author: Church, Ch. J.

text:
    Bentley against Lyman:
    IN ERROR.
    Where a grand-juror preferred to a justice of the peace a complaint against B, alleging that B, at G, made an assault upon the body of A, and him beat and wounded with his fist, and struck many severe blows with clubs, whereby his health was greatly injured and his life despaired of; B appeared and pleaded Not guilty; whereupon the justice adjourned the cause to a future day, taking B’s recognizance payable to the treasurer of the town of G, for his appearance at the adjourned court; B failed to appear, and thereby forfeited his recognizance; in an action of debt, brought by the treasurer of the town of G, on such recognizance, it was held, 1. that the justice had final jurisdiction of the complaint within the statute; 2. that the recognizance was properly taken; 3. that conseqently, the action was well brought.
    This was an action of debt, brought by Lyman, as treasurer of the town of Goshen, against Bentley, on a recognizance entered into by him, in the sum of fifty dollars, for his appearance at an adjourned justice’s court, to answer to a grand-juror’s complaint against him.
    The complaint alledged, that Bentley, on the 13th of No

      vember, 1848, at Goshen, with force and arms, upon the body of John De Loughrey made an assault, and him beat and wounded with his fist, and with clubs him struck many severe blows, whereby his health was greatly injured and his life despaired of. The defendant was duly arrested, and brought before justice Ives, and pleaded Not guilty to the complaint; whereupon the justice, finding it necessary to adjourn the trial to a future time, adjourned it to the 3d day of January, 1849, at the same place; at which time and place the grand-juror appeared to prosecute his complaint; but the defendant made default of appearance.
    Litchfield,
    June, 1851.
    In the present action, the defendant demurred to the declaration; and the county court adjudged it sufficient, and rendered judgment for the plaintiff to recover forty dollars. The defendant then, by motion in error, brought the record before the superior court; and the latter court affirmed the judgment of the county court. By another motion in error, made by the defendant, the record was brought before this court.

      Seymour, for the plaintiff in error,
    contended, That the recognizance upon which this suit was brought, should have been taken to the treasurer of the county, and not to the town treasurer.
    First, the case stated in the complaint is, upon its face, one of a binding-over character. The averments therein made are such, that had the justice before whom the trial was held, found them proved, it would have been his duty to have bound over the accused for trial before a higher court. Stat. 253. § 147.
    Secondly, the averments in the complaint are the same—precisely the same—used in complaints filed by state’s attorneys in prosecutions for assault and battery, tried before the county courts. If this be so, (and the files of the court shew it,) how can it be said, that this is a case of which the justice had final jurisdiction? Billings v. Avery, 7 Conn. R. 236, 239. Dutt. Dig. 544. Stat. 260. § 164.
    Thirdly, the rule to determine how the bond shall be taken, is established, by the averments made in the complaint. Goodwin v. Dodge, 14 Conn. R. 206. 209. If the record shews, as in this case, that the offence charged is one of which the county court has jurisdiction, the bond should be taken to the county treasurer, as well before the trial, as after. In this case, the record prima facie convicts the accused of a crime cognizable by the county court; and had the trial taken place, and the averments made in the record been proved, as laid, the accused would have been bound over to the county court, and the bond taken to the county treasurer.
    Can it, under the rule laid down in Goodwin v. Dodge, make any difference what the result of the investigation would have been, before the justice, whether a binding-over, or a seven dollar fine—inasmuch as the accused, at the time this recognizance was taken, by the averments in the complaint, stood virtually convicted of what was charged in the same.
    Fourthly, the cases over which a justice has final jurisdiction are few, and specified by statute. Unless section 164. p. 260. of the Revised Statutes, is confined to the cases over which a justice has final jurisdiction, as specified by that statute, where shall the limitation stop? what rule other than the one prescribed by statute, can be adopted? That rule being adopted, puts an end to this case, inasmuch as it is not one of the cases embraced in the statute.
    Fifthly, at the time the decision in Goodwin v. Dodge was made, there was no statute authorizing the taking of a recognizance upon an adjournment before a justice’s court; and at the time this adjournment was made, and this recognizance taken, there was a statute, which furnishes a rule that is imperative. Stat. 260. § 164.
    Sixthly, when a statute prescribes a rule for taking bonds, that rule must be strictly followed. Clapp v. Hayward, 15 Mass. R. 276. Pardee v. Platt, 20 Conn. R. 402. Billings v. Avery, 7 Conn. R. 236. 239.

      G. H. Hollister, for the defendant in error,
    insisted, That the bond was properly taken to the treasurer of the town.
    First, the complaint charges only a common assault and battery and breach of the peace, an offence punishable by fine not exceeding one hundred dollars, and by imprisonment not exceeding six months. Stat. 237. § 76. The statute, p. 254. § 148. leaves it to the justice to form his own opinion, whether he shall exercise jurisdiction, or whether the offence charged requires a binding-over.
    If the information were for rape, arson or murder, and the bond were taken to the treasurer of the town, the declaration would be clearly demurable. Goodwin v. Dodge, 14 Conn. R. 206.
    Secondly, the words “final jurisdiction,” as used in the statute of 1845, mean jurisdiction, and nothing more; that is, the right to proceed to final judgment, as distinct from the duty of a justice of the peace, in higher offences, to hold a kind of court of enquiry, and upon probable cause, to bind over to a higher tribunal. Stat. 253, 4. and note; also p. 239. 219.
    Thirdly, the right of appeal does not settle the meaning of the words “final jurisdiction.” Were the construction put upon these words by the plaintiff in error, to prevail, the final jurisdiction of justices of the peace would be limited to cases arising under the three statutes against profane swearing, drunkenness, and sabbath-breaking. Stat. 239. Darling v. Hubbell, 9 Conn. R. 350.
    Fourthly, the words “sole jurisdiction,” in our statutes, mean a different thing from the words “final jurisdiction.” Stat. 254. § 149.
   Church, Ch. J.

The only question here, is, whether a justice of the peace, in hearing and trying a grand-juror’s complaint for an assault and battery, has final jurisdiction, within the meaning of section 164 of the Revised Statutes, concerning crimes and punishments, p. 260.

If he has the power to convict or acquit, so that his judgment shall be a bar to a future prosecution for the same offence, his jurisdiction is final, within the meaning of the law in question. And in such case, the recognizance, which was taken in this case, to the treasurer of the town of Goshen, is valid, and there is no error in the judgment of the county court.

A justice of the peace has jurisdiction and cognizance of the crime of assault and battery, and may punish it, by fine and imprisonment—by fine not exceeding seven dollars, and by imprisonment not exceeding thirty days. And if, upon the hearing and trial of such offence, he shall be of opinion, that the offence deserves a greater punishment, he may bind over the accused to a higher court. Vid. Rev. Stat. de crimes and punishments, § 76. p. 237. & § 147. p. 253.

From these provisions of law, it is evident, that it is the duty of a justice of the peace, in such case, to proceed to hear and try the complaint, as a trying, and not as a mere enquiring magistrate; and his judgment, until set aside, by due process of law, is conclusive. It is true, if upon such trial, he judges that a greater punishment than he can inflict, is deserved, he may bind over; but he does this in the exercise of his jurisdiction over the cause.

At any rate, the justice of the peace was holding jurisdiction of the offence, when the cause was adjourned, and the recognizance was taken; and the record shews, that he was holding final jurisdiction: he proceeded to conviction and punishment, and no other court then had any jurisdiction in the matter.

We think the law is, that, if the justice of the peace sits as a court of enquiry merely, and a recognizance is taken by him, it must be taken to the treasurer of the county or of the state, as the case may be; but if the offence charged is within his own jurisdiction, and it only depends upon the aggravation of it, as determined by himself, whether the complaint shall be transmitted to another court, he is to be considered as having final jurisdiction within the meaning of the law; and the recognizance, in such case, should be taken, as was done in this case, to the treasurer of the town wherein the offence was committed.

By the expression final jurisdiction in the 164th section of the statute under which this recognizance was taken, is not meant ultimate and conclusive jurisdiction; a justice of the peace has no such, except in a few of the most trifling cases; as profane swearing, sabbath-breaking, &c. In all other cases, appeals from his judgment are allowable. A different view of the statute would be quite too narrow.

There is nothing erroneous in the judgment complained of.

In this opinion the other judges concurred.

