author: Ellsworth, J.

text:
    The Towns of Wethersfield and Glastenbury against Humphrey and others:

      Hartford,

    August, 1850.
    IN ERROR.
    Where the county court, on a petition for the relocation of a ferry, or the establishment of a new one, and for the laying-out of such highways as should be necessary to furnish convenient access thereto, made their report, finding, that common convenience and necessity required a relocation of the ferry, and the laying-out of new highways to furnish convenient access thereto, and then proceeding to relocate such ferry, and lay out such highways; on a remonstrance to such report, evidence was offered to show, that the ferry and highways so relocated and laid out, were not ofcommon convenience and necessity; which evidence the court refused to receive, there being no unfairness or irregularity in the committee’s proceedings ; it was held, that this determination of the court was not erroneous.
    Where the committee, in the first instance, reported only the relocation of the ferry, and afterwards, by direction of the court, proceeded to lay out the highways furnishing convenient access thereto; it was held, that this course was unexceptionable.
    Where the committee laid out a tract five rods wide, adjoining the landing-place of the ferry, with permission to land on any part thereof, and to use and pass over the same asa highway; it was held, that there was no error in this proceeding.
    Where the counsel for the petitioners, on the hearingbefore the committee, stated to them, in presence of the opposing counsel, that he had prepared a memorandum of what he claimed to be proved, which he had intended to lay before them, but had mislaid it; and a few days afterwards, without the knowledge of the opposing counsel, he transmitted to the committee a statement of the number of crossings at the former ferry within a certain period, and an estimate o f the saving of expense by means of the ferry, referring, for the truth of the facts stated, to the witnesses who had been examined; it was held, that in the absence of any fraud or improper design, on the part of the counsel, this communication did not render the proceeding erroneous.
    Where a highway laid out to furnish access to the ferry, passed over the neck or mouth of Keeney’s cove, a body of water setting up from Connecticut river ; it was held, that the laying-out was not exceptionable as an obstruction to navigation.
    The navigation, the obstruction of which is a public nuisance, is on waters whereon the public pass and repass, with vessels or boats, in the prosecution of commerce essentially valuable.
    This was a petition to the county court, brought by Lemuel Humphrey and others, against the towns of Wethersfield and Glastenbury, alleging, that the ferry across Connecticut river, between those towns, called Pratt's ferry, had been discontinued, whereby the public travel was incommoded, and praying for the relocation of such ferry, or the establishment of a new one, and the laying out of such highways leading thereto as should be necessary.
    The county court, November term, 1847, appointed R. R. Phelps, Abner Hendee and Jabez King, Esqrs. a committee to enquire into the matters alleged in the petition, and the public necessity and convenience of relocating said ferry or establishing a new one ; and if they should deem it expedient, to relocate said ferry, or establish a new one, at such place as would best promote the public interest, and accommodate the public travel; and also, to lay out such highways leading to the ferry by them determined upon, as should be necessary to furnish suitable and convenient access thereto. At the term of the court held in March 1848, two of the committee, viz., Hendee and King, made their report, in which they found, that public convenience and necessity, and the course and demands of public travel, required, that said ferry should be reestablished or a new ferry located, at some point as near the former location of Pratt’s ferry as convenient, and then proceeded to fix and determine upon a certain point, for the purpose above specified. Phelps, the other member of the committee, dissented from this report, giving his reasons in a separate report to the same court. The towns of Glas-tenbury and Wethersfield severally remonstrated against the acceptance of the report of the majority.
    Upon a hearing of the remonstrants, they offered evidence to prove, that said ferry was not of common convenience and necessity ; and that in case it was established, the roads leading to it could not be made so as to furnish the public, at all times, access thereto, without an expenditure wholly disproportionate to the public benefit to be derived from the ferry. But the court was of opinion, that as the committee had en-quired into and passed upon these questions, there being no fraud or misconduct on their part, their action was conclusive, and rejected the evidence.
    The cause was then continued to the term of the court in August 1848 ; when the remonstrants were fully heard upon the matters complained of. in respect to the objection that the committee had not laid out any roads leading to the ferry, the court decided, that the committee had a right to designate the location of the ferry, and leave the subject of roads to a further enquiry, a some other tribunal.
    In respect to another objection, viz. that the five rods of ground embraced by the landing-place of the ferry located by the committee, was the private property of individuals, and could not be taken for public use, without compensation, the court found this to be true, but was of opinion that the designation thereof by the committee as necessary or convenient for the ferry, could not affect the rights of the proprietors, and did not vitiate the location of the ferry.
    In respect to another objection, stated in the Wethersfield remonstrance, the court found, that when the committee were out, in March 1847, Martin Welles, Esq., counsel for the petitioners, endeavoured to show the saving to the public, in time and money, by the establishment of the ferry prayed for, and went into a partial detail of what he claimed the testimony proved, and stated, in the presence of the opposing counsel, that he had prepared a memorandum of what he claimed, which he had intended to lay before the committee, but had mislaid it; that the case was argued in behalf of the several parties, during most of the succeeding day, and closed by said Welles, nothing further being said in regard to the memorandum; and that three or four days afterwards, a statement was drawn up and signed by him, showing the number of crossings at the former ferry, within a certain period, with an estimate of the saving of expense, by means of the ferry; which statement, in pursuance of the suggestion made by him to the committee, but without the knowledge of either of the counsel concerned in the cause, he transmitted to two of the committee. Whether the facts contained in this statement were true or untrue, did not appear.
    In respect to a matter contained in the Glastenbury remonstrance, the court found, that should the ferry reported by the committee be established, in order to accommodate the public, a road must be laid across the neck or mouth of Kee-ney’s cove, which is a body of water in East-Hartford meadow, setting up from Connecticut river, and which is navigable for vessels of a moderate size, and in which vessels have occasionally wintered, but which is valuable chiefly for its private fisheries; that a bridge has been thrown across said water, near its junction with said river, by individuals, to accomodate them in the occupation of their meadow lands, and continued there, so far as it appeared, without complaint, for several years paid. The court was of opinion, that this cove always been occupied and claimed as the property of the adjoining proprietors, but did not find the fact that it was private property.
    The court then approved the location of the ferry at the place recommended by the committee, and established it. And whereas the committee omitted to lay out or designate any road on the East side of Connecticut river, leading to this ferry, the court appointed the members of the former committee, a committee to lay out such road or highway from the Eastern boundary of said ferry to any point in the highway leading from Hartford to Glastenbury, that they should think expedient; and to make such alterations in the highway on the West side of said river, if any should be required, as should be necessary to furnish convenient access to said ferry.
    A majority of the committee, in November 1848, laid out a highway, two rods wide, leading Easterly from said ferry, across Keeney’s cove, to the highway between Hartford and Glastenbury, specifying courses and distances. They also laid out, for the accommodation of said ferry, on the Eastern bank of said river, a tract of land, five rods in width on each side of such road so laid out to be two roads wide-the whole being twelve rods in width-and running Easterly from said river, the same width, two chains and severity-five links, with permission to land on any part thereof, and to use and pass over the same as a highway. They also assessed damages to individuals for the laying-out of said highway over their respective lands, and for injury to their rights of fishing in Keeney’s cove. They also laid out a road to the ferry on the West side of Connecticut river, in the course of the present highway, but of greater width, assessing damages to the proprietors of the land ; and provided, as on the East side, a landing-place adjoining the ferry, of greater width than the highway.
    This report being returned to the court, at its term in March 1849, the towns of Glastenbury and Wethersfield remonstrated against the acceptance thereof, assigning sundry reasons. The court found, that the highways so laid out and reported by the committe, were of common convenience and necessity, and especially necessary in order to furnish convenient access to said ferry ; and they were thereupon established as public highway and the assessment of damages approved.
    The towns of Wethersfield and Glastenbury, the original respondents, thereupon brought a writ of error in the superior court; which was reserved for the advice of this court.

      T. C. Perkins and Hooker, for the plaintiffs in error,
    contended, 1. That the county court should have received the evidence offered by the remonstrants, to show that the ferry and roads in question were not of common convenience and necessity. The statute gives the power of enquiry to the court. Stat. 387. § 28. And the court may make such en-quiry, “either by the county commissioners or otherwise but all that is done, the law considers as done by the court. The province of a committee is to aid the court-not to usurp or supersede its power. A court of chancery may appoint a committee to enquire into the facts alleged in the bill; but the report of such committee does not preclude the court from making further enquiry. Callender v. Colegrove, 17 Conn. R. 1.

      2. That the highways leading to the ferry, should have been laid out, if at all, cotemporaneously with the relocation of the ferry. The petition averred the necessity of these highways; the court found them necessary, and ordered the committee to lay them out. The ferry would be useless, without access to it. Two proceedings would add to the expense ; and the expense might be such as, in view of it, to render the ferry inexpedient. Besides, after one committee had been appointed and had reported, the court could not appoint another.
    3. That the committee had no power to lay out landing-places, in addition to the highways. A landing place is neither a ferry nor a highway.
    4. Thai the communication made by Mr. Welles to the committee, after the public hearing and argument of the case, was illegal and of dangerous tendency. It related to the merits of the controversy ; and was made for the purpose of influencing the minds of the committee ; was fitted for that purpose ; and was transmitted without the knowledge of the opposing counsel. If such a proceeding be sanctioned, there will be no such thing as a fair hearing before a committee. On a hearing before arbitrators, it would be a sufficient cause for setting aside the award. Dobson v. Groves, 6 Ad. &Ell. N. S. 638. (51 E. C. L. 636.) In re Plews and Middleton, 5 Ad. § Ell. N. S. 845. (51 E. C. L. 845.) It is needless to say, that it would not be tolerated in a trial before a jury.
    5. That the highway on the East side of Connecticut river, could not be laid across Keeney’s cove, thereby obstructing the navigation. The court has found, that Keeney’s cove is a body of water in East-Hartford meadows, setting up from Connecticut river, which is navigable for vessels of moderate size, and where vessels have occasionally wintered, but which is valuable chiefly for its private fisheries. A bridge over water thus navigable, would be a public nuisance. Charles-town v. County Commissioners of Middlesex, 3 Metc. 202. Commonwealth v. Charlestown, 1 Pick. 180. 186. Commonwealth v. Coombs, 2 Mass. R. 489. 492. Wadsworth v. Smith, 2 Fairf. 278. [There were some other matters assigned for error, and remarked upon in argument, which it is not necessary to notice here.]

