text:
    The State vs. Powers.
    Courts take judicial notice of the local divisions of the state into towns. „
    A complaint by a grand juror “for selling spirituous and intoxicating liquors” in violation of the statute, which specifies the town but not the county within which the alleged offence was committed, is sufficient.
    The principle, decided in the case of the State v. John Millers 24 Conn. R., 522, that an information for a statutory offence need not negative an exception in a proviso in the statute, following words of general prohibition, affirmed.
    This was a grand-juror’s complaint to a justice of the peace for selling spirituous liquor contrary to the statute entitled “An act forthe suppression of intemperance.”

      The complaint was as follows:
    “To Russell Wells, of the town of Groton, in New London county, a justice of the peace for said county, now holding a court'in Stonington, comes Ezra Chesebro, a grand-juror of said town, duly appointed and sworn, and complaint makes, that Richard Powers of said town, viz.: at said town of Stonington, on the 22d day of August, Anno Domini, one thousand eight hundred and fifty-five, with force and arms, did sell to David Lanphear, of Groton, in said county, on the 22d day of August, A. D. 1855, two glasses of spirituous or intoxicating liquor; also, one pint of intoxicating liquor; also, at the same time and place, did sell to him, the said David Lanphear, two quarts of spirituous or intoxicating liquor, which he, the said Powers, called Santa Cruz ram, against the peace, &c.”
    A trial was had before the justice, and the defendant was found guilty. From this decision he appealed to the superior court, where he was again tried and convicted. He thereupon filed his motion in arrest of judgment for the insufficiency of the complaint, which motion was reserved for the advice of this court.

      Converse in support of the motion.
    1. It does not appear from the complaint that the acts complained of were done within the jurisdiction of the grand-juror who brought the complaint, or of the justice, or the superior court before which he was tried. Rev. Stat., Tit. 6, ch. 12, § 158. 2 Sw. Dig., 397, 398.
    2. An exception in a penal statute contained in the enacting clause, must be distinctly negatived in the complaint for a violation of such statute. This rule has been repeatedly established both in this country and in England. 1 Chit. Cr. Law, 285. 1 Greenl. Ev., §§ 78, 79. Rex v. Jarvis, 1 Burr., 148. Spiers v. Parker, 1 T. R., 141. Commonwealth
      v. Maxwell, 2 Pick., 139. 8 Pick., 370. 19 Pick., 304. 5 Denio, 79. 18 Verm., 195. Morse v. The State, 6 Conn. R., 9. Crandall v. The State, 10 Conn. R., 349.
    3. The exception in this statute is clearly within the enacting clause. The words are, “no person shall sell, &c.> except as hereinafter provided.” The exception is part of the description of the offence, and is in the same clause which enacts it. Selling is not absolutely and unconditionally prohibited, but selling except in a certain prescribed form. All the facts which the statute makes necessary to constitute the offence must be distinctly stated. Every thing charged in this complaint may be true, and yet the accused be innocent. It does not affect this question that the penalty is found in another section. Chit. Crim. Law, 284. 2 Sw. Dig., 409. King v. Bryan, 2 Strange, 1101. Spiers v. Parker, 1 T. R., 141. Teele v. Fonda, 4 Johns., 306. 18 Verm., 196. 6 Conn. R., 9. 20 Pick., 362.

      Willey, (state attorney,) and Palmer contra.
    The complaint is sufficient to uphold the verdict.
    1. The rule as to strictness of construction of complaints in offences of the kind charged, has been greatly relaxed; the intent of the legislature is to be the rule which will govern. Rawson v. The State, 19 Conn. R., 292. Rev. Stat., 831.
    2. A proviso or exception, unless the same be recited and set forth in the section of the statute creating the offence, and be descriptive of the offence, need not be negatived in the complaint. Morse v. The State, 6 Conn. R., 12. 1 Chit. Crim. Law, 283.
    The case of Crandall v. The State, 10 Conn. R., 340, does not conflict with this position, as the exception was set forth in the enacting clause of the statute upon which the information in that case was founded.

       The first section of that act is in the following words :
      “ No person shall manufacture or sell, by himself, his servant, or agent, directly or indirectly, any spirituous or intoxicating liquor, or any mixed liquor of which a part is spirituous or intoxicating, except as is hereinafter provided. And ale, porter, lager beer, cider, and all wines, are included among intoxicating liquors within the meaning of this act.”

   Ellsworth, J.

We think there is no force in the objection, that the grand-juror who prosecuted, and the justice who tried the defendant, had no jurisdiction of this complaint. It is said that the complaint does not state that the offence was committed within the county of New London. Stonington is the place named in the complaint, and the time of committing the offence is named; and although the county is not named, we can judicially take notice of that, which is sufficient. The county and the towns within it are geographical divisions of the state which courts may always take notice of.

The other objection, the want of a negation in the information, that the defendant’s case comes within the excepted cases in the statute,' we have decided is not well taken, in the case of the State v. John Miller, 24 Conn. R., 522.

Our advice to the superior court is, that the complaint is sufficient.

In this opinion the other judges, Storrs and Hinman, concurred.

Complaint sufficient.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Bebee vs. The Hartford County Mutual Fire Insurance Company.
    Where a local agent of a fire insurance company, authorized to receive and forward to the company applications for insurance, and instructed by the company to consider himself in so doing, the agent of the party applying ^rather than of the company, neglects to communicate to the company facts disclosed to him by an applicant for insurance, material to the risk, and the company in consequence issues a policy in ignorance of such facts, — the neglect of such agent is not chargeable to such applicant, unless such agent be also acting as the agent of the applicant: and the instructions of the company above stated, not communicated to the applicant, do not make him such agent.
    An applicant for insurance is bound to disclose fairly and with entire frank-/ ness, all facts known to him, which are material to the risk, and the neglect to do so, even though by inadvertence and without actual fraud, will vitiate the policy.