Judgment affirmed.


source: Caselaw Access Project

author: Storrs, J.

license: Public Domain

text:
    Hickox and another against Parmelee and another.
    Litchfield,
    June, 1851.
    On a stream of water issuing from a large natural pond were mills owned respectively by A and B; the mill nearest the outlet of the pond being owned by B, and that below by A. Both A and B claimed under C who, in 1800, owned the land, at the outlet of the pond and below, and erected mills on the site of A’s mill. About the same time, C, in conjunction with other mill-owners below, erected a dam, flume and gate, at the outlet of the pond, deepening and widening the channel, for the purpose of controuling the water there, for the more advantageous use of it for their mills. B’s mill was erected in 1834; before which C and the other mill-owners had claimed and exercised the exclusive right to dam up and controul the water at the outlet of the pond, without obstruction. In an action brought by A against B, for obstructing the water at B’s mill, it was held, 1. that the acts of C, for such a period, unexplained by any circumstances which deprived them of an adverse character, constituted a conclusive presumption of a grant from C to the mill-owners below of a permanent right in them, conjointly with C, to construct those works and use them for that purpose, thereby qualifying the natural rights of C as riparian proprietor; 2. that C, by such acts, did not acquire any new or additional right, to the exclusion of, or in preference to, those who might subsequently become, under him, intermediate owners on the stream; because C, being the owner, not only of the land on which his mill stood, but also of that between it and the outlet of the pond, his unity of ownership would prevent the acquisition by him of any such new or additional right; 3. but that, where C, while he owned A’s mill, practically attached and appropriated to himself the privilege now claimed by A, and continued to exercise that privilege, for the use and benefit of his mill, down to the time when it was conveyed to A, such privilege became, and is to be considered, parcel of the mill estate, and passed, as such, from C to A, by the conveyance to him of such estate; consequently B, by the subsequent conveyance from C to him of a mill site on the same stream, took only an estate modified by the privilege so attached to A’s mill.
    Where it appeared, in such case, that D, who purchased of C, and through whom both parties claimed title, was present when B erected his works and made the obstructions complained of, and did not object thereto; it was held, that such conduct of D did not estop A to deny the right of B to do those acts, nor prove a license to B to do them.
    Where it also appeared, that D, in his conveyance to B, “reserved” the right of entering on the land conveyed, “for the purpose of erecting a dam in the mouth of the pond, and drawing water therefrom;” it was held, 1. that if that clause was to be deemed a technical reservation, it would enure to the benefit of D, as owner of the land unconveyed by that deed, and of his grantees of that land, being attached to the estate retained by D, and not to him personally; but 2. that this clause was not intended as a reservation, but was inserted in the deed, only for the purpose of protecting the grantor, on his covenant against incumbrances, from any liability on account of the right or privilege which A might claim to be attached to his mill.

      In a motion in arrest of judgment, for the misconduct of one of the jurors, it appeared, that during the progress of the trial, just before the assembling of the court, after an adjournment at noon, a map or diagram of the pond and of the stream issuing therefrom, with the dam and flume at the outlet, constructed by engineers employed by both parties, and previously used before the jury, was lying upon the bar table; and one of the jurors coming in, took it up, and while he was examining it, T, one of the witnesses who had testified in the cause, and one of the mill-owners on said stream below the plaintiff, and of course, interested in the question, took hold of the map and turned it around, saying to the juror, that he would understand it better if it was turned around, and then pointed to certain localities marked upon it. The interview betwen T and the juror continued, in a low voice, for two or three minutes, in the presence, but not within the hearing, of the sheriff, clerk, and some of the members of the bar. T testified, that he did not know that the juror was one; and the juror testified, that what was said and done had no effect upon his mind, and no influence upon the verdict. Held, with some hesitation, that the verdict ought not to be disturbed.
    This was an action on the case for the obstruction of a water-course.
    The declaration contained several counts, the second of which alledged, that the plaintiffs were the owners of a certain grist-mill and saw-mill, and of the premises on which they were situated, on East Aspetic river, in the town of Washington; that said river, at the time of committing the grievances hereinafter mentioned, had flowed, and been accustomed to flow, and of right still ought to flow, in great abundance, to the said mills and premises of the plaintiffs, for supplying them with water necessary to work them; that the plaintiffs, (in common with other mill-owners upon that stream,) had been accustomed to controul, and have still the right to controul the waters of said stream, at a place above the premises of the plaintiffs, where said stream issues from a pond, called Waramaug pond, by means of a gate, and flume, and dam, at that place; that the plaintiffs, in common with other mill-owners on said stream, had been accustomed to regulate and controul, and had a right, and still have a right, to regulate and controul the waters of said stream, for the benefit of the mills of the plaintiffs and said other mill-owners, by damming up the waters of said pond, in times of plenty of water, and by letting them out in times of scarcity, as they were wanted for said mills; yet that the defendants, well knowing the premises, and contriving to injure the plaintiffs, did, on the 1st of May, 1848, by means of a dam across said river, and a flume, gate and other obstructions, placed in said stream above the premises of the plaintiffs, and below the dam and flume and gate first above-mentioned, obstruct and impede, and have ever since obstructed and impeded, the course of said stream, and prevented the waters from coming to the mills of the plaintiffs, and dammed up the waters of said stream so as to prevent them from flowing, in their accustomed and rightful manner, to said mills of the plaintiffs, so as to prevent their regulating and controuling, in the manner as before stated, they were accustomed and had right to do, the waters of said stream; whereby the plaintiffs have been deprived of their just rights, and prevented from enjoying the use of said stream, and have been greatly injured and obstructed in their business at said mills.
    The cause was tried, on the general issue, at Litchfield, August term, 1850, before Church, Ch. J.
    On the trial, it appeared, that the plaintiffs and other persons were the owners and occupiers of mills of various kinds and used for various purposes, on a stream of water, called the East-Aspetic river, in the town of Washington, which issued from a pond of water, called the Waramaug pond; and the defendants were the owners and occupiers of a furnace on said river, above the mill of the plaintiffs, and above all the other mills on that stream, and nearest the outlet of the pond.
    The defendants claimed the right, as riparian proprietors, to do the acts complained of, and if not, that by virtue of documents and deeds produced in evidence, they had a special right to the exclusive use and controul of the water, at the outlet of the pond, for the use of their said furnace, and a right to erect their dam and flume, and to use the same as they had done.
    Both parties claimed under William and Stephen Cogswell, who owned the land at the outlet of the pond, and who erected a grist-mill and saw-mill on the site where the plaintiffs’ mills now stand, as early as the year 1800, and under whom the plaintiffs claim.
    The defendant’s furnace was erected as early as the year 1834.
    The plaintiffs also claimed, on the trial, and offered evidence to prove, that from time immemorial there were mills along said stream, below where the defendants’ furnace now stands, and among others, the mills of the plaintiffs, erected by William and Stephen Cogswell; and that from time immemorial, and for more than fifteen years before the erection of the defendants’ furnace, the owners of said mills had claimed the exclusive right to dam up and controul the water at the outlet of the pond, for the use of the mills on said stream, without any obstruction from the Cogswells, or any body else, until the time of the acts complained of by the plaintiffs.
    It was agreed, that the title of the plaintiffs to their mills was derived, by legal conveyances, from William and Stephen Cogswell, and that the immediate grantor of the plaintiffs was Joseph H. Bennet, who conveyed to the plaintiffs, by deed, dated February 1st, 1847.
    The defendants claimed, and offered evidence to prove, that William and Stephen Cogswell, during all the time they were the owners of the land and mills, now of the plaintiffs, were also the owners and occupiers of the land now occupied and claimed by the defendants, and on which the defendants’ furnace is situated; and it was admitted, that all the right and title of the Cogswells to said land had come down to the defendants, unless the same had been modified, as claimed by the plaintiffs.
    It was agreed, that upon the death of William Cogswell, there was distributed from his estate to his son, Theodore Cogswell, the one-half of the mill privilege at the outlet of the pond, and one-half of the grist-mill, &c., now owned by the plaintiffs; and that Theodore Cogswell conveyed the same to said Joseph H. Bennet, by his deed, dated 27th of February, 1828.
    It was also agreed, that Stephen Cogswell conveyed to said Bennet the other half of the mills now owned by the plaintiffs, together with the one-half of the privilege at the outlet of the pond, by his deed, dated 29th February, 1828.
    To prove the right and claim of the mill-owners on said stream, under the second count in their declaration, the plaintiffs offered Abijah Tomlinson, one of said mill-owners, to testify, that while William and Stephen Cogswell were, with others, mill-owners on said stream, and owned and occupied the mills now of the plaintiffs, and also owned the land at the outlet of the pond, said mill-owners, from time to time and from year to year, as far back as forty-nine or fifty years ago, controuled the water at the outlet of the pond, for the benefit of the mills below, and had, at a joint expense, erected a dam and flume at the outlet, and from time to time had deepened and made wider the channel at the outlet and below, at all times, under a claim of right to do the same.
    To this evidence the defendants objected; but the court admitted it.
    It was agreed, that Joseph H. Bennet, by his deed dated July 18th, 1834, conveyed to the Waramaug Iron Company the land on which the defendants’ furnace is erected, and by which company the same was built, and from which company the defendants, by several intermediate conveyances, executions, &c., have derived title.
    This deed contained the following reservation, or qualification of the grant: “It is understood, that said Bennet does not intend to convey a right (provided, such a right now exists,) across the said land, immediately below the outlet of the pond, for a public highway; and reserves the right of entering on said land, for the purpose of erecting a dam in the mouth of the pond, and drawing water therefrom.”
    And it was also agreed, that Bennet, when said furnace was erected, was a stockholder in the Waramaug Iron Company, and resided in the vicinity of the furnace, and, at the same time, was the owner of the mills now of the plaintiffs.
    And the defendants offered evidence to prove, and claimed they had proved, that while said company was erecting the furnace, and their dam and flume, Bennet saw and knew the progress of the work, and made no objection to the erection of the same, or the manner in which it was built and finished; and thereupon they claimed, that Bennet, and the plaintiffs claiming under him, are estopped to deny the right of the Waramaug Iron Company to erect said dam and flume, as they were erected and finished; and also are estopped to deny the right of the defendants to keep up and use said dam and flume as they are kept up and used, and of which the plaintiffs complain. And also, that Bennet, by not objecting as aforesaid, gave liberty and license to the Wara