      Welles and Plungerford, for the defendants in error,
    contended, 1. That the county court will not allow a re-hearing upon the facts, or receive evidence that the committee should have made a different finding, unless they had committed some error on their own principles, or have been guilty of fraud or other misconduct. It is certainly not the practice to hear the evidence again. In this case, it would have been at least an indiscreet exercise of the power of the court, to hear the evidence offered. In the first place, the report of the committee sets forth facts, which, if true, show the necessity of the road and ferry. Secondly, the law of the state establishing former ferries, shows, that they are of public necessity. The point may be considered as settled by the legislature, that some ferry was necessary; and here the question was one merely of relocation. Thirdly, the mere inspection of the map of the state shows, that the great courses of travel, on each side of the river, are adapted to crossing at this point. Fourthly, if the court had heard evidence on this point, it must have led to a hearing of all the evidence which the parties chose te offer, and another trial of twenty-five days would have followed.
    2. That the second assignment of error is altogether unfounded. Both the court and committee have laid out a road on each side of the river, furnishing suitable and convenient access to the ferry. If the objection is, that the court did not lay out the roads at the time they established the ferry, it is a sufficient answer to say, first, that the whole proceedings were in fieri, until completed. Secondly, until the ferry was located, it "could not be known that roads would be required, or if so, at what place. Thirdly, after the establishment of the ferry, the roads might be laid out, either by the court directly, by a committee of the court, by the county commissioners, or by the select-men of the respective towns.
    3. That the third assignment is equally unfounded. The landing-place is laid out as a highway, and damages are assessed.
    4. That the statement transmitted by Mr. Welles to the committee, was no ground of error. In the first place, the statement is a mere arithmetical computation, derived from facts which were in evidence before the committee ; and their accuracy is not questioned. Secondly, it was not proved or claimed before the county court, that there was any fraud or improper design in making the statement. Thirdly, full notice was given to the opposing counsel, on the argument, that such a statement had been prepared, was mislaid, and would be handed to the committee. Fourthly, a committee for such a purpose is not like a jury ; they view the premises, hear statements, and decide in view of all the circumstances. They are not restricted to common law evidence.
    5. That the laying of the road across Keeney’s cove, was not objectionable as an obstruction of navigation. The finding of the court does not show that the navigation here was of any value. To sustain the objection, it must appear affirmatively, that this water is navigable for some useful or valuable purpose ; and that this easement, or valuable right of passage, has been disturbed, or will be of necessity destroyed ; neither of which appears from the finding. Wadsworth v. Smith, 2 Fairf. 278, 281. The claim of navigation at Kee-ney's cove, is a broad farce. It may be passed by a draw in th bridge by a platform aid upon a boat or by a ferry. It has been fact crossed, for many years, by a bridge and road, built by the owners of adjoining lands, without complaint or objection. No claim was made before the committee, that this was navigable water, or that any public right would be affected by the road.
   Ellsworth, J.

None of the errors assigned in this case, are of a serious character, or of difficult solution.

1. The first error is, that the county court refused to hear evidence that the ferry and roads were not of common convenience and necessity, i. e. to retry the facts which had been passed upon, by the committee. The county court is empowered, by section 28th of the act relating to ferries, to examine into the truth of the matters alleged, by the aid of the commissioners of the county, or otherwise. Of course, it could enquire by a committee of its own choice; and as this was done, and no objection is made to the fairness and regularity of their doings, there is no reason for a reexamination or reversal. Why should the county court reexamine the case, or rehear the testimony of witnesses, before the committee ? That committee was selected for the very purpose of repairing to the place itself, where the ferry was expected to be established, in order that, by their own observation, they could better decide upon its necessity, and the roads which might be needed. The court could not possibly be as well qualified, as were the committee, to decide upon the facts in controversy. Besides, the expenses of a re-hearing would constitute a most serious objection to such action by the court. In analogous cases of committees in chancery, or auditors, no such rehearing is allowed in mere matters of fact; though relief will be granted, if there is unfairness or informality in the proceedings.

2. The second error assigned is, that neither the court nor committee have laid out any roads leading to the ferry.

This error is altogether unfounded in fact. The committee, in their first report, state, that they have " fixed and determined upon a location for said ferry,” and recommended its establishment. After this, the committee were directed (the proceedings being in fieri,) in go forward, and lay out the necessary roads. Until the ferry had been established by the court, it could be known to the committee, that roads would be required ; and therefore, to lay them out, in the first instance, might, have been a useless expense. Besides, the court might have left it to the commissioners of the county, or to the select-men of Wethersfield and Glastenbury, to lay out the necessary roads to the ferry.

3. The third error assigned is, that the five rods adjoining the landing-place, is not laid out as a highway. We think the second report of the committee shows the fact to be otherwise. The committee say, they “ lay out, for the accommodation of said ferry, a tract of five rods in width on each side of the two rods of highway, to be used and passed over as a highway.”

4. The fourth error assigned is, that Mr. Welles transmitted to the committee, some two or three days after the hearing, a certain written statement, which unduly influenced them in their conclusions.

Were this committee a jury, empanneled to act in court, and sworn to decide according to the evidence given in court, and to keep their own counsel, and suffer no one to speak to them about the business or matters in hand, but in court, the objection would have great force. But this is not the character of the committee. They may, and they are expected to, hear evidence from all persons who feel an interest, on the ground or elsewhere. Generally, they have a regular hearing, and receive testimony according to the rules of courts of justice; and they ought never, any where, to allow of unfairness or advantage in any party or their attorneys. We see nothing of this character, in this instance.

On the trial, Mr. Welles stated, he had prepared a memorandum of what he claimed to be proved, but had mislaid it. Immediately after, he finds it, or prepares another, referring, for the truth of his facts, to the witnesses who had been examined, and sends it to the committee. We must presume, that the committee, in making up their judgment, made the necessary distinction between mere statement and proof; and that thev rejected all secret or unfair communications, if any there were, either before or after the public hearing. The plaintiffs do not pretend, that there was any fraud or design, on the part of Mr. Welles; and we do not believe his paper statement had an influence beyond what it was entitled.

5. The fifth, objection is that the roads is laid across the neck of Kenney's cove. This objection is made on the ground that the bridge or causeway interrupts navigation ; that it is a public nuisance, not to be allowed, without the special consent of the legislature. If it be indeed a nuisance, as claimed, the objection would deserve serious consideration ; and if it be an obstruction to navigation, which is carried on between the states, or with foreign nations, even the consent of our legislature would not be enough to secure this interruption of commerce. But there is no such navigation here, which belongs to the jurisdiction of one or the other. This cove cannot be said to be navigable, by any craft whatever, though at times, a fish-boat, or skiff, or Indian canoe may be pushed through its waters; or, in the winter months occasionally, a small sea-boat is laid up to avoid the ice of the river. But this is not navigation. That only is such, and those only are navigable waters, where the public pass and repass upon them, with vessels or boats, in the prosecution of useful occupations. There must be some commerce or navigation which is essentially valuable. A hunter or fisherman, by drawing his boat through the waters of a brook or shallow creek, does not create navigation, or constitute their waters channels of commerce. Lord Hale says, in his treatise de jure maris, “ There be some streams or rivers that are private, not only in property and ownership, but also in use, as little streams and rivers that are not a common passage for the king’s property.” The doctrine contended for, by the plaintiffs, would convert numerous bridges over private rivers and inlets on the margin of Long Island Sound, into unconstitutional obstructions and public nuisances. And so, too, if this highway cannot be laid out, for the reason alleged, then most of the highways and private ways, crossing the inlets and coves, from Stonington to Greenwich, are unconstitutional and unlawful ; for they were not laid out by permission from the state or the United States, Such adoctrine has not received, and never can receive, the sanction of any court of justice. Nothing can be more preposterous. The whole matter is quite too trivial to warrant the grave questions, which have been made by counsel The so called cove, is the mere outlet of “ Pewter-pot brook.”

Besides, it appears, this piece of land, or water, has been crossed, for many years, by a bridge and road maintained by the owners of adjoining lands; and we do not readily perceive, that the proposed improvement will increase the interruption of navigation.

And further, the county court will require the road, if necessary, to be so constructed, as to prove no obstruction. This might be done, by a draw-bridge, or in some other way, as should be found best.

We do not deny the principles laid down in the cases cited at the bar from Massachusetts and Maine. But they are not like this case, in their material characteristics. They are cases of the navigation of wide, deep, navigable rivers, extensively used by vessels entering from the sea.

The remaining errors are too trivial to demand our notice.

We advise the superior court that there is no error.

In this opinion the other Judges concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Church, Ch. J.

license: Public Domain

text:
    Gillis against Peck.
    Where the defendant, in an action of slander for charging the plaintiff with adultery with C, after pleading the general issue, with notice that he should justify the charge, by proving its truth, introduced first some direct evidence of the crime charged, and then circumstantial proof, tending to show grossly familiar, indecent and wanton conduct between the plaintiff and C; after which, he offered a witness to prove, that the plaintiff, during such conduct, declared to the witness, that he preferred married women, because if any consequences followed from his connexion with them, their husbands would be responsible ; it was held, that proof of such declaration was not admissible, either in support of the justification, or in mitigation of damages.

      Hartford,

      August, 1850.