      But the application of this rule does not require him, after making a general statement of such facts, to go into details about -which the insurer manifests no interest and makes no inquiry.
    Where, on a motion for a new trial for a verdict against evidence in an action/ on a fire insurance policy, it appeared, that before the insurance was effected, fires had repeatedly occurred in the buildings insured, and that the plaintiff in applying for insurance omitted to state the precise number of fires, which had so occurred, but from the whole evidence it did not appear that there was any neglect to communicate material facts, and especially no intentional concealment on his part; it was held, that such motion ought not to be granted.
    This action was brought by appeal from the county court to the superior court for New London county, and was tried at the term of the latter court holden in January, 1856.
    The plaintiff, in his declaration, claimed to recover of the defendants the sum of $1,475, upon their policy of insurance dated November 5th, 1856, for the loss of a dwelling-house and barn. The defendants pleaded the general issue, with a notice setting forth that at the time the plaintiff applied for and obtained said policy of insurance, the premises were exposed to the hazard of incendiarism, and that fires had repeatedly occurred^therein just before that time, all which was well known to the plaintiff, and was not disclosed to the defendants, and that the plaintiff in obtaining said insurance suppressed facts which were known to him and were material to the risk.
    On the trial the plaintiff gave in evidence,
    1. His own testimony to the following facts.
    On the second day of November, 1854, on entering his wood-house early in the evening, he discovered fire in a barrel of shavings. He extinguished the fire, supposing at the time, that it was the result of accident. The next day at about 3 o’clock in the afternoon, fire was discovered in the attic of this wood-house, and in the attic of an addition to the dwelling-house, connected with the wood-house, and burning at the same time on each side of a rough board partition which separated these rooms. As soon as these fires were extinguished, another fire was discovered in a front chamber of the house, which was subdued, after a bed in which it had apparently been kindled, had been nearly destroyed.
    The plaintiff then proceeded to testify as follows:
    “ On the morning of the fourth of November, I went to Oliver I. Lay, the defendants’ agent, to get insured. I had never been to him before to get insured. I found him at home and spoke to him about insuring my buildings. He had before this proposed it to me. I said I had had some fires in my wood-house and house, and wanted my buildings insured. I can’t state the details of conversation at that time. He inquired the size of the buildings and distances apart. I told him I could not then give them to him. He said he was going to Hartford and New York, and wanted me to get the dimensions of my buildings and bring the same to him before he left. I said I would come to-morrow, Saturday. He said, “You’ll come while the fire is hot.” I went home, and on that day, Friday, made measurements and drew plans, and went to Lay’s again Saturday morning, reaching there about 10 o’clock. There had been no new fires at that time. I showed to him the plans of my buildings, distances, &c., and then stated to him about the fires — . telling him that I had had fires in the wood-house and house — told him that the first fire was discovered in the wood-house in a barrel of shavings, and told him how we put it out. Just then he interrupted me, and asked where the fire was in the main part of the house; and I told him in the bed, in the west front chamber; and he asked me how much the bed was damaged, and I replied that it was about spoiled. He asked me no more questions about the fires. He then asked me if I had any enemy that I thought would do it, or had suspicion of any one, and I told him in reply that I could not tell him anything about it, only that these fires had occurred, I could not tell how; that it was all a mystery; and he remarked in answer, he had been frequently afraid his house would get burned, for fires frequently occurred, and no one could tell how they occurred. I asked Lay then about slow matches, how they could be set, and how long before they would go off; and he said I had been captain of the old artillery company, and knew as much about slow matches as he did, and thus ended the match talk. Lay then asked me who had been at my house, and wanted to know if any one had been there that I should suspect of setting fire to the premises. I said my brother-in-law and an old Englishman named Richardson, but I did not suspect either of them. I told him I did not suspect any one. He asked me again if I had any enemy who could do it, and I replied that I knew of none.
    We then talked about rates of insurance. The application was filled and I signed it. I asked Lay if I should pay then or when I got my policy, and he said if I wanted it to take effect then I must pay then, and it would take effect at noon. I am confident I told Lay, both times that I was there before being insured, that I had had fires. I don’t remember that I told him that I had watched the house.”
    2. The plaintiff then offered as a witness Oliver I. Lay, who testified as follows:
    “Bebee called on me on Friday, and said he wanted insurance on his house and other buildings, and the property they contained. I told him it would be necessary for one of us to make plans, surveys, &c. He came again on Saturday, and brought his plans and measurements, and we sat down, and application was made as usual. He sighed the application, and asked when the insurance would take effect, and I said on this day, if he paid. By the rules of the company, the doings of an agent are not binding on them as to rates, so I had him leave more money than I had fixed on as rates. He paid me, I think, $12. I remember his asking me about slow matches, and their operation, and about other matches, and if they would ignite if placed between beds. He told me he had some fires in the back part or rear room of his house in shavings; had been making additions, and found shavings on fire; and that he had found a bed on fire also, in a front chamber in another part of his house, which was mostly destroyed. I then asked him the circumstances about the fires, if he knew how they originated. He said that he did not. I then asked him if he had any enemies who he thought would burn him up. He said he did not know as he had any. I asked him if he had any suspicious persons about, and who had stopped there. He said there had been no one; that his brother-in-law and an old Englishman were the only ones who had been there. I don’t remember his particularly stating how much of the bed and bedding was consumed. He said that these fires were very mysterious, and that he could not account for their origin. I am not perfectly confident which time he stated about the fires, but think it was at the time he signed the application. I told him on Friday, that as T was to be absent on the following week, I preferred that he should attend to the matter on Saturday, as I could not attend to it after that, for a week.”
    On re-examination, Lay said, The officers of the company had told me that I must consider myself more the agent of the party insured than the company’s, as they (the company) kept the keys, and ratified whatever I did.”
    The defendants offered in evidence, 1. the testimony of Ebenezer Mack, which was as follows;
    “ I lived one and a half miles from Bebee’s house at the time it was burned. I came past Bebee’s two or three days before his house was burned. Bebee spoke to me, and said, “ Mack, I have been on fire to-day.” I can’t say when this was, but think it was on Thursday. It must have been before his barn was burned. Beebe said further: “ I have been on fire to-day in my house in three places.” I stopped but a few moments, and then went on home. He said he had three fires in his house that day; or one of them, perhaps, might have been the day before. I think, upon reflection, he said that on that day there had been, one in the girl’s room, one in the west front chamber, and one the day before in the wood-house. He also said that he and his wife had been up on Thursday night by turns, and that they did not know but that they should be burned up; that he did not know but that some one wanted to burn them up; and that it was all very mysterious. He talked about matches. Said he did not know how the fires occurred; that he did not know but that the boys had been in the rooms in the evening, and had dropped sparks from the candle ; that in fact he knew not how to account for it.”
    2. The testimony of Charles Shepard, the president of the Insurance Company, which was as follows:
    “ I was present in the office of the company, at Hartford, when Lay called there, and this policy was issued. On Tuesday forenoon, Lay came to the office and presented two applications. There was nothing unusual about them. Lay then took up the application of Bebee, and said there was something peculiar about that one; that Bebee came on Saturday and got his property insured; and that before he got home, one of the barns mentioned in the application, had burned down. I then asked Lay if Bebee had any reason to suspect that any one did it; he said, not that he knew; that Bebee was a most respectable man, generally esteemed, and he did not believe that he had an enemy in the world. I then asked Lay if he could account for the fire; he said he could not; that it was one of those mysterious circumstances that he could not account for. I do not remember that he spoke of any other fire, and my attention was only calléd to the burning of the barn. I then directed the secretary to make out the policy. It was issued at the ordinary rate, and delivered to Lay. Applications are sent to the office, lodged on file, and we issue policies from the office. The agents generally receive the money, transmit the application to the office, and we issue policies; we seldom refuse to do it unless some good reason exists for it. Lay was then our agent, and had been fora number of years. I saw an account of the fire and burning of the house in a few days after, and sent an agent down to see Lay, and ascertain if all was right. If he found all was right, he was to direct Lay to deliver the policy to Bebee; but, if otherwise, to direct him not to issue it.”
    3. The written statement of O. I. Lay, made to the defendants, November 4th, 1853, which was as follows :
    “ Bebee called on Friday, November 4,1853; said he had been talking for some time of having his buildings insured, and he had come now to have it done.

      I asked for measurements, and he not being able to give them very accurately, I told him it would be necessary for me to go up, or for him to make them. Bebee said he would make them, and would be down next morning between 9 and 10 o’clock, as I expected to be absent all the next week; nothing more occurred at that interview, according to my recollection, relating to the insurance.
    On Saturday, the next day, Bebee came about 10, with his plan of buildings; application was made accordingly. He signed it, and asked when insurance would take effect, and also asked if it was necessary to pay at that time, or when the policy came. I told him, if he wanted the policy to take effect on that day, it would be necessary to pay then. He paid the premium at about half-past 11 o’clock; said he had had a bed and some shavings on fire, and had put them out. I asked the circumstances — asked if he had any enemy that he thought would burn him up, and he said he didn’t know of any one. I think he told me the fires had occurred a short time previously. I do not think that he stated that both fires were on one day, or what period of time had elapsed between them.
    He said he had bad nobody in his house to stay over night for some time, except a brother-in-law and an old Englishman. I think he did not say that he apprehended that the fires were set. I did not gather that he thought they had been set by an incendiary, but that he considered their origin mysterious. I did not understand that there was any particular danger of fire. I understood him there had been two fires. I did not gather from his statement that there had been more than two.
    I think the allusion to fires was after the application was made; I am not certain. Mr. Bebee has since told me it was his impression it was before. I told him I thought not, and I still think not, though I can not be positive.
    The above statement is as near the truth as I recollect.”
    4. A written statement made by the plaintiff, on the 12th day of November, 1853, which was as follows:
    " I, James M. Bebee, of Lyme, Connecticut, upon my oath declare that on Friday, the 4th day of November, 1853, I applied to Oliver I. Lay, agent of the Hartford County Mutual Fire Insurance Company, to insure my house and other buildings. When I mentioned my business, he wanted to know the size of the buildings, and distances, &c. Told him I could not tell. He requested me to take the size and distances, and then he would insure for me. I asked when he could attend to it, and he said any time when I wanted. I then told him I would come down to-morrow morning and attend to it. He said, “ You will come while the fire is hot.” Next morning I went to Lay’s and showed him the plan of the buildings, distances, &e. I said to Lay, ‘ We have had fires in the wood-house, and in the house.’ I think he asked what the fire was in the house. I told him in a bed in the west front chamber; these were the exact words. Mr. Lay then said he had been afraid that his buildings would get burned, for fires frequently occurred when no one knew from what source they came. He inquired how much the bed was burned, and I told him it was about spoiled. I told him I thought the boy might have caught the shavings in the wood-house from a candle. I don’t recollect that any more was said about the fires. This conversation I think was had before the application was signed on the 5th of November. I think I am confident it was before the insurance was granted.”
    Much other evidence was introduced by the parties in support of their respective claims, but which need not be recapitulated.
    It was admitted on the part of the defendants,
    That Bebee was the owner of the property insured and burned.
    That he had made all the preliminary proofs required by the terms and conditions of the policy of insurance.
    That the policy declared on was executed and issued in due form, and was correctly set forth in • the plaintiff’s declaration.
    That the property destroyed exceeded in value the amount of insurance on the same.

