews, at public vendue, to Peck, the appellant, and gave him a deed, conveying to him all the interest which Johnson had in those lands, at the time of his decease.
    Upon their return of sale, the court of probate declared a dividend of 65 cents, payable to the several creditors, with the exception of the Bartholomews, whose debt, the court found, had been cancelled by the collateral security held by them.
    At the time of the sale, there were two dower rights, existing as incumbrances upon the lands, and also the mortgage to the Bartholomews. The appellees proved, by parol evidence, that, at the time of sale, the administrators gave public notice, that the lands would be sold, subject to those incumbrances, and that the purchaser must remove them; which the appellant, at the time of the purchase, knew and understood.
    To the admission of this evidence, the appellant objected, but it was received, subject to the opinion of the supreme court of errors.
    After his purchase from the administrators, Peck paid the Bartholomews, the amount due upon their note, and they delivered to him the note, with the name of Johnson erased therefrom, and also gave him a quit-claim deed of the mortgaged premises, but did not suppose that they were assigning to him the note, as an unsatisfied debt. •
    The appeal was taken from the order of the court of probate, declaring the dividend.

      J. H. Hubbard and Graves, for the appellant, contended,
    1. That parol evidence was inadmissible, because all oral stipulations, prior to, and • at the time of, the • sale of real estate, are merged in the deed, and that the administrator had no power to make such conditions of sale, as are claimed by the appellant. Such authority would embarrass the settlement of estates.
    2. It appears, upon the record, that the appellant was the assignee, and, in fact, the owner of the debt in question. He purchased the mortgage of the creditors, the premises were conveyed to him by the mortgagees, and the note was delivered to him; which, in equity, would authorize him to foreclose the mortgaged premises.
    3. A court of probate has no power to expunge from the report of commissioners, a claim allowed by them ; the only mode of relief, to the party aggrieved, being by review, oían application to open the commission. Gridley v. Hosmer, 2 Conn. R., 850. Rev. Stat., 1849, 361. Sw. Dig., 466. 10 Conn. R., 232, 282. Peck v. Sturges, 11 Conn. R., 420. 2 Conn. R.

      Wheaton and Woodruff, for the appellees, contended,
    1. That the law is now well settled, that the consideration, expressed in a deed, is but prima facie evidence of the actual consideration, and liable to be varied by parol. Sparrow v. Smith, 5 Conn. R., 113, 117. Belden v. Seymour, 8 Conn. R., 304. Meeker v. Meeker, 16 Conn. R., 383. McCrea v. Purmort, 16 Wend., 460. Clapp v. Tirrell, 20 Pick., 247. Barker v. Dewy, 8 E. C. L., 193.
    2. That the appellant paid the debt in question, in pursuance of his agreement, and as a part of the consideration of the deed to him, and took no assignment of the note, but .received it cancelled. The quit-claim deed, from the mortgagees, gave the appellant no interest in the debt, for that was paid, and cancelled.
    3. That the appellant shows no interest in the subject of the appeal, and cannot be aggrieved, by the decree of the court of probate. Rev. Stat., 213.
   Waite, J.

The first question is, whether parol evidence was admissible, to prove what was said and done, at the time of the sale of the property of the deceased to the appellant, relative to the debt for which it was mortgaged.

The evidence, taken in connection with the subsequent payment of that debt to the Bartholomews, went to show, that Peck, in making that payment, was discharging an obligation, which he had assumed upon himself, and not acting in the capacity of a purchaser. Payment may always be proved by parol.

Besides, Peck, in order, to sustain his appeal, must show, that he is interested in the estate, and he claims no other interest, than as a pwrehaser of that debt. The release deed from the Bartholomews, conveyed to him no interest in the debt allowed by the commissioners, and their delivering him the note, with the maker’s name erased, of itself, proves no assignment.

To support his claim, therefore, parol evidence must be relied upon by him, and, if it is admissible, to prove a purchase, it is equally admissible to disprove it.

It is said, that the administrators had no power to sell, in the manner it is claimed they did. But the mortgagees were under no obligation to release their interest in the property mortgaged to them, until paid this full amount of their debt. The administrators, therefore, could make no valid sale, without making some arrangement for such payment, and that might well be accomplished in the manner claimed.

Again, it is said, that the contract with Peck was one relating, to the sale of land, and cannot be proved by parol evidence. But the evidence related only to the consideration of the deed, whether the Bartholomew debt constituted a part of it, or not, and the consideration of a deed, after the conveyance has been made, may always be shown, by parol evidence. King et al. v. Woodruff, 23 Conn. R., and cases there cited.