    This was an action of slander, for charging the plaintiff with adultery with Caroline Edward, the wife of Moses D. Seward.
    The defendant pleaded the general issue, with notice that he would offer evidence to prove, that before the speaking of the words alleged, the plaintiff committed the crime of adultery with a married woman in the state of Vermont, whose name was unknown to the defendant, and openly declared and published the same of himself in the town of Southington, in this state ; and that, on the 1st day of January 1844, the 1st day of June and the 1st day of November, of the same year, at said Southington, the plaintiff committed the crime of adultery with said Caroline Seward, then the lawful wife of said Moses D. Seward ; and that, on divers other days and times between said 1st day of January 1844, and the speaking of said words, the plaintiff committed adultery with said Caroline Seward, and had adulterous intercourse with her ; she, during all that period, being the lawful wife of said Moses D. Seward.

    On the trial to the jury, after proof of the declaration by the plaintiff, the defendant offered direct evidence to prove, that the plaintiff, before the speaking of the words complained of, committed adultery with said Caroline Seward, in the year 1844, he then being in the capacity of an hostler, at a tavern kept by her husband.
    The defendant also offered circumstantial evidence to prove, that criminal intercourse continued between the plaintiff and Mrs. Seward, from the year 1844 to the time when the words were spoken by the defendant; and for the purpose of proving such intercourse, the defendant introduced evidence tending to show their grossly familiar, indecent and wanton conduct and demeanour towards each other, and of facts and circumstances connected therewith, from which the jury might infer, that they were living in adultery.
    Subsequently, in the course of the trial, the defendant offered to prove, by one Daniel Newton, that, the plaintiff, during such familiar, indecent and wanton conduct of himself and said Caroline, declared to the witness, that he preferred married women, because if any consequences followed from his connexion with them, their husbands would be responsible for them.
    To the admission of this evidence of the plaintiff’s declaration, his counsel objected ; and the court thereupon excluded it.
    The plaintiff having obtained a verdict, the defendant moved for a new trial,

      Hungerford and Toucey, in support of the motion,
    contended, That the testimony offered by the defendant, on the trial, and rejected by the court, should have been admitted. The general issue having been pleaded, with notice that the defendant would justify the charge, by proving the truth of the words, he introduced both direct and circumstantial evidence forthat purpose; and had the testimony rejected been admitted, it would have corroborated the direct evidence, and supplied the deficiency in the circumstantial. To render it admissible, it was not necessary that it should have been such as of itself to amount to direct proof, or, without the aid of other testimony, to establish the main fact; but if it constituted a link or item, which, in connexion with other proof, would make it out, or if it tended so to do, the testimony should have been received. The State v. McAlister, 24 Maine R. 139. Beddenv. Lamb, 17 Conn. R. 144. 2 Hag. Eccl. R. 226,7. The charge of adultery is generally proved, by proximate circumstances, and can seldom be proved, by direct evidence alone. Burgess v. Burgess, 2 Hag. Consist. R. 223. (1 E. Eccl. R. 528.) If the testimony was admissible for any purpose-either to prove the justification, or in mitigation of damages-the defendant in entitled to a new trial.

      Hooker, contra,
    contended, 1. That the testimony in question was not admissible in justification. This depends on the question, whether it tended directly to prove the charge. This being the defendant’s motion, it is for him to show clearly, that the evidence was relevant; nothing is to be presumed. The charge was, that the plaintiff had committed adultery with Mrs. Seward. In the first place, the declaration offered in evidence does not admit any thing. It merely states what the plaintiff would prefer, in certain circumstances. He does not say, that he ever carried out that preference in acts. Secondly, the declaration makes no allusion, express or implied, to Mrs. Seward. It is just as much proof of adultery with any other woman as with her. Thirdly, it does not appear from the motion, that the declaration was made during a conversation about Mrs. Seward; or about the “indecent and wanton conduct” of the plaintiff and Mrs. Seward; or about the plaintiff’s conduct, in any respect. No facts appear in the motion, that connect this declaration, in any way, with the particular crime which the defendant has charged upon the plaintiff. Best on Presump. 53, 4. Rose. Crim. Ev. 73.
    2. That the testimony offered was inadmissible, for the purpose of mitigating damages. General reputation alone, (and perhaps as to the point of character assailed,) is admissible for this purpose ; and particular facts are not. Even regarding this as an acknowledgment of adulterous conduct, it is not admissible in mitigation of damages. 2 Stark. Stand. 88. 2 Greenl. Ev. 403, 4. n. Petrie v. Rose, 5 Watts & Serg. 364. 4 Shep. R. 22. 2 Sup. U. S. Dig. 324, 5.

      Chapman, on the same side,
    was stopped by the court.
   Church, Ch. J.

The issue under the notice of justification, was, whether the defendant had committed the crime of adultery with a particular individual. Evidence which did not conduce to prove this, was not admissible.

The plaintiffhad made certain declarations of his preferences and his propensities, but not in any allusion to the person with whom the adultery was charged to have been committed. He asserted no fact, nor did he speak of any person, nor make any confessions conducing to prove him guilty of any crime at all; of course, such declarations did not conduce to prove a justification of the words spoken.

Nor was this evidence any more admissible, in the matter of damages. It did not go to prove the general character of the plaintiff to be bad ; nor his reputation as to the crime charged ; it does not even appear that the defendant knew that the plaintiff had ever made the remarks offered to be proved, before he made the slanderous imputations, so that he could been in the lead influenced by them to speak as he did.

It is said, that this evidence, of admitted, would have cor-robated or supplied deficiencies in other evidence, which the defendant had introduced. This does not appear from any such other evidence stated in the motion ; and of course, we cannot regard it. As it is, the proof offered seems to us to have been irrelevant for every purpose, and was properly rejected.

A new trial must, therefore, be refused.

In this opinion the other Judges concurred.

New trial not to be granted.


author: Waite J.

text:
    Barnes against The State :
    IN ERROR.
    Where an information on the statute relating to the sale of spiritous liquors, alleged, that on or about the 24th day of February 1849, said A did sell, and did offer to sell, by himself and by an agent, wines, spiritous liquors, and other intoxicating beverage, to one B, being addicted to habits of intoxication, said A knowing him tobe so addicted, and said B being also a common drunkard ; it was held, 1. that the information was not bad for duplicity, because it charged A with selling and offering to sell, as these acts may have been parts of one and the same transaction ; 2. that it was not obnoxious to this objection, because it averred, that A did the acts alleged, by himself and by an agent, as those acts may have been joint, and done by both, acting together; 3. that for the same reasons, it was not bad for uncertainty or repug-nancy.
    Where the prosecutor, in such case, for the purpose of proving that B was a common drunkard, at the time of the sale, offered evidence to show, that his habits of intoxication, of which proof had been given, continued for several weeks after the sale; it was held, that such evidence was admissible.
    This was a Writ of error from the judgment of the county court, rendered upon an information against Alphonso Barnes. There were three counts in the information, the two first of which were abandoned upon the trial before the justice. The third count was as follows :
    Hartford,
    August, 1850.
    “ And said grand juror further complains, that heretofore, to wit, on or about the 24th day of February 1849, at said Bristol, the said Alphonso Barnes did sell, and did offer to sell, by himself and by an, agent, wines, spiritous liquors, and other intoxicating beverage, to one Boylston Whitney, of said Bristol, the said Boylston Whitney being then and there addicted to habits of intoxication, and the said Alphonso Barnes then and there knowing him to be so addicted, and the said Boylston Whitney being also then and there a common drunkard ; against the peace and contrary to the statute in such case provided.”
    The defendant having been convicted before the justice, appealed to the county court, where the cause was tried before a jury. Upon that trial, the attorney for the state introduced Whitney as a witness, who testified, that on the 23d day of February 1849, he purchased of the defendant, Barnes, two quarts of whiskey, and paid him therefor.
    And for the purpose of proving, that Whitney was a common drunkard, at the time of the sale, the attorney offered evidence to prove, that, for more than two years previous to the sale, he was intoxicated, whenever he could procure spir-itous liquors; which habit continued into the month when the liquor mentioned in the information was sold to him. And to prove that this habit continued, and that there had been no reformation previous to the sale, he further offered testimony to prove, that he became intoxicated with the liquor purchased on the 23d day of February, and so continued, for several days ; and that he was intoxicated, at different times, for several weeks thereafter.
    The defendant objected to any testimony showing, that Whitney was in a state of intoxication after the 23d day of February. But the court decided, that the evidence need not be confined to the day of sale, but that acts of intoxication might be shown for a limited period afterwards, but only for the purpose of showing that he was a common drunkard at the time of sale.
    The jury having returned a verdict against the defendant, he filed a bill of exceptions, and also a motion in arrest of judgment, for the insufficience of the information, and after wards brought his writ of error in the superior court. The questions presented upon the record were reserved for the advice of this court.

      Chapman, for the plaintiff in error,
    contended, 1. That the information was bad. First, for duplicity. It charges two distinct offences-1. that the defendant sold; 2. that he offered, to sell. Stat. 600. § 13. It also alleges, that the defendant did the acts, 1. by himself; and 2. by an agent. Commonwealth v. Symonds, 2 Mass. R. 103. State v. Nelson, 8 N. Hamp. 163. Secondly, fir uncertainty. It is uncertain of which offence the defendat has been convicted. 1 Chitt. Cr. L. 169. 172. Rex v. Horne, Cowp. 682. Thirdly, for repugnancy. The sale could not be made, by the defendant himself, and by another, as his agent. 1 Chitt. Cr. L. 174. 200.602. 2 Sw. Dig. 414.
    2. That the testimony to prove acts of drunkenness after the sale, was improperly admitted.