      That said property was destroyed by Ursula Babcock, at the instance of Elijah B. Avery,- and that they were severally tried, convicted, and sentenced for the offence.
    That the only defence was, as the defendants claimed, a failure on the part of the plaintiff to disclose, with sufficient fullness, the facts in his knowledge respecting the fires.
    The defendants requested the court to instruct the jury, that if the plaintiff' communicated to Lay all the facts material to the risk, yet if Lay neglected to communicate those facts to the officers of the company, by whom the policy was issued, and if the policy was issued by those officers without a knowledge of those facts, then the policy ought to be deemed void. The court did not so instruct the jury, but on the other hand instructed them, that if Lay was the agent of the defendants, any neglect on his part was not chargeable to the plaintiff, unless he could be considered as being also the agent of the plaintiff; and the only proof within the recollection of the court, conducing to show that Lay was the plaintiff’s agent, was, that the officers of the company had told him, that he must consider himself more the agent of the party insured than of the company; and it did not appear that these instructions were communicated to the plaintiff, or that the plaintiff had any knowledge of them.
    The defendants also requested the court to charge the jury, that Bebee, in making his application for insurance, was bound to disclose all circumstances material to the risk, and even his reasonable grounds of apprehension, and that every act and circumstance which could possibly influence the mind of' any prudent and intelligent insurer, in determining whether he would grant any policy at all, was material, and that though Bebee might have omitted to state any such circumstance, by accident, inadvertence, or mistake, without fraudulent intention, yet if he did, in making the application for insurance, omit any fact or circumstance, which might have influenced a prudent and intelligent insurer either to decline the risk, or charge a higher rate, his policy was void, and he could not recover. The court did not charge the jury in the language of the defendant, but upon that point charged as follows: “ It is true, as claimed by the defendants’ counsel, that any suppression of material facts by a party in applying for an insurance, though by- mistake and without actual fraud, will vitiate the policy; a party seeking insurance, is bound to disclose all which can fairly be deemed material to the risk, and if he omits to discharge this duty through stupidity, mistake, or inadvertence, the omission operates as a fraud upon the insurer and avoids the policy, but I do not think he is bound to go into details as minutely as if on the witnesses’ stand; he is bound to state fairly the substantial facts and circumstances. It is for the jury to decide what facts are material to the risk, and what facts ought therefore to be disclosed; but while the responsibility of that question is with the jury, and while I intend to leave the matter wholly to you, and do not wish to usurp your province, yet the question is one of considerable practical consequence, and I deem it my duty to say, that if a recent attempt has been made to fire buildings, that fact ought, in my opinion, without doubt, to be communicated to the insurer, and in respect to the details and circumstances that ought to be communicated, much may depend on the conduct of the insurer himself; if the party opens himself to inquiry, he could hardly be expected to go into details concerning which the insurer manifests no interest and makes no inquiry. In general, the party applying for insurance may confine his statement to facts, and is under no obligation to state mere apprehensions and conjectures.
    The rule already stated, requiring the insured to disclose all circumstances, material to the risk,- is founded upon the idea of fraud, and while the rule ought, on the one hand, to be so applied as effectually to protect insurance companies against fraud, actual or constructive, it ought not, on the other hand, in my judgment, to be so applied as to deprive a man of the benefit of his insurance, who, in making his application, shall disclose such facts as would occur to an honest man of ordinary intelligence, as being material to the risk, although he may omit to go into all the details.”

      Then jury returned a verdict for the plaintiff, and the defendants moved for a new trial, for a misdirection, and also on the ground that the verdict was against the evidence.

      Barbour and E. Perkins, for the defendants, contended,
    1. That the disclosure, in regard to previous fires made by Bebee to Lay, was not full and fair, as appears from the testimony. Ang. on Ins., §172. Marsh, on Ins., 465. 2 Johns., 530. 1 Wash. C. C. R., 283. 10 Pick., 402.
    2. That Lay was the agent of Bebee in making the application, and therefore, that for any neglect of Lay to state the facts in regard to previous fires to the defendants, Bebee was responsible. Lay’s authority was very unlike that of the agents of most insurance companies, who have power to fill up and issue policies.
    3. The court should have charged the jury, upon the several points raised in the motion, as requested by the defendants.

      Me Curdy and Wait, for the plaintiff.
    1. It was the exclusive province of the jury to decide what facts were material to the risk, and whether there had been a failure or not, on the part of the plaintiff, to disclose with sufficient fullness the facts within his knowledge respecting the fires.
    The plaintiff’s statement to Lay was explicit and full, and was substantially exact and true, and made in good faith; conveying adequate information of the danger incident to the risk. The Glendale Manufacturing Company v. The Protection Insurance Company, 21 Conn. R., 19-32.
    2. The verdict, so far from being against the evidence, was fully and clearly sustained by the evidence. A new trial should not, therefore, be granted on this ground. Bartholomew v. Clark, 1 Conn. R., 472. Laffin v. Pomeroy, 11 Conn. R., 440. Derwort & ux. v. Loomer, 21 Conn. R., 245. Keeler v. Firemanh Ins. Co., 3 Hill, 250.
    3. Lay being the agent of the Company, in the matter of insuring property, any communication of facts, made by Bebee to him, was in effect made to the officers of the company; the rule of law being, that notice to the agent is notice to the principal. 1 Sw. Dig., 328. Story on Agency, §140. 1 Pars, on Contr., 63. McEwen v. The Montgomery Co. Mutual Ins. Company, 5 Hill, 101.
    4. The charge of the court, on the other points, is substantially as requested by the defendants, and in those particulars in which there is a difference, it is in accordance with well settled principles of law. ' Ang. on Ins., ch. 6, 7, 8. Phil, on Ins., 290, 291. 5 Hill, 101.
   Hinman, J.

This was an action on a policy of insurance against fire, in which the plaintiff recovered, and the defendants now move for a new trial, on the ground of errors in the rulings and charge of the court, and also on the ground that the verdict is against the weight of evidence in the case.

The first point of law relates to the charge in respect to the agency of Lay. Lay was the local agent of the defendants at Lyme, for the purpose of receiving applications for insurance, and for other purposes, and he testified that the officers of the company had told him that he must consider himself more the agent of the insured than of the company, and as it was an important inquiry in the case, whether the company was fairly apprised of certain facts material to the risk, the defendants requested the court to charge the jury that if the plaintiff did communicate those facts to Lay, yet if he neglected to communicate them to the officers of the company, and the policy was issued by those officers without a knowledge of them, then the policy ought to be deemed void. This claim was very properly rejected; and the jury were told that if Lay was the agent of the company, any neglect on his part was not chargeable to the plaintiff, unless he was also his agent. Of course the company could not make their agent also the agent of the insured, unless the insured chose to recognize him as his agent; and however desirous the defendants may have been that their agent should conduct fairly with applicants for insurance, most applicants, probably, would prefer for their own agent, some one not connected with the company. We have no reason to doubt that it was the object of the-company that Lay should conduct fairly and honorably towards all applicants for insurance; and for the purpose of impressing this duty upon him, it was very proper for the president of the company to say to him that he must consider himself the agent of the insured as well as the agent of the company. But to attempt to dignify a caution of this sort into a real agency for the insured, is wholly unjustifiable both in law and fact, and is rather calculated to c'hange the honorable character of the caution into a snare for the unsuspecting.

Again, the charge is claimed to be erroneous in respect to the disclosure to the agent, of certain unusual circumstances material to the risk. Several fires had occurred in an unusual manner, in the plaintiff’s house, just previous to the application for insurance, and it was claimed that, in disclosing this circumstance to the agent, the plaintiff did not go sufficiently into detail, and did not, therefore, give a full and fair disclosure. ‘

Undoubtedly, the insurer is understood to take the risk upon the supposition that nothing material exists that is not fully disclosed. And the fact that his buildings had been on fire a number of times shortly before the insurance was effected, was certainly a very material circumstance, which, if not disclosed, would have rendered the policy void. Such an unusual occurrence tended to a suspicion that incendiaries had attempted and might again attempt to fire his buildings; and this concealment — and silence on such a subject would amount to concealment — would operate as a fraud upon the insurer and render the policy void. Pars. Mer. Law, 524. Curry v. Commonwealth Ins. Co., 10 Pick., 535. Clark v. Manufacturers’ Ins. Co., 8 How. U. S., 235.

We have no intention of relaxing, in the least, the rule which requires of the insured the most unreserved frankness on such a subject as this. But we think the charge required this of the plaintiff in this case. The insured is not bound to force his knowledge upon the insurer. In many cases he could not do it if he tried. “ He need not,” says lord Mansfield, “mention what the underwriter ought to know; what he takes on himself the knowledge of; or what he waives being informed of.” Carter v. Boehm, 3 Burr., 1905.

Now it is apparent from the evidence, that the alarm of Bebee on account of these fires, was well understood by the agent. When he first applied for insurance, he told the agent that he had had some fires in his wood-house and house, and wanted his buildings insured, and when told that he must first bring the dimensions of his buildings, he replied that he would come the next day. The agent answered immediately, “you ’ll come while the fire is hot.” And when he did come with the dimensions, prepared to effect the insurance, he again told the agent he had had fires in his wood-house and house ; that the first fire was discovered in a barrel of shavings in the wood-house; and how it was put out. The agent interrupted him to ask where the fire was in the main part of the house, and he told him in the bed, in the west front chamber. And when asked how much the bed was damaged, he told him it was about spoiled. Then the agent inquired if he had any enemy, or any suspicion of any one, and he told him he could not tell him anything about it, only that these fires had occurred, he could not tell how ; it was all a mystery. To this the agent replied, that he had frequently been afraid his house would get burned, for fires frequently occurred and no one could tell how they occurred. Then they had a conversation about slow matches, and as to who had been at the house, and whether any one had been there that the plaintiff suspected of setting fire to the premises.