Again, it is said, that the evidence was not sufficient to prove payment. If that were so, it would not affect the question, as to its admissibility, which is the only one reserved for our advice. We think, however, if true, it sufficiently shows, that Peck was not a purchaser of the debt, and acquired no title to the dividend, to be declared upon the debts, allowed against the estate.

Again; it is said, that the court of probate had no power to make an order, that no dividend should be paid upon any particular debt, allowed by the commissioners. In ordinary eases, this is so; but the rule does not apply to a case like the present.

When the claim of the Bartholomews was allowed by the commissioners, it was a just debt against the estate, and one which they were entitled to have allowed them. But the debt had become subsequently paid, out of the property mortgaged to them, as collateral security, and thus, as against the estate, had become extinguished.

When the court enquired into this matter, it did not at all interfere with the doings of the commissioners. Their decision was right, and the enquiry by the court, related only to matters subsequent. To allow a dividend to be paid upon a debt, after it had been extinguished, out of the assets of the estate, would be palpably unjust.

Suppose the administrators had paid the debt, for the purpose of enabling them the better to sell the real estate, mortgaged for its security; could it be claimed, for a moment, that the Bartholomews would also be entitled to a dividend'?

It was clearly the duty of the court of probate, in declaring a dividend, to enquire and ascertain what debts had been paid, subsequently to the report of the commissioners, and allow dividends, only upon such debts as remained unsatisfied.

We are, therefore, of opinion that there is no error in the doings of the court of probate, and so advise the superior court.

In this opinion the other judges concurred.

Decree of probate affirmed.


text:
    Ketchum vs. Jauncey and others.
    The condition annexed to a mortgage deed was, as follows. “Whereas the grantee has agreed with the grantor, to endorse notes for him, hereafter, when requested, to the amount of $7,000, with the renewal notes thereon ; now, if the grantor pay each and every of such notes, according to the tenor thereof, and save the grantee harmless from the payment thereof, and from ■ all cost and damage arising from such endorsements, then this deed shall he void, otherwise remain in full force.” Held, that such deed was not invalid, for uncertainty, as against subsequent incumbrancers.

      In pursuance of the agreement referred to in such condition, the mortgagee, at the request of the mortgagor, endorsed promissory notes, together amounting to $6,750, made by the mortgagor, payable to W, endorsed by him, and subsequently endorsed by a copartnership, of which the mortgagee was a member, and through which he was in the habit of transacting his similar individual business. Said notes, having been subsequently discounted for the mortgagor’s benefit, who neglected to pay them when due, were paid by said copartnership. On a bill of foreclosure, by the mortgagee, it was held, that he was entitled to a decree against both the mortgagor and subsequent, incumbrancers.
    This was a bill in equity, to foreclose mortgaged premises, brought against James W. Jauncey, the mortgagor, Edward S. McPherson and Edward N. Jauncey, attaching creditors, and David M. Marvin, a subsequent mortgagee.
    The cause was brought to the superior court for Fairfield county, and referred to a committee, whose report embraced the following facts, to wit:
    The condition annexed to the deed of mortgage, was of the following tenor: “ Whereas the grantee has agreed with the grantor, to endorse notes for him, hereafter, when requested, to the amount of $7,000, with the renewal notes thereon: now if the grantor pay each and every of such notes, according to the tenor thereof, and save the grantee harmless from the payment thereof, and from all cost and damage arising from such endorsements, then this deed shall be void, otherwise, remain in full force.”
    In pursuance of the agreement referred to, in the condition of the deed, the plaintiff, at the request of Jauncey, the mortgagor, endorsed three several promissory notes for him, amounting, in the whole, to $6,750, made by Jauncey, payable to the order of Joseph Wood, by him endorsed, and then endorsed by the plaintiff, and afterwards by the firm of Ketchum, Rogers & Bement, of which firm the plaintiff was a member, and through which, he was in the habit of transacting his individual similar business.
    These notes were made, endorsed, and discounted, for the use and accommodation of Jauncey, and when they became due, he neglected and failed to pay them, and they were paid and taken up by the firm of Ketchum, Rogers & Bement, and the amount so paid is still due from Jauncey, and is uncollectable of Wood.
    The questions of law, arising upon these facts, were reserved for the advice of this' court.