      maug Iron Company thus to erect and keep up and use said dam and flume; which license could not be revoked, either by Bennet or the plaintiffs; and prayed the court so to charge the jury.
    The court did not charge as requested, but instructed the jury, that as Bennet, by his deed to the Waramaug Iron Company, did not specify the elevation to which that company might erect their dam and flume, neither he nor the plaintiffs are estopped thereby, as the defendants claim; and also, although Bennet was a stockholder in said company, and witnessed the progress and finishing of the dam and flume, without objection; yet he was not, nor are the plaintiffs, estopped, as the defendants claim, unless he knew the elevation of the dam and flume, and had good reason to believe, that, thus erected, they would set back the water, and would improperly obstruct the flow of the water to his own mill and the other mill below; nor would his silence as aforesaid amount to a license to the Waramaug Iron Company to erect their dam and flume so as unnecessarily to obstruct the flow of the water from the pond to the mills below, as claimed.
    It was agreed, that when Bennet conveyed to the Waramaug Iron Company, he conveyed all the land he owned at the outlet of the pond, and upon said stream, except the land and mills now of the plaintiffs; and yet the defendants claimed, that by the deed of Bennet to the Waramaug Iron Company, he reserved a right to himself, and for himself, to enter upon the land at the outlet of the pond, for the purpose of erecting a dam at the mouth of the pond, and to draw water therefrom, which, right still remains in him, notwithstanding his deed to the plaintiffs; and therefore, neither the mill-owners nor the plaintiffs have such right as they now claim; and prayed the court so to charge the jury.
    The court did not so charge, but did charge that said deed from Bennet to the Waramaug Iron Co. should be construed in reference to the foregoing facts, and the condition of the property, as proved in the case; and in view of these, the reservation in the deed of Bennet to said company was not to be understood as retaining any right to the exclusive use or controul of the water against said mill-owners, or to do the acts complained of; but was intended only to apprise the grantees in said deed of the existence of an incumbrance, and to protect the grantees from liability on the covenants in said deed; and also, if Bennet did then retain any such right in himself, that it was conveyed to the plaintiff, by his deed.
    It was agreed and proved, that after the erection of the furnace, by the Waramaug Iron Company, that company carried on the furnace, using the water, without complaint by said mill-owners, for about two years, when said company failed, became insolvent, and assigned said property to a trustee for the benefit of creditors, before which time, viz, on the 7th day of May, 1837, said company had mortgaged said property to Bennet and others; and the defendants derive their title from the mortgagees, trustee and various liens of executions, &c., from the Waramaug Iron Co.; and that the deed under which they make immediate claim, and from which they directly claim title, is from Gilbert and Adrian.

    And the court further charged the jury, that if they should find from the evidence, that the plaintiffs and those under whom they had derived their title to their mills, had, for a period of more than fifteen years, either by themselves, or in common with the other mill-owners on said stream, exercised the right of regulating and controuling the water of the pond, at the place and in the manner in their declaration mentioned; or if they should find, that Bennet, at the time of his conveyance to the plaintiffs, was the owner of such right; and then if they should further find, that the defendants had, by their works on said stream, in the manner complained of, by the plaintiffs, in their declaration, unnecessarily obstructed the plaintiffs in the exercise and enjoyment of their rights, to their injury; or if they should find, that the defendants had, in the manner complained of, by the plaintiffs, obstructed the natural flow of the waters of said stream unnecessarily, or for an unreasonable time, to the injury of the plaintiffs, their verdict should be for the plaintiffs; otherwise, for the defendants.
    The jury returned their verdict for the plaintiffs; and the defendants thereupon moved for a new trial.
    The defendants also filed a motion in arrest of judgment, on which the court found the following facts.
    Upon the trial of the cause, there was used a map or diagram of the Waramaug pond, the outlet and the stream issuing therefrom; also the dam and flume at the outlet; and also the furnace dam and flume of the defendants, together with the mills on the stream below. This map was constructed by engineers employed by both parties. The several localities referred to by witnesses, were designated thereon, by writing.
    During the progress of the trial, and just before the assembling of the court after the adjournment at noon, this map was lying upon the bar table, and while so lying, Andrew Root, one of the jurors impanelled and sworn in the cause, came into the court room, and was examining the map, as it was lying upon the bar table; and while he was thus examining it, Abijah Tomlinson, who was one of the witnesses who had testified in the cause, and was one of the mill-owners mentioned in the plaintiffs’ declaration, and interested in the cause in favour of the plaintiffs, came up to him, and took up the map, and turned it around, and said, to the juror, that he would understand it better, if it was turned around, and then, with his finger, pointed to certain localities delineated on the map, especially the Waramaug pond, the outlet of the pond, the dam, and the stream running South from the pond and the flume.
    The juror asked no questions of Tomlinson, nor did Tomlinson ask any questions of the juror. This interview between the juror and Tomlinson continued, in a low voice, for two or three minutes, and until the assistant clerk of the court interfered, by directing the attention of the juror to the juror’s oath in the statute book.
    All this was in the presence, but not in the hearing, of the assistant clerk, the sheriff and two or three members of the bar.
    If any thing else was said by either the juror or Tomlinson, it was not heard by others, and is not known. Nothing more was recollected, by either the juror or Tomlinson.

      Tomlinson testified, that he did not know Mr. Root to be a juror, or did not then recognise him as such; and the juror testified, that what was done and said had no effect upon his mind, and no influence upon the verdict.
    Neither of the parties knew of this interview until after the verdict had been rendered.

      Upon these facts the motion was reserved for the opinion of this court on the question whether they constituted a sufficient ground for setting aside the verdict.

