(flnrttpll ICaui ^rlyonl SItbrara Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024639902 ADMINISTRATIVE OFFICERS IN CONNECTICUT BY JAMES E. 3/HEELER, B. A., L. L. B. Of the new haven county bar ST. PAUL. MINN. KEEFE-DAVIDSON COMPANY 1903 Jbpyrlght 1903 BY JAMES WHEELEK Cornell University Library KFC4040.W56 Administrative officers in^^^^^^^ 3 1924 024 639 902 TO MY FATHER, EDWIN S. WHEELEK, M. A. PREFACE. I desire to express my deep appreciation of the val- uable services of my professional associate, Francis W. Sheehan, Esquire, of the New Haven county bar. The chapters in this book on Selectmen and on Arbitrators, and a small portion of the chapter on Constables, are the work of Mr. Sheehan. I have received many val- uable suggestions from members of the bar in prepara- tion of this book, and I wish especially to express my thanks to the Honorable Simeon E. Baldwin, of the supreme court of errors of Connecticut, for his interest in the work, and his words of encouragement and assist- ance. I am indebted to Charles Kleiner, Esquire, jus- tice of the peace, also of the New Haven county bar, for several of the forms given in the chapter on Justices of the Peace, and also to my friend, the Honorable A. Heaton Kobertson, who has read the proof and in many ways counseled and assisted me. JAMES E. VFHEELER. New Haven, Conn., June 1, 1903. TABLE OF CONTENTS. CHAPTER I. COMMITTEES. I. (.'OMMITTEES, ReFEBEES, AND AUDITORS FOE THE TkIAL OF AN ISSUE OF Fact. § 1. Appointment of Committee and Conduct of the Hearing. 2. Report of the Committee. 3. The Remonstrance. 4. Power of a Court to, Recommit Report. 5. Power of a Court to Correct Mistakes. 6. Power of the Court to Hear Additional Evidence. 7. Conclusive Character of Facts Found by the Committee. 8. Judgment of the Court. 9. Fees. II. Committee to Sell Real Estate in Foeeclosuke Suits. § 10. Appointment and Powers. 11. Fees. III. Committee on Layout of Highway. § 12. The Statute. 13. Service of Process. 14. Jurisdiction of the Court. 15. Allegation of Common Convenience and Necessity. 16. Allegation of Neglect or Refusal of Selectmen. 17. Pleadings. 18. Notice to the Town. 19. Notice to Those Interested. 20. Disqualiiication of Committee. 21. Committee Acting with Less than Full Number. 22. Oath. 23. Conduct of the Hearing. 24. Evidence before Committee. 25. Layout. viii TABLE OF CONTENTS. 26. Damages. 27. Report and Finding. 28. Remonstrance. 29. Recommitment. 30. Power of the Court over the Report. 31. Personnel of Committee. IV. Committee on Encroachment of the Highway. § 32. In General. V. Committee on Lost Boundaries. § 33. In General. VI. Committee on the Layout of Private Way. § 34. In General. VII. Committees in Partition Suits. § 35. Without Sale. 36. With Sale. VIII. Committee on Staking Out Oyster Grounds. § 37. In General. CHAPTER II. GRAND JURORS. 38. In General. 39. Refusal of Grand Juror to Make Complaint. 40. Reform-School Complaint. 41. Trespass. 42. De Facto Grand Juror. 43. Meetings of Grand Jurors and Power over Witnesses. 44. Further Powers of Grand Jurors. CHAPTER III. JUSTICES OF THE PEACE. I. Civil Jurisdiction. § 45. Statute — Jurisdiction. TABLE OP CONTENTS. 46. The Docket. 47. Jurisdiction. 48. Disqualification. 49. Record. 50. Default. 51. Power of the Justice Concerning Interlocutory Orders. 52. Jury Trial. 53. Pleading. 54. Holding Other Office. 55. Bastardy. 56. Poor Debtor's Oath. 57. Costs. 58. Accounting before a Justice of the Peace. 59. New Trial. 60. Judgment. 61. Trial before the Return Day. 62. Contempt. 63. Appeal. II. Cbiminal Jtjbisdiction. § 64. Jurisdiction. 65. Issue of Warrant After an Arrest. 66. Bonds on Adjournment of Hearing. 67. Right to a Jury. 68. Sureties of the Peace. 69. Recognizance after Hearing. 70. Commitment without Hearing. 71. Record. 72. Effect in Warrant. 73. Disqualification. 74. Mittimus. 75. Sentence. 76. Effect of Appeal. CHAPTER IV. GRAND JURY. § 77. In General. 78. Directions to the Grand Jury. 79. Presence of the Prisoner. TABLE OP CONTENTS. 80. Disqualification. 81. Testimony of Members of the Grand Jury Concerning Their Proceedings. 82. Record. CHAPTER V. ATTORNEYS AT LAW. i 83. In General. 84. Admission to the Bar. 85. Challenging of Authority of an Attorney. 86. Continuance of Relation. 87. Interest. 88. Conduct of an Attorney in Trial of a Case. 89. Right of Access to a Client in Criminal Cases. 90. Presumption of Notice and Knowledge. 91. Attorney Acting for Different Parties in the Same Litigation. 92. Personal Liability. 93. Liability of an Attorney to an Officer Whom He Employs. 94. Confidential Communication. 95. Transaction between Attorney and Client. 96. Attorney's Lien. 97. Power of Attorney over Incidental Matters Connected with Suit. 98. Power to Release Attachment. 99. Power to Waive Objection. 100. Enforcement of Agreements between Counsel. 101. Power of Counsel to Agree to Amendment. 102. Fees and Charges. 103. Disbarment. CHAPTER VI. SELECTMEN. 104. Election, Disabilities, and Term. TABLE OF CONTENTS. 105. Powers and Duties in General. 106. Powers and Duties as Overseers of Poor. 107. Powers and Duties Concerning Hignways. CHAPTER VII. ARBITRATORS. 108. In General. 109. Appointment and Competency of Arbitrators. 110. Manner of Proceeding, Powers, and Duties. 111. State Board of Arbitration and Mediation. CHAPTER VIII. CONSTABLES, ETC. 112. Election, Term, etc. 113. Service and Return of Process in General. 114. Attachments. 115. Exemptions. 116. Officer's Return. 117. Officer's Receipts. 118. Levy of Execution on the Body. 119. Levy of Execution on Personal Property. CHAPTER IX. CONSTABLES, ETC. (Cont'd). 120. Levy of Execution on Real Estate. ADMINISTRATIVE OFFICERS. CHAPTER I. COMMITTEES. I. Committees, Repeebes, a^^d Auditors for the Trim, of ax Issue OF Fact. § 1. Appointment of Committee and Conduct of the Hearing. 2. Report of the Committee. 3. The Remonstrance. 4. Power of a Court to Recommit Report. 5. Power of a Court to Correct Mistakes. 6. Power of the Court to Hear Additional Evidence. 7. Conclusive Character of Facts Found by the Committee. S. Judgment of the Court. 9. Fees. II. Committee to Sell Real Estate in Foeeolosuee Suits. § 10. Appointment and Powers. 11. Fees. III. COMillTTEE ON LAYOUT OF HIGHWAY. § 12. The Statute. 13. Service of Process. 14. Jurisdiction of the Court. 15. Allegation of Common Convenience and Necessity. 16. Allegation of Neglect or Refusal of Selectmen. 17. Pleadings. 18. Notice to the Town. 19. Notice to Those Interested. 20. Disqualification of Committee. 21. Committee Acting with Less than Full Numher. 22. Oath. (1> g I ADMINISTRATIVE OFFICi!:RS. [Ch. 1 23. Conduct of the Hearing. 24. Evidence before Committee. 25. Layout. 26. Damages. 27. Report and Finding. 28. Remonstrance. 29. Recommitment. 30. Power of the Court over the Report. 31. Personnel of Committee. IV. Committee on Enceoachment of the Highway. § 32. In General. V. Committee on Lost Boundaeies. § 33. In General. VI. Committee on the Layout of Pbivate Way. § 34. In General. VII. Committees in Pabtition Suits. § 35. Without Sale. 36. With Sale. VIII. Committee on Staking out Oystee Grounds. § 37. In General. I. Committees, Refeeees, and Auditoes foe the Teial of an Issue of Fact. § 1. Appointment of Committee and Conduct of the Hearing. Very early in the history of Connecticut jurispru- dence it ^Yas customary to appoint an auditor in an .lo- tion brought for an accounting. Later the statutes pro- vided for a committee in chancery. In some cases the word "referee" is found, and no'.v the practice has de- veloped of designating all such officers by the word "committee." The law governing the powers and du- (2) Q-^_ 1] COMMITTEES. § 1 ties of auditors and referees applies witli equal force in tlie case of committees. "In any civil action pending in the superior court, court of common pleas, district court of Waterbury, or in any city court, in which an issue in fact has been closed to the court, it may, upon motion of any party to the record, appoint a committee of one, two, or throe disinterested persons to hear the evidence and report the facts to the court; but no such committee shall be ap- pointed without the consent of all parties appearing, un- less the court shall, after hearing upon said motion, be of the opinion that the questions involved are such as clearly ought to be sent to a committee. If such action is brought solely for the recovery of a money demand, such committee may report simply that it finds the issue in favor of the plaintiff, and that he recover a certain sum, or that it finds the issue in favor of the defendant, as the case may be ; or the committee may, and in all other actions shall, report specifically the facts relevant to the issue and established by the evidence, and, upon the acceptance of any report, judgment shall be rendered thereon according to the law and the facts found."^ "A committee may be appointed in vacation upon the written application of either party with at least six days' notice to the opposite party."^ "Auditors and committees appointed by any court while engaged in the trial of the cases which they are ap- pointed to hear, shall have the same power and author- ity over witnesses, and the same power and authority iGen. St. § 960. 2 Gen. St. § 961. (B) g 1 ADMINISTRATIVE OFFICERS. [Ch. 1 to commit for contempt, that justices of the peace have,"^ "If any auditor, committee, or member of a committee, appointed by any court, dies, declines or is unable to act at any time when the court is not in session, the par- ties, or tlieir attorneys, may agree in writing to the ap- pointment of any person to act in his stead; and if thev cannot agree, any judge of said court, on application of either party, and reasonable notice to the other, may fill the vacancy ; and upon filing with the clerk of said court such agreement signed by the parties, or such appoint- ment signed by the judge, the appointment of the per- son therein designated shall be as effectual as if made by said court."* It is provided, also that no judge whose salary is paid by the state shall be appointed as auditor or committee in any civil action.'"' The committee should lie sworn before proceeding to act. If he or they be not s\\orn, the losing party may show that fact at the time of the presentation of the re- port as a reason for not accepting it, but if the report is signed, "Committee under oath," it will be presumed and inferred by the court that the committee was prop- erly sworn, and it is not competent, when the record so appears, for the losing party to offer evidence to show that as a matter of fact the committee was not sworn.^ After the appointment of the committee by the court, counsel for the opposing parties ordinarily agree on a 8 Gen. St. § 963. 4 Gen. St. § 964. 5 Gen. St. § 966. Husted V. Town of Greenwich, 11 Conn. 386. (4) Ch. 1] COMMITTEES. § 1 time for the hearings, but if tlie opposing counsel cannot agree, tlie committee lias the power to fix a daj- for the hearings, and make such arrangements for further hear- ings as in his discretion may seem best, always endeav- oring to consult the convenience of counsel. The law concerning the power of referees and commit- tees in regard to adjournments is well stated in the case of Bray v. English.'' A question of the right of shad fishery was submitted to three referees. An agreement was made by all parties, at the time of the appointment of the committee, that the time for hearing should be subsequently fixed. Later a day was set, when the plain- tiffs and the defendants, with their counsel, appeared, but one of the three referees was absent. No trial \v is had at that time, nor was any adjournment made to any day certain. The referees and the defendants, with their counsel, met again at the same place at a later day, but the plaintiffs did not attend, and no hearing was then held. Soon afterwards the referees, at the request of the defendants, and without the knowledge or con- sent of the plaintiffs, appointed February 23d, at the same place, for trial, and issued a citation to the plain- tiffs to be present at that time, whicli citation was duly served upon the plaintiffs. The plaintiffs, being unable to prepare for trial, and to attend with their counsel and witnesses at that time and place, gave notice there- of in due season to the defendants and to the referees, requesting them not to meet, as it would only make need- less expense. The referees did meet at the time and place appointed. The defendants attended with their 7 Bray v. English, 1 Conn. 498. (5) g 1 ADMINISTRATIVE OFFICERS. [Ch. 1 counsel and witnesses, altliough they well knew that the plaintiffs would not and could not attend. The ref- erees made up their report, without hearing any wit- nesses on either side, in favor of the defendants. A remonstrance was filed by the plaintiffs against the ac- ceptance of the report. Chief Justice Swift said, in giving the opinion : "The agreement respecting the time of meeting for a hearing by the referees was no part of the submission, and as such cannot be noticed by the court; but if it was made use of to practice a fraud, and, while the plaintiffs relied upon it, the defendants, in violation of it, procured the referees to notify a meet- ing when the plaintiffs were absent, or under such cir- cumstances that they could not have a fair trial, it might then be considered as a ground for setting aside the award. But in this case it appears that actual notice was given to the plaintiffs, and it was in their power to have attended, and for any proper cause moved the ref- erees to postpone the hearing. Instead of this they only sent a message that they could not and should not at- tend, and that it would be useless to proceed to a hear- ing. If they sustained any damage or inconvenience, it is not imputable to the defendants, but to their own neg- lect in not making a proper application to the referees. When a submission is made by rule of court, it is irrev- ocable, for the object is to place the parties in a situ- ation that either may compel the other to make a final settlement of the dispute. If no provision is made to the contrary, it is incidental to the power of referees or arbitrators to appoint the time and place of trial, and to proceed therein according to their discretion. They (6) Ch. 1] COMMITTEES. § 1 may adjourn from time to time, as the case may re- quire. It is the duty of the parties to appear before them and proceed to trial, and, if either sliould refuse, it then results, from the nature of the submission, that the referees may proceed to an ex parte hearing, for otherwise either party might defeat the trial and indi- rectly revoke the submission. In cases where the plain- tiff only claims damages if the defendant should refuse to appear, the referees might examine the witnesses for the plaintiff, and ascertain and award the sum due. If the plaintiff refuses to appear, there need be no inquiry, for, on failure of proof, the referees must award in favor of the defendant; but if there are mutual claims, they may make proper inquiries to ascertain the claims, and award accordingly. In this way the parties may be compelled to a final settlement of the controversy sub- mitted. It is true, where a plaintiff is before a court of law, he can withdraw his suit at pleasure, and cuui- monce a new action; but by his submission, by rule of court, he has waived this privilege, and has given an ir- revocable power to the referees to decide the question. Such construction ought to be given to the statute as will enable courts to carry into effect this voluntary agreement of the parties. By giving the referees the power of an ex parte hearing, they are enabled to compel the parties to proceed to a final hearing ; but if no sucli power is given, then the parties may indirectly revoke the submission, or some other measure must be taken by the court before whom the submission is made to com- pel the parties to proceed. This can be done only by process of contempt, — a process never adopted in this (7) 8 I ADMINISTRATIVE OFFICERS. [Ch. 1 state, and which would be much less effectual and con- venient than to give the referees the power to proceed cj' jHirtc. If the court should order a non-suit when the plaintiff refused to proceed, then he might bring another action; the controversy would not be settled, and the submission would not be irrevocable. In order, then, to give full effect to the statute authorizing submissions by rule of court, it is to be construed to give the arbi- trators the power to proceed to an ex parte hearing and trial in all cases where either party refuses to appear upon due notice being given, and there can be no more impropriety in subjecting the plaintiff upon an ex pui'fe trial before arbitrators than there is a defendant upon default of appearance in court." The committee has power to grant postponements and adjournments on such terms and conditions as he in his discretion may deem best. Such discretion should al- ways be exercised with fairness to all parties.^ If the committee consist of three or more members, a majority may legally execute the poAver, if all have been notified to act." It was held in the case of Crone v. Daniels,^" that where a case was referred to two only as board of aud- itors, in which there could be no majority, the parties were not bound to submit to the action of one alone un- 8 Norwich & W. R. Co. v. Cahill. 18 Conn. 485; Shaler & Hall Quarry Co. v. Campbell, 53 Conn. 327. Crone v. Daniels, 20 Conn. 332; Waldo y. Town of Portland, 33 Conn. 363; Windham Cotton Mfg. Co. v. Hartford, P. & F. R. Co., 23 Conn. 374. See, also, Martin v. Lemon, 26 Conn. 192; Gallup v. Tracy, 25 Conn. 10. 10 Crone v. Daniels, 20 Conn. 332. Ch. 1] COMMITTEES. less the riglit to object had been waived. In that case only one assumed to act under the appointment, and this Avithout the knowledge of the other. He alone gave notice to the parties to appear before himself to be heard upon the matters referred. Both parties voluntarily ap- peared before him, and submitted to him their respec- tive claims, and awaited his award. Chief Justice Churcli, in giving the opinion, said: "When this award wat^ made, the unsuccessful party for the first time ob- jects to the power of the acting auditor, and remon- strates against his report because he acted alone. His objection comes too late. By a voluntary appearance and a submission to one auditor, and after a full hearing and an award by him, all objections must be considered as waived, and everything to have been done as if by the mutual and express assent of both parties. It was as competent for these parties to go to a trial and a deci- sion before only one auditor as it would be to submit vo a trial and verdict by eleven jurors, or any number less than a full panel, — a common practice with us, — and it was as competent for the court to accept and act upon the report of this one auditor as it is to accept the ver- dict of a less number than twelve jurors, and render a judgment upon it." No one who has any interest in the result of the pro- ceedings can be appointed a committee, the same rules of interest applying to committees as to judicial offi cers. It was held in Windham Cotton Mfg. Co. v. Hart ford, P. & F. R. Co.^^ that the committee, Mr. Hovey, 11 Windham Cotton Mfg. Co. v. Hartford, P. & F. R. Co., 23 Conh. 374. (9) g 1 ADMINISTRATIVE OFFICERS. [Ch. 1 was disqualified from acting because liis wife was a stockholder in a bank, which bank was a stockholder of one of the defendant companies, but the court held in that case that the parties had waived their right to ob- ject to the report on the ground of the committee's dis- qualification, because it did not appear that the parties so remonstrating against the acceptance of the report did not have knowledge of such disqualification at the time of the agreement to the appointment of the com- mittee. Judge Ellsworth stated that "Mr. Hovey [the committee] had an interest which disqualified him. Still, we think the objection of interest must be over- ruled, for we hold that the defendants have waived it by not making it at the time the committee was appoint- ed, or as soon after as they had knowledge. * * * For aught we know, the defendants favored, or at least acquiesced in, the appointment of* Mr. Hovej^, when they could have objected to him, and another person would have been appointed in his place. Ignorance at that time was an all-important fact. Therefore, when the report was presented to the superior court, the defend- ants should have stated it, and then they would have been permitted to prove that they were ignorant at the time the committee was appointed, if it Avas so ; certain- ly we cannot assume it." The report was accepted. A committe has power to adopt rules to govern hear- ings. There is often a tendency, in hearings before com- mittees, to prolong the litigation unnecessarily, and, for the purpose of expediting the hearings, the committee may adopt rules, which the parties must obey. Many cases are submitted to committees which involve com- (10) Ch. 1] COMMITTEES. § ] plicated questions of account, and necessitate protracted sessions. In the case of Ashmead v. Colby/ ^ Judge Hinman, in delivering tlie opinion of the court, stated: "The committee, at one of its sessions, adopted a rule that, at the subsequent adjourned session, they would hear only the evidence of particular witnesses whose names were given to the committee by the respondents, except for special cause, and, as coming within the rule thus adopted, they rejected the depositions of Brackett and others. There is no pretense but that this rule was perfectly understood by the parties, and was adopted for their convenience; and in reference to it the re- spondents did give a list of the persons Avhom they ex- pected to improve as witnesses at the next meeting, and also examined such witnesses as they had present at tht.' time the rule was made, which would not probably have been permitted had it been supposed that the respond- ents would disregard or attempt to evade the rule. Un- der these circumstances it comes to the naked question whether the committee had power to adopt reasonable rules in respect to the trial of the case pending before them, for the purpose of facilitating the trial, and to pre- vent any undue advantage by one party over the other. The respondents had given notice that they should ask for an adjournment to enable them to get further testi- mony. No one doubts the power of the committee to allow the adjournment, and, wliile it might be very rea- sonable to allow it, it would still be proper to see that it was granted on such terms or under such circum- stances as that it should not operate unfairly upon the 12 Ashmead v. Colby, 26 Conn. 288, at page 311. (11) S^ I ADMINISTRATIVE OFFICERS. [Ch. 1 opposite party. This necessarily gave the power to pre- scribe terms; and the rule requiring a list of the wit- nesses expected to be called upon at the adjourned ses- sion was in substance but the terms upon whicli the ad- journment was granted. It seemed to be acquiesced in by .both parties at the time, and was, under the circum- stances, a very reasonable rule, as we think, and there- fore not the foundation for a valid objection to the re- port." The questions of adjournment are particularly within the discretion of the committee. Such discretion, how- ever, should never be used to cause any unfair advan- tage to either of the litigating parties.^^ As was stat- ed in Shaler & Hall Quarry Co. v. Campbell (Granger, J.) •}^ "It is a well settled rule that all questions of adjournment or of the continuance of a case * * * are questions for the discretion of the court, and cannot be made the subject of error. And the same rule applies to auditors and committees. And it does not affect the case that the question in the particular case is one of grave importance to the party asking for an adjournment or delay, and that he seems to have been harshly treated in refusing it. In the absence of conduct on the part of the triers that indicates corruption or fraud, or a preju- dice or unfairness that are equivalent to fraud, their ac- tion in the matter is final, and cannot be reviewed." This power of adjournment applies to time, as well as place.^^ It may happen in certain cases that after the hear- 13 Goodwin v. Town of Wethersfleld, 43 Conn. 446. 1* Shaler & Hall Quarry Co. v. Campbell, 53 Conn. 327. 15 Goodwin v. Town of Wethersfleld, 43 Conn. 437, at page 446. (12) Ch. 1] COMMITTEES. | 1 ings have been concluded, and the report of the commit- tee drawn up ready to be submitted to tlie court for ap- proval, one of the parties may discover some new evi- dence, which, in his judgment, may be material and im- portant for the consideration of the committee. In such a case an application may be made to the committee for further hearing, and the committee should always grant the application, give notice to the opposite party, and hear the new evidence, unless he is satisfied that the ap- plication is made merely for the purpose of delay, or that it is frivolous. It may then be necessary for him to revise his report or make out a new report. The evi- dence should be of such a character as would be suffi- cient ground for an application for a new trial, either at law or in equity.^ ^ But the application must be made with due diligence. , Laches will prevent hearing of such new evidence.^ ^ The remedy of a party who claims that the report of a committee was procured by false testimony is similar in its character. An application should be made to the committee for a further hearing, or an application to the court for a new trial, if there is any newly-discov- ered evidence laying the foundation for such a com- plaint.^^ In an action of account, the committee or auditors have power, in the exercise of sound discretion, and for the purpose of facilitating the trial, to direct the parties to furnish each other with copies of their respective claims.^^ 18 Welles V. Harris, 31 Conn. 365. 17 Goodwin v. Town of Wethersfield, 43 Conn. 437, at page 444. IS Ashmead v. Colby, 26 Conn. 313. 19 Spalding v. Day, 37 Conn. 428. (13) § 1 ADMINISTRATIVE OFFICERS. ^Qh. 1 The committee has no power or authority to allow any amendments to the pleadings. The pleadings are closed before the case can be referred to a committee. It was held in Trubee v. Trubee/" by Carpenter, J., that "the 'two supplemental bills,' as they are termed, having been filed after the trial of the cause, and after the committee had made his report, may be laid out of the case. The cause was heard by the committee in vacation. It is quite clear that he could not do otherwise than take the pleadings as they stood. He could neither allow nor dis- allow an amendment, and no subsequent change in the pleadings could affect the legality or propriety of his proceedings." At the conclusion of the hearings the parties may file their briefs, both on the law and facts; but if either party, in his brief on the facts, claims to have proved facts not supported by the evidence, the other party should be allowed an opportunity to file a "reply brief," pointing out any such inconsistencies. The committee should give considerable latitude to counsel for both parties in the matter of filing briefs, but all briefs should always be filed in duplicate, — one for the committee and one for the opposite party. In the case of Town of Wethersfield v. Humphrey"^ it was held that there was nothing unfair in the action of the committee in receiving memorandum from a coun- sel, who had previously stated on trial that he had pre- pared such memorandum, of what he claimed to be proved, but had mislaid it, and who, immediately after 20 Trutee v. Trubee, 41 Conn. 36. 21 Town of Wethersfield v. Humphrey, 20 Conn. 218. (14) Ch. 1] COMMITTEES. § 2 he found it, sent it to the committee, although the hear- ings had been concluded. The court stated : "We must presume that the committee, in making up their judg- ment, made the necessary distinction between mere state- ment and proof, and that they rejected all secret or un- fair communications, if any there were, either before or after the public hearing. The plaintiffs do not pretend that there was any fraud or design on the part of Mr. Welles [counsel], and we do not believe his paper state- ment had an influence beyond what it was entitled to." It is not proper for the court to receive testimony of the committee, on the hearing for the acceptance of a re- port, to the effect that certain evidence heard by the com- mittee at the hearings did not affect the report in the cause, and that such evidence was not considered in the deliberations thereon. The committee should note care- fully all exceptions to rulings on questions of evidence. ^^ § 2. Report of the Committee. The report of the committee should state facts, and not evidence of facts. All through the Connecticut de- cisions, judicial comments and criticisms are frequent on the tendency of committees to submit evidence in their reports. It is often a very difficult task to frame a report of a committee, and one who is unaccustomed to such work should examine with great care the find- ings made by the superior court, and approved by the supreme court of errors. Such findings furnish the best examples for committees to follow. 2= Borough of Norwalk v. Blanchard, 56 Conn. 461. (15) 8 2 ADMINISTRATIVE OFFICERS. [Ch. 1 The report should be divided into paragraphs, each paragraph containing as few words as possible, and not more than necessary to state the fact or facts. The re- port should be clear and unambiguous. In Johnson t. Sanford^* the report of the committee stated: "The inquiry, therefore, was one of extreme difficulty, to say nothing of the uncertainty which must finally rest upon the correctness of the results to which they have arrived." The report concluded with express- ing an opinion that the interest of Jones would not "ma- terially vary from the amount above given, based upon estimates and valuations, viz., |33." Storrs, J., stat- ed, in delivering the opinion: "An answer to a bill in chancery which should state facts thus vaguely and in- definitely would clearly be insufficient, and we think that it would be unsafe to pronounce on the rights of parties upon a report so uncertain and imperfect on its face." It was stated by the court in West v. Howard-* that "it is the duty of the committee to find and report the facts which are proved before them, and it is only on the facts so reported that a decree can be based, unless, in- deed, additional facts are found by the court, which is not the case here. The finding that there was a just expectation on the part of the wife that the money re- ceived by the defendant would be invested in land in her name is quite too loose to justify us in proceeding on the ground that there was any specific agreement between them on the subject; much less to enable us to determine 23 Johnson v. Sanford, 13 Conn. 461. 2J West V. Howard, 20 Conn. 581. (16) Ch. 1] COMMITTEES. § 2 what were the precise terms cf the agreement, if any was made." There is often a tendency on the part of the committee to shirk responsibility by endeavoring to leave the sift- ing of facts to the court, on the ground that a question of law is presented. For example, in the case of Graves V. Lockwood^^ Chief Justice Hinman stated: "The question in this case was whether the defendant AVood- ruff joined with the other defendant, Lockwood, in em- ploying the plaintiff as the attorney of both to prosecute the suit of Lockwood v. Hotchkiss, or whether the plain- tiff Avas only employed for that purpose by Lockwood alone. This, though a very simple question of fact, was one which the auditor did not feel willing to decide, and he therefore attempts to set out the facts in his report for the court to saj^ whether, in point of law upon those facts, there were such a joint employment as was claimed by the plaintiff." After stating that the facts set out might have authorized the auditor to find such joint employment, but in point of law were not such as abso- lutely demand it, he continued:' "We think, moreover, that it is much the most proj)er course for auditors and committees and courts, when trying facts, to settle ques- tions of this sort, rather than, by attempting to change them into questions of law, to shift the responsibility of determining them from themselves upon the courts of law. No statement of such a question can be made that will present it to a court of law in precisely the same light that it was presented to the auditor. * * * We are of opinion, therefore, that the court erred in at- 2s Graves v. Lockwood, 30 Conn. 276. (17) Adm. Ofe.— 2. § 3 ADMINISTRATIVE OFFICERS. [Ch. 1 tempting to settle the question as a question of law, and that the proper course would have been either to have determined the case in favor of the defendant Woodruff on the ground that no liability on his part had been found by the auditor, or, on remonstrance to the report, to have sent it back to the auditor to have the fact ex- pressly found, one way or the other, or for the court to have heard evidence for itself, and on such evidence Lo have determined the fact." Neither will the court draw inferences of fact from the evidence detailed in the reports of auditors and com- mittees, but will render its judgment only on the main facts found in them, and on which the rights of the par- ties depend.^"^ Generally, in cases involving fraud, the committee should state the facts upon which the court is to decide Avhether fraud is to be inferred. The com- mittee itself sliould not specifically find that such fraud exists. Fraud may be inferred by the court from facts found by the committee.^ ^ In addition to the report, the committee should pre- pare a list of the exceptions taken to his rulings, and file it with his report. The report must be confined lo matter alleged in the complaint.^^ § 3. The Remonstrance, As soon -as the report has been filed and a copy sent to counsel, the losing party should prepare and file his remonstrance to the acceptance of the report, to which 20 Goodman v. Jones, 26 Conn. 264. 21 Brainerd v. Arnold, 27 Conn. 626; Story v. Norwicli & W. R. Co., 24 Conn. 94. 28 Gaylord v. Couch, 5 Day. 230. (18) Ch. 1] COMMITTEES. § 4 remonstrance the other party may demur. This remon- strance must set out in clear and distinct language good and sufficient reasons ^Yhy the report should not be accepted, either for errors in the conduct of the hear- ing or errors in the rulings of the committee on ques- tions of evidence and other questions of law.^® A re- monstrance, like any other plea, must be taken most strongly against the party in pleading.^'' '"Any objections made to the acceptance of the report of a committee or auditor * * * shall be heard and determined at the term or session to which such writs or reports may be returned, unless a continuance be granted for cause."^^ i 4. Power of a Court to Recommit Report. "Whenever a finding of facts made and returned to any court by an auditor or a committee shall, in the judgment of such court or of the supreme court of er- rors, be incomplete or insufficient, such court may there- upon, unless objection is made by all the parties to the action, recommit the cause of action and the report to the same auditor or committee to complete and perfect such report and return the same for acceptance."^^ As the court has power to recommit the report, it must have power to recommit it for a specified object.'* In the case of Ives v. Town of East Haven,** which was 20 Maples v. Avery, 6 Conn. 23. so Stebbins v. Kellogg, 5 Conn. 267. 31 Gen. St. § 731. 32 Gen. St. § 965. 33 Waterbury v. Inhabitants of Darien, 9 Conn. 252. 34 Ives V. Town of East Haven, 48 Conn. 289. (19) § 4 ADMINISTRATIVE OFFICERS. [Ch. 1 a petition for the laying out of a highway, it was held that, where the report had been recommitted for a speci- fied purpose, the respondents were not entitled to be heaj'd small items of the account. Shall the whole proceed- ings of the auditors be, therefore, set aside, and this con- test renewed? » * * Or shall such a course be tak- en as will correct a trivial error, so that justice shall be done to both parties? If the mistakes of which the de- fendant complains can be corrected without opening the whole case, the defendant cannot complain, for his ob- jections are removed. If the plaintiff in whose favor these errors have occurred consents to waive the bene- fit of them, he cannot complain. * » * TJig supe- rior court is, therefore, advised to accept the report of the auditors, provided that the plaintiff deduct the amount due upon the note and due bill mentioned in the remonstrance at the time of the award, and, if the plain- tiff refuse to make such deduction, the court is advised to reject and set aside the report." In the case of Oallender v. Colegrove,^^ the court stat- ed : "Another error was assigned, which, perhaps, ouglit to be noticed, that the court did not entirely reject the first report, but rejected only that part to which excep- tion was allowed. The object of trial by a committee is 39 Callender v. Colegrave, 17 Conn. 34. (2.3) § 6 ADMINISTRATIVE OFFICERS. | Ch. 1 to ascertain facts. Now, if it is sliown to tlie court tliat on some particular points they iiave committed a mis- take, and therefore that injustice would be done, it is highly proper that that mistake should be corrected; but we see no reason why all the rest they have done should be undone, and the parties set again entirely afloat, as before. Here, after a laborious investigation, the committee had ascertained the great facts on which these parties were at issue, but in the course of proceed- ings some mistake had intervened in the matter of ac- count. By opening the whole case the cause of litiga- tion might be advanced; but certainly the cause of jus- tice could not be." In this case the superior court had sent the first report of the committee back .to the com- mittee on account of certain mistakes mentioned in the remonstrance, and found by the court to be true. Hear- ing Avas had by the committee on these matters only, and a second report was made and accepted by the court in spite of the remonstrance. § 6. Power of the Court to Hear Additional Evidence. The court always has power to hear additional evi- dence, after the report of the committee has been sub- mitted, on matters that have arisen subsequent to the hearing before the committee which may materially vary the situation of the parties. In Kendall v. New England Carpet Co.*° it was stated: "Another question also arose, as to the admission of a deposition showing sales naade after the report of the committee, and before the final hearing in the superior court, by which the state « Kendall v. New England Carpet Co., 13 Conn. 396. (24) Ch. 1] COMMITTEES. 8 6 of the account would be varied. It not being shown there was any surprise upon tlie party, the only question is whether, as the committee have reported the state of the account at a given time, the court can inquire into subsequent alterations in that account. It is very ap- parent that there may be cases in which this might be highly important. It is the desire of a court of chan- cery to prevent further litigation where it is practicable. Now, after the report of a committee, one party may have collected a large debt, or may have sustained a great loss, which would essentially vary the state of the account, which might make him a creditor, instead of a debtor. Is there, then, any rule of equity which re- quires the court to render a judgment which shall only lay the foundation for another suit? This committee are only the organ of the court or officers of the court, like a master in chancery, who finds facts, and whose powers terminate upon the return of their report. The court, therefore, hear objections to that report, and modify it as circumstances require. No objection to this course has been shown; and as it is carrying into more full effect the object of a suit, — to end the con- troversy between the parties, — and as no authority to the contrary has been shown, we think that the depo- sition was properly admitted." The court, however, has nO power to make any addi- tional finding from facts in an auditor's report., and the court cannot draw inferences of fact from the facts found by the committee. The case of Brady v. Barnes*^ is the leading case on this subject. Judge Pardee stated, in 41 Brady v. Barnes, 42 Conn. 517. (25) § 5 ADMINISTRATIVE OFFICERS. [Ch. 1 rendering the opinion : "When a case has been referred, by the court in which it is pending, to an auditor, he becomes a statutory tribunal clothed with the power and charged with the duty of hearing all admissible evidence bearing upon the issue raised by the pleadings, of weigh- ing it, and of finding distinctly and explicitly all the facts proven by it, and reporting the same to the court appointing him. By the act of reference the court parts with the power thus conferred upon the auditor. It reserves no right to add any fact to those found by him except upon evidence heard by it as to matters the de- termination of which is necessary to a proper disposi- tion of the case, and concerning which he has made no finding. He is to hear and weigh in the place of and for the court; the testimony admitted must exhaust its force upon his mind, and produce conviction there, if anywhere. The court cannot reverse or review his ac- tion in weighing admissible testimony, and in deducing facts therefrom. It cannot, from any statement of the evidence heard and reported by him inferentially, find a fact which he, upon that evidence, has refused to find. * * * It is quite obvious that the evidence which had spent its force upon, and had failed to convince, the auditor, who heard and weighed it, was afterwards al- lowed to operate upon and convince the court, which had parted with the right to consider it." A new trial was ordered in this case for error of the court in finding additional facts from evidence in the auditor's report. It is always proper for the court to supply any defect in the report of the committee in not finding all the facts which are in issue, and which may be important to a de- cision of the case, but it is not proper for the court to (26) Ch. 1] COMMITTEES. S (, pass upon evidence which has once been heard hy a com- mittee, in order, to enable the committee to find facts upon it.*^ Where a committee has left undecided cer- tain questions of fact upon which evidence has been re- ceived by them, it is not the proper course for the court to hear evidence and decide the question, but the report should be recommitted for a further finding by the com- mittee upon the evidence already received.*^ The suit of Bennett v. Bennett ** was one for divorce on the ground of desertion. It was referred to a com- mittee, who made a report. The court accepted the re- port, found certain other facts, and rendered a decree of divorce. Judge Pardee, in delivering the opinion, said : "From the facts thus reported to the superior court, that court has found that the respondent will- fully deserted the petitioner; * * * thus, without hearing any testimony, finding a fact in addition to those found by the committee, — a fact which it was the duty of the committee to find, if it existed ; a fact which, upon the evidence, the committee refrained from finding; a fact which is made the basis of the decree of divorce. * * * Thus the decree is made to rest upon the find- ing by the court of tAvo facts, neither of which had been found by the committee, and which the court had no power to find except from evidence presented upon a supplemental hearing." The power of the court to hear additional evidence is very clearly stated by Judge Button in the case of Con- 42 Knapp V. White, 23 Conn. 529. *3 McArthur v. Morgan, 49 Conn. 351. 44 Bennett v. Bennett, 43 Conn. 319. (27) § 7 ADMINISTRATIVE OFFICERS. [Qh, 1 verse v. Hartley:*^ "Committees are appointed to aid the court in finding facts. A part of these may be found by the committee and the residue by the court, or the whole mar be found by either, although the whole must be sanctioned by the court." § 7. Conclusive Character of Facts Found by the Committee. The court has no power to weigh the evidence heard by the committee, and the facts found by the committee are conclusive upon the court in the same way that a finding made by a judge of the superior court is conclu- sive upon an appeal to the supreme court of errors. The leading case on this point is Parker v. Avery, decided in 1787, and reported in Kir by (page 353). "Upon a mo- tion to set aside a report of auditors, the exception was that they had mistook in point of fact; but an inquiry was denied and [it was stated] by the court: It is peculiarly the province of auditors, as of juries, to weigh evidence and determine facts; and herein there is to be no inquiry after them, though, as they are to take the law for their rule, their award may be set aside if it ap- pears from the face of their proceedings, or upon in- quiry of them in court, that they have made out their award from such inferences from facts as the law will not warrant, or have clearly mistook with regard to the admission of evidence." This case in a remarkable manner sums up the entire law governing conduct of hearings and reports of committees, and shows on what grounds only will a report of a ct)mmittee be set aside by the court. 45 Converse v. Hartley, 31 Coun. 373, at page 380. (28) Ch. 1] COMMITTEES. § 7 In many cases an attemxjt Las been made in tlie re- monstrance on the acceptance of a report to present the evidence submitted to the committee, and from which the committee found the facts, for the purpose of show- ing that such facts were incorrectly found by the com- mittee. The supreme court of errors lias repeatedly held that the court appointing the committee has no power in any way to review the facts. As an example of such an attempt the case of Colgrove v. Eockwell *'^ may be cited. This was an action of book debt referred to an auditor, who reported a balance due from the de- fendant to the plaintiff. Against the acceptance of this report the defendant remonstrated on the ground that "said report was made under mistake and misapprehen- sion of the evidence in said cause, and against the evi- dence which was produced in the same, and that the finding of said auditor was not in accordance with any evidence introduced." The remonstrance then proceed- ed to set forth the evidence produced on the hearing be- fore the auditor, and concluded by alleging that the re- port and finding of the auditor were "without evidence and contrary to the evidence, and ought to be set aside." On the hearing before the superior court the defendant offered to show by witnesses what evidence was offered at the liearing before the auditor. The court decided that the evidence was not admissible, and accepted, the report of the auditor and rendered judgment thereon. Judge Storrs stated that the decision in the case of Par- ker v. A^ery""^ "has ever since remained unquestioned.'' 46 Colgrove v. Rockwell, 24 Conn. 584. ^T Parker v. Avery, Kirby, 353. (29) S; 9 ADMINISTRATIVE OFFICERS. [Ch. 1 He states that he has no doubt that it Avas the intention of the legislature, in providing for the appointment of auditors, that their findings of facts should not be sub- ject to review. "They were designed as substitutes for juries, but it was provided that they should be selected, not like jurors, but by the court, by whom it was un- doubtedly contemplated that they would be chosen, as they in fact usually are, with reference not only to their peculiar qualifications to try the particular cases re- ferred to them, but also to their situation in regard to any circumstances which might produce an improper Influence or bias in their minds as to the parties or the matter submitted to them. * * * Thus selected, there is certainly less occasion to subject their deter- mination of facts to the revision of tiie court than that of jurors, and experience has not shown its necessity." § 8. Judgment of the Court. "An acceptance of a report of a committee appointed by the court, if there is nothing more, is an adoption of the finding of the committee by the court, and a suffi- cient finding of the facts reported."*® § 9. Fees. There seems to be little certainty in the practice regu- lating the fees of committees. As a general rule, how- ever, it is customary for the committee, before entering upon his duties, to make some arrangement with counsel on both sides concerning the matter of his fees. Many cases occu]' where committees are unable to collect fees 4s> Lavette v. Sage, 29 Conn. 589. (30) Ch. 1] COMMITTEES. § 10 alter their hearings are concluded. Without doubt the court appointing the committee would have power to pass an order making an allowance for fees, which, like any other order of court, could be enforced. The prac- tice is very loose in this particular, and a statute should undoubtedly be passed by the general assembly to pro- tect committees, and make the committee's fees part of the taxable costs. In such a case a bond could be or- dered to protect the committee. Very often the prt . ail- ing party will pay the committee's fees and look to the judgment for his reimbursement. The amount of fees rests entirely in the discretion of the court. It is not customary for a committee to charge less than fifteen dollars for each full day's hear- ing. Twenty-five dollars per day is considered fair com- pensation, but in many cases committees receive very much larger fees. If a stenographer is employed, this expense should be added in the committee's bill for serv- ices. It is always well to secure the services of a com- petent stenographer where complicated questions of ac- count are to be settled by the comnlittee. If the com- mittee takes his own notes, however, he should be en- titled to higher compensation than where a stenographer is employed. II. Committee to Sell Real Estate in Foebclosuee Suits. § 10. Appointment and Powers. ''All liens and mortgages affecting real property and originating after June first, 1886, may, on the written motion of any party to the suit, be foreclosed by decree of sale, instead of a strict foreclosure, at the discretion (31) 8 10 ADMINISTRATIVE OFFICERS. [Ch. 1 of the court before wliich the foreclosure proceedings are pending."*" A decree of sale will be granted by the court on motion therefor in writing whenever the party making such mo- tion can show to the satisfaction of the court that there will be a substantial equity after satisfaction of the lien or mortgage on which the foreclosure proceedings are based. This proceeding is an expensive one, but the court is always zealous to protect the rights of those interested in foreclosure suits. If the court is satisfied that there will be a substantial equity, it will fix a day for the sale, direct whether the sale shall be as a whole or in parcels, appoint a proper person to make the sale, designate a method of advertising the sale, and appoint three disinterested persons as appraisers to report be- fore the sale.^" Ordinarily, counsel agree in nominat- ing a committee, but if there be no agreement, the court will appoint some outside person as the committee. In some courts the committee is required to give a bond conditioned on the faithful performance of his duty as such committee. Such bond, however, is not ordinarily required. Immediately after the committee has been appointed, he should make a copy of the interlocutory decree, and very carefully observe all of its provisions in arranging for and conducting the sale. This decree provides for advertising the sale in some newspaper published or having a circulation in the town where the real estate is situated. If the newspaper be a daily, the advertisement « Gen. St. § 4141. 60 Gen. St. § 4142. (32) Ch. 1] COMMITTEES. g 10 is inserted not less than eight tiDies before the day of the sale, beginning on a day fixed in the decree. It is the duty of the committee to prepare this advertisement, and to attend to its publication. The advertisement should state the caption of the case, the date of the in- terlocutory judgment, description of the premises to be sold, day and hour of the sale, terms of payment, and the name and address of the committee. Sometimes it is customary to add the name of the counsel for the fore- closing mortgagee. A proper form for such advertise- ment will be found later in this chapter.^^ The three appraisers appointed by the court should visit the mortgaged premises as soon as possible aftei- the day of the interlocutory decree, fix a valuation on the property, make out a report in writing, swear to it before some magistrate, and return it to the clerk of the court within the time limited therefor by the terms of the decree. If no time be set in the decree, the report should be returned within a reasonable time after the date of the interlocutory judgment. The committee should secure a copy of this appraisal for use on the day of sale. In addition to the notice by advertisement, it is always advisable for a committee to have a sign pre- pared, giving the day and hour of the sale, name and address of the committee, and stating that the sale will be at public auction on the premises to the highest lad- der. This Hi'gn sliould be placed on the premises in full view of all passers-by at least two weeks before the day of the sale. The committee should request the plain- tiff's counsel to have a search of title made by some 51 Infra, p. 38. (33) Adm. Off.— 3. § 10 ADMINISTRATIVE OFFICERS. [Ch. 1 competent attorney, in order that the committee may state on the day of sale that all incumbrancers have been made parties to the suit, and that the purchaser will take a clear title. If the mortgajie indebtedness, interest, and costs, in- cluding appraisers' fees, be not paid by any of the de- fendants in the order named in the interlocutory decree before the hour of the sale, the committee should proceed with the sale.^^ Should there be several parcels to be sold, the sale for each parcel should occur on a separate day. If the indebtedness and costs, however, be paid, the committee will receive no fee for services already performed, his compensation being entirely dependent on an actual sale. It is customary, although not strict- ly necessary, for the committee to secure the services of a competent auctioneer in order that the highest pos- sible sum may be secured for the property; but if the amount involved be small, it is advisable to dispense with the services of the auctioneer in order to save ex- pense. In case the property to be sold is located in a district inhabited by a foreign population, it is advisable to have an interpreter at the sale to assist and to ex- plain the terms of the sale to the bidders in their own language. The committee himself must be at the sale in any event. Counsel for the foreclosing creditor will gener- ally be present at the sale to protect his client's inter- ests by bidding the amount of the debt and costs, un- less such counsel feels satisfied to let the property go to some other bidder for less than the amount of his 62 See Gen. St. § 4143. (34) Ch. 1] COMMITTEES. g 10 debt. In some cases the mortgage creditor will adopt this course, as he may prefer to have a certain sum in cash, even if it be less than his debt, rather than the property itself. The committee should read the decree of sale, and also a copy of the advertisement before receiving any bids. Every legitimate means must be employed by the committee, both before and at the sale, to secure the largest possible sum of money for the property. "Puf- fing" bids, however, are not permissible. The committee must recognize any bid that is made in good faith, but he has a right at any time, should he be unacquainted with the bidder, and ignorant of his financial responsi- bility, to insist upon a payment of a certain portion of the bid as an evidence of good faith. The sale should be continued and bids kept open for a reasonable time, and no undue haste should be used in closing the sale. Everybody desiring to bid should be given an opportu- nity to do so. If two bids for the same amount are received, and the committee cannot decide which of the two bidsi was made first, he is at liberty to ask for another bid. Warning should be given before the last bid is accepted, in the usual manner adopted by auc- tioneers. As soon as the hammer descends, and the successful bid is accepted, the sale is ended, and the successful bidder becomes liable for the purchase price. If the suc- cessful bidder subsequently fails to pay the purchase price after demand by committee, a report to that effect should be made to the court by the committee. If the successful bidder is considered financially irresponsi- (35) § ;l^0 ADMINISTRATIVE OFFICERS. [Ch. 1 ble, the court may order another sale, with proper pre- liminary advertisement and notice, or, should the pur- chaser be considered to be a man of sufficient property, the court may order a resale. In the latter case, if the amount realized at the resale be less than the amount of the successful bid at the first sale, the original pur- chaser at the first sale is personally liable for the defi- ciency. Either one of these methods would be easier and more expeditious than an action against the suc- cessful bidder without the resale. Such difficulty, however, may generally be obviated if the committee insists upon the immediate payment of ten per cent, of the purchase price as soon as the property is knocked down to the successful bidder. If the successful bid- der should refuse to pay the ten per cent, of the pur- chase price, the committee would be authorized in im- mediately reoiDening the sale and continuing the bid-- ding. Supposing that the sale has been successfully car- ried through without difficulty, the balance of the pur- chase price must be paid to the committee before the deed is approved by the court, so that the committee may be able to turn over the entire purchase price to the clerk of the court at the time that he makes his report. Immediately after the sale the committee should re- quest the counsel for the foreclosing creditor to claim the case for the next short cah^ndar for acceptance of the committee's report, approval of the deed, and sup- plemental decree. The report of the committee must give the names of the parties, date of the interlocutory decree, date and hour of the sale, name of the pur- (36) Ch. 1] COMMITTEES. § 10 chaser, the fact that he was the highest bidder, and the amount of the purchase price, with a statement that all the orders of the court have been observed by the com- mittee. At the end of the report should be a statement of the expenses of sale and the amount of fee charged, all of which should be signed by the committee. A form of report will be found later in this chapter.''^ The deed must recite the facts mentioned necessary for a report, and contain the covenant that the committee has obeyed all the orders of the court with reference to the sale, and this deed must be approved by the coiirt. The committee should turn over to the clerk of the court in person his report and the purchase price.^^ Immediately after the final decree has been passed, the clerk of the court will pay to the committee, out of the funds turned over to him by the committee, the committee's fee and expenses. The appraisers are sometimes paid by the counsel for the foreclosing credit- or, who in turn is reimbursed by the clerk of the court out of the funds in his hands, and sometimes by the clerk of the court himself at the same time that the committee's fee and expenses are paid. As soon as the deed has been approved by the court, the report accepted, and supplemental decree passed, the deed should be delivered to the purchaser for record. A form of committee's deed will be found later in this chapter.^^ Forms of interlocutory and supplemental decrees will be found in the forms of judgment files in the Practice Book. 53 Infra, p. 42. 54 Gen. St. § 4145. 55 Infra, p. 40. (37) § 1^1 ADMINISTRATIVE OFFICERS. [(Jh. 1 § 11. Fees. The amount to be paid in fees depends very much on the amount of the mortgage. There has been, in many cases, a tendency for committees to charge exorbitant fees. At one time there was a practice of charging two per cent, on the amount received at the sale, but it would seem that this practice has been lately discontinued. The expense of foreclosure by sale is heavy in any event, and as, in a large majority of the cases, the prop- erty must be bid in by the foreclosing creditor himself, a foreclosure by sale becomes a heavy burden upon such foreclosing creditor, and the expense should be kept down to the lowest possible point. Ordinarily the ap- praisers receive from |5 to |15 each, the auctioneer from $5 to |10, the committee not less than |25, unless the foreclosing creditor is obliged to bid in the property, when reduction is sometimes made. In almost any case, |50 is a liberal fee for the committee. Should the sale bring an amount in excess of |25,000, a larger fee should be charged by the committee on account of the added responsibility. FORMS. Notice of Sale of Mortgaged Premises. 