      .Hawley and Dutton, for the plaintiff,'contended,
    1. That Jauncey not having paid the notes, the plaintiff is entitled to a decree of foreclosure, and, independently of any payment made by him; for the condition provides, not merely for the indemnity of the plaintiff, but, positively, for the payment, by Jauncey, of the notes according to their tenor. On non-payment by Jauncey, right at once accrued. Holmes v. Rhodes, 1 Bos. & P., 638. Churchill v. Hart, 3 Denio, 321. Carr v. Roberts, 8 B. & Ad., 78, (27 C. L. R., 39.) Port v. Jackson, 17 John., 239. Lethbridge v. Mylton, 2 B. & Ad., 772, (22 C. L. R., 181.) Thomas v. Allen, 1 Hill, 145. Lathrop v. Atwood, 21 Conn. R., 117.
    2. That there has been payment by the plaintiff. The question here is between him and Jauncey, and payment by the firm, of which he was one, was, as between him and Jauncey, payment by him.
    It was paid out of funds belonging to him, in connection with them, and, for all the purposes of this case, out of his funds.
    It was a mode of transacting Ketchum’s business, and the committee find, that his business, of this kind, was transacted in this way.
    The firm did not endorse, at Jauncey’s request, nor in pursuance of any agreement with him; they, endorsed for Ketchum, because he had endorsed, and because such was the mode of doing his business? They acted as his agents in endorsing, and in paying.
    They have no remedy against Jauncey,—could never avail themselves of this mortgage, and if they could, it would constitute no objection to the proceedings in Ketchum’s name, even for their benefit, if they were entitled to the benefit. 1 B. & P., 657, 658. 14 Pick., 172. 7 Pick., 40. 9 Mass., 423.

      Butter and Carter, contra, contended,
    1. That the plaintiff could take nothing by his bill. There has been no breach of the condition,'mentioned in the mortgage; the’grantee has not paid each or either of said notes. The notes were subsequently endorsed by a third party, taken up and held by them, and, by presumption, they are still so held.
    2. That there is nothing, in this finding, which would prevent Ketchum, Rogers & Bement, from suing or assigning those notes. Peck v. Sill, 3 Conn. R., 157.
    3. That the mortgage is void as against the subsequent incumbrancers, as being too vague ■ and uncertain, and that the plaintiff, if entitled to a decree at all, is only entitled, as against the mortgagor.
   Waite, J.

There has been a forfeiture of the condition of the mortgage deed, by the neglect of Jauncey to pay the notes, endorsed by the plaintiff, when they became due, according to the terms of the condition, and the plaintiff is entitled to a decree of foreclosure, if he has been subjected to the payment of those notes, or any portion of them.

The report of the committee is not very explicit, in relation to the endorsement and payment by Ketchum, Rogers & Bement. It is found, that the notes were endorsed by the plaintiff, at the request of Jauncey, and discounted for his use and accommodation; that, subsequent to the endorsement by the plaintiff, they were also endorsed by that firm, of which he was a member, and through which he was in the habit of transacting his individual similar business, and by which the notes were afterwards paid.

If, by this, we are to understand, that the firm, in endorsing and taking up these notes, acted merely as the plaintiff’s agent, we do not see why he is not entitled to a decree, for the payment of the full amount due upon the notes.

But, if the firm stands in the situation of an ordinary endorsee, and, as such, has taken up the notes, and now holds them, then the plaintiff has been damnified, at least, to the extent of his share of the partnership funds, used in taking up the notes, and as prior endorser, is, probably, liable for the full amount of them.

In an action at law, it is sometimes difficult to determine the precise amount of damages, to which a party may be entitled, by reason of a breach of contract, in not paying a debt, for which the plaintiff is liable, but has never paid. Lathrop v. Atwood, 21 Conn. R., 117.

But such difficulty does not ordinarily arise in chancery, where the court has power so to frame its decree, as to do justice to ihe several parties, and protect their respective rights.

It is further said, that the mortgage is void, against all the defendants except the mortgagor, as being too vague and indefinite; and the case of Shepard v. Shepard, is relied upon, in support of the claim. 6 Conn. R., 37.

We think, however, there is a manifest distinction, between that case and the'present. Here the amount of the notes is limited to $7,000.

The case, therefore, rather falls within the principles recognized in more modern cases. Crane v. Deming, 7 Conn. R., 387. Hubbard v. Savage, 8 Conn. R., 215. Merrills v. Swift, 18 Conn. R., 257. Lewis v. DeForest, 20 Conn. R., 427.

The superior court is therefore advised, that the plaintiff is entitled to a decree in his favor.

In this opinion the other judges concurred.