      Sanford and J. H. Hubbard, in support of the motion for a new trial,
    contended, 1. That Tomlinson's testimony was immaterial. In the first place, to acquire a right to the use of water, by occupancy, the occupancy must be adverse. Ang. Water, c. 85. Secondly, the Cogswells and their grantees, down to 1834, owned both mill sites together. No easement in the upper one could be acquired by them, so as necessarily to attach to the lower one. Thirdly, the other mill-owners exercised the right only with the owners of the upper site, and so it was not adverse.
    2. That the charge was wrong as to the estoppel created by the conduct of Bennet. He stood by and saw the defendants expend their money, without objection, and under his own grant. He and his grantees are estopped to deny the right of the Waramaug Iron Company to erect and keep up their dam, &c. Baldwin v. Porter, 12 Conn. R. 473. 482. Kinney v. Farnsworth, 17 Conn. R. 355. 361. Starr v. Anderson, 19 Conn. R. 338. 342. Stow v. Wyse, 7 Conn. R. 214. 220. He was bound to know how the defendant’s dam would affect his rights.
    3. That the construction given by the court, in its charge, of the reservation in Bennet's deed, was wrong. In the first place, it is, in its terms, of a valuable right, in no way qualified or restricted. Secondly, there were no facts or circumstances in the case, nor any thing in the condition of the property, which warranted the construction given.
    4. That Bennet’s deed to the plaintiffs, does not convey the right claimed by them. The subject matter of the grant is specifically described, by metes and bounds, in that part of the deed which embraces the premises; and nothing not within the boundary, or naturally or necessarily appurtenant thereto, passes. Manning v. Smith, 6 Conn. R. 289. 292. Hatch v. Dwight & al. 17 Mass. R. 297, 8. Grant v. Chase & al. Id. 447.
    5. That the charge as to fifteen years occupancy, is wrong. In the first place, there was, at all times, unity of possession as to both sites; and so the plaintiffs, by their occupancy, could not acquire any thing. Secondly, the other mill-owners always occupied with the plaintiffs and their grantors, and so not adversely. Thirdly, the jury were told, that the mere occupancy for fifteen years, was enough—not the adverse occupancy.
    6. That the charge withdrew from the consideration of the jury the claim of a special right to do the acts complained of, under the documents and deed upon which they relied. The court instructs the jury, that if the defendants have obstructed the natural flow of the water, for an unreasonable time, or unnecessarily, &c.—i. e. if they have done any thing not justified under their legal rights as riparian proprietors, then their claim of right to do so, must be disregarded.
    7. That the motion in arrest ought to be sustained. In the first place, the conduct of the juror was a violation of his oath. Stat. 525. Secondly, Tomlinson was a party in interest: that is fatal. Pettibone v. Phelps, 13 Conn. 450, 1. Wilson v. Abrahams, 1 Hill, 11. Thirdly, the interview was of a very suspicious character. It was carried on in a low tone; lasted two or three minutes; and much more must have been said than was disclosed. Fourthly, it was impossible for the juror to say, that it had no influence on the verdict; and the court does not find that it had none. It might have had; and that is enough. Hix v. Drury, 5 Pick. 302. Benson v. Fish, 6 Greenl. 141. Pettibone v. Phelps, 13 Conn. R. 451. An important principle of public policy is involved, which can be sustained only by setting aside all verdicts obtained under such circumstances.

      Seymour, (with whom was Chittenden,) contra,
    contended, 1. That the testimony of Tomlinson was admissible. It went to establish a dedication, by all interested in the stream, to all interested therein, of certain rights. If one person happens to unite in himself the ownership of two privileges, is he therefore excluded from the common benefit, or does he thereby escape subjection to the common burden? In such cases, the common use of the reservoir and stream, in a particular way, for a long period of time, becomes the acquired law of the stream, as a substitute for the original natural law. Nicholas v. Chamberlain, Cro.Jac. 121. Hazard v. Robinson, 3 Mason, 272.

      2. That the plaintiffs are not estopped, by any acts of Bennet.

    3. That the court, on the trial, gave the right construction to Bennet’s deed to the Waramaug Iron Company.

    4. That the motion in arrest ought not to prevail. It is now the settled doctrine, that the plaintiff is not to lose the benefit of his verdict, unless he, or some agent of his, is guilty of some fault; or unless the defendant has, or may have, suffered from the misconduct of the juror. Pettibone v. Phelps, 13 Conn. R. 445. Here was clearly no fault in the plaintiff. There was no fault in Tomlinson even. He did not know that Root was a juror. No injury has been suffered by the defendant. The conversation, though relating to the cause, was not upon its merits; nor did it, in any manner, involve its merits. The map and localities had been surveyed and marked, by an engineer employed by both parties, and were, in no manner, the subject of any disagreement or controversy. The juror expressly swears, that it had no effect on his mind, and no influence on the verdict. The attending circumstances repel all suspicion of sinister design. The place was the court room; the time was midday; and the spectators were the sheriff, the clerk and the members of the bar generally.
   Storrs, J.

The right of controuling the water of the stream in question, for the benefit of the plaintiffs, in derogation of the rights of the defendants, whose works are situated between the mills of the plaintiffs and the outlet of the pond from which the stream issued, which the plaintiffs set up in the second count of the declaration, under which alone the rulings were made of which the defendants complain, and which it was necessary for the plaintiffs to prove, in order to recover under that count, was one of a special, or as it is termed artificial character, and to which, therefore, the plaintiffs would not be entitled ex jure naturœ, as incident to the ownership of their mills.

Both of the parties claim title to their respective mills, although not immediately, under W. & S. Cogswell, who built the mills of the plaintiffs, while they were the owners of all the land at and below the outlet of the pond down to the lower boundary of the plaintiffs’ land, and therefore including the land of both the parties on which their mills stand; and in considering the objection of the defendants to the competency of the evidence objected to by them, and received by the court below, the intermediate conveyances, between the Cogswells and the parties in this suit, may be disregarded, and the case viewed as if the parties derived their title immediately from the Cogswells; since nothing has occurred, so far as this point is concerned, to vary the rights of either of the parties from what they would have been, if they had derived their title immediately from the Cogswells, or, in other words, as they existed when the latter parted with the property to those under whom the parties less remotely claim.

While the Cogswells owned all the land between the outlet of the pond and the adjoining land of the mill-owners below, the acts of those mill-owners, in conjunction with the Cogswells, and at their joint expence, in erecting a dam, flume and gate at said outlet, and deepening and widening the channel there and below, for the purpose of controuling the water at said outlet for the first use of their mills, and the continued use of those works for that purpose, by them, for the benefit of their mills, for the period of fifteen years, under a claim of right so to do, unexplained as it is, in the present case, by any circumstances which deprive these acts of an adverse character, constituted a conclusive presumption of a grant from the Cogswells to the mill-owners below of a permanent right, in conjunction with the Cogswells, to construct those works and use them for that purpose; the effect of which was, to abridge the right of the Cogswells to the use of the water of the stream between the outlet of the pond and their mills, in such a manner that they could not interfere with the right so acquired, by such presumed grant, and therefore, to diminish, to that extent, their previous natural rights, as riparian proprietors on the stream. The effect of such grant, however, was merely an abridgment of the rights of the Cogswells to that extent; and, excepting so far as it had that effect, it left their rights in the stream the same as they had previously existed. It did not confer upon them, nor did they acquire thereby, on the ground of contract or prescription, any new or additional right to construct or use the works at the outlet or the pond, for the purpose of controuling the water of the stream, for the benefit of their mills, to the exclusion of, or in preference to, those who might subsequently become, under them, intermediate owners on the stream; because the Cogswells being the proprietors, not only of the land on which their mills stood, but also of that between them and the outlet of the pond, their unity of ownership would, on a well established and familiar principle, prevent the acquisition by them of any such new or additional right. Any such acquisition must have been from themselves, which is legally impossible. They could not thus add to the plentitude of their ownership. Therefore, the right claimed by the plaintiffs, under, or by virtue of their conveyance from the Cogswells, to controul the water of the stream between the outlet and their mills, for the benefit of those mills, to the exclusion of the right, claimed by the defendants, to the use of the water, for the benefit of their furnace, which is situated between said outlet and mills,cannot be sustained, upon the ground that the Cogswells, or the plaintiffs claiming under them, have acquired any such right to controul the water, by an agreement between the latter and the mill-owners below, or by an adverse enjoyment thereof, which would amount to, or be evidence of, a grant for that purpose.