Now as applicable to these facts, the jury were instructed that any suppression of material facts, though by mistake and without actual fraud, would vitiate the policy, whether the result of stupidity, mistake, or inadvertence; because it operates as a fraud upon the insurer. But that the insured was not bound to go into details as minutely as on the witness stand, but is bound to state fairly the substantial facts material to the risk. And in commenting on the facts, the court told the jury, that much, in respect to details which ought to be communicated, would depend on the conduct of the insurer; that a party could not be expected to go into details about which the insurer manifested no interest, and made no inquiry; and in another part of the charge it is intimated that it was sufficient to disclose such facts as would occur to an honest man of ordinary intelligence, as being material to the risk, though he may omit to go into all the details.

On a point quite analogous to this, lord Mansfield remarked, that the underwriter, knowing the governor to be acquainted' with the state of the place; knowing that he apprehended danger, and must have some ground for his apprehension ; being told nothing of either, signed this policy without asking a question. By so doing he took the knowledge of the state of the place upon himself. With some slight variations to adapt this language to the circumstances of the case under consideration, it seems almost as applicable to it as to the case of Carter v. Boehm. The material difference in the two cases is that instead of being told nothing, the agent here was told all which occurred to the plaintiff as material to the risk, and he only omitted to go into a full detail of all the circumstances, because the agent not only expressed no desire for more full information, but by his questions to the plaintiff, turned his attention from the subject to the point whether he suspected any one, and if so, whom, as having caused the fires. Is it not correct, then to say, on such a question, that, in respect to details, much must depend on the conduct of the insurer ? And if the plaintiff, under the circumstances, disclosed all that occurred to him, and all that would be likely to occur to an honest man of ordinary intelligence, is it not enough ?

It may be that the agent did not suppose there was so much occasion for alarm as Bebee appe.ared to feel. But so long as he did not obtain this erroneous impression by means of anything done by Bebee to mislead him, the consequences of his error cannot be charged to the plaintiff.

On the motion for a new trial, on the ground that the verdiet is against the weight of the evidence, but little need be said. Indeed much that has been already said, is perhaps, as applicable to this part of the case, as to the question of law arising under the charge. It is true, the precise number of fires that had occurred on the premises was not stated to the agent; but this seems to have been rather the result of the agent's want of interest in the matter, and of his neglect to make inquiry, than of any fault on the part of Bebee. And taking the whole evidence together, we think there is no reason to believe there was any intentional concealment on his part.

We will only say, therefore, that, considering the well known reluctance of the court to interfere with the verdicts of juries on questions of fact, we are not satisfied that there is even a plausible ground for such interference in the present case.

We do not, therefore, advise a new trial on any ground.

In this opinion the other judges, Ellsworth and Storrs, concurred.

New trial not granted.


author: Ellsworth, J.

text:
    Bennett vs. Bennett.
    An oral agreement that no counsel or witness should be heard by the arbitrators, was through inadvertence not inserted in a submission when reduced to writing, but was assented to by the parties and stated to the arbitrators at the commencement of the trial, which proceeded until after the hearing of one of the principal subjects of controversy referred, when one of said parties offered to introduce the testimony of a witness in his behalf. The arbitrators rejected the testimony, and the trial proceeded without objection until the arbitrators had published their award. Held, that a bill in equity to set aside such award on the ground that the testimony was improperly rejected, ought to be dismissed.

      This was a bill in equity brought by Leonard R. Bennett against Josiah H. Bennett, praying the court to set aside an award of arbitrators described in the bill, and to enjoin the defendant under a suitable penalty from using or setting up the same in any suit at law or in equity.
    At the term of the superior court for the county of Wind-ham, holden in November, 1855, the following facts were found, and the case reserved for the advice of this court.
    On the 18th day of June, 1855, the plaintiff and defendant entered into the following submission. “ Whereas, there are sundry matters in dispute existing between Josiah H. Bennett and Leonard R. Bennett, both of Plainfield, in Windham county, in relation to their accounts and a division of their real and personal property, which they are unable to settle satisfactorily among themselves, and in order to have the same adjusted and finally settled, they hereby agree to submit all matters in controversy to the final arbitrament and award of Mowry Amesbury, Esq., of Killingly, Joseph K. Greene and Uriel Fuller, of Brooklyn, all in said county. And said arbitrators are to commence their hearing on the 18th day of June, 1855, with power of adjournment from time to time, provided they shall make and publish their award in writing, on or before the first day of July, A. D. 1855. And we the said Josiah H. Bennett and Leonard R. Bennett, hereby bind ourselves to abide the award of said arbitrators in the premises.
    Dated at Plainfield, this 18th day of June, 1855.
    Josiah H. Bennett,
    Leonard R. Bennett.
    Before the submission was reduced to writing, the parties verbally agreed that no counsel, and no witnesses, should be heard by said arbitrators on the trial, and that the award should be made upon the testimony of the parties themselves, together with such book accounts and exhibits as they should produce. But by reason of the inadvertence or misunderstanding of the scrivener who drew up said submission, or by the inadvertence or unintentional omission of the parties to give to said scrivener any instructions in regard to it, the parties executed said submission without having their attention called to the fact that it contained no provision in relation to the witnesses; and supposing it to be properly drawn for the purpose of carrying into effect their real agreement.
    Pursuant to such agreement the trial was entered upon and proceeded with, through the whole of the first day, and á part of the second, and until after the hearing in regard to one of the principal subjects of controversy between the parties had been completed, and the arbitrators were ready to make their award thereon, and until the hearing and trial in regard to another subject of controversy had commenced and was in progress, when the plaintiff proposed and offered to introduce as a witness one Nathan Bennett, to testify in support of his claims, to facts which the plaintiff claimed to be material and important. To the introduction of this witness the defendant objected on the ground of said agreement, which he claimed ought n’ot in that stage of the trial to be set aside. The plaintiff then admitting said agreement, the arbitrators decided that said witness ought not to be received to testify, and rejected him accordingly; and the trial proceeded without objection from the plaintiff until its final termination, and until said award was made. No claim was made in the superior court, that said award ought to be set aside on account of any wrongful, fraudulent or unjust behavior of said arbitrators on said trial, other than the rejection of said witness.
    In the discharge of their duties the arbitrators were guilty of no fraud or misconduct, and they conducted the trial and made said award with entire impartiality. The defendant was not guilty of any fraudulent conduct or improper practice in relation to the submission, trial or award.

      Cleveland and Penrose, for the plaintiff.
    1. Independently of the oral agreement, the refusal of the arbitrators to hear evidence is such misconduct, as vitiates their award, and authorizes the court to set it aside. 17 Johns., 405.

      2. The oral agreement that no witnesses, except the parties, were to be heard by the arbitrators, was made before the contract was reduced to writing, and cannot be allowed to affect the "written submission. Chitty on Contracts, 107. Boring v. Alden, 3 Met., 576.
    3. The oral agreement, at most, constituted a part of the ^submission ; and being a part relating only to the mode of proceeding, it could be revoked at any time. And the offer of the plaintiff to introduce a witness before the arbitrators, operated as a revocation of that part of it.
    4. The oral agreement is void. It is the policy of the law that all disputes between parties should be settled upon evidence, which is the only means by which they can be correctly and intelligently settled ; but here was an agreement cutting off all the sources from which disinterested and impartial information could be derived.

      Welch and Tyler, for the defendant.
    1. Courts of equity always favor settlements by arbitration.
    2. Equity never interferes to disturb an award of arbitrators unless there be partiality or corruption on the part of the arbitrators, mistakes upon their own principles, or fraud or misbehavior in the parties. 1 Sw. Dig., 471. Kirby, 353. 4 Conn. R., 259; 1 Day, 153; 1 Conn. R., 571; 7 Conn. R., 542. Fisher v. Towner, 14th Conn. R., 26. Herrick v. Blair, 1 Johns. Ch., 101. Underhill v. Van Cortlandt, 2d Johns. Ch., 339. Woodworth v. Van Buskirk, 1 Johns. Ch., 432.
    3. The plaintiff cannot complain of the award, because by express agreement between the parties, the testimony offered had been excluded. If dissatisfied with the decision °of the arbitrators, in rejecting the testimony, his only remedy was a revocation of their power.
    4. There is nothing in the finding which shows that the testimony rejected would have changed the result, or benefited the petitioner if it had been received. On principle, this application is like a petition for a new trial. Maples v. Avery, 6 Conn. R., 20. Norwich and Worcester R. R. Co. v. Cahill, 18 Conn R., 484.
   Ellsworth, J.

These parties selected and appointed certain gentlemen to adjust and settle their differences as a board of arbitration, agreeing that they would not employ counsel, but would present their books and papers, and would call no witnesses besides themselves. Through inadvertence, these provisions were not inserted in the submission, but that they were settled and existed was fully admitted before the arbitrators; and it was formally stated to them, at the commencement of the trial, to be the rule by which the parties and arbitrators were to be governed. The trial proceeded accordingly into the second day, and until the arbitrators had finished one important branch of the inquiry, when the plaintiff, without previous notice or complaint, offered a third person to testify to some point which he claimed to be material to his case. The defendant objected to this evidence, and the objection was sustained; and the trial proceeded without the testimony until the hearing was completed and the award was made and published. The plaintiff now asks that the award may be set aside, and declared void, on account of this determination of the arbitrators ; not because of any fraud or corruption or mistake, for it is found that there was none, but for the supposed error in law of the arbitrators.