1 The Connecticut Savings Bank of New Haven I I y City Court of New Haven. James F. Kelly and Thomas Stiles, I both of said New Haven, C. Fei- | genspan, of Newark, N. J., and | the State of Connecticut, J In pursuance of the interlocutory judgment of foreclosure and sale made in the above-entitled cause, having date of the twentieth (38) Ch. 1] COMMITTEES. § H day of January, 1902, I, the undersigned, the committee appointed by the city court of New Haven in and by said judgment to make said sale, will sell at public auction to the highest bidder, on the premises, on the first Monday of April, 1902, to wit, April 7th, at 12 o'clock noon, the lands and premises mentioned in said judg- ment and herein described as follows: A lot of land in said New Haven bounded: South by Walnut street twenty-seven and one-half (27%) feet; east by land of Pat- rick Keyes forty-nine (49) feet; north by land of Patrick Mullen twenty-seven and one-half (27%) feet; and west by land of John Spillone forty-nine (49) feet. Terms of sale to be as follows: Ten per cent. (10%) to be paid in cash at the time of sale, balance by Thursday, April 10th, at 10 a. m. ; the committee reserving the right to insist on payment in full in cash at time of sale should the bidder be unknown to him. James E. Wheeler. Room 705, 42 Church Street, Committee of the City Court of New Haven. Burton Mansfield, 179 Church Street, Attorney for the Plaintiff. Appeaiseks' Report. Henry F. English ^ V. J- Superior Court, New Haven County. Burton Mansfield, Trustee, et al. J New Haven, Conn., March 15, 1901. We, the undersigned, having been appointed by decree of the superior court, passed on March 22, 1901, appraisers of the follow- ing described piece of land, with the building thereon, in said New Haven, hereby submit our report. The piece of land hereby appraised is the same now being fore- closed in the superior court in the above-entitled cause, and said above-mentioned decree ordered a foreclosure by sale. The land is bounded and described as follows: Westerly by Olive street 40 feet, more or less; northerly 120 feet, more or less, in part by land of Charles J. Osborn, and in part by land of Mrs. Eliza S. Osborn and of Benjamin Osborn; easterly 40 feet, more or less, by land now or formerly of Eunice Barney; and southerly 120 feet, more or less, in part by land of Sybil Smith, and in part by land of Lucia Chidsey. (39) g 11 ADMINISTRATIVE OFFICERS. [Qh. 1 We appraise the dwelling house on said land at $ We appraise the land Itself at Total ? S. B. Oviatt, James E. McGann, Frederick S. Ward. State of Connecticut, ] }. ss.: New Haven, March . 1901. County of New Haven. J Personally appeared S. B. Oviatt, James E. McGann, and Fred erick S. Ward, and made solemn oath to the truth of the fore- going appraisal, Before me, Francis W. Sheehan, Notary Public. CoiraiiTTEE's Deed. To All Persons to Whom These Presents Shall Come, Greeting: Whereas, at the city court of New Haven, held in New Haven, in the county of New Haven, state of Connecticut, on the 20th day of January, 1902, upon the complaint of the Connecticut Sav- ings Bank, a ' corporation duly organized and existing under the charter granted by the general assembly of the state of Connecti- cut, and located in, said New Haven, against James F. Kelly, Thomas Stiles, both of said New Haven, C. Feigenspan, of Newark, in the state of New Jersey, and the state of Connecticut, claiming a foreclosure of a mortgage on a lot of land in said New Haven, with the buildings thereon, bounded and described as follows: South by Walnut street twenty-seven and one-half (27V2) feet; ea-st by land of Patrick Keyes forty-nine (.49) feet; north by land of Patrick Mullen twenty-seven and one-half (27%) feet; and west by land of John Spillone forty-nine (49) feet, — upon the written motion of the defendant, Thomas Stiles, said court ordered a foreclosure by sale in said case, and appointed the undersigned, James E. Wheeler, a committee to sell the mortgaged premises above de- scribed, as a whole, at public auction on the premises on the first Monday of April, 1902,, at 12 o'clock noon, and directed that the undersigned advertise such sale by publishing a notice thereof, containing a description of the premises, in the New Haven Union, a daily newspaper printed in New Haven, not less than eight times, commencing on the 29th day of March, 1902; and ordered the un- (40) Ch. IJ COMMITTEES. §11 dersigned, upon such sale, to execute a conveyance of the premises to the purchaser, and make return of his doings, as more fully appears by the files and records of said court, to which reference is hereby made; And whereas, pursuant to said order, the undersigned published a notice of said sale, containing a description of the premises, in the New Haven Union, a daily newspaper printed and published in New Haven, eight times before said sale, beginning March 29, 1902, and sold said premises above described, as a whole, at public auc- tion on the premises on the first Monday of April, 1902, at 12 o'clock noon, to John Cassle, of said New Haven, for the sum of nine hundred and seventy-five dollars ($975), he being the high- est bidder, and said sum being the highest sum bid: Now, therefore, know ye that I, said James E. Wheeler, as com- mittee as aforesaid, in pursuance of the authority and direction given me as aforesaid, and in consideration of the said sum of $975, received to my full satisfaction of said John Cassle, do give, grant, bargain, sell, confirm, and convey unto the said John Cassle said above-described land, with the buildings thereon, and all the rights, corporeal and incorporeal, existing in and issuing out of the same; and I hereby covenant with the said grantee that I have complied with all the orders of the court in reference to the sale of said real estate, and that I have good right to sell and convey the same as cofiimittee as aforesaid. To have and to hold the above-granted and bargained premises', with the appurtenances thereof, unto him, the said John Cassle, his heirs and assigns forever, to his and their owji use and behoof. In witness whereof I have hereunto set my hand and seal this 10th day of April, 1902. James B. Wheeler, Committee as Aforesaid. Signed, sealed, and delivered in presence of: William A. Wright. Francis W. Sheehan. State of Connecticut, ) yss.: New Haven, April 10, 1902. County of New Haven. J Personally appeared James E. Wheeler, committee as aforesaid, signer and sealer of the foregoing instrument, and acknowledged (41) §11^ ADMINISTRATIVE OFFICERS. Ch. 1 the same to be his free act and deed, and his free act and deed as such committee as aforesaid. Before me, William A. Wright, Justice of the Peace. Committee's Report. The Connecticut Savings Bank, Cor- , poration duly organized and Ex- isting under a Charter Granted by the General Assembly of the State of Connecticut, and Locat- ed in the Town of New Haven, I City Court of New Haven. V. ) April 14, 1902. James F. Kelly and Thomas Stiles, of New Haven, C. Peigenspan, of Newark, in the State of New Jer- sey, and the State of Connecti- cut. To the Honorable City Court, now in Session at New Haven: I, the undersigned, having been appointed a committee of the city court in the above-entitled cause, to sell the mortgaged prem- ises described in the complaint in said cause, and having been au- thorized and directed to sell said mortgaged premises at public auction on the premises at 12 o'clock noon on the first Monday of April, 1902, to wit, April 7, 1902, and to advertise said sale by publishing notice thereof, containing a description of the premises, in the New Haven Union, a daily newspaper printed in said New '^'-"sn, not less than eight times, commencing on March 29, 1902, oy report: That I published said notice of said sale in said New Haven Union eight times before said sale, commencing on March 29, 1902, and that I placed on said premises a large sign, giving notice of the time and place of said sale, two weeks before the day of said sale; and that, pursuant to said judgment and decree and said notice, 8,nd in the exercise of the power and authority given to me by said judgment and decree, I sold at public auction, at the time and place designated in said judgment, decree, and notice, said mortgaged premises to John Cassle for the sum of nine hundred and seventy- five dollars ($975), said John Cassle being the highest bidder therefor, and the said John Cassle has paid said purchase price to me, pursuant to said sale; and that on the 10th day of April, 1902, I executed and delivered, as such committee, a deed of conveyance (42) Ch. 1] COMMITTEES. g 13 of said mortgaged premises to said John Cassle, said deed having been submitted to and approved by the honorable court on the 14th day of April, 1902; and that, in pursuance of the statute in such case made and provided, I bring the proceeds of such sale into court. My expenses have been: For the auctioneer. $ For advertising For sign For my own fee James E. Wheeler, Committee. The foregoing forms are exact copies of documents actually used and approved by the court. III. Committee on Layout of Highway. § 12. The Statute. "When the selectmen, of any town shall refuse to lay out any necessary highway, or to make any necessary alterations in any existing highway, any person may pre- fer an application therefor to the superior court of the county in which such town is, accompanied by a sum- mons signed by proper authority, to be served in the same manner as civil process, upon one of such select- men, to appear and be heard thereon, and, unless the parties shall agree on the judgment to be rendered, such application shall be heard and decided by a com- mittee of three disinterested persons, to be appointed by the court."^'' § 13. Service of Process. The town must be made the party defendant, and not one or more of the selectmen individually. In the case 5ii Gen. St. § 2065. (43) § 14 ADMINISTRATIVE OFFICERS. [Ch. 1 of Gifford v. Town of Norwich,^'^ tlie writ commanded the officer to "summon and notify N. 0. Brakenridge, one of tlie selectmen of tlie town of Norwich, to appear," etc. A plea in abatement was filed by the town. After sta,t- ing that the town must be the party defendant, Judge EllsAvorth said : "The town is to defend if any defense is to be made, and to do this by any agent it may please to appoint, whether a selectman or some other person, and the town is to pay the damages sustained by indi- viduals whose lands are taken, and to open and make the highway, if it is ordered by the court. Indeed, all the proceedings are against the town, and not against the selectman." Although the town must be the party defendant, the proper person to be served as the agent of the town is a selectman of the town. This is the same as cases in which a corporation is party defendant, where service of process is made on the secretary as the agent of the corporation. § 14. Jurisdiction of the Court. Where the application prays for the laying out of a highway from, a point in one town to a point in another town, the superior court of the county in which the to-R'ns lie has original jurisdiction in the first instance, without a previous application to the selectmen of the town within which a part of said highway is wholly situated.^^ 67 Gifford V. Town of Norwich, 30 Conn. 35. 5S Town of Windham v. Litchfield, 22 Conn. 226. (44) Ch. 1] COMMITTEES. § 15 § 15. Allegation of Common Convenience and Necessity. It is necessary that there should be in the petition words showing common necessity and convenience of the proposed highway, but any words expressing this idea will he sufficient. It is not necessary to use the words "common convenience and necessity" themselves. The leading case on this point is Lockwood v. Gregory,^" where the words "public advantage and convenience" weie held sufficient. In that case it was stated that the specific allegation of common convenience and neces- sity is not necessary. The court said : "It becomes the duty of the court, on an application, to inquire into the convenience and necessity of the highway praj'ed for, and undoubtedly the application ought to state such facts as, if true, would induce the inference that the highway prayed for would be of common convenience and necessity." This ruling of the court is followed in the case of Inhabitants of Windsor v. Field,"'' where the application stated : "The present traveled road leading," etc., "is very circuitous, hilly, and on bad ground." It was stated by the court that, assuming this to be a fact, the inference would be fair that a new highway "is wanting." The petition also asked that "a road may be laid out leading from," etc., "so as greatly to accommodate the public, with little expense to the town or injury to private property." The court held that, should this be proved true, the inference would be justifiable that an alteration in the highway would be of common convenience, so that, in this way, the two 69 Liockwood V. Gregory, 4 Day, 407. CO Inhabitanrs of Windsor v. Field, 1 Conn. 279. (45) § 16 ADMINISTRATIVE OFFICERS. [Ch. 1 requisites of common convenience and necessity were found to be contained in the petition. § 16. Allegation of Neglect or Refusal of Selectmen. It is essential that the petition should contain an alle- gation (provided the road prayed for lies within the limits of a single town) that the selectmen of the town have neglected and refused to lay out the highway. Should the petition not contain this averment, the case will be coram non jiidice.^^ An allegation that the se- lectmen have prepared a surA^ey of a highway in writ- ing, and submitted it to the inhabitants of the town at lawful toAvn meeting, and "that said survey was accepted by the town and recorded, but the selectmen have ever since neglected and refused * * * to make satis- faction as required by law to the persons damnified by the laying out of said highway, and they also neglect and refuse to open the same, although the time for that purpose prescribed by law has long since elapsed," was held insufficient.*'^ It will be seen, therefore, that greater strictness is required in the matter of the alle- gation of the neglect and refusal of the selectmen than the allegation of common convenience and necessity. The allegation of a special demand on the selectmen is not necessary.^^ An averment in the complaint that the town has at all times refused and neglected to lay out said route, though often requested so to do, is not sufficient. In eiWaterbury v. Town of Darien, 8 Conn. 163. 82 Treat v. Inhabitants of Middletown, 8 Conn. 243. esWaterbury v. Inhabitants of Darien, 9 Conn. 256. (46) Ch. 1] COMMITTEES. § 16 the case of Town of Torrington v. Nash,''* which con- tains such an averment, it was claimed by counsel that the averment of the neglect of the town should be suf- ficient, for the reason that the selectmen were simply the agents of the tawn in laying out highways, and con- sequently their neglect is nothing more than the neglect of the town. The court stated: ''To a certain extent it is doubtless true that the selectmen act in this busi- ness as the agents of the town. The town is to bear the burden of building the road, and of paying the damages assessed to individuals, and its inhabitants, in common with the rest of the public, are to be accommodated by it ; but all this does not make the town, in its corporate capacity, the proper body to lay out highways, nor the selectmen the agents of the town in the sense claimed by the defendants in error. They may more properly be said to be the agents of the laAv, by virtue of which they are empowered to appropriate private property to the public use, and, acting in this manner by virtue of a statute, the course pointed out by the statute must be pursued. We have no statute authorizing towns, as such, to lay out highAvays, but the selectmen are con- stituted an independent board, to which, in the first in- stance, application is to be made." In drawing up the answer to the petition, an allega- tion that the selectmen had proceeded, before the date of the petition, to lay out the highway, and had made a survey thereof in writing, which survey they had pre- sented to a legal meeting of the town, and the town voted not to accept it, and that no further proceedings in 64 Town of Torrington v. Nash, 17 Conn. 199. (47) g 17 ADMINISTRATIVE OFFICERS. [Ch. 1 regard to said road had since taken place, was held to be insufficient, and, even if proved to be true, would not pre- vent the superior court from having jurisdiction of the case.^^ It is necessary that the report of the committee or the finding should show that the allegation of the neg- lect and refusal of the selectmen contained in the peti- tion is true. In other words, this fact must be spe- cifically found by the committee or the court. The highway cannot be laid out except upon proof of such neglect or refusal of the selectmen.'''' But the superior court may find the fact of such neglect and refusal at any stage of the proceedings before the final decree. If, however, a plea in abatement should be interposed at the proper time before the appointment of the commit- tee, it would be competent and proper for the court to make a preliminary inquiry on the subject of the allega- tion of such neglect and refusal."'' § 17. Pleadings. Naturally the same rules in pleading apply in high- way cases as in other cases. Res adjudicata may be pleaded whenever a petition for practically the same highway has been previously passed upon and refused by the superior court. If there is a material and sub- stantial change in the facts upon which the issue de- pends, the former judgment ought not to be a bar ; other- wise, it should be conclusive.®* 65 Town of Wolcott v. Pond, 19 Coim. 597. eo Town of Plainfleld v. Packer, 11 Conn. 576. 67 Town of Southington v. Clark, 13 Conn. 373. 68 Terry v. Town of Waterbury, 35 Conn. 533; Clark v. Town of (48) Ch. 1] COMMITTEES. § 19 § 18. Notice to the Town. Notice to the town to be alTei'ted hy the laying out ol' alteration of a highway previous to the appointmeut of a committee is esseutial to give the court jurisdiction of the subject, and must be found by the court."^ § 19. Notice to Those Interested. The statute provides that the petition may be referred by the court to a committee, to be heard by them "at such time and place and with such notice to those inter- ested therein as said court shall order." The term "those interested therein" refers to persons other than those already before the court as parties, — persons whose laud might be taken for the highway, or who might be injuriously affected by the laying out of the same, and who, therefore, have the right to be heard be- fore the committee.'^'' The statute leaves to the discre- tion of the court onl3^ the mode in which the notice shall be given, and the court has no right, in its discretion, to omit the order of notice entirely. The omission of such notice is good ground for remonstrance."^ It is customary for a notice to be published in some newspaper having a circulation in tl-g town where the proposed highway lies, giving a general description of the proposed highway, and commanding those inter- ested to appear before the committee at a designated time. It is also proper for the committee to place a uo- Mlddlebury, 47 Conn. 331; Webb v. Town of Rocky-Hill, 21 Conn. 468. u^' Town of Huntington v. Birch, 12 Conn. 142. '0 Shelton v. Town of Derby, 27 Conn. 414. 71 Shelton v. Town of Derby, 27 Conn. 414. (49) Adm. Off.— 4. g 20 ADMINISTRATIVE OFFICERS. [Ch. 1 tice of the hearings on the town sign post, and such other conspicuous places as they may deem proper. § 20. Disqualification of Committee. The rules concerning disqualification of a committee for interest are not so strict as those in the case of judges and justices, for the reason that the acts of highway committees are not considered so peculiarly judicial. Disqualification may also be more easily waived in the case of the highway committee than in the case of the judge.'^^ It was held in the case last cited that a brother by marriage of one of the petitioners was not disqualified by virtue of his relationship, and also that the respond- ents, having knowledge of such a relationship before the hearing of the petition, had waived their right to object thereto, even if there had been any legal disquali- fication. The same rule applies to those over seventy years of age. Men of this advanced age may act on a highway committee.'^^ In the case of Pond v. Town of Milford,''* one of the committee, Mr. Miles, was a considerable land owner and tax payer in the defendant town. The parties had previously agreed upon the appointment of a commit- tee, although the agent of the town did not know, at the time of the agreement, or afterwards, of the disqualifi- cation of jMr. Miles. It was held that, so far as the town was concerned, the disqualification had been 72 Town of Groton v. Hurlburt, 22 Conn. 179. 73 Betts V. New Hartford, 25 Conn. 186. 74 Pond V. Town of Milford, 35 Conn. 32. (50) Ql^^ l-j COMMITTEES. § 20 waived by virtue of the agreement. "The omission of the parties to take the necessary pains to ascertain whether the committee were or were not disinterested is equivalent to knowledge. They thereby took their chances, and cannot now be heard to complain." But it was held that the land owners — "those interested" — occupied a different position, as they had had no oppor- tunity to be heard. The court stated: "They there- fore waived nothing. Yet they are so far parties to the proceeding as to be entitled to notice of the time and place of the meeting of the committee. « « * Upon the question of the common convenience and necessity of the highway, their interests may be identical with those of the town, but when the committee have decided to lay out the highway, they and the town at once be- come opposing parties in respect to the land damages. The statute expressly secures to them the right to ap- pear before the court and remonstrate against the ac- ceptance of the report for any proper cause, or to move for a jury to reassess damages." It was therefore held that their remonstrance to the report of the committee, on the ground of disqualification of Mr. Miles, should be sustained. It can easily be seen, therefore, that it is extremely important for the interests of all parties at the time of the appointment of the committee to investigate thor- oughly the question of disqualification of the members of the committee, for the reason that, as in the case of Pond V. Town of Milford, after all the proceedings have been finished, with much labor and expense to all con- cerned, a land owner, not a party of record, but "one (51) § 21 ADMINISTRATIVE OFFICERS. [Ch. 1 interested," may remonstrate against the acceptance of a report, and put all parties to the expense of beginning the proceedings aueAV. § 21. Committee Acting with Less than Full Number. It was held in the case of Smith v. Town of New Haven :^^ "Where the court appointed three persons as a committee, * * * and one of them, before the committee had finished its proceedings, removed per- manently from the state, the remaining members did not stand, in respect of capacity to act, as they would have done if only two had been appointed by the court. They might act when the absence of the third member had been waived by the parties in interest; they might also act in the absence of the third member, if he had been notified to be present; or, regarding the removal of the third member as creating a vacancy in the com- mittee, the vacancy could have been filled by the court upon the application of either of the parties. In the absence of any application to the court or request to the committee that such vacancy should be filled, where known to exist, the two members had power to proceed as a committee, and complete their work as such. Where the defendant town had full knowledge that the third member had removed permanently from the state, and, instead of moving in court to have the vacancy filled, moved that a report which had been made by tlie full committee should be recommitted fitr a further finding, it was held to be a waiver of all ob.jection to the tAvo members' acting, although the defendant appeared 75 Smith V. Town of New Haven 59 Conn. 203. (52) Ch. 1] COMMITTEES. g 23 before them at the later hearing, and objected to the two proceeding without the absent member." § 22. Oath. The report should show that the oath was taken b}- the committee before proceeding to the hearing.'" § 23. Conduct of the Hearing — Entertainment of the Com- mittee. The members of the committee should exti'cise ;;'reat care in accei>ting entertainment from any people who may be in any way interested in the petition for the high- way. If there is a hotel or boarding house in the vicin- ity, the members of the committee should make such place their headquarters. If, liowever, there be no pub- lic place suitable for the accommodation of the mem- bers of the committee, they may lodge and take their meals at some private houee, taking pains to ascertain that the OAvner is not interested in the petition. In some cases, however, it will be imposs'ible to find any one who is not in some way interested in the proposed highway, either as a land owner or tax payer. In such case there should be an agreement between counsel for the peti- tioners and defendant in regard to the lodging place of the committee, and care should be tahen that such notice may be given of the place of entertainment, that a "person interested" may not subsequently remonstrate against the acceptance of the report on this ground. It is essential to provide for a waiver of objection to such entertainment in advance. 76 Town of Huntington v. Birch. 12 Conn. 146. (53) § 23 ADMINISTRATIVE OFFICERS. [Ch. 1 In the case of Beardsley v. Town of Washington ^^ the trial was held in the village of New Preston, where there was no public house. It was agreed by the peti- tioners on the one hand and the selectmen on the other, before the town meeting, that the committee, together with counsel for both parties, should be lodged and take their suppers and breakfasts at the house of Mr. Hitchcock, and take dinners at the house of Mrs. Brown, which arrangement was carried out during the four days occupied by the hearing. The members of the committee were taken to and from the place of the hear- ing, and over the road proposed to be laid out, in con- veyances furnished by Mr. Hitchcock. He and a son of Mrs. Brown were petitioners for the road, and Mr. Hitchcock took an active and leading part in prose- cuting the petition. "The committee were very hand- somely and liberally entertained, and Mr. Hitchcock declined to receive any compensation either from the committee or from the town." The committee reported in favor of laying out the road. Butler, C. J., said: "The trial of applications of this character cannot be guarded with the same strictness as those which are had in court; but every precaution which can reason- ably be taken to guard against even the possibility of improper influence, and to insure a perfectly fair trial, should be observed. Prima facie the entertainment of the triers by one of the parties for all or any part of the time occupied by the trial is irregular and improper, for, though all may say that no undue influence has been observed or attempted, there may be an influence felt 77 Beardsley v. Town of Washington, 39 Conn. 266. (54) Ch. 1] COMMITTEES. R 23 and operative whicli is not seen or heard, or even in- tended. If, then, the facts set up in this remonstrance and found by the court were unqualified by any agree- ment or waiver, we should deem it our duty to set aside the report; but it is found that there was no public house in the village, and impliedly that it was neces- sary that the committee should be accommodated at some private house." The court stated that, as all the inhabitants of the town were parties interested in the construction of the highway, it was fair, as well as nec- essary, that the place of the accommodation of the com- mittee should be a matter of agreement between the parties and those who represented them, and the agree- ment was carried out in good faith. "As, then, the agreement was necessary under the circumstances, was fair upon its face, and rendered still more so by the provision for the superintendence of counsel, we can see nothing irregular or improper in it." It was held that the doctrine of waiver also applied in this case to the. remonstrating tax payers. In the case of Greene v. Town of East Haddam ''^ the remonstrance stated and the court found that mem- bers of the committee accepted entertainment in the evening from one who was interested in having the road laid out. Park, C. J., said: "The acceptance of such special attentions we regard as objectionable, even where they produce no effect whatever upon the minds of any of the committee, as tending to create a distrust of the committee in the minds of the other party, and a suspicion of unfairness in the decision of the commit- 78 Greene v. Town of Bast Haddam, 51 Conn. 547. (55) I 23 ADMINISTRATIVE OFFICERS. [Ch. 1 tee where finally adverse to them. It is far better, therefore, that no room be given for suspicion or cavil. It is, however, to be presumed that such a committee is above the reach of such petty influences. * * * In this case the coiut has found that there was no improper conduct on the part of the committee, unless the law would so infer from the facts found." The court held that the "whole question is a mixed one of law and fact, but predominantly of fact, and we cannot say, if the conduct has no impropriety in fact, that there is enough left of it to constitute improper conduct in law." The same question arose in Williams v. Town of Ston- ingtou,^" where one of the meml)ers of the committee, during the time of the hearings, sjjent the night with one of the selectmen at his residence. It was a friendly entertainment, and no reference to matters pertaining to the petition or trial was made. Before the trial was resumed on the following da}-, the counsel for the peti- tioners became aware of the fact, and it was the sub- ject of public conversation in the room before the trial was resumed. The report was made and delivered In- the committee without any objection on account of this action of one of the members of the committee, but, on remonstrance, the petitioners made it a ground for set- ting the report aside. Chief Justice Park said : "Tliere is no allegation that the petitioners were ignorant of the entertainment of one of the committee by one of the selectmen of the defendant town before the hearing was closed or the report made. Such an,allegatiou was essential, and the want of it renders the remongstrance TO Williams v. Tov/n of Stonington, 49 Conn. 229. (56) QYi. 1] COMMITTEES. g 23 * * * insufikieut. * * * But the court has found that the morning after the entertainment, and before the hearing was closed, the counsel for the petitioners had full knowledge of the fact, and made no objection, which precludes the petitioners from making objection now." The court stated that it was essential that the objection should be made before the committee in or- der to prevent the application of the principle of waiver. Park, C. J., said : "If the objection had been made, the committee might have decided not to go on with the hearing. At all events, the party would have done all that could have been done to take advantage of the objection, and would have saved himself from the sus- picion of having sought to secure the advantages of a favorable, and avoid the disadvantages of an unfavor- able, report of the committee." Right of the Committee to Demand Their Fee before De- livering Report. It is proper for the committee, after the conclusion of the hearings, to announce that they will notify the suc- cessful party, and that they will expect their fees to be paid before delivering the report.®" In some cases this is the only safe method for the committee to pursue, and they may hold their report until their fees are paid. Should the fees be unreasonable, -the successful party may make an application to the court to fix the amount of the fees, and order the committee to deliver the re- 13ort on payment of fees so fixed. When this announce- ment has been made by the committee, either party may so "Wiiliams v. Town of Stonington, 49 Conn. 2S0. (57) 8 23 ADMINISTRATIVE OFFICERS. [Ch. 1 reply that a check will be sent for the fees should the report be favorable to the one making such offer. The making of such a promise to pay the fee should the re- port be favorable is not a good ground for remon- strance.^^ Ex Parte Statements 'before Committee. It is not proper for the committee to receive any testi- mony unless both parties to the application are pres- ent, either personally or by counsel. "No tribunal can safely listen to any proposition concerning the case pend- ing before it made by one party in the absence and with- out the knowledge of the other, and no tribunal can obtain public confidence or long exist after it has ex- posed itself even to suspicion in this regard." In the case of Goodwin v. Town of Wethersfield,^^ one of the selectmen of the defendant town, and who had, during the trial, acted as the agent of the town, came to the committee privately and promised, if they would defer further action in the matter of the applica- tion, that he would procure a new highway to be laid out and accepted by the town, which would be satis- factory to all parties. The committee agreed to this proposition, and assured him that, "if he should carry out his plans, they would make a report adversely to the petitioners, and contrary to the report they then contemplated making." As a matter of fact he was un- able to carry out the plan, and consequently the com- mittee made their report in favor of the petitioners. It 81 Williams v. Town of Stonington, 49 Conn. 230. 82 Goodwin v. Town of Wethersfield, 43 Conn. 437. (58) Ch. 1] COMMITTEES. § 23 was held that it was quite proper for the committee to delay making its report, for the reason that, if the se- lectmen's plan had succeeded, there would have been a saving of expense to all parties; but it was also held that the committee should not have entertained this proposition in the absence of counsel. It is not proper for the committee to secure the serv- ices of a surveyor, and adopt a line not previously con- sidered or examined, and locate the same as part of the highway. "This proceeding cannot be justified. It was, in effect, receiving additional evidence after the trial had closed, and in the absence of the parties. * * * It is reasonable to presume that the parties in interest, who were familiar with the locality, called the attention of the committee to all the lines regarded by them as feasible or desirable. They had a right to assume that the committee would adopt some one of the lines proposed as the line of the highway. The selec- tion of another line, not previously examined, without notice and without a hearing, tended directly to defeat one great object which the law aims to secure in all trials, — a full, fair, and impartial hearing."^* Amendments of the Finding. Upon the same principle that it is not proper for a committee to receive additional evidence after the hear- ings have been closed, without due notice to all par- ties, so, also, is it improper for a committee, after tlie report has been returned into court, to amend the report by reducing the amount of damages in one case, and S3 Pond V. Town of Milford. 35 Conn. 35. (59) 8 23 ADMINISTRATIVE OFFICERS. [Ch. 1 increasing it in the otlier. "After the report is returned into court, such amendments should only be allowed, if at all, upon notice to the adverse parties, and after giv- iuf^ them an opportunity to be heard. The fact that this was done by leave of the court does not remove the difficulty.''^* In the case of Harris v. Town of Woodstock «^ the members of the committee were divided in their opinions of the common convenience and necessity of the high- way, one being in favor of it, one against it, and one in doubt. The member of the committee who was opposed to the highway secured the services of a surveyor, who made a survey of the new route, and also stated that there would be great difficulty in making and repair- ing the highway prayed for. These statements were handed to the member of the committee who was in doubt, and subsequently examined by the whole commit- tee. The member in doubt then announced his opinion against the petitioners. This member testified that the new evidence did not tend to change his views, but the court held that "the operations of the human mind are so subtle, and the influences which affect it so difficult to be appreciated, that it is utterly improb- able, not to say impossible, for him to have known that the additional weight did not contribute to incline an opinion confessedly on the equipoise. All that he must be understood to liave meant and the court to have found is that he was unconscious of the influence. It is said that from the finding it appears that the survey 84 Pond V. Town of Milford, 35 Conn. 36. s" Harris v. Town of Woodstock, 27 Conn. 572. (60) Oh. IJ COMMITTEES. | 23 was substantially correct, and it is claimed tliat the re;-ult would have been the same if the new evidence had been presented during the trial. The findiuii, speaks of the accurac.y of the survey on the principle adopted; but the principle itself was partial and cal- culated to mislead, inasmuch as it exhibited the eleva- tions of the new road as they then existed, and not the grade to which thej' might easily be reduced. And there is nothing to lessen the impropriety of admitting the statements of Mr. Lester without oath or cross-ex- amination or chance for contradiction." The conduct of the committee was held to be improper, and the report was set aside. ■Employment of a Surveyor. Ordinarily the committee should not employ the same surveyor or engineer employed by either of the parties; but if the committee has already made up its mind about the highway, and simpl.y desires a surveyor for the pur- pose of the mathematical work of laying out the high- way, it may employ the plaintiff's or defendant's en- gineer, provided no other engineer can be easily secured for the work.*'' Withdrawal of Petition. The petition may be withdrawn at any time liefore the report of the committee has been actually filed in court. The mere fact that the members of the commit- tee have announced their decision will not prevent the petitioners from withdrawing the application for a 86 Greene v. Town of East Haddam, 51 Conn. 554. (61) « 24 ADMINISTRATIVE OFFICERS. £Ch. 1 highway, provided the report has not actually been re- turned to court.*'' § 24. Evidence before Committee. "The expense incident to the establishment of a new highway is always an element which enters into the question of its convenience and necessity. To justify the committee in laying out a new highway, no doubt they should be satisfied that it is of common convenience and necessity, when considered in reference to the ex- pense of building it."** The expense of keeping a high- way in good and sufficient repair is also a proper sub- ject of consideration by the committee.*" The defend- ant town may also offer as evidence the amount of its grand list and indebtedness and rate of taxation in each of the ten preceding years, and also its expendi- tures upon roads and bridges in previous years.^" In the case last cited it was said : "The weight of the burden to be borne, and the ability of the town to bear it, are to be considered in relation to each other. * * * It was the plain duty of the committee to consider the cost of building and maintaining this road and the abil- ity of the town together in determining the question of common convenience and necessity. In this case the town gave evidence as to its financial condition with somewhat greater fullness than was necessary, but all the evidence received threw some light upon the point 8TWest V. Tolland, 25 Conn. 133. 88 Bristol V. Town of Branford, 42 Conn. 322; Perkins v. Town of Andover, 31 Conn. 603. 80 Hoadley v. Town of Waterbury, 34 Conn. 38. 00 Bristol V. Town of Branford, 42 Conn. 322. (62J Ch. 1] COMMITTEES. | 24 upon which it was directed. Nor do we think that the committee erred in taking the Ions retrospect of ten years." Opinions. The committee may receive the expression of opinions as to the convenience and necessity of the proposed higliA\'ay from tliose Avho have knowledge of the matter. "It is not a court, in the strictest sense, and has not in all respects been made subject to the technical common- law rules of evidence by which courts are governed. * * * In accordance with this opinion,®^ and with the general assent of the profession, committees ap- pointed to try this particular issue [common conven- ience and necessity] have for many years usually, if not invariably, found their way to a result by permit- ting persons who had knowledge of the section of coun- try' to be crossed by the proj)osed highAvay, and the loca- tion of the population to be affected by it, to give their opinions, based upon such knowledge, as to its being of common convenience and necessity, and we find no occasion for disturbing this long-established mode of procedure before highway committees."^^ Bond. A bond conditioned that the obligor will construct the highway at a fixed sum may be offered in evidence by statute, and, if the bond is not draAvn in conformity 91 Town of Groton v. Hurlburt, 22 Conn. 191. 92 Bristol V. Town of Branford, 42 Conn. 321, 322; Town of Wethersfield v. Humphrey, 20 Conn. 218; Town of Groton v. Hurl- burt, 22 Conn. 191. (63) 8 24 ADMINISTRATIVE OFFICERS. [Ch. 1 with the statute, a new bond, which is properly drawn, may be submitted after the conclusion of the hearings.*"* Evidence of Travel for Pleasure Only. "We proceed to the precise question under consitler- ation. It is not whether pleasure travel alone would justify the laying out of a highway, but whether the fact and needs of such travel may be considered at all in connection with evidence showing still more urgent public demands. The entire amount of lawful public travel to be accommodated must be considered in decid- ing Avhat the public exigency desires. As the traveler for pleasure or recreation has his rights in the use of a road when made, so his voice may unite with others in making a public demand for a new road. The travel, of course, which is temporary, and which uses the road only a few months in the year, will have much less weight than that which is permanent.""^ This case had reference to a road from Branford to Indian Neck, — a summer resort. Where evidence that should properly have been re- ceived in chief has been admitted at a later stage of the trial, the matter is wholly one of discretion of the com- mittee, and is not a ground of error.^^ Evidence of Expense of Repairing Connecting Eoads. •Where a highway prayed for would, if laid out, make it necessary that an existing highway with which it 03 Horton v. Town of Norwalk, 45 Conn. 237. 0* Bryan v. Town of Branford, 50 Conn. 252. 05 Bryan v. Town of Branford, 50 Conn. 252. (64) Ch. 1] COMMITTEES. § 25 would connect should be put into better condition in consequence of the new travel that would be brought upon it, which expense would otherwise be unnecessary, the committee may consider this expense in determin- ing whether or not to lay out the proposed highway.*' Other Facts Admissible. The location, the surrounding property, the nature and extent of the business carried on in the neighbor- hood, supplemented by the judgment of practical men residing in the vicinity, are subjects for consideration; by the committee. § 25. Layout. Each party to the petition should generally have the services of a competent engineer to testify concerning the proposed layout. Bridges. Whenever it may be necessary, the committee has power to so lay out a highway as to require the construc- tion of a bridge, even though the bridge may be across navigable waters. The power to lay out a highway car- ries with it the power to require the construction of bridges in the line of the highway over all streams and rivers not navigable, and over inlets and navigable rivers. This power is not limited to those cases -iu which navigation is so inconsiderable as not to require the construction of a draw-bridge, as stated in the case of Brown v. Town of Preston :*'' "We have not discov- 86 Howe V. Town of Ridgefield, 50 Conn. 592. 97 Brown v. Town of Preston, 38 Conn. 223. (65) Adm. Off.— 5. ' § 25 ADMINISTRATIVE OFPICEKb. [Ch. 1 ered any good reason for such a limitation. It would prove detrimental to the interests of the public along our navigable rivers and seacoast by checking improve- ments in the matter of highways, while, on the other hand, the advantages sought to be secured thereby are unimportant and inconsiderable." It was held that the slight inconvenience to which those interested in the navigation of a cove would be subject should be endured for the sake of the greater good accruing to the public at large. "The most seri- ous objection to construing the statute as conferring the powers contended for is found in the fact that the stat- ute makes no provision for the construction of a draw- bridge. Although the statute contains no express au- thority, yet we think it may be clearly implied in cases where public convenience and necessity demand a high- way across a navigable stream of water. Towns, in the construction of highways, exercise the right of eminent domain, which right is delegated to them by the legis- lature. The obstruction of navigation by means of a draw-bridge is an exercise of hiis same right. The power implied, therefore, is of the same general nature, and is necessary in order to secure fully the main object contemplated by the statute."^® Road Ending at Boundary Line between Towns. Some difficulty is found occasionally when it is de- sired to lay out a highway to be a thoroughfare between 98 Brown v. Town of Preston, 38 Conn. 224 ; Saugatuck Bridge Co. V. Town of Westport, 39 Conn. 350; Bryan v. Town of Branford, 50 Conn. 250. (66) Ch. 1] COMMITTEES. g 25 towns in different counties. The superior court for each county may entertain jurisdiction over that por- tion of the highway lying within the limits of the county. There is always a possibility that the proposed way may be adjudged necessary in one county and unnecessary in the other. Where this is likely to happen it may be easily avoided by the form of the decree, or by the postpone- ment of a final decree in one county until action is had in the other.** A remonstrance that sets up that the proposed high- way ends at the town line, and does not intersect or con- nect with any highway, or form a part of any highway, although true, will not be held sufficient where the main object of the highway is to provide for a thoroughfare between towns in different counties. In the case last cited it is stated : "Some of the older English cases undoubtedly countenance the idea that a road which is not a thoroughfare cannot be a public way, but the modem cases are otherwise. * * * The authorities, therefore, would seem to establish the proposition that a highway may exist over a place which is not a thoroughfare. Cases will readily occur to the mind in which it is possible that common convenience and necessity may demand the construction of a high- way as a mere cul de sac, — as a highway to navigable waters where there is no public landing; a highway ex- tending into wild and uncultivated lands; to mills, manufacturing and mechanical establishments, and the like." If the committee be satisfied, in view of all the cir- 89 Peckham v. Town of Lebanon, 3? Conn. 234. (67) § 25 ADMINISTRATIVE OFFICERS. [Ch. 1 cumstances, that the public travel demands the whole road, and there is a reasonable certainty that the whole will be built, it is their duty to lay out the portion within their jurisdiction.^"'' ■Deviation from Petition in Layout. It is not necessary for the committee to lay out the highway on precisely the same lines as those prayed for in the petition. The same strict rules of pleading which obtain in describing the subject-matter of litigation in other cases where the slightest variation is often fatal do not apply in applications for the layout of a highway. "A deviation of a few rods one way or the other in a country road can be of no importance. The neighbor- hood or the general locality is all that the public demand can indicate ; and the petitioners, who represent the pub- lic, are not expected to know all the deviations from a proposed line which a critical examination of the nature of the ground may require for the purposes of a judicious layout. * * * It has not been usual in petitions for new highways to locate the way except in a very general manner by the termini ; but when the committee come to lay out the road asked for they are required by statute * * * to make a particular survey, to give the layout a precise location. * * * a, slight deviation of the route does not destroy its identity. The termini are re- garded by the law as the most distinctive marks of the identity of a highway."^"^ The committee may lay out 100 Peckham v. Town of Lebanon, 39 Conn. 235; Goodwin "v. Town, of Wethersfield, 43 Conn. 447. 101 Clark v. Town of Middlebury, 47 Conn. 331; Greene v. Town, of East Haddam, 51 Conn. 547. (68) Ck. 1] COMMITTEES. | 26 a part of the highway prayed for, and not the \yhole, in their discretion.^"^ Where the petition for a highway describes a certain point on an existing highway as the terminus, the com- mittee have power, if they deem it best, to make the new road of increased width at the terminus, "with two di- verging tracks," to provide for travel in each direction from the old highway."* § 26. Damages. The committee will assess benefits and damages to the property owners affected by the layout of the highway. The statute provides for an appeal to a jury of six from the report of the committee. The rules covering the as- sessment of damages are well stated in the case of Clark V. Town of Saybrook^"* as follows : "What, then, is the rule of restriction, and what particular species of damage does the statute embrace? We think that an answer to this question is not difficult. It is the direct and immediate damage resulting from the laying out of the highway. This rule excludes all indirect and re- mote, or what is usually termed 'mere consequential,' damage, and also anj^ direct or immediate damage occa- sioned by any other cause than such laying out. It was, in our opinion, the intention of the legislature * * * to provide remuneration to individuals only in cases where, in consequence of the laying out of a public high- way, they would, if no such remuneration were provided, 102 Clark Y. Town of Middlebury, 47 Conn. 331. 103 Greene v. Town of East Haddam, 51 Conn. 547. 104 Clark V. Town of Saybrook, 21 Conn. 323. (69) § 27 ADMINISTRATIVE OFFICERS. [Ch. 1 sustain what in law is denominated an 'injury,' which consists of a violation of one's rights, * * * which would occur * * * only where a person, by the es- tablishment of a road over his land, is directly deprived of the use of it, or of the exercise of some right or priv- ilege attached to it, including, also, the damage done by the laying of it out to the land connected with that which is covered by the highway, and of which it was a part. * * * But we are * * * of the opinion that, by the terms and true construction of that statute, the assessment of damages is to be confined to the own- ers of land through which the highway is laid out." It was held in this case that one who was to a certain ex- tent deprived of the use of the creek for the transporta- tion of stone from his quarry by the bridge where the road crossed it was not entitled to damages. It was held in the case of Inhabitants of Windsor v. Field^"^ that the committee are not restricted to the ac- tual owners in the assessment of damages in every case : "They are to estimate the damage done to any particular person. Their best skill and judgment are to be exer- cised." i 27. Report and Finding. The finding of the committee that the road proposed is of common convenience and necessity is conclusive, and cannot be reviewed by the court.^"" "The identical lan- guage of the statute [concerning common convenience and necessity] need not be employed [in the report]. 106 Inhabitants of Windsor v. Field, 1 Conn. 279. 106 Scutt V. Town of Southbury, 55 Conn. 409; Town of Harwin- ton V. Catlin, 19 Conn. 527. (70) Ch. 1] COMMITTEES. § 30 Other language of equivalent import will suffice, and, indeed, any language from which it is fairly to be in- ferred that, in the opinion of the committee, public con- venience and necessity require the laying out of the road, is sufficient."!" § 28. Remonstrance. The remonstrance should be in the same form as the remonstrance to the report of the committee in trial of an issue of fact, to which reference is hereby made.^"^ The court has no power to allow the remonstrance to go in to any matters of fact considered before the committee.^"^ If, on remonstrance, the report of the committee be set aside, such adjudication annuls the report, and the case stands on the unsupported allegations of the petition."" § 29. Recommitment. The court has power to recommit the report to the committee;!!! The committee may make a supplemental report, or they may change the first report in the par- ticular required, by order of the court recommitting it.!!2 § 30. Power of the Court over the Report. The court has no power to establish a portion of a 107 Pierce v. Town of Southbury, 29 Conn. 494. 108 Supra, p. 18. 109 Betts V. New Hartford, 25 Conn. 187. 110 Borough of Bridgeport v. Hubbell, 5 Conn. 241. 111 Monroe v. Borough of Danbury, 24 Conn. 199; Greene v. Town of East Haddam, 51 Conn. 561. 11= Ives V. Town of East Haven, 48 Conn. 289. (71) § 32 ADMINISTRATIVE OFFICERS. [Ch. 1 highway laid out entire by a committee, and reject the residue, but must reject the whole.^^* § 31. Personnel of Committee. As a matter of expediency and efficiency, it is advis- able to appoint a lawyer as the chairman of the commit- tee. The other members may be either lawyers or men of character and influence from neighboring towns. IV. Committee on Encroachment of the Highway. § 32. In General. Section 4783 of the General Statutes provides that, "if any person has inclosed or shall inclose any part of a highway or town common, the selectmen of the town in which the offense is perpetrated, or a committee appoint- ed by the town for that purpose, shall notify him to re- move the encroachment within reasonable time, not ex- ceeding one month after such notice, and if he shall neg- lect to do so, the selectmen may remove it and recover from him the expense of the removal." The statute pro- vides a penalty for a -second offense, and also provides that, "when such structure has been once removed, the selectmen or committee may remove it without notice as often as it shall be again erected without authority of law." Ordinarily such a committee will consist of three persons. In the case of Martin v. Lemon^^* the plaintiff, who was one of such committee, acting without the concur- rence or advice of any of the other members of the com- 113 Town of Winchester v. Hinsdale, 12 Conn. 85. 11-1 Martin v. Lemon, 26 Conn. 192. (72) Ch. 1] COMMITTEES. | 32 mittee, and after giving notice to the defendant, removed an encroachment on the highway, and brought suit against the defendant for the expense of such removal. It was held that the power of removing encroachments is not given to each of the members of such a committee acting separately and without the concurrence of the other members or any of them. A single member of such committee has no right to act on his own responsi- bility. "The rule on this subject is that in such a case, if the act is merely ministerial in its character, a majority, at least, must concur and unite in the perform- ance of it, but they may act separately, and need not he convened in a body or notified so to convene for that pur- pose; but if the act is one which requires the exercise of discretion and judgment, in which case it is usaally termed a 'judicial act,' unless special provision is other- wise made, the persons to whom the authority is given must meet and confer together and be present when the act is performed, in which case a majority of them may perfox'm the act, or, after all of them have been notified to meet, a majority of them, having met, will constitute a quorum or sufficient number to perform the act, and, according to some modem authorities, the act may be legally done by the direction or with the concurrence of a majority of the quorum so assembled. « * * The courts in this state, however, have gone further and held in a particular class of cases, where the act requires the exercise of judgment and discretion, that a majority of the persons on whom the authority is conferred may per- form it, and that they may act separately for that pur- (T3) I 32 ADMINISTRATIVE OFFICERS. [Ch. 1 pose, and need not act in a board or collective body."*" * * * There is nothing in the act now in question which takes it out of the operation of these principles, or provides that the authority conferred by it may be exer- cised by one only of the members of the committee men- tioned in it. Its terms contain no express delegation to the individual members of the committee of the power given to the committee, nor do those terms imply that they may separately exercise that power. On the other hand, they import that one of them cannot so act where the committee consists of more than one person. They prescribe that the acts therein authorized shall be done by a 'committee,' and there is nothing to indicate that they may be done by a particular portion of the persons composing it. * * * And * * * wherever an authority is conferred by a statute on several persons, by whatever term they are designated, and it is intended that a particular portion of them may exercise that pow- er, it is usual to insert some phrase which expresses such intention. We also infer from the magnitude of the power which is given by the act in question to the com- mittee on encroachments, and the serious consequences which might ensue to the persons on Avhom it is brought to bear, that it was the intention of the legislature that it should not be exercised by one only of the members of the committee on his sole judgment and opinion, but that it was designed that its exercise should be the result of deliberation and consultation between them." Judg- ment was accordingly rendered for the defendant. 114a Gallup V. Tracy, 25 Conn. 10 (of committee on staking out oyster grounds). (74) Ch. 1] COMMITTEES. | 33 i 33. In General. Section 4055 of the General Statutes provides that, "when the boundaries of lands between adjoining pro- prietors shall have been lost or become uncertain, and they cannot agree to establish the same, one or more ot them may bring a complaint to the superior court for the county in which such lands or a portion of them are situated, and such court may, upon such complaint, or- der such lost and uncertain bounds to be erected and es- tablished, and may appoint a committee of not more than three disinterested freeholders, who shall give notice to all parties interested in said lands to appear before them, and, having been duly sworn, shall inquire into the facts, and erect and establish such lost and uncertain bounds, and may employ a surveyor to assist therein, and shall report the facts and their doings to the court, and if said court shall find said parties were duly notified, it may confirm said doings; and certified copies of said re- port and decree shall be recorded in the records of the town in which said lands are, and the bounds so erected and established shall be the bounds between said pro- prietors." The general rules of conduct of the hearings before a committee on lost boundaries are the same as those of a committee on the laying out of highways, to which ref- erence is hereby made.