But there is another ground, on which, by the conveyance from the Cogswells to the plaintiffs, of the land and mills of the latter, the right of controuling the water above those mills might pass to the plaintiffs and become vested in them, and prevail over any conflicting rights claimed by the defendants to the use of the water for their furnace, which was erected by them subsequent to the erection of the mills of the plaintiffs. If, while the plaintiffs’ mills were owned by the Cogswells, the latter practically attached and appropriated to them the privilege of controuling and regulating the water above, which the plaintiffs now claim a right to exercise, by constructing themselves, or in conjunction with the mill-owners below, the works at the outlet of the pond, and deepening and widening the channel there, for that purpose, and thenceforth continued to exercise that privilege, by means of such works, in connexion with, and for the use and benefit of those mills, down to the time, when they conveyed to the plaintiffs, we are of opinion, that such privilege became, and is to be considered, parcel of the estate of which those mills formed a part, and passed as such from the Cogswells to the plaintiffs, by that conveyance; and the effect of the conveyance to the defendants of the other portion of the property, on which their furnace stands, was only to convey to them such property, as it was then modified by the privilege so attached to the mills of the plaintiffs. If, after that privilege was so attached to those mills, it had been withdrawn or severed from them, by the Cogswells, while they owned the property above, as they had a right to do, and their mills had thus been deprived of it, as it would have ceased to be attached to them, or to subsist in connexion with them, it would no longer have been parcel of the estate, and, therefore, would not have passed, by the conveyance of it. These principles are fully established, by the cases of Nicholas v. Chamberlain, Cro. Jac. 121. and Carey v. Daniels, 8 Metc. R. 466. which bear a very close analogy to the present, and are distinctly recognized and approved, in Hazard v. Robinson, 3 Mason's R. 272. and the cases therein referred to.

The testimony of Tomlinson, which was offered by the plaintiffs, tended directly to prove the right set up in the declaration, by shewing the existence of such a privilege connected with their mills, and was therefore properly admitted.

2. The defendants claim, that the conduct of Bennet, (who purchased from the Cogswells, and under whom both parties claim title,) in remaining silent and interposing no objections, while the Waramaug Iron Company, (who purchased of Bennet previously to the plaintiffs, and under whom the defendants immediately claim title,) were constructing their works, of which the plaintiffs now complain, although he was observant of what said company were then doing, estopped Bennet, and therefore precludes the plaintiffs, from alledging that said company encroached, by means of said works, on the rights now claimed by the plaintiffs; or, at least, amounted to a license from Bennet to said company, irrevocable by him, and consequently by the plaintiffs, to construct those works. We think, that the defendants have no reason to complain of the charge below on this point, but that it was rather over favourable to the defendants than otherwise. We are not aware of any principle of law, by which Bennet was obliged to interfere with the acts of his grantee, on peril of losing his rights. His conduct would amount only to evidence on the question whether such acts were done with his license; and there is no complaint that the defendants had not the advantage of it, for that purpose, before the jury. Johnson v. Lewis, 13 Conn. R. 307.

3. We perceive no error in the charge below, on the construction or effect of the clause in the deed from Bennet to the Waramaug Iron Company, which was claimed to be a reservation for the benefit of the former. If that clause is to be deemed a technical reservation, it would enure to the benefit of Bennet, as the remaining owner of the land on the stream unconveyed by that deed, and of his grantees of that land, which, in this case, were the plaintiffs. It would be attached to the estate retained by Bennet, and not to him personally. But on the construction of it by the defendants, it gave to Bennet the right to controul the water of the stream after he had divested himself of the property to which it was appurtenant. This view of it is unsupported, by reason or authority. We concur, however, in the opinion expressed by the judge on the trial, that that clause was not intended as a reservation; but that it was introduced into the deed only for the purpose of protecting Bennet, the grantor, on his covenant against incumbrances, from any liability on account of the existence of the right or privilege claimed by the plaintiffs, on the trial, as before mentioned, to be attached to their mills, by virtue of the conveyance to them by Bennet.

4. On the remaining question, whether the verdict should be set aside, on account of the misconduct of the juror, we have come to the conclusion, although not without some hesitation, that it ought not to be disturbed. That hesitation has arisen from the difficulty, generally, of ascertaining that the mind of a juror was not influenced, by the communication of another person, although the juror himself is sensible of no such effect, and is even so confident that there was none, that he does not hesitate to deny it, in his testimony. But in this case, there was nothing in the character of the communication itself, which would have a necessary, or even probable, tendency to bias the opinion of the juror, although it is possible that it might have that effect. And the communication to him was of that peculiar kind, that we are induced to think that he could judge correctly on the point whether he was so biassed; and that full credit ought, therefore, to be given to him, when he testifies, that he was not. What took place between him and Tomlinson was highly reprehensible, and a violation of duty in both; but it appears to have been the result of thoughtlessness, and not any improper motive. If the latter were one of the plaintiffs in the action, or their agent, we should not hesitate to set aside the verdict, whatever may have been the character of his communication. Such however was not the case. He had no interest in the event of the suit, although he was a mill-owner below the plaintiffs, and therefore, at most, had only what is termed an interest in the question. 13 Conn. R. 445.

A new trial, therefore, is not advised.

In this opinion the other Judges concurred.

New trial not granted.

Judgment not arrested.


author: Ellsworth, J.

text:
    The town of New-Milford against The town of Sherman.
    Where the question, in an action brought by A against B, for the support of P, an inhabitant of B, was, whether P, when the support was furnished, was a pauper, within the meaning of the statute; and it appeared, that shortly before the time referred to, P was in possession of two promissory notes, the dates and value of which were not found, from which he afterwards received 7 dollars; and the court instructed the jury, that if P had property that could be made available for his support, he was not a pauper within the meaning of the law; and that it was for them to find, whether the notes in question were of any value so as to prevent his being in need of support, at the time it was furnished; the jury having returned a verdict for A, it was held, 1. that the jury, under the instruction given, must have found, that P was in fact a pauper; 2, that
      A was obliged to furnish him support, while within the limits of that town; 3. that these matters were properly submitted to the jury; 4. that the jury, if the evidence satisfied them, could give the verdict they did.

      Litchfield,

    June, 1851.
    Where B, on the trial of such action, to prove the settlement of P in A, offered in evidence a certificate of the town-clerk of A, that at the election of state officers in 1843, P was enrolled as a voter in that town; it was held, that such certificate was inadmissible; 1. because it was not the proper evidence of a matter of record, but there should be a certified copy of the record; 2. because the fact certified, if proved, did not shew the settlement of P in A; 3. because it related to a different time from the one in controversy.
    Where A, on the trial of such action, to prove the settlement of P in B, by commorancy, offered, in connexion with other evidence, the declarations of P, made in the act of leaving an individual in A for whom he had been labouring, and while travelling towards B, that “he was going home to S,” the place of his former residence in B; it was held, that such declarations were admissible, as shewing the mind and conduct of P in relation to his domicil.
    Where it appeared, in such case, that P, an inhabitant of B, was in A, in want of immediate support; A furnished the support, and gave due notice to B; it was held, that A had, thus far, a good cause of action against B.

    Where it further appeared, in such case, that while P was residing at the house of S in B, one of the select-men of A, acting under the mistaken belief that the house of S was in A, directed P to be taken thence and placed in the poor-house of A, where the supplies in question were furnished, without returning P, or offering to return him, to his former residence; it was held, that A was not, by such mistake, estopped from shewing the truth, or precluded from a recovery.
    In order to gain a settlement in a town, by commorancy, under our statute, a person must have resided therein constantly and continuously, for the full period of six years; but if he had an established residence therein, for that period, his temporary absence therefrom, for a temporary object, either of business or pleasure, if he intended to return, and did in fact return there, as to his home, when that object was accomplished, such absence would not interrupt the continuous residence necessary to gain a settlement.
    This was an action to recover the expenses of the support and funeral of William Prout, alleged to be an inhabitant of the town of Sherman.

    The cause was tried, on the general issue, at Litchfield, February term, 1851.
    On the trial, it was admitted, that Prout, the pauper for whose support the action was brought, had his birth, in the town of New-Milford; but the plaintiffs claimed, that subsequently to December, 1832, and before the accruing of their account, he had gained a settlement in the town of Sherman, by six years residence therein according to the statute.