      R. D. Hubbard, (state’s attorney,) and Hooker, contra,
    contended, 1. That the information was not obnoxious to the defects imputed to it. First, the allegation of a sale of divers kinds of liquors, is not double. The People v. Adams, 17 Wend, 475. Barth v. The State, 18 Conn. R. 432. 410. Secondly, the allegation of a sale by himself and by an agent, is not double or repugnant. The State v. Caswell, 2 Humph. 399. Commonwealth v. Towner, 8 Mete. 527. y v. Perry, 5 N. Hamp. R. 504. Thirdly, the allegation of a sale, andan offer to sell, did not make the information double. Commonwealth v, Tuck, 20 Pick. 356.360. Commonwealth v. Eaton, 15 Pick. 273. Whart. Prec. Indict. 130. Fourthly, duplicity cannot be set up after verdict. Kilbourn v. The State, 9 Conn. R. 500. Commonwealth v. Tuck, 20 Pick. 361. King v. Howard, 1 Cush. 141. Arch. Cr. Pl. 53.
    2. That the evidence excepted to was properly admitted. This is analogous to a question of insanity, with regard to which it is held, that the evidence need not be confined to the time the act in question was done ; though the point to be determined is, what was the state of mind at that time ? 2 Greenl. Ev. 650, § 690. Grant v. Thompson, 4 Conn. R. 208. Kinne v. Kinne, 9 Conn. R. 102. Dickinson v. Barber, 9. Mass. R. 225.
   Waite J.

In this case two errors have been assigned ; the first, that the county court refused to arrest the judgment ; and the second, that the court admitted illegal testimony.

1. It is insisted, that the third count in the information, upon which alone judgment was rendered, is bad, for duplicity, uncertainty, and repugnancy. It charges the defendant below with selling and offering to sell, spiritous liquors, each of which acts, it is said, constitutes a distinct offence ; and therefore, the count is bad for duplicity.

But there is nothing in the information, showing, that these acts might not have been parts of one-and the same transaction. They are alleged to have been done, at one time and one place. The sate may have been made in consequence of an offer to sell, made by the defendant.

No matters, however multifarious, will operate to make a declaration or information double, provided that all taken together, constitute but one connected charge, or one transaction. Rowles v. Lusty, 4 Bing. 428. (15 E. C. L. 291.) Thus, an information charging a person with having committed an assault upon another, and beaten him, will not be bad for duplicity, although assaulting a person may be a criminal offence, as well as beating him, provided both were parts of one and the same transaction.

So an information for a burglary, stating that the prisoner, in the night season, broke and entered a house, with intent to steal, and did in fact steal therein, will not be defective.

If an authority upon this subject were needed, we have only to refer to the late case of Regina v. Bowen, 1 Car. & Kir. 501. (47 E. C. L. 501.) There, the indictment stated, that the prisoner feloniously and wilfully did destroy, deface, and injure a certain register of baptisms, marriages and burials, in violation of a statute making a person committing either of those acts, guilty of felony. The counsel for the prisoner proposed to demur specially, upon the ground that the prisoner was charged with more than one offence. But, upon an intimation from Tindal, Ch. J., that the prisoner might be bound by the demurrer, and not be allowed to plead over, the demurrer was withdrawn, and the prisoner pleaded not guilty, He was convicted, and the question as to the sufficiency of the indictment, was reserved for the opinion of all the judges ; and they held, that the indictment was good, even upon a special demurrer.

It is further claimed, that the information is bad, because it is averred, that the defendant did the acts complained of, by himself and by an agent. But if the court can see, that the acts might have been joint, and could have been performed by both, acting together, then the averment will be in conformity with the truth. Now, there can be no more difficulty in two persons uniting in the sale of spiritous liquors, than in the commission of a burglary or a robbery-offences for which two persons are often joined in the same bill of indictment.

Had the information stated, that one sold rum, and the other wine, there would be weight in the objection. Two separate acts, performed by two persons, acting separately, would then be charged. But that is not the present case. All the acts, although performed by two persons, were done at one and the same time. And, as the statute makes the defendant liable for them, whether the offence was committed by him or by his agent, no injustice is done him, by charging him with.an offence committed by him and his agent together. The objection would not prevail, even upon a special demurrer.

2. The other error assigned, is, that the county court improperly admitted testimony as to the intoxication of Whitney, subsequent to the sale.

But the testimony was received, not for the purpose of showing that he was then a common drunkard, but that he continued such, to the time of sale, or rather that, at that time, there had been no reformation in his previous habits.

When the liquor was sold to him, he may have been perfectly sober ; and that condition may have been the result of a reformation, or of a mere inability to procure the means of intoxication. But when it was shown, that his subsequent habits were the same as they had previously, been, the presumption as to a reformation was removed.

The question whether, at a given time, Whitney was a common drunkard, stands much upon the same ground as the question whether a testator, at the time of making a will, was non compos meritis. In ihe latter case, the practice has been to admit evidence as to the condition of his mind subsequent to the execution of the will, as well as previous to that time, for the mere purpose of enabling the triers to determine his condition when the will was made.

Again, it is said, that in construing the statute relating to the sale of ardent spirits, it has been hidden, that a person who sells to a common drunkard, may be subjected to the penalty, without proof that he had knowledge of the character of the vendee ; and therefore, he ought not to be affected, by acts of the vendee, subsequent to the sale, and of which he could have no knowledge, at the time of the sale. Barnes v. The State, 19 Conn. R. 398.

The legislature, for the purpose of protecting, in some measure, the community from the many crimes committed by common drunkards, while under the maddening influence of ardent spirits, may have made it the duty of the rum-seller to see to it, at his peril, that he does not sell to such persons. Yet the rigour of such a statute will not change the rules of evidence, without some provision to that effect, which is not claimed in the present case. The mode of determining the question, whether a person, at a given time, was a common drunkard, must remain the same, as if the statute had been less rigourous in its operation. Besides, as already remarked, the evidence of subsequent acts of intoxication, was not received, for the purpose of showing that Whitney was previously a common drankard, but only that there had been no change in his habits&emdash;a fact strongly evinced, by the very act of purchasing ardent spirits.

We are therefore of opinion, that there is no error in the judgment complained of; and so advise the superior court.

In this opinion the other judges concurred, some of them expressing doubts.

Judgment to be affirmed.


text:
    Woodruff against Richardson.
    Hartford,
    August, 1850.
    In a motion in arrest of judgment, for misconduct of a juror during the trial, -&emdash;as converging with one not of the jury upon the merits of the cause,&emdash; it must be averred, that the party making the motion, was ignorant of such misconduct until after the verdict was rendered; otherwise the motion will not prevail.
    In an action of slander for making a positive charge of theft against the plaintiff the defendant cannot justify the charge, by proving that the defendant had just ground for believing the pio intifT to be a very dishonest man.
    Where the jury, in an action of slander, charging the plaintiff with theft, swindling, cheating, &c. rendered, at first, a verdict for the plaintiff, with 1100 dollars damages ; from which the judge dissented, and after expressing his own views and urging reasons against so large an amount of damages, returned them to a second consideration, the result of which was a verdict for H00 dollars damages ; it was held, that a new trial would not be granted for exces-siveness ofdamages [Twojudges dissenting, on the ground that the conduct of the plaintiff had been such as to preclude him from recovering any thing more than nominal damages ]
    This was an action of slander, for charging the plaintiff with dishonesty, at different times, and in various forms of speech, which were set forth in eleven counts of the declaration. The words stated in the first count were&emdash;“ He (the plaintiff.) is a damned thief. He has robbed me of more than a thousand dollars; and he isa damned robber.” The words stated in the second count, alleged to have been addressed to Hiram Woodruff, father of the plaintiff', were&emdash;“ I am going to see a lawyer, to have your son (the plaintiff,) arrested and put in jail, for swindling me out of my properly. He has swindled me out of two thousand dollars. He has made one thousand dollars a year in the business, (in partnership with the defendant.) and put the money in his own pocket. I will make a public prosecution of it ; and it will kill him.” The words set forth in the third count, were&emdash;“ I have lost two thousand dollars, by his rascality. The damned rascal has sunk two thousand dollars for me.” Those stated in anothercount, were&emdash;“ I have been to Wesiville, and found, that he has been dishonest there with his employers; and that he has taken money from their drawer, and put it into his own pocket.” According to the allegation in the other counts, the words were varied in the form of expression, but were substantially of the same import.

      The defendant pleaded the general issue, with notice that he should give in evidence matter justifying the charge.
    The cause was tried at Hartford, January term, 1850; and ilia jury returned a verdict for the plaintiff to recover eight hundred dollars damages.
    The defendant moved in arrest of judgment, alleging that William Bigelaw, one of the jurors empanneled to try the cause, during the trial, conversed with A ver Sperry, who was not one of the jury, and said to him, “ We (the jury) have got a tough case. It is the strangest that ever was in the world : people will come right into the court-house, and stand up, and lie before the public, and make it out of whole cloth. The case is all on one side, and no two ways about it:” meaning that the witnesses called by the defendant had testified falsely, and that the case was all on one side in fa-vour of the plaintiff. This juror afterwards united with his fellows in rendering the verdict against the defendant. The court found the matters slated in this motion in arrest to be true ; but of which of the parties, or which side, or of whose witnesses, the juror used this language, the court did not find, beyond what is implied from such language, and the verdict rendered, and the fact that the defendant’s witnesses were then under examination. The court also found, (what was not averred in the motion in arrest.) that the defendant had no knowledge whatever of said language or conduct of the juror, until after the verdict was rendered.
    The defendant moved for a new trial, because the verdict was against the evidence in the cause, and because the damages were excessive. The question as to the sufficiency of the motion in arrest, and of the matters therein alleged and found as a ground of arrest, as well as the questions arising on the motion for a new trial, were reserved for the advice of this court.
    The evidence on both sides was detailed in the motion ; but it is too voluminous to be inserted here; and perhaps if is not necessary fora light understanding of the points decided, that it should be. The testimony of the plaimifi’s witnesses as to the speaking of the words&emdash;substantially at least&emdash;was full and explicit; and the defence, either as a justification or in mitigation of damages, was the ground principally contested.

      Toucey and T. C. Perkins, in support of the motions,
    con tended, 1. That the motion in arrest ought to prevail. In the first place, the juror’s misconduct, if properly shown, is sufficient to set aside the verdict. He violated his oath ; spoke to one not of the jury about the merits of the cause; avowed a predetermined opinion against one of the parties; and that party was manifestly the defendant. His witnesses were then under examination, and were evidently referred to, by the juror. Did he charge the plaintiff’s witnesses with lying, and scout all his proof, and then give a heavy verdict in his favour? Secondly, the motion in arrest is sufficient. An exception for misconduct in a juror, during the trial, or afterwards before verdict, is not presumed to be waived ; because the party has had no opportunity to take advantage of it. Hence, it is not necessary to allege, that the ground of exception was not known.
    2. That the verdict was against the evidence in the cause. [Here the evidence was minutely examined.]
    3. That the damages were excessive.