Decree for plaintiff.


author: Storrs, J.

text:
    Southport vs. Ogden.
    A by-law of a borough, prohibiting the taking of oysters from the waters within said borough, during a certain period of the year, under a penalty therein prescribed, which the borough is authorized to make by its charter, is abrogated by a general law of the state, passed subsequent to the granting of the charter, prohibiting the doing of the same acts, under a penalty, prescribed in the latter act, so far as such by-law prohibits such acts, whether such by-law was made before, or after the passing of the general law; therefore no action for the doing of said acts, after the passing of such general law, can be maintained on such by-law.
    This action was originally brought by the borough of Southport, an incorporated borough, in the town of Fair-field, against Horace Ogden, before a justice of the peace, and thence, by appeal, came before the county court.
    The declaration alleged, that said borough was chartered by act of the genera] assembly of this state, at its May session, 1831, with the power of suing and being sued by its corporate name, and, with the further power of making by-laws within the limits of said borough, and of inflicting penalties for the breach of the same: and, among other things, by section 11th of said act of incorporation, with the power of making by-laws as aforesaid, relative .to the improvement and preservation of the shell and scale fisheries within the limits of said borough, ás more fully appeared by reference to said act of incorporation: that, between the first day of May and the first day of October, 1850, that is to say, on or about the 4th day of September, 1850, at said Fairfield, the defendant entered in and upon the river known as Mill river, the same being a river where the tide ebbs and flows, and upon that portion of the same which belongs to the waters within the limits of said borough, and which constitutes a portion of said borough, and willfully and unlawfully took therefrom, or caused to be taken, a certain quantity of oysters; viz., about two bushels at one tide on said day, and by means of a boat or basket, carried them away, contrary to the first section of a certain by-law of the said borough, entitled “ a by-law for regulating the shell-fishery within the limits of the borough of Southport,” to wit, “ Be it ordained by the warden, burgesses and freemen of the borough of Southport, that if any person shall take, or cause to be taken, any oysters from the waters or harbor within the limits of said borough, from the first day of May to the first day of October in each year, he shall forfeit and pay to the treasury, for the use of said borough, the sum of two dollars for any one tide;” and which said by-law was duly and legally passed in court of burgesses, April 26th, 1848, and approved, at a legal meeting of said borough, warned and held for that purpose, April 28th, 1848, and thereafter published in the Standard, a newspaper published in Bridgeport, in said county, as by said act of incorporation provided, and said by-law has never been repealed, altered or set aside; whereby and by force of said by-law, &c.
    The defendant having filed a demurrer, the. court found the plaintiffs’ declaration insufficient, and that the defendant was entitled to recover his costs.
    The plaintiffs, thereupon, by motion in error, brought the record before the superior court for revision, and the questions thereon arising, were, by said superior court, reserved for the advice of this court.

      Butler and Beardslee, for the plaintiffs, contended,
    1. That the by-law was not void because there was general legislation on the same subject. There are many such instances of concurrent power, inuring to those who first act. For example, the power of boroughs and cities over highways, and other subjects, given to the control of towns. 1 Wend., 237.
    2. That the statute recognizes the rights of the borough, as still existing, and does not anywhere repeal them. See stat. title Fisheries, 1849.

      Hawley, for the defendant, claimed,
    1. That the by-law was void, because it legislates on subjects already passed on by the legislature. The statute, passed in 1848, and still in force, imposes a fine for the same acts as are prohibited by the by-law in question. One penalty cannot be recovered under the general law, and another under the borough law, for the same act. While the general law punishes by a fine for an act done between March and November, the borough may inflict an additional penalty for the same act.
    2. When the plaintiffs’ charter was granted, there was no general law on the subject, and, therefore, the borough was authorized to legislate upon it. Afterward, and long before the by-law was passed, the general law was enacted, covering the whole ground, and thenceforth the borough had no right to act, except in reference to such fisheries as the legislature had not provided for.
   Storrs, J.

One of the questions, and the most important, presented in this case, is, as to the validity of the by-law on which this action was brought.

The plaintiffs were incorporated as a borough, in 1831, with the power, among others, of making by-laws, and enforcing them by penalties, relative to the improvement and preservation of the shell and scale fisheries within the limits of the borough. In 1842, and previous to the making of any by-law on this subject, the present general statute was enacted, by which it was provided, (with certain qualifications not applicable to the case before us,) that every person, who should, from the first day of March until the first day of November, in each year, take, gather, or collect, any oysters, or oyster-shells, in or upon any of the flats, creeks, banks, rivers, harbors, or waters of this state, should be punished by fine or imprisonment, or both, as therein prescribed. In 1848, the by-law, on which the present action was brought, was passed, by which it was ordained, that if any person should take, or cause to be taken, any oysters from the waters or harbor within the limits of said borough, from the first day of May to the first day of October, in each year, he should forfeit and pay to the treasurer, for the use of said borough, the sum of two dollars for any one tide. Hence, it appears that the act, for the commission of which this action is brought, under the by-law, is one, which is prohibited also by the said general law, and that the by-law prohibits it between the first day of May and the first day of October, which is a portion of the time while such act is prohibited by the general law.