      It appeared in evidence, that while Prout was residing in Sherman, at the house of Jotham Sherman, on the 23d of February, 1847, said Jotham notified one of the select-men of New-Milford, that he was there, and was poor, and unable to support himself; whereupon such select-man directed the overseer of the poor-house in New-Milford to take Prout and his chest of clothing to the poor-house; which was immediately done; and the town of New-Milford then commenced furnishing the support for which they claimed to recover.
    The plaintiffs also claimed, and offered evidence to prove, that they put into the post-office at New-Milford letters, dated the 22nd of March and 1st of June, 1847, directed to the select-men of Sherman, informing them, that Prout was on expense in New-Milford; that he continued to reside at said poor-house and to be supported by the plaintiffs there, to the 3d of May, 1847, when he left the poor-house, and was absent therefrom until his return thereto, on the 12th of May, 1847, from which time he was supported by the plaintiffs there, until his death, on the 2d of April, 1848. It appeared, that during his temporary absence from the poor-house, he visited Jotham Sherman's family; but how long he remained there, and at what other places he visited, did not appear.
    The plaintiffs also claimed and offered evidence to prove, that at the time the select-men of New-Milford directed Prout to be taken to the poor-house, it was under the mistaken belief, that Jotham Sherman's house was in the town of New-Milford; but there was no evidence that the plaintiffs informed the select-men of Sherman of the manner in which Prout came to the poor-house, or that there had been any offer to return him to the town of Sherman. Whereupon the defendants claimed, that upon the facts claimed and admitted by the plaintiffs, they could not recover, and requested the court so to instruct the jury.
    They also denied that Prout was destitute and required support, and requested the court to charge the jury, that if he was taken from the town of Sherman, with his chest of clothing, by the select-men of New-Milford, without any notice that he needed assistance; and if the town of New-Milford had voluntarily furnished the supplies charged in their bill of particulars, before returning, or offering to return, or his chest of clothing, to the town of Sherman; and if they never had so returned, or offered to return him, they could not recover, notwithstanding the jury might believe, that he was first taken from Sherman under the mistaken belief aforesaid.
    The court did not so charge the jury; but did charge them, that if they found, that Prout was a pauper, and needed the relief furnished; and if the select-men of New-Milford, in directing him to be brought to the poor-house, acted under the mistaken belief that he was, while at Jotham Sherman's, within the limits of the town of New-Milford; and if they found, that he was, at the time, a settled inhabitant of the town of Sherman; and if they found, that they had given to the select-men of Sherman the notice required by law; they were entitled to recover for his support, both before and after his temporary absence from the poor-house, in May, 1847.
    The defendants claimed, that Prout had never gained a settlement in Sherman, but had ever belonged to and had resided in the town of New-Milford. And for the purpose of proving their claim, they offered, in connexion with their other evidence, the certificate of Jared Bostwick, town-clerk of New-Milford, that in April, 1843, Prout was enrolled as a voter in New-Milford; to which the plaintiffs objected; and the court sustained the objection, and excluded the certificate.
    The plaintiffs however claimed, that if Prout had ever gained a settlement in Sherman, it was previous to the year 1842; and there was no claim that he had gained a settlement there, at any time after that year; nor was there any claim, on the part of Sherman, that he was not a settled inhabitant of that town, at the time of the accruing of the plaintiffs’ account, if he had in fact gained a settlement in Sherman previous to that time.
    It was proved and admitted, that for a period of more than four years previous to July, 1838, Prout had his residence in the family of Hannah Sherman, the wife of Jotham Sherman, in the town of Sherman; and the plaintiffs claimed, that his residence continued there, for more than a year after July, 1838, It appeared, that during some portion of that year, he laboured for Cornelius B. Baldwin, and while so labouring, he slept and had his meals at Baldwin’s house in New-Milford. The plaintiffs claimed, that he worked for Baldwin, as a day-labourer only, and that his home continued to be at Mrs. Sherman’s. To prove which they introduced evidence tending to shew, that he never remained at Baldwin’s but a few days at a time; that he always returned to Mrs. Sherman’s on Saturdays, and remained there over the Sabbath; that his clothes, except what he had on, were always kept, repaired and washed at Mrs. Sherman’s; and that he went there to change his dress, and to cleanse and shave himself.
    In connexion with evidence shewing, that on various occasions, during this time, Prout left the house of Baldwin in a direction to go to Mrs. Sherman’s, and was seen travelling on the road in that direction, the plaintiffs offered in evidence the declaration of Prout, while so in the act of leaving Baldwin’s, and also while so travelling towards Mrs. Sherman’s, that he “was going home to Mrs. Sherman’s:” to which declaration of Prout the defendants objected; but the court admitted it.
    The defendants also requested the court to charge the jury, that Prout, who was a man without any family of his own, in order to gain a settlement, by six years residence in Sherman, must have resided there, and eat and slept there, for the full period of six years successively; and that his absence therefrom, while so at work for Baldwin, was such an interruption of his residence there as would prevent his gaining a settlement.
    On this point, the court told the jury, that they must find, that Prout had resided in Sherman constantly and continuously, for the full period of six years, in order to find that he had gained a settlement there; but that, if he had an established residence at Mrs. Sherman’s as his home, previous to the year 1849, his temporary absence therefrom, for a few days, as for a week or more, for a temporary object, either of business or pleasure, if he intended to return, and did in fact return there, as to his home, when that object was accomplished, such absence would not interrupt the continuous residence necessary to gain a settlement; and that it was for the jury to find, from all the facts and circumstances proved, whether Prout's residence did in fact continue in Sherman, or was interrupted, by his residence at Baldwin’s.

    It appeared, that just before Prout was taken to the poor-house in New-Milford, he had two notes, one signed by a married woman, and one by her and her husband; one of these notes was for the sum of about twenty-five dollars, and the other for about the sum of one dollar and fifty cents; which notes he put into the hand of one Jackson, a short time before he went to the poor-house. The dates and value of such notes did not appear; nor did it appear which of them was signed by the married woman only, and which by her and her husband; but it did appear, that at some subsequent time, Jackson collected about the sum of 7 dollars on the notes, the most of which, at two different times, he paid over to Prout. The defendants thereupon requested the court to charge the jury, that Prout was not a pauper in need of support, at the time it was furnished.
    On this subject, the court told the jury, that if Prout had property that could be made available for his support, he was not a pauper, within the meaning of the law; and that it was for them to find, whether the notes in question were of any value, so as to prevent his being in need of support, at the time it was furnished.
    The plaintiffs obtained a verdict for the sum of 63 dollars, the amount charged in their bill of particulars; and the defendants moved for a new trial.

      Orton and Hubbard, in support of the motion,
    remarked in limine, that the right of one town to recover of another, for the support of a pauper, is derived from strict law, and has no foundation in natural justice or equity. Especially is it so, in this case. The pauper having been settled by birth in New-Milford, the plaintiffs must fail to recover, unless they can bring their case within the letter and spirit of the law. They then contended,
    1. That the plaintiffs, by the removal of Prout from the town of Sherman, and placing him in their poor-house, must be considered as having voluntarily assumed the burden of his support, and cannot recover. Child v. Morley, 8 Term R. 613. The plaintiffs were under no compulsion to assume this burden; and therefore, the expense was not necessarily incurred, in the sense of the statute, from which alone the right of action is derived. Stat. 537. § 18.
    Indeed, the town of New-Milford had no right to assume jurisdiction of the question whether Prout was in a condition to require support; and much less, to remove him beyond the jurisdiction of the town of Sherman. By so doing, they deprived the select-men of that town of the power of exercising that discretion over the question conferred by statute, and also the town of all power to exercise the rights conferred on towns to aid them in discharging the burthen of supporting paupers.
    If Prout was settled in Sherman, and was a pauper, then the select-men of that town were his overseers, and might provide for his wants in their own way. Stat 536. § 14.

      Prout was also liable to be removed to such place to be supported as the town of Sherman, or their select-men, might direct. Stat. 536. § 15.
    By his removal to the poor-house in New-Milford, a distance of 15 miles, the select-men of New-Milford assumed jurisdiction over a matter which had been expressly conferred, by statute, upon the select-men of Sherman; and it would be hateful tyranny to allow the plaintiffs, in that way, to decide that Prout was a pauper, and entitled to support from the defendants, in the way and manner that should be prescribed by the plaintiffs.
    While Prout remained in Sherman, the select-men of that town might furnish him with support where he was, or might remove him to their own poor-house, or to any other place in the town without expense; but after he had been removed to the poor-house in New-Milford, the defendants had no power to get him back, except by a warrant, and of course, were compelled, either to submit to the expense of procuring his return through the service of a warrant by an officer, or to pay the demands of the plaintiffs. Stat. 534. § 7.
    2. That the town of New-Milford are chargeable with the acts of their select-men; and it cannot be said, that they may repudiate the removal of Prout from the custody of his overseers, the select-men of Sherman, as a wrongful act, and still recover for the support which was a consequence of that wrongful act. Their select-men are their agents in providing for the support of a pauper;and the act of the selectmen, is the act of the town. At any rate, the plaintiffs are estopped to deny that they authorised the removal of Prout to poor-house, so long as by this action they are attempting to appropriate the benefits of it to themselves.
    3. That the motion finds, that Prout was at Jotham Sherman’s in the town of Sherman, and that the select-men of New-Milford were notified, by said Jotham, that Prout was at his house, and needed support; and that thereupon, the select-men of New-Milford, ordered him to be transported to their poor-house, which was done, and the support was furnished. No request of Sherman was ever made, that New-Milford should interfere. No notice was ever given of the way and manner Prout came into the poor-house of New-Milford; nor was any offer ever made to return him to Sherman. But it is found, that the select-men of New-Milford acted under a mistaken impression, when they gave the order for Prout’s removal, that the house of Jotham Sherman was in New-Milford. Can the plaintiffs recover, in such a case?
    4. That the pretended mistake does not alter the case. We have seen that it occasioned a loss to Sherman, and actually deprived them of rights conferred on them by statute. Natural justice requires, that the loss should fall on those who committed the blunder.