^^^ On proof of material miscon- duct on the part of the committee in erecting and estab- lishing such bounds, offered by the losing party and by 115 Supra, p. 53. (T5) a 33 A.DMINISTRATIVE OFFICERS. [Ch. 1 way of remonstrance, the court will reject the report ol the committee. The findings of fact, however, made by the committee on lost boundaries, have the same conclu- sive character as those of committees on the layout of highways. In the case of Carney v. Wilkinson"^ the defendant remonstrated against the acceptance of the report be- cause the committee employed the surveyor of the plain- tilf to fix and restore the lost boundaries. A demurrer was interposed to the remonstrance by the plaintiff, and the court below sustained the demurrer. In so doing the superior court held that such action by any commit- tee is not in law prima facie improper, and cannot be sufficient ground for rejecting a report. The supreme court said: "This is error, fatal to the validity of the judgment. It is essential that the conclusions of such committees should be as free from all improper influences as the verdicts of juries. The surveyor * * * to assist the committee * * * should be as disinter- ested in respect to his duties as the committee itself. * * * It appears that the assistance of the surveyor employed by the committee was a necessary factor in the process of deduction which must determine its judg- ment. The employment for such purpose of a person who was then the 'agent and surveyor' of a party inter- ested in respect to the very question at issue is in law irregular and improper. It may well be that, upon a hearing on the allegation of the remonstrance, the court might have been satisfied, and have found that the assist- ance of the surveyor had no influence on the judgment lie Carney v. Wilkinson, 67 Conn. 347. (76) Ch. 1] COMMITTEES. § 3 of the committee. Whether such finding would heal the error is a question not before us. The trial court has held that the law does not regard the introduction of such interested assistance into the deliberations of a quasi jury as legally improper. * * * That ruling cannot stand. The practical effect of such a rule of law would tend to impair confidence in legal tribunals, and to endanger the purity of trials." It will therefore be seen that it is very much easier in every case to employ a surveyor who is in no way interested on behalf of any party to the litigation. VI. Committee on the Layout of Pbivate Wat. § 34. In General. "If the selectmen of any town, upon application made to them, shall neglect to lay out any necessary private way, the superior court shall lay it out, proceeding as in the applications for highways, except that damages as- sessed in such proceedings shall be paid by the party ap plying for such private way.""'^ The committee in this case, also, will be bound by the same limitations and permitted the same privileges as the committee on the layout of highways. There are a few cases, however, which specifically construe this stat- ute. To authorize the laying out of a private way, it is not necessarj^ that it should be connected with the high- way, so as to accommodate the public, as well as the peti- tioner, but it may be laid out where it is of no use ex- cept to give the petitioner access to some part of his land 117 Gen. St. § 2074. (TT) I 34 ADMINISTRATIVE OFFICERS. [Ch. 1 by connecting it with another.^!* Should the court set aside the report of the first committee for some error committed by the committee at the hearing, a second committee may be appointed by the court to consider the same petition."^ It was not necessary, if it would have been proper, for the committee to direct what particular kind of fences the petitioner should build in the places designated for that purpose."" The decree of the court should fix a time at which the owner of the land may as- certain when his land is to be subject to the incumbrances or private way.^^^ In the case of Perkins v. Town of Colebrook^^^ the plaintifii's land was entirely surrounded by land of Mr. Phelps. The only way for the plaintiff to reach the highway was across Phelps' land. The plaintiff desired a private way across a pond on Mr. Phelps' land, which pond was valuable for fishing purposes. The committee found that the damage to the land of Mr. Phelps hj such a private way across the pond would exceed the value of the plaintiff's land, and they refused to lay out the pri- vate way as prayed for. It was held that evidence that the selectmen were ready and willing to lay out a pri- vate way in another place for the plaintiff was irrele- vant. In this, as in all such cases, the party aggrieved by the attempt to offer such evidence should object and take a ruling upon it from the committee, and, should tlie ruling be against it, place that adverse ruling in his lis Reynolds v. Reynolds, 15 Conn. 83. 119 Reynolds v. Reynolds, 15 Conn. 83. 120 Reynolds v. Reynolds, 15 Conn. 83. 121 Reynolds v. Reynolds, 15 Conn. 83. 122 Perkins v. Town of Colebrook, 68 Conn. 113. (78) Qh. 1] COMMITTEES. § 34 remonstrance. In the present case such objection was not properly entered before the committee. It was also held that the committee could consider the injury to the land of Mr. Phelps by the layout of the private way as prayed for, and also the further fact that a reasonably convenient way for the plaintiff could be laid out else- where over Phelps' land. "The principal object of the statutes relating to the layout of private ways is to give to the applicant a reasonably convenient way somewhere to and from his land, and, when this is done, the object of the statute is accomplished. It is immaterial whether that way is provided over route A or route B, if the one is about as reasonably convenient for the applicant as the other ; and if, in the above case, the way laid out over route A will greatly injure and inconvenience the per- son over whose land it runs, and, if laid out over route- B, will injure and inconvenience him very much less, he ought to have the right to show those facts, and no good reason has been shown why the committee should not take them into account." The rules governing the layout of public highways, under the subject of "Layout," apply to private ways. "It is further settled in such cases that the committee, if they lay out any road at all, must lay out the road prayed for, or some part of it, without substantial deviation from the route prayed for. * * * These decisions must govern in the present case. The plaintiff, as was his right, described in his application the precise way that he wanted. The question before the committee was whether that described way was of private convenience and necessity to him under the statute. Tl.at was the (79) § 35 ADMINISTRATIVE OFFICERS. [Ch. 1 precise way he had asked the selectmen to lav out, and which they refused to lay out. Under the statute, the committee could lay out no way substantially different from the one described in the application. For these reasons we are of opinion that the court below commit- ted no error in overruling the remonstrance."^^* VII. Committees in Partition Suits. § 35. Without Sale. "Courts having jurisdiction of actions for equitable re- lief may, upon the complaint of any person interested, order partition of any real estate held in joint tenancy, tenancy in common, or coparcenary, and may appoint a committee for that purpose, and may, in like manner, make partition of any real estate held by tenants in tail ; and decrees aparting entailed estate shall bind the par- ties, and all persons who shall thereafter claim title to said estate as heirs of their bodies."^-* "When any deceased tenant in common, joint tenant or coparcener of real estate shall have devised any free- hold interest in such estate to any person, with a con- tingent interest by way of remainder, substitution, or executory devise, to any other person, born or unborn, a proper court of equitable jurisdiction may, on the com- plaint of any person interested, order partition of such estate to be made between the devisee or devisees, the surviving cotenant or cotenants, and the person having such contingent interest, and the decree shall bind the 123 Perkins v. Town of Colebrook, 68 Conn. 113. 121 Gen. St. § 1031. (80) Ch. 1] COMMITTEES. § 35 parties, and the person liUAiug such contingent interest, his heirs and assigns."^-^ "Every decree for a partition, under sections 1031 and 1032, together with the doings under said decree, shall be recorded in the land records in the town where the estate lies before it shall be effectual to bind any persons except those who are parties to the complaint, and the person having such contingent interest, if unborn, and his and their heirs."^^® The distinction between joint tenants, tenants in com- mon, and coparceners is clearly stated in 1 Swift, Dig. p. 103, c. 10 : "An estate in joint tenancy is where the lands or tenements are granted to two or more persons to hold in fee simple, fee tail, for life, for years, or at will- The properties of this estate arise from its unity, which is four-fold : (a) Unity of title, — the estate must be created and derived from one and the same convey- ance; (b) unity of time, — the estate must be created and vested in all at the same period; (c) unity of interest, — the estate must be for the same duration, and of the same quantity of interest; (d) unity of possession, — they must all possess and enjoy at the same time, for each must have an entire possession of every parcel as of the whole. Tenants in common are such as hold by several and distinct titles, but by unity of possession, for it is sufficient if there is a unity of possession merely, though there is an entire division of interest, of title, and of time. One may hold by purchase and one by descent. One may hold by fee simple and the other in tail or for 1-5 Gen. St. § 1032. 120 Gen. St. § 1033. (81) Adm. Off.— 6. S 35 ADMINISTRATIVE OFFICERS. [Ch. 1 life. Wherever two or more become entitled to land without the unity of time, title, and interest required in a joint tenancy, and have a unity of possession, they arc- tenants in common. An estate in coparcenary is where lands of inheritance descend from the ancestor to two or more persons, who are called 'coparceners' or 'parce- ners.' * * * In this state, as males and females in- herit equally, all estates in descent are by coparcenary, and all heirs coparceners, and there is no difference be- tween these and tenants in common, except that the court of probate can appoint freeholders to distribute such estate among the heirs without the expense of a writ of partition." Whenever it is possible, partition of lands will be made by setting out to each tenant in common, by metes and bounds, land equal in value to his proportion of the com- mon property, rather than by sale. Questions of title should never be tried before the committee appointed to make partition. The committee should avail himself or themselves of the services of a survej^or wherever it may be necessary, an order of court being secured for that purpose in order to prevent any misunderstanding as to the fees subsequently to be paid to the surveyor. In many cases it is not possible to make partition of lands without ordering the payment of a certain sum by the one receiving the greater tract to the one receiving the lesser. This is called "owelty of partition." Allow- ance should be made for improvements whenever possi- ble. Incumbrances on an undivided share of any party tu the proceedings will follow and attach to the land set out to such person. (82) Ch. 1] COMMITTEES. § 35 The number of cases in Connecticut on the subject of partition without sale is small, although some of them are leading cases in the United States, and are con- stantly referred to in other decisions. The case of Scovil v. Kennedy^ ^^ was one for partition of the use of water. A committee was appointed to in- quire into the facts set forth in the bill, and to make re- port thereof, with their opinion thereon, as to the parti- tion, if any, which could or ought to be made. B. owned two mills, situated on two pieces of land with a stream of water running through them. The upper mill was con- veyed to Scovil, and the lower mill subsequentl,y became vested in Scovil and Kennedy, Kennedy owning two- thirds and Scovil one-third. B. had reserved certain rights in the flow of water in the dam and flume in the deed of the upper mill site. The defendants claimed that the property was of such a nature as to be incapable of division without great injury to them. Judge Waite stated, in delivering the opinion : "It seems to be very well settled that the difficulty of making a partition, and the inconveniences resulting to the other tenants, furnisli no sufiicient reason for not making a division. * * * Although a partition here will be attended with consid- erable trouble and inconvenience to the parties, yet, ac- cording to rules now well established, we cannot, on that account, say that the plaintiffs' prayer for a partition shall not be granted." The method of partition recom- mended by a majority of the committee was not approved by the court, and the case was recommitted for further report on lines laid down by the court. 127 Scovil V. Kennedy, 14 Conn. 349. (83) § 35 ADMINISTRATIVE OFFICERS. [Ch. 1 The party making the application for partition must be in open and visible possession. In the case of Adam V. Ames Iron Company/^^ a bill in equity was filed by Adam against the iron company, alleging that the plain- tiff was tenant in common in fee simple with defendants of a certain tract of land in Salisbury, the plaintiff own- ing five undivided eighths thereof, and the defendants the remainder, and praying for a partition of the said premises among the several owners. The defendants filed an answer, alleging that the premises had been oc- cupied and possessed by them for more than forty years, believing that they had good title thereto by purchase for the value of said premises, and that the plaintiff had no title therein as tenant in common or otherwise. The case was referred to a committee, who made a report, and the cause was reserved for the advice of the supreme court of errors. Storrs, J., stated: "We do not con- sider it necessary to examine the question as to the title to the premises sought to be aparted, which has been raised before us, because we are of opinion that this bill should be dismissed on the ground that, when it was brought, the plaintiff was not in possession of said prem- ises. It was an established rule of the common law, bv which the writ of partition would lie only between co- parceners, that the plaintiff must be in possession or seised of the land when the writ was brought; * * * and since the remedy by partition has been extended to joint tenants and tenants in common, the same rule has been uniformly adopted, whether the remedy was sought by writ or bill in equity. * * * Our statute author- 12S Adam v. Ames Iron Co., 24 Conn. 230. (84) Cll. 1] COMMITTEES. § 35 izing the superior court, as a court of equity, to order pai:- tition of real estate held in joint tenancy, tenancy in com- mon, or coparcenary does not introduce any different rule on this subject. * * * As, therefore, the plain- tiff was not in possession of the premises when this bill was brought, it should be dismissed." The committee should always endeavor to divide the property equally and equitably. It is often necessary to look into all the circumstances connected with the hold- ings of the different parties in order to determine exactly their rights. In the case of Kelley v. Madden^^'' a title to land was vested jointly and equally in two sisters. Valuable improvements were from time to time made upon it. The sisters, until a short time before institu- tion of proceedings, having jointly occupied the prem- ises, and made a common stock of their labor and earn- ings, kept no accounts of their services or expenses. One sister paid much more than one-half of the sum actu- ally applied as purchase money, but the value of the other sister's services, with the money she contributed, was more than equal to one-half of the entire cost of the land with the improvements. The court found that it was the intention of the sisters "to apply their joint serv- ices and their means, as they should accrue, to the exe- cution of a common object, — to carry on, improve, and enjoy the premises as common and equal proprietors for the purpose of a common home. « * * The law un- doubtedly contemplates an equitable partition according to real ownership, rather than according to precise legal interest ; but where the measure of legal interest is clear- 129 Kelley v. Madden, 40 Conn. 274. (85) § 35 ADMINISTRATIVE OFFICERS. [Ch. 1 ly defined, and the facts are such as to render the equi- table proportions of the parties entirely uncertain, we know of no rule of division so satisfactory and so free from danger of working injustice as that which follows the legal title of the parties." The superior court was advised to order an equal partition. The finding of a committee is conclusive upon the court in the same manner as the finding of a committee for the trial of an issue of fact, and may be attacked on remonstrance only for errors of law occurring at the hearings. Judge Pardee, in the case of Stannard v. Sperryj^^" gave the following statement of the duties of a commit- tee in partition : "For the enforcement of the right of a tenant in common to ownership in severalty, the statutes provide that a court of equity may make partition h\ it- self, or by a committee of its appointment. In the hear- ing by a court or committee upon the petition for parti- tion there are no formal pleadings. One thing only is possible, namely, to set to each tenant in common, by metes and bounds, land equal in value to his proportion of the common property. The report of the committee that it has aparted is, in legal effect, a report that it finds the value of each part described by metes and bounds to be equal in value to any other part so de- scribed. Upon such hearing, the parties in interest, at their pleasure, avail themselves of all legitimate methods for informing the committee. If they sit in silence, it is to be presumed that they do so for the reason that they believed the committee not to stand in need of informa- 130 Stannard v. Sperry, 56 Conn. 541. (86) Ch. 1] COMMITTEES. § 35 tion. In the absence of averment and proof that the committee intentionally adopted another rule than that of equality in partition, the court will presume that rule to have prevailed, and, under our system, whenever the court or a committee of its appointment finds a fact, such fact is beyond revision or correction equally with the verdict of a jury, if there be no illegality in the mode of proceeding, and no intentional wrongdoing. Errors of judgment as to the value of property must stand uncor- rected. This is equally true of the finding of a commit- tee appointed to hear and find in the place of and for the court. If its finding of facts is to be reviewed in every case by the court, its hearing becomes a useless expendi- ture of labor and money. The defendant suggests that, if this be so, he is at the mercy of the committee as to • the value of his part; but this fact does not vitiate the proceeding. That every person shall be at the mercy of some tribunal, both as to law and fact, is the only reason for the existence of a judicial system." § 36. With Sale. "Courts of equitable jurisdiction may, upon the com- plaint of any jaerson interested, order the sale of any estate, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better pro- mote the interests of the owners, and of any real estate in which, or any portion of which, two or more persons may have different and distinct interests, when, in the opinion of the court, such real estate cannot be con- veniently used and occupied by the parties in interest (87) I 35 ADMINISTRATIVE OFFICERS. [Ch. 1 together, and a sale will better promote the interests of the owners."^^^ "On all complaints for the sale of real or personal es- tate, the court in which tlie case is pending may make any order necessary to protect the rights of all parties in interest, and to carry the sale into full effect."^*^ "On all such complaints the court may appoint a com- mittee to make the sale, who shall par into court the money arising therefrom, which, after deducting such reasonable costs and expenses as it shall direct, shall be distributed, by order of court, among all persons inter- ested in the estate in proportion to their interest."^^^ "If the names and residences of any of the parties en- titled to share in the fund are unknown to the court, and cannot be ascertained, it shall make such order, relative to the custody or investment of the share of such un- known parties, as it shall deem reasonable."^^* "No application for the partition or sale of any part of any estate pending for settlement in any court of pro- bate shall be made until after a settlement of the admin- istration account and a final settlement of such estate, so that the same is ready for distribution."^^'' "The provisions of section 1037 shall extend to and include land owned by two or more persons when the whole or a part of said lands is vested in any person for life, with remainder to his heirs, general or special, or, on failure of such heirs, to any other person, whether 131 Gen. St. § 1037. 132 Gen. St. § 1040. 133 Gen. St. § 1041. 134 Gen. St. § 1042. 135 Gen. St. § 1043. (88) CIj. 1] COMMITTEES. § 36 the same or any part thereof be held in trust, or other- wise. And a conveyance made in pursuance of a decree ordering a sale of such land shall vest the title in the purchaser thereof, and shall bind the person entitled to the life estate, and his legal heirs, or such other person having a remainder interest in the lands ; but the court passing such decree shall make such order in relation to the investment of the proceeds of the avails of such sale as it shall deem necessary for the security of all persons having any interest in said lands."^^'' It will be seen from the foregoing statutes that the dis- cretion of the court in the matter of sales in partition suits is considerable. Partition by sale, however, will only be ordered where strict partition is impossible or impracticable. The same formalities concerning advertisement, no- tice, and the conduct of the sale, together with the subse- quent report, should be observed as those prescribed for committees to sell in foreclosure suits, the powers and duties of the committee in such case being similar. Fol- lowing is a brief summary of the substantive law of par- tition with sale. It is held that an owner in possession may demand par- tition, but that a sale under the statute is not demand- able as a matter of right.^^^ In the case last cited Judge Seymour stated : "The statute gives the court power, as a court of equity, to order the sale, but does not require such order to be made, and we think the court ought not to decree a sale that may affect injuriously the rights of 136 Gen. St. § 1037. 12T Hayden v. Denslow, 27 Conn. 342. (89) § 36 ADMINISTRATIVE OFFICERS. [Ch. 1 third persons, whether such rights are vested or contin- gent; especially the court will not order a sale that may seriously aflfect the rights of creditors. * * * The powers conferred on the court by the statute under which this application is made are extraordinary pow- ers. Persons of full age and capacity are by the statute obliged to submit, upon the motion of others, to a judi- cial sale of their interest in property held in common or coparcenary. Such a power ought to be exercised with a careful regard to the rights of parties objecting to the sale." It was stated in this case that the claims of the respondent that the title to the property was unsettled, that it was not in such state as to invite purchasers, that, if then offered to be sold, her interest in the property would be subject to a ruinous sacrifice, and that no press- ing necessity for an immediate sale was shown, should have weight, and, in connection with other considera- tions, were judged decisive against the application. On the other hand, the difficulty and inconvenience of partition and loss of income therefrom will not be suffi- cient to prevent the order of sale. In the case of John- son V. Olmsted^^^ the petitioners owned one hundred and seventeen one hundred forty-fourths and the defend- ants twenty-seven one hundred forty-fourths of the land. The complaint alleged that partition was impracticable, and asked for sale. The defendants alleged that the property was in good condition and well leased, that the owners derived a larger income from their respective in- terests in it than they could from the money which would be produced by a sale, and that the land was increasing 138 Johnson v. Olmsted, 49 Conn. 509. (90) Ch. 1] COMMITTEES. g 35 in value. The court ordered a sale. Judge Pardee stated: "Every owner with another is entitled to sepa- rate ownership; * * * by partition, first and al- ways, if that is possible ; if it is not, then by sale. Every petitioner for a sale assuming the burden of proving par- tition impossible, and if, upon such petition, the impossi- bility of partition is proven, the court is as much bound to order a sale as it would have been to order a partition upon a prayer for it, and upon proof that it could be conveniently and equitably made. If, upon a petition for a sale, it is proven both that partition is impossible and that a sale would result in a diminution of income, the petitioner is not for that reason to be shut up to con- tinued joint ownership; he must have leave to go out of the possible door, notwithstanding that diminution; upon such petition, the most that can be insisted upon by plaintiff or defendant is that the undeniable right to severalty in ownership shall be secured by the least in- jurious of the two specified modes." But although ex- tensive powers are vested by the statute in the superior court, the power always has been and always ought to be very cautiously exercised. The compulsory sale of one's property without his consent is an exercise of power war- ranted only in clear cases.^^® One who has attached the equity of redemption on a debt to him from the mortgagor, and subsequently levied an execution against the mortgagor, cannot secure the partition by order of sale, because he can occupy no bet- ter position than the mortgagor, and the mortgagor can never be permitted to maintain partition against the 139 Ford V. Kirk, 41 Conn. 9; Hay den v. Denslow, 27 Conn. 342. (91) g 35 ADMINISTRATIVE OFFICERS. [Ch. 1 mortgagee. The mortgagee cannot be compelled to re- linquish mortgaged property until his debt is paid."^ Judge Park stated, in the case last cited : "It is mani- fest that the land cannot be divided, for the mortgagee has the right to the whole as security for his claim, and he cannot be compelled to take a portion of the land in payment, for he has the right to the whole unless his claim is paid in money. The statute is conversant about rights that may be divided, and not about those which are incapable of division, and a sale is allowed only in cases where the interest of all the parties concerned would be more promoted by a sale than by a division. Therefore, rights incapable of being divided are incapa- ble of being sold." It has been held that the court may order the sale of an ore bed, and a distribution of the proceeds among the tenants in common owning the ore bed.^*^ It was stated in Vail v. Hammond^^^ that "the stat- ute confers equal power on the court to order a sale in cases of the joint ownership of personal property. A series of decisions has shown that this statute applies only in cases of ownership. It does not mean that any person interested in any way in real or personal estate may bring a complaint, and that the court must order a sale. But only those interested therein as owners are so entitled. * * * This statute does not confer any poAver on the court to order a sale of property for the purpose of paying debts. The plaintiff was not the own- 140 Spencer v. Waterman, 36 Conn. 342. "1 Richardson v. Monson, 23 Conn. 94. "2 Vail V. Hammond, 60 Conn. 374. (92) Oil. 1] COMMITTEES. g 37 er of the patents in this case. He did not claim to be the owner; on the contrary, he asserted that the defend- ant was the sole owner. He did not seek to be made the owner of them, but only asked that they be sold in order to pay him a debt." It was held that such an applica- tion could not be granted under such circumstances by virtue of proceedings on the statute for a partition by sale. The court will not decree partition by sale of a bury- ing ground by the part owners of a right of pasture against the owners in fee of the burying ground.^^" A court of equity will not order the sale of a building in a country village, erected with funds contributed by people in the vicinity, to be used by the neighborhood as a school and for other public objects, except by the unan- imous consent of all persons interested, so long as the building may be needed for the purposes for which it was originally designed.^** The sale of a tree, carrying with it the right to have the tree destroyed or removed, will not be decreed under the provisions of the statute governing partition suits.^*'' In a suit for a partition or sale of property held in common, the jurisdiction of the court is to be deter- mined by the value of the property.^^'^ VIII. Committee on Staking out Oyster Grounds. § 37. In General. "The selectmen of any town may appoint a committee 143 Wilson V. Peck, 39 Conn. 54. 144 Potter V. Munson, 40 Conn. 473. 145 Robinson v. Clapp, 65 Conn. 379. 146 Fowler v. Fowler, 50 Conn. 256. (93) § 37 ADMINISTRATIVE OFFICERS. [Qh. 1 of not more than five electors of such town, to hold office one year, and until others are chosen in their stead, which shall designate suitable places in the navigable waters within the jurisdiction of said town (excepting such places only as the selectmen of such town have ex- clusive authority to designate) for planting or cultivat- ing oysters, clams, or mussels, and the town may fill any vacancy which may occur in such committee.""'' "The fees for oyster committees shall be, for each de- scription of grounds designated for planting and culti- vating oysters, fifty cents ; for each day occupied in mak- ing such designation, one dollar to each member.""^ The case of Gallup v. Tracy"^ is the leading case, not only on the powers of oyster committees, but also on the right of any committee to act by a majority. This case is referred to frequently in subsequent decisions. A committee of four was appointed by the town of Ledyard to stake out oyster grounds, consisting of ^Messrs. Spicer, Avery, Gallup, and Stoddard. ]\lr. Gallup, mentioned in the vote of the town, was the plaintiff in this action. Soon after the town meeting, and before the commission of the alleged trespass, the plaintiff called upon Messrs. Spicer and Avery, and with their consent staked out the locus in quo, in conformity with the requirements of the statute, and planted oysters thereon. The plaintiff did not know that Mr. Stoddard had been appointed one of the committee, and supposed that, as he himself was the only party interested, it would be necessary for him to "7 Gen. St. § 3260. "s Gen. St. § 3273. 140 Gallup V. Tracy, 25 Conn. 10. (94) (31j. 11 COMMITTEES. | 37 obtain the consent of onl}- Messrs. Spicer tind Avery. Mr. Stoddard was then living in Ledyard, and had not declined the appointment, and would have acted on the committee if he had received notification ; but he was not notified of any meeting of the committee, or of any re- quest for the staking out of the ground, and did not au- thorize the action of the other members of the committee, nor did he subsequently assent to or dissent from the same before the suit was brought. It was proved that, after the ground was so staked out, and oysters planted thereon, the defendant entered thereon and took there- from a quantity of oysters; but the defendant claimed that the ground had not been properly staked out, as Mr. Stoddard had taken no part in the action of the commit- tee, and received no notice of its meeting. Judge Ells- worth stated: "We make no question that the general principle of law is that public agents may act by majori- ties where all are present, or Avhere all have notice to be present, and generally not otherwise. * * * But the question here is of how many the committee consisted. If of three only, these two having given consent, it is enough, unless the fact that the other one had not notice to be present is fatal to the plaintiff's title or license. Three of the four members of the committee strictly may be said to have licensed and approved the location and appropriation by the plaintiff, — two by express act, and the plaintiff, of course, if he could be counted on the oc- casion; but if he could not, because he was the party to be licensed, and we think he could not, then the commit- tee may be held to have consisted of three only, as in the case of the death of one of the number, or his inability (95) g 37 ADMINISTRATIVE OFFICERS. [Ch. 1 to act by reason of absence from the town, sickness, in- sanity, or interest. We thinlc the plaintiff need not be counted as' one, and so there were only three who could consent to the appropriation by the plaintiff, and two of the three have consented. This is a reasonable construc- tion of the statute, which only requires license or con- sent from the committee, Avhose action is not to be lik- ened to the formal adjudication of a board of judges or assembled magistrates. * * * It is further said that the committee should have been assembled for consulta- tion, or that all should have had notice of the assembling, and that then the majority of the whole could have given consent. This depends upon the view taken of the char- acter of the committee. We do not consider them to be a board necessarily to be assembled, but as having power conferred by statute to give license and permission, ■seri- atim. They certainly are not a board, in common par- lance; they have no fixed place of acting or consultation, no record, no clerk, no time, and no mode of proceeding. They act at once, when and where a license is wanted; and to impose upon them now the formalities and rules of boards, requiring to be regularly convened before they can act, will essentially frustrate the object of their ap- pointment, and needlessly embarrass the enjoyment of these minor rights and privileges. ^Ye think it wiser and more in harmony with general usage to hold that a committee like this need not be assembled to act, and may act by majorities of such as are competent to per- form the duty." Judgment for the plaintiff was af- firmed. (96) CHAPTEE II. GRAND JURORS. § 38. In General. 39. Refusal of Grand Juror to Make Complaint.' 40. Reform-Scliool Complaint. 41. Trespass. 42. De Facto Grand Juror. 43. Meetings of Grand Jurors and Power over Witnesses. 44. Further Powers of Grand Jurors. § 38. In General. In towns where there is no town or borough court, grand jurors, who are elected annually, act as prosecut- ing officers for all crimes and misdemeanors. The num- ber of grand jurors to be elected depends upon the popu- lation of the town, and reference should be made to the statutes for more definite information on this subject. The grand jurors must "diligently inquire after, and make due presentment or complaint of, all crimes and misdemeanors that shall come to their knowledge." The ordinary procedure is for a grand juror, as soon as he has knowledge of any crime or misdemeanor, to make a complaint to a justice of the peace of the same town, set- ting forth the nature of the crime or misdemeanor. Blanks are published which may be used by a grand juror for complaints. The justice of the peace theu is- sues a warrant, which is given to a constable, who brings the accused person before the justice forthwith. In cer- (97) Adm. Off.— 7. 8 38 ADMINISTRATIVE OFFICERS. [Ch. 2 tain cases the justice has power to fine and imprison,— to the amount of |7 and thirty days; for all other cases, if probable cause be found, the justice will bind the ac- cused person over to the next term of the common pleas or superior court. It has been the custom of the general assembly to extend the number of town and borough courts, and do away, as far as possible, with the powers of grand jurors and also of justices of the peace in crim- inal cases. "In the early history of the state, grand jurors, as single informing officers, were not known. A grand jury was summoned to attend the courts and make present- ment of offenses, as in England. At a later period, one person, at least, in each plantation, was specially desig- nated by warrant from the clerk of the court to attend statedly at court for one year, and act as a member of the gTaud jury. Subsequently such members were au- thorized to make presentments singly 'to some assistant or justice of the peace,' the assistants being ex officio justices of the peace, and their jurisdiction extending over the entire state. In 1712 the towns were directed by statute to choose grand jurors annually, and they be- came, by virtue of that and prior statutes, single inform- ing officers, as well as members of the grand jury, when convened at court. But their jurisdiction was not limited by town lines. They could singly present to the court having cognizance of the offense, or to 'some assistant or justice of the peace.' So the law stood till the adop- tion of the new constitution, and the subsequent revision of the statutes in 1821 to make them conform to the new order of things. The office of assistant had been abol- (98) Ch. 2] GRAND JURORS. § 39 ished, that of attorney for the state in each county es- tablished, and informations by that officer had supersed- ed presentments by a grand jury of all offenses except a few specified and heinous ones, and in such cases a grand jury was usually taken from the body of the county. There was no longer any necessity for permitting grand jurors to make presentments out of their towns, and no propriety in giving them such discretionary power ; and the revisors, carrying out the policy of the law in relation to venue, that the hearing be as near as might be to the place where the offense was committed, as a matter of economy and convenience to the authorities and the ac- cused, wisely determined to confine the power of grand jurors to make presentment within the limits of the towns which elected them, and for that purpose made the change described."^ § 39. Refusal of Grand Juror to Make Complaint. Section 1878 of the General Statutes provides that any grand juror who, after he has been sworn, shall willfully and corruptly neglect to make seasonable complaint, which it is his duty to make, of any crime or misdemean- or committed in the town where he lives, shall forfeit the sum of two dollars to him who shall sue therefor. The grand juror, however, may exercise sound discre- tion in deciding whether or not the complaint is too triv- ial to be considered. In the case of Watson v. HalP the defendant, a grand juror of Kent, declined to sign a complaint against one 1 Neth V. Crofut, 30 Conn. 580. 2 Watson V. Hall, 46 Conn. 204. (99) I 39 ADMINISTRATIVE OFFICERS. [Ch. 2 Comstock for breach of the peace, said Oomstock having been engaged in an affray with the plaintiff's son. Plain- tiff brought a qui tarn complaint. The defendant was a farmer, sixty years of age, who had never previously been a grand juror, and who was wholly unacquainted with the law and the duties of his office. The court be- low found that heactedin good faith and in the belief that the offense was not of sufficient magnitude to prosecute. The court held that, giving the statute a liberal con- struction, the defendant ought not to be held liable in this action. "A grand juror under our law and practice * * * is invested with some discretion in the dis- charge of his duties. He is not a mere machine, im- pelled by imperative law to act suh periculo in every trivial case, and under all circumstances, when it comes to his knowledge that an offense, however trifling in character, has been committed in his town. * * * Grand jurors may require any person informing them of the commission of a crime to make information under oath, and may administer the witness' oath to him. We suppose, under this last section, that the grand juror, having administered the oath, has a right to inquire of the person making the complaint as to all the facts and circumstances relating to the alleged offense, and, having so inquired, he has a right to judge as to the truthfulness of the witness and the probability of his statement being established in court; and if he should be satisfied that the witness was unreliable, and his statement improb- able, and he thereupon, in good faith and in the honest belief that no offense had been committed, should neglect or decline to prosecute, he ought not to be held liable un- (100) Ch. 2] GRAND JURORS. g 41 der this statute, although it should turn out that an of- fense had actually been committed." The court found that the defendant had no intention of neglecting his duty, but, on the contrary, intended to discharge his duty. "This, we think, is equivalent to finding that the defendant had no intention to neglect his duty, but that, on the contrary, he intended to discharge his duty, and believed that it was for the best interest of the commun- ity that an affair of such small consequence should be passed unnoticed so far as a public prosecution was con- cerned. It was, at most, but an error of judgment on the part of the defendant, and was not such an intention- al neglect of duty as the statute contemplates, and was not, in a strict legal sense, a neglect at all, as we under- stand the meaning of that term as used in the statute under which the suit is brought." Judgment was ad- vised for the defendant.* § 40. Reform-School Complaint. A complaint for the commitment of a boy to the reform school need not be signed by a grand juror. Any per- son may bring the matter before the justice of the peace, and the fact that it is signed by a grand juror will not vitiate the complaint. The justice can take the matter up himself, without any formal complaint.* § 41. Trespass. Under section 1214 of the General Statutes, which for- bids the entering upon the inclosed land of another for 3 Watson V. Hall, 46 Conn. 204. * Reynolds v. Howe, 51 Conn. 472. (101) § 42 ADMINISTRATIVE OFFICERS. [Ch. 2 the purpose of hunting or fishing thereon without the consent of the owner, it is not necessary that the com- plaint be brought and prosecuted at the request of the owner of the land. The authority of a grand juror to prosecute for crimes is fixed by law. It is not controlled or limited by the wishes of any person who may have been affected by the crime.^ § 42. De Facto Grand Juror. The acts of any grand juror who is performing the functions of his office with the color of right (colore officiij will be held valid. He must be more than a mere usurper. "An officer de facto is one who exercises the duties of an office under colour of an appointment or elec- tion to that office. He differs, on the one hand, from a mere usurper of an office, who undertakes to act as an officer without any colour of right, and, on the other hand, from an officer de jure, who is in all respects legally ap- pointed and qualified to exercise the office."" In the case of Douglass v. Wickwire,''^ evidence was offered tending to prove that the grand juror who sent the complaint was elected at the town meeting after six grand jurors had been chosen, although by law the town was only entitled to elect six grand jurors. The court below held that, nevertheless, he was a de facto grand juror. "The decision of the superior court as to the of- ficial character of the grand juror was clearly right. The public and third persons are not required to ascer- B State V. Turner, 60 Conn. 222. 6 Town of Plymouth v. Painter, 17 Conn. 585. ' Douglass V. Wickwire, 19 Conn. 489. • (102) Ch. 2 GRAND JURORS. § 43 tain the legality of an officer's election or appointment. It is enough if the officer acts under colour of an election or an appointment by the only body which has the power to make it. The right to the office can only be tried in a direct proceeding to Avhich the officer is a party, and not in this collateral way."* The same state of facts existed in the case of Smith V. State,^ the grand juror making the complaint being the seventh grand juror elected. Ellsworth, J., stated : "No principle of law is better settled than that public officers de facto, acting colore officii,ave held to be as well qualified to act while they remain in office as if legally appointed." § 43. Meetings of Grand Jurors and Power over Witnesses. The grand jurors of any town, or any three of them, may meet to advise concerning offenses committed in the town, and may call before them at such meeting any witnesses to be examined touching the same.^" If any person so summoned shall fail to appear, "said grand jurors may apply to the justice of the peace for a capias, and, if witnesses shall refuse to be sworn, or, being- sworn, refuse to answer any proper question, the grand jurors may complain to any justice of the peace in the county where such hearing is had, who shall cause such person to be brought before him, and commit him to jail, there to remain at his own expense to give evidence as re- quired."^^ 8 Douglass V. VPickwire, 19 Conn. 489. Smith V. State, 19 Conn. 493. 10 Gen. St. § 1881. 11 In re Application of Clark, 65 Conn. 17. (103) g 43 ADMINISTRATIVE OFFICERS. [Ch. 2 In the case last cited Hamersley, J., said : "The claim is^^ that the refusal to answer a proper question, asked in pursuance of this section, constitutes an offense ; that the complaint to a justice of the peace is the commence- ment of a prosecution by complaint; that, upon such prosecution, the witness is entitled to a trial, as in any prosecution for a criminal offense ; and that a mittimus for his commitment to jail can issue only after final judgment has been rendered. This meaning imputed to the statute would practically destroy its efficiency. A witness who refuses to answer need only demur to the complaint made to the justice, appeal from the judg- ment on the demurrer to a higher court, and, before the case is determined, the occasion for which the question was asked may have passed. Such was the course at- tempted in this case. The words of the statute will not bear such a construction; and although the statute in various forms has been in force since 1750, and has been in constant use as a means for the detection of crimes, yet no record can be found that the claim now made by the plaintiff has ever before been intimated. * * * The plaintiff claims that his imprisonment under the mittimus was unconstitutional, because the statute au- thorized the mittimus to issue only upon conviction of a criminal offense, after trial ; that the m ittimus was in fact issued without such trial, and therefore he was im- prisoned without due process of law. This argument of the plaintiff would be conclusive if his construction of the statute were correct. His brief also claims that the statute is unconstitutional if his construction is not 12 In re Application of Clark, 65 Conn. 17, at page 26. (104) Ch. 2] GRAND JURORS. § 43 correct, and, as the discharge of the plaintiff by the court below was right if the statute authorizing the im- prisonment is in violation of the constitution, we must consider that question. Section 91 [section 1881, Ee- vision of 1902] does not create any criminal offense, nor does it relate to any judicial proceeding. The im- prisonment imposed is not a penalty for any crime. It simply imposes a duty on the citizen, and seeks to enforce that duty when immediate obedience is es- sential by the temporary restraint of the person. The restraint of the person may be authorized by the leg- islature, without the intervention of any court, in many cases where such restraint is necessary to the execu- tion of the law and the enforcement of police regu- lations. * * * The instances are numerous and fa- miliar where officers are authorized to restrain, without trial, and even without process, persons who persist in the open violation of law. This power of summary com- pulsion to compliance with law may be committed to administrative, as well as to judicial, officers, and, when committed to judicial officers, they act solely in an ad- ministrative capacity, unless the power is exercised in the course of judicial proceedings. Section 91 [sec- tion 1881, Eevision of 1902] relates wholly to admin- istrative proceedings. It is a police regulation for the purpose of protecting society against crime, by pro- viding efficient means for the discovery of crime and the detection of the criminal. * * * In this case the law imposed upon the plaintiff the duty of answer- ing the proper questions put to him by the grand ju- rors. The legislature clearly has the right to enact such a law. His continued refusal to answer was an (105) § 44 ADMINISTRATIVE OFFICERS. [Ch. 2 open and persistent defiance of the law, when public in- terest demanded immediate obedience. The power of the legislature to authorize his restraint or imprison- ment so long as he continues in such open defiance can- not be questioned. » * * a proper question is any question the witness may legally be compelled to an- swer; the pertinency of the question must be largely, if not wholly, left to the judgment of the grand jurors. They are authorized to investigate in secret session. The whole object of their investigation might be defeated by disclosing to a witness the purpose of a question. We do not, however, say that their authority may not be so abused in pursuing an unjustifiable investigation that the witness will be entitled to protection. The fact that we have no knowledge of such abuse during an adminis- tration of the law for one hundred and fifty years does not demonstrate that such abuse may not occur in the future." "At the times of such meetings of the grand jurors, the state's attorney of the county wherein such examination is held, and the prosecuting attorney of any city, bor- ough, town, or police court within the town, may assist and participate therein. The grand jurors and justices of the peace, when so assembled, have all the powers of the justices of the peace when holding court to commit for contempt."^^ § 44. Further Powers of Grand Jurors — Town and Borough By-Laws and Regulations. "Grand jurors may, except in towns where the duty 13 Gen. St. § 1881. (106) Ch. 2] GRAND JURORS. § 44 of prosecuting for offenses is imposed upon other offi- cers, make complaint for any violation of any by-law or regulation imposing a penalty, legally made and adopted by any town or borough, to a justice of the peace in the town where the offense is committed; and said justice of the peace and any appellate court, in case of an appeal, shall have the same power to take like proceedings in respect to said complaint as may be had in respect to complaints of misdemeanors punish- able with like penalties."^* Power to Require Oath. "Grand jurors may require any person informing them of the commission of a crime to make information under oath, and may administer the witness' oath to him."i5 "Any town which shall neglect to elect their grand jurors as required by law shall forfeif the sum of |20 to the county in which such town is situated."^® i*Gen. St. § 1879. 15 Gen. St. § 1880. 16 Gen. St. § 1882. (107) CHAPTEE III. JUSTICES OF THE PEACE. I. Civil Jukisdiction. § 45. Statute — Jurisdiction. 46. The Docket. 47.. Jurisdiction. 48. Disqualification. 49. Record. 50. Default. 51. Power of the Justice Concerning Interlocutory Orders. 52. Jury Trial. 53. Pleading. 54. Holding Other Office. 55. Bastardy. 56. Poor Debtor's Oath. 57. Costs in Cases before Justices of the Peace. 58. Accounting before a Justice of the Peace. 59. New Trial. 60. Judgment. 61. Trial before the Return Day. 62. Contempt. 63. Appeal. II. Criminal Jueisdiction. § 64. Jurisdiction. 65. Issue of Warnant After an Arrest. 66. Bonds on Adjournment of Hearing. 67. Right to a Jury. 68. Sureties of the Peace. 69. Recognizance after Hearing. 70. Commitment without Hearing. 71. Record. 72. Effect in Warrant. 73. Disqualification. (108) Ch. 33 JUSTICES OF THE PEACE. § 45 74. Mittimus. 75. Sentence. 76. Effect of Appeal. I. Civil Jueisdiction. i 45. Statute — Jurisdiction. Justices of the peace have jurisdiction in all civil actions for legal relief wherein the matter in demand does not exceed flOO, subject to the right of appeal.^ § 46. The Docket. A justice of the peace is required by statute^ to keep a docket of the cases returned to him for trial, in which he must enter the names of the parties. A justice of the peace should be careful to make his entries in his docket with great exactness. Printed dockets may be secured at legal stationers, but the following scheme for a docket is suggested as filling the requirements of the law : Only one case should be entered on each page of the docket. At the top of the page should be the number of the case. The caption of the case, giving the names of the parties, should follow, leaving a space at the ex- treme left of the page for the appearances of counsel, next to the name of the plaintiff or defendant. The return day, hour, and year must be placed opposite the caption. Minutes of the different steps in the litiga- tion should follow. While not absolutely necessary, a justice of the peace will find it very convenient to have the following data for each case: Date of the writ; name of the magistrate signing it; name of the person 1 Gen. St. § 533. 2Gten. St. § 424. (109) § 46 ADMINISTRATIVE OFFICERS. "Ch. 2 recognized to prosecute, and the amount of tlie bond (in case there is no bond, a statement that, in the opin- ion of the magistrate signing the writ, the plaintiff is of sufficient financial responsibility to answer for costs) ; statement of the nature of the action, or that it is by the common counts ; the amount claimed to be due, and the amount of damages claimed. The date of the service of the writ and the name of the officer serving it should also be entered on the docket, together with a statement of the nature of the attach- ment, whether of real estate or personal property, and the date when the copy was actually served on the de- fendant, or left at his usual place of abode. The amount of fees claimed by the officer should also be inserted. The advantage of entering these different items on the docket is that, in case of loss of the files, the minutes of the Justice of the peace, so regularly entered in the docket, may be used to give the history of the case ; and the justice of the peace will also find it convenient to be able to refer to his docket when information is de- sired concerning the case, and not be required to go through his files for that purpose. The justice of the peace should be particularly careful to enter the case in his index twice, both under the plaintiff's and the defendant's names. Every step that is subsequently taken in the case must be entered with exactness, as the record of the case is made up in this way in a much more orderly and exact method than by indorsements on the Avrit. Much litigation has been caused by a fail- ure of the justice of the peace to properly perfect his record. If there is no appearance for the defendant, and the (110) Ch. 3] JUSTICES OF THE PEACE. § 45 plaintiff files his bill of particulars, judgment by default may be granted by the justice of the peace for the amount of the bill of particulars, together with costs. By long- established practice it is customary to wait until the expiration of the return hour before granting a judg- ment by default. Keference is made later on in this chapter to this subject. An entry should be made in the docket of the date and hour when judgment by default in favor of the plaintiff is granted, together with the amount of the judgment and the costs. If execution be taken out, that fact should be stated on the docket, and the date of the execution inserted. If execution be returned, that fact should be noted, and a note made of whether the execution is returned satisfied, unsatis- fied, or partially satisfied. Alias execution, if taken out, should also be stated on the docket. In this way a record of a defaulted case is made up. Should there be an appearance for the defendant, either in person or by attorney, it is customary to con- tinue the case for one week. Cases of summary process, however, are frequently tried on the return day, or in a few days thereafter, and a week's continuance would be unusual. The justice of the peace must be very care- ful to enter up every continuance on the docket. If he fails to do so, he may lose jurisdiction of the case unless there has been an agreement of counsel for both parties that the case shall be continued from week to week until claimed for trial by agreement. If such an agreement be made, a memorandum to that effect should be entered on docket under proper date. The date of filing and the nature of each pleading must be carefully entered on the docket. In justices' (111) § 46 ADMINISTRATIVE OFFICERS. [Ch. 3 cases it is not absolutely necessary to file pleadings in duplicate, but such a course should always be adopted for convenience of counsel, and the justice would do well to insist upon such a procedure. If such plead- ing be so filed in duplicate (either bill of particulars, plea in abatement, demurrer, answer, reply, etc.), the original should be placed among the files of the case, an indorsement made on a copy of the date when filed, and this copy sent to the counsel for the opposing party. If , on the day fixed for the trial, or on the day to which the case has been continued, the defendant appears ready to proceed with the trial, and the plaintiff does not ap- pear, a nonsuit may be entered by the justice. The great value of a justice's court is the celerity with which trial may be reached. A justice of the peace should neither be too lenient nor too strict in the mat- ter of granting continuances. His discretion should be exercised with reason. If either party is present on the day fixed for the trial, with his witnesses, ready to pro- ceed with the case, a continuance should be granted only for good and sufficient reasons. Attempt on the part of opposing counsel to delay proceedings by frivolous excuses should be discouraged. The justice must always satisfy himself that both parties have received sufiflcient notice of the day of trial to properly prepare the case; and proof by either party of a failure to receive due no- tice is a good reason for claiming a continuance. The justice himself should inform both parties of continu- ances, and keep copies of notices sent. A notice of the day fixed for the trial should always be sent to both parties. (112) Ch. 3] JUSTICES OF THE PEACE. § 47 § 47. Jurisdiction. A justice of the peace has jurisdiction over the civil causes, as stated in section 533 of the General Statutes, wherever the plaintiff or the defendant- resides in the town in which he holds his office, and from which he is elected. "The plaintiff may hring his action before a justice of the peace in any town next adjoining that in which either of the parties dwells, when there is no justice of the peace in any town in which either of the parties dwells, before whom it can lawfully be tried ; and if, in any action in which title to land is to be determined, or for trespass to land, there be no justice of the peace in the town, or if the tract or farm of land lies in two or more towns, and there be no justice of the peace in either town who can lawfully try the same, such action may be brought before a justice of the peace in a town next adjoining the town or one of the towns in which the land lies."^ Ministerial Duties. Ministerial duties, however, of a justice of the peace, may be performed by him in any town in the county from which he is elected. A justice of the peace is "a county officer, and his powers are coextensive with the county limits, except so far as they are circumscribed. Hence it is that he may sign writs and take acknowledg- ment of deeds throughout the county; but he may not take jurisdiction of suits, unless in certain excepted 3 Gen. St. § 547; Palmer v. Palmer, 1 Root, 202; Scovel v. Smith, 1 Root, 300; Allen v. Vining, 1 Root, 313; Town of Lyme v. Town of East Haddam, 14 Conn. 399. (113) Adm. Off.— 8. § 47 ADMINISTRATIVE OFFICERS. [Ch. 3 cases, beyond the confines of the town in which he re- sides, because his authority in this particular is re- strained by statute."* The administration of tlie legal oath to a poor, imprisoned debtor is an act strictly min- isterial, and may be performed by a justice of the peace anywhere in the county in which he resides. Adjournment of Court to an Adjoining Town. If the suit be brought before a justice of the peace in an adjoining town, under circumstances mentioned in section 547 of the General Statutes, the justice of the peace may adjourn his court to the town where one of the parties resides, for the sake of the convenience of all concerned, although he is not obliged to do so. "As the plaintiff * * * may bring his action before a justice of the peace in an adjoining town [under the pro- visions of the statute above mentioned], it follows nec- essarily that the justice may try it there. The writ is returnable there, the incipient proceedings under it must be had there, and the justice cannot be compelled to go abroad to try the cause. But as a justice of the peace is a county officer, we see no objection to his adjourn- ing his court, if he please, that the cause may be tried in the town where one of the parties lives, if within the county for which the justice is appointed."