      Chapman and Blackman, contra,
    contended, 1. That the motion in arrest, ought not to prevail. In the first place, from the facts stated in the motion, the court cannot see, that the alleged misconduct of the juror had, or might have had, an effect unfavourable to the party moving in arrest; and there fore, it will not grant the motion. Pettibone & al. v. Phelps & al. 13 Conn. R. 445. 450. Secondly, the alleged misconduct of the juror was not occasioned by the prevailing party, or any one in his behalf. Pettibone & al. v. Phelps & al. 13 Conn. R. 451. Bishop v. Williams, 2 Fairf. R. 495. Thirdly, the motion is insufficient, for want of an allegation that the alleged misconduct of the juror was before the trial closed. Pettibone & al. v. Phelps & al. 13 Conn. R. 442. Selleck v. Sugar Hollow Turnpike Company, 13 Conn. R. 459.
    2. That a new trial will not be granted for a verdict against evidence, unless it appears that the verdict was very dearly and palpably against the evidence in the cause. Stat. 90. ch. 13. § 155. Bacon v. Parker, 12 Conn. R. 213. Palmer v. Hyde, 4 Conn. R. 426. Lafflin & al. v. Pomeroy, 11 Conn. R. 440. Bulkley v. Waterman, 13 Conn. R. 328. Here the court cannot see, from the evidence disclosed, that a new trial would change the result.
    3. That where the evidence in a cause is contradictory, and its effects depend upon the credibility of the witnesses, and the probability of the facts narrated by them, the verdict will not be set aside as against evidence, although the preponderance, in the opinion of the court, is against the verdict. Douglass v. Tousey, 2 Wend. 352. Keeler v. Fireman’s Insurance Company, 3 Hill 251. Ex parte Bailey, 2 Cowen, 479. Astor v. Union Insurance Company, 7 Cowen, 202.
    4. That in an action for a libel or slander, a new trial will not be granted, on the ground of excessive damages, unless they are so flagrantly excessive, as to show, that the jury have been actuated by passion, partiality, or prejudice. Clark v. Binney, 2 Pick. 113. Moody v. Baker, 5 Cowen, 351. Shute v. Barrett, 7 Pick. 82. 86. Douglass v. Tousey, 2 Wend. 352. Coffin v. Coffin, 4 Mass. R. 1.
   Church, Ch. J.

1. The motion in arrest of the judgment in this case, we think, must be overruled.

We differ in opinion whether the misconduct of the juror, asserted in the motion, was of that character and aggravation as should be adjudged a sufficient ground for a new trial. That it was a violation of the juror’s oath, and for other reasons, highly censurable, we believe. However this may be, we unite in the opinion, that the motion in arrest is insufficient, because it does not aver, that the defendant was ignorant of the misconduct of the juror while the cause was on trial before the jury. In the case of Pettibone v. Phelps, 13 Conn. R. 445. we decided, that such an averment was necessary, although the cause of exception to the verdict, did not exist before the jury was empanneled, but arose during the trial, as in this case. By that decision we are governed.

2. The motion for a new trial, on the ground that the verdict is against the evidence, and that the damages are excessive, has suggested difficulties; and we are sorry to say, in regard to it, that our opinions are not unanimous.

We know how difficult it is to understand the real truth, and the exact merits of a case, from a written report of it alone. The true character and force of verbal evidence, can only be known and felt, by seeing a witness on the stand, and hearing his testimony as given by himself. This truth will always suggest a caution to courts, when they are called Up0n to arrest a verdict, and grant a new trial, because such verdict is against evidence, and especially in a case like this, in which many witnesses have testified, and some of them probably under the influence of prejudices, or strong feeling, or conflicting interests, which cannot be detected in a written statement of the case.

Upon a careful examination of the testimony, as we have read it, and an application of it to the several averments and innuendoes in the declaration, a majority of us are of opinion, that the verdict has correctly determined the issue.

Most of the words alleged to have been spoken by the defendant, are such as charge the plaintiff with being a swindler, a cheat, and impute to him general dishonesty. These charges, we think, are very well justified by the proof in the case ; and if no more than these had been the import of any of the words, a verdict for the plaintiff should not be sustained. But other words were spoken, and a more serious charge was made.

Harris Griswold testified, that the defendant asked him, if the plaintiff was going into partnership with him in farming ? He said, “You had better look out for him, as he will cheat you, if he can. He has swindled me out of two thousand dollars, clean cash, and he is a damned thief, and I am going to show him up.’’ I asked the defendant, if he could prove it, and he said, “ I will, if I have to rake hell for it.” Here is a strong and unexplained charge of theft&emdash;a felony ; and no fact or circumstance was stated or alluded to, by the speaker, from which the witness could infer any thing less than a positive charge of theft. This being so, the plaintiff had a right to claim a verdict in his favour, unless the defendant had proved this charge to be true. We think the defendant failed to justify, in this part of his defence.

The only evidence, as we suppose, upon which the defendant relied to prove the plaintiff to have been guilty of the crime of theft, is, that derived from the testimony of Stiles D. Sperry and L. W. Sperry. The plaintiff had been a clerk in their store, before his connexion in business with the defendant. The Sperrys had suspected the plaintiff of purloining small sums of money from the chance drawer in the store, and yet they retainded him in their service. On a certain oc casion a three dollar bank bill, marked, was missed from the drawer, and if it was taken improperly by any body, it was in the day time, when the store was open, and the resort of numerous customers. Whether this bank bill was taken by the plaintiff, or was paid out in the course of business, or was purloined by a stranger, these witnesses did not know. Nothing was said to the plaintiff on the subject, and no opportunity of explanation was given to him. This evidence, we think, falls quite short of proving a theft&emdash;it hardly justifies a reasonable suspicion of theft.

3. The plaintiff was therefore entitled to recover damages, to some extent. To determine the amount of damages, was entirely within the power and province of the jury. They assessed them at eight hundred dollars ; and it is now claimed that they are excessive.

That the defendant had just occasion for believing the plaintiff to be a very dishonest man, we have already said ; and therefore, we regret that the jury should have considered him as deserving so large a sum of damages. But, when called upon to interfere with the differing estimate of the jury, we ought to be able to point to something definite of which we can speak, before we disregard their verdict. It has been said, that verdicts in actions of slander and libel, have never been set aside for excessive damages. We have not looked through the history of the law of these actions to see if this be so. We do not know why they should furnish an exception to the exercise of a power over verdicts, which has been recognized in all other cases. We admit, that where damages are merely discretionary, courts, on the trial of causes, should not interfere, either to enhance or reduce them, without very obvious reasons ; and such reasons frequently exist. If the disproportion between the injury and the damages be so great as to indicate passion, prejudice, or corruption of the jury&emdash;if by mistake or otherwise, the jury have been misled by irrelevant matter, or have disregarded or misapprehended some rule of law; and thus have made an extravagant assessment of damages ; in such cases, as well as others which may well be conceived, it would be the duty of the court to put itS hand upon the injustice. But we have no such reasons, in the present case.

This cause, as appears from the record, had been long pending in court; the expenses incurred by the plaintiff had been unusually great; and much of the sum allowed as damages, will be required to pay them. If the jury intended an indemnity to the plaintiff, they have not greatly erred. And so, if they believed that the defendant had been unnecessarily severe in his charges against the plaintiff, and had proceeded beyond the reasonable limits of just complaint, impelled by motives of revenge, they might well enough think of this, in fixing the amount of damages.

Another consideration has had weight with us. The jury, upon the first consideration of the case, assessed the plaintiff’s damages at eleven hundred dollars. From this, the judge at the circuit entirely dissented, and returned them to a second consideration. In doing this, he expressed his own views, and urged reasons upon the jury against so large an amount of damages. In their final action upon the case, we must suppose, the jury acted under the influence of such views and reasons as the court had suggested. They must have considered the case calmly, and the result was, a verdict for eight hundred dollars. After this, we ought to hesitate much before we consent to disturb a verdict thus deliberately and dispassionately rendered ; and a majority of the court do not think themselves justified in doing it, and therefore, cannot consent to grant a new trial, for any of the causes alleged.

In this opinion, Stores and Hinman, Js. concurred.

Waite and Ellsworth, Js. were of opinion, that the evidence detailed in the motion, if it did not entirely justify the speaking of the words, showed the conduct of the plaintiff to have been such as to preclude him from recovering any thing more than mere nominal damages.

New trial not to be granted.


text:
    The State against McGowan.

      Hartford,

    July, 1850.
    Where an information charged the prisoner with burning a dwelling-house; and it appeared that the building burned was designed and built for a dwelling-house ; was constructed like one; was not painted, though designed to be, and some of the glass in an outer door had not been put in ; and it had not been occupied : it was held, that this was not a dwelling-house, in such a sense, that the burning of it would constitute the crime of arson.
    But the law is otherwise, with regard to a dwelling-house, once inhabited as such, and from which the occupant is but temporarily absent.
    In this case, it was the duty of the court, on the trial, to instruct the jury as to the law, and leave it to them to say, from the evidence, whether the building was a dwelling-house, within the meaning of the law thus explained.
    This was an information for setting fire to and burning a dwelling-house. The prisoner pleaded Not guilty; on which issue the cause was tried, at Hartford, January term, 1850.
    On the trial, it appeared, that the building burned was built by Norman Warner, and designed for a dwelling-house ; was constructed in the usual manner of a dwelling-house, in all particulars ; and was finished, except that it was not painted, as it was intended to be, and the glass was not set in the sash which had been placed in the upper half of one of the outer doors. The building stood by itself, and Was not appurtenant to any other building ; but it had not been occupied.
    Upon these facts the prisoner’s counsel claimed, and asked the court to instruct the jury, that the prisoner could not be convicted. The court did not so instruct the jury ; but left the question whether the building was a dwelling-house, for their determination, as a matter of fact.
    The jury found the prisoner guilty; and he thereupon moved for a new trial.