      Sherman was guilty of no neglect or imposition, and cannot be made accountable for the blunders of the select-men of New-Milford.

    Indeed, it cannot be called a mistake. It is not so in law. It is mere ignorance. In law, the plaintiffs are presumed to know, and are bound to know, the limits of their own town.

    If it can be called a mistake, the select-men were guilty of such gross neglect, that the plaintiffs cannot shelter themselves, as under an innocent mistake. Their select-men should have enquired of the school-master where the town line was. Chitt. Cont. 625.
    Natural justice and legal policy require that the plaintiffs should at least attempt to retrieve the mistake before they sue the defendants.
    5. That the case cannot stand on more favourable ground than an action against a father or husband for goods furnished to his child or wife; and in such last named case, no recovery could be had, without proof that the father or husband had refused to furnish a necessary support.
    There is no pretence that the defendants had ever refused to supply necessaries to Prout. It does not appear, that the defendants were ever notified of his condition. The presumption is, that Sherman was ready and willing to furnish a proper support for all its paupers. In fact the law presumes, that he was being provided for, and was supplied, with all needful support, inasmuch as he was found residing in the town of Sherman. He was living at Jotham Sherman’s, where he was provided for; but to relieve Jotham Sherman of the burthen, the plaintiffs volunteer to take him, being under no legal or moral obligation to do so.
    The statute gives an action to recover for support, because, in another section, it compels the support to be furnished. How then can it be said, it was expense necessarily incurred, when it is so plain that New-Milford was not only under no obligation to interfere in the matter, but was actually infringing upon the rights of Sherman in furnishing the support.
    6. That the court erred in rejecting the certificate of Jared Bostwick, because it conduced to shew, when taken in connexion with the other evidence, that Prout was a voter in and inhabitant of New-Milford, and that he had never lost his residence there.
    7. That the admission of the declarations of Prout that “he was going home to Jotham Sherman’s” was also erroneous. It was a mere casual declaration, and might be true or false; and in questions of settlement, there is no necessity of relying upon such uncertain evidence, which may lead to such erroneous results. The declaration cannot be said to be a part of the res gesta, in such a sense as to make it admissible.

      Sanford and Seymour, contra,
    contended, 1. That that part of the charge first excepted to, was correct. The charge was, that if Prout was a pauper and needed the support furnished; if the select-men of New-Milford, in removing him to the poor-house, acted under the mistaken belief that his place of residence was in New-Milford; and if he was settled in Sherman, and due notice had been given; the plaintiffs were entitled to recover. This was right. In the first place, the removal of Prout to the poor-house, was not on the part of New-Milford, a voluntary courtesy; which always implies in the actor an intention to do something for the benefit of another. Secondly, the mistake of the select-men in the removal, is not conclusive. 3 Stark. Ev. 1333. Thirdly, the defendants denied their liability, not on the ground of the removal, but on the ground that Prout was not settled in Sherman. See Newtown v. Danbury, 3 Conn. R. 503.
    2. That the town-clerk’s certificate was properly rejected. First, if he was an elector residing in New-Milford, it did not follow of course, that he was settled there. Secondly, it was not the best evidence of the fact that he voted in New-Milford. The person who made the entry should have been produced. Thirdly, a town-clerk, though authorized to give official copies of his records, cannot give certificates that such records exist. Fourthly, the certificate in question was altogether immaterial; for the motion finds, that if the settlement in Sherman was gained at all, it was prior to 1843, when it is claimed that Prout voted in New-Milford.

    3. That the declarations of Prout, while in the act of leaving and on the way, were properly received. They were part of the res gesta, explanatory of his motive and intention. The question of one’s home or domicil is always proved, by enquiring into the motive or intention with which he went to and staid in the place designated; to prove which his declarations are admissible. 1 Greenl. Ev. § 108. Thorndike v. City of Boston, 1 Metc. 242. Kilburn v. Bennett, 3 Metc. 199.
    4. That the charge as to commorancy, was right. “Residence,” domicil, home, are synonymous terms. Neither necessarily implies settlement; but either, continued uninterruptedly, for six years, confers a settlement. Stat. 533. § 6. Reading v. Westport, 19 Conn. R. 561. That Prout had no family, made no difference, in point of law, though it might render the proof more difficult; of which the defendants had the benefit before the jury. The court gave to the jury the only true criterion.
    5. That the defendants have no reason to complain of the charge as to Prout’s pauperism. The court charged, that if Prout had property which could be made available for his support, he was not a pauper. He might have notes which were not collectible, because they were given by married women or minors, or were barred by time, or were worthless, by reason of the insolvency of the makers. He might have other property, which, unchanged, could not, from its nature, administer to his necessities, and which could not be sold or exchanged. Such property of any amount, evidently would not save him from pauperism. Here, in the first place, the dates and value of the notes did not appear. Secondly, it did not appear when the small sum that was collected, was paid over to him. It might not have been in season to relieve him. Thirdly, it might not have been sufficient, in amount, or within the knowledge of the select-men.
    The only material matters of facts on this point, were submitted to the jury, and have been found by them, against the claims of the defendants. The jury have found the fact, that when the supplies were furnished, Prout had not property sufficient to relieve his necessities, which could be made available for that purpose. And whether a person is a pauper or not, is a question of fact, not of law. Lyme v. East-Haddam, 14 Conn. R. 398. Wallingford v. Southington, 16 Conn. R. 431. 435, 6.
   Ellsworth, J.

We have directed our attention, for the most part, to only one of the grounds urged for a new trial. Is the town of New-Milford prevented from recovering from the town of Sherman for the support furnished to Prout, one of its inhabitants, having themselves been instrumental in bringing him into the town of New-Milford?

But we will first dispose of the other points which are of minor importance. And first, it is said, that Prout was not poor and necessitous, within the meaning of the statute; because a short time before he was in the poor-house in New-Milford, he put two promissory notes into the hands of one Jackson, (the dates and value of which are not found,) one of them nominally for 25 dollars, and the other for 1 dollar, 50 cents, on which 7 dollars, in the whole, was afterwards collected, and paid over to Prout. The judge left it to the jury to say, whether, notwithstanding these notes, Prout was poor and necessitous—whether he had means or credit for his immediate wants or necessities, saying to them, that if he had, he was not then a pauper, to be supported. The jury have found, under this instruction, that he was in fact a pauper; and this, we think, they could find, if the evidence satisfied them. They likewise must have found, under the charge, that New-Milford was obliged to take care of him, to prevent him from suffering while in their town. A similar charge to this was approved of, in the case of Wallingford v. Southington, 16 Conn. R. 431.

It is again said, that the court should have rejected the certificates of Jared Bostwick, town-clerk of New-Milford. The certificate declares, that the register of votes of that town for April, 1843, at the annual election of state officers, shows, that Prout, the pauper, voted in that town. We think the certificate was correctly rejected, because, first, a certificate is not the proper evidence of a record, but there should have been a certified copy of the record itself. Secondly, the record itself, would not be the proper evidence of the particular fact of settlement or no settlement, nor of residence even; these must be proved, by appropriate evidence, under oath. Thirdly, the record speaks of a fact after, and only after, the acquired settlement of Prout in Sherman. The plaintiff claimed no other settlement than one complete before April, 1843; so that the fact stated in the certificate, was wholly irrelevant.