We attach no importance to the circumstance, that the by-law was made after the passing of the general law, but, on the question of its present validity, consider it as standing on the same ground as if it was passed before the latter. If the effect of such general law would have been to suspend or abrogate, to any extent, the by-law, if it had been previously passed, its effect would plainly be to render it, if subsequently passed, nugatory to the same extent.

Conceding, (what indeed we see no reason to question,) that this by-law was one which, under the charter of the plaintiffs, it was competent for them to make, previous to the passing of the general law, we have no doubt of the power of the legislature to pass such general law, notwithstanding the power previously given to the borough to pass said by-law; and we are also of opinion that when such general law was enacted, it superseded the power which had been so given to the borough, and suspended or abrogated it, so far as the general law prohibited and punished the same act, which was prohibited and punished by such by-law. It has not been, and could not with any plausibility be, claimed that the legislature, by giving to the borough power to make this by-law, precluded itself from enacting any general law on the same subject. There was clearly nothing in the grant of that power to the borough which was in its nature irrevocable, so that the legislature could not afterward limit or revoke it at its pleasure. And the enactment, by the legislature, of this general law, affecting all the people of the state, and including, of course, those being within the limits of this borough, was a resumption by the legislature, of the power of regulating the shell and scale-fisheries which they had before given to the plaintiffs, so far as such general law provided for their regulation; and therefore, to that extent, had the effect of limiting or abrogating the power pf the plaintiffs over that subject. We have no doubt that such was the design of the legislature, and that, in passing the general law, they intended to assume, exclusively, the regulation of the oyster fishery in this borough, in the respects in which it is affected by the provisions of this by-law. Unless we give to the general statute, the effect of thus limiting the power granted to the plaintiffs on this subject, we must tolerate qualities in the by-law in question, which have always been held to be fatal to the validity of regulations of this description. It is well settled that, in order to be valid, they must not be unreasonable, oppressive, or in conflict with the general law of the state. If this by-law is sustained, it will clearly he liable to some of these objections. If the prosecution of a person, for a violation of the general law, would not be a bar to a subsequent prosecution for the same act under this by-law, the consequence would be, that he might be tried and punished twice for the same offence. This would be so palpably unreasonable and oppressive, that, if it were competent for the legislature to enact or sanction a law, by which a person might be tried or punished more than once for the same offence, (a point which it is unnecessary here to consider,) a by-law of a corporation clearly ought not to be upheld, which might produce that effect, unless such was most clearly the intention of the legislature. The presumption would be most strongly against such an intention; and the mere fact, that the corporation had been empowered to make a by-law in regard to the subject, would furnish no evidence of such an intention. But the enactment of a general law by the legislature, after having conferred such power on the corporation, regulating the same matter which had been before permitted to be regulated by such by-law, would, in the absence of the clearest evidence to the contrary, shew most satisfactorily, that the legislature intended to take the regulation of the matter out of the hands of the corporation, to the extent to which such general law regulated it. Applying these principles to this case, there is not only nothing to shew that it was the design of the legislature, that the power to make the by-law in question should continue after the enactment of the general law on the same subject, but the strongest evidence to the contrary. If, on the other hand, the prosecution of a person for a violation of this by-law, would be a bar to a subsequent prosecution for the same offence under the general law, the consequence would be, that the latter would be abrogated and rendered nugatory in that case; and thus the by-law would conflict with the general law, by limiting its effect to particular cases only, and thus destroying the universality of its operation. That it was the intention of the legislature, that a power given by them, to one of our municipal corporations, to make by-laws in regard to their local or internal concerns, should thus interfere with the operation or validity of our general statutes, we cannot believe. For these reasons, we are of opinion, that the by-law in question is invalid, and that the declaration in this case is therefore insufficient.

The result to which we have come, on this point, renders it unnecessary to examine the other objections which have been made to the declaration; and the superior court is advised, that there is no error in the judgment complained of.

In this opinion the other judges concurred.

Judgment affirmed.