      Goodman and L. F. Robinson, in support of the motion,
    contended, 1. That the enquiry whether the building burned was a dwelling-house, was a question of law only, and should not have been left to the determination of the jury, as a matter of fact, without a previous statement of its opinion upon the law. By the common law, courts are bound to instruct the jury on every question of law raised in the trial of a criminal cause. Rex v. Dean of St. Asaph, 21 How. St. Tri. 1039. United States v. Wilson, Bald. R. 99. United States v. Battiste, 2 Sumn. 240. 243. Commonwealth v. Knapp, 10 Pick. 478. 496. Our statute is explicit to the same effect. Stat. 260. Here, there was no controversy about the facts; the case turned wholly upon a matter of law.
    2. That the court should have charged the jury directly, that the building burned was not a house, in such a sense as to be the subject of arson. A house, in this sense, must be a dwelling-house. 2 Stark. Ev. 49. Commonwealth v. Posey, 4 Call, 109. But an unfinished, uninhabited building, although intended for a dwelling-house, is not one within the statute. 2 Russ. Crimes, 556, 7. Rosc. Cr. Ev. 249. Ellsmore v. St. Briavells, 8 B. &Cress. 461. (15 E. C. L. 266.) Thach. Cr. Ca. 240.

      R. D. Hubbard, (state’s attorney) contra,
    contended, 1. That the matter submitted to the jury, was properly submitted as a question of fact. There is no rule of law from which, in connection with the facts stated in the motion, the court could deduce the conclusion, that the building was, or was not, a dwelling-house ; and therefore, the question was one of fact. This position has been established in analogous cases. See Commonwealth v. Squire, 1 Metc. 258.
    2. That if otherwise, this building was a house, and a dwelling-house. It was designed for a dwelling-house ; was constructed like one ; and was finished sufficiently to constitute it one. Many people wait for opportunity and means to finish their dwelling-houses. Does the law therefore refuse to protect them from incendiaries?

      Chapman, on the same side,
    declined argument.
   Church, Ch. J.

The statute of this state prescribes the punishment of arson, but it does not define the crime. We look to the common law for its definition.

Arson, by the common law, is the wilful and malicious burning of the house of another. The word house, as here understood, includes not merely the dwelling-house, but all out-houses which are parcel thereof. 1 Hale, 570. 4 Bla. Com. 221. 2 Russ. on Crimes, 551.

This information charges the accused with burning a dwelling-house, and the question in the case, is, whether the build- - ing, which was in fact burned by him, was a dwelling-house, within the meaning of the common law on this subject ? That it was a dwelling-house, as distinguished from a building of any other kind, is certain.

The building is described to be one built and designed for a dwelling-house, constructed in the usual manner. It was designed to be painted, but was not yet finished, in that respect, and not quite all the glass were set in one of the outer doors. The building had never been occupied, and it was not parcel nor an appurtenant of any other.

We think this was not a dwelling-house in such a sense, as that, to burn it, constituted the crime of arson. In shape and purpose, it was a dwelling-house, but not in fact, because it had never been dwelt in:&emdash;it had never been used, and was not contemplated as then ready for the habitation of man.

Arson, as understood at the common law, was a most aggravated felony, and of greater enormity than any other unlawful burning, because it manifested in the perpetrator, a greater recklessness and contempt of human life, than the burning of any other building, and in which no human being was presumed to be. Such seems to be the spirit of the English cases on this subject, and especially the late case of Elsmore v. The Hundred of St. Briavells, 8 B. & C. 461. (15 E. C. L. 266.) 2 Russ. on Crimes, 556. In that case, Bayley, J. in speaking of the building therein described, says, “ It appeared to have been built for the purpose of being used as a dwelling-house, but it was in an unfinished state, and never was inhabited. There cannot be a doubt, that the building in this case, was not a house in respect of which burglary or arson could be committed. It was a house intended for residence, though it was not inhabited. It was not therefore a dwelling-house, though it was intended to be one.”

A dwelling-house once inhabited, as such, and from which the occupant is but temporarily absent, would not fall within the foregoing principle.

It may not be necessary to determine another question, made in this case&emdash;whether it appertained to the court or the jury to determine the character of the building ? But we think it was the duty of the court to have instructed the jury as to the law of the matter, and leave it to them to say from the proof, whether the building was a house, within the meaning of the law thus explained.

The considerations we have now expressed, induce us to grant a new trial of this cause.

In this opinion the other Judges concurred.

New trial to be granted.


text:
    Case against Marks.
    In an action of slander, the defendant cannot proye his own poverty in mitigation of damages.
    Where the defendant, in an action for charging the plaintiff, an unmarried woman, with fornication, offered a witness, to prove, in mitigation of damages, that before the speaking of the words complained of, it had become a matter of common and general report, that the plaintiff had committed fornication ; it was held, that such testimony was admissible.
    But where the plaintiff, in such case, after objecting to the testimony offered by the defendant, and after it was excluded by the court, withdrew her objection, and the defendant, notwithstanding, neglected to examine the witness on that point, and the plaintiff had a verdict; it was held, that the error of the court in excluding the testimony, was, under these circumstances, no ground for a new trial.
    The rule of law, that in slander, the plaintiff may prove the wealth of the defendant, to aggravate damages, commented on.
    This was an action of slander, for charging the plaintiff, a feme sole, with sexual intercourse with Denison Crane and George Merriam. The defendant pleaded Not guilty, with notice that he should give in evidence the truth of the charge. The cause was tried at Hartford, January term, 1850.
    On the trial, the plaintiff introduced evidence tending to prove the speaking of the words alleged in the declaration, and also to prove the general good character of the plaintiff for chastity. The defendant then offered a witness to prove, that the defendant, at the time of speaking the words, was, and ever since has been, a man of small property ; to the admission of which evidence, the plaintiff objected ; and the court sustained the objection, and ruled out the testimony.

      Hartford,

      August, 1850.

    In the progress of the trial, the defendant offered a witness to prove, that before the speaking of the words by him, it had become a matter of common and general report, that the plaintiff had committed fornication with said Crane and Merriam respectively, for the purpose of mitigating damages. To the admission of this testimony the plaintiff objected. The court sustained the objection, and refused to admit the testimony so offered ; but the court said, the defendant might introduce evidence to prove the bad character of the plaintiff for chastity, before the words were spoken. The defendant proceeded with the rest of his proof : not, however, attacking the plaintiff's character, and ia the forenoon of the next day, finished his evidence ; when the plaintiff’s counsel informed the court, that they withdrew the objection, previously made by them, to proof by the defendant of common report. But the defendant’s counsel said, that they, after the ruling of the court, the day before, dismissed their witnesses to this point, and they had left town ; and they objected to the withdrawal of the objection at. that time. The court made no further determination, and the trial proceeded.
    The plaintiff obtained a verdict for 1572 dollars, 72 cents, damages; and the defendant moved for a new trial.

      Hungerford, in support of tire motion,
    contended, 1. That the testimony in regard to the property of the defendant, ought to have been admitted. Beunet v. Hyde, 6 Conn. R. 24.
    2. That the testimony as to the common report, ought to have been received. 2 Greenl. Ev. 282. § 275. (3d ed.) Earl of Leicester v. Wells, 2 Campb. 251. Commons v. Wallers, 1 Porter, 323. Calloway v. Middleton, 2 A. K. Marsh. 372. Henson v. Veach, 1 Blackf. 389. Young v. Slemons, Wright, 124. Nelson v. Evans, 1 Dev. 9.

      Toucey and Chapman, contra,
    contended, 1. That the defendant cannot be permitted to prove his want of pecuniary means, to diminish damages. That a man may slander his neighbour with comparative impunity, is not one of the privileges of poverty which the law will sanction. The plaintiff may perhaps prove that the defendant is a rich man, to aggravate damages ; to show the greater extent of the injury to the plaintiff, in consequence of the defendant’s wealth and influence ; and this is as far as any case has gone. Bennet v. Hyde, 6 Conn. R. 24. 2 Greenl. Ev. 276. § 269. (3d ed.)
    2. That the defendant could not prove, that it was reported, before the speaking of the words, that the plaintiff had been guilty of the crime imputed to her; but the defendant must resort to proof of general bad character. Wolcott v. Hall, 6 Mass. R. 514. 518. Bodwell v. Swan & ux. 3 Pick. 376. 2 Greenl. Ev. 281, 2. § 274. (3d ed.) Treat v. Browning & ux. 4 Conn. R. 408. Matson v. Buck, 5 Cowen, 499. Root v. King & al. 7 Cowen, 613. 629. Mopes v. Weeks, 4 Wend. 659. Fisher v. Patterson, 14 Ohio R. 418. Young v. Bennett, 4 Scam. 43.
   Church, Ch. J.

No justification of the words spoken was proved, on the trial; but the defendant, in mitigation of damages, offered to prove, that at the time of the speaking of the words, he was a man of very small property, and was worth but little. In the case of Bennett v. Hyde, 6 Conn. R. 24. this court held, that the plaintiff might prove the amount of the defendant’s property, to aggravate damages, in an action of slander; and this solely on the ground of a supposed weight and influence which wealth might give to the slanderous words. We do not intend to overrule that decision, although we could better reconcile it to our views of correct principle, if we could see that wealth alone, especially, in this state of society, gives, of course, to its possessor, rank and influence. If it does, in some instances, this is not so commonly true, we think, as that a new and important legal principle should grow out of it. However this may be, in the present case, it is the defendant who offers to prove his own pecuniary condition, to shield himself from the consequences of his own wrong. For this we have no precedent; and we think this evidence was properly rejected.

The defendant, also, for the same purpose of mitigating damages, offered to prove, that it had become a matter of common and general report, that the facts charged by the slanderous words, were true, before they were ever spoken by him.