Again, it is said, the court should not have received the declarations of Prout, that while going towards Sherman, he was going to his home there; that is, that he spoke of and treated the house of Jotham Sherman as his home. We think this testimony is good evidence of the fact of domicil, so far as mind or conduct enters into the fact of one’s home or place of permanent abode.

We come then to the main question in the case. Does the conduct of the select-men of New-Milford preclude a recovery? The language of the statute is, “and it shall be the duty of every town to maintain and support all the poor inhabitants belonging to the town, whether residing in it, or in any other town in the state.” The jury found Prout was, during the time of his support by the plaintiffs, an inhabitant of Sherman, and in want of immediate support, and that New-Milford had given notice, in due form of law, to Sherman, in order that they might remove Prout from New-Milford, or abide the consequences. It is true, a select-man of New-Milford did aid the pauper, in the first instance, to leave the house of Jotham Sherman in the town of Sherman, in order to go to the poor-house in New-Milford; but as soon as the plaintiffs discovered, that the pauper was an inhabitant of Sherman, they endeavoured, as far as they could with safety, to get the pauper out of their town, and back to Sherman. True, they did not apply force to remove him; but they did not restrain him, or wish him to remain. In fact, after first coming there, he wandered away from the town into Sherman, and was gone from New-Milford some nine days, and returned, against the wishes and without any cooperation of New-Milford; and this was nearly two months after New-Milford had notified Sherman, that Prout was an inhabitant of Sherman, and they must remove him and provide for him. It is by no means true, that the plaintiffs detained him against his will, at any time; nor is there any pretence of it, unless it may be, for a few days, until they gave notice for his removal. The defendants, although notified, would do nothing about Prout, but left him, unheeded, though confessedly their inhabitant, to remain in New-Milford, and die, and be buried, at the plaintiffs’ expense.

Here then, the plaintiffs’ claim has all the essential elements of a good cause of action; and why then shall they not recover upon it? The mistake of the select-man of New-Milford, if the defence prevails, is made to fall on his town, with extraordinary and unexampled severity. Had a stranger carried Prout into New-Milford, and left him there, it would have been no bar to a recovery against Sherman. Nor is this act of a select-man of New-Milford any more a bar than in that case, even if the select-man was really in fault; and much less so, if he laboured under a mere mistake. He intended only to discharge a duty imposed under a severe penalty for neglect—to provide for a suffering pauper within the limits of New-Milford; as it was then supposed, and honestly supposed. But strictly, as the house from which he was taken, proved to be in the town of Sherman, he had no right, as the representative of New-Milford, to do as he did do; and cannot, therefore, bind that town by his act. New-Milford would have had a right to repudiate act, even had there been some fault on the part of the select-men. They did in fact, actually repudiate it, by giving early notice to Sherman, that Prout was one of their inhabitants, and they must provide for him. Most certainly, Prout's place of settlement was not changed, by what was done by that select-man. He still belonged to Sherman, as before; how then does Sherman avoid the expenses of supporting and maintaining him? We think, the act of the select-man, under the circumstances stated, should be laid quite out of the case: it was a sheer mistake, nor was it of any injury to Sherman; for they would have had to support him themselves; since the jury have found he was really a pauper. There was no fraud, and in truth no fault, on the part of New-Milford. What should New-Milford have done more than she has done, to avoid this burden? Is it so, that she is always obliged to support a pauper, not having a settlement in the town, because one of her select-men, through mistake, rendered aid in getting the pauper into her poor-house? This indeed must follow, unless she can give notice to the town where he belongs, and so relieve herself, thereafter, or unless, as the defendants claim should have been done, return the pauper from whence they took him. But this would have been of no real importance to the defendants; and besides, this transporting of a pauper into another town for support, is a perilous transaction, and highly penal, if not justified by the facts, as they shall be proved. We think that when there has been no fraud or real fault, on the part of the select-men, in removing and supplying the wants of a needy pauper, the question, where is the place of his settlement, and where to be supported, should not be prejudiced, by any bona fide removal, but be left untouched and undecided. As the matter stood, at the time, it was a grave question where Prout was in fact settled—where was the dividing line between the towns. This could not be certainly known until the verdict of the jury; and even then, it might not be settled truly and finally.

The objections to this view of the case, urged by the counsel for Sherman, have more of sophistry than good sense. They say, a remedy for supporting a pauper, is given only by statute; and that this case comes not within the provisions of the statute. But why is it not within the provisions of the statute? Every important requisite is found which the statute requires. Has a forfeiture of right resulted from a mistake? Is New-Milford any way estopped, from setting up the truth? Has Sherman thus luckily got rid of her pauper, by a mistake? Why,—nothing of this is true. New-Milford is not estopped, nor has she compromised any of her rights. True, indeed, towns may adjust and settle their differences and disputes in relation to paupers, as well as to other matters, whether of law or fact, and they may be held by such acts of settlement: but here there was no settlement of differences, real or supposed, and nothing like it at all. Let me ask, if the select-men of New-Milford, on notice from Sherman, that the pauper was in their town, and they must take him away, or pay for his support, had gone and removed him from Sherman, believing the pauper had his settlement in New-Milford; could not the latter town, on learning that the pauper had his place of settlement in Sherman, have given notice to Sherman, and looked to her for indemnity? Much more, where the select-men of New-Milford did not intend to remove the pauper from Sherman into New-Milford, but to help one of its own supposed paupers, to get from a private house into the town’s poor-house. Is it not common for the select-men of towns, upon receiving notice that one of their poor requires support, in a neighbouring town, to enquire into the facts, and then, as they are advised, go and bring the pauper within their own limits, without embarrassing the question of the place of settlement and support of the pauper, if facts are afterwards discovered, which shew the pauper’s settlement is elsewhere? Suppose the select-men of Hartford receive notice from the select-men of Windsor, that a female belonging to Hartford is there, on expense. The select-men of Hartford make enquiry, and find, the woman was born in Hartford, and, they go and bring her home; by and by, it comes out, that she is married and is not settled in Hartford. Cannot Hartford notify the town where she is settled in her husband’s right, either Windsor, or any other town, and oblige that town to defray the expenses of supporting her? And is any tendering back of the pauper necessary beyond what is implied in the notice given? It would be going very far indeed to say, that select-men, without special authority given for that purpose, can, by their own conduct, estop their town from contesting the question of a pauper’s settlement and support, whenever it fairly arises? But it would be even more so, to hold, that bringing home a pauper, under a mere misapprehension of the boundaries of a town, should have that effect.

It is further objected, that New-Milford is a volunteer in the expense of supporting the pauper in question. Did her select-men volunteer in bringing the pauper? Did they volunteer in keeping him from suffering and starvation? Did they do wrong? Was he not there and needy? At no time did they certainly know it could be proved he had a settlement in Sherman; for this depended upon the question of a town line; and hence they were not obliged, at their peril, to return him, or support him at their own expense. They gave notice to Sherman, and thus plainly told Sherman they were not volunteers; and it is puerile to hold, after this, that they were volunteers. Prout was in their poor-house by mistake, and that was all; and it was of no importance to Sherman to be informed why it was so—and the reason, if stated, would not have bettered their condition at all. Every question in their favour was open, as much so, as if he had wandered there at first, as he did afterwards.

It is again said, that as the pauper was brought into New-Milford by their select-man, he was not “residing” therein, and hence not within the provisions of the statute. Being in the town, and in necessitous circumstances, is enough in other cases, and is enough in this, unless the mistake in the outset is to neutralize the subsequent continuance, especially after New-Milford had given notice to Sherman. We think the pauper was a resident in New-Milford; and that it may be properly said, that their select-men were obliged to provide for him, upon receiving notice of his suffering condition. If this is not so, then in the cases above supposed, the selectmen, who bring into town a pauper, who, they suppose, has his place of settlement in the town, but who, they afterwards find, has his place of settlement in some other town, or perhaps of the town from which they took him, are mere volunteers in continuing to support him, though they give notice and do all they can to throw him off, except that they do not take the risk of removing the pauper into the town where they suppose he is settled, but leave the question of settlement to a judicial investigation and decision.

The counsel for Sherman put this objection in a very imposing form. They ask, shall the select-men of a town steal a pauper, and bring him into their own town, and then sue for supporting him? There is no similarity between the case supposed and the one on trial. There has been no stealing, nor fault whatever; nor any perseverance in a fault. It was a mistake, without fault; and when discovered, immediate measures were taken to obtain relief from the act.

In this opinion the other judges concurred.

New trial not to be granted.