^ Loss of Jurisdiction. As mentioned in the summary at the beginning of this chapter, should the justice of the peace fail to make ^Betts V. Dimon, 3 Conn. 107. 5 Town of Lyme v. Town of East Haddam, 14 Conn. 399; Humph- reville v. Perkins, 5 Day, 117. (114) Ch. 3] JUSTICES OP THE PEACE. § 47 proper entries in his docket, and the parties take no steps towards perfecting his record, allowing the case practically to lapse, he will lose jurisdiction, and will have no power or authority to give judgment or issue execution. In the case of Colt v. Eves" a summary process was dated on the 24th day of May, returnable on the 30th day of May. "After service nothing is heard of it ; it does not seem that the parties appeared ; that there was any court; on the return day all are silent, and the proceedings appear to be ended. And yet on the 30th of July following, without any new pro- cess. Justice Bennett issues his precept to the sheriff to call a jury to inquire as to a lease from Mix to Durand, notice to quit, and holding over, etc., and to meet on the 1st day of August. On the 2d day of August, to which the sheriff on his return says the cause was continued, the jury met and found a verdict for the plaintiff. Whether the parties or either of them were present, or whether any evidence was laid before the jury, nowhere appears; or whether even the justice was there does not appear except by the execution, nor is there any other ev- idence that a judgment was rendered by him. Upon a verdict so obtained the magistrate issues an execution, directing that not only Durand, but all other persons, are to be put out of possession of that property of which Mix claimed to be the owner on the 24th of May preced- ing. * * * Prom this brief statement it appears that on the 30th of July there was no complaint pend- ing before Justice Bennett. The return day of a former complaint had passed, and the complainant had suffered e Colt V. Eves, 12 Conn. 242. (115) § 47 ADMINISTRATIVE OFFICERS. [Ch. 3 it to sleep more than two months, and the county court might as well summon a jury to try the causes discon- tinued at the former term, as could this magistrate issue this venire; more especially as he did not summon in any party who was to be affected by it. Notice, to the party is an indispensable requisite, founded upon the principles of natural justice, as well as express stat- ute. * * * isfor is there any record that any judg- ment was rendered, even that the plaintiff should re- cover possession. We need go no further to declare these proceedings entirely irregular. The magistrate had no authority to issue an execution without com- plaint, without a hearing, and without a judgment. The party, then, who procured it, or acted under it, can- not be justified by it." Jurisdiction of Justice When not Re-elected. "When a justice shall not be re-elected, all processes, actions, and matters which have been begun by or brought before him before the expiration of his term of office may be proceeded with by him in the same man- ner as if he were still in office.'" In the case of Hoyt v. Guarnieri* the original writ was issued and dated on the 28th day of February, 1895, made returnable on the 16th day of March, 1895, before a justice of the peace whose term of office (he not hav- ing been re-elected) expired on the 4th day of March, 1895. The writ was duly served and returned to the justice before his term of office expired. Upon the re- 7 Gen. St. § 434. 8 Hoyt V. Guarnieri, 67 Conn. 590. (116) Cli. 3] JUSTICES OF THE PEACE. § 47 - turn day neither the defendant in that suit nor the gar- nishee appeared, and thereupon judgment was rendered in favor of the plaintiff. Execution was at once issued, and all necessary steps taken to fix the liability of the garnishee. On the refusal of the garnishee to pay, an action of scire facias was brought, and the principal question raised was whether the justice before whom the original suit was brought had jurisdiction under section 434 of the General Statutes to render judgment therein, and to issue execution after his term of office had expired. Torrance, J., in giving his opinion, stat- ed: "In effect, then, this statute provides that all ac- tions which shall have been brought before a justice of the peace — ^that is, which shall have been made return- able to him 'before the expiration of his term of office' may be proceeded with by him 'to final judgment and execution' in the same manner as if he had been re-elect- ed and continued in office. The court below seems to have held that an action was not 'brought before' or 'made returnable to' a justice for any purpose until the return day, but this, we think, is not so. For certain purposes, an action may be said to be 'pending before,' 'brought before,' or 'made returnable to' a justice [of the peace] prior to the return day. For instance, sec- tion 427 [section 674, Kevision of 1888] of the Gen- eral Statutes speaks of a case as 'pending' before a jus- tice [of the peace] for the purpose of trial by agreement of parties before the designated day of trial. Sec- tion 725 [section 679, Revision of 1888] speaks of such an action as 'pending' before the return day for the purpose of making a motion to have a jury summoned. * * * (117) § 48 ADMINISTRATIVE OFFICERS. [Ch. 3 We think the original action upon which this scire facias proceeding is based was, within the meaning of this statute, an action brought before the justice 'before the expiration of his term of office,' and therefore that he had jurisdiction to render judgment and to issue exe- cution as he did." § 48. Disqualification. "No justice of the peace shall act as such in any civil or criminal matter in which he or his son, father, broth- er, father-in-law, son-in-law, partner, clerk or student, or any other person occupying the same office, acts as attorney, or shall have drawn or filled up the writ, dec- laration, or complaint; and no person Avho is acting as attorney for or against any party shall at the same time act as justice of the peace in the trial of any action in which the same party is either plaintiff or defendant."" "When any justice of the peace shall be disqualified or unable or unwilling to try any civil action pending before him, the parties thereto may by agreement in- dorsed upon the writ, and signed by them or their attor- nej^s, designate any other justice of the peace of the town where either party resides to try it, and the justice so designated may try it and render judgment and issue execution; but if the parties cannot agree upon any other justice to try the said action, or in case the defendant makes default of appearance, then the justice before whom the action is pending shall, upon the application of the plaintiff, designate some other justice of the town where one of the parties resides, who is qualified, able, flGen. St. § 425, (118) Ch. 3] JUSTICES OP THE PEACE. § 48 and willing to act therein, and the justice so designated may try the said action, and render judgment and issue execution."^" Even in cases where the first section above quoted does not apply, and where, nexei-theless, for some rea- son which he may deem sufficient, the justice of the peace may have reason to consider himself disqualified, he should immediately notify the parties, stating all his reasons, and give the parties an opportunity to trans- fer the case to some other justice, or to waive the sup- posed disqualification. Many instances may he men- tioned where a justice of the peace may consider him- self disqualified, — /. e., if he has previously brought suit as attorney at law against one of the parties, or has, in some other litigation, been counsel for one of the parties, or knows the circumstances out of which liti- gation has arisen. It may be possible, and many times is usual, for the parties to waive such supposed disqual- ification, and agree to submit the matter to the justice for adjudication; but the justice will always protect himself by giving notice to the parties, and offering them the opportunity of requesting that the case be trans- ferred. The method of transfer is provided by the statute, and the justice to whom the case is transferred by the writ- ten agreement mentioned in the statute should enter the case on his docket with a minute to the effect that it has been so transferred, and a statement of the steps already taken by the previous justice. In the case of 10 Gen. St. § 426. (119) § 48 ADMINISTRATIVE OFFICERS. [Qh. 3 Dyer v. Smith" "tlie court instructed the jury that if the .defendant, when he issued the writ and rendered judgment, was the owner of the note on which the suit was brought, and, iinowing himself to he such owner, instituted the suit and rendered the judgment for the purpose of collecting his own debt, he was liable in this action for having caused the plaintiff to be arrested and committed to gaol. The law thus laid down by the court is founded upon the clearest principles of the common law and of natural justice. It would be a reproach to the law to allow a man to be a judge in his own case." The law concerning disqualification does not apply to ministerial acts of a justice of the peace. "The appoint- ment of freeholders by a justice of the peace to assess the damages sustained by the owner of land through which a highway is laid out by the selectmen is a min- isterial act, which may be performed by a justice who is interested as an inhabitant of the town liable to pay such damages."^^ In the case of Dodd v. Northrop^ ^ the defendant of- fered the deposition of one Polly A. Cox, to the admis- sion of which the plaintiff objected on the ground that it was taken before and drawn by William Park, a jus- tice of the peace, and then the law partner of a Mr. Knapp, who was at that time an attorney for the de- fendant in the present cause, and acting counsel for him on the trial. Carpenter, J., in rendering the opinion, stated: "The statute provides that 'the party, his at- torney, or any person interested shall not write, draw 11 Dyer v. Smith, 12 Conn. 391. 12 Crane v. Camp, 12 Conn. 464. 13 Dodd V. Northrop, 37 Conn. 216, (120) Ch. 3] JUSTICES OP THE PEACE. | 48 up, or dictate any deposition, etc' * * * The mag- istrate was the law partner of the defendant's counsel, and was himself counsel for the defendant in another case, so that the defendant was a client of each member of the firm. He was also employed to draw up the no- tice for taking the deposition. * * * If, upon these facts, he was not technically the attorney for the defend- ant, it is obvious enough that his sympathies and feelings were favorable to him, and we think the court was justi- fied in holding that he was not disinterested, within the meaning of the statute. It is not enough that the magis- trate acted fairly and impartially. He must be author- ized by the statute to take the deposition, or it cannot be used. No question of waiver was made in the court beloAv, and we have no occasion to consider it here." From this opinion it will be seen that every precaution should be taken by a justice of the peace to avoid even the imputation of interest. In the case of Town of New Hartford v. Town of Canaan,^* objection was taken to the admission of depo- sitions which were taken before a justice of the peace who was at that time a resident and tax payer of the defendant town. The statute provides that no judge or justice of the peace shall be disqualified to act in any proceeding in which any city, borough, or town is a party, or interested by reason of his being an inhab- itant thereof, or liable to taxation therein, or by rea- son of his being related to any tax payer or inhabitant thereof. Loomis, J., in giving the opinion, stated: "This language is so exceedingly broad, embracing in 14 Town of New Hartford v. Town of Canaan, 52 Conn. 158. (121) I 48 ADMINISTRATIVE OFFICERS. [Ch. 3 terms any act and any proceeding wherein the justice may be interested by reason of being an inhabitant and tax payer in the town that is a party, that we do not feel at liberty to accept the ideas of the plaintiff's counsel, and restrict its application exclusively to an actual trial in court before the interested magistrate, especially as the reason for any disqualification would apply with much more force to the judicial proceeding. If a magis- trate, owing to a remote interest as tax payer, cannot be safely trusted to perform the ministerial function of taking down in writing what a witness may say and subscribe to under oath, why should he be permitted to hear, weigh, and construe what all the witnesses may testify to on the trial, and decide the whole case both as to fact and law upon its merits? We think the court erred in rejecting the depositions on this ground." There can be no waiver of disqualification mentioned in the statute, except in writing. The waiver referred to above applies only to causes of supposed disqualifica- tion in the mind of the justice of the peace himself, and not covered by the statute. In the case of Keeler v. Stead," Beardsley, J., stated: "This is a writ of error from the judgment of a justice of the peace, appealed to this court from the court of common pleas. The plaintiff alleges in his complaint that the defendant in error, on the 6th day of October, 1886, recovered judg- ment against him in a civil action tried before a justice of the peace, and that such judg-ment is erroneous be- cause the plaintilf's attorney, who filled up and signed the writ in the action, then occupied the same office with 1= Keeler v. Stead, 56 Conn. 505. (122) Ch. 3] JUSTICES OF THE PEACE. § 48 the justice who rendered the judgment. The record of the proceedings before the justice is made a part of the complaint, by which it appears that the parties proceed- ed to trial before the justice ; the defendant, now plain- tiff in error, making no claim that the justice was dis- qualified to try and decide the cause. The defendant in error demurred to the complaint, and the court ren- dered judgment sustaining the demurrer. It is admit- ted' that the magistrate who filled up and signed the writ occupied the same office with the justice before whom the case was tried. Was the justice thereby disqualified, and, if so, did the defendant, now plaintiff in error, waive the disqualification, in legal effect, by proceeding to trial before him? * * * yye conclude that the justice was disqualified to act in the case in question. This being so, the judgment rendered by him was void unless the plaintiff in error, in legal effect, waived the disqualification. The defendant claims that he did so by proceeding to trial, presumably with knowledge of the disqualification of the justice, as he has not alleged or proved that he was ignorant of it. But as the justice was disqualified to act in the case, his action could have no legal validity or effect. Although it is a case of want of power to act, and not strictly one of want of juris- diction, yet the i^esult in both cases must be the same, — the judgment must be void. And as, in the case of Avant of jurisdiction, there can be no waiver of the defect, and jurisdiction cannot be conferred even by the agreement of the parties, so, here, a waiver can have no effect, and an agreement of the parties could have none if it were not for a statute expressly providing for that mode of (123) § 49 ADMINISTRATIVE OFFICERS. [Ch. 3 removing the disqualification. That statute provides that, 'when any justice of the peace shall be disqualified to act in any proceeding before him, he may act by con- sent of the parties in writing given thereto in court.'^^ This mode, having been thus provided for, must be fol- lowed if the parties desire to remove the disqualification ; while a mere waiver of all objection to the disqualifica- tion, by the conduct of one of the parties, or in any other mode, can have no effect whatever. * * * Judg- ment of the court of common pleas was erroneous, and is reversed." § 49. Kecord. As mentioned in the first portion of this chapter, the records of a justice of the peace must be kept with great care. While not in the strict sense a court of record, still the history of the case as made up by the justice of the peace is final, and cannot be collaterally attacked. The records of a justice cannot be amended after the session of the court is over unless there are some min- utes in writing, made by the justice at the day and time, by reference to which the amendment may be made.^^ In the case of Nichols v. Heacock^^ a motion was made in the appellate court "that the justice might have lib- erty to amend his record and set it right by inserting that he ordered the defendants to answer over, and that, they failing to make further answer, he proceeded and gave judgment." By the court : "This would be mak- 16 Gen. St. § 498 (section 676, Revision of 1888). 17 Foot V. Cady, 1 Root, 173. 18 Nichols V. Heacocls;, 1 Root, 286. (124) Ch. 3] JUSTICES OP THE PEACE. § 49 ing a new record, and cannot be done unless the justice lias some minutes to amend by. The records of a court, for the best of reasons, are held to be of such uncon- trollable verity that they can be proved only by them- selves, and no averments against them are admissible; and it would destroy that credit which the law gives to the records of courts if the judges, after the term is over, might alter and amend them upon their memo- ries." "In the absence of a formal record, the files and min- utes of a justice of the peace in any action heard and determined by him shall be admissible as evidence in all actions brought on such judgment after his decease or removal from the state. "^® In the old case of Wales v. Smith, reported in a note in 13 Conn. 216, Chief Justice Hosmer, speaking of a memorandum made by the justice while alive upon the writ as follows: "Defaulted — Writ, etc., 1.50; service, 1.30; attendance, .25;— 3.30. Debt 34.41,— 37.71. Exe- cution granted same day," said: "Now the memoran- dum offered was no record in form, substance, or inten- tion. It was an imperfect hint, made by the justice for his own use, to be added to and extended by his recollec- tion. The record of a judgment on default contains the time when the cause was defaulted; but the memoran- dum offered contains no time. The record menTions the court and the place; but this memorandum is silent as to both. It [the record] comprises the facts consti- tuting the default, as that the defendant was called and failed to appear ; but this memorandum contains no such 19 Gen. St. § 433. (125) § 49 ADMINISTRATIVE OFFICERS. [Ch. 3 fact. It closes with the conclusion of law, which essen- tially is the judgment; but this memorandum has no legal conclusion." In the case of Davidson v. Murphy,^" Chief Justice T\'illiams, in commenting on the proper requisites of a record, makes the following summary : "A record in judicial proceedings is a precise history of the suit from its commencement to its termination, including the con- clusion of law thereon, drawn up by the proper officer for the purpose of perpetuating the exact state of facts." The minutes from which it was sought to prove a rec- ord in this case were in the handwriting of the justice as follows: "Court fees paid by Eobert Osborn; plea, general issue, non-assumpsit and issue; continued 26th September, 1836 ; damages, |5.75," — with the statement of the costs, and also an execution in the usual form for the same amount of damages and costs. These minutes were held to be insufficient to prove a record. In the case of O'Connell v. Hotchkiss^^ the record was made upon the original writ. The suit was scire facias against the defendant as garnishee. Judge 'Pardee, in discussing the judgment on which the scire facias was brought, said : "It opens with a statement of the names of the parties whose cause is to be determined. As a justice of the peace has no clerk, his official attesting signature at the end is equivalent to a declaration at the opening that it is the court of a justice, and that the signer is the magistrate who holds it. It states the time of holding the court ; the appearance of the parties ; the 20 Davidson v. Murphy, 13 Conn. 217. 21 O'Connell v. Hotchldss, 44 Conn. 51. (126) Ch. 3] JUSTICES OF THE PEACE. § 49 adjournment to a day certain; the appearance of both parties upon that day; that a plea in abatement was overruled ; that, by the agreement of both parties, there was a second adjournment to a day and hour certain; that the court then sat, the plaintiffs being present; that the defendant Briggs and the garnishee made de- fault of appearance, after having been three times pub- licly called; that the court then rendered a judgment against Briggs upon default for |40.28, principal of debt, 11.23 interest, and |9.58 costs, ordered execution to issue therefor, and adjourned. The court then gave his official attestation to the whole. Judge Hosmer^^ required of a record that it should state the time when the cause was defaulted, the court, that the defendant was called, and failed to appear, and the conclusion of law, — that is, the judgment. All these we have in the writing offered. He required, in addition, the place where the court sat ; but this loses its importance in the present case, inasmuch as the judgment was rendered at a continuance agreed upon by the parties, which in- cludes place as well as time, and we have a right to presume in favor of the court a session in a legal place. The history is full, and proceeds step by step, in due order of events, from the return day to the legal con- clusion. » * * Having all the legal requisites, coupled with the official declaration of the magistrate that he made it and allowed it to stand as a record, and that it is a record with his formal attestation, and not a mere memorandum, we find no occasion for saying that it is not a sufficient record." 22 Wales V. Smith, 13 Conn. 216. (127) § 49 ADMINISTRATIVE OFFICERS. [Ch. 3 The minutes from which the record of a judgment rendered by a justice of the peace may be proved after his decease or removal from the state, in accordance with the terms of section 433, Gen. St., need not be full and complete. It is only necessary that enough ap- pears in the minutes to constitute a valid judgment. In the case of West v. Hayes,^* which was an action on a judgment rendered by a justice of the peace who was dead, and who had died without making a formal record of his judgment, the plaintiff offered in evi- dence a writ in his favor against the defendant, dated May 12, 1869, returnable on the 29th, which appeared to have been duly served. Attached to the writ was an account, in the handwriting of the plaintiff's clerk, against the defendant for flOO. This writ was found among the papers of the justice of the peace. The plaintiff also introduced an execution, — where found does not appear, — signed by the justice, dated May 31, 1869, for the sum of |100 damages, |4.01 costs, which described the judgment as having been rendered on said 31st day of May. It did not appear that any other writ was ever issued in favor of the plaintiff against the defendant before the bringing of this action. The court below held that this was not legal evidence of the judgment. Eef erring to the statute, the court said: "It is a remedial statute, and should be so construed as to advance the remedy and suppress all the mischief within its letter and spirit. * * * We think the statute does not require that the minutes should be technically full and accurate; that it intended to dis- ss West V. Hayes, 51 Conn. 540. (128) Ch. 3] JUSTICES OP THE PEACE. g 49 pense with record proof, and open such cases to proof of an inferior character. To give effect to such evi- dence and carry out the intention of the legislature, we must hold that, if the evidence satisfies the trier that a judgment of a certain amount was actually rendered, and that fact is found, it will be followed by the same legal consequences that follow a judgment proved by a record. Ordinarily the minutes note the adjourn- ments, the appearance of the parties, default or non- suit, as the case may be, the decision, damages and costs. In this case there are no entries of minutes on the file. What is known is gathered from the files, in- cluding the execution. From them we have all the ele- ments of a valid judgment, — the parties, the decision, the amount, damages and costs, and the date. Some incidental circumstances appear only by inference or intendment, — the appearance of the parties, and wheth- er judgment was rendered upon default or after trial. * * * It [the statute] clearly authorizes the judg- ment to be proved by other evidence than the produc- tion of the record. If so, it is reasonable to presume that it contemplates that some incidental and minor circumstances, which ordinarily appear of record, may be supplied by intendment or by way of inference from the facts disclosed by the files and minutes. The mat- ter of adjournment may well be regarded as of this class. The files produced furnish strong evidence that the judgment rendered on the 31st of May was ren- dered on the writ returned on the 29th." A finding by the justice in the record that the par- ties were duly notified to appear at a specified time, (129) Adm. Off.— 9. § 49 ADMINISTRATIVE OFFICERS. [(Jh. 3 according to law, cannot be attacked in subsequent pro- ceedings by writ of err(jr. "The finding of the justice that the parties were duly notified is conclusive evi- dence of its truth. * » * The fact of notice hav- ing been adjudicated must be taken to be true without referring to the evidence upon which the adjudication was predicated. The justice, by his record, says the parties were duly notified, by which is meant that they were notified in the manner prescribed by law."^* In the case last cited. Church, J., stated in the opin- ion : "We think that a court of record, proceeding ac- cording to the common law of the land, and whose judg- ments may be revised by writ of error, is a court whose proceedings and judgments import verity, and, until reversed, will protect all who obey them; and in this respect there is, in this state, no distinction between courts of justices of the peace and the county and su- perior courts. * * * Between all these courts and mere special tribunals, such as commissioners on in- solvent estates, committees, military tribune,.., and many others which are not courts of record, and are es- tablished for some special and perhaps temporary pur- pose, there exists a very marked distinction in regard to the credit and sanction to which their proceedings are entitled, and the immunities which may be claimed by themselves and such as act under them." A distinction must be drawn between what is prop- erly a part of the record and what is not a part of such record. "Neither the original nor any intermediate process, nor the indorsement or attestation of service, 24 Fox V. Hoyt, 12 Conn. 491, at star page 496. (130) Ch. 3] JUSTICES OF THE PEACE. § 49 constitutes in trutli any part of the record of the court in any sense in which records are understood to import verity. They prove nothing more than their own ex- istence, except so far as the facts stated in them are established by the finding of the court, either directly or by reference to them. Even the officer's return of service affords only prima facie evidence of the facts therein stated."^*'^ Justice Park, in discussing the record of a justice of the peace, and the power of the appellate court to force him to change it for mistake made by him in perfect- ing it, in the case of Smith v. Moore,^^ stated: "A jus- tice of the peace is a judicial and ministerial officer. He performs judicial duty in the trial of causes, and ministerial duty in recording his judgments. He is both judge and clerk of his courts. His duties as re- cording officer are similar in every respect to those per- formed by the clerks of the higher courts. The only difference in the cases consists in the sources of knowl- edge that they have of ,the judgments that have been rendered, which they are required to record. The one has primitive, and the other derivative, knowledge. The one knows because he was judge, while the others rely upon information derived from the judge, or upon the correctness of their understanding what the judg- ment was, in hearing it pronounced. But difference in the sources of knowledge in this repect makes no dif- ference in the character of the duties they perform. They all are merely recording officers, and should be 24a Fox V. Hoyt, 12 Conn. 491, at star page 498. 25 Smith V. Moore, 38 Conn. 105, at page 109. (131) § 49 ADMINISTRATIVE OFFICERS. [Ch. 3 subject to similar rules. Now, it is well known that the superior court corrects its records when the clerk, through inadvertence, has made a mistake. * * * It seems to us that the same principle applies to a jus- tice of the peace acting in the capacity of a clerk of his court. Should he refuse to make a record of a judg- ment rendered by him, or give a copy of a record when properly demanded, and his fees tendered, mandamus would lie at the instance of the party aggrieved to com- pel him to make the record in the one case, or give a copy of it in the other. This is not denied; bvit the claim is that the justice has the right to determine absolutely whether the record that he sees fit to make in the one case, or the copy of a record that he sees fit to give in the other, is correct, and the Superior Court has no right to review that question. The claim is that a record, or a certified copy of a record, imports verity, and a review of the question by the Superior Court would infringe this principle. This claim would apply with equal force to the correction of the records of towns, or of the Superior Court, but the cases cited have determined otherwise. It is true they import verity, and the reason why it is found necessary to correct them when they do not state the truth, arises from this fact. Deeds and other instruments in writing import verity, and cannot be attacked collaterally; but still it is every day's business to correct them when they are erroneous. Again, it is said that the act of a justice [of the peace] in making a record is a judicial act, and therefore man- da7nus will not lie to control his discretion. * * * It is manifest that the act partakes no more of a judicial (132) Ch. 3] JUSTICES OF THE PEACE. § 49 character than does the act of the clerk of a town or of the Superior Court in performing similar service. The record is made after the judgment has been rendered, and it sometimes happens that a considerable period of time intervenes before this duty is performed." In this case a mandamus was advised to compel the respondent, a justice of the peace, to make a true record of a judgment rendered by him, and to furnish the peti- tioner a copy, the petitioner claiming that the respondent had rendered a judgment in his favor when the petitioner was defendant in an action of trespass. The only rec- ord furnished by the respondent showed that the plain- tiff in the trespass case was nonsuited. The records of a justice of the peace cannot be attacked collaterally, but may be corrected by a proper applica- tion to the appellate court for a mandamus, supported by proof of facts showing that the record should be perfect- ed. "It is true that judicial records import verity, but mistake is possible in every human transaction. There- fore, by proper proceedings, and upon satisfactory evi- dence, judicial records are corrected that they may im- port verity, and, in a case where a court upon the evi- dence would properly have ordered a correction, it may recognize one voluntarily made by the justice of the peace whose record it is."^® Perfection of Records by a Former Justice. "Any former justice of the peace who may have been removed from office for other cause than a conviction of crime may perfect his records from the files as occasion 26 Rowe V. Smith, 51 Conn. 276. (133) § 49 ADMINISTRATIVE OFFICERS. [Ch. 3 may require, and give certified copies therefor which shall be legal evidence."^^ This statute applies equally to justices of the peace who have not been re-elected to office, and the record may be perfected at any place, whether within or without this state.^^ Records of Ministerial Duties. When a justice of the peace signs a writ containing a recognizance or bond to prosecute, he does not thereby make a "record," in the strict sense of the record of the proceedings in an action returnable before him. Such a certificate or bond should be received in evidence, as was stated in the case of Gregory v. Sherman.^® "It is quite clear that in a certain sense, and for some purposes, the certificate under consideration is a record. * * * In this it is not intended to assert that it is a record, in the highest sense, as when we say of a record that it imports absolute verity. It is not the record of a judgment, not being the result or conclusion of a judicial proceeding; * * * so that if, in any sense, this may be regarded as a judicial record, it does not follow that the party whose name appears in it as an obligor is precluded from show- ing that he never authorized it, and consequently that the act of the justice was void. But the act was not judicial. * * * In no sense can it be said that the magistrate was administering justice to the parties un- der the forms of law; therefore he was not acting as judge. It has been decided in this state that justices of the peace act in a ministerial capacity in the following 27 Gen. St. § 429. 28 Hawley v. Middlebrook, 28 Conn. 532. 20 Gregory v. Sherman, 44 Conn. 466, at page 471. (134) Ch. 3] JUSTICES OF THE PEACE. § 50 cases : In appointing appraisers to appraise land set off on execution; in the administration of a legal oath to a poor imprisoned debtor; in issuing warrants for the re- moval of paupers ; in appointing freeholders to assess the damages sustained by the owners of land through which a highway is laid out. We think that the act now under consideration is of the same nature and character, and that magistrates, in taking bonds on issuing writs, act purely in a ministerial capacity. This certificate, there- fore, is the record of a ministerial act, and, like an offi- cer's return, is prima facie evidence of the facts therein stated, but is not conclusive." § 50. Default. The greatest particularity must be observed by a jus- tice of the peace in entering tip judgment by default. From a judgment by default there is no appeal,^" and the party aggrieved thereby must bring a writ of error to the appellate court in order to have his case properly entered on the docket. A writ of error will only lie in certain cases. In most instances a writ of error is based on the action of the justice of the peace in improperly granting the default. If the justice of the peace has any reason to believe that the defendant has not been notified or given an op- portunity to be heard, he should continue the case, and give notice himself in writing, preserving a copy of such notice. If the defendant is a non-resident, and makes no appearance on the return day, the justice must con- tinue the case for three months, in accordance with the so Smith V. French, 46 Conn. 239. (135) g 50 ADMINISTRATIVE OFFICERS. [Ch. 3 terms of the statute providing for continuances in the case of non-resident defendants. Should judgment be rendered by default by the justice against such non-resi- dent on the return day, a writ of error will lie in favor of the defendant.^^ By the time-honored custom, which has almost at- tained the strength of a legislative enactment, the de- fendant is allowed the full return hour for his appear- ance. For instance, if the case is returnable at 9 o'clock in the morning, and there is no appearance for the de- fendant, the justice must not grant judgment by default until at least 10 o'clock. The decisions of our supreme court of errors have recog-nized the validity of this cus- tom, but have insisted that the justices of the peace must use a certain amount of discretion, and that the exact pe- riod of one hour is not inflexible. It has been held that the justice of the peace must wait a reasonable time after the return hour before granting a default. The dura- tion of this reasonable time will depend entirely upon the circumstances of each case. In the case of Burgess v. Tweedy^^ the case was return- able on August 7th at 9 o'clock in the morning. The de- fendant (plaintiff in error) Avas present in court from 9 until 10, the justice not being then in his office, where the case was made returnable. At 10 o'clock the defend- ant left the court room. Shortly afterwards the justice returned and continued the case until the 14th of August, and did not notify the defendant of this continuance. On the 14th, judgment was rendered by default against 31 Potter V. Sanborn, 49 Conn. 452. 32 Burgess v. Tweedy, 16 Conn. 40. (13G) Ch. 3] JUSTICES OP THE PEACE. | 50 the defendant for |10 damages and costs. The defend- ant thereupon took out a writ of error, alleging that he was aggrieved bj the judgment of the justice of the peace, of which he had no notice, actual or legal. The defendants in error (plaintiffs below) alleged that the error assigned was on the face of the record, and directly impeached it. Chief Justice Williams, in rendering the opinion, said : "It has been common, from an early pe- riod, in writs returnable before a justice, that the hour should be fixed for trial. In accordance with this prac- tice, the forms given in the statute are framed for a cer- tain hour. Were it otherwise, a party might come at an early hour and be detained to the last of the day for a hearing, without knowing whether he should ever meet an adversary. * * * It has been a common, if not an universal, practice to wait until the expiration of the hour specified in the writ; and it has not been usual to wait longer, unless a reasonable excuse was shown for further indulgence. This practice we think highly reasonable and proper. * * * It may be asked, is this rule to be inflexible? Shall the defendant have a right to demand his dismission at the moment the hour has passed, when he has good reason to believe the other party, or the mag- istrate, is at hand? Shall he be permitted to pass them at the door because the clock may have struck? We think not. Nor, on the other hand, shall a defendant come with his witnesses from a distance at the call of his ad- versary, and be obliged to wait as if no hour was named, and thus be deprived of all the advantages which were in- tended by fixing a precise time. Both evils should be avoided ; and while the general rule should be that, from the hour named to the succeeding hour, no proceedings (137) § 50 ADMINISTRATIVE OFFICERS. [Ch. 3 ought to be had, unless all parties were present, yet cir- cumstances may occur which would authorize the magis- trate, in the exercise of a reasonable discretion, to vary from it. * * * ]^o better or safer rule, then, can be adopted than that no judgment can be rendered against a party who has appeared in time in a justice's court, ex- cept at the hour set, or in a reasonable time thereafter. What is a reasonable time will be, as in all other cases, a question depending upon circumstances, and governed by a sound discretion. * * * Here the plaintiff in error appeared at the hour he was summoned to appear, and awaited until after its expiration. Neither the mag- istrate nor the other party appeared, nor was any expla- nation given which required his further attendance. If he might not then depart, it would be difficult to say that he must not continue during the day. Having obeyed the summons, having waited the hour, and having no rea- son to believe there was an intention to pursue the claim, we cannot hesitate in saying he had a right to depart. If the justice was necessarily delayed, it was proper and right that notice should have been given of the fact to the parties, or, if the circumstances were of such a character that immediate notice could not be given, such notice ought to have been given before a judgment should have been rendered by default. * * * An adjournment without knowledge brought home to the parties is a vio- lation of a principle which this court must ever regard, — that the right of a party in court shall not be taken away without notice." It was held that the default was irregularly entered. As an application of the principle that this rule con- cerning the return hour is not inflexible, the case of Nu- (138) Ch. 3] JUSTICES OF THE PEACE. § 50 gent V. Wrinn^^ is pertinent. Terrence Wrinn brought an action of assumpsit against Bridget Nugent, return- able before a justice of the peace in the town of South- ington, Avhich, by proper adjournment, was set down for trial at 9 o'clock in the forenoon of July 31, 1875. On that day the justice, the plaintiff, and his counsel were at the appointed hour and place, and remained until ten . minutes after 10 o'clock, as indicated by the watch of the latter, when, the defendant not appearing, she was three times publicly called and defaulted. The justice then left the court room, crossed the street to the office of the plaintiff's counsel, and signed a record of the judgment which had been written upon the file. The de- fendant entered the court room just after the departure of the justice. She went immediately to the office where the justice then was, entering before the conclusion of the record, bringing a demurrer which had been drawn for her by her counsel on the previous day, and asked to be allowed to file it and appeal the case, claiming that her house was only two minutes' walk from the court room, and, when she left her home, the clock indicated 9 o'clock and 54 minutes. It was found that she reached the office when the court was making up the record, at about 20 minutes past 10 o'clock. The plaintiff objected to her motion, and the justice rejected it and entered up judgment against her. A writ of error Avas brought. Pardee, J., stated : "By an unwritten law, which, under long-continued usage, has acquired the strength of a leg- islative enactment, one hour of grace is the privilege of parties in the matter of appearing to answer to actions in 33 Nugent V. Wrinn, 44 Conn. 273. (139) § 51 ADMINISTRATIVE OFFICERS. [Ch, 3 the courts of justices of the peace. We do not design either to extend or curtail this right, but different time pieces will always vai-y in marking minutes, and no ab- solutely fixed and unvarying rule can be laid down by Avhich the magistrate is to be governed in the matter of adjourning his court. As a practical matter, however, it is to be remembered that courts and forms exist for men, and not men for these, and that it is better that the door of justice should stand open one minute beyond, than that it should be closed oneminute within, the hour. * * * Presumably this defendant intended to appear to protect her rights; she had made all necessary legal preparations upon the previous day, and she has given evidence of her earnestness in contesting the plaintiff's claim upon its merits. When she appeared, the justice and the parties were within one minute's walk of the court room; another minute would have sufficed to re- ceive the demurrer and grant the appeal. It is not found or suggested, even, that any inconvenience would have resulted either to court, party, or witness. * * * As the appearance of the defendant followed so closely upon the default, and as we prefer to hear, rather than deny, a hearing, we are inclined to say that there is error in the judgment of the court below confirming the refusal of the justice to receive the plea and grant the appeal." S 51. Power of the Justice Concerning Interlocutory Orders. Neither in the statutes nor in the decisions of the Su- preme Court of Errors can be found any rules of practice which give justices of the peace any power to pass the orders which are ordinarily granted by courts of record concerning pleadings. There is, however, in the case of (140) Ch. 3] JUSTICES OF THE PEACE. | 51 Fox V. Hoyt,** the following statement in the opinion of the court : "The justice, therefore, having before him a cause as it appeared from the face of the process and proceedings of which he had jurisdiction, had, as a mat- ter of course, jurisdiction over all interlocutory acts legally necessary to a final judgment." The statute provides that no judgment can be rendered by default or otherwise until a bill of particulars, if such be necessary from the nature of the complaint, has been filed. If an appearance is entered for the defendant, and the case continued for the usual period of one week, the defendant should file his answer in plenty of time for the plaintiff to reply, if necessary, before the day fixed for the trial. If the answer is not filed until the day to which the case has been continued, and on which the par- ties intend to have the trial, and new matters are set up in the answer, to which the plaintiff desires time to re- ply, the justice should grant another continuance, even though the defendant is present in court with his wit- nesses, ready to proceed to trial. It is the defendant's own fault if he is inconvenienced thereby, because he should have filed his answer in time to give the plaintiff an opportunity to close the pleadings before the day of trial. The plaintiff may desire to demur to the answer, thus raising the question of law, which must be disposed of by a justice of the peace before the case can be tried on the facts. There is no method by which the justice of the peace can force parties to file pleadings, except by the two methods of continuance and default. If a justice has »*Fox V. Hoyt, 12 Conn. 491. (141) § 52 ADMINISTRATIVE OFFICERS. [Ch. 3 given due notice to file a pleading on a certain day, and on the day to which the case has heen continued such pleading has not been filed, the justice may enter up judg- ment by default, from which there can be no appeal, and it is very doubtful whether the appellate court would re- verse such judgment by writ of error, providing that the justice of the peace has in his record set forth with exact- ness the steps taken by him before rendering his judg- ment, due notice having been given to all parties. The cases cited under the head "Default" in this chap- ter show that the appellate court will scrutinize a judg- ment by default on writ of error, and therefore the jus- tice of the peace should only enter up such judgment by default for failure to file the pleadings in extreme cases. For ordinary cases the continuance would be sufficient. § 52. Jury Trial. "When any action is pending before a justice of the peace in which the matter in demand exceeds twenty dol- lars in amount of value, a jury of six shall be summoned to try the same on motion of either party made either before the return day, in which case it must be supported by filing a written statement, signed by the adverse party or his attorney, that an issue of fact will be joined, or after an issue of fact has been joined ; providing the party moving for a jury shall enter into a recognizance in such sum as the court shall order, conditioned for the payment of all costs in case final judgment is rendered against him."35 The principal and surety on the recognizance should snren. St. § 725. Ch. 3] JUSTICES OF THE PEACE. R 52 personally appear before the justice and acknowledge themselves jointly and severally bound to the opposite party in a reasonable sum (|25 being ordinarily consid- ered as sufficient) that the party moving for the jury will pay the costs in case final judgment is rendered against him. A recognizance should be drawn up and signed by the justice, and placed among the papers in the case, proper entries being made on his docket of the names of principal and surety, and the amount and date of the recognizance. The rect/gnizance may be in the following form : You, Richard Roe, of New Haven, as principal, and you, Thomas Stiles, of New Haven, as surety, acknowledge yourselves jointly and severally bound unto John Doe, of New Haven, in the sum of twentyflve dollars ($25), conditioned that the said Richard Roe (who has moved for a jury in the case now pending before the undersigned, justice of the peace, in which the said John Doe is plaintiff and Richard Roe Is defendant) will pay the costs to the said John Doe in case final judgment is rendered against him, said Richard Roe. John Smith, Justice of the Peace. "After the motion has been filed and the bond given, the justice of the peace must issue a warrant directed to some proper officer, and commanding him to summon six qualified jurors to appear before such justice of the peace at a certain time and place for jury duty."^® This warrant may be in the following form : John Doe "l Richard Roe. J To P. H. Brethauer, Esq., Town Clerk of the Town of New Haven: 36 Gen. St. § 669. (143) c 52 ADMINISTRATIVE OFFICERS. [Ch. 3 By authority of the state of Connecticut, you are hereby directed to draw six qualified jurors from the jury box of the town of New Haven, in the presence of a constable of said town, or other proper officer. Hereof fail not, but due return make. . Dated at New Haven this day of , 19 — • John Smith, Justice of the Peace. The constable should then take this warrant to the town clerk, and be present when the names are drawn by the town clerk from the jury box. The town clerk will then make out his certificate in the following form : State of Connecticut,"] Iss.: New Haven, day of ,19 — . County of New Haven.) To Whom It May Concern: This is to certify that the following named jurors v/ere drawn by order of John Smith, justice of the peace, in the presence of the town constable, Thomas Robinson. [Then follow the names, numbered from one to six.] [Signed] , Town Clerk. A summons in the following form must then be issued by the justice of the peace : John Doe V. Richard Roe. To Either Constable of the Town of New Haven, Greeting: By authority of the state of Connecticut you are hereby command- ed to summon and notify the six jurors drawn by the town clerk of the said town of New Haven, according to the within direction, to appear before John Smith, Esq., justice of the peace for the county of New Haven, at his office in said town of New Haven on the day of , 19 — , at o'clock in the noon, for Ch. 3] JUSTICES OF THE PEACE. § 52 juiy duty in the above-entitled cause, and ' that they fail not, in penalty of law. Hereof fail not, but due return make. Dated at New Haven this day of , 19 — . John Smith, Justice of the Peace. As a general rule, these three documents can be bound up together, signed by the proper officer in each case, and the return of the constable serving the same placed at the end. The town clerk may desire to have a dupli- cate of the direction, signed by the justice of the peace, to preserve among his records. The constable, after securing the summons, should then serve the same on the six jurors drawn by the town clerk from the jury box. If the officer should fail to make timely return of the service of the jury warrant, with an indorsement certifying whom he has summoned as jurors, he is liable to a fine not exceeding five dol- lars.^'' "Every juror duly chosen, drawn, and summoned, who shall fail to appear, shall be fined five dollars, un- less excused by the court or justice from payment thereof."38 On the day fixed for the trial, if the requisite number of jurors who have been summoned do not appear, the justice of the peace may order such number of judicious electors summoned as may be necessary as talesmen; and any talesman so summoned, who shall make default of appearance without sufficient cause, shall be fined five dollars.^* 37 Gen. St. § 670. 38 Gen. St. § 671. 39 Gen. St. § 670. (145) Adm. Off.— 10. § 52 ADMINISTRATIVE OFFICERS. [Ch. 3 It is customary for the constable to be present at the time of opening the court, and if, within a reasonable time, a sufficient number of jurors do not appear, for the justice to instruct him to immediately summon tales- men. As soon as the six jurors have been secured, either plaintiff or defendant may peremptorily challenge one juror, and the jurors may be examined, if desired, to_ show interest, bias, or other disqualification for service in this case. Should the requisite number of jurors be reduced by such challenge, or should the justice of the peace excuse any jurors for good and sufficient reasons, talesmen should be summoned by the constable to fill their places. When six men have finally been chosen, the oath should be administered to the jurors, and the trial of the case begun. In his charge to the jurors the justice of the peace should be brief and concise in his statements of the law. The simpler the charge, the better. As was said in the case of Miller v. Lampson :*" "While it is the duty of a court, without specific request, to give a jury such instructions as are not only correct, but adapted to the issue before them, it is hardly in the interests of justice to apply that principle with inflex- ible rigor to the charge of a justice of the peace to a jury, in an action of summary process, in relation to a minor point in the case, not embraced in the main con- troversy, and not suggested in the claims of able coun- sel." George E. Beers' edition of Stephens' Digest of the Law of Evidence and Reynolds on Evidence are two io Miller v. Lampson, 66 Conn. 440. (146) Ch. 3] JUSTICES OF THE PEACE. § 53 books which will be found very useful to the justice of the peace, both in ruling on points of evidence during the trial of a cause, and also in making his charge to the jury. After the charge, the jury must retire to another room to consider the case, and, after proper deliberation, bring in a verdict either for the plaintiff or the defend- ant, — if for the plaintiff, for the amount of damages, the costs being taxed by the justice of the peace subsequent- ly. By a long-established practice it is customary for the plaintiff to pay the jurors at the termination of the case, the fee being one dollar for each juror for each day's trial ; the bond given by the moving party — in most cases the defendant — being considered sufficient protection to the plaintiff. The amount paid can, of course, be taxed up as a part of the costs, together with the town clerk's and officer's fees for drawing the jurors from the box, and serving the warrant. § 53. Pleading. Actions for equitable relief may not be brought before a justice of the peace, and equitable defenses may not be set up ; but in civil actions appealed from the justice of the peace, either party may, during the first term of the appellate court, amend his pleadings by introducing any equitable right, cause of action, defense, set-off, or counterclaim, as the case may be, and the same shall be considered in determining the appeal, subject, how- ever, to the rules as to joinder of causes of action pre- scribed in section 613.*^ 41 Gen. St. § 640. See, also, Lowndes v. Wicks, 69 Conn. 15. (147) I 54 ADMINISTRATIVE OFFICERS. [Ch. 3 § 54. Holding Other Office. Section 1883 of the General Statutes provides tliat the office of constable shall not be held by a justice of the peace. In the case of Magie v. Stoddard*^ it was stated by Hinman, J. : "The defendant in this case pleads in abatement that the officer who undertook to serve the writ as a constable of New Haven had a few months previous to his election, as such constable, been duly elected and qualified as a justice of the peace, and on this ground it is claimed that he could not by law hold the office of constable, and therefore his attempted serv- ice of the writ is no service, and the same should abate and be dismissed. The replication sets up the attempts of the officer to resign his office of justice of the peace in various ways before he was qualified as a constable, but it is hardly necessary to discuss the question whether he really succeeded in divesting himself of his judicial functions in any of the modes in which he attempted to do so, or whether he had a constitutional right to hold the office of constable, even if he was unsuccessful in attempting to resign; because, assuming that the stat- ute which provides that no judge or justice of the peace shall hold the office of sheriff or constable is a valid act under the constitution, or that the two offices are so incompatible that the same person cannot at the same time hold both of them, which amounts to about the same thing, we still think that the acceptance of the office of constable would of itself be a surrender of the office of justice of the peace." « Magie v. Stoddard, 25 Conn. 567. (148) Ch. 3] JUSTICES OF THE PEACE. g 55 § 55. Bastardy. Section 969 of the General Statutes provides that any woman pregnant with, or who has been delivered of, a bastard child, may complain on oath to a justice of the peace in the town where she dwells against the person she charges with being the father of such child, and such justice of the peace shall thereupon issue a war- rant, and cause such person to be brought before him or other proper authority. The complaint must be veri- fied by affidavit of the mother. On presentation of the complaint to the justice of the peace, he will issue a warrant in the following form : To the Sheriff of the County of New Haven, His Deputy, or Either Constahle of the Town of New Haven Within Said County, Greeting: By authority of the state of Connecticut you are hereby command- ed to arrest the body of the above-named John Doe, and him have forthwith before me, John Smith, justice of the peace for the county of New Haven, at my office, in the town of New Haven, or before some other justice of the peace in said county, that he may answer to the foregoing complaint of Jane Stiles, and be thereon dealt with as is directed in the statute in such case made and provided. Hereof fail not, but of this warrant, with your doings thereon, make due service and return. Thomas Robinson is recognized in the sum of $10 to prosecute. Dated at New Haven this day of- , 19 — . John Smith, Justice of the Peace. The officer takes this warrant and serves it upon the defendant by reading the same in his hearing, and brings him forthwith before the justice of the peace, and makes the following return on the warrant : New Haven County, ss.: Town of New Haven, day of . 19—. Then and there I read the within warrant in the presence and (149) § 55 ADMINISTRATIVE OFFICERS. |[Ch. 3 hearing of said John Doe, and then and there I arrested the body of the within-named John Doe, and him have in court before John Smith, esq.uire, justice of the peace, for examination. Samuel Jones, Deputy Sheriff (or Constable). It is customary to have the examination as soon as possible after the return day. If there is a continuance, it should be entered up on the docket in proper form by the justice of the peace. If a bond was given by the de- fendant at the time of his arrest to appear on the return day, the justice of the peace may require the defendant, in case of continuance or adjournment, to enter into recognizance for his future appearance,*^'' and the recog- nizance may require him not only to appear, but to abide the judgment of the court. "The condition to abide the judgment of the court is not satisfied by a mere appearance of the defendant at the adjourned court, but he must appear at the times fixed by future adjournments, and whenever required by the court."** If the defendant can not furnish a bond or recognizance on continuance, the justice of the peace may commit him to jail. On day to which the case has been con- tinued, the justice may issue a capias to bring the de- fendant before him for trial.** In the case of ToAvn of New Haven v. Rogers*^ the case was adjourned by the justice from the 20th to the 27th of October, 1860, and thence, by agreement of the parties, from day to day until the 21st of September, 42a Town of New Haven v. Rogers, 32 Conn. 221. 43 Town of New Haven v. Rogers, 32 Conn. 221. ** See form for mittimus on continuance on page 155. 