We suppose there may be cases where mistakes or fraud in the arbitrators would render it proper for the court to set aside an award and grant relief, but the present award is not of that character at all. Indeed, we think the arbitrators conducted with entire propriety and fairness in their decision. They held that the party should abide by his agreement, formally avowed in their presence before the trial began, which” agreement was to govern the parties and the arbitrators on the trial. Besides, it was the rule observed during a material part of the trial, and how could it be after that abandoned, without notice and mutual consent of the parties ? As in any other court the parties would here be held to abide by their own agreements made, or agreed to have been made,' in the presence of the court, in order to govern all parties in the trial; and were it otherwise, this question itself might be held to come within the range and action of the arbitrators as the final and exclusive court selected by the parties. Had any unforeseen event happened, or had there been any fraud or concealment on the part of the defendant, which threatened to defeat such a fair and impartial trial, as is of course implied in the agreement to go on with the testimony of the parties only, this should have been stated and made to appear at the time. If the arbitrators, finding this to be so, would, notwithstanding, rigidly enforce the rule aforesaid, perhaps the pla-intiff might then have revoked the submission. We will not say what a court of equity might or might not do, to afford the injured party relief in a given case. But this is not that case at all. He did not revoke, nor ask to have the trial stopped or even temporarily suspended, but went on and took his chance for an award in his favor. His bill for relief is more like a writ of error, asking the court to review a supposed error of law of the arbitrators, than an application for a new trial for an illegal or unjust verdict or judgment. In the latter ease, it would be necessary for the person applying for a new trial to state, in detail, the new evidence as well as the old, that its materiality and importance might be seen.

We advise that the bill be dismissed.

In this opinion the other judges, Storks and Hinman, concurred.

Bill dismissed.


author: Storrs, J

text:
    Gates vs. Treat.
    A motion for a new trial may, after the death of the party who filed it, be prosecuted by his administrator.
    Where several persons are appointed arbitrators to perform respectively distinct though connected acts designed to accomplish together one entire object, which will be frustrated unless those distinct acts concur, the terms of the submission must be complied with hy each of the arbitrators, to whom the particular matters are referred, to constitute a good and final award.
    Therefore where a submission to arbitrators, by parties who owned mills on the opposite sides of a river, stipulated, that a certain point in the bed of such river should be ascertained by If., and should be designated by suitable marks,bounds, and monuments, to be placed in said bed by L. and D.; and K. ascertained such point and caused it to be indicated upon the upper surface of a stone, in the presence of L. and D., and signed an instrument stating, that in pursuance of said submission, he had ascertained and indicated said point as aforesaid; but L. and D. refused to sanction the determination of K., and to place any bound or monument to designate it; it was held, that there was only a partial and defective execution, by the persons to whom the controversy was referred, of the powers conferred on them by the submission ; and that the instrument so executed by K..did not constitute an award.
    This was an action on the case for the diversion of a water course.
    The declaration stated, substantially, that the plaintiff was the owner of a certain tract of land in the town of Voluntown, containing thirty acres, with Pachaug river flowing through it, and of a factory building and water-wheel on said land, with an artificial canal about four hundred feet long, leading from the river to the factory, and water-wheel, for the purpose of operating them. That the water, until the grievances complained of by the plaintiff, had been accustomed to flow in great plenty and abundance to the factory, and water-wheel, &c.; that at the time of committing said grievances, said factory, buildings, water-wheel and appurtenances, were in the possession of one John E. Lindley and Isaac W. Thompson, under a lease which was to continue for the period of ten years from the ninth day of April, 1857, and which provided, that if there should be a lack of power in consequence of the width and depth of said canal, 'or from inability to turn the water into the same, the rents were to cease until such difficulties were removed. That on or about the 11th day of October, 1847, the defendant, by digging up and removing the bed of said river, along and opposite to the head of said canal, to the depth of three feet, wrongfully and unjustly diverted and turned away the whole water of said stream from the plaintiff’s canal, and permanently prevented the water of said stream, from flowing through said canal to said mill and water-wheel, and from supplying the same with the water necessary for the working thereof, &c.

      The defendant pleaded the general issue, on which the cause was tried at the term of the superior court, holden at Brooklyn, in January, 1855,
    On the trial, the plaintiff gave in evidence, the following written instrument, which had been-executed in the presence of two witnesses, and acknowledged before a justice of the peace.
    “ This indenture, made and entered into this seventh day of October, A. D. 1847, by and between James S. Treat and Samuel Gates, of Voluntown, in the county of Windham, and state of Connecticut, witnesseth: That whereas the said parties are respectively owners of certain lands and mills situated in said Voluntown, upon, and contiguous to the Pachaug river, and controversies have arisen, and now exist in relation to the rights and privileges appertaining and belonging to said respective parties, and a suit is now pending in the superior court, for said county, in favor of said Treat, against said Gates, for an alleged violation of his rights in the premises; said parties being desirous of terminating said controversies, and settling and determining their respective rights and privileges as aforesaid, and regulating the future exercise and enjoyment of the same, have agreed, and do hereby agree in manner following, to wit: said suit shall be continued to the next term of said court, to be held on the fourth Tuesday of January next, at which term of said court, judgment shall be entered up, in conformity with the award and decision that shall be made between said parties, as is hereinafter provided.” After providing for the submission to an arbitrator of the amount of damages, if any, to be paid by said Gates, for the alledged violation of said Treats’ rights, said instrument proceeded as follows :
    “ And for the purpose of settling and determining their respective rights and privileges in the premises, and regulating the future use and enjoyment of the same, said parties have agreed, and do hereby agree in manner following (to wit:)
    A point, four inches below the natural bed or bottom of the river, as the same was when surveyed by Archibald Kennedy, at the outlet of said Treat’s mill-ditch, and extending to the entrance into said Gates’ ditch, shall be ascertained by said Kennedy, or by such other person or persons, as said parties shall agree upon for that purpose ; which point shall be designated by suitable bounds, marks, and monuments, to be placed by John E. Lindley and Joseph H. Doane, in the bed of said river; above which point so designated, said Gates shall not have the right to raise the water in his mill-ditch. But it is further agreed, that said Gates, his Heirs, and assigns, shall have the right to excavate the bed of said river, as well as his own land, so far as may be required to turn the water of said river into his mill-ditch, but said excavation shall be so made and secured, as at all times to prevent the undermining or washing away of the banks of said Treat’s land, contiguous thereto. Said Treat, his heirs and assigns, shall have the right to reduce the bed or bottom of said river, to the extent of the said four inches as aforesaid, and to remove any rocks, trees, islands, or other obstructions, which now are, or hereafter shall be between the banks of said river' below said monuments, to be placed as aforesaid, across said river, so far as his lands extend, as well on said Gates’ side of said river, as his own; but in such a manner, as not to undermine or remove said Gates’ banks.
    And said parties hereby agree for themselves, their heirs or assigns, at all times hereafter, to use and enjoy their said lands and mills, with the privileges and appurtenances thereof, in manner and form as is above written.
    And whereas, the said Gates has heretofore conveyed his land and mills by deeds of mortgage, as by the records of said town of.Voluntown may appear, he, the said Gates, hereby agrees, that said parties holding said mortgages, shall, by deeds of release, by them well executed, relinquish any right or claim which they may have under said mortgages, which shall conflict or interfere with said agreement, herein before made and provided, as to said premises. Said deeds of release to be made, executed and delivered, on or before the first day of December next, unless prevented by the decease of such mortgagees ; and it is further agreed, that John E. Lindley and Joseph H. Doane, shall ascertain and determine the dividing line between the said lands of said Treat and Gates, and erect suitable bounds, to which said parties shall hereafter conform; and the said parties, bind themselves each to the other, in the sum of two thousand dollars, not as a penalty, but as stipulated damages, to conform to, and abide by said award, as made and published as aforesaid, and in no way to revoke this submission.
    In witness whereof, the said parties, have hereunto set their hands and seals, this seventh day of October, Anno Domini 1847. James S. Treat, (seal.)
    Samuel Gates, (seal.) ”
    The deed of release referred to in said writing, executed in due form of law, were then exhibited in evidence by the plaintiff. He also introduced a great number of witnesses for the purpose of proving the allegations contained in his declaration, and also, to show that, although Kennedy had designated a point in the bed of the river, as that ascertained by him and referred to in said writing, the point so designated by him was too low, and that his doings had never been sanctioned by Lindlev and Doane, and also to prove that in the autumn of 1847, after the date of said writing, the defendant caused the bed of said river to be excavated and removed to a much greater depth than was provided for in said writing, and that thereby the water was unlawfully changed and diverted from the plaintiff’s canal and mill.
    The defendant read the deposition of Archibald Kennedy, the material part of which is as follows:

      “ I was called upon by James S. Treat, sometime in the early part of October, 1847, and about that time said Treat placed in my hands an agreement between himself and Samuel Gates, dated the seventh day of October, 1847. By said agreement, 1 was to ascertain a point four inches below the natural bed or bottom of said river, as it was when 1 heretofore surveyed it, at the outlet of Mr. Treat’s mill-ditch, and extending to the entrance of Col. Gates’ ditch. Accordingly, I made the level, starting from the base line established from the center of the old wheel, and found said point, and placed a stone, the upper surface of which was marked thus, (+10 w^ich tipper surface of said stone is four inches below the natural bed or bottom of said river, and no more. And on the 26th day of October, 1847, I gave a certificate or award, signed and sealed by me, in presence of Bonaparte Campbell, and A. S. Robbins; which certificate or award is hereto attached, and made a part of this deposition, and is true.”
    The certificate of Kennedy, was as follows:
    “ In pursuance of the submission and agreement made and entered into, by and between James S. Treat and Samuel Gates, of Voluntown, in the county of Windham, bearing date the seventh day of October, A. D. 1847, and hereto annexed, the undersigned Archibald Kennedy, having examined the premises and heard the parties, has ascertained the point four inches below the natural bed or bottom of Pachaug river, as the same was when it was heretofore surveyed by said Kennedy, at the outlet of said Treat’s mill-ditch, and extending to the entrance into said Gates’ mill-ditch, which point corresponds with, and is indicated by the upper surface of a stone set in the bed of Pachaug river, near the mouth of said Treat’s cotton-mill ditch, which stone is marked thus, (+£) the upper or top surface of said stone, or monument, being the height above which said Gates shall not have the right to raise the water in his mill-ditch ; and also placed a mark thus-on the south-west corner of said Treat’s stone engine house, which point is twelve feet four inches, and five-eighths of an inch above the top of said stone or monument described above. In witness whereof I have hereunto set my hand and seal this 26th day of October, A. D. 1847, at Voluntown.
    Archibald Kennedy, (seal.) '
    John E. Lindley, testified as follows:
    “Joseph H. Doane and I, were notified to be present and were present, when Archibald Kennedy ascertained the point four inches below the bottom of the river, and Kennedy set the stone to designate it. A hole was dug on the east side of the river, just below the mouth of defendant’s ditch, and the stone was set there, and I understood at the time, that Kennedy said the top of that stone was four inches below the natural bed of the river ; and Mr, Doane and myself were called on to sanction Kennedy’s doings ; but Doane said he should have nothing to do with it. Doane and I were the persons, who by the agreement of the parties were to fix monuments, to designate the point four inches below the natural bed of the river, after it had been ascertained by Kennedy. My impression was, that the stone set by Kennedy, was set too low, and that is the reason why I refused to sanction it, for the top of the stone was then lower than the bed of the river was at that time.”
    A great amount of other evidence was introduced on the trial, consisting of parol testimony, maps, surveys, deeds, &c., which it is unnecessary to state in detail.
    The defendant claimed, and requested the court to charge the jury, that the doings of Kennedy, in ascertaining and fixing the point four inches below the natural bed or bottom of the river, were equivalent to an award of arbitrators, and conclusive upon, and could not be impeached by the plaintiff, and that if the jury should find, that the defendant had not reduced the bed of the river below the point so ascertained, their verdict should be for the defendant.
    The plaintiff claimed that the point ascertained and fixed by Kennedy, was twenty-six inches below the natural bed or bottom of the river, between the two ditches, instead of four inches; and that in fixing upon that point, Kennedy had either conducted fraudulently and unfairly, or had committed a mistake on his own principles; and requested the court to charge the jury, that if they should find the fact to be as claimed by him, the doings of Kennedy were not binding upon the plaintiff, and should be laid out of the case.
    The court charged the jury, on this part of the case, in conformity with the request of the plaintiff.
    Upon the evidence introduced on the trial, the defendant claimed, that the plaintiff had failed to make out his case, and was not therefore entitled to a verdict of the jury in his favor.

      But the jury rendered a verdict in favor of the plaintiff, with fifteen hundred dollars damages, and his costs. The court returned the same to them, for a second, and a third consideration, and as the jury adhered to the same verdict, the court ordered it to be recorded.
    The defendant moved for a new trial, because the court. refused to charge the jury as requested by him, but charged them as requested by the plaintiff; and also on the grounds, that the verdict was manifestly against evidence, and that the amount of damages was unreasonable and excessive.
    The questions arising on this motion, were reserved for the advice of this court. Before the first day of the term of this court at which the case was reserved for trial, the defendant died ; and said motion was prosecuted by his administrator.

      C. F. Cleveland and J. A. Hovey, for defendant.
    1. The right to prosecute' a motion for the new trial of a personal action, does not die with the party who filed the motion, but survives to his personal representatives. Turner's Adm. v. Brooker, 2 Dana, 334. Sanders' heirs v. Buskirk, 1 Dana, 412. Springstead v. Japnes, 4 Cow., 423. Denoon v. O'Hara, 1 Brevard, 500. 4 U. S. Dig., Tit. abatement, Sec. 34, p. 3. 2 Tidd, 1096.
    2. The provision in the agreement of the parties for ascertaining “ a point four inches below the natural bed or bottom of the river, as the same was when it was surveyed by Archibald Kennedy,” &c., was in the nature of a submission to arbitration; and the finding by Kennedy of the point referred to was not impeachable at law, for fraudulent conduct or unfairness on his part, or for mistakes committed by him on his own principles; but was binding and conclusive upon the plaintiff, as well as the defendant, until regularly set aside by a court of chancery. 1 Sw. Dig., 471. Bulkley v. Stewart, 1 Day, 130. Curley v. Dean, 4 Conn. R., 259. Newland v. Douglass, 2 John. R., 62. Barlow v. Todd, 3 John. R,. 367. Braddick v. Thompson, 8 East, 344. Cranston v. Kenny, 9 John. R., 212. Veale v. Warner, 1 Saund., 326.
    3. The verdict of the jury was manifestly and palpably against the evidence, and the damages are unreasonable and excessive.

      Foster and E. Perkins, for plaintiff.
    1. The doings of Kennedy are not to be regarded in the light of an award of arbitrators. He was not constituted an arbitrator. Doane and Lindley, by the agreement between the parties, were to perform an important part in ascertaining the point four inches below the bed of the river. These three made up the tribunal; and neither one could perform the duty alone, and make an award. If two out of three refuse to act in a matter submitted to the whole, the third can not pass on the matter submitted, even though it can be shown that his decisions were strictly correct, and that his associates refused to act with him from malicious motives.
    The necessary result is, that the defendant was not entitled to the instruction asked in this part of the case, and can make no complaint of the instructions given.

      2. But if the doings of Kennedy are to be regarded as an award, the charge can still be vindicated.
    It is an ancient rale of the common law, that to an action brought for the non-performance of an award, the defendant could not plead or give in evidence, the corruption or misconduct of the arbitrators in making their award; resort must be had to a court of equity.
    By the statute of 9th and 10th, Wm. Ill, it was enacted that any arbitration or umpirage procured by corruption or undue means, shall be adjudged void, &c., and accordingly set aside by any court of law or equity, so that complaint of such corruption or undue practice be made in the court, where the rule for such submission had been made, before the last day of the next term after such arbitration, &c., had been made, &c.

    This act however, left the law in regard to submissions and awards not made by rule of court, as it was before. Wats, on Arb. 153-4.
    And the general rule in regard to awards so situated is as stated above, though there is some contrariety of authority. 2 Phil. Ev. 82.
    In Matson et. al. v. Trower et. al., 21 E. C. L. 371, which was an action of assumpsit on an award, one of the objections to a recovery was, that the award was void, in consequence of the umpire having examined the parties in the absence of each other. The award was sustained.
    This case goes directly to show that improper, and of course fraudulent conduct, on the part of the arbitrator, may be given in evidence to impeach an award.
    In this country, however, a different rule, at least in many states, has prevailed. 2 Greenl. Ev., §78. 6 Pick., ¿69. 4 Pick., 179. 6 Met., 131. 3 Greenl., 60. In this state, as our court of law and equity is composed of the same judges, there can be no good reason for turning the plaintiff round on a mere technical question; especially when, as in this case, by the death of the party, a new trial is equivalent to a denial of justice altogether.
    3. The verdict is not against the weight of evidence in the case.
    4. The damages, so far from being excessive, are not to the amount to which the plaintiff has proved himself entitled.
   Storrs, J