We shall not attempt to reconcile all that has been decided by courts, or said by judges, upon this branch of the law of slander. Dei isions have been variant and vacillating, and consequently, there has not been an entire uniformity of practice, on this subject, at the circuits in this state ; but we believe the more common practice has been, to admit such evidence.

In the case of Bailey v. Hyde, 3 Conn. R. 463. this court said, “ Or if the fame of a person is disparaged, by there having been reports in the neighbourhood, that he had been guilty of practices similar to those imputed to him, it is admissible.” So also in the case of Treat v. Browning, 4 Conn. R. 408. evidence had been admitted, on the trial, of general reports that the plaintiff had committed the alleged crime, as proof of character, and in mitigation of damages. And this was approved by this court; and the English cases recognizing the same principle, were cited in the case with approbation. These cases certainly justify what we believe to have been the general understanding of the legal profession in this state, on this subject.

If there has been doubt as to this principle, there are principles lying on each side of it, which seem at length to be settled, and now well understood.

To prove that another person told to the defendant the same story, is not admissible. 1 Sw. Dig. 487. 2 Stark. Sland. 98. But it is competent for the defendant, in mitigation of damages, to prove the general character and reputation of the plaintiff to be bad. 1 Greenl. Ev. § 55. 2 Id. § 424. Roscoe on Ed. 328. 2 Stark. Sland. 83. And now the question is, whether the defendant may prove, in mitigation, that, before he spoke the words, it was commonly and generally reported, that the facts charged by the words spoken, were true ?

As we have said, it seems now to be settled, that a plaintiff of a degraded reputation and character, ought not, in an action of slander, to recover the same amount of damages as one of a pure and spotless name. And upon this principle, in the case of the Earl of Leicester v. Walter, 2 Campb. 251. it was decided, that in an action for a libel, the defendant might prove, in mitigation of damages, that at the time of the publication, the plaintiff’was generally suspected to be guilty of the charge imputed to him ; and this because such general suspicions detracted from his reputation. So in the case of Wyatt v. Gore, Holt's N. P. Ca. 299. it was holden, that the defendant might show, that the substance of the libel had before been published in a newspaper, and thus generally circulated. Again, in-v. Moor, 1 Mau. & Selw. 285. a witness was admitted to testify, that he had heard reports in the neighbourhood, that the plaintiff had been guilty of practices similar to the crime charged. And Lord Ellenborough, in admitting the evidence, said, “certainly, a person of disparaged fame is not entitled to the same measure of damages with one whose character is unblemished.”

Although the evidence admitted in the cases cited might not amount to a general impeachment, of character, or even to an impeachment of it in respect to the crime charged, it certainly did, and in all such cases must, impair a general good character, to some extent.

But the case we are considering, we need not compare with any of the cases we have referred to, either in this state or in England. This is not a case where the evidence offered was of nothing more than suspicions and rumors, but where the facts repeated by the defendant, were commonly and generally reported to be true. Could this be so, and yet the plaintiff’ be a person of unsullied fame ? But it is not upon this ground alone, or chiefly, that we think this evidence was admissible.

There was a general report throughout the community, that the facts staled by the defendant were true, and he added the weight of his declaration to the current story. He repeated the news of the day.

The question of intention, in these actions, is always prominent. Intent is of the gist of the action ; at least, it lies at the foundation of damages; and although malice will be presumed from the falsehood of the words, a presumption from this cause may be rebutted, and the circumstances under which they were spoken, may always be shown, to give to them their true character. Without resorting to any refine-merits on this subject, we ask, does not every man feel, that, as a juror, he could never punish with the same amount of damages the reporter of a current story, although false, as the man whose malice originally forged the falsehood ? The evidence offered in this case, standing, as it does, on this motion, without further explanation, had, as we think, a legitimate tendency to reduce the damages. And the plaintiff could not complain of surprise, as has been suggested in some of the cases, as a reason for rejecting evidence of particular facts, because common and general report is presumed to have been as well known bv himself as by others. If, however, the defendant had participated in originating the false reports, or had given them a currency by repetition, with a knowledge or well founded belief of their falsehood, his guilt would have been aggravated, and the damages, for such reason, should have been increased.

After all, the defendant cannot now avail himself of the opinions and principles we have advanced ; for although the evidence which he offered on this point, was objected to, and rejected ; yet the objection was seasonably withdrawn, and while the witness, of whom the enquiry was made, was yet in court; and the defendant declined to repeat his question to him, and therefore waived this subject of enquiry, from which, we must suppose, that he was not in earnest in making the enquiry at first. Under such circumstances, we cannot advise a new trial.

In liáis opinion the other judges concurred.

New trial not to be granted.


author: Storks, J.

text:
    Barnes against The State :
    Hartford,
    August, 1850.
    IN ERROR.
    Where the state, on the trial of a complaint against B, for selling wine and spiritous liquor contrary to the statute, having introduced evidence to prove the facts alleged in the complaint, B, to rebut such evidence, adduced evidence to prove, that at other times he had refused to sell; and thereupon the state, to show, that such refusals of B were not real, but a mere pretence, and thus to rebut B's evidence, offered in evidence a record of the court, showing the pendency, at the time of those ref isal- of a prosecution against B for selling wine and spiritous liquor in violation of the statute ; it was held, 1. that such record was admissible to show the existence of such prosecution, at the time referred to, and thus to counteract the effect of B's evidence ; 2, that if B's evidence was irrelevant, and for that reason inadmissible, B could not successfully claim a reversal of the judgment against him, on the ground that the evidence adduced rebut his irrelevant evidence, was also irrelevant.
    This was a grand-juror’s complaint against Chauncey Barnes, for a violation of the statute relating to the sale of spiritous liquors, brought originally to a justice of the peace, and from his judgment appealed to the county court.
    The complaint alleged, that on the 29th day of September, 1849, at Hartford, said Chauncey Barnes, not being a tav-erner, did sell wines and spiritous liquors to a certain person whose name is to the grand-juror unknown, and did suffer and permit said wines and spiritous liquors, so by him sold, to be drunk by said person, in his, the said Barnes’’s house, store or shop, when and where sold; against the peace, &c.
    On the trial of the cause in the county court of Hartford county, November term, 1849, the attorney for the state claimed to have proved the facts alleged in the complaint. The defendant offered several of his boarders and others to prove, that from the 1st of June 1849, to the commencement of this prosecution, they had repeatedly called on the defendant at his house, for wine and spirit, and been refused, and had seen none sold in his house. By this species of evidence, the defendant claimed to have proved, that none was sold, and that the witnesses on the part of the state must be mistaken. To counteract the evidence thus offered, and to show a motive for the defendant’s conduct, the attorney for the state offered the record of the county court at its August term 1849, showing that a prosecution was pending against the defendant, from said 1st of June until the middle of August, for selling wine and spiritous liquors ; to which the defendant pleaded guilty. And the attorney for the state claimed, that it was only during the pendency of such prosecution, that the defendant refused to sell. He also offered, in connexion with such record, a witness to prove, and claimed to have proved, that during the same period, or some portion of it, when the defendant claimed that he refused to sell to sundry applicants, he did sell to divers other persons. To the admission of said record the defendant objected, on two grounds: first, that it did not tend to prove the issue; and secondly, that the sale complained of in the record, was made by the defendant, before he moved into the house in which he resided on the 29th of September last&emdash;a fact ad
    The court admitted the record, but charged the jury, that it was not to prove the guilt of the defendant; but if he refused to sell, under the hope that the first prosecution would be withdrawn, or the penalty lessened, by his stopping, or professing to abandon, further sales, it would tend to show a motive for his conduct other than the one alleged.
    The jury returned a verdict against the defendant; who thereupon filed a bill of exceptions, and brought a writ of error in the superior court; which was reserved for the advice of this court.

      Goodman, for the plaintiff in error,
    contended, That the record adduced in evidence, by the public prosecutor, should have been excluded. In the first place, it did not appear, from the face of the record, that the same fact was there in issue as is in issue here. Church v. Leavenworth, 4 Day 274. 277. Ryer v. Alwater, Id. 431. 433. Cowles v. Harts & al. 3 Conn. R. 516. 522. 1 Stark. Ev. 195. 197. A record is not evidence of any matter that comes collaterally in question. 1 Stark. Ev. 190. Secondly, this record was not made admissible, by reason of any testimony offered by the defendant. It did not tend to disprove any fact which the defendant claimed to have proved. Thirdly, the parol testimony, in connection with which the record was introduced, did not render the record admissible. Fourthly, if the court erred in admitting the testimony offered by the defendant, this did not justify it in admitting the record in question. Stringer v. Young, 3 Pet. R. 336, 7.

      R.D. Hubbard, (state’s attorney.) contra,
    insisted, That the record of conviction was admissible in evidence. In the first place, it was offered, not to prove the truth of the matters then ¡11 issue, but the fact that such a proceeding was pending, at that time ; and for this purpose, it was not res inter alios acta, or in any respect exceptionable. Secondly, it tended to show why the defendant did not sell publicly and indiscriminately ; and so to rebut the defendant’s evidence.
   Storks, J.

If the evidence adduced by the defendant below, to show that he refused to sell wines, &c., at other times than that when the state claimed to have proved that he sold them, was properly admitted, for the purpose of meeting said proof of the state, the evidence offered by the state, to rebut said evidence of the defendant, was clearly admissible. It tended to prove, that these refusals of the defendant were not real and in good faith, but a mere sham and pre-tence, and therefore to destroy the effect of the defendant’s evidence.

The record of the proceedings pending against the defendant, when he refused to sell liquors, as claimed by him, was properly admitted to show the existence of those proceedings ; and it was offered for no other purpose.