45 Town of New Haven v. Rogers, 32 Conn. 221. (150) Ch. 3] JUSTICES OF THE PEACE. § 55 1861, without the appearance of either of the parties on any of the days of daily adjournment. Hinman, C. J., stated: "When, therefore, a ease is regularly brotight before him [a justice of the peace], if it is kept pending by a regular adjournment of it from one day to another, or from day to day for a succession of days, we do not see why it does not operate like the continuance of a case from term to term ; and where, as in this case, it was done by an agreement of the parties for their own special convenience, it would seem that they ought to be bound by it. It is true, undoubtedly, that if the case was not kept alive by the regular adjournment of it from time to time, as the times to which it was ad- journed occurred, but was suffered to lie in the expecta- tion of calling it up at some future but indefinite time, it might be considered as no longer pending, and, being gone, the justice would no longer have jurisdiction over it." The syllabus of this case states: "Where the record of the justice was that the parties agreed that the case should be continued from day to day as security for the performance of certain terms of settlement by the defendant until further action should be required by either party, and that 'the case was thus continued without the appearance, in person or otherwise, of either party, and without any furthei' action or order by the court until the 21st day of Septem- ber,' etc., the record was held to mean that the case was actually continued from day to day without any further " action or order of the court than such continuances." In the case of Town of Naugatuck v. Smith*** it was iG Town of Naugatuck v. Smith, 53 Conn. 524. (151) § 55 ADMINISTRATIVE OFFICERS. [Ch. 3 held that there is no appeal from a judgment on a plea in abatement, or other dilatory plea, but that the justice must first find probable cause before the appellate court can take jurisdiction. Judge Carpenter, in the opinion, stated as follows: "First, as to the power and duty of the justice. The proceeding is purely statutory. In form it possesses many of the features of a criminal prosecution; in substance it is a proceeding to enforce a civil remedy. It is a special proceeding provided by statute, and is peculiar to this class of cases. The jus- tice has not final jurisdiction ; consequently he can ren- der no final judgment. The sole issue, so far as the merits of the case are concerned, is prescribed by stat- ute, — the finding of probable cause. If a dilatory plea is interposed, as it was in this case, the justice has power incidentally to dispose of it. If the plea is overruled, the statutory issue remains to be tried, and it is the duty of the justice to try it. That seems to be essential in order to give the higher court jurisdiction. Al- though final. jurisdiction was exclusively in the District Court [of Waterbury], yet that jurisdiction was not strictly original. It could take it only as handed to it by a justice of the peace in the statutory manner. The statute does not provide for an appeal from an adverse decision on a plea in abatement. Such a provision would be inconsistent with the general scope and intent of the statute. The general statute relating to aji- peals*'^ has reference to causes within the jurisdiction of justices of the peace, and has no application to a case like this, where the justice can only bind over to a ■17 Gen. St. § 540. (152) Ch. 3] JUSTICES OP THE PEACE. | 55 higher tribunal. The analogy between this case and criminal cases, in which the justice can only bind over, is striking. In such cases an appeal from a judgment on a plea in abatement is unknown to our practice. It does not follow, however, that the defendant may not have the judgment on such a plea reviewed in the higher court. We believe the practice to have been to allow him to renew the objection there." The examination is very much like a preliminary hear- ing in a city or town court, but the justice must feel satisfied that there is probable cause before binding the defendant over. Should probable cause be found by the justice, the defendant is bound over either to the nexr district court of Waterbury, or the next court of com- mon pleas, or, if there be no such court in the county, to the next superior court in the county in which the town is situated, according to the provisions of section 969; but if probable cause be not found, such finding shall be final, and operate as a bar to a second proceeding for the same cause of action.*^ The judgment of the justice of the peace is in the following form : JtTDGMENT. Jane Stiles'] Before John Smith, Justice of the Peace for V. (. New Haven County. John Doe. J New Haven, the day of . 19 — . This action by complaint, claiming that the complainant, being a single woman, is pregnant with a child begotten by the defendant, and praying process against the defendant, and for his arrest and examination in the premises (whereupon the foregoing warrant was issued, upon which the said John Doe was arrested and brought before me), came before me, a justice of the peace, holding court at 48 Gen. St. § 969. (153) § 55 ADMINISTRATIVE OFFICERS. [Ch. 3 said New Haven on the day of , 19 — , when and where, the defendant having given bond for his appearance, said action was continued to the time and place first above mentioned, when and where the parties appeared and were at issue as on file. The court, having heard the parties, finds that there are probable grounds for supporting said complaint. Whereupon, it is adjudged that the said John Doe become bound in a recognizance, with sufficient surety, unto the said Jane Stiles in the sum of $1,000, conditional that he appear before the next court of common pleas to be holden at New Haven on the day of , 19 — , then and there to answer to the charge con- tained in said complaint, and abide the decision of said court thereon, and stand committed until sentence be complied with. John Smith, Justice of the Peace. The recognizance should be in the following form, and should be taken in the same manner as a recognizance provided for in the case of motion for a jury : Recognizance. You, John Doe, of New Haven, named in the aforesaid complaint as principal, and Peter Brown, of New Haven, as surety, acknowl- edge yourselves jointly and severaly bound unto Jane Stiles, of New Haven, named in the foregoing complaint, in a recognizance of ?1,000 that the said John Doe shall appear before the court of common pleas to be holden at New Haven the day of , 19 — , then and there to answer to the charges contained in the aforesaid com- plaint, and abide the decision of said court thereon. Taken and acknowledged at New Haven this day of , 19— Before me, John Smith, Justice of the Peace. If the defendant cannot furnish bond, the justice of the peace may commit him to jail until the next session of the appellate court. (154) Ch. 3] JUSTICES OF THE PEACE. § 55 Mittimus on Continuance. To the Sheriff of the County of New Haven, His Deputy, or Either Constable of the Town of New Haven Within Said County, Greeting: jWhereas, John Doe, of said New Haven, was this day brought be- fore me by virtue of a warrant signed by John Smith, a justice of the peace for New Haven county, issued on the complaint of Jane Stiles, of said New Haven, wherein the said Jane Stiles alleges that on or about the day of . 19 — , she was begotten with child by the said John Doe, with which she is now pregnant, that she was at that time and still is a single woman, that the said John Doe is the father of said child, which, when born, will be a bastard, all of which allegations have been duly verified by the oath of the; said Jane Stiles; and Whereas, the said John Doe requests a continuance of said case until the day of . at o'clock in the noon, and said continuance has been granted by me, and it was considered that he become bound with sufficient surety, in a recognizance to the said Jane Stiles in the sum of $500, that he appear before me, the said justice of the peace, on said day of . 19 — , at o'clock in the noon, then and there to answer, to said complaint, and the said John Doe having neglected and failed to become recog' nized with surety as required: These are therefore, by authority of the state of Connecticut, to command you forthwith to take the said John Doe, and him com- mit into the custody of the keeper of the jail in and for said county of New Haven, who is hereby commanded to receive the said John Doe, and him safely keep in said jail until delivered by due course of law; and you are also to leave with said keeper this mittimus. Hereof fail not, but due service make. Dated at New Haven this day of , 19 — . John Smith, Justice of the Peace. § 56. Poor Debtor's Oath. "Any prisoner on civil process may apply to a justice of the peace to take the oath provided for poor debtors, and shall cause notice, signed by a justice of the peace, to be given to the adverse party, if an inhabitant of the (155) § 56 ADMINISTRATIVE OFFICERS.. [Ch. 3 state, otherwise to his attorney, to appear and show reason why such oath should not be administered, whicci notice shall be served at least four days, inclusive, be- fore the day specified for administering said oath, by some proper ofiicer or indifferent person, who shall leave an attested copy thereof with the person to be notified, or at his usual place of abode; and the justice of the peace to whom such notification is returnable shall in- quire into the matter, and, if no sufficient reason is shown to the contrary, administer to such debtor the following oath: " 'You, A. B., solemnly swear that you liave not any estate in pos- session, reversion, or remainder, of the value of seventeen dollars in the whole, or sufficient to pay the demand for which you are imprisoned, except what Is by law exempt from execution, and that you have not, directly or indirectly, disposed of all or any part of your estate, thereby to secure the same, or to receive or expect any advantage therefrom, or to defraud your creditors; so help you God.' "The jailer shall thereupon discharge such prisoner from jail, unless the creditor shall give to him imme- diate notice, in writing, that he intends, within fifteen days thereafter, inclusive, to apply for a review, and lodge with the jailer such sum of money, for a weekly maintenance, as the county commissioners shall require in such cases; and when any prisoner shall take such oath upon several civil processes, such weekly allowance shall be paid by the parties by whom he is detained in prison, in equal proportions, and the jailer shall pay to such prisoner, every week, the amount of his Aveekly allowance, if by him requested."*^ «Gen. St. § 2946. (156) Ch. 3] JUSTICES OF THE PEACE. § 57 The examination usually takes place at the jail, and counsel for the attaching creditor and for the defendant should be present. The terms of the statute are very broad, and therefore the justice of the peace should re- fuse to administer the oath if, by the testimony, it ap- pears that the defendant has or claims to have property of any nature and description of a value greater than seventeen dollars. It is not necessary to wait until judgment has been rendered and execution issued be- fore the defendant may apply to take a poor debtor's oath. Such claim is sometimes made by counsel for the attaching creditor. A careful investigation of the statutes from the earliest times, covering poor debtor's oath, shows that the application may be made at any time, even the day after the accused has been committed to jail. It wouM defeat the purpose of the act if the de- fendant were obliged to wait until the final judgment had been rendered. No person committed to jail for failure to comply with the orders of the court in bastardy proceedings may take the poor debtor's oath within six months from the date of his commitment. Such person must be kept at hard labor during six months.^" § 57. Costs in Cases before Justices of the Peace. If the plaintiff withdraw his case before the day of trial, or the day to which the case may have been con- tinued, the defendant is entitled to costs.^^ In the case last cited "the plaintiff claims * * * that Justice Percy had no power to render a judgment for costs in 50 Gen. St. § 976. 51 Parmalee v. Town of Bethlehem, 57 Conn. 271. (157) I 57 ADMINISTRATIVE OFFICERS. [Ch. 3 favor of the defendant by reason of the notice given to him and to the defendant that the plaintiff had with- drawn the action. The notice was given on the return day of the writ, but before the hour when the defendant was cited to appear. The notice of withdrawal had no effect except as a notice that the plaintiff would not ap- pear in the case. Upon the return of the writ to the jus- tice, he acquired jurisdiction to render judgment in fav- or of the party who should be entitled to it. Neither party, without the consent of the other, could divest him of that jurisdiction. The defendant had a right to sum- mon his witnesses and prepare for trial in reliance upon a judgment for costs to reimburse him for the expenses so incurred." The justice may tax the costs at his own convenience as to time and place.^^ The costs usually taxed in a justice's suit are as follows : For writ, |2.45. If there be a garnishee process in the writ, |3.20 may be taxed for the writ. Indemnity of the successful party, $1. Officer's fees, court fees, and, if the judgment file be drawn up, as it always should be, |1 may be taxed there- for. If judgment be rendered by default, the justice is entitled to a fee of 50 cents. If he draws the judgment file, he is entitled to |1 therefor, but, if counsel draws it, counsel should keep the fee. A justice of the peace is not entitled to both a docket fee and judgment fee. By the term "judgment fee" the fee for judgment file is not intended. The fee on continuance is 25 cents, but, if there is an agreement of counsel for continuance from 52 Parmalee v. Town of Bethlehem, 57 Conn. 271. (158) Ch. 3] JUSTICES OP TSB peace. | 60 week to week, the justice should be lenient in his charges for continuances. § 58. Accounting before a Justice of the Peace. "In actions for an account before a justice of the peace, when judgment is rendered that the defendant shall account, said justice shall adjust the account with- out the appointment of auditors, and render judgment accordingly."^^ § 59. New Trial. There can be no new trial before a justice of the peace. As was stated in the old case of Page v. Camp :^* "The law doth not admit of new trials before a justice of the peace, nor doth it subject the decisions of one justice of the peace to the re-examination or impeachment of an- other." § 60. Judgment. After the case has been heard by the justice of the peace, if he is not ready to render his decision imme- diately, he should take the papers and continue the case, making proper entry thereof in his docket, to a day cer- tain, on which day the parties may appear in court to hear the decision, or notice may be sent to them of the decision on that day. If this continuance be not en- tered up, and there is no agreement of counsel permit- ting the justice of the peace to reserve his decision, the court will lose jurisdiction of the case, and the judgment 63 Gen. St. § 953. 54 Page V. Camp, Kirby, 9. (159) § 62 ADMINISTRATIVE OFFICERS. [Ch. 3 rendered may be attacked by writ of error, or stricken from the docket in the appellate court on motion of the losing party. After the case has been finally decided, it is customary for the justice to enter up another continu- ance, to permit the losing party to take an appeal, there- by giving him the opportunity to come into court ^'ith his bondsman. § 61. Trial before the Return Day. A justice of the peace may try any civil action pend- ing before him before the return day, provided the par- ties to the action or their attorneys indorse their writ- ten assent thereto upon the writ, and agree upon the time of trial.^*^ § 62. Contempt. "A justice of the peace may punish by fine and im- prisonment any person who shall, in his presence, be- have contemptuously or in a disorderly manner ; but the fine must not exceed seven dollars, nor the term of im- prisonment exceed thirty days."^^ The justice of the peace may discharge the person committed to jail, when it shall appear to the justice that public interest will not suffer thereby.^® A witness who refuses to testify may be committed to jail, provided he has been legally summoned to appear, there to remain at his own expense until he shall so testify." 54a Gen. St. § 427. 55 Gen. St. § 506. 50 Gen. St. § 507. 5TGen. St. § 508. (160) Ch. 3] JUSTICES OF THE PEACE. g 6^ § 63. Appeal. "In all civil actions, except summary process, brought before a justice of the peace, an appeal from any judg- ment rendered therein, upon any issue, may be had and allowed to either party, to the court of common pleas in the county in which such judgment is rendered, or, if there be no such court, then to the superior court in said county, unless the judgment be rendered within the judicial district of Waterbury, in which case the appeal may be taken to the district court of Waterbury, or to the court of common pleas in the county in which such judgment is rendered. All appeals shall be taken to the first Tuesday of the month, except July and August, next succeeding their allowance; but appeals to the court of common pleas in New Haven county, or to the district court of Waterbury, shall be taken to the first Tuesday of the month next succeeding the date of their allowance. No appeal from any judgment of a justice of the peace in any civil action shall be allowed until the party appealing shall have become bound to the adverse party in such sum as the justice of the peace shall order, with sufllcient surety, conditioned to prosecute such appeal to effect. The provisions of this section shall apjply to all civil actions, except actions of summary process, brought before any justice of the peace under any general statute, municipal charter, by-law, ordi- nance, or special law."^* "All appeals from judgments of justices of the peace may be entered by the appellant in the appellate court before two o'clock in the afternoon of the day next fol- 68 Gen. St. § 540. (161) Adm. 0£E.— 11. § f,3 ADMINISTRATIVE OFFICERS. r(jh. 3 lowing the return day to which appeals are taken, with- out costs, and at any time afterwards during the same term or session, but before the next return day, unless previously entered by the appellee, on paying to the ap- pellee his costs up to such time, including the expense of a copy, if procured for the purpose of entering the appeal, which shall not be refunded, however the cause may be eventually determined. The appellee may, after two o'clock in the afternoon of the day next follow- ing the return day of the court to which the appeal is taken, and during the same term or session, but before the next return day, enter sa,id appeal, if not previously entered by the appellant, and have the judgment of the court from which the appeal was taken affirmed, with additional costs. Such judgment may, at the discretion of the court, be set aside, on motion of the appellant, at any time during the same term or session, on payment to the appellee of all his costs up to that time, including the expense of the copy, and the appellant may, on mak- ing such payment, prosecute such appeal as if he had en- tered it himself. "^^ A defect in the taking of the recognizance may be waived by the action of the party. In the case of Ives V. Finch'^" the following facts are found : On the 17th day of August, 1850, judgment was rendered by a jus- tice of the peace in favor of the plaintiff in an action of assumpsit demanding thirty dollars damages. The de- fendant appealed, and, as principal, entered into a recog- nizance in the sum of fifty dollars to prosecute his ap- BoGen. St. § 750. 60 Ives V. Finch, 22 Conn. 101. (162) (JJl. 3] JUSTICES OF THE3 PEACE. § 63 peal to effect. On the 25th day of September, the same year, one Birdsey appeared before the justice, and en- tered into a like recognizance as surety for the defend- ant. The cause was duly entered on the docket of the court to which appeal was taken without objection by the plaintiff. On the day previous to the trial, the plaintiff's counsel moved to strike the case from the docket on the ground that it appeared from the copy of the record that no bond with surety had been given upon the appeal. It was held, in such case, that the plaintiff had waived a strict compliance with the statute, and also that the proper mode of taking advantage of error in the appeal, was by plea in abatement. In a recognizance on appeal the amount usually in- serted is seventy dollars, according to the circumstances of the case, and the form of such recognizance is as fol-. lows : You, Ricliard Roe, of New Haven, as principal, and you, Thomas Robbing, of East Haven, as surety, acknowledge yourselves jointly and severally bound unto John Doe, of New Haven, in the sum of $70, conditioned that the said John Doe shall transfer the cause of John Doe v. Richard Roe, now pending before me, John Smith, jTistice of the peace for New Haven county, to the court of com- mon pleas for New "Haven county [to the district court of Waterbury, or to the superioi; court in counties where there is no common pleas court] on the day of , 19 — , as required by statute, and prosecute said appeal to effect. Taken and acknowledged at on the day of , 19—. Attest: John Smith, Justice of the Peace. As stated in the statute, the appeal may be taken on any issue by either party, and, if the losing party desires to take an appeal from the decision of the (163) I 53 ADMINISTRATIVE OFFICERS. [Ch. 3 justice of the peace on such interlocutory decree, he should do so at once, and not proceed further with the case. The justice of the peace has no power to force the losing party to answer over if he does not desire to do so, or to refuse to allow an appeal, and, if he refuse to grant such an appeal, the party aggrieved may apply for a mandamus to compel him to do so. In the case of Blackman v. Beha^^ the defendant in an action before a justice of the peace pleaded in abate- ment the defective service of the plaintiff's writ, to which plea the latter demurred. The court sustained the demurrer, and ordered the defendants to answer over, which they refused to do, whereupon the judgment was rendered in favor of the plaintiff. The defendants thereupon appealed from the judgment upon the demur- rer to the superior court. It was held that such ap- peal did not vacate the final judgment of the justice, and that the superior court could take no recognizance of the case. It will be seen by the decision in this case that the losing party should have immediately appealed from the decision on the plea in abatement. They lost their rights by not taking their appeal immediately. The case of Prosser v. Chapman"^ was an action of assumpsit, brought originally before a -justice of the peace. The defendant, before the justice, pleaded in abatement pendency of another suit for the same cause of action. The justice, upon an issue joined upon this plea, rendered judgment against the defendant. San- ford, J., in giving the opinion, stated : "I have no doubt 61 Blackman v. Beha, 24 Conn. 331. 82 Prosser v. Chapman, 29 Conn. 516. (164) Ch. 3] JUSTICES OF THE PEACE. § 63 that the plea in abatement filed before the justice ought there to have prevailed. * * * It is clear, too, that the defendant's motion to appeal from the judgment on the plea in abatement ought to have been entertained by the justice at the time it was made, and, the requisite se- curity for the prosecution of the appeal being tendered, the appeal ought to have been allowed. But the ques- tion now is whether the defendant has resorted to the proper remedy for the protection of his rights; win her, after having pleaded to the action, tried the case upon its merits, and after having had a final judgment ren- dered against him upon such trial, he could appeal from both judgments to the superior court, and then set up and try his plea in abatement again. I think he could not. By pleading to the action he waived his plea in abatement, and his right to appeal from the judgment thereon, and could not afterwards avail himself of either. * * * The right to appeal from the judgment on the plea in abatement was one which the justice had no power to deny, and he could have been compelled to entertain the defendant's motion and allow such appeal. So, the defendant was under no obligation to obey the justice's order to answer over; but he had a right to waive his plea in abatement, and, by pleading to the ac- tion, he gave conclusive evidence of his election to make such waiver. It is no answer to say that the defendant pleaded to the action because the justice refused to enter- tain his motion to appeal, and ordered him so to plead. The justice had no right to reject or defer such motion, and no power to enforce sucE order. And as the defend- ant was bound to know the law, he must be presumed to have known his rights, and the remedies by law provided (165) § 63 ADMINISTRATIVE OFFICERS. [Ch. 3 for their protection. His compliance with the order of the justice, therefore, must be construed an election to make the waiver which his plea implied. * * * For the refusal of the justice to entertain the defendant's motion, the defendant had undoubtedly a plain and ef- fective legal remedy, which he omitted to apply, and lost by his voluntary submission to the arbitrary and illegal determination of the justice. * * * i think this defendant should have refused to answer over, in- sisted on his appeal, and, by mandamus or otherwise, compelled the justice to entertain and allow his mo- tion; and if, in the meantime, the justice had rendered his final judgment, that should have been regularly re- versed and vacated in due course of law." No appeal can be allowed from a judgment of nonsuit. In the case of Norton v. Petrie^^ the record of the jus- tice was as follows: "This action was duly brought to said court, and by legal adjournments comes to this day for trial. The plaintiff appeared, and the defend- ant appeared, and the parties joined in an issue or plea of general issue, as on file, and also in an issue of special answer, as on file; and no testimony being offered, this court is of opinion and entered judgment of nonsuit, and, further, that the defendant recover his costs, taxed at one dollar." This judgment was appealed by the plaintiff to the district court of Waterbury. In this court the defendant moved to strike the case from the docket of the court, on the ground that it appeared from the record that the appeal was taken from a judgment of nonsuit, from Avhich judgment no appeal was by law 63 Norton V. Petrie, 59 Conn. 200. (166) Ch. 3T JUSTICES OP THE PEACE. § 53 allowed. Court overruled motion. Error assigned by defendant. In giving the opinion in this case, Torrance, J., stated : "This aspect of the case presents two questions for deci- sion: First. Was the judgment of the justice a judg- ment upon any issue in the cause? Second. Will an appeal lie from the judgment rendered? Upon an ex- amination of the record we think the first question must be answered in the negative. It is true the record states that the paintiff appeared and joined issue, but he did nothing more. He manifestly did not appear to prose- cute his claim, for he offered no testimony, and did noth- ing whatever in support of it. He simply remained pas- sive and silent, and that, too, at a time when it was his duty either to prosecute his claim or withdraw it. The defendant, of course, under these circumstances, offered no testimony, and thereupon the court, to quote from the record, 'entered judgment of nonsuit.' The judg- ment was not in fact, nor does it purport to be, a de- cision or determination of any of the issues raised by the pleadings. As to all those issues it leaves the parties where it found them. It simply put an end to the suit then pending, because the plaintiiS, by his conduct, re- fused or neglected to prosecute it further, but it did not bar him from immediately bringing another suit against the defendant upon the same cause of action. It was in fact and in effect, as the justice called it, a judgment of nonsuit. Does an appeal lie from such a judgment is the next question. The statute provides that in all civil actions except those by summary process, brought before a justice of the peace, an appeal from any judg- ment rendered therein upon any issue may be had and (167) § 63 ADMINISTRATIVE OFFICERS. [Ch. 3 allowed to either party.®* • * * Tjie judgment from which an appeal is allowed must be a judgment upon some issue in the case. In the present case the judg- ment of the justice, from which the appeal to the Dis- trict Court was taken, was, as we have seen, not a judg- ment of that kind, notwithstanding the fact that issues had been joined in the cause. That fact made no differ- ence so long as the judgment was not upon any of those issues. The District Ooui-t therefore acquired no juris- diction of the cause by the appeal, and it is not claimed or pretended that it acquired jurisdiction in any other way. It follows that it had no jurisdiction of the cause, and that it erred in not allowing the motion to dismiss." It is sometimes customary for a defendant who desires to immediately take a case to the appellate court to file a demurrer pro forma, with the understanding that it will be overruled, judgment rendered in favor of the plaintiff for the amount of the bill of particulars, and the case appealed to the next term of the appellate court. This is sometimes done by an agreement of counsel. If there be such an agreement, and the justice of the peace should fail to enter up any continuance for the purpose of permitting the defendant to furnish proper recogni- zance, the plaintiff cannot take advantage of such a flaw in the record in the appellate court. In the case of Chesebro v. Babcock,*'^ on a similar state of facts, where there was such an agreement of counsel, the plaintiff in the court of common pleas en- deavored to secure a mandamus to compel the justice of 64 Gen. St. § 540. 60 Chesebro v. Babcock, 59 Conn. 214. (168) Ch. 3] JUSTICES OP THE PEACE. § 63 the peace to amend his record so that it would show an adjournment sine die on the date when the final judg- ment was rendered by agreement. The purpose of such mandamus, of course, was to show that the appellant had no standing in the coui i: of common pleas. The supreme court of errors held, however, that, by agreement of coun- sel, the case was intentionally kept open by the justice for the purpose of permitting the defendant to furnish a recognizance, and the mandamus was refused. The question whether an appeal from the judgment of a justice of the peace, duly taken and allowed, vacates the judgment, or whether it only suspends it, so that, if the appeal is not carried forward, it remains a valid judgment in the cause, was considered in the case of Cur- tiss V. Beardsley.** Judge Hinman made the following statement of law : "By our practice, under the statutes regarding appeals from justices and appeals from the county court, the cause is brought up entirely unem- barrassed by any proceedings in the court below. Un- like a writ of error or proceedings at common law in nature of appeals (in which only the precise point de- cided is carried up for revision), the whole cause is brought before the appellate court, as if it had been orig- inally commenced there. The parties, as respects the merits of the cause, may plead anew, as if there had never been any pleadings in the inferior court; and the entry of such new plea is considered and treated as a waiver of the former pleadings in the cause, and, by the modern practice, not even the formality of intimating or suggesting a change of plea is observed, but the par- as Curtiss V. Beardsley, 15 Conn. 523. (169) § 64 ADMINISTRATIVE OFFICERS. - [Ch. 3 ties proceed as if no proceedings had taken place in any othier court. * * * Considering, then, the statutes regarding appeals, the practice of the profession, and that an ample remedy exists, hy a suit on the recogni- zance entered into when the appeal is taken, and a suit on the original cause of action, in those cases where a defendant refuses to carry forward the appeal he has taken, and that, if the appellant neglects to carry for- ward the appeal, the appellee may do so, and have the justice's judgment affirmed, we should not hesitate to say that the appeal did vacate the judgment." The appeal papers should be prepared by the justice of the peace in the following order : Copy of the writ and complaint ; copy of the officer's return ; statement of the return day and the appearance of counsel, and continu- ances ; dates of the filing of all pleadings ; copy of each pleading; copy of the judgment file; motion for appeal ; recognizance ; certificate that the whole is a true copy of the record, signed by the justice of the peace. Criminal Jueisdiction. § 64. Jurisdiction. "Every justice of the peace, in any court holden by him in the county for which he is appointed, shall have juris- diction of all offenses committed in the town in which he holds such court, which are punishable by a fine of not more than seven dollars, or by imprisonment not more than thirty days, or both."^^ The criminal jurisdiction of justices of the peace is limited to those towns where town, borough, or city 87 Gen. St. § 1434. (170) Ch. 3] JUSTICES OF THE PEACE. § 54 courts have not been established by the general assembly. In the chapter on "Grand Jurors" an outline is given of the method of procedure in criminal cases before justices of the peace. It is the object of this chapter to fill in a few details on this subject, but not by any means to touch on all the different phases of criminal jurisdiction of jus- tices of the peace. Special statutes in some cases give justices of the peace power to impose" a greater fine than seven dollars. In the case of Barnes v. State®® the complaint in three counts for the sale of liquors to a common drunkard was made by a grand juror to the justice of the peace, and it was held in that case that the justice w^ho tried the cause had jurisdiction to impose as many fines of ten dollars, being the penalty provided for such offenses, as there were distinct counts in the complaint. In chapter 15 of 2 Swift's Digest there is a long discus- sion of the various methods by which crimes may be prosecuted in this state. A grand juror may make his complaint to a justice of the peace for any crime com- mitted in the town where the justice resides, and, if the offense be beyond the jurisdiction of the justice, the pris- oner may be bound over, upon probable cause being found by the justice of the peace, to the proper appellate court. This procedure does not, however, prevent the state's attorney himself, in the county, or the grand jury, by proper proceedings, from instituting criminal prose- cutions. A justice of the peace may take cognizance of a grand juror's complaint for keeping a tavern without a license, «8 Barnes v. State, 19 Conn. 398. (171) § 54 ADMINISTRATIVE OFFICERS. [Ch. 3 though such justice is an inhabitant of the town in which the offense is alleged to have been committed, and to the treasury of which the penalty, in case of conviction, will gQ 69 A justice of the peace in criminal matters is not con- fined, in the exercise of his office, to the town where he resides, as he is in civil causes.'"* In the case of Bentley V. Lyman'' ^ the question whether a justice of the peace, in hearing and trying a grand juror's complaint for as- sault and battery, has final jurisdiction, was considered. Church, C. J., in giving the opinion, stated : "If he has the power to convict or acquit, so that his judgment shall be a bar to a future prosecution for the same offense, 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. * * * a justice of the peace has juris- diction and cognizance of the crime of assault and bat- tery, and may punish it by fine and imprisonment, * * • and if, upon the hearing and trial of such offense, he shall be of opinion that the offense deserves a greater punishment, he may bind over the accused to a higher court. ♦ * * From these provisions of law it is evi- dent that it is the duty of a justice of the peace in such case to proceed to hear and try the complaint as a try- ing, and not as a mere inquiring, magistrate, and his judgment, until set aside by due process of law, is con- clusive. It is true, if, upon such trial, he judges that a greater punishment than he can inflict is deserved, he «9Kilbourn v. State, 9 Conn. 560. TO Kingsbury v. Phips, 2 Root, 358. 71 Bentley v. Lyman, 21 Conn. 81. (172) Ch. 3] JUSTICES OF THE PEACE. § 6(, may bind over, but he does this in the exercise of his jurisdiction over the cause. * * * We think the law is that, if the justice of the peace sits as a court of in-' quiry 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 offense charged is within his own jurisdiction, and it only depends upon the ag- gravation 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 offense was committed. By the expression 'final jurisdiction' * * * is not meant ultimate and conclusive jurisdiction. A justice of the peace has no such, except in a few of the most trifling eases, as profane swearing. Sabbath breaking, etc. In all other cases, appeals from his judgment are allowable. A different view of the statute would be quite too nar- § 65. Issue of Warrant after an Arrest. "When any person is apprehended and brought be- fore any justice of the peace by any proper officer with- out a previous warrant, such justice shall issue a war- rant, and cause such person to be arrested and dealt with according to law."''^ § 66. Bonds on Adjournment of Hearing. Upon the adjournment of the hearing of any criminal T2Gen. St. § 1435. (1Y3) § 66 ADMINISTRATIVE OFFICERS. [Cb. 3 cause by any justice of the peace, the accused shall be re- quired to enter into a recognizance in a proper sum, with surety, conditioned that he shall appear at the time to which said hearing shall be adjourned, and abide the or- der of the court. If the cause is or may be within the final jurisdiction of the court, said recognizance shall be taken to the town wherein said hearing is had, if said cause is pending before said justice of the peace j * * * but if said cause is not within the final- jurisdiction of the court before which the same is pending, said recogni- zance shall be taken to the state. On the failure ,of the accused to enter into such recognizance, he may be com- mitted, by the court ordering the adjournment, to the custody of the sheriff or of any deputy sheriff of the county, or any constable of the town * * * in which the further hearing of said cause is to be had, who shall safely keep him until the time to which said hear-' ing was adjourned, and shall then bring him before said court. '^^ The case of Bentley v. Lyman, above cited, touches on the question of such a recognizance, and shows the prop- er interpretation of the statute. In the case of Potter v. Kingsbury^* the court stated : "A justice of the peace, when holding a court of inquiry to determine whether there is sufficient cause to bind over to some higher court a person prosecuted for an offense not within his final jurisdiction, has the power to adjourn for the purpose of enabling the public or the prisoner to obtain necessary witnesses."^^ "Gen. St. I 1443. 74 Potter V. Kiugsbury, 4 Day, 98. 75 See, also, Goodwin t. Dodge, 14 Conn. 206. (lU) (Jh. 3] JUSTICES OF THE PEACE. S 57 § 67. Right to a Jury. In a criminal hearing before a justice of the peace the accused has no right to demand that a jury be sum- moned to consider his case. As was stated in the case of Waldo V. Spencer/^ by Hosmer, 0. J., where the claim was made that the accused should have the right to a speedy public trial by an impartial jury, and objection was made to the proceedings on the ground that, before the justice, there was a trial of the prisoner: "This, however, is a misconception of the office of the justice, which was only to make inquiry, and, if there was prob- able cause, to remit the prisoner to a trial before a court competent to render judgment against him." Also, in the case of Goddard v. State,^'^ which was a complaint against one Joseph Goddard for breach of the Sabbath; the accused, being brought before the justice pleaded not guilty, putting himself upon the jury for trial, and he thereupon moved that a jury be ordered and impaneled to try the cause. This was refused, and, after a trial before the justice alone, he was convicted of the offense charged in the complaint. Williams, C. J., in the opinion, stated : "The plaintiff in error claims that the statute authorizing a conviction by a justice of the peace is unconstitutional, as the party accused is entitled to a trial by jury." The court distinguished between prose- cution brought by indictment or information and cases where a justice of the peace is given authority to convict upon view of an offense. "In such cases [upon view] it is clear that a jury cannot be demanded, nor are such 76 Waldo V. Spencer, 4 Conn. 78. 77 (Joddard v. State, 12 Conn. 448. (175) § bS ADMINISTRATIVE OFFICERS. [Oh, 3 proceedings of the class usually called 'prosecutions.' When those are spoken of, reference is usually had to the formal accusation of the offender, which is entirely dispensed with in these summary proceedings, as neither complaint nor warrant is a necessary attendant." It was held that a complaint of this sort was not an indict- ment or information, within the ninth section of the bill of rights, which entitled the accused to a trial by jury. The opinion further states : "The constitution never in- tended to take from single magistrates the power of try- ing petty offenses, which has so long been exercised by them, to the great advantage of the public." i 68. Sureties of the Peace. A justice of the peace may, from his personal knowl- edge, or upon complaint of another, require sureties of the peace and good behavior from any person who shall threaten to beat or kill another. If the person so re- quired to find sureties of the peace shall refuse to do so, the justice of the peace may commit him to jail until he shall be discharged by due course of law, or until the next session of the superior court having criminal juris- diction in the county, which may make further order re- lating to the subject-matter of said offense. In all such cases the justice of the peace shall require the complain- ant to give a sufficient bond to prosecute his complaint to effect, and, if the person complained of shall be dis- charged by the justice of the peace for want of probable cause, the complainant must pay the costs of prosecu- tion.'^^ n Gen. St. § 1442. (1Y6) Ch. 3] JUSTICES OF THE PEACE. ]§ 59 A recognizance in such a case may require the accused to appear before the county court then next to be holden in that county, and abide the judgment and order of that court, and in the meantime keep the peace.^® > In the case of In re Bion^" the complaint upon which Bion was arrested and brought before the justice was made by one Dunning to J. P. Hardenburgh, a justice of the peace. The complaint was sworn to by Dunning before Justice Hardenburgh, who issued a warrant in- structing the proper officer to arrest the body of Bion, and "him forthwith have before the subscriber, a justice of the peace for said county, or some other justice of the peace for said county, in said town of North Canaan." Bion was brought before S. A. Bennett, another justice of the peace, who heard the complaint, and, finding him guilty, ordered him to become bound in the sum of |5,000 to appear before the superior court. On failure to pro- cure bonds to keep the peace. Justice Bennett issued a mandamus, and the present proceeding was an applica- tion for habeas corpus. It was held that the proceedings were entirely regular. § 69. Recognizance after Hearing. A bond voluntarily given to "abide judgment" is free from exception. "On the appearance of the principal before the court to which he is recognized, and offering himself, or being offered by his surety, to be taken into custody, this is always done, and the bond, of conse- quence, is by this act discharged. The agreement to 79 Sturges V. Sherwood, 15 Conn. 149. «o In re Bion, 59 Conn. 372. (177) Adm. Off.— 12. § 70 ADMINISTRATIVE OFFICERS. [CJb. 3 abide judgment after it shall have been rendered can never affect the prisoner except by his own consent, and in many conceivable cases it is a privilege."*^ A recognizance by a person charged with keeping a house of ill fame, the condition of which was to appear before the loamty court, and abide the order of the court on the complaint, Avas held to be void, the condition being unauthorized.*^ § 70. Commitment without Hearing. A justice of the peace has no power, by virtue of Gen. St. § 1277, concerning riots, on his own personal view, to arrest the offender against the law, and, without writ- ten complaint or warrant, to fine, imprison, or bind him over. He is authorized to arrest the offender, and take him before a justice, and here terminates the authority given. "It then devolves on the justice to see that pro- ceedings according to law in its usual course are insti- tuted, and the person arrested dealt with pursuant to the established mode of procedure. * * * Pun- ishment of a person here is not authorized on a bare view, which may be very imperfect, and lead to a con- viction of the innocent, but the accused rioter is entitled to a hearing before his commitment to prison, or being recognized before the superior court for trial." Jus- tices of the peace so committing without hearing are per- sonally liable for damages.*^ Whenever the justice of the peace has plain view or personal knowledge of any person's being guilty of 81 Waldo V. Spencer, 4 Conn. 79. 82 Darling v. Hubbell, 9 Conn. 350. 83 Tracy v. Williams, 4 Conn. 111. (178) Ch. 3] JUSTICES OP THE PEACE. § 72 drunkenness, profane swearing, cursing, or Sabbatli brealiing, no evidence is necessary except that derived from the personal view of the magistrate ; and a written complaint is fiot required. The presence of the offender makes a warrant unnecessary. It is similar to the case of a justice of the peace committing for contempt.** § 71. Record. The record of the justice of the peace in criminal cases has the same validity, and imports the same amount of verity, as the record in a civil suit.*^ The judgment of a justice of the peace in a criminal case cannot be at- tacked because the record in proceedings to bind over an accused person fail to show that, in the opinion of the justice, the offense was of so aggravated a nature as to require a greater punishment than he, as justice, could impose. As he could not lawfully bind over the accused without such opinion, the general presumption in favor of the validity of the judgment supplies in law the omis- sion complained of.*® § 72. Defect in Warrant. A warrant issued by a justice of the peace for the ar- rest of a criminal is not invalid because it directs the of3ficer making the arrest to bring the prisoner before the justice signing the same, or some other justice of the peace for the county. In the case of Perry v. Johnson*^ the plaintiff was ar- 84 Holcomb V. Cornish, 8 Conn. 374. 86 Holcomb V. Cornish, 8 Conn. 374. 86 State V. Watson, 56 Conn. 188. 8T Perry v. Johnson, 37 Conn. 33. (179) § 72 ADMINISTRATIVE OFFICERS. [(Jh. 3 rested by the defendant Smith upon a complaint and warrant charging him with the offense of disturbing the public school in the town of Putnam. The warrant was signed by defendant Johnson, who was then a justice of the peace for the town. The process was regular in all respects, except that the complaint was addressed to James W. Manning, a justice of the peace of the town of Putnam, and the warrant issued thereon for the arrest of the plaintiff was issued and signed by the defendant Johnson, a justice of the peace of the same town. Judge Phelps, in giving the opinion, stated: "The question presented for our determination in this case is whether the process upon which the plaintiff was arrested was valid, so as to justify the magistrate who signed and the officer who served it. The exception taken to its suffi- ciency is that the complaint was addressed by name to one justice of the peace residing in the town in which the offense was committed, and the warrant was not signed by him, but by the defendant Johnson, who was also a justice of the peace in the same town. * ♦ * It is claimed that the statute in terms authorizes any justice of the peace residing in the town where the of- fense is committed to issue a warrant, whether the com- plaint is addressed to himself personally or not. * * * We believe it has received a contrary practical construc- tion by an immemorial and nearly uniform usage. * * * To hold, in defiance of the long and uniform usage to which I have referred, that a warrant may be issued by any magistrate in a town other than the one to whom the complaint is specially directed, would be a departure from this wholesome principle, and intro- (180) Ch. 3] JUSTICES OF THE PEACE. § 73 duces an inexcusable laxity and an unfortunate innova- tion in the practice in this state." This case must be distinguished from the case of In re Bion.^* In that case the complaint was addressed to the justice of the peace who issued the warrant. The warrant commanded the officer to bring the accused be^ fore the subscriber, or some other justice of the peace, and the hearing and examination were conducted before another justice. It must be remembered that the Bion Case was a special statutory proceeding, giving justices of the peace authority to require sureties of the peace. The Bion Case must therefore be distinguished from the case of Perry v. Johnson because of the different state of facts. In the case of Hopkins v. Town of Plainfield,*^ which was a bastardy case, the process was issued by one jus- tice of the peace, namely, James Eaton, and the person charged was directed to be, and in fact was, brought be- fore another justice, — Francis B. Johnson. Such pro- cess was held to be good "because the acts to be done by the justice are merely ministerial, and there can be no importance attached to the question what justice shall perform this merely ministerial act." § 73. Disqualification. There is no legal objection, although a serious impro- priety, in the issuing of a warrant by a justice of the peace for the arrest of a person who has committed some offense against the justice issuing the warrant. The in- 88 In re Bion, 59 Conn. 372. 89 Hopkins v. Town of Plainfield, 7 Conn. 291. (181) § 73 ADMINISTRATIVE OFFICERS. j[Ch. 3 terest which will disqualify a justice is a property dis- qualification, rather than a personal one. In the case of Clyma v. Kennedy/" which was an ac- tion for false imprisonment, the defendant, Kennedy, was an attorney at law, Clancy, a grand juror, Brophy, a constable, and Tuttle^ a justice of the peace. The case shows that Kennedy, at the request and by thfe procure- ment of Clancy, drew up a complaint charging therein the present plaintiff with a criminal libel in causing to be published in a newspaper certain false, malicious, and slanderous statements of and concerning said Tuttle in respect to his conduct in the trial of a civil cause brought before and tried by him as a justice of the peace for said county. The complaint was signed by Clancy, as a grand juror of said town, and was preferred to the said Tuttle as justice of the peace. Tuttle issued the war- rant, signed by himself, for the arrest of the plaintiff, which warrant was served by Brophy, who arrested the plaintiff, and took him before Tuttle. On trial before Tuttle the plaintiff was found guilty, and sentenced to pay a fine of seven dollars and costs, and to stand com^ mitted until the same was paid. Subsequently a mitti- m as was drawn up by Kennedy, at the request of Tuttle, which was signed by him, served by Brophy, and the plaintiff was arrested and committed to the common jail in New Haven, and there imprisoned one night and two days, and was then released on Jiabcas corpus proceed- ings. Andrews, C. J., in giving the opinion, said : "We think the district court erred in holding that Justice Tuttle was disqualified to hear and determine the grand 90 Clyma v. Kennedy, 64 Conn. 310. (182) Ch. 3] JUSTICES OF THE PEACE. § 73 juror's complaint for libel by reason of interest. It was doubtless indecorous and unwise for him to try tbe case, because it exposed him to the appearance of seeking to revenge an insult to himself. There is no statute by the terms of which he was forbidden to act in the case, and we are not able to see that he had any such interest in it as made his action void. He was not a party to the cause. He had no pecuniary interest in the subject-mat- ter of the action. It was not his own cause ; he was not the moving party ; he was not liable for costs, nor was it possible for him to recover anything by any judgment which might be rendered. The event of the proceeding could not bring him gain, nor subject him to any loss. The fees which he might receive do not constitute an in- terest in the proceedings. Justice Tuttle had no interest in the cause other than such as he had as a citizen, — as one of the public. The interest in a cause which of itself disqualifies a judge from acting therein is a pecuniary one, — similar to the interest which a party in a civil ac- tion has in it." If, however, the justice who issues a warrant of com- mitment against the body of a defendant in a civil action be interested in the said action as an attorney for one of the parties, such justice would be held to be disquali- fied, and a person so committed may be released on writ of habeas corpus.^^ It was held that a justice of the peace of the town in- terested in the action might bind over to the county court the person accused."^ oiYudkin v. Gates, 60 Conn. 427. »2 Davis V. Salisbury, 1 Day, 278. (183) I 75 ADMINISTRATIVE OFFICERS. pQh. 3 § 74. Mittimus. If a mittimus issued by a justice does not properly state a cause of commitment, the person committed thereon is entitled to recover damages for whatever was done under it.^* If judgment be rendered by a justice of the peace, and sentence passed, the justice court at which the conviction was held being meanwhile adjourned without day, a mittimus issued on said sentence would be valid. The act of the justice so issuing the mittimus would be con- sidered ministerial, rather than judicial. "It is very likely true that, when the justice court was adjourned without day, the judicial ofificer could no longer act. But the ministerial officer remained, and might do any act which such an officer could lawfully do. As clerk of his own court, this justice of the peace had powers entirely analogous to the powers which the clerks of the higher courts have. A mittimus after conviction is, in criminal cases, similar to an execution after judgment in a civil case. It is final process; it is the carrying into effect the judgment of the court. * * * y^e have no doubt that a justice of the peace may, within any reasonable time after conviction and sentence, issue a mittimus to carry into effect his judgment, even though his court has been adjourned without day," the time having elapsed being reasonable.*'' § 75. Sentence. A sentence of a justice of the peace for the imprison- »3 Clyma v. Kennedy, 64 Conn. 310. 3* Scott V. Spiegel, 67 Conn. 359. (184) Ch. 3] JUSTICES OF THE PEACE. g 75 merit of an offender "until he be released by order of law" is erroneous. "It should be for a definite time, or at least until the term of the next county court, then to be discharged or not, as by the court should be adjudged proper. The statute, it is true, directs the subjects of it to be imprisoned until released by order of law, but this merely intends until the time of imprisonment has expired, and this period it is the duty of the justice to define."85 § 76. Effect of Appeal. An appeal from a judgment in a criminal case before a justice of the peace vacates the entire proceedings, the case being heard de novo in the appellate court. In the case of Card t. Poot,®^ evidence was offered of the conviction of the defendant for assault before a jus- tice of the peace to affect his credit as a witness. The rebuttal showed an appeal to the superior court, and a nolle of the case there. Judge Torrance, in rendering the opinion, stated : "Even in cases where it is allowable to show a conviction of crime to affect the credit of a witness, such conviction must generally be shown by the record of a valid, subsisting, final judgment. A judgment vacated, reversed, or set aside upon writ of error, appeal, or other appropriate proceedings is in ,law no judgment, and the record thereof ought not to have any force in affecting the credit of a witness. In the case at bar the appeal, under our law, vacated the judgment of the justice court. After the appeal was al- so Washburn v. Belknap, 3 Conn. 506. 86 Card V. Foot, 57 Conn. 432. ■ (185) § 76 ADMINISTRATIVE OFFICERS. fCh. 3 lowed, the judgment was as effectually set aside and made of none effect as if it had been reversed and set aside upon proceedings in error. After the appeal, so far as the present question is concerned, it was as if no judgment had been rendered, and the defendant had not been convicted. The record was therefore inadmissible for the purpose for which it was received, and should have been rejected."®^ 87 See, also, Smith's Appeal from County Com'rs, 65 Conn. 135. (186) CHAPTER IV. GRAND JURY. § 77. In General. 78. Directions to the Grand Jury. 79. Presence of the Prisoner. 80. Disqualification. 81. Testimony of Members of the Grand Jury Concerning Their Proceedings. 82. Record. § 77. In General. "The superior court may, when necessary, order a grand jury of eighteen electors of the county where said court is sitting to be summoned, impaneled, and sworn to inquire after and present such offenses as shall be cognizable by said court; and no person shall be put to plead or held to trial for any crime, the punishment of which may be death or imprisonment for life, unless an indictment shall have been found against him for such crime by a grand jury, legally impaneled and sworn, and no bills shall be presented by any grand jury unless twelve, at least, of the jurors agree to it."^ It is the duty of the state's attorney of the county where the offense punishable with death or life imprison- ment was committed to notify the court thereof. The court will then order the clerk to issue a warrant to the sheriff to summon eighteen grand jurors to appear be- 1 Gen. St. § 1471. (187) § 78 ADMINISTRATIVE OFFICERS. [dj. 4 fore the court. "The grand jury, being summoned and appearing, are impaneled and sworn. The judge then delivers them a charge, in which he states to them the general principles of criminal law, more particularly as relative to the cases which may come under their consid- eration, and then directs them how to proceed in their inquiries."^ § 78. Directions to the Grand Jnry. In Luno's Case* the following directions to the grand jury were approved by the judges, and have ever since that decision been considered a precedent: "You will retire to some convenient apartment, to be provided for you by the sheriff. You will choose some one of your number to be your foreman. The attorney for the state will lay before you such bills as he may think proper, and refer you to the witnesses to support them. You will cause the prisoner and the witnesses to come before you. You mil admit no counsel on the part of the state or of the prisoner. You will permit the prisoner to put any proper questions to the witnesses, but not to call any witnesses on his part. You will admit no specta- tors to be present during your inquiries and delibera- tions. At least twelve of your number must be agreed to find a bill. Such bills as you find supported by the evidence you will return into court indorsed by your foreman, 'A true bill.' Such bills as you find not sup- ported by the evidence you will return in like manner indorsed by your foreman, 'Not a true bill.' " 22 Swift's Dig. side p. 371. » Luno's Case, 1 Conn. 428. (188) Ch. 4] GRAND JURY. | 73 As tha state's attorney is not permitted to be present, it is customary for liim to send to the grand jury a list of the witnesses who have been summoned to appear be- fore them, together with a brief digest of the nature of the testimony of each witness. The witnesses must be sworn in the presence of the grand jury after they have retired to the apartment set aside for their use. In the case of State v. Fasset,* Wil- liams, C. J., gives the following summary of the reasons why witnesses should be so sworn : "There is no doubt that the witnesses before the grand jury should be sworn, and in such a manner that, if the testimony was false, they might be indicted for perjury. * * * The prac- tice in England and in the courts of the United States certainly is that the witnesses should be sworn in open court, growing probably out of the fact that formerly grand juries met with the court, and the proceedings seem to have been carried on under the eye of the court. Nothing, then, was more natural than that, under such circumstances, the grand jurors should be sworn by the officer of the court, and this practice has been followed, in many of the states. By the laws of this state, a pro- vision was early made that every town should choose two or more sober, discreet persons to serve as grand jurors, to be sworn by the next assistant or justice of the peace, who were authorized to make presentments. They were to meet quarterly, or oftener, to inquire into breaches of the law ; to call witnesses before them for examination, and if such persons, after being duly summoned by war- rant from an assistant or justice of the peace, refused to * state V. Fasset, 16 Conn. 457. (189) § 79 ADMINISTRATIVE OFFICERS. [Ch. 4 be examined on oath, such magistrate might commit them to gaol; and the names of the persons so chosen were to be returned to the clerk of the county court, from which number he was to summon the grand jurors to serve at the county court. In 1784 the statute was al- tered so far that the superior and county courts might order a grand jury from those chosen by the towns, or other sufficient freeholders.