The defendant in this case, having died after this motion for a new trial was filed, the preliminary question arises, and is reserved for our advice, whether his administrator may prosecute it. According to the rules of practice which prevail in the superior court, that is the only mode in which he can revise the proceedings on the trial of the case. To refuse to allow him to prosecute this motion would, therefore, be to establish the principle that the creditors and heirs of a deceased person, and those otherwise interested in his estate, would be remediless against any errors which may have intervened on the trial; a doctrine which would be palpably most unjust, and opposed to the principles of the common law, by which, in all personal actions, an erroneous judgment may be reversed by the representative of either party who is prejudiced by it. Our mode of practice is chargeable with no such defect. According to the common law mode of proceeding, which formerly prevailed here, the decisions of the court, in the progress of the trial of a case, might be introduced upon the record by a bill of exceptions, and revised by writ of error. In case of the death of the party against whom judgment was rendered, that writ, whether the action died with the person or not, might be brought by his representative. But as that method of revision was practically an inconvenient one, and oftentimes, by the strictness of the principles by which it was governed, which required, a reversal of a judgment for any error whatever, although it did not affect the justice of the case, a rule was long since adopted by the superior court, by which it was abolished in all cases, and the present practice substituted, by which the questions decided on the trial are presented on a motion for a new trial, and reserved for the advice of this court, on which the judgment rendered by the superior court in the case, is established or set aside, according as the motion is, or is not granted by that court in conformity with our advice. These motions, in regard to the disposition of them, are subject to the discretion of the court, and a new trial is granted or refused, absolutely or on terms, as justice requires. They do not become a part of the record in the case in which they are made; they are not considered as a new or independent action or proceeding; nor do they differ, in their character, from any other motion made in the progress of the case. As it is plain, from this account of the introduction of the present practice on this subject, that it was not designed to prevent any person from revising a judgment, by which he is prejudiced, to the same extent as he could under the former practice, and as the judgment in the present case might, under the latter, have been revised, on a bill of exceptions and writ of error, by the defendant in this case, and after his death by his administrator, and as it is obvious, moreover, that the present question can be reviewed in no other mode than by allowing the administrator to prosecute this motion, we are clearly of opinion that the superior court decided correctly in permitting hipa to do so.

On the merits of this motion, two questions have been presented; first, whether the instrument of the 26th of October, 1847, executed by Kennedy, constituted, under the agreement, between the parties to this suit, of the 7th of October, 1847, an award or decision as to the extent to which the defendant should have the right to lower the bed of the Pachaug river, which, if unimpeached by the evidence offered by the plaintiff, was valid and conclusive on that question ; and, secondly, whether if it did, it could be impeached by that evidence. The result to which we have come on the first of these questions, renders it unnecessary to consider the other.

The following are the material facts on which the first question depends. By the agreement before mentioned, the parties, who owned, .mills on the opposite sides of the river, which runs between their lands, agreed that a point four inches below the natural bed or bottom of the river, as the same was when it was surveyed by Kennedy, at the outlet of the defendant’s mill-ditch, and extending to the entrance of the plaintiff’s ditch, should be ascertained by Kennedy, and that said point should be designated by suitable bounds, marks and monuments, to be placed by John E. Lindley and Joseph H. Doane, in the bed of the river; that, above said point so designated, the plaintiff should not have the right to raise the water in his mill-ditch ; that the defendant should have the right to reduce the bed or bottom of the river, to the extent of said four inches as aforesaid, and to remove the obstructions below said monuments, to be placed as aforesaid across said river, on both sides of the river, so far as his land extended; and that the parties thereafter should use and enjoy their lands and mills as their rights should be thus determined. Kennedy ascertained said point, and caused it to be indicated by the upper surface of a stone, which he placed in the bed of the river near the mouth of the defendants mill-ditch, and gave a certificate thereof, which is contained in the instrument before mentioned, executed by him. Lindley and Doane were present when the said point was so ascertained by Kennedy, but refused to sanction his determination, or to place any bounds, marks, or monuments, in the bed of the river to designate it, and it has never been so designated by them.

On the trial of this action, which is in case, alleging that the defendant excavated the bed of the river lower than he had a right to do, the defendant on the trial, claimed that the certificate of Kennedy was conclusive between the parties, as an award made by him in pursuance of said agreement, to prove that the point so ascertained by him and designated by the upper surface of the stone placed by him in the river, was precisely four inches below the natural bed of the river, as it was when it was theretofore surveyed by him, and therefore, that the defendant had a right to excavate the bed of the river to that point. The plaintiff admitted that the agreement between the parties, was a submission of their rights in respect to the use by them respectively of the water of the river, and that an award, made in pursuance of it, would, if unimpeached, be valid and conclusive as to such rights ; but claimed that Kennedy could not alone, and without the cooperation of Lindley and Doane, make a valid award under the submission; and further, that if he could, his doings were liable to be impeached by proof that the point ascertained and fixed by him, was twenty-six inches below the natural bed of the river, between the two ditches, instead of four inches only, and that Kennedy in fixing that point acted fraudulently and unfairly, and committed a mistake on his own principles. The court decided in conformity to the claim of the plaintiff.

Waiving any enquiry, for ourselves, as to the character and effect of the agreement entered into between these parties, and considering it in the only light in which they have treated it, as a proper submission of their rights to arbitrament, we are of opinion that, as it stipulates, that the point in the bed of the river, therein described, shall be ascertained by Kennedy, and designated by Lindley and Doane, by suitable marks, bounds and monuments, to be by the two latter placed in said bed, and that the parties should, in the use and enjoyment of their lands and mills, conform to that point, nothing short of an ascertainment and designation by those persons respectively, was a full and complete compliance with the requirements of the agreement, or constituted, or was equivalent to an award, as to the rights of the parties, or a determination or settlement of them, according toils terms or true intent. In an action of covenant, brought directly for a breach of this agreement, it would clearly be necessary to aver and prove that the point was ascertained and designated in the mode prescribed by it; and we do not perceive why it is not as necessary, in an action like the present, in which it is sought to give a specific effect to what was done, by the arbitrators under it, to prove those facts, as it would be in a suit in which damages were claimed for its violation. A submission to arbitration is only a particular species of contract, and the question of the liability or obligation of the parties, growing out of the- award under it, is to be determined by the principles applicable to all other contracts, in whatever mode such liability or obligation is sought to be enforced. As et submission, this is certainly one of a singular character, and it corresponds with none which we find in the cases on the subject of arbitrament. We must, therefore, look to the general rules applicable to that subject. That which appears to be applicable here, is the one which requires that the award should be conformable to the terms of the submission. It must be made by the persons to whom the matter is referred, and they must act in the manner prescribed in the submission. In this respect, the proceedings of the arbitrators, in the present case, were defective. The object of this submission was two-fold; the ascertainment of the point mentioned in it, and the designation of that point by visible, permanent monuments. These were distinct acts, although to be done, connectedly, and were both required to be done by the arbitrators, not, however, by them conjointly, but the first of them by Kennedy, and the other by Lindley and Doane. The office of Kennedy was entirely different from that of the others. It was really a reference to different persons to perform respectively distinct, though connected acts, designed to accomplish together one entire objeet, and without the concurrence of which that object would be frustrated. One of these acts, the ascertainment of the point required, which was to be done by Kennedy, was performed. There his authority ceased. He placed a stone in the bed of the river to indicate that point. That, however, although it might serve as a guide to the other arbitrators, in regard to the duties which they were to perform, was a nugatory act so far as it, by itself merely, directly affected the parties to the submission, because it did not provide that that act alone should determine the rights of the parties; and it therefore had no more effect upon those rights than if it had been done by any other person. The other act, that of designating the point by monuments, was entirely omitted to be done by the two other arbitrators; for it is conceded that they neither placed any monuments themselves, nor sanctioned that which was placed by Kennedy. And it is not claimed that the plaintiff assented to the location of that monument by Kennedy or prevented or interfered with the' action of the other arbitrators. This then is a case of a partial and defective execution, by the persons to whom the controversy between the parties was referred, of the powers conferred on them by the submission. It is not a good answer to this objection, that the ascertainment of the point, and not the designation of it by monuments, was the principal and only essential object, and that the other was futile and unimportant. We cannot say, nor do we think, that it was not quite as important to these parties that the point in question should be designated and marked by visible and permanent monuments, as that its locality should be ascertained. But it is sufficient that the parties have chosen to make it one of the terms of their agreement that it should be done, and that we have no right to dispense with it, or to vary or refuse to effectuate that agreement. The court below, therefore, correctly decided that the certificate of Kennedy was not entitled to the effect claimed for it by the defendant.

We are not satisfied, on an examination of the testimony in the case, that a new trial ought to be granted, on the ground either that the verdict was manifestly against the weight of the evidence, or that the damages given were excessive.

A new trial is not advised.

In this opinion the other judges, Hinman and Ellsworth, concurred.