But the evidence thus adduced by the defendant was, as he now claims, irrelevant. It neither conduced to disprove the sale of liquors, as alleged in the complaint, and claimed to have been proved by the state, nor to discredit the testimony of the state to prove such sale. It was merely the general statement of the witness, that he boarded in the defendant’s house, when the sale was claimed to have been made; that he had called on the defendant for liquors, and been refused ; and that lie had never seen any sold by him. This, of itself, would prove nothing. If the defendant had claimed to prove, that the witness was present when the sale, claimed to have been proved by the state, took place, it would be otherwise. In that case, it would have been proper to show by him, that he did not observe it. Unless he was present, his not seeing such sale would not show that it did not take place, nor tend to prove that a witness, who stated, that he saw it, testified falsely; nor would a refusal, by the defendant, to sell to the witness, tend to show, that he did not sell to another person. But when such evidence had been received, at the instance of the defendant, and was before the court, it was a very singular claim on his part, that it should not be rebutted by the state. He ought to have waived or withdrawn his own irrelevant evidence, before he objected to such rebutting proof. It would be passing strange, if the defendant could claim the benefit of the evidence which he had adduced, and, at the same time, exclude the evidence on the other side, to refute it, on the ground that his own evidence was irrelevant. According to this claim, the state could not have even been allowed to impeach the credit of the defendant’s witness, either by general or other testimony; which is absurd.

But the defendant claims, that, however it might be with his own testimony, the evidence of the plaintiff was irrelevant; and that therefore, there was error in admitting it, for which the judgment below should be reversed. As the case stood, the evidence of the state was unnecessary, rather than irrelevant. But it is obvious, that its introduction could do no possible hurt to the defendant, since it could affect none of his testimony from which he was legally entitled to any benefit. If, therefore, there was any error here, it was merely abstract; and we are not aware of any principle which requires us, in such a case, to reverse a judgment. Alling v, Shelton, 16 Conn. R. 436.

We advise that the judgment below be affirmed.

In this opinion the other Judges concurred.

Judgment affirmed.


author: Hinman, J.

text:
    Clark against Savage :
    Hartford,
    August, 1850.
    IN ERROR.
    Where the plaintiff’s account, in an action of book debt, consisted of sundry items, among which were two of memorandum notes, in this form-“Good to A. B. for fifty dollars, value received”-and it appeared, that these writings were given for money loaned, and at the time when the loans were made; it was held, 1. that money loaned may properly be charged on book; 2. that the taking of these notes for the moneys loaned, did not preclude the plaintiff from charging them on book, unless there was an agreement between the parties that the notes should be taken in extinguishment of the book debt; 3. that whether such an agreement existed, was to be determined by the triers, from all the circumstances proved in the case, as a question of fact; 4. that the form of the notes, and the circumstance that the plaintiff’s account embracing these charges, had been presented to the defendant, and retained by him without objection, not only furnished no evidence of such agreement, but indicated the absence of it.
    This was an action of book debt, brought by Samuel G. Savage against Randolph Stockbridge and David Clark, late partners in business under the name of Randolph Stockbridge. The defendant, Stockbridge, died, during the pendency of the suit. The cause was committed to auditors, who, after hearing the parties, found due from the defendant to the plaintiff, the sum of 428 dollars, 90 cents.
    The defendant filed a remonstrance against the acceptance of this report; on which the court found the following facts. On the hearing of the cause before the auditors, the plaintiff offered in evidence two writings of the following tenor: “Good to Savage & Co. for one hundred and fifty dollars, value received. Hartford, April 21st, 1845. Randolph Stockbridge.” “$50.-Good to Savage & Co. for fifty dollars, value received. Hartford, February 26th, 1845.” These writings were accompanied with evidence, that they were given for moneys loaned by the plaintiff to Stockbridge & Clark, at the times they respectively bear date; and that afterwards, in the life-time of Stockbridge, a copy of the plaintiff’s account against the defendants, including therein charges for these writings, was made by the plaintiff, and presented to him, Stockbridge, who kept such account in his possession, for a considerable period of time, and until his death; and that no objections were ever made by him to the correctness of the account as thus presented. To the admission of these writings in evidence, the defendant objected, because it appeared that they were given for money loaned, and when the two loans were respectively made, and in no way connected with the other items in the plaintiff’s account; and because the writings, and the debts evidenced thereby, were not proper charges on book. The auditors overruled the objection, and admitted the writings in question, and they were allowed in the adjustment of the accounts between the parties. The court accepted the report of auditors, and rendered judgment thereon. The present writ of error was thereupon brought by the defendant.

      Toucey and Chapman, for the plaintiff in error,
    contended, 1.That as the action of book debt was originally introduced to enable a party to recover for articles sold and delivered, without any writing or other proof than the oath of the party; and as the testimony of the parties and of other persons interested, is admissible in this action, contrary to the rules of the common law, it ought to be, and has been, restricted to its original objects. Terrell v. Beecher, 9 Conn. R. 344. 349.
    2. That the writings offered in evidence were promissory notes. Chitt. Bills, 129. Morice v. Lee, 8 Mod. 362. Franklin v. Marsh, 6 N. Hamp. R. 364. Kimball v. Huntington, 10 Wend. 675. Smith v. Allen, 5 Day, 337.
    3. That these promissory notes cannot be recovered in an action of book debt. Bradley v. Goodyear, 1 Day, 104. Humphrey v. Oviatt, 8 Conn. R. 413. Terrell v. Beecher, ubi supra.
    4. That no inference can be drawn from the consent of Stockbridge, which can affect this case.

      Hungerford and Fellowes, for the defendant in error,
    contended, 1. That money lent is a proper subject of book debt charge. 1 Sw. Dig. 582. Vermont Mutual Fire Ins. Co. v. Cummings, 11 Verm. R. 503. Chellis. v. Woods, Id. 466, Hickok v. Risley, 15 Verm. R. 42. Weller v. McCarty, 16 Verm. R. 98.
    2. That the memorandum, taken as evidence of the loan, makes no difference. Boutwell v. Tyler, 11 Verm. R. 487. Smith v. Brush, 11 Conn. R. 359. Bill v. Porter, 9 Conn. R. 31. Arnold v. Crane, 8 Johns. R. 79.

      3. That if the charge on book was not originally proper, it was competent to the parties to make it so, by their assent or agreement. Spear v. Peck, 15 Verm. R. 566. Eaton & al. v. Whitcomb, 17 Verm. R. 641. 2 Greenl. Ev. 126. § 127.
    4. That the fact that the plaintiff’s account, including the charges in question, was rendered to the defendant Stock-bridge, and kept by him, a long time, without objection, is evidence from which such assent or agreement might be inferred, by the auditors. It is also evidence to repel any presumption arising from the writings, that the parties did not intend that the charges should not rest on book. 1 Sto. Eq. 500. § 526, 7. 2 Greenl. Ev. 105, 6. § 126, 7. and the cases there referred to. Foster v. Allanson, 2 Term R. 479.
   Hinman, J.

The original action was book debt, and was referred to auditors. At the trial before them, the plaintiff introduced in evidence two promissory notes, signed by Randolph Stockbridge, who was one of the defendants when the action was commenced, but has since deceased. The present defendant was interested in his business as a dormant partner. The notes were given for money borrowed, by the concern; and it appeared, that the parties had had other dealings, and that a copy of the plaintiff’s account, including these two charges, with other items, admitted to be properly charged on book, was made out and presented to Mr. Stock-bridge, and he made no objection to any part of it, though he kept the account for a considerable time before his death.

The notes were not in the ordinary form of such instruments, but rather in the form of memorandum notes.

The defendant objected to the admission of the notes in evidence; but the auditors admitted them, and allowed them to the plaintiff in the adjustment of the account; and the superior court, on remonstrance, having accepted the report, the question is, whether this decision was correct. We are satisfied that it was. The plaintiff in error does not complain of it, on the ground that money lent may not properly be charged on book. This, according to Judge Swift, was a question formerly made in our courts; but he intimates the opinion, that money may as well be entered on book as any other article; and, since his day, the practice of so charging it has become universal, and has been too often sanctioned by our courts, to leave this, at this time, an open question 1 Sw. Dig. 582.

The defendant insists, however, that by taking notes for the sums as they were advanced, the party has deprived himself of the right to charge and recover for them as a book debt. But a note is a security of no higher nature than a book debt; they are both simple contract debts; and there can be no merger, or extinguishment of one by the other, unless it is so agreed by the parties. Bill v. Porter, 9 Conn. R. 23.

If, then, these sums were properly charged on book, at the times when they were advanced, it is clear, that the taking of notes for them also, was not an extinguishment of the book debt. Undoubtedly, a party may accept a note in satisfaction of a book debt; and so he may give up a note as paid and satisfied, and agree to charge the amount on book. But nothing of this sort is shown, or claimed even. The naked claim is, that the taking of a note for money, precludes the party from charging it on book. This not being so, the right to charge these sums on book all depends upon the understanding and agreement of the parties at the time; and this from all the circumstances proved in the case, was determined by the auditors, as a question of fact, rather than of law. It is impossible for us to say, that it was not proved before them, that the money was not advanced, and charged, long before the notes were given; but whether this was so, or not, if the circumstances were such as to satisfy the auditors, that the parties intended that an account should be kept of the advancements, on their books, the notes, as we have seen, do not operate to extinguish the account; and the finding would be conclusive upon the fact. We could not review it, even had the notes been in the usual form, and had there been no evidence of the presentation of the account to Mr. Stockbridge, with no objection to it by him. It would still have been a question of fact, whether the right to charge existed at the time. If, however, we were to go into this question, we could not doubt that the decision of the auditors was correct. The memorandum notes taken by Mr. Savage, indicate, that the loans were temporary accommodations, not intended to remain any considerable time unpaid; they were of such sums as are ordinarily charged on book; and the presentation of the account, and no objection being made to it, is evidence of the admission of Mr. Stockbridge, that it was correct. We do not see, therefore, how the auditors could have come to any other result. Taking a note for money, in the ordinary form, and on time, would not be a very strong circumstance against the right to charge the money on book; but in the form in which these were taken, it amounts to very little; and whatever weight it might otherwise be entitled to, is very satisfactorily destroyed, by the knowledge which Mr. Stockbridge had of the account, and his making no objection to it.

We are of opinion, therefore, that there is no error in the judgment complained of.

In this opinion the other Judges concurred.

Judgment affirmed.