^ Under these circumstances it was very natural that the grand jurors of the respec- tive towns, Avhen eighteen of them met together at the call of the court, should pursue the same course as to the witnesses as when met in their respective towns, and that they should suppose that a justice of the peace might as well summon and swear the witnesses as where a smaller number of grand jurors had convened. Whether the practice originated from this circumstance, or whether it was thought more in accordance with the simplicity of our practice, the custom of administering the oath to the witnesses in the jury room, by a magis- trate, has been uniform ; and, so far as we are informed, ,no witness has ever been sworn in our courts and sent to the grand jury for examination." It was also held in this case that false swearing would make such a witness liable for perjury. § 79. Presence of the Prisoner. The prisoner has no constitutional right to be present in the jury room at the time of the consideration of hia case by the grand jury. If he is confined in state's prison at the time, he cannot demand that he be brought 6 Gen. St. 1808, pp. 371, 373. (190) Oh. 4] GRAND JURY. § 79 to the jury room. The grand jury, however, may re- quest the court to cause him to be brought before them if they desire. As was stated in the case of State v. Wolcott," by Church, C. J. : "The practice in this state, so far as we are informed, from the earliest times has been, if the accused be in the custody of the court, for the grand jury to cause him to be brought before them at the hearing, and perhaps, also, if he is out on bail and desires to be present ; but this is done without any other order or interference of the court than is expressed by the court to the grand jury in the charge. We have not known the practice to be extended further. It is claimed now that every one accused of crime of which a grand jury takes cognizance has a constitutional right to be present with the grand jury during their investigation. The bill of rights in our constitution declares that 'in all criminal prosecutions the accused shall have a right to be heard by himself and by counsel, to demand the nature and cause of the accusation, to be confronted hj the wit- nesses against him, and to have compulsory process to obtain witnesses in his favor.' This provision has never been understood to apply to grand jury inquiries. * * * The privilege thus conferred by the constitu- tion has been considered as extending only to trials be- fore petit juries." It was held in the case of State v. Hamlin''' that the rule adopted by the judges of the supreme court of errors in Luno's Case* was intended to confer no right to be present before the grand jury while the witnesses pro 8 state V. Wolcott, 21 Conn. 272. 7 State V. Hamlin, 47 Conn. 104. 8 Luno's Case, 1 Conn. 428. (191) § 80 ADMINISTRATIVE OFFICERS. [Ch. 4 duced by the state were under examination: "It [the rule] is directory merely. Its purpose was to secure uni- formity in the proceedings of grand juries throughout the state so far as it might be done without imposing lim- itations or restrictions upon the discretionary powers of the court. Before the adoption of the rule, it had been the practice. of the court to grant to persons accused of capital crimes, if in custody of the sheriff of the county in which the crimes were committed, the privilege of going before the grand jury while their cases were under investigation, and interrogating the witnesses produced by the state against them ; but it always rested in the discretion of the court to grant the privilege or to deny it, and the rule in Luno's Case was not intended to in- terfere with the exercise of that discretion." § 80. Disqualification. The following are the qualifications for members of the grand jury: Members of the grand jury "must be electors of the county in which the inquest is held. They must be summoned by the sheriff upon an order of the court, and they must be sworn to diligently inquire after and due presentment make of all breaches of the law, that shall come to their knowledge according to their charge. The secrets of the cause, their own and their fellows', they will duly observe and keep. They will present no man from envy, hatred, or malice, neither will they leave any man unpresented from love, fear, or affection, or in the hope of reward, but will present cases truly as they come to their knowledge, according to their best understanding and according to law. * * * The statutes contain no provision for challeng- (192) Ch. 4] GRAND JURY. § 81 ing grand jurors. * * * The common law requires grand jurors to be good and lawful freeholders and in- habitants of the county in which the crimes they are to inquire after were committed; and where that law pre- vails there seems to be no doubt that if a disqualified per- son is returned as a grand juror he may be challenged before indictment found. * * * But the disqualifi- cation must be such as is pronounced by the common law or by the statute, where the statute prescribes the quali- fications, and such as absolutely disqualifies, as alienage, nonresidence, or the want of a freehold, where a freehold qualification is required, or that the person returned is not an elector of the county, and which would be a cause of principal challenge, as distinguished from challenge to the favor, arising from bias, prejudice, interest, or the like. I have examined with considerable care the au- thorities bearing upon this question, but find it nowhere laid down that the expression of an opinion by a grand juror, before he was summoned or returned and sworn, that the defendant was guilty, was ever a ground of chal- lenge in theEnglish courts. But in this country there are some respectable authorities in favor of allowing it to be a sufficient ground of challenge, whilst other authori- ties, equally respectable, hold the contrary. Nearly all the authorities of the former class, however, hold that the exception might be taken before the juror is sworn, and, if taken afterwards, it cannot be allowed."* § 81. Testimony of Members of the Grand Jury Concerning Their Proceedings. Testimony will not be allowed concerning the pro- 8 State V. Hamlin, 47 Conn. 105. (193) Adm. Off.— 13. ■ § 81 ADMINISTRATIVE OFFICERS. [Ch. 4 ceedings of members of the grand jury except in cases of perjury, possibly mistalvc, and where witnesses testify differently in the subsequent trial. In the case of State v. Fasset" it was held, after stating that petit jurors cannot be permitted to testify to facts occurring among themselves to impeach the verdict: "We cannot see why the principle which governed the court in the case of petit jurors is not equally applicable here. There are considerations which seem to make the objections stronger in case of the grand jury than the petit jury. * * * It is the peculiar policy of the lav/, in the furtherance of justice, that this preliminary inquiry should be conducted in secret. * * * Tj^e grand jury swear : 'The secrets of the cause, their own and their fellows', they will observe and keep.' The se- crets of the cause must relate to the persons accused, the witnesses, who they are, and what they testified. 'Their own and their fellows' secrets' must refer to the deliberations and the votes of the grand jurors them- selves. And it was early decided that a grand juror should not be allowed to swear what was given in evi- dence before the grand jury, because he is sworn not to reveal the secrets of his companions. An exception to this may be found when a witness testifies differently on the trial before the petit jury from what he did before the grand jury; then the grand jury may be called to contradict him on that trial, or on his trial for perjury^ though this (it is said) has been denied."^^ In the case of State v. Coffee,^^ the state offered three 10 state V. Fasset, 16 Conn. 467. 11 See, also, State v. Hamlin, 47 Conn. 95. 12 State V. Coffee, 56 Conn. 410. (194) Ch. 4] GRAND JURY. § 81 members of the grand jury which indicted the prisoner to testify to declarations made by him in their hearing in the grand-jury room. To the admission of this evi- dence, counsel for the prisoner objected, but the court admitted it, Judge Carpenter, in rendering the decision of the court, stating: "Proceedings before and by the grand jury may be classified as follows : The taking of testimony, the deliberations, and the voting. In respect to the deliberations we know of no reason why the obli- gation of secrecy should not be perpetual. It is due to the jurors themselves that their views and opinions should never be called in question or made public. In no other way can complete independence and freedom of action be secured. « * * The voting should be re- garded as equally sacred, with one possible exception, — if a mistake occurs, and a bill is returned as a true bill, when the requisite number did not so vote, on a motion to quash the indictment, perhaps, in the interest of jus- tice, that fact might be shown. To that effect we be- lieve there are some decisions. Some of the reasons given for keeping the testimony secret are temporary in their nature, and some do not exist under our practice where the prisoner is before the grand jury; never- theless, the oath and the policy of the law have ever regarded the testimony as among the secrets of the grand-jury room. Not, however, inflexibly so. In State V. Fasset, 16 Conn. 457, the court notices two exceptions, — ^in prosecutions for perjury, and in case witnesses tes- tify differently on the trial. Perhaps it would be proper to say that the oath has this implied qualification : that the testimony is to be kept secret unless a disclosure is (195) § 81 ADMINISTRATIVE OFFICERS. [Ch. 4 required in some legal proceeding. It does not seem that the policy of the law should require it to be kept secret at the expense of justice. * * * It would seem as though the sentiment of the state has hitherto limited the exceptions to prosecutions for perjury and to contradicting witnesses. Whether it is wise to go further, we will not now undertake to say." It was held in this case of State v. Coffee that the declarations of the prisoner, made in the presence of two or three individuals, not as jurors, and forming no part of their proceedings, must not be excluded merely because they were made in the grand-jury room, and the witnesses who heard them were grand jurors. The court stated: "The declarations sworn to by the witnesses were in no proper sense a part of the secrets of the cause. They relate to the prisoner, it is true, and tend to con- nect him with the crime, but they were in no wise con- nected with the investigation. They were not, and could not have been, properly elicited by the grand jury. They had no right to allow the prisoner to testify, or even to make a statement. His statements were wholly voluntary, and they appear to have been made when the proceedings were at a standstill, — probably while wait- ing for a witness to come in. Suppose that, under such circumstances, he had chosen to make an unqualified con- fession that he was the murderer. Can it be seriously claimed that evidence of such a confession would have been inadmissible? It was no part of the du.ty of the grand jury to procure such a confession. In listening to it they stood upon the same footing with any other per- son who might have happened to hear it, and may, with the same propriety, testify to it. The statements made (196) Ch. 4] GRAND JURY. § 83 in this case do not differ in principle from full confes- sions. We think there was no error in admitting this evidence." S 82. Record. The record of a grand jury imports verity, and cannot be attacked collaterally before another tribunal. If a mistake is made, such as the indorsement of "True bill," when the indorsement should be, "Not a true bill," the prisoner should resort, first, at least, to the court whose records are called in question.^* 13 Whitten v. Spiegel, 67 Conn. 553. (197) CHAPTER V. ATTORNEYS AT LAW. § 83. In General. 84. Admission to the Bar. 85. Challenging of Authority of an Attorney. 86. Continuance of Relation. 87. Interest. 88. Conduct of an Attorney in Trial of a Case. 89. Right of Access to a Client in Criminal Cases. 90. Presumption of Notice and Knowledge. 91. Attorney Acting for Different Parties in the Same Litigation 92. Personal Liahility. 93. Liability of an Attorney to an Officer Whom He Employs. 94. Confidential Communication. 95. Transaction between Attorney and Client. 96. Attorney's Lien. 97. Power of Attorney over Incidental Matters Connected with Suit. 98. Power to Release Attachment. 99. Power to Waive Objection. 100. Enforcement of Agreements between Counsel. 101. Power of Counsel to Agree to Amendment. 102. Fees and Charges. 103. Disbarment. § 83. In General. The late Chief Justice Andrews, in giving the opinion in the case of Fairfield County Bar v. Taylor,^ stated the following qualifications for an attorney at law. They are stated in such clear language, and aim at such a high 1 Fairfield County Bar v. Taylor, 60 Conn. 17. (198) Ch. 5] ATTORNEYS AT LAW. § 84 standard of excellence in the profession, that they are quoted here at length : "It is not enough for an attor- ney that he he honest. He must be that and more. He must be believed to be honest. It is absolutely essential to the usefulness of an attorney that he be entitled to the confidence of the community wherein he practices. If he so conducts in his profession that he does not de- serve that confidence, he is no longer an aid to the court, nor a safe guide to his clients. A lawyer needs, indeed, to be learned. It would be well if he could be learned in all the learning of the schools. There is nothing to which the wit of man has been turned that may not become the subject of his inquiries. Then, of course, he must be specially skilled in the books and the rules of his own profession. And he must have prudence and tact to use his learning and foresight and industry and courage. But all these may exist in a moderate degree, and yet he may be a creditable and useful member of the profession, so long as the practice is to him a clean and honest function. But, possessing all these great facul- ties, if once the practice becomes to him a mere 'brawl for hire,' or a system of legalized plunder, where craft, and not conscience, is the rule, and where falsehood, and not truth, is the means by which to gain his ends, then he has forfeited all right to be an officer in any court of justice, or to be numbered among the members of an honorable profession." § 84. Admission to the Bar. The examining committee for admission to the bar has provided rules which must be observed by candi- dates, and a copy of which may be obtained from one of (199) § 86 ADMINISTRATIVE OFFICERS. [Ch. 5 the members of the committee, or through the clerks of the superior court. Under the statute regulating ad- mission to the bar, a woman may be admitted as an at- torney.^ S 85. Challenging of Authority of an Attorney. After an attorney has appeared in a cause in the coun- ty court for the plaintiff, and is entered there as attor- ney for the plaintiff, and the case has been appealed, it is too late to challenge his power to appear.* § 86. Continuance of Relation. If an attorney has been retained in a single matter for a client, the attorney has no general authority to appear for the client in other matters, nor has the client, without giving special instructions, the right to presume that the attorney will so appear for him in other matters, even though they may have some bearing on the contro- versy in which he was retained, although in such a case, if the attorney does not act, and the client is damaged thereby, the client may have a right to a new trial if he has not been negligent in looking after his own interests. For example, in the case of Day v. Welles,* which was a bill in equity, the plaintiff was the garnishee in an ac- tion brought by Welles against the Tunxis Company. He employed counsel in that action to appear and made disclosure, and was found not indebted to the Tunxis Compauy. Subsequently the plaintiff was served with process of i^c'u-c fiickis founded upon that proceeding, 2 In re Hall, 50 Conn. 131. 3 Cockran v. Leister, 2 Root, 348. 4 Day V. Welles, 31 Conn. 344. (200) Ch. 5] ATTORNEYS AT LAW. J^ 83 and failed to appear, under the erroneous belief that the counsel retained by him in the original proceeding, in which he was garnishee, would, as a matter of course and of professional practice, appear for him in the scire facias without a further retainer. In consequence of the plaintiff's failure to appear, judgment was rendered against him in the scire facias proceeding upon default. It was held that, under the circumstances, the plaintiff should be allowed a new trial, as he had not been guilty of negligence. § 87. Interest. The mere fact that an attorney was retained to ap- pear and defend in a certain suit, and that he did not ap- pear and defend therein, without showing that his client had any available defense, or sustained any damage by his negligence, does not show such an interest in him as will render him an incompetent witness for his client in another suit.^ It is not proper for a judge or an assistant judge to appear as counsel in a case in his own court when his associate is on the bench. Such conduct is an impro- priety, in violation of sound professional ethics. The judge on the bench, however, is not charged with the duty of preventing his associate from so acting.® § 88. Conduct of an Attorney in Trial of a Case. The court has power to punish an attorney who is guilty of improper conduct in the trial of the case. He may be fined, suspended, or even disbarred (in the latter 5 Carrington v. Holabird, 17 Conn. 531. 6 French v. City of Waterbury, 72 Conn. 435. (201) § 88 ADMINISTRATIVE OFFICERS. fCh. 5 case after hearing) for unprofessional conduct. Dis- respect to the court, violent language, continued im- proper questions to witnesses after warnings by the judge, and many other acts may be sufficient to authorize punishment of the attorney. In a trial before a jury, in argument, it is always im- proper to refer to evidence that has been excluded by the court, and, if continued after warning by the judge, may make the offender liable to punishment. In the case of Cunningham v. Fair Haven & W. E. Co.,''^ counsel for the plaintiff attempted to read to the jury from the finding of facts of another case reported in the Connecti- cut reports, and the defendant's counsel moved that the jury be dismissed. Judge Hamersley s.tated: "The court has a large discretion in dealing with such a mo- tion. While the power to grant may be clear, the use of that power may not always best promote justice, and the sitting judge has means of discerning the wiser course, which cannot well be spread upon a record. * * * The improper reading from reports seems to have no explanation ; possibly the court thought counsel had not gone far enough to get anything damaging before the jury. The language actually used does not appear in the finding. The court has power to discharge a jury for just cause. » * * The perversion of argument by counsel to the purpose of tampering with a jury must be suppressed. These are considerations for the trial judge to weigh, and we should hesitate in any case to review his decision without strong reason. ♦ * ♦ It should be distinctly understood that an attorney T Cunningham v. Fair Haven & "W. R. Co., 72 Conn. 244. (202) Ch. 5] ATTORNEYS AT LAW. § 90 who indulges in such unprofessional conduct not only subjects himself to the penalty appropriate to a violation of the attorney's oath, but also exposes the client he rep- resents to a loss of the verdict, to which he might other- wise be entitled." § 89. Eight of Access to a Client in Criminal Cases. The sheriff, as keeper of the jail, should, at rea- sonable times and under reasonable conditions, permit the free access of the attorney to his client, and this duty may be enforced.* § 90. Presumption of Notice and Knowledge. A notice given to an attorney is presumed to have reached his client.® An attorney at law is not presumed to remember trans- actions that occurred years in the past. In the case of Goodwin v. Dean^** an attorney at law drew a mortgage of certain real estate to the assignor of the plaintiff, which was executed and acknowledged by "H." in the presence of the attorney, he signing as magistrate. This mortgage was dated May 27, 1867, and not recorded un- til March 22, 1877. On April 1, 1876, the defendant took two mortgages covering the same property, both recorded in reasonable time. Suit was brought to fore- close the first mortgage, the plaintiff insisting that it should have the preference, even though not recorded, on the ground that the defendant, being the attorney at law by whom the original mortgage was drawn and he- s state v. Cross, 72 Conn. 728. 9 Sweeney v. Pratt, 70 Conn. 282. 10 Groodwin v. Dean, 50 Conn. 517. - (203) § 91 ADMINISTRATIVE OFFICERS. [Ch. 5 fore whom it was executed, took his mortgage with knowledge of the plaintiiJ's mortgage. Carpenter, J., stated : "The law will not presume that the defendant, when he took his mortgages, had in mind the fact that, nine years before, the mortgagor mortgaged the same property to a third party. If he did not have it in mind, he is not in any proper sense chargeable with knowledge. If there was no knowledge, there was no fraud, and, if no fraud, the defendant's equities are prior in right, and must prevail." § 91. Attorney Actings for Different Parties in the Same Liti- gation. An attorney at law is not permitted to represent con- flicting interests, but he may act for several parties who ask for the same judgment. In the case of Merwin v. Eichardson," which was an action by the creditors of an insolvent for the conveyance of certain property to the trustee in insolvency, in which certain other credit- ors were nominal parties defendant, these last-men- tioned creditors filed a cross complaint, also praying for such a transfer. The same attorney represented the creditors of the plaintifE and those who had filed the cross complaint. A motion to erase the cross complaint was made on the ground that the same counsel repre- sented confiicting interests. Judge Carpenter stated: "We agree that the same counsel, at the same time and in the same case, cannot represent different parties whose claims are antagonistic; but where, as in this case, there are several parties asking for the same judg- 11 Merwin v. Richardson, 52 Conn. 234. (204) Ch. 5] ATTORNEYS AT LAW. § 91 ment, their interests do not conflict, and we see no ob- jection to the same counsel acting for all such parties, notwithstanding the accidental circumstance that some of them are classed as plaintiffs and others as defend- ants." An attorney who has been counsel for the receiver of a corporation will not be permitted to act as counsel for his successor, after the removal of the original receiver, on an appeal by the original receiver from the order of removal. In the case of In re Premier Cycle Mfg. Co.,^^ where the facts were as stated above, the court, in the opinion, said : "The relation of counsel and client is one of so great confidence that, though the client may occupy such an official position as to represent the court, his successor in office, without his free consent, ought not to be permitted, even with the sanction of the court (which, we are informed, was here given), to avail him- self of the services of the same counsel in any inquiry as to whether the previous administration was properly conducted. Particularly is this true where, as in this case, the counsel for the first receiver had before been counsel for him personally, and brought, as such, the action in which a receivership was sought." It is not proper for an attorney who has acted for the garnishee in making a disclosure to act in the scire facias proceeding based thereon for the opposite party.^^ In the case of Sprague v. Taylor" the defendant, an attorney at law, was employed by one Kent to collect judgment against Daniel Sprague for |1,849.82. Pre- 12 In re Premier Cycle Mfg. Co., 70 Conn. 482. 13 Day V. Welles, 31 Conn. 344. "Sprague v. Taylor, 58 Conn. 542. (205) § 92 ADMINISTRATIVE OPFICaRS. [Ch. 5 viously he had been consulted by Sprague and wife con- cerning a bond on which this judgment was based. He therefore had reason to believe that the plaintiff would come to him for advice. He had a writ signed by an- other attorney, and served by an officer on Sprague and wife, for the purpose of leading them to believe that the suit was brought by another attorney. Subsequently Sprague and his wife came to the defendant for advice, and retained him to defend the case which he had him- self brought. He examined the records of the case wherein judgment was rendered, and informed the plain- tiffs that Mrs. Sprague (one of the plaintiffs) had signed the bond with her husband, a fact which he knew to be untrue. He told her that she was liable, and advised her to settle. She thereupon paid |1,875 in settlement of the suit. . Action was brought by the plaintiffs, to recover the money so paid. The defendant was held to be guilty of gross fraud, and was subsequently dis- barred. § 92. Personal Liability. An attorney at law is liable for any damage caused to his client by his negligence in managing the client's affairs. What is negligent conduct will, of course, de- pend upon the circumstances of each case. An attorney is allowed a certain discretion, and the facts showing negligence must be very clear in order to import per- sonal liability on the part of the attorney. "An attorney who receives a note or other evidence of debt for collection is undoubtedly liable for the debt if it be lost by his negligence, but the loss of the note, or other ordinary evidence of the debt, does not necessarily (206) Ch. 5] ATTORNEYS AT LAW. | 93 involve the loss of the debt itself, and, in order to charge the attorney with the debt, the inquiry must be, not whether the ordinary evidence of the debt is lost by his negligence, but whether the debt itself is lost."^^ § 93. Liability of an Attorney to an Officer Whom He Em- ploys. An attorney placing a writ in an officer's hands for service is to be regarded as personally requesting serv- ice, and as personally liable for it, unless he expressly informs him that he will not be personally liable, or there are circumstances that make it clear that that was the understanding of the parties.^® In the case of Higgins v. Eusso^^ the defendant, who was an attorney at law, gave a writ to ^^^illiam E. Hig- gins, deputy sheriff, with instructions te attach certain property, the title to which the defendant knew to be in dispute. The defendant knew that the attachment would probably be contested, and he had received money from his client to contest the validity of the attachment. Subsequently the plaintiff was obliged to pay a judg- ment against him, secured by the owner of the prop- erty, by reason of this attachment. Judge Hall, in ren- dering the opinion, said : "The officer was not referred to the attorney's clients, nor did he know them. He re- ceived all his instructions from the defendant, and was by him expressly directed to take this particular prop- erty, and to hold it. Under the circumstances the attor- ney is justly regarded as having personally requested 15 Huntington v. Rumnill, 3 Day, 396. 16 Heath v. Bates, 49 Conn. 342. " Higgins V. Russo, 72 Conn. 238. (207) § 94 ADMINISTRATIVE OFFICERS. [Ch. 5 the services rendered, and as having personally directed the plaintiff to take the property attached. He is there- fore personally liable for the consequences of his acts, one of which is the legal inference, from these facts, of a promise to reimburse the officer for any loss suffered by having taken the property of the wrong person." § 94. Confidential Communication. An attorney at law is never permitted to divulge any facts which he has learned in his professional relations with his client in any subsequent proceedings, and against the client's interests. An attorney at law can- not be compelled to produce any paper delivered to him as counsel in another case by a client, with instructions not to make use of it in court.^* The rule concerning confidential communication ap- plies only to the attorney and his clerk. If the client discusses his affairs with his attorney in the hearing of another person, who is not a partner or clerk of the at- torney, such person may be compelled to testify to what he has heard. In the case of Goddard v. Gardner^® the consultation between the attorney and the clients was held at the house of the attorney, and in the presence of the attor- ney's son, who was not connected with his father's legal affairs, but had charge of his farm. An effort was made subsequently to produce this son as a witness to the con- versation between his father and the clients. Judge Sanford stated: "The confidential attorney, solicitor, or counselor can never be called as a witness to disclose isLynde v. Judd, 3 Day, 499. 19 Goddard v. Gardner, 28 Conn. 172. (208) Cli. 5] ATTORNEYS AT LAW. § 94 papers committed or communications made to him in that capacity unless the -client himself consents to such disclosure. The rule, also, like the reason of it, extends to interpreters, and to clerks and agents employed by the attorney, etc., in the business committed to his charge, but extends no further. * ♦ » But as the protection it affords is the privilege of the client, he may renounce or waive it at his pleasure. No reason of ne- cessity requires that any witnesses ( save an interpreter ) should ever be present at a consultation between the client and his attorney, and, if the client procures or submits to the presence of such a witness, he voluntarily, confides his secrets, not to his attorney only, but also to the witness in whose custody the law cannot protect them when the interests of justice require that they should be disclosed. In the case before the court the consultation was held in the presence of a witness in no way con- nected with the case or with the parties, whose presence was unnecessary, whose services were in no way appro- priated, and who had no interest in or connection with the professional business of the attorney. The facts communicated in that consultation were voluntarily communicated to the witness, as well as to the attorney. The rule which enjoins the attorney's silence does not extend to such a witness, and the court below erred in refusing to hear his testimony."^" If, however, an attorney knows, no matter from what source, that his client is about to commit a crime, he is held to owe a higher duty to society, and especially to the intended victims of his client's crime, than that 20 See, also, Pulford's Appeal from Com'rs, 48 Conn. 247. (209) Adm. Off.— 14. § Gen. St. § 2482. 60 Gen. St. § 2483. (235) § 106 ADMINISTRATIVE OFFICERS. [Ch. 6 lect and discharge the debts of one supported as a pau- per by the town.^^ Where a person, having a settlement in one town in the state, leaves that town and takes up his residence in some other town, and, before having gained a settlement in the latter town, he or his family becomes a charge upon it, the selectmen of the latter town may notify the town to which the pauper belongs to remove him, and, on failure to make such removal, may obtain a warrant from a justice of the peace authorizing any constable of the town to remove the person to the town where he has a settlement.^^ Or, in the event of any indigent person's being brought into and left in any town in the state of which he is not an inhabitant, and becoming a charge to the town within one year from the time of his being brought into and left there, the selectmen may demand of the one causing such a person to be brought into and left- there that he remove this person to the town from which he came, and, on his failing to do so, he becomes liable to pay to the town the sum of sev- enty dollars. Bi "We can hardly regard the expression 'overseers of the poor,' as used in our statute, as intended by the legislature to confer on the selectmen the same powers J., said: "All suits take effect from the date of their service upon the defendant. This has been held by this court in numerous decisions. Now, the summons in the summary pro- (2Y2) Ch. 8] CONSTABLES, ETC. | II3 indifferent person,^" but no process shall be directed to an indifferent person unless more defendants than one are therein named, and described as of different counties in the state ; or unless, in the case of a writ of attachment, the plaintiff or one of the plaintiffs, if there are more than one, or his or their agent or attorney, shall make oath before the authority signing such writ that the affiant verily believes the plaintiff is in danger of losing his debt or demand unless an indifferent person be deput- ed for the immediate service of the writ or other pro- cess. Said authority shall certify on the writ that he administered such oath, and insert in the writ the name of the person to whom it is directed,*^ but it is not nec- essary that he insert the reason of such direction. Any process directed to an indifferent person in consequence of such an affidavit shall be abatable, on the proof that the party making such affidavit did not have reasonable grounds, at the time of making it, for believing the statements therein to be true.*^ The oath which is re- quired to be administered must be in the required words ceeding was served on the 16th. day of December. The suit, there- fore, commenced on that day; and whether the complaint and sum- mons were dated the day preceding or not is of but little impor- tance, provided they were issued on the day they were served." Taylor v. Judd, 41 Conn. 485. io The indifferent person must not be a minor. Tyler v. Tyler, 2 Root, 519. 11 The provision that the officer shall insert in the writ the name of the person to whom the writ is directed is held to be satisfied if the direction is indorsed on the writ. Kellogg v. Wadhams, 9 Conn. 207. 42 Gen. St. § 568. (273) Adm. Off.— 18. § 113 ADMINISTRATIVE OFFICERS. ^Ch. 8 of the statute,*^ except as to the description of the claim or demand, in which respect, any words which, in point of fact, are accurate in such description, will he suffi- cient.** An indifferent person is not obliged to make oatli to tlie truth of his return.*^ A writ directed to an indiiferent person, or to a sheriff, in the disjunctive, is abatable.*'^ The slieriff, on any special occasion, may depute in writing, on the back of the process, any proper person to serve it, who, after doing so, must make oath before a justice of the peace that he faithfully served it accord- ing to his indorsement thereon, and did not fill up the I)rocess, or direct any person to fill it up ; and upon the justice of the peace certifying on the -process that he ad- ministered this oath, the service shall be valid.*^ The person deputed may be one of the inhabitants of a town named as defendant in a service.*^ Except as otherwise provided, process in civil actions is served by leaving a true and attested copy of it, in- cluding the declaration or complaint, with the defend- ant, or at his usual place of abode in this state.** Pro- cess in civil actions is served against the following de- scribed classes of defendants as follows: In actions against a county, on one of the county commissioners; 43 Case V. Humplirey, 6 Conn. 139; Kellogg v. Wadhams, 9 Conn. 207; Augur v. Augur, 14 Conn. 84. a Gillett V. Jolinson, 30 Conn. 394. 45 Edmonds v. Buel, 23 Conn. 242. 46 Thatcher v. Heacock, 1 Root, 284. 47 Gen. St. § 569. 48 Clark V. Bray, Kirby, 240. 40 Gen. St. § 571. (274) Ch. 8] CONSTABLES, ETC. g II3 against a town, on its clerli or one of its selectmen; against a city, upon its clerk, assistant clerk, or upon its mayor ; against a borough, on its clerk, on the warden, or one of its burgesses; against a school district, on its clerk or one of its committee ; against other municipal or quasi municipal corporations, upon its clerk or upon its chief presiding officer or managing agent.^'* In actions against private corporations, service may be made either upon the president, the vice-president, the secretary, the assistant secretary, the treasurer, the assistant treasurer, the cashier, assistant cashier, the teller, assistant teller, or its general or managing agent, or upon any director residing in the state. When none of such officers or directors can be found, service may be made upon the person in charge of the business of the corporation, or upon any person who is, at the time of service, in charge of the office of the corporation in the town in which its principal place of business is lo- cated.^^ In actions against private corporations established un- der the laws of the United States, or of any other state 60 Gen. St. § 571. BiGen. St. § 571. Park, J., said: "We think it is clear that the principal place of the business of a corporation, or where it exer- cises its corporate powers, * * * is where the governing power of the corporation is exercised; where those meet in counsel who nave a right to control its affairs, and prescribe what policy of the corporation shall be pursued, and not where the labor is per- formed in executing the requirements of the corporation, in trans- acting its business." Middletown Ferry Co. v. Town of Middle- town, 40 Conn. 70. (276) § 113 ADMINISTRATIVE OFFICERS. [Ch. 8 or foreign country, service may be made upon any of the oflScers or agents mentioned above in reference to the service of process upon private corporations established under the laws of this state, or upon the resident attor- ney of such corporation, appointed in pursuance of sec- tion 3931 of the General Statutes. Under this section, every foreign corporation having an office or place of business in this state, except insurance companies, sure- ty companies, and building and loan associations, musi^^, before doing business in this state, appoint in writing the secretary of state and his successors in office to be its attorney, upon whom the process in any action or pro- ceeding against it may be served; and in such writing the corporation must agree that any process against it served on such secretary shall have the same legal force and validity as if served on the corporation, and that such appointment shall continue in force so long as any liability remains outstanding against the corporation in this state.^^ Service upon said attorney will be suffi- cient service upon the principal, and it may be made by leaving a duly-attested copy of the process with the secretary of state, or at his office.^^ Where all the officers of a private corporation trans- ferred their shares of stock to one person, and resigned their respective offices for the purpose of avoiding serv- ice of process upon the corporation, service upon an offi- B2 This written appointment must be acknowledged before some oflScer authorized to take acknowledgment of deeds, and must be filed in the office of the secretary of state, and copies certified by him constitute sufficient evidence of such appointment and agree- ment. Gen. St. § 3931. 53 Gen. St. § 3931. (276) Oh. 8J CONSTABLES, ETC. § 113 cer, who could otherwise have been properly served, was held to be good.^* If any corporation organized under the laws of this state has no officer or agent on whom process against it can be served, any judge, clerk, or assistant clerk of a superior court, court of common , pleas, or district court of Waterbury, to which any action against such corporation is brought, may authorize service of process in said action upon the corporation by advertisement, or may make such other or further order concerning such service of process as may be deemed reasonable, and service made in accordance with such an order will be considered sufficient service of process upon the corpora- tion.s^ Service of process in actions against voluntary asso- ciations may be made upon the presiding officer, the secretary, or the treasurer.®® In civil actions against nonresident executors or ad- ministrators in their respective capacity, process may be served by leaving a true and attested copy with or at the office or the usual place of abode of the judge of probate in the district where the estate is in settlement, and the latter must forthwith give notice of the service to the executor or administrator.®''^ In actions on joint contracts, the service of the process on such of the defendants as are inhabitants of this state will be sufficient notice to maintain the suit against 64 Evarts V. Killingworth Mfg. Co., 20 Conn. 456. 65 Gen. St. § 572. 66 Gen. St. § 573. 67 Gen. St. § 574. As to the service of process on a nonresident in cases of quo warranto, see Gen. St. § 575. (277) § 113 ADMINISTRATIVE OFFICERS. [Ch. 8 all the defendants.^® It is not necessary, however, that the defendant on whom service is made should he an in- habitant permanently residing in this state, but it is sufficient if he is temporarily within the state at the time when service is made on him.^^ In an action on a joint contract against two persons, describing one of them as a nonresident of the state, service on the other alone is sufficient, although the former should become an inhabitant of the state before the return day of the writ.®" In actions on joint con- tracts, where both the defendants are named in the writ as residents of this state, service must be made on each individually, or it is abatable.*'^ Such individual serv- ice, moreover, is held to be necessary even where the defendants are both residing in the same house. Several courts other than courts of probate, and the judges, clerks, and assistant clerks thereof, or any coun- ty commissioner, either in term time or in vacation, may, unless it is otherwise specially provided by law, make such order as may be considered reasonable regard- ing the notice which shall be given of the institution or pendency of all complaints, writs of error, and appeals from probate which may be brought to or are pending in any court, when the adverse party, or any person so interested therein that they ought to be made parties thereto, reside out of the state, or when the names or 58 Gen. St. § 577. 53 Bishop V. Vose, 27 Conn. 1. In this case the defendant was in th3 state attending the trial of a case in which he was a party plaintiff. CO Bishop V. Bull,! Day, 141. «i Butts V. Francis, 4 Conn. 424; Draper v. Moriarty, 45 Conn. 478. (278) Ch. 8] CONSTABLES, ETC. § 113 residences of any such persons in interest are unknown to the party instituting the proceeding ; and where such notice has been given and proved, it will be deemed suffi- cient service and notice, and the court may proceed to a hearing at the first term or session, unless it is other- wise provided by law, or it may order further notice, as it may deem reasonable.®^ Borough bailiffs may execute, within their respective boroughs, all legal process which sheriffs or constables can execute.®^ As has been said above, process must be completed by the officer by whom it has been begun;®'' but if an officer to whom any process is directed dies, or is re- moved from office after he has commenced to serve, but before completing such service, any other proper officer may complete the same.®^ If the term of office of any officer to whom any process is directed, and who has com- menced to serve it, expires before the completion of the service, he may nevertheless proceed to complete it in the same manner and with the same effect as if he still remained in office.®® When any officer shall have commenced the service of any civil process within his precincts, he may attach the property of or serve said process on any defendant therein named without his precincts;®'^ but no officer will be deemed to have commenced service in any civil 62 Gen. St. § 578. 63 Gen. St. § 576. 64 See page 272. 65 Gen. St. § 580. 66 Gen. St. § 580. 67 Gen. St. § 581; Tomlinson v. Collins, 20 Conn. 377. (279) g 113 ADMINISTRATIVE OFFICERS. [Ch. 8 action brought by process of foreign attachment by service on the garnishee named therein unless the gar- nishee has, in his hands, or at the time of such service, the goods or effects of the defendant, or is indebted to him.*^ Every officer serving a process must indorse on it the items of his fees, or the number of miles which he has traveled, and, in the event of his demanding and re- ceiving, on any civil process, more than his legal fees, he must pay three-fold the amount of all the fees de- manded to the defendant in the action in which the ille- gal fees were exacted, if the latter has paid those fees ; otherwise to the plaintiff in the action.'''' This does not apply, however, in any case where the fees claimed to be illegal have been taxed and allowed by the proper au- thorities.''''' This section applies only to process in civil actions.''^^ Any process in any civil action served by any officer before he has given the bond required by law will abate.^^ All civil process, except complaints for injunctions and orders thereon, issued or served between sunrise and sunset on Sunday, will be void.''^ The signature of the officer on the "true and attested copy" which the law requires him to leave with the de- fendant in the action must be made by himself, and the signing of his name thereto by any one else, whether au- 68 Gen. St. § 581. 69 Gen. St. § 582. 70 Gen. St. § 582. 71 Stoddard v. Couch, 23 Conn. 239. 72 Gen. St. § 583. "Gen. St. § 584. (280) Ch. 8] CONSTABLES, ETC. §113 thorized by the officer or not, ^^'ill constitute a defect in tlie service. An officer cannot autliorize anotlier to per- form an official act required by law of himself.''^* Where, in a copy of a writ left with the defendant in an action, the date of the return day is illegible, the defendant must exercise reasonable care to inform him- self of the true date. If he fails to do this, and allows judgment to be taken against him, he has no redress.^^ A nonresident, voluntarily submitting to jurisdiction, waives service. '^^ It has been held that the same writ may be twice served if the proper erasures and indorsements are made, and it appears that the second service of the writ is bona fide, and without intention to needlessly vex the defend- ant. This would not be allowable, however, where the rights of the defendant would be essentially affected thereby, in which case the officer might be compelled to restore his original indorsement, either upon motion or upon writ of mandamusJ'' 74McGuire v. Churcli, 49 Conn. 248. 75 Woods V. Brzezinski, 57 Conn. 471. 76 Haussman v. Burnham, 59 Conn. 136. 77 A writ of attacliment in an action of book debt in favor of A. against B., dated the lOth of November, was served on tliat day by attaching tbe property of B., and leaving a copy with him. While this writ was in the officer's hands and returned, A. discovered that his claim, which was the subject of the suit, was not then due. The officer thereupon, at A.'s direction, erased his indorsement of service on the writ, and with the same writ, without other alteration, attached the same property on the 14th day of the following January, after A.'s claim had become due, and, having indorsed the writ as served on that day, returned it to the clerk of the court. B. pleaded the general issue, and at the trial objected to a recovery by A. on the ground "that no cause of action had accrued when the (281) § 113 ADMINISTRATIVE OFFICERS. [Ch. 8 If an officer, in making service, by mistalte or otlier- wise, does an injury to tlie defendant, tlie officer alone is liable, unless it appears that he is acting under the plaintiff's instructions, or the plaintiff, after knowing what had been done, approves of it, or in some way takes benefit from the officer's wrongful act/^ If the plain- tiff, in an action, undertakes to instruct the officer as to the manner in which process shall be served, and, in following out these instructions, loss is occasioned to the plaintiff, the officer is not liable thereforJ^ Service of civil process upon Thanksgiving Day is void.^° Where the only service of a bill in equity upon the defendant corporation was by the acceptance of serv- ice by the attorney, whom the president of the corpora- tion requested to make such acceptance as attorney for the corporation, but the corporation had not authorized the president to accept service of legal process, or to ap- point its attorneys, and the corporation was accustomed to appoint its attorneys only by a vote of its directors, it was held that the service was not a legal one.*^ The city sheriff of the city of Waterbury may lawfully serve a writ of summary process in which the residence of the parties and of the justice and the location of the premises are all described as of the town of Waterbury.*- Wherever the performance of some municipal duty action was commenced. The court held this not to be a good ob- jection. Ward V. Curtiss, 18 Conn. 290. 78 Daniels v. Wilcox, 2 Root, 346. 79 Bacon v. Fitch, Kirby, 374. 80 Gladwin v. Lewis, 6 Conn. 49. 81 Bridgeport Sav. Bank v. Bldredge, 28 Conn. 555. 82 Miller v. Lampson, 66 Conn. 437. (282) Ch. 8] CONSTABLES, ETC. § 113 is sought to be compelled by a writ of mandamus, the writ should be directed to that officer or board of the municipal government which is specially charged with the performance of the thing ordered to be done. If the municipal corporation has no such officer or board, the writ may then be directed to the municipality by its corporate name.^^ An attorney, by placing a writ in an officer's hands, is to be regarded as personally requesting the service, and is personally liable for it unless he expressly in- forms the officer that he will not be so liable, or the cir- cumstances are such that it is clear that that was the un- derstanding of the parties.®* An officer is not bound to look outside of the precept which is placed in his hands for service. If that, on its face, is good, and if it appears to have issued from com- petent authority, and with legal regularity, it is his duty to serve it, and he will be protected in making the serv- ice which it requires.®^ His duty in this respect, more- over, is not affected by any knowledge which he may have of anyfacts showing the existence or want of a cause of action.®^ On the other hand, however, if the process on its face shows that it was issued without authority, no officer can be justified in executing it.*^ A sheriff's return is declared to be prima facie evi- dence of the facts stated in it.*® The rule that every 83 state V. Towers, 71 Conn. 663. 8* Heath v. Bates, 49 Conn. 345. See, also, chapter on "Attorneys at Law." 85 Neth V. Crofut, 30 Conn. 581. 86 Watson V. Watson, 9 Conn. 141. 87 Bowler v. Eldredge, 18 Conn. 13. 88 Butts V. Francis, 4 Conn. 424; Perkins v. Perkins, 7 Conn. 558. (283) § 113 ADMINISTRATIVE OFFICERS. [(Jh. 8 man acting officially is presumed to have done his duty until the contrary appears applies to the acts of officers in making their returns.^® Moreover, the return of an officer should receive a reasonable construction, and, where it is susceptible of two meanings, that meaning should be adopted which more nearly conforms to the officer's legal duty.^" Where, however, an officer, after having attached goods and taken them into his custody, turns them over to the attaching creditors in accordance with a plan of settlement made between the debtors and the creditors, and makes no return of the writ to court, the failure to return the writ under such circumstances will not ren- der him liable to a third person, who makes demand upon him for goods after they have been disposed of as above. The officer being justified in delivering up the property to the creditors under the agreement between them and the debtor, his neglect to return the writ was a matter of which a third person cannot take advan- tage.^^ As has been said above, it is incumbent upon a con- stable, within thirty days after the commencement of his term of office, to furnish to the selectmen of the town a sufficient bond, conditioned that he will faithfully perform the duties of his office. His failure to do this renders his office vacant, and all process served by him before the furnishing of the bond is abatable. His neg- lect in this respect, however, does not of itself render his acts invalid as far as the public and third persons are s9Bootli V. Booth, 7 Conn. 367. 00 Whittlesey v. Starr, 8 Conn. 134. 01 Halsey v. Huse, 46 Conn. 389. (284) Ch. 8] C0NSTABLE3S, ETC. § II3 concerned. He is still a de facto officer, and it has been repeatedly declared in this state that "the acts of an officer de facto are valid so far as the public and third persons who have an interest in them are concerned, and their validity cannot be directly called in question in a suit in which the officer is not a party."®^ As to what constitutes a de facto officer, the definitions in this state are not entirely in harmony. In State v. CarrolP^ the important cases bearing on the question are very carefully considered, and the definition therein, held to be the correct one, is as follows: "An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised : First, without a knoAvn appoint- ment or election, but under such circumstances of rep- utation and acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his ac- tion, supposing him to be the officer he assumed to be; second, under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like; third, under color of a known election or appointment, void because the offi- cer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such in- eligibility, want of power, or defect being unknown to 92 state V. Brennan's Liquors, 25 Conn. 282; Town of Plymouth V. Painter, 17 Conn. 589; Soudant v. Wadhams, 46 Conn. 219. 83 State V. Carroll, 38 Conn. 449. (285) § 113 ADMINISTRATIVE OPPICEKS. [Ch. S the public ; fourth, under color of an election or appoint- ment by or pursuant to a public, unconstitutional law before the same is adjudged to be such."^* An officer de facto cannot collect his fees or claim any rights incident to his office. In order to do so he muse show himself to be an officer de jure. Furthermore, a de facto officer, when he is attacked directly because of his acts, must show color of election or appointment from competent authority in order to be protected.^^ Where an officer renders service unofficially under a private arrangement outside the law between the parties to an action, he himself is not bound by the statutory fees in estimating his charges, although, in the perform- ance of his services, he acts under the forms of law.®* 94 state V. Carroll, 38 Conn. 471. 95 State V. Carroll, 38 Conn. 471. 96 A number of persons, some of whom had attached, and others were ahout to attach, certain personal property of a debtor, and others of whom were threatening to carry the Sebtor into in- solvency, agreed that the property should be sold by the oflBcer who held it upon executions obtained by some of the parties, and that the proceeds should be divided by him pro rata. The prop- erty was located in different towns in the county, but it was agreed that it should all be sold together in one of the towns. After the property had been sold, one of the creditors brought suit against the oflBcer, claiming that he had diminished the funds by receiving sums as fees illegally. In holding that the officer, under the cir- cumstances, was not limited to the fees allowed him by statute, the court said: "The sale at Litchfield of all the property attached, although under the forms of law, was in reality under the private arrangement, outside of the law, between the execution creditors and the defendant;' therefore there is no place for a controversy as to what fees the statute would allow, — it is simply a matter of reasonable compensation for unofiScial services." Blake v. Bald- win, 54 Conn. 8. (286) Ch. 8] CONSTABLES, ETC. § 114 § 114. Attachments of Personal Property. "Attachments may be granted, upon all complaints containing a money demand, against the estate of the defendant, both real and personal, and, for want thereof, against his body when not exempted from imprisonment on the execution in the suit ; but no attachment shall be granted against the body unless each cause of action in the complaint be such that execution may issue against tlie body of the defendant upon a judgment founded thereon."*^ "A writ of attachment shall be served by attaching tliG estate of the defendant, personal or real, or both, and, if none can be found, .by attaching his person when liable to the attachment. When the body of the defend- ant is attached, the officer shall read the writ and com- plaint in his hearing ; and, in every case of attachment, tlie officer serving the process shall leave with the person Avhose estate or body is attached, or at the place of his usual abode, if within the state, a true and attested copy of the process and of the accompanjdng declaration, and of his return thereon, describing any estate at- tached."38 Eemoval of Property. "Attachments of machinery, engines, or implements situated and used in any manufacturing or mechanical establishment, or of the household furniture of any per- son having a family, and used by him in housekeeping, or of hay or unthreshed grain deposited in any building, 07 Gen. St. § 826. OS Gen. St. § 827. (287) §114 ADMINISTRATIVE OFFICERS. [Ch. 8 or of any crop deposited in any building, or of bricli in kilns, or of wood, sawed lumber, railroad ties, or logs when gathered together in piles, which cannot, in the opinion of the officer levying upon the same, be moved without manifest injury, shall be effectual to hold the same without any removal' thereof : provided, the serv- ice of such attachment shall be completed, and a copy of the process and of the accompanying complaint, with the officer's return indorsed thereon, particularly de- scribing the property attached, shall be filed in the office of the town clerk of the town in which such property shall be situated, within twenty-four hours after such attachment shall have been made; and when the levy is upon any such hay, unthreshed grain, crops, or brick, the officer shall also post a notice of his attachment on the outer door, or other conspicuous place, of the build- ing in which such property is situated."^® Except as provided in the foregoing section 831, the officer making the attachment must, as a general rule, take away personal property which he has attached, ex- cept in cases where a keeper may be left in control, to which reference will be made later.i"" In the case of Hollister v. Goodale,^"^ an officer who had a writ of attachment went to the debtor's house, where a ba- rouche was stored. He found the door locked, but ob- tained a key, and, after unlocking the door, entered the building, declaring at the same time that he attached the property within. Before he had actually touched the barouche, another officer, having another writ of 09 Gen. St. § 831. 100 See page 296. 101 Hollister v. Goodale, 8 Conn. 332. (288) Ch. 8] CONSTABLES, ETC. § 114 attachment against the same defendant, sprang in and seized the barouche. Hosmer, C. J., in rendering the opinion, said: "The word 'attach,' derived remotely from the Latin term 'attingo' anA more immediately from the French 'attacher' signifies to take or touch, and was adopted as a precise expression of the thing. * * ♦ The only object of attachment is to take out of the de- fendant's possession, and to transfer into the custody of the law, acting through its legal officer, the goods at- tached, that they may, if necessary, be seized in execu- tion and be disposed of and delivered to the purchaser. From both these considerations it is apparent that to attach is to take the actual possession of property. Hence the legal doctrine is firmly established that, to constitute an attachment of goods, the officer must have the actual possession and custody." It was held that the act of the first-mentioned officer, previous to the seizure by the second officer, did not constitute an attach- ment of the barouche. Except in the cases specified in section 831, if the officer leaves the personal property in the debtor's pos- session, without placing anybody in custody of it, the attachment will be void. "Possession of personal prop- erty is the only indicium of ownership, and the suffering of the debtor, after the service of an attachment or an execution, to retain the possession, is prima facie proof that the attachment or execution levy is fraudulent in respect of creditors. It is of the very essence of a lien by attachment that possession be taken and held, and, when this is reliBRJiiished, there is a termination of the (289) Adm. Off.— 19. § 114 ADMINISTRATIVE OFFICERS. [Qh. 8 lien, and the general owner is remitted to his property unincumbered."