New trial not to be granted.


text:
    M’Gowan vs. The Town of Windham.
    Where it was provided in the charter of the borough of W. that said borough should “ keep in good and sufficient repair all the highways which were opened and within the limits of said borough and also directed that at stated periods thereafter, there should be an apportionment according to the assessment lists of the borough and the town, of the highways in said town, and without the limits of said borough ; it was held, that such provision referred only to such ordinary town highways as the town within which said borough was located, was then bound to maintain and repair.
    Where the plaintiff in an action against such town for work and labor performed at the request of the selectmen, upon a highway within the limits of such borough, which highway had been built and until after said borough was incorporated, maintained by a chartered company as a turnpike road, but which afterward the legislature directed should he discontinued as a turnpike and should become and thereafter remain a part of the public highway in the respective towns in which it was situated; it was held, that the plaintiff was entitled to recover.
    This was an action of assumpsit against the town of Windham on the common counts only, to recover for work and labor upon a highway. The cause was tried before the superior court at the term holden in January, 1856.
    On the trial it was proved that that part of the highway upon which the plaintiff had performed the work and labor for which he claimed to recover, was situated within' the limits of the borough oi Willimantic, in the town of Wind-ham ; that said highway was built by the Windham and Coventry turnpike company, a body corporate, duly chartered by the legislature of this state in the year 1799, and was kept in repair by said company and used as a turnpike road until the charter of said company was repealed in the year 1852.
    The plaintiff offered in evidence the following resolution of the legislature, passed in May, 1852.

      “Resolved by this assembly, That said road be discontinued as a turnpike road, and said company be dissolved and discharged from all liabilities, charges or expenses for the maintenance of said road. Provided, that said company shall retain the right to collect their dues and to close up their concerns the same as though this act had not been passed. And said road shall hereafter be and remain a part of the public highway in the respective towns in which it is situated, to be maintained and treated in all respects by said towns respectively, as public convenience and necessity may require, in the same manner as though said road had been originally laid out and made by said towns according to the provisions of the statute laws of this state, in such cases made and provided.”
    The plaintiff claimed to have proved that his work on said road was done under the direction and at the request of the selectmen; and that the repairs so made by him were necessary and proper, and reasonable in amount.
    The defendants offered in evidence the resolution incorporating the borough of Willimantic, passed May session, A. D. 1833, ' the seventh and eighth sections of which were as follows:
    “ Sec. 7th. Said borough shall keep in good and sufficient repair, all the highways now open within the limits of said borough, and such other highways in the vicinity thereof, as together with the highways now open within said limits shall constitute their fair and just proportion of the highways which the town of Windham is now by law liable to keep in repair. And the highways without the limits of said borough, shall be apportioned in manner aforesaid, at the expense of said borough, sometime in the month of September next, and at the expiration of each five years thereafter, according to the assessment list of said town, then last perfected ; the first apportionment of said highways to be made by, and under the direction of Abner Hendee, Asahel Bacon, and Calvin Manning, Esqrs., or any two of them, who are hereby appointed commissioners for that purpose, they first giving notice of the time and place of their meeting in said Windham, to the selectmen of said town, and to the warden of said borough; and a certificate under their hands of such apportionment, describing the location and extent of the highways to be kept in repair by said borough, shall be lodged with the clerk of said town, and a like certificate with the clerk of said borough. And each apportionment of said highways shall be made hereafter in like manner by commissioners to be appointed by the honorable county court for the county of Windham, upon the application of said borough, or the said town of Windham, notice of said application being given to said town of Windham, and to the said borough.
    Sec. 8th. And in case said borough shall at any time neglect or refuse to keep in good and sufficient repair, the highways now open within the limits thereof, and the highways so to be apportioned thereto in manner aforesaid, said borough shall be subject to the same proceedings, and liable to the. same penalties, as towns in like cases now are. And the inhabitants living within the limits of said borough, shall be exempt from all highway tax as hereafter imposed by the town of Windham, and shall be incapable of voting in relation to the imposition of the same,' in the meetings of said town.”
    The defendants claimed that the liability of repairing so much of said turnpike company’s road as was situated within the limits of said borough, was imposed by said resolution upon said borough, subject to the liability of the company to repair the same, and that the liability of the borough was perfected and made absolute by the repeal of the charter of said company, in May, 1852. And consequently that the plaintiff v/as not entitled to recover; and the defendants requested the court so to charge the jury.
    The court instructed the jury that said turnpike road was in no manner affected by the resolution incorporating the borough of Willimantic, but that the resolution repealing the charter of the said turnpike company, imposed upon the town of Windham the burden of repairing so much of said road as was situated in said town of Windham, including the borough of Willimantic, in the same manner as though said road had been originally laid out by said town ; and that when said work was done, there was no liability on the part of said borough to maintain said highway or any part thereof. And that if the jury should find that the work and labor performed by the plaintiff on said road, was done under the direction and at the request of the selectmen of said town, and that the same was necessary and proper for the public travel, and reasonable in amount, then that their verdict must be for the plaintiff; but if they should not so find, then that their verdict must be for the defendants.
    The jury returned a verdict for the plaintiff, and the defendants moved for a new trial.

      AA. Burnham, for. the defendants.
    1. The seventh section of the resolution incorporating the borough of Willimantic, renders said borough liable to maintain all the highways that were open, and which should from time to time be opened within its limits.
    The commissioners to be appointed under the said charter to apportion roads to said borough, have nothing to do with the roads within the limits of the borough, but are only authorized to apportion such roads without it, as, together with those within it, shall make a just proportion of the roads of the town. Therefore, roads within the limits, if they belong to the borough at all, belong to it by force of the provisions in the charter, and not by virtue of the apportionment by the commissioners.
    2. Whatever may be the proper construction and effect of the seventh section of the charter of said borough, considered by itself, yet the resolution of the general assembly, passed May, 1852, repealing the charter of the Windham and Coventry turnpike company, taken in connection with said borough charter, clearly places upon the borough the liability of maintaining that portion of said road which lies within its limits.

      J. H. Carpenter, for the plaintiff.
    I. The Willimantic borough charter treats only of highways, and says nothing of turnpike roads. The road upon which the repairs in question were made at the time of the incorporation of the borough of Willimantic, was a turnpike road, owned and repaired by the Windham and Coventry turnpike company, and used by the public only as they paid tribute to said turnpike company.
    II. The legislature, in providing for the apportionment of highways between said borough and the town of Windham, in said borough charter, took into the account highways only, and such as the town of Windham were then liable to repair. They did not intend to provide for the repairs of said turnpike road when the charter thereof should be repealed. Sherwood v. Weston, 18 Conn. R., 32. 7th Sect. of the borough charter.
    III. By the act of 1852, repealing the charter of the Wind-ham and Coventry turnpike company, the town of Windham is made liable for repairs on that portion of said turnpike road within the limits of said Windham. The borough of Willimantic had no notice of that proceeding before the legislature, and could not of course be affected by it. Sherwood v. Weston, 18 Conn. R., 44.
    IV. The town of Windham had a right to repair this turnpike if the charter thereof had not been repealed. Rev. Stat., 606.
   Hinman, J.

This was an action for work and labor upon one of the highways in the town, done at the request of the selectmen. The town being bound to keep all the highways in its limits in sufficient repair, except only such as belong to some particular person or corporation to repair; and the selectmen being the general agents of the town to manage affairs of this sort, the plaintiff has an undoubted right to recover, unless it appears that some other person or corporation was bound to maintain and keep in repair the particular highway upon which the work was performed. This highway is also within the limits of the borough of Willimantic, and by the charter of the borough it was made the duty of that corporation to keep in good and sufficient repair all the highways which were open and within its limits at the time it was granted, (1833); and the claim is, that under this provision of the charter, the borough, and not the town ought to repair this road. If this were so, it would be rather ungracious to refuse to pay for work done at the request of their selectmen, and apparently for the benefit of the town, unless the plaintiff knew that it was not the duty of the town to repair the road. But we need not examine the question, whether the town would be liable in such a case, because we are all satisfied that the town, and not the borough, is bound to maintain this highway. At the time the borough-charter was granted, the highway was a part of the Windham and Coventry turnpike road, originally built and then maintained by the turnpike company. The charter of that corporation was repealed in 1852, and their road was discontinued as a turnpike, and it was provided that thereafter said road should be and‘remain a part of the public highway in the respective towns in which it was situated. We think, therefore, this was not a highway open in 1833, within the meaning of the borough-charter, and that it only became such on the repeal of the turnpike company’s charter in 1852. In one sense, a turnpike road is an open highway, but it is not a town highway, and the clause of the charter which refers to highways then open, we think obviously means -only such ordinary town highways as the town were then bound to maintain and repair. It was not intended to apply to turnpikes, and thus shift the burden of repairing them from the turnpike corporation to the borough. Nor was it intended that all future highways should belong to the borough to maintain, merely because they might be within the limits of the borough. This is evident from the provision that was made for an apportionment of them between the borough and the town. The legislature, instead of continuing the liability on the part of the town to maintain all the highways within its limits, chose to excuse the inhabitants of the borough from the payment of any portion of the ordinary town highway taxes, and to throw a fair proportion of the town highways upon the borough to maintain. Accordingly, the highways then open and within the borough were assigned to the borough, and provision was made for an apportionment, according to the assessment lists of the inhabitants of the borough and the town, at stated periods thereafter, of other highways. If, therefore, the burden should become unequal, in consequence of a change, relatively, in the assessment lists of the borough and of the town, the inequality is at all times subject to a regulation by which it can be corrected. We are satisfied, therefore, that there was no error in the rulings of the superior court, and a new trial is not advised.

In this opinion, the other judges, Storrs and Ellsworth, concurred.

New trial not granted.