^"^ If, however, the property attached cannot be removed without great injury, such as ore in a field, hides in a vat, paper in a mill, at such period of the process of man- ufacture that a removal would cause material damage or destruction, it is dispensed with.^"* In the case of Pond v. Skidmore,^"* personal property situated on an island, which could be reached from the mainland only at low water, was attached by the plain- tiff, a deputy sheriff. The attachment covered the fur- niture in a house used as a summer hotel, and was made in the winter, when there was nobody on the island. The plaintiff posted a notice on the doors of the build- ing, but did not take away the property, owing to the extreme difficulty of so doing. He visited the island sev- eral times subsequently, found the property untouched^ and made a true inventory of the various articles at- tached. He also completed his return on the writ, which was returned to court in due time. Two months after the attachment, the defendant attached the same prop- erty by virtue of a writ against a joint owner of the plaintiff's debtor, and carried a portion of the property away in a boat. In giving the opinion the court stated : "That personal property may be lawfully attached with- out removal, where the officer takes and retains the actual and exclusive possession, is too clear for argu- ment. The rule requiring a removal is a rule of policy for the prevention of fraud, and does not apply when 102 Taintor v. Williams, 7 Conn. 271. 103 Mills V. Camp, 14 Conn. 219. 104 Pond V. Skidmore, 40 Conn. 213. (290) Ch. 8J CONSTABLES, ETC. § II4 the possession is otherwise openly and notoriously changed." If an attachment is made of certain personal property, a portion of which only is removed by the officer making the attachment, the return on the writ describing only the property actually taken, the attachment is valid only as against the portion so actually taken into possession by the officer, even though he may post signs on the building from which the property was taken, stating that everything was attached. The officer cannot sub- sequently testify that all the property in the building was attached, nor can he amend his return to show that he attached all of the property.^ "^ Attachment Not Valid until the Writ is in the Hands of the Officer. The power and duty of an officer depends upon his possession of the process. The latter may be qualified or the officer may be relieved of it altogether by instruc- tions, but it exists only while the power exists, and both come into existence when the process is placed in his hands. Until then he has no authority to act, and cannot be justified in interfering with the person or prop- erty of others. Therefore a real-estate attachment can- not be made by lodging with the clerk a certificate, un- less the writ of attachment is actually in the hands of the officer at the time that the certificate is filed. The same rule applies to the attachment of a bond. The officer must have the writs in his hands to justify such attachment; otherwise he would be a trespasser.^"* lOB Sanford v. Pond, 37 Conn. 588. 106 Wales V. Clark, 43 Conn. 185. (291) § 114 ADMINISTRATIVE OFFICERS. [Ch, 8 Indorsement. It is not necessary for the officer to certify in his in- dorsement on the copy left with the defendant that it is a true copy of the return on the original writ. The copy left with the defendant must, however, contain a statement by the officer that it is a true copy of the orig- inal writ.^"'^ Attachment Covering More than One Day's Time. "Where a variety of articles are attached, as in the case of goods in a store, it will often occupy some con- siderable time for the officer to take possession of, in- ventory, and secure them all. The officer in this case was employed parts of two days in this business. Yet if he goes about the service, and, with no unnecessary delay, continues in it till he has secured all the goods, it should be treated as but one act, and a party who at- tempts, in such a case, to split up a single act into a number of distinct trespasses, is certainly not entitled to have any great favor extended to him."^<*^ If, how- ever, the officer, after he has made his attachment, on a subsequent day decides to take other goods in place of those attached, such conduct may warrant the court in holding that the officer has committed two distinct acts, which may be construed as two separate and distinct trespasses.^"® ■ Nonresident. "When the defendant is not a resident or inhabitant 107 Preston v. Hicock, 9 Conn. 525. 108 Bishop V. Warner, 19 Conn. 467. i 109 Bishop V. Warner, 19 Conn. 467. (292) Ch. 8] CONSTABLES, ETC. '^ 114 of this state, and has estate within the same which is at- tached, a copy of the process and complaint, with a re- turn describing the estate attached, shall be left by the officer with the agent or attorney of the defendant in this state, and, when land is attached, a like copy shall be left in the office of the town clerk of the town where the land lies; and if the defendant has no agent or at- torney within this state, a like copy shall be left with him who has charge or possession of the estate at- tached.""o If both parties to the cause are nonresidents of a state, but the defendant has deposited with a savings bank in this state certain railroad bonds and certificates of stock as security for a loan, and suit is brought by serv- ing garnishee process upon the savings bank, claiming it to be the debtor, agent, and trustee of the defendants, the defendants may successfully plead to the jurisdiction, such attachment being invalid.^^^ Although a person may have in his possession a nego- tiable promissory note made by himself, indorsed in, blank, the property of another, such evidence of indebt- edness cannot be attached by the trustee process as the property of that other, for the reason that the paper is not property, but only the evidence of a right to demand property, and that money which it represents can only be sequestered by serving a trustee process upon the maker of a note.^^^ The copy left with the agent of the nonresident de- 110 Gen. St. § 828. 111 Tweedy v. Bogart, 56 Conn. 419. 112 Grosvenor v. Farmers' & Mechanics' Bank, 13 Conn. 104; Wins- low T. Fletcher, 53 Conn. 3&0. (293) § 114 ADMINISTRATIVE OFFICERS. [Ch. 8 fendant, or the person in charge of the property attached, must be a true and attested copy.^^^ lien Only to the Amount of Attachment. "The power to attach property on mesne process to secure a claim not judicially established is conferred by statute, and, being in derogation of the common law, it should receive a strict, rather than a liberal, construc- tion. * * * The statute does not declare in direct terms the limit of an incumbrance, created by an attach- ment of real estate. Unlike personal property, there is no change of possession; the attachment simply subjects the land to an incumbrance, the extent of which must be iiathered from a consideration of all the provisions of the statute. The form of the writ prescribed by statute, wliicli has alwaj^s been followed, requires the plaintiff to insert in the writ the amount or value of the property wliich the officer is commanded to attach. This form is significant. It has a purpose. Its purpose is obvi- ous enough in respect to personal property. It tells the officer how much to attach, and, by implication, for- bids his attaching more. It has a similar meaning in respect to real estate, if it has any meaning at all. The attachment incumbers it to that extent, and no more. A maximum limitation is essential in order to preserve the integrity and efficiency of our recording system. * * * The first step in the attachment is lodging with the town clerk a certificate describing the land at- tached, the parties, the court, and the amount of dam- ages claimed ; and the attachment is completed by leav- 113 Cady V. Gay, 31 Conn. 395. (294) Ch. 8] CONSTABLES, ETC. § 114 ing with the town clerk, within four days, a certified copy of the process, etc. Now, if such a limit is found anywhere, it must he in the direction to the officer, for costs may be increased indefinitely, and the amount of damages claimed may be raised by amendment. In- definiteness and uncertainty should not be unnecessarily tolerated; and here it is not necessary, for the amount to which the officer is commanded to attach may well be taken as a fixed and certain limit. The lien results from the act of the officer, and not from any action by the court. The court can neither originate it nor enlarge it. It comes into existence, and to its fullest extent, when the attachment is made. It cannot be a growing quantity, increasing with the accumulation of costs, and enlarging as more damages are demanded. Sound policy requires that the extent of it shall be known as soon as it exists, in order to preserve the rights of third per- sons and prevent unnecessary restrictions upon the sale of property. "^^* The Effect of a Defective Service on the Attachment. If the officer, after making the attachment, leaves true and attested copies at the place which he supposes to be the usual abode of the defendant, but which, as a matter of fact, is not his usual place of abode, the at- tachment will be void. The mere fact that the officer, in his return on the original writ, states that he has left a copy at the usual place of abode of the defendant, is not conclusive, the return of the officer being open to ii^Hubbell V. Kingman, 52 Conn. 19. (295) § 114 ADMINISTRATIVE OFFICERS. [Ch. 8 contradiction. In such a case the defendant may suc- cessfully plead in abatement.^ ^^ Keeper. If the officer does not remove the personal property he may leave it in the possession of a keeper, who must remain on the premises in charge of the property until relieved by the officer appointing him. An officer may appoint the creditor for whom he is bringing the suit as keeper of the property attached. "It was as competent for the attaching officer to make Hubbell, the creditor, his bailee, to hold the property attached for him, as to have placed it in the custody of any other person; and while he was thus holding it, it was in legal effect continuing in the care and custody of the officer, or in custody of the law. The same or any other officer could again have attached it while in this situation. If it had been attached the second time by a different officer, he would have had no right to take it away from the custody of the first one, and, as it was attached by the same officer, there can be no reason why he should have removed it from the possession of his own bailee, to whose custody he might have remanded it the nest moment. The law requires no act of noto- riety to constitute an attachment of property. Nothing more is necessary than that the officer should so take it as to have it in his power or custody."^^'' Attachment of Contingent and Uncertain Interests. "In conformity with the settled policy of this state, 115 Buckingham v. Osborne, 44 Conn. 133. 110 Tomlinson v. Collins, 20 Conn. 376. (296) Ch. 8] CONSTABLES, ETC. §• II4 tiiat all the property of a debtor should be hold^n for the payment of the debts of its owner, our courts have construed the language of these statutes as rendering liable to attachment certain legal and equitable interests in property, the absolute or legal title to which property is not in the debtor, but which interest is within his con- trol, and can be fairly appraised or sold, — as the inter- est of one partner in the co-partnership property, the interest of a cestui que trust in real estate, an equitable interest in shares of stock, a mortgagor's equity of re- demption, and such other interests in goods or lands, whether legal or equitable, as, with justice to both debtor and creditor, may, in the manner provided by statute, be appropriated to the payment of the former's debts.^^^ We have, however, never held that an uncertain inter- est, incapable of just appraisal, and possibly of no value, may be thus sequestered for the creditor's doubtful bene- fit, and we think we ought not to so hold. When an inter- est which may be strictly neither goods nor land is never- theless clearly property, capable of being fairly sold and appraised, which is subject to the debtor's control, and which ought to be responsible for his debts, we say that the policy of the state for two hundred and fifty years clearly indicates that such interest is attachable prop- erty, within the meaning of the statute. But the same reasoning which has induced our courts to place such a construction upon the language of our statutes leads us to the conclusion that the defendant's interest in his 117 See Pundersoa v. Brown, 1 Day, 93, 96; Davenport v. Lacon, 17 Conn. 278; Johnson v. Connecticut Bank, 21 Conn. 148, 156; Bunnell v. Read, 21 Conn. 586; Middletown Sav. Bank v. Jarvis, 33 Conn. 372, 379. (297) § 114 ADMINISTRATIVE OFFICERS. [Ch. 8 fatlier.'s estate is not attachable, within the meaning of the law. While it is unjust that one should keep from his creditors property which can be fairly sold or ap- plied to the satisfaction of his debts, it is equally un- just that a creditor should seize and destroy an inter- est of his debtor which is so uncertain and contingent that it cannot be fairly sold or appraised. The policy of the law justifies the extension of the right of attach- ment to property which, though not strictly within the letter, is within the equity, of the statute. It does not justify such an extension of that right as will be likely to result in the destruction of a paternal gift which can be of no present value to any one, and may never be of value to the debtor or his assignees.""® liability of an OfBlcer as Trespasser. In order to justify the officer for his act in making an attachment, he must make a return thereof on the original writ in court. In order to render an officer liable as a .trespasser, he must either do some positive wrong, such as using property lawfully taken as his own, instead of keeping it merely as in the custody of the law, or he must omit to do that without which he is precluded from showing that the original act of taking was lawful, as in the case under consideration, to make return of his process. He must justify by his process, or he stands in the position of a naked trespasser, with- out process. And he cannot prove by parol that he had a legal warrant, but he must show it, and must show 118 Smith V. Gilbert, 71 Conn. 149. (298) Ch. 8] CONSTABLES, ETC. § 114 by his return upon it what he did under it, that the court may see whether his acts are justified or not.^^* The case of Hull v. Bartlett,^^" already referred to, shows the danger to which the officer is exposed by an attempt to go beyond the strict performance of his duty. In that case the defendant, an officer, had a writ of summons against Mrs. Hull. Having been informed of this fact, she evaded the officer, who followed her from town to town. He finally traced her to the house of one Viets, where the officer was informed that ilrs. Hull had left the house that day. With the consent, of the owner, the defendant searched the house, and, not find- ing her, went into the yard, where he discovered a small outbuilding, the door of which was locked. The offi- cer called, and, no response being made, with the permission of the owner the officer forced the door^ and found a woman lying on the floor, with her face closely covered to prevent identification. The officer re- peatedly requested her to uncover her face, so that he might see who she was, stating the nature of his busi- ness. When she declined to do so, he raised her up as gently as possible, and removed the covering for the purpose of identifying her, in order that he might com- plete his service and make due return. She brought suit for assault and battery, and recovered |40, the court holding that the law gives every one an inherent right to immunity from interference with or violence or injury to his body at the hands of any other person, the excep- tions where an assault is justified being founded on the 119 Williams v. Ives, 25 Conn. 573. 120 Hull V. Bartlett, 49 Conn. 64. (299) § 115 ADMINISTRATIVE OFFICERS. QCh. 8 highest necessity. The court also held that the mere importance of identifying a person for the purpose of civil process does not fall within the spirit and reason of any of the recognized grounds for justifying an as- sault. An officer has no right to search the pockets of any person to take therefrom attachable property. § 115. Exemptions. "The following property shall be exempted, and not liable to be taken by warrant, attachment, or execution, namely : Of the property of any one person, his neces- sary apparel, bedding, and household furniture, the arms and military equipments, uniforms, or musical instru- ments owned by any member of the militia for military purposes, any pension moneys received from the United States while in the hands of the pensioner, implements of the debtor's trade, his library, not exceeding five hun- dred dollars in value, one cow, not exceeding one hun- dred and fifty dollars in value, any number of sheep not exceeding ten, nor exceeding in all one hundred and fifty dollars in value, two swine and two hundred pounds of pork, and poultry not exceeding twenty-five dollars in value; of the property of any one person having a wife or family, twenty-five bushels of charcoal, two tons of other coal, two hundred pounds of wheat flour, two cords of wood, two tons of hay, two hundred pounds each of beef and fish, five bushels each of potatoes and turnips, ten bushels each of Indian corn and rye, or the meal or flour manufactured therefrom, twenty pounds each of wool or flax, or the yarn or cloth made therefrom; the horse of any practicing physician or surgeon, of a value (300) Ch. 8] CONSTABLES, ETC. § 115 not exceeding two hundred dollars, and his saddle, bridle, harness, buggy, and bicycle; one boat, owned by one person, and used by him in the business of planting or taking oysters or clams, or taking shad, together with the sails., tackle, rigging, and implements used in said business, not exceeding in value two hundred dollars; one sewing machine, being the property of any one per- son using it, or having a family ; one pew, being the prop- erty of any perscai having a family, who ordinarily oc- cupy it; and lots in any burying ground, appropriated by its proprietors for the burial place of any person or family.^^^. Tools. Originally the word "tools" designated the imple- ments used by the hand of one man, but this limited con- struction of the term has been changed. It is now the policy of the law to give a liberal construction to this statute. "It was the object of the statute to protect the tools of a trade so far as they were indispensably necessary, and the words of this, as of other laws, ought to be expounded according to their popular acceptation, in order to attain the legislative intent."^^^ In the leading case just cited, the articles attached were a printing press, cases, and types. The court held that these articles of personal property were exempted from attachment and execution. It is always a question of fact whether the tools are exempted or not, depend- ing upon the circumstances of each individual case. The 121 Gen. St. § 907. 122 Patten v. Smith, 4 Conn, 454. (301) 8 115 ADMINISTRATIVE OFFICERS. [Ch. 8 mere fact that the debtor is pursuing two trades does not deprive him of the legal exemption of his tools in either trade, if they are necessary, and the occupations were requisite for the procurement of subsistence.^^* A distinction must be made between the business of a mechanic and the business of a manufacturer; in the former case the necessary tools being exempt, and in the latter case not exempt, from attachment and execution. Wliether a man is a mechanic or a manufacturer, and therefore entitled to the exemption, will depend upon the circumstances of each ca^. The case of Atwood v. De Forest,^** is the leading case on this subject. At- wood and Crouch were partners, manufacturing German silver spectacles. Atwood was a spectacle maker by trade, and Crouch, before he entered the partnership, was a blacksmith by trade, having no other knowledge of spectacle making than what he had acquired since the partnership. He had the necessary tools for carry- ing on the blacksmith trade, and worked about half of his time, after the organization of the partnership, as a blacksmith, and the other half in the spectacle busi- ness. The blacksmith shop and the spectacle shop were under one roof. Atwood and Crouch employed, in tho manufacture of spectacles, six men besides themselves, and had tools enough for themselves and the workmen to use in carrying on their trade, and no more. They were also commencing the manufacture of cast-iron shears, having obtained tools for this purpose. They 123 Patten v. Smith, 4 Conn. 454. 124 Atwood V. De Forest, 19 Conn. 513. (302) Ch. 8j CONSTABLES, ETC. § 115 were married men, and followed no other business than that above described for a livelihood. Lathrop, a cred- itor of Atwood and Crouch, caused De Forest, a deputy sheriff, to attach all the tools aforesaid, leaving only enough tools for one man in each trade. The court held that they were manufacturers of spectacles, and not spectacle makers, within the meaning of the statute. " 'Trade,' in its most extensive sense, means all sorts of dealing by way of sale or exchange; but obviously this is not the meaning of the word as used in the statute regarding the exemption of mechanics' implements. No one would contend that the goods of a merchant are ex- empt from execution, and yet, in a literal sense, they are implements of his trade. By the word 'tr^de,' as used in this statute, we suppose is meant the business of a mechanic, strictly speaking, as the business of a car- penter, blacksmith,, silversmith, printer, or the like, and that it was not intended to include the business of a manufacturer, any more than it was intended to extend to the business of a merchant or farmer. * * * So, as we think, it is equally clear that an individual or co- partnership carrying on the business of manufacturing for sale in the market, without reference to the supply of the community where their establishment is located, a particular article, as German silver spectacles, is not, within the meaning of the statute, carrying on the busi- ness of a silversmith, or even of a spectacle maker. Such a concern is a factory, and not a mechanic's shop, and the individuals carrying it on are manufacturers, and not tradesmen." In order to secure the benefit of the exemption, the tools must be actually in use in the trade at the time (303) § 115 ADMINISTRATIVE OFFICERS. [Ch- 8 of the attachment. Merely because a man has learned some mechanical trade, if he is neither pursuing it nor contemplating its pursuit, implements ought not to be exempted, and it was not contemplated by the legisla- ture that they should be. "The object of the exemption is to enable mechanics to carry on their trades, and not to favor them merely because they possess a particular kind of skill. If, therefore, they have voluntarily aban- doned the business of mechanics, and do not contemplate pursuing it, their implements are not exempt."^^* The implements of individuals laboring as mechanics for a manufacturer in a large establishment are within the exemption, although their employer's machinery and im- plements would not be.^^^ In the case of Seeley v. Gwillim^^'^ the property at- tached was used by the debtor in his trade as book bind- er, and consisted of not only the implements used with his own hands, but also stoves, tables, and furniture which were exclusively adapted to the book-binding bus- iness. The court referred to the case of Atwood v. De Forest, and drew the same distinction between the busi- ness of a mechanic and the business of a manufacturer, holding that the implements of a trade were exempt, and other articles, such as machinery and furniture, however useful and convenient they might be, were not "implements," within the meaning of that word as used in the statute. "We should undoubtedly hold that im- proved and more expensive tools would be exempt; but when new. methods and processes of manufacture are 125 Atwood V. De Forest, 19 Conn. 513. 126 Atwood V. De Forest, 19 Conn. 513. 127 Seeley v. Gwillim, 40 Conn. 106. (304) Ch. 8] CONSTABLES, ETC. § US adopted, requiring numerous and expensive machines, adapted to manufacturing, upon a large scale, it would be an unwarrantable extension of the statute to hold that it exempted such machines." In the case of Enscoe v. Dunn^^* it was held that five horses, six carts, and six harnesses used by the debtor in transportation of merchandise in his business of cart- er were not exempt from attachment, the court saying: "We see no reason for conceding, to the transportation of merchandise, protection for unlimited investments in horses and carts." -' ' ' The photographic lens used by a photogTapher in his business is exempted from attachment as an implement of a debtor's trade.^^^ It Avas held in the case of Davidson v. Hannon^^" that the trade of a photographer could be called the business of a mechanic, in the same way as that of a carpenter, blacksmith, silversmith, printer, book binder, or spec- tacle maker, on the ground that it did not require any more, if as much, special apprenticeship or training, as ordinarily carried on, than the other trades mentioned. Furniture. The same liberal construction which has been referred to in treating of tools of the trade covers the interpreta- tion of the clause of the statute concerning the exemp- tion of household furniture. Whether or not household furniture is necessary will depend upon the circum- stances of each case. The standard of living and -the 128 Enscoe v. Dunn, 44 Conn. 99. 12-0 Davidson v. Hannon, 67 Conn. 312. 130 Davidson v. Hannon, 67 Conn. 312. (305) Adm. Off.— 20. §115 ADMINISTRATIVE OFFICERS. [Ch. 8 condition of life of the person must be t^aken into account. As a general rule, an officer should be very cautious in attaching household furniture, unless it be plain and obvious to any one that the i)roperty so taken would fall within the class of luxuries, rather than necessities ; but even in our ordinary acceptation of the term, an article may be considered a luxury, while in certain cases it becomes a necessity. For instance, if the house of a merchant or professional man of good position in the community has hardwood floors, it would be a serious question whether the rugs, even though they be Oriental rugs, covering these floors, would not be exempted from attachment. Doubtless such rugs in the home of a me- chanic or laboring man would be considered luxuries, and could be taken. In the leading case of ^lontague v. Eichardson,^*^ Judge Storrs stated : ""\A'e think that the term 'neces- sary' was not intended to denote those articles of fur- niture only which are indispensable to the bare subsist- ence of the persons for whose benefit the law was design- ed, — the debtor and his familj'. According to such a lim- ited construction, it would exclude many things w^hlch universal usage and the common understanding of that word in reference to this subject have pronounced to be necessary articles of household furniture, and would, in- deed, protect merely those rude contrivances which are used only in a savage state. The word was obviously used in a larger sense. It was intended to embrace those things which are requisite in order to enable the debtor not merely to live, but to live in a convenient and com- 131 Montague v. Richardson, 24 Conn. 338. (306) Ch. 8] CONSTABLES, ETC. | 115 fortable manner. It, however, excludes superfluities and articles of luxury, fancy, and ornament. * * * The statute in question is a remedial one, and, being passed for a humane purpose, ought to be liberally ex- pounded in favor of humanity and in furtherance of the benevolent objects for which it was enacted." In the case of Weed v. Dayton^^^ the property of Mrs. Ensworth, who had formerly kept a boarding house in Greenwich, was attached. Mrs. Ensworth had removed to New York for one year, taking a furnished house, and had placed the furniture above mentioned in storage io Greenwich, with the intention of returning, at the ex- piration of a year, to resume her business as a boarding- house keeper. The court held that the furniture kept for the boarders, and necesary for their use, was not exempt from attachment. "Furniture used by them for a compensation, and useful to the debtor himself only as a means of profit, is not protected from attachment." The court also held that ~Mvs. Ensworth would be enti- tled to claim exemption for one bed. for herself, one for her daughter, and a spare bed for visitors. "Keeping boarders, as she had been doing and intended to continue to do, it seems reasonable that a bed should be allowed for a servant, or, in case of sickness, for a nurse. The exemption is not necessarily restricted to such furniture as is in constant use, nor is it, as before suggested, re- stricted to the use of the debtor himself. Eeasonable provision may be made, according to circumstances, for wife and children, for domestics, for dependent relatives who may be residing with and constitute a part of the 132 Weed V. Dayton, 40 Conn. 293. (307) §115 ADMINISTRATIVE OFFICERS. [Ch. 8 family, and for visitors." It was held, also, that if, in consequence of being engaged in the business of keeping boarders, she needs for her own personal use a bureau, which, in ordinary housekeeping, she might have dis- pensed with, the bureau would be exempt. "The fact that she was keeping boarders would naturally enlarge her personal needs in respect to many things; as, for instance, in respect to kitchen utensils and table furni- ture, and perhaps apparel, and would, by consequence, enlarge her wants as to a place of deposit, like a bureau, for her own use. In deciding what is necessary house- hold furniture, the avocation of the debtor may properly be taken into consideration. His personal wants and those of his family may depend largely upon the nature of the business whereby he is seeking a livelihood." In the case of Hitchcock v. Holmes^ ^^ it was held that four sets of lace curtains, with tassels, suspended from cornices of black walnut, all of the value of |172, one pier glass with base, of the value of |125, and one clock with a glass globe over it, of the value of |50, were not exempt from attachment, although Judge Loomis dis- Bented on the necessity of the clock. Family Relics. Family relics, such as ottomans, lamps, vases, and china teasets are not exempt.^^* Pensions granted by the government are exempt.^*^ The levy of an execution upon property exempt from execution has no more effect as to the change in title 183 Hitchcock V. Holmes, 43 Conn. 528. 13* Johnson v. Connecticut Bank, 21 Conn. 158. 135 Price V. Society for Savings, 64 Conn. 365. (308) Ch. 8] CONSTABLES, ETC. § 116 than a levy on the property of a third person, and the officer who wrongfully takes snch property upon execu- tion cannot, as against the debtor, justify the taking by virtue of the process.^^^ § 116. Officer's Return. Every requisite to a valid levy must appear on the return by express words or reasonable construction. In case of a dispute, in which a claim is made that an offi- cer's return does not show all such requisites, the court will determine whether or not the return is sufficient by a fair and reasonable construction of the words used. If other papers are annexed to the officer's return, they Avill be used in construing the return; as, for example, where the certificates of a justice of the peace appoint- ing appraisers, and the certificates of the appraisers themselves, are annexed to the officer's return on execu- tion in the sale of real estate. Any defects in the offi- cer's return itself may be remedied by proper statements in the annexed certificates.^ ^'^ Construction of the Return. The return of an officer should always receive a rea- sonable construction, and, where it is susceptible of dif- ferent meanings, the court should adopt that interpre- tation which is most conformable to the proper perform- ance of the legal duty of the officer.^ ^® The mere fact that the return is couched in ungrammatical language will in no way affect its validity, provided that any per- 136 Williams v. Miller, 16 Conn. 144. "7 Booth V. Booth, 7 Conn. 350. 188 Whittlesey v. Starr, 8 Conn. 137. (309) § lib ADMINISTRATIVE OFFICERS. [Ch. 8 eon, on reading it, could easily apprehend his true mean- Ijjg 139 ■Return as Prima Facie Evidence. An officer's return is prima facie evidence of the facts contained in it, although not conclusive."" This rule applies not only to the return on mesne process, but also on final process. "The sheriff or other legal of&cer in both cases is entitled to the same regard. He is equally, at all times, a sworn officer of the same credit, and the interests of private justice and public convenience are precisely the same. Here, as in Westminster Hall, the returns on final and mesne process are subject to the same rule. It follows, necessarily, that the return of a legal officer, whether on mesne or final process, is 'prima facie evidence only, and liable to be disproved."^*' It is no objection to such evidence that the return on which it is based Avas in another suit and between dif- ferent parties.^*^ Explanation of Eetum. An officer's return, as stated above,, is not conclusive concerning the facts therein set forth. Evidence may be introduced to explain matters of opinion contained therein; as, for example, where the return of an officer showed that a writ of attachment was served at quarter 139 Maples V. Park, 17 Conn. 339. "0 Butts V. Francis, 4 Conn. 426 ; Perkins v. Perkins, 7 Conn. 564; Jones v. Gilbert, 13 Conn. 520; Palmer v. Thayer, 28 Conn. 244. i« Watson V. "Watson, 6 Conn. 338. "2 Boseli V. Doran, 62 Conn. 313. (310) Ch. 8] CONSTABLES, ETC. § 116 past five, parol evidence is admissible to show that, as a matter of fact, it was served at an earlier hour of the dav.^*^ Also, where sundry writs of attachment in favor of different creditors were served by different officers on the same personal property in the course of the same day, and the returns on all the writs except one stated the time of day when the service was made, and that one stated only a service on that day, it was held that it was neither a matter of legal presumption nor con- struction that the latter writ was served at the same time that any of the other writs were served, and in such a case parol evidence was admitted to show the hour of service.^** "The return of an officer, by the law of this state, has never been treated as conclusive, but only as prima facie evidence of the truth of the facts stated in it, and more emphatically is this true when the officer avails himself of his own return in his own favor. The return may be disputed, and, if so, there can be no more appropriate evidence for this purpose than proof that the officer him- self originally, and under his official sanction, had stat- ed the facts differently from his more recent statement of them."i*5 Amendment. The rule concerning amendment of an officer's return is well stated in the case of Palmer v. Thayer :"** "Dur- 143 Williams v. Cheesebrough, 4 Conn. 356. 144 Brainard v. Bushnell, 11 Conn. 16. 145 Wilkie V. Hall, 15 Conn. 36 ; Buckingham v. Osborne, 44 Conn. 141. 146 Palmer v. Thayer, 28 Conn. 237. (311) § 116 ADMINISTRATIVE OFFICERS. £Ch. 8 ing the first term of the eourt, and all future terms while the ease is pending in court, any judgment, decree, order, entry, or return of process is amendable, and, if an er- ror has intervened, ought to be amended and made to speak the exact truth. Such is the uniform practice in all our courts, we believe. » * * To the exercise of this power there are undoubtedly limits beyond which it cannot be properly allowed. One is (though it is one affecting the officer, rather than the court) that an offi- cer may not, without leave of court, alter his indorse- ment of service after the process has once been returned to the court, for the process is then out of his hands, and has become a part of the files of the court. Beyond this, amendments of this class would seem to be very much within the sound discretion of the court, to be al- lowed or not, according to the circumstances of the case. Certainly license should be given only where the amend- ment is in furtherance of justice, and can be made under- standinglv and discreetly, and the mistake is most clear and palpable. As to the time for such correction, it may be made while the court to which the process is returned is in session, or afterwards, when the mistake is discovered, if the court will give its permission, for the power is the same in both cases. Nor is it indis- pensable that the officer be still in office, though this circumstance is treated as material in some of the re- ported cases ; but in none of them is it laid down to be indispensable, while in some it is said not to be, and we confess we do not see why it should be, as the amendment will be allowed only in the discretion of the court, and will be made, whenever it is made, under the sanctions and penalties of the law." (312) Ch. 8] CONSTABLES, ETC. § 116 After a long lapse of time, the court will seldom grant an application for an amendment to the officer's re- turn.i*^ Where an officer, neither on the copy of his writ left with the town clerk, nor on the original writ, specified that he had pasted a notice of an attachment of six tons of hay on the outer door of the barn in which the hay was situated, and where he omitted to state in his return on the original that he had left a true copy, with his do- ings indorsed thereon, with the town clerk, the court per- mitted him to make an amendment showing that he had actually performed these acts, the court stating: "It is found that the plaintiff actually did all the things necessary to make a valid attachment. The omission to recite, on the copies left with the town clerk and the defendant, some of these details, was at most an irregu- larity, which did not vitiate the attachment, and the ir- regularity was cured by the amendment to the offlcer^s return."^** An officer, however, is not permitted to actu- ally falsify his indorsement.^*^ Description of Property Attached. In the return on the original writ there must be an inventory of all the articles attached by the officer. It is not sufficient, to make a general statement, such as, "All the stock and goods in the defendant's store, situ- ated on Main street." The return must tell what the goods are, giving the kind and quantity, as far as prac- ticable.i«» 1*7 Wilkie V. Hall, 15 Conn. 32. 1*8 Hannon v. Bramley, 65 Conn. 200. 1*9 Benjamin v. Hathaway, 3 Conn. 532. ISO Ahern v. Purnell, 62 Conn. 24. (313) 116 ADMINISTRATIVE OFFICERS. [Ch, 8 — Transfer of Stock on Execution Sale. The officer must give a written instrument of convey- ance, setting up the transfer of stock of a corporation sold, to the purchaser at an execution sale ; a mere state- ment of such sale on the officer's return not being suffi- cient to constitute a valid transfer.^ ^^ Return of Sales on Execution. As a general rule, execution sales must be made at the public sign post; but by provisions of the statutes,"- whenever the property cannot be removed to the sign post without great injury or expense, or where it cannot be sold there without great inconvenience or injury from exposure to the weather, an officer must designate in his advertisement some other place of sale. In his re- turn on such sale it is not necessary for him to state the reasons why the sale occurred at some other place than the public sign post, for the reason that, whether such circumstances exist or not, the officer is the proper per- son to decide, and the fact of such a change in the place of sale is sufficient to show that, in the opinion of the officer, such facts have occurred or such necessity ex- ists. "Whether such circumstances do exist or not is always a question which may be examined, whether the officer return his opinion or not."^^* Presumption of Performance of Duty. It is always presumed that, where an officer makes an 151 Morgan v. Thames Bank, 14 Conn. 99. 152 Gen. St. § 904. 153 Backus V. Danforth, 10 Conn. 306; Morey v. Hoyt, 62 Conn. 556. (314) Ch. 8] CONSTABLES, ETC. g 117 attachment and makes return thereof, he has per formed his duty, until the contrary appears."* Erasure of Indorsement. Where an attachment was made by an officer, who in- dorsed service on the writ, but, before it was returned to court, discovered that the suit had been prematurely brought, and, having erased his indorsement, used the same writ of attachment subsequently, it was held that, if "the action first commenced be misconceived, or was ineffectual to secure the demand, it will not abate a second suit, instituted bona fide and without vexation." If, however, the rights of the defendant in such a case have been essentially affected by the act of the officer in erasing his first indorsement of service, he might be compelled to restore it, either upon motion or writ of mandamus, so that the whole of his proceedings under the writ may appear upon the writ itself."® § 117. Officers' Receipts. An officer serving a writ of attachment on personal property may deliver the property so attached to any person, and take in lieu thereof a receipt from the person to whom the property has been so delivered. There are many instances where the debtor desires to retain pos- session and control of personal property about to be attached by an officer, and he may have some friend who is willing to sign a receipt for the personal property in order that the necessity for the attachment may be 1B4 Baker v. Baldwin, 48 Conn. 138. 155 Ward V. Curtiss, 18 Conn. 290. (315) § 117 ADMINISTRATIVE OFFICERS. [Ch. 8 avoided. The validity of the receipt will not be affected by the fact that the property has not been actually de- livered to the receiptsman. Keceipts differ greatly in their terms, some containing merely acknowledgments of the receipt of property, and a promise to redeliver upon demand by the oflcer, while others are drawn in the form of estoppel bonds. The law governing officers' receipts will therefore depend entirely upon the wording of the receipt itself. The validity of officers' receipts was rec- ognized in the earliest cases reported in Connecticut. ■ Pleading. In an action on a receipt by an officer, it is not neces- sary to allege that the judgment in the attachment suit is unsatisfied.^^® The necessary allegations are the de- mand upon the receiptsman for goods to be applied on execution, and refusal by him to redeliver the property. Even if the writ in the attachment suit was never re- turned to court, the officer would be entitled to a rede- livery of the goods attached.^ ^^ There can, however, be no liability on the part of the receiptsman until a de- mand for redelivery has been actually made, and "we think it was in truth the real intent, although not the form or legal operation of the receipt, unless some un- foreseen event should make it necessary, judgment and execution in the attachment suit should precede the re- delivery."^ ^^ 106 Htartshorn v. Halsey, 1 Root, 92. 167 Jones V. Gilbert, 13 Conn. 507. 15S Bacon v. Thorp, 27 Conn. 265. (316) Ch. 8] CONSTABliBS, ETC. § 1 17 Liability of the Parties. "The yaluation given in a i^eceipt for property attached has ever been justly considered, upon demand in behalf of the creditor in the execution, and a refusal, as con- clusive on the parties. So far as the security' of the debt is its object, it is intended as a stipulation. Even receipts for property which had no existence have been deemed an estoppel in relation to the rights of the cred- itor. The officer becomes responsible to the creditor for the amount thus stipulated, if there is no subsequent depreciation, and the receiptor's engagement is to save him harmless. Where, as in this case, the amount of the debt is not controverted, and that exceeds the stipu- lated value, the question as to the actual value is irrele- vant. The ratification of such agreements according to their just intent is important to both debtor and cred- itor. The debtor, by procuring some friend to give a written acknowledgement of the receipt of property, which has not been attached at all, estimated at a suffi- cient sum, with an engagement to redeliver it on de- mand, shields his goods from seizure, secures the debt, and protects the officer. When the debtor is willing to secure whatever judgment may be ultimately rendered, but is desirous, in the meantime, of disposing of property actually attached, the object of each party may be at- tained by an estimate acceptable to the creditor or offi- cer. These agreements are voluntary and lawful. * * * But where property is actually delivered, the receiptor will not be responsible for any depreciation occurring without his neglect, nor estopped from claiming it as his own, if taken wrongfully few the debt of another. (317) § 117 ADMINISTRATIVE OFFICERS. [Ch. 8 * * * The plaintiff [officer] had a right to demand the goods at any time, even before judgment, for he was accountable for them, both to the debtor and creditor. He had the same right to the possession as if he had never put them out of his own hands. The promise was absolute to deliver them on demand, without regard to the judgment or execution. It was therefore wholly immaterial whether the demand for the goods was made before or after the demand for payment. The respon- sibilities of the officer would be the same in either case. It could make no difference, if payment was refused on the execution, as to the officer's liabilities, whether the goods were in his own possession or in the hands of the receiptor at the time of such refusal. The amount of his ultimate liabilities to creditor or debtor would, in either case, be the rule of damages."^ ^* If the officer is liable to the debtor for the property taken, it will follow, by legal consequence, that the receiptsman must be liable to the officer.^^** In the case of Fitch v. Chapman^ ®^ the liability of the officer is discussed as follows: "The plaintiff, being a deputy sheriff, had attached the goods in question in this case as the property of ^laynard, on an attachment against him at the suit of one of his creditors, and de- livered them to the defendants on their promise to re- deliver them to the plaintiff on demand. If the goods were the property of Maynard, the plaintiff would be liable to the attaching creditor for their value, if the 159 Jones V. Gilbert, 13 Conn. 507, at page 521 et seq. 100 Reed v. Tousley, 1 Root, 381. 161 Fitch V. Chapman, 28 Conn. 260. (318) Oh. 8] CONSTABLES, ETC. g 117 execution issued on the judgment recovered by liim had been seasonably placed in tlie hands of the plaintiff or some other proper officer for service, and the defendants refused to redeliver them to the plaintiff, so that they might have been sold and appropriated for the benefit of the creditor on the execution ; or if the execution was not so placed in the hands of an officer for service, in which case the lien created by the attachment would be lost, and. the creditor would cease to have any claim on them, the plaintiff, if he should refuse to deliver them to jMaynard, their owner, would be liable to him for their value. If, however, Maynard was not the owner of the goods when they were attached, although the plaintiff would be a tort feasor as to the real owner of them, and liable to him in trespass for taking them on the at- tachment against Maynard, yet, if the plaintiff delivered them to the defendants on their promise to redeliver them on demand to him, the defendants would be liable to him for their value on their refusal to do so, unless the defendants were themselves, in the first instance, the owners, and so had a right to retain the goods, or had since clothed themselves with the title of the real owner, or held them for him or by his authority, or un- less they had in fact delivered them up to the real owner." Also, in the case of Fowler v. Bishop^ "^^ the court stat- ed : "Officer's receipts are usually absolute and uncon- ditional in terms, and conclusive in respect to their re- citals and admissions, but are nevertheless, by operation of law, contingent. The officer has no personal inter- 162 Fowler v. Bishop, 31 Conn. 562. (319) I li7 ADMINISTRATIVE OFFICERS. [Ch. 8 est in the property or in the possession of it; he holds it as an oificer of the law, and as bailee for purposes of law. His right to resume the possession of it, and en- force the promises of the receipt, rests on his liability to the creditor during the existence of the lien, and to the debtor or owner when that lien is dissolved; and when his liability to the creditor ceases by reason of a disso- lution of the lien, and he is not liable over to the debtor or owner because no property Avas in fact attached, or because, if attached, it was not removed, or, if attached and removed, was immediately restored to the debtor or owner, the receipt becomes functus officio and inop- erative, and it is open to the receiptor at all times to show, by any proper evidence, that the instrument has thus become inoperative. * * * The officer may bring his fiction and recover the agreed value of the liropeity at any time while the lien is in force; but if no property Avas in fact attached, or none was removed and came into the possession of the receiptor, the offi- cer cannot retain that value after the lien is dissolved, or pay it over to the debtor or his trustee. The re- ceiptor in such cases is a surety; and if his money is taken by the officer, and by force of an action on the receipt, it remains his money until appropriated to pay the debt of the creditor, and, in case of a dissolution of the lien, or if there is a surplus after satisfying the judgment recovered, the officer is a bailee for and an- swerable to the receiptor for the amount. Hence, al- though the right to sue on the receipt in such cases is nnquestionable, the exercise of that right is not expected by the receiptor or the officer until judgment and execu- (320) Ch. 8] CONSTABLES, ETC. § 1J7 tion have been obtained, and the exercise of it cannot affect the ultimate rights of either." In the case of Parks v. Sheldon/ ^^ a receiptor of at- tached property refused to deliver it to the officer upon his demand, and the next day the debtor filed his peti- tion as a bankrupt. The attachment had been made within four months preceding the bankruptcy, and judg- ment had been obtained, execution taken out, and de- mand made upon the debtor on the execution. The court stated : "The officer received the execution on the 25th of March. It was his duty, within a reasonable time, to take measures for its collection. Had he failed to do so, and, in consequence of such neglect, the debt had been lost, he would have been liable to the creditor. Had the property been in his personal custody, he would, without doubt, have levied the execution immediately upon Easton's refusal to pay. A failure to do so, and consequent loss, would have subjected him to liability, unless he could show suf&cient reasons for the delay. * * * It would seem, then, that the creditor lost his lien upon the property, or, rather, failed to acquire an indefeasible lien, in consequence of the fact that the officer, instead of retaining possession in himself, took a receipt therefor. If so, the officer is clearly liable to the creditor, and has his remedy over against the re- ceiptor. But be this as it may, the receipt, although contingent in some respects, is not a mere contract of indemnity. The obligation of the receiptor is undoubt- edly discharged if, before demand, the suit is determined against the attaching creditor, or the debt is paid or 163 Parks v. Sheldon, S6 Conn. 466. (321) Adm. Off.— 21. § 117 ADMINISTRATIVE OFFICEkS. [Oh. 8 otherwise discharged, or, in some cases, if the property can be shown to he the property of a third person, and that it has been delivered to the rightful owner. So, too, the receiptor may pay the debt, or, if the officer has already paid it, may indemnify him, and thus save himself from liability on his receipt; but, on the other hand, while the lien created by the attachment contin- ues, the officer may at any time demand a return of the property, and, if it is refused, he has an immediate right of action, irrespective of the question whether it will or will not be needed for the payment of the debt on which it was attached. In such a case the contingent liabil- ity of the officer to the creditor is a sufficient interest in him to entitle him to maintain the suit. But the lia- bility of the receiptor is absolute. The officer collects and holds the funds, subject to the result of the suit, and pays them to the creditor or debtor, as the result may be. In either case the receiptor looks to the debtor for his indemnity. How was it in the present case? When demand was made of the defendant, tlie lien cre- ated by the attachment still continued, judgment had been rendered in that suit, execution had issued, de- mand had been made of the debtor, and he had refused to pay, so that the property was needed forthwith to re- spond to the judgment. The moment the defendant re- fused to redeliver the property, his liability to the offi- cer became absolute for the amount of the execution and costs, provided it did not exceed the valuation named in the receipts, and, if it did, then for the sum so named. If this is a correct view of the nature of a receipt, and the liability of the parties thereto, then it necessarily follows that the demand sought to be recovered in this (322) Ch. 8J CONSTABLES, ETC. § 117 action is a debt due from the defendant to the plaintiff. Tliat such an indebtedness will not be discharged nor in any manner affected by proceedings in bankruptcy upon the petition of Easton [debtor] we think is too clear for argument." Title in Keceiptsman. In an action on the ordinary form of officei''s receipt, not given in the form of an estoppel bond, if the defend- ant can show title to the property attached to be in him alone, this would be a complete defense to the action, for the reason that the officer, not being accountable for the property to the attachment creditor, nor to the own- er, could not recover.^®* The mere fact that the receipt is under seal will make no difference in the liabilities of the parties.^''^ In the case last cited, which was a suit on receipt, the plaintiff, a constable, took a receipt under seal from 3Ierritt & Pease, stating that the property — one horse and one car- riage, value of |150 — was taken by officer as the prop- erty of IMerritt by virtue of a writ of attachment in favor of Jones et al. against said Merritt, describing suit, and stating that the property would be safely kept and re- delivered to officer, free of all charges on demand. On trial, evidence was offered to show that horse so attached belonged to Pease, and carriage to Merritt's wife. The court stated : "Whether the receipt in question is to be treated as a specialty or a simple contract, the evidence offered by the defendants was admissible. * * * In 16* Pond V. Cummins, 50 Conn. 375. 165 Dayton v. Merritt, 33 Conn. 184. (323) § 117 ADMINISTRATIVE OFFICERS. [Ch. 8 Fowler v. Bishop, 31 Conn. 560, it was held that an oflfl- cer's receipt, though absolute in terms, is nevertheless contingent by operation of law. This is so, whether the receipt is under seal or otherwise. The plaintiff can maintain his action only because of his accountability to the attaching creditor or the owner of the property at- tached. Clark V. Gaylord, 24 Conn. 484. If the cir- cumstances are such that he is accountable to neither, he cannot recover. If the defendants are right in their claim, the plaintiff cannot be liable to the o^\'ners for the value of the property, for the owners already have it in their possession ; he cannot be liable to the attach- ing creditor, for the debtor did not own the property, and no lien was acquired by the attachment. Whatever the plaintiff recovers he must pay over to the true own- ers, and the defendants are such owners. What pro- priety is there in allowing the plaintiff to recover of the defendants as receiptors of the property, and then re- quiring him to pay the money thus recovered to these same defendants as owners? * * * In this case the receipt contains no admission as to the title to the prop- erty. It merely says that it was 'taken by him as the property, goods, and chattels of Joseph G. Merritt,' but there is nothing in the instrument to show that it was in fact his property. Proving the title to be in the de- fendants, therefore, does not contradict any part of the receipt." Title Not in Eeceiptsman. In an action upon a receipt promising to redeliver, upon demand, property attached by the plaintiff as an officer, it is no excuse for a nondelivery that the title (324) Ch. S] CONSTABLES, ETC. .§ uy of such property was not in the defendant named in the writ npon which it was attached.^ ®^ Several Receipts Do Not Constitute One Bailment. Where several receipts are given by the same receipts- man for the same property on different attachments against the same defendant, with different values fixed with reference to the demands in the different writs, such receipts are not to be regarded as one contract, but each receipt stands alone, as if it were the sole receipt given.^®''' Valuation, Where, in the receipt, a promise was made to deliver property to the sheriff on demand, or pay five hundred dollars, or the amount of damages and costs that might be recovered in the suit on which the property was at- tached, it was held that the sum of five hundred dollars was rather in the nature of a penalty to secure the return of the property, or to pay its value. As such it was a security only for the value of the property, which value alone, when shown, could be recovered; and where the value was shown to be only one hundred dollars, such amount only, and not five hundred dollars, could be re- covered.^^* Receipt Void Sixty Days after Judgment. By the provisions of section 879 of the General Stat- utes, no attachment lien on personal property shall be 186 Clark V. Oaylord, 24 Conn. 484. 16T Bnscoe v. Dunn, 44 Conn. 93. 168 Fowler v. Bishop, 32 Conn. 206. (325) i^. 117 ADMINISTRATIVE OFFICERS. [Ch. 8 valid unless the judgment creditor shall take out execu- tion within sixty days after judgment obtained in the attachment suit, certain provisions being made for ex- tension of time in case of legal stays of execution. Also, in an action on officer's receipt, where the defendant al- leges that he held the goods, and was at all times ready to redeliver them to the officer, until the expiration of more than sixty days after final judgment on the attach- ment suit, and that no demand was made for said goods, and in consequence of which he restored them to the original owner, it Avas held that the .officer could not re- cover in such action on the receipt. The court said that, a.s the execution was not taken out till more than sixty days after the judgment, it was the duty of the officer, or of whoever held the property under him, to restore it to the debtor, as the receiptsman had done, and he would have been liable in trover if he had re- fused."9 Partnership Property. In the case of Stevens v. Stevens^'^" the subject of at- tachment of partnership property is discussed as fol- lows: "The plaintiff is a deputy sheriff, and as su«h had in his hands a writ of attachment against one Nor- ris. Upon this writ he attached the interest of Norris in the stock and fixtures in a certain store. * * * The defendants thereupon executed a receipt for the property under their hands and seals, promising 'to re- deliver the property on demand, or, in default thereof, to leoBuel V. Metcalf, Kirby, 40; Parsons v. Phillips, 1 Root, 481. 170 Stevens v. Stevens, 39 Conn. 474. (326) Ch 8J CONSTABLES, ETC. § ll7 pay the sum of |75, or, if demand be not made before judgment rendered, the amount of damages and costs which shall be recovered by the plaintiff if the same fall short of |75.' The defendants also expressly e.top themselves from denying the attachment of the prop- erty or its receipts. Judgment was recovered against Norris for |41.59, and due demand made, with the ex- ecution on the defendants, for the property receipted, which they refused to deliver. The plaintiff therefore brings this action on the receipt." Norris had abscond- ed before attachment. Property belonged to partner- ship of Skinner & Norris. "The questions in the case arise upon the point whether certain evidence offered by the defendants was properly excluded. They offered to prove that Norris had put into the business so much less than his proportionate part, and had drawn out so much more than his proportionate part, that, upon a settle- ment between the partners, all the assets of the firm, including the property attached, would have belonged to Skinner, and that, therefore, Norris had no attachable interest, or, if he had, it had no value. This evidence was excluded by the court. Evidence was also excluded that all the assets of the firm, including the property attached, would be insufficient to pay the debts of the firm. It was not claimed, however, that any steps had been taken on the part of any partnership creditor to avail himself of the goods attached, nor that there had been any proceedings in bankruptcy or insolvency. * * * We think it clear, therefore, that the facts sought to be proved by the defendants constitute no de- fense to the suit. The defendants have broken their contract, and by the terms of the receipt, upon failure (327) ij 117 ADMINISTRATIVE OFFICERS. [Ch. 8 to return the property on demand, they are to pay the amount of the execution. Were it not for this special clause it would be open for the defendants to show the value of Norris' interest in the goods; but the defend- ants have agreed upon a rule of damages for nondeliv- ery, and there appears no reason why they should not be bound by that agreement. * * * The plaintiff's counsel argued that officers' receipts are mere contracts of indemnity, and that, if the officer were sued by the creditor for not having the property attached forthcom- ing to respond to the execution, the rule of damages would be the true value of the interest of Norris in the goods. It is conceded that such receipts are regarded for many purposes as contracts of indemnity, but not to the extent of nullifying a stipulation of agreed value of the property. The covenant in this case to pay a stip- ulated sum, not exceeding the amount of the judgment Avhich the plaintiff in the attaching process may recover, is in the nature of an agreed valuation." It was also stated in the case of Staples v. Fillmore ■}''^ "The fact that Huntoon had only a partnership interest in the property is not sufficient. If h'e had had none at all, that of itself would not have excused Staples [re- ceiptor] from performing his contract. The validity of officers' receipts does not depend upon title in the at- tachment debtor. They are often given without refer- ence to title, or even to the existence of the property therein named, being receipts for nominal property mere- ly, the object being to secure the debt." iTiStapl3s V. Fillmore, 43 Conn. 510. (328) Ch. 8] CONSTABLES, ETC. § 117 Evidence. The record in the case in which the property men- tioned in the receipt was attached is admissible in sup- port of the averments of the complaint in an action on re- ceipt.^ '^^ Constructive Possession by Receiptsman. The receiptsman of goods attached, who puts them in the custody of another to be taken care of, has construct- ive possession, and may maintain trespass for taking them out of such custody.^'^* Reversal of Judgment. The reversal of a judgment on which an execution issued will not bar an action in favor of an of&cer upon a receipt of proj^erty taken out on such execution; and, if that property, before the bringing of the action, has been restored to the original owner, the rule of dam- ages will be the amount of the officer's fees.^'^* ^» Necessity of Search for Property. In the case of Doolan v. Wilson,^ '^^ which was an action on receipt, the receiptor recited an attachment by the plaintiff, as deputy sheriff, of certain horses and wagons particularly described on a writ against John Poland, and concluded as follows : "Which property we, the un- dersigned, for a valuable consideration, hereby jointly and severally promise and agree to keep at our own risk 172 Marion v. Faxon, 20 Conn. 494. 173 Burrows v. Stoddard, 3 Conn. 160. 174 Phelps V. Landon, 2 Day, 370. 175 Doolan v. Wilson, 73 Conn. 446. (329) I 118 ADMINISTRATIVE OFFICERS. [Ch. 8 and expense, to redeliver the same in good order to said officer (or to any other officer legally authorized to re- ceive the same) on denu.nd, or, in default thereof, to pay the sum of $2,000, or, if demand be not made before judgment is rendered, the amount of damages and costs which shall be recovered by the plaintiff in said case, if the same shall not exceed said sum; it being under- stood and agreed that we, the undersigned, are hereby estopped from denying that the property herein de- scribed has been attached by said officer, and that we have received the same from him, and that the same is the property of said defendant, and is of the value here- in named." Part of the property, when attached, was iu one barn, and part in another, situated two miles from the former. Plaintiff, with execution, went to one barn, where he found no property, but not to the other, where he would have found it. He made demand on receiptor. Baldwin, J., stated: "The officer was not bound to search for the property which he had attached. The receipt means Avhat it says. It threw on the defendants, as things stood, the absolute duty of redelivering the property to the plaintiff on his demand, or else of pay- ing the judgment upon which the execution which he held was issued." § 118. Levy of Execution on the Body. "If personal estate of the debtor sufficient to satisfy the debt and charges cannot be found, and the creditor shall not agree to take the debtor's lands, the officer shall levy the execution on the body of the debtor, unless ex- empted by law from imprisonment on said execution, and commit him to the jail of the county in which the (330) Ch. 8] CONSTABLES, ETC. § US execution is levied, where lie shall remain till he pay the debt and the lawful fees and charges, or he discharged in the due course of law; and every officer who shall commit any person to prison by virtue of distress or execution shall deliver an attested copy of the writ or execution to the keeper of the jail, which shall be a suffi- cient warrant to him to hold such person in safe cus- tody until he be delivered in due course of law. If the debtor, after such levy of execution upon his body, shall be discharged or released from such imprisonment, or released by the officer serving the execution, by direction of the creditor, he shall not be liable to imprisonment again on the judgment upon which such execution issued, but the same may be collected out of his property."^^" "When the body of any person is attached, and for want of bail committed to prison, he shall not be held in prison by virtue of such commitment longer than five days after the rising of the court in which final judgment shall be rendered; and in case no execution shall be levied on his person within five days, the keeper of the jail, upon his fees being paid, may not hold such pris- oner any longer by virtue of such commitment."^'''^ "No execution issued in an action founded on contract merely, express or implied, shall be levied on the body of the debtor, except in actions founded on promisees to marry, or misconduct or neglect in any office or profes- sional employment, or in actions instituted against a public officer, trustee, or person acting in a fiduciary capacity, to recover moneys received by him; nor shall "0 Gen. St. § 918. "7 Gen. St. § 919. (331) § 118 ADMINISTRATIVE OFFICERS. [(Jh. 8 any execution issued for costs in an action by summary process be levied on the body of the defendant."^^* The duty of the officer serving an execution on the body is well stated in the old case of Hall v. Hall:^'^* "The officer's duty is clearly pointed out in his precept or execution, agreeable to law, and he is to execute the same humanely, and give it a reasonable construction. He is to search for property whereon to levy at the prop- er place, viz., the debtor's place of abode, and also to make demand, and, if none is found by search or shown to him by the debtor upon demand, he is to levy on the body of the debtor, and him hold until the money is paid," or the debtor released by order of law. Before the levy on the body, the debtor is to have his election, either to pay the money, tender estate sufficient, or de- liver his person to the officer. If he neglects or refuses, and the officer makes the levy on the body, he is an- swerable for the body of his prisoner, and not obliged to release it unless the debtor pays the money; otherwise it would be in the power of the debtor to play with the officer, by tendering him property, the title to which was doubtful, the value uncertain, and thereby distress and perplex the officer, and lead him into suits at law, while the officer was liable to the creditor, and could not relevy on the body. It may be prudent and safe for an officer to release the body and accept chattels, and he has his election; but.it is at the risk of the officer to accept of anything but the money in lieu of the body." The debtor whose body has been taken on attachment or ex- 178 Gen. St. 920. 179 Hall V. Hall, 1 Root, 124. (332) Ch. 8] CONSTABLES, ETC. § 118 ecution may make an application to take the poor debt- or's oath.^^" If the amount of property tendered hy the debtor to the officer serving execution on the body be not appar- ently sufficient to discharge the debt and the costs, the officer is not bound to receive it, although, of course, the officer must give the debtor a reasonable opportunity to produce sufficient estate.^ *^ An execution levied on the body after the expiration of the time within which it should be returned to court is of no force, and an arrest made under it is a tres- pass.^ ®^ It has been the immemorial usage for officers, when they have arrested the body, if, before the writ is re- turned, they discover estate, to release the body and take the estate, and this reasonable practice has been sanc- tioned by judicial decisions.^^* If the debtor refuses to turn out property when de- manded under execution, and declai-es that the proceed- ings are illegal, he waives the privilege of turning out property which the law has given him, and the officer is excusable if he levies on his body.^** An officer who has in his possession an execution to be levied on the body must have a bona fide intent to ar- rest the debtor, and make a diligent search for him, or else a return of non est inventus will not be justified. 180 See section 56, supra. 181 Gilbert v. Rider, Kirby, 182. 182 Stoyel V. Lawrence, 3 Day, 1. 183 Scott V. Crane, i Conn. 258. 184 Allen V. Gleason, 4 Day, 382. (333) § 118 ADMINISTRATIVE OFFICERS. [Ch. 8 It was held in the case of Sheldon v. Kibbe^^^ that the taking of the body of a judgment debtor in execution is not a satisfaction of the judgment; but in the case of Loomis V. Storrs/^^ Chief Justice Hosmer, who also ren- dered the opinion in the case above quoted, stated: "From 28 Car. II. it has been well established, if the body of a debtor has been taken in execution, and he is discharged from custody by the direction of the creditor, that the judgnient is satisfied. * * * The cases pro- ceed on the ground that the plaintiff has received a sat- isfaction in law by having his debtor once in custody on execution. This principle must be received with a qualification arising from the form of our execution, — that is, that property tendered by the debtor immedi- ately after the levy of the execution upon the body, or perhaps within a reasonable time afterwards, the officer is bound to receive. That the creditor may cause his execution to be levied on the body of his debtor, and at his pleasure relinquish the levy and commence a new leyj on property, has the countenance of no adjudged case, and would be pregnant with the most manifest inconvenience."^^'' The apparent contradiction in these two opinions, stated above, may be explained by the fact that in the caise of Sheldon v. Kibbe, where the court stated that the taking of the body is not a satisfaction of debt, the debtor had taken the poor debtor's oath, and had thus been released by operation of law, not by direction of the creditor. But if, as in the case of Loomis v. Storrs, 185 Sheldon v. Kibbe, 3 Conn. 221. 186 Loomis V. Storrs, 4 Conn. 441. 187 This case was decided in 1822. (334) Ch. 8] CONSTABLES, ETC. § 1 19 the debtor is released by act of the creditor, the judg ment will be considered satisfied. In the case of Terrell v. Smith^^^ it was held: ^'Though the discharge out of custody by direction of the creditor of a debtor taken on execution is a technical satisfaction of the debt, so that the creditor, having voluntarily relinquished the process which the laAv had given him to enforce payment of that debt, shall not be allowed .another, by which the debtor may be unreason- ably harassed, yet such a discharge is not payment or an actual satisfaction of the debt, and does not affect the liability of the guarantor." In this opinion the case of Loomis v. Storrs is cited with approval. Where the body of the debtor is taken, the creditor must pay his board at the jail. § 19. Levy of execution on Personal Property — Demand. Executions shall be granted against the goods, lands, and, when the defendant is liable to imprisonment on the same, against the body of the debtor ; and when any execution is taken out and delivered to the officer to whom it is directed, to serve, he shall repair to the debt- or's usual place of abode, if within his precincts, unless he finds him at some other place, and make demand of the sum due on such execution, with his lawful fees; and, upon refusal or neglect of payment, he shall in- dorse on the execution when and where he made such demand, and levy the same on the personal estate of the debtor, not exempted from execution; and on such es- tate also, if presented by the debtor. The officer shall 188 Terrell v. Smith, 8 Conn. 426. 335) § 119 ADMINISTRATIVE OFFICERS. [Ch. 8 advertise and post such estate, with a particular account thereof, on a sign post in the town, and near the place where taken, to be sold (unless some other place is designated by law), at the end of fourteen days, or where the property levied on is in its nature perishable, or live stock, the custody and preservation of which would be expensive, at the end of seven days, specifiying the day of the month and the hour when the sale is to take place; and, in computing said time, the day on which the property is posted shall be included, and the day specified for the sale shall be excluded. If the property exceeds one hundred dollars in value, and is not in its nature perishable, nor live stock, he shall also adver- tise such sale in a newspaper published in such town, if any there be, otherwise in the county in which such town is, not over three times, the first time to be at least seven dafs before the day of sale, as computed as afore- said; and in case the debtor shall not, within fourteen days, or seven days, as the case may be, pay the judg- ment with the interest and all the costs that have arisen, the officer shall sell, to the highest bidder, such prop- erty, or so much thereof as may be necessary to pay the execution, and the lawful fees and expenses, and shall return the overplus, if any there be, to the owner.^^^ "The law explicitly requires that the officer shall re- pair, with the execution put into his hands for service, to the debtor's usual place of abode, and make demand of the debt as the first step of his proceeding. The ob- ject of this enactment M^as to give the debtor an oppor- tunity of making payment in prevention of unnecessary 189 Gen. St. § 901. (336) Ch 8] CONSTABLES, ETO. § 119 cost, and, if he could not do this, to confer on him the power of exposing such goods and chattels for raising the money requisite to satisfy the execution as should be least injurious to him. If theve are more debtors than one, the demand must be made on all. This is a matter stricti juris, and it is the privilege of each to pay the debt, and prevent the levy on his property, or, if a levy is indispensable, to protect himself from unnecessary damage. A demand of one joint debtor does not au- thorize the levy of an execution on the property of an- other joint debtor."^*" Whenever an officer has attached property, and holds it in his hands subject to the judgment in the attach- ment suit, if another officer is commanded to serve the execution on the judgment obtained in said suit, he must make demand on the execution upon the officer holding the property by virtue of the attachment. This demand may be at the place of the abode of the first officer, or wherever he may be. If the demand be made of him at a place where the property is not located, and he offers to deliver it to the officer holding the execu- tion at the place where the property is located, it is the duty of the officer holding the execution to go to such place to receive it; but if the officer in the attachment proceedings refuses to deliver the property at any place, this refusal will subject him to an action, whether the estate were at the place where demanded or not.^^^ If demand is not made, the property attached is ex- onerated from the operation of the lien. It is no ex- 190 Dutton V. Tracy, 4 Conn. 370. 181 Scott V. Crane, 1 Conn. 258; Gates v. Bushnell, 9 Conn. 533. (337) Adm. Off.— 22. § 119 ADMINISTRATIVE OFFICERS. [Ch. 8 cuse for the want of such demand upon the attaching officer by the officer serving the execution that the at- taching officer, before the expiration of the creditor's lien, had fraudulently disposed of the goods attached, and had thus put it out of his power to comply with the demand.^'^ ■ Sale of Personal Property. It is not necessary to repeat the demand after the date of the execution has been altered by the clerk of the court by erasing the original date, and substituting a later one.^"^ If the judgment debtor be a nonresident of this state, demand may be made on his attorney or agent in this state, but in a doubtful case the execution creditor should secure an order of court fixing nature of demand neces- sary. If the debtor be a nonresident, and have no agent or attorney in this state, a demand by the officer at the sign post in town where goods were attached would prob- ably be sufficient. It diligent search be made for the debtor in the officer's precincts, and he be not found, de- mand may be dispensed with. It is necessary that an officer in charge of an execu- tion sale should be fair and frank with all bidders, and, if he knows of any reason why a successful bidder will not take good title to the property sold, it is his duty to impart his knowledge concerning the title at the time of the sale. In the case of Bartholomew v. Warner,^^* the plaintiff bought a horse at an execution sale con- liia Gates v. Bushnell, 9 Conn. 533. 103 Roberts v. Church, 17 Conn. 142. 194 Bartholomew v. Warner, 32 Conn. 102. (338) Ch. 8] CONSTABLES, ETC. § 119 ducted by the defendant as constable. The defendant had knowledge that other persons had claims on the horse, which he did not discuss at the sale. After the sale the plaintiff was obliged to give up the horse to one of these claimants, and brought suit against the officer for repayment of the purchase price. The judge below stated in his charge to the jury that, if the facts were as claimed by the plaintiff, they might render a verdict for the plaintiff. "The defendant now insists that there ought to be a new trial for a misdirection. The principal ground taken by him is, that it was the duty of the officer merely to sell whatever title to the property' the execution debtor had, and that he was un- der no obligation at the sale to make any declarations regarding the title to the property. But we think the charge was right. The plaintiff's counsel did not and could not claim that on a sale on execution there is any warranty even of title. Nor is an officer bound, as a general rule, to make any representations as to the qua] - ity or the title of the property offered for sale. But for the very reason that there is no warranty, he ought to conduct the sale in perfectly good faith. He must not say or do anything calculated to deceive or mislead the bidders. * * * The circumstances of the case, as claimed by the plaintiff, lead to a strong suspicion that the officer was actively aiding the creditors. If so, the plaintiff parted with his money without receiving any consideration which he could retain, and the defendant obtained it by a breach of good faith, and he would be equally liable with the creditors to refund it. It would be strange, indeed, if such is not the law. It would furnish a very convenient way to collect a bad debt. (339) § 119 ADMINISTRATIVE OFFICERS. [Ch. 8 All that the creditor would be obliged to do would be to find some officer who would aid him in his scheme, and direct him to levy his execution on some stranger's property as the property of the debtor, and then adroitly sell it to soffl£ unsuspecting purchaser."^^^ "Where pei'sonal property is sold in good faith and in •pursuance of all the requirements of law by a sheriff on a valid judgment, the ordinary principle that makes a sale void as to attaching creditors where the vendor remains in possession does not apply, and it does not affect the case that the execution creditor is the pur- chaser of the property at the sale. If, however, the ex- ecution creditor, having become the purchaser, allows the debtor to remain in possession, the circumstances may be such as to cause an inference that the sale is collusive, and such inference it would be his duty to overcome by proof that his judgment was for an honest debt, and that there was no collusion with the debtor to defraud his other creditors."^®*' If the execution creditor should take means to adjourn the sale from day to day, with the idea of discouraging bidders, and put hindrances in the way of bidders, so that wholesome competition is suppressed, with the pur- pose of securing the property himself at a low figure, and the officer aids and abets him in such undertakings, the sale will be set aside, and the law will not stop to inquire whether, in any particular case, actual damage bas arisen. It is enough that such proceedings neces- sarily lead to fraud and oppression, and therefore the 105 Bartholomew v. Warner, 32 Conn. 102. i»« Huebler v. Smith, 62 Conn. 186. (3-iO) Ch. 8] CONSTABLES, ETC. § 119 law must treat tliem, as regards third persons, as fraud- ulent.i»^ Partnership Property. Although the tangible property of tenants in common may be taken and sold on execution against either of them, such part only can be sold as belongs to the ten- ant against whom the execution is issued, and the pur- chaser will become co-tenai^t with the r«st ; but this rule does not apply to the case of co-partners. "It is a point well settled by the authorities that an execution against a partner for his separate debt can take only the interest of the partner in the partnership property, subject to the partnership debts; that the interest of the partner only is sold and not the effects. The purchaser will stand in the place of the partner ,• the interest taken will continue, subject to the same responsibilities; and the amount can be ascertained only on a final settlement of the partnership accounts. * * » The only mode of doing justice is to sell the interest of the partner who is the debtor in the execution ; and though this may be uncertain and difficult to come at, yet this can be no reason why a rule, manifestly unjust, should be adopt- The interest of one partner in the partnership prop- erty is his share in the surplus remaining after the pay- ment of the claims against the partnership, and that surplus alone is liable for his individual debts. A cred- itor of one partner can only attach or levy his execu- 197 Spencer v. Champion, 13 Conn. 18. 198 Church V. Knox, 2 Conn. 516. (341) g 119 ADMINISTRATIVE OFFICERS. [Ch. 8 tion upon the common property in such a manner as to make that partner's interest in the property subject to the claims of all the partnership creditors.^ ^® Perishable Property. Under section 901 of the General Statutes, already quoted,^"'* perishable property is that, and that only, which will materially depreciate or be wholly lost by natural decay before the expiration of the fourteen days prescribed in the statute. If, then, the property be fruit, vegetables, shell or other ftsh, meats, or other prop- erty which will be liable to materially or Avholly decay before the end of fourteen days, it should be posted and sold at the end of seven days.^"^ Live Stock. Section 901 of the General Statutes, already quoted/"^ provides for the sale within seven days of live stock, the custody and preservation of which would be "expensive." "The word 'expensive' here is not used in the sense which lexicographers attach to it, but in its popular sense, meaning that which wguld involve or require expense. There is not such a difference in the expense of keeping- different kinds of stock, or different animals of the same kind, or different ones of any kind at different times, as to justify the other construction. The General As- sembly meant to save all unnecessary expense for the benefit of the plaintiff, if required for the satisfaction of 109 Filley v. Phelps, 18 Conn. 301. 200 See page 336. 201 Webster v. Peck, 31 Conn. 499. ^"-' See page 330. (.342) Ch. 8] CONSTABLES, ETC. § 119 his debt, and, if not so required, for the defendant. If, therefore, an officer has in his custody live stock which it will require an expenditure to keep and preserve, and for which he will have a right to charge, he must post and sell at the end of seven days. If the property is receipted to be forthcoming at the sale, or the care and custody is provided for by either of the parties, so that it will involve no expense chargeable to the property, he must post and sell at the end of twenty-one [now changed to fourteen] days, as provided by the general law."203 ■Levy on Void Judgment. Where a judgment is void because taken by default against a nonresident defendant without a three months' continuance, a levy of execution upon property under such judgment would be of no effect.^"* Levy on Exempt Property. The levy of an execution upon property exempt from execution has no more effect as to a change of title than a. levy on the property of a third person ; and the officer who wrongfully takes such property upon execution can- not, as against the debtor, justify the taking by virtue of the process. ^"^ Time of Levy of Subsequent Executions. A second attaching creditor must levy his execution 203 Webster v. Peck, 31 Conn. 499. 204 Sanford v. Pond, 37 Conn. 588. 205 Williams v. Miller, 16 Conn. 144. (343) § 119 ADMINISTRATIVE OFFICERS. [Ch. 8 on personal property within sixty days, and upon real estajte within four months, after the first lien by attach- ment is removed; and if the levy of an execution is made while there is a subsisting prior incumbrance by attachment on the same property, such levy is void.^**® Execution Valid, though Not Returned to Court, It is established law that me^ie process must be re- turned, or that the arrest or attachment by virtue of it is tortious, the end of the proceeding being to compel the defendant to appear and answer to the plaintiff. But if an execution is duly served on chattels, and is not returned, the proceeding is valid, for the plaintiff has obtained the effect of his suit, and nothing afterwards is to be done on his part.^"'' Levy on Property of Third Person. In the case of Bi«sell v. EdwardSj^"** Judge Swift made the following statement : "The plaintiff * » * claims that the defendant delivered to him, he being a deputy sheriff, an execution in favor of Hitchcock, Wol- cott & Co. against Moses Twiss, which he levied on cer- tain estate, sold it, and paid the money to the defend- ant; that the estate on which the execution was levied belonged to Ebenezer Twiss, who had since, by suit, re- covered the value of it from the plaintiff. * * * It does not appear that the defendant had any interest in the execution, or that he was attorney or agent to Hitch- cock, Wolcott & Co. * * * When an officer re- 206 Beers v. Place, 36 Conn. 582, 585. 207 Toby V. Reed, 9 Conn. 222; Pratt v. Pond, 45 Conn. 886. 2U8 Bissel V. Edwards, 5 Day 97. (344) Ch. 8J CONSTABLES, ETC. § 119 ceives an execution to levy and collect, the law has point- ed out his duty and ascertained his responsibility. If, on demand of the money of the debtop, when he can be found, or at his place of abode, he refuses to satisfy the execution, the afflcer is bound to levy on his personal estate, if it can be found ; if not, then on his body, unless the creditor directs a levy on land. If neither person nor estate can be found, he must return the execution within the life of it, with an indorsement of 'Non est in- ventus.' T.he creditor is not obliged to give any special directions. The officer must look to the execution for his rude of conduct. He must levy at his peril, and is liable in case of mistake. This is a part of the respon- sibility of the officer, and, without such responsibility, creditors would have no security for the faithful service of their executions. If the officer neglects to levy on the estate of the debtor when he has the power to do it, he becomes responsible to the creditor for such neglect. If he levies on estate which does not belong to the debt- or, though by mistake, and causes it to be sold, by which the execution is discharged, he becomes responsible for such misconduct in the same manner as for a neglect of duty in not levying an execution. He cannot excuse himself by alleging that the estate did not belong to the debtor, for this is the very misconduct that creates his liability." It was held that the officer could not re- cover back money paid to defendant. Appeal. Execution may issue immediately after the rendition of final judgment by the trial court, notwithstanding that notice of an appeal to the supreme court of errors (345) § 119 ADMINISTRATIVE OFFICERS. [;(_lh 8 is pending, if the trial judge is of the opinion that the appeal is simply for delay.^"* ■Levy of Execution on the Property ot Voluntary Asso- ciation. The statute^^" permits individuals to unite under a distinguishing associate name for trading purposes, but they do not thereby acquire corporate powers or im- munity from individual liability. If they choose to do so, they can institute a suit for the common benefit in the associate name, or they may be made defendants un- der the same name. "If the latter, execution will go against common property of the association as such, and not against individual property. If, disregarding the fact and form of association, the suit is against all of the individuals, execution will go against the individual property of any."^^^ 209 Coughlin v. McElroy, 72 Conn. 444. 210 Gen. St. § 922. 211 Davison v. Holden, 55 Conn. 113. (346) CONSTABLES, ETC. (CONT'D), 120. Levy of Execution on Real Estate. "When personal estate sufficient to pay the sum men- tioned in the execution and the lawful fees and charges cannot be found by the officer, or shall not be tendered by the debtor or his attorney, to be taken on such exe- cution, such officer, by the direction of the creditor or his attorney, may levy the same on the real estate of the debtor holden in his own right; which shall be appraised by three indifferent freeholders of the town where it lies, or if that town be a party, then of the next adjoining town, one of whom shall be appointed by the creditor, and another by the debtor, and if they do not agree in appointing a third, or if either party shall neglect to appoint, the officer may apply to any justice of the peace in the town who by law may judge between them in civil causes, who shall appoint one or more appraisers, as the case may require; which appraisers, being duly sworn, shall make an estimate of such real estate, according to its true value, in writing under their hands, or the hands of either two of them, and the same deliver to such officer, who shall thereupon set out ta the creditor, by metes and bounds, so much of the lands as may be sufficient, at the appraisal, to pay the debt on the execution and the lawful charges, if sufficient; if (347). R 120 ADMINISTRATIVE OFFICERS. [Ch. 9 not, so much as there may be, to be indorsed, in part payment of the execution, according to its value at the appraisal."^ "The officer levying an execution on real esftate shall cause it, with his indorsement thereon of such appraisal and his proceedings, to be recorded at length in the records of the town where the estate lies, and shall then return such execution into the office of the clerk of the court from whence it issued, there to be kept on file; and all executions served, returned and recorded, as aforesaid, shall vest all the title of the debtor in the creditor, his heirs and assigns."^ In General. Whenever it is possible, the officer must set off the real estate by metes and bounds. An undivided portion of an unincumbered piece of property can only be set off where several creditors have executions served at the same time by agreement, and each takes an undivided interest in the whole piece. For instance, it is not legal for an officer to set off an undivided portion of a dwell- ing house.^ The opinion in the case of Giddings v. Oanfield^* gives in very clear language the reasons for this rule, as follows: By ancient and immemorial usage in this state, executions have been levied on a defi- nite portion of the debtor's property; and this, as a 1 aen. St. § 921. 2 Gen. St. § 923. •'i Giddings v. Canfield, 4 Conn. 489. sa 4 Conn. 490. <348) Ch. 9] CONSTABLES, ETC. (CONT'D). g 12(> general principle, is admitted to be la,w in Jessup v. BattCTSon.* In this case a new rule was established by way of exception; that if several distinct executions are levied, by separate creditors, of more than sufficient value to appropriate the whole of the property levied upon, an undivided proportion may be set off on each of them. The debtor, having received the value of all the lands taken, could have no interest in the mode of levy> and the agTeement of the creditors to become tenants in common in this novel manner was considered as being free from exception. This is the only deviation which has ever been sanctioned from the common usage of levying executions on definite proportions of property, unless in cases of strict necessity. Such were Hinman V. Leavenworth* and Starr v. Leavitt,® in which cases it was decided that the creditor of, one tenant in common cannot levy upon and have set off to him a certain part of the common estate by metes and bounds. The determina- tions were founded on this conclusive reason: that the appropriation of a specific part of the common estate for the debt of one tenant in common would deprive his fellow tenant of a part of his property by making a par- tition of the estate without his consent or co-operation. It is strictly incompatible with the nature of this estate, because it would be unjust and in violation of the right of property to levy upon and set off a distinct part of 4 Jessup V. Batterson, 5 Day, 368. s Hinman v. Leavenworth, 2 Conn. 244, note. 6 Starr v. Leavitt, 2 Conn. 243. (349) § 121 ADMINISTRATIVE OFFICERS. [Ch. 9 it bv metes and bounds, and to the necessity arising from these considerations the creditor must yield.'" A levy of execution on real estate is valid, even though the debtor was in prison, and demand was made at his house.* It is not necessary that the officer should use technical precision in describing the acts performed by him, but it will be sufficient if it appears by a reasonable con- struction of the whole return, or by necessary inference from the facts stated therein, that everything required by the statute to constitute a valid levy has been per- formed.® Every step, however, in the proceedings re- quired by the statute, must be taken, and the omission of any requisite formality will impair the levy. It is held that, the levy of execution being a proceeding in deroga- tion of the common law, the statute must be strictly fol- lowed, although, as above stated, a reasonable and lib- eral construction will be given to the officer's return, provided that it appears in the return that he has com- plied with the essentials required. Whether, in a given case, the land has been set out, is a question of law, not depending upon the statement of the officer that this was done, but upon the acts performed by him in levying the execution.^" "The right to take real estate upon appraisal by the levy of an execution can be exercised only upon such as 7 Giddings v. Canfield, 4 Conn. 489. s Grant v. Dalliber, 11 Conn. 234. 9 Bissell V. Nooney, 33 Conn. 418. 10 Bissell V. Nooney, 33 Conn. 418. (350) Cli. 9] CONSTABLES, ETC. (CONTD). § 120 is holdon by a living tiebtor. * * * It is th^ crea- tion of the statute, and must be exercised in strict ac- cordance witli its requirements. Tliese, including the prerequisite, unsuccessful search for personal estate, the search for real estate of the debtor holden in his own right, the appointment' by him of one sTppraiser who shall be legally indifferent to him, and the privilege of uniting with the creditor in the appointment of anoth- er, all point to a living owner and debtor ; none of them to an executor or administrator holding title temporari- ly for creditors, until it shall be determined what por- tion of the estate these will consume, — the remainder to devolve upon devisees or heirs."^^ Appraisers.. Tlie appraisers must be indifferent freeholders, and thr'T must be sworn according to law. An appraiser who is an uncle of the creditor's wife is not indifferent, with- in the meaning of the statute.^^ An appraiser who is a tenant of one of the parties was held disqualified.^* It was held, in thie last-cited case, as follows: "The legislature, in directing that the appraiser should be in- different, must have intended that there should not be such a relation between them and the parties as could bias their minds and induce them to act with partiality. As the degree of relationship is not designated, it is rea- sonable to adopt the rule prescribed by statute as to the 11 Flynn v. Morgan, 55 Conn. 138. 12 Tweedy v. Picket, 1 Day, 109. 13 Mitchell V. Kirliland, 7 Conn. 231. (351) § 120 ADMINISTRATIVE OFFICERS [Ch. 9 eases in which judges are disqualified to judge between the parties. As this comprehends the relationship of the appraise in question [tenant], I think the execu- tion not duly levied." And if the appraiser in such case be agreed on and appointed by the parties with knowl- edge of his situation, it will make no difference, for the agreement of the parties cannot alter the law. In, Johnson v. Huntington,^* where the appraiser's wife was the mother-in-law of the creditor, the appraiser was held disqualified. The appointment of an appraiser by an execution debt- or is not a contract, and the appraiser so appointed comes under no obligation of contract to the person ap- pointing.^^ If one of the appraisers appointed by the creditor is a justice of the peace, and the debtor fails to make an appointment, the appraiser so appointed, in his capacity as justice of the peace, may appoint and give oath to the other two appraisers.^" If the debtor is out of the state at the time that the appraisers are appointed, and is therefore not request- ed to make an appointment, and a justice of the peace thereupon makes the necessary appointments, the pro- ceeding will be regular, as the absence of the debtor rendered notice to him impossible, and is prima facie sufficient to warrant an omission to apply at his dwelling to him to make such appointment.^''' The act of the 1* Johnson v. Huntin^on, 13 Conn. 52. 15 Strong V. Blrchard, 5 Conn. 362. le Pendleton v. Button, 3 Conn. 411. 17 Pendleton v. Button, 3 Conn. 411. (352) Ch. 9] CONSTABLES, ETC. (CONT'D). § 120 justice of the peace in appointing and swearing an ap- praiser implies that he is indifferent and unexception- able, and the officer is authorized to certify the facts which, until the contrary is evinced, are deserving of credit.^^ It is not necessary for the appraisers to be upon the land to be appraised. They are "bound to appraise it at its value, and, for this purpose, to attend to the nec- essary means of ascertaining it; but this may be, and undoubtedly was, effected by viewing the land. They were not required to enter upon the property and take possession."^^ If an appraisal is made and certificate prepared by the appraisers, which is delivered to the creditor, even in the presence of the officer, and, in the opinion of the creditor, the valuation is too high, he may request the appraisers to view the land again and reconsider the valuation. If, then, a second appraisal is had, and the certificate thereof delivered to the officer, this second ap- praisal wiJl be in all respects valid and final, in the absence of fraud and corruption.^" On the facts above stated, it was held by Chief Jus- tice Hosmer, in the case just cited, as follows: "The precise manner of setting off land on execution is not prescribed by law; but unquestionably, so far as the statute has gone, it must be complied with, and that mode of levy alone should be sanctioned which is fair 18 Pendleton v. Button, 3 Conn. 411. 18 Pendleton v. Button, 3 Conn. 411. 20 Bill V. Pratt, 5 Conn. 123. (353) Adm. Ofe.— 23. ' § 120 ADMINISTRATIVE OFFICERS. [Ch. 9 and involves no unreasonable hardship. In consistency with this general principle, the construction of a levy ought to be liberal, as the taking of land in payment of a debt is usually the result of necessity, and most com- monly' disadvantageous to the creditor. * * * It has been argued that, on delivery of the first certificate to the plaintiff, the appraisers had terminated their au- thority, and were fuitcti officio, but for this supposition there is no foundation. The law requires that the ap- praiiers shall make an estimate of the land in writing under their hands, and the same deliver to "the oflEicer, who shall set out, by metes and bounds, so much of the land appraised as shall be sufficient to satisfy the execu- tion. Whatever effect such a delivery might have, on which the expression of an opinion is unnecessary, it is very apparent, in this case, that to the officer the first certificate was never delivered. It was put into the hands of the creditor, the officer not assenting; and to the officer no delivery was ever made but of the second certificate only. The creditor was not in any sense the officer's agent, and, of consequence, his act was not the act of the officer. He was the agent of the appraisers, and they had the same right to resume the certificate from him as from any other stranger with whom they might have deposited it. By this act, their authority was not terminated, unless we extend our retrospect fur- ther, and declare that the appraisement, having once been made, is unalterable, both as to the subject and the price. On this point there is no positive law, and the above position must be tested by principles of justice and convenience. It is not difficult to see that an ap- (354) Ch. 9J CONSTABLES, ETC. (CONT'D). gl20 praisement may have been made on mistaken grounds, which the appraisers ought to rectify, or that, from the particular condition of the subject appraised, they were deceived, or, from the omission to advert to a fact, which appears with full evidence, that they have confined their estimate to land which, in justice, the creditor ought not to accept. * * * As the certificate of appraise- ment was virtually in their own hands, they had a right to correct any error or mistake, in prevention of injus- tice, and conform the certificate to their last determina- tion. * * * On the delivery to the officer of the only certificate which ever reached his hands, the law had imposed upon him the imperative duty of setting off such part of the land appraised as would extinguish the execution debt, which he accordingly did. The proceed- ing was correct, and, in my opinion, there is no ground for impeaching the levy."-^ The appraisers must be indifferent freeholders resid- ing in the town where the land lies. It is not legal for the parties to agree upon an appraiser residing outside the town, and, if an appraiser so residing out of the town is appointed by such agreement, and actually serves, the levy will be invalid. "The statute is express that the land shall be appraised by freeholders of the same town, and the agreement of the parties cannot alter the law."^^ The certificate of appraisal must be in writing, signed by the appraisers, and delivered to the officer. An offi- 21 See, also, Camp v. Bates, 13 Conn. 1. 22 Metcalf V. Gillet, 5 Conn. 403. (355) § 120 ADMINISTRATIVE OFFICERS. [Ch. 9 cer is not authorized to set out land by metes and bounds until he shall have received this written certificate.^^ The omission of the sheriff to certify in his return that, on failure of debtor and creditor to agree upon the third appraiser, such third appraiser was appointed by a jus- tice of the peace of the same town, vitiates the levy.^* The mere fact that more land was levied upon and ap- praised than was set off on execution, without a reap- praisement of the specific land set off, is not enough to render the levy invalid.^^ Occasionally, in the appraisal of a laxge tract of land, questions may arise as to the relative value of different portions of the tract. Ordinarily, the appraisers will simply make the valuation a certain sum per acre, with- out specifying whether one is more valuable than anoth- er. This subject was well discussed in the case of Marcy V. Kinney, quoted above : "It is asked, is it to be pre- sumed that each acre of a farm containing 120 acres is of equal value? and it is said, unless it be so, this cannot be a fair transaction. When an appraisal of a quantity of land is made with a view of setting off a part, unless the several acres are nearly of equal value, this may not be a fair mode of appraisal ; but when the quantity is unknown except by estimation, and the farm is appraised at a certain sum by the acre, in the absence of all proof to the contrary, it may fairly be presumed that the average value per acre of the whole is also the 23 Metcalf V. Gillet, 5 Conn. 403. 24 Mather v. Chapman, 6 Conn. 57. 25 Marcy v. Kinney, 9 Conn. 393. (356) Ch. 9] CONSTABLES, ETC. (CONT'D). § 120 average value of one-half, or even of one-third. If there is a disparity in the value, this may be shown for the purpose of showing the object of the officer or creditor, and, if it could be shown that gross injustice was done to the debtor, or that the object was, by the forms of proceeding, to gain an undue advantage, such an ex- periment would never be sanctioned by intelligent men. But it would be too much to say that the levy was void from the mere fact that the quantity levied upon and, appraised by the acre was greater than that set off. The proper way, doubtless, is for the officer to levy upon what he supposes enough to satisfy the execution, — the whole tract or less ; to get the opinion of the appraisers ; then, if it is more than he needs, levy on so much as, in the opinion of the appraisers, will satisfy the execu- tion ; make his return according to the last levy, and let their certificates correspond with that return." Where there is a mill situated in the real estate ap- praised, it is not absolutely necessary for the apprais- ers to file a schedule of the pieces of machinery, with values attached, to the appraisal, but it will be pre- sumed that the fixed machinery in the mill was esti- mated by the appraisers in making up their valuation upon the property.^® In the case last cited it was held : "We think the fixed machinery in the mill was estimated by the appraisers, — that is, that it went to enhance the value of the mill, as it should have done. Of course, everything so annexed to the freehold as to pass by the levy must be presumed to have been taken into consid- 26 Payne v. Farmers' & Citizens' Bank, 29 Conn. 415. (357) § 120 ADMINISTRATIVE OFFICERS. [Ch 9 eration, or there would be no safety in relying upon an execution title. * * * It is true, no schedule was made of each separate piece of machinery, and such, we suppose, might very reasonably be expected to be the case if a piece of land, with several buildings upon it, was levied upon and set off. The appraisers might not estimate each building by itself, and make a schedule of them or of the fixtures connected with them, nor is there any more necessity for it than there would be to esti- mate separately the timber or other trees that might be growing upon land levied upon." The fact that the levy of an execution and appraisal Avas made on land as a fee-simple estate for life will not vitiate the levy. "By appraising the whole estate, all his interest in the land was appraised; that there was a mistake in the quantity of his interest, so that a greater interest was appraised than he owned, can con- stitute no objection to the levy of the execution, for all the interest of the defendant was appraised, and the maxim well applied that Omne majus continet in se mintis. If a less interest had been appraised, the ob- jection would have been valid. Here the whole land was levied upon and taken, and this must comprehend any lesser interest, in the same manner as a deed of land, as an estate in fee, A\'ill comprehend any interest of the vendor in the land, however small."^'^ — =- Equity of Kedemption. An execution may be levied upon an equity of redemp- 27 Hitchcock V. Hotchkiss, 1 Conn. 472. (358) (Jh. 9J CONSTABLES, ETC. (CONT'D). i^ 1^0 tion as real estate, and the creditor, after haviiig the same appraised and set off to him in the same manner as is provided in Gen. St. § 921, acquires all the rights of the mortgagor in the premises, and the mortgagor cannot subsequently redeem it.^* "When an execution is levied on an equity of redemption, and is of sufficient magnitude to take the whole, it may be levied on the whole, and the equity of redemption will be transferred to and vested in the levying creditor, and he [the execu- tion creditor] will have a right to redeem, the right of the mortgagor being extinguished; but as an equity of redemption is indivisible, and cannot be separated by metes and bounds, when the execution is not sufficient to take the whole, it must be levied on an undivided part in such proportion as the sum of the execution and costs bears to the value of such equity, whereby the levying creditor becomes tenant in common with the mortgagoi', in the same manner as when a part of a tenancy in com- mon is taken in execution."^" Where there is a mortgage on a farm partly in one town and partly in another, and an execution is levied on the equity of redemption, the officer should set off such a proportion of the equity of redemption (it being entire and indivisible) as the debt and costs bear to the whole equity. It is not legal for him to set off the above- mentioned proportion of the equity twice, on the sup- 28 Punderson v. Brown, 1 Day, 93 ; Scripture v. Jolinson, 3 Conn. 211. 29 Hobart v. Frisbie, 5 Conn. 594. (359) § 120 ADMINISTRATIVE OFFICERS. [Ch, 9 position that the equity in one town is separate from that in the other.*" The levy of an execution upon an equity of redemption gives to the levying creditor an irredeemable estate, dis- charges the debt, and annihilates the relation between the parties as debtor and creditor to the extent of the amount taken by the execution ; and a creditor who has acquired a right in an equity of redemption by the levy- ing of an execution cannot foreclose other creditors, whose executions were subsequently levied on the same equity of redemption.*^ This, of course, applies only to a credit(B' who has had set off to him an undivided portion of an equity of redemption. By such means, he becomes a tenant in common with the mortgagor, and cannot, of course, prevent other creditors from levying on the mortgagor's remaining interest in the equity of redemption. If, however, the creditor has levied upon and had set out to him the entire equity of redemption, he would undoubtedly have the right to bring suit against any subsequent creditors who might levy on the interest of the execution debtor, on the ground that such subsequent levy would be a cloud upon his title. Where a debtor was the owner of three distinct pieces of land, and had mortgaged by one deed the first and second pieces, and by another deed the second and third pieces, after which the creditor levied an execution t)n the debtor's equity of redemption in the three pieces, which were severally appraised, and such a propor- tion of the debtor's right in all the lands as the amount 80 Sumner v. Lyon, 7 Conn. 281. ai Allyn v. Burbank, 9 Conn. 151. (360) Ch. 9] CONSTABLES, ETC. (CONT'D). | 120 of the execution bore to the difference between the amount of the appraised value of the lands and the amount of the incumbrance was then set off to the execu- tion creditor, it was held that such a levy was legal and valid. Williams, C. J., stated in the opinion : "The claim of the defendants is that the creditor should have selected one or more of the pieces of land, sufficient to satisfy the execution, and not have extended it over the whole; and it is compared to the levy of an execution upon lands held in common by distinct titles. * * * This court has decided that an equity of redemption is indivisible. Of course, in case of one mortgage upon a single piece of land, the creditor must levy upon the whole, and set off such part or proportion as his debt bears to the whole value of the equity of redemption, for, as the lien is spread over every part of the land, so is the equity in every part of the land. Neither can be lim- ited except by the boundaries of the tract itself, and, where one mortgage is over several tracts, the same prin- ciple must prevail. You can no more divide or limit the lien in that case (nor, of course, the equity) than in the other. In such case, then, a levying creditor could no more select one of the tracts to place his execution upon than he could divide a single tract, where the se- curity was ample for the mortgage creditor and the levy- ing creditor. If appraisers could estimate what a dis- tinct piece of land should pay, what should prevent their making a similar estimate of a part of a piece of land, the bounds of which were designated by the sheriff? It is admitted that an equity of redemption is indivisi- ble, as it respects the debtor; but if a different rule ex- (361) § 120 ADMINISTRATIVE OFFICERS. [Ch. 9 ists with respect to the creditor, it is not perceived why it should not he equally applicable, whether the mort- gage was confined to one tract of land, or embraced sev- eral. The only doubt, then, in this case, must arise from this fact : that no one mortgage extends over every piece of land. Some of the mortgages extend over the first and second pieces, and some over the second and third pieces, so that the second piece forms a connecting link between the first and third pieces, and we see not why the value of- the equity of the third piece, for example, may not be af- fected by the value of the first piece, in the same manner as if they were connected by one joint mortgage, for the less the first piece sells for, or the less burthen it bears, the greater is the lien on the second, and, of course, the less it will bear of the joint lien upon the second and third, and so vice versa. We think, therefore, this equity is the same as if the mortgage extended over all those several pieces of land."^^ A creditor whose levy has been perfected on an undi- vided part of an equity of redemption secures an inde- feasible estate in that portion of the equity, with a right to pay a corresponding portion of the mortgage debt, and thereby acquire a perfect and indefeasible title to an un- divided share of the whole property.^^ "One levying an execution upon an equity of redemp- tion in real estate is bound by the action of the apprais- ers as to the amount and validity of a prior incumbrance, and cannot afterwards, on a petition to redeem, show 32 Beers v. Botsford, 13 Conn. 146. 33 Young V. Williams, 17 Conn. 393. (362) Ch. 9J CONSTABLES, ETC. (CONT'D). § 120 such incumbrance to be less than the valuation of the appraisers, or founded on an usurious contract."** Equitable Interest. The equitable interest of a cestui que trust is subject to the lien of attachment and the levy of execution.^^ Several Creditors Levying Together. As mentioned above, on page , several creditors who have executions against the same debtor may, by agreement, together levy upon the land, and have the sheriff set off to each execution creditor an undivided interest in the debtor's real estate, the creditors thereby becoming vested with a valid title to the land as tenants in common in the proportion that each execution bears to the appraised valuation of the land.** For a very valuable form of an officer's return on a case where several creditors so levied, see Lee v. Hin- man.*'^ It was said in this case: "It would be but a fair and consistent principle of construction to extend to this statute, then, to allow creditors for whose benefit it was made to unite in taking the debtor's land, in such time and manner, not incompatible with the terms of the statute, as would be most conducive to his interest, and in strict conformity to the justice due him. This is done most manifestly Avhen the Iqyj of divers execu- tions is made at the same time. One set of appraisers, Si Waterman v. Curtis, 26 Conn. 241. 35 Davenport v. Lacon, 17 Conn. 278. 30 Jessup -v Batterson, 5 Day, 368. 3T Lee V. Hinman, 6 Conn. 135. (363) § 120 ADMINISTRATIVE OFFICERS. [Ch. 9 as the case may be, will be enabled, on one view, to esti- mate the land, and, by considering it in an integral char- acter, give it a more liberal and yet just value than could possibly be done if it were subdivided into fractions as numerous as the executions. When, by consent and agreement of creditors, this can be done with less ex- pense to an unfortunate debtor, it is altogether the most humane and least ruinous course which he could desira" Life Estate. "An estate for life is to be appraised off on execution as real property, and so much only as, including the life of the debtor, will be sufficient to satisfy the execu- tion.'«8 ■ Dower. The dower interest of a widow in her deceased hus- band's lands can be taken on execution for her debts before her dower has been assigned. "It is not a mere chose in action, but a freehold estate, which, by our law, vests in the widow in common with the heirs im- mediately upon the decease of her husband, and does not depend upon the assignment which is a mere severance of the common estate." The probate court, upon appli- cation of the levying creditor, may cause the dower in- terest to be set out ahd assigned.*® Tenant in Common. "The creditor of one tenant in common cannot take by »8 Wheeler v. Gorham, 2 Root, 328. »» Greathead's Appeal from Probate, 42 Conn. 376. (364) Ch. 9] CONSTABLES, ETC. (CONT'D). § 130 execution a part of the land held in common by metes and bounds, but must spread his execution over the whole, and take such an undivided proportion as will satisfy his debt. Where there are two or more distinct tracts of land held by the debtor as tenant in common by distinct titles, the creditor cannot spread his execu- tion over them all, and take a part only of the debtor's right in each, but he must take the whole of the debtor's right in one tract before he takes any portion of an- other."" Levy of Execution on Real and Personal Property. When an execution debtor shall own the whole or part of an equity of redemption in a mortgage of both real and personal estate, the execution creditor may cause the execution to be levied upon the interest of the debtor therein, and such interest shall be appraised, and the whole or any part thereof may be set off to the creditor ; and appraisers shall be appointed, and all other proceed- ings shall be had, in the same manner as is by law pro- vided for the levy of executions upon real estate.*^ An execution creditor who has levied upon land can- not abandon the land and levy upon personal property, and, after selling it, resort again to the real estate.*^ — Change of Title. A creditor in an execution is never to be prejudiced by any change in the debtor's title between the com- *o Starr v. Leavitt, 2 Conn. 243; FiBh v. Sawyer, 11 Conn. 551. «i Gen. St. § 924. « Leavenworth v. Baldwin, 2 Day, 317. (365) § 120 ADMINISTRATIVE OFFICERS. [Ch. 9 mencement and completion of the levy, and whatever title the debtor has at the time the land is set off on appraisal passes to the creditor.** Mistake in Amount. Where a mistake of a small amount is made between the amount set off and the amount of the execution, the levy will still be valid, the excess being within the maxim^ De minimis non curat lex.** Estoppel. A levy of execution on land does not constitute an es- toppel which precludes the debtor from denying that he had a title at the time of the levy. Levy of execution, if regular, simply divests the debtor of whatever .title he had, and invests it in the creditor, but it conveys to the creditor nothing but the debtor's interest. It is, indeed, deemed conclusive, for it operates '''in rem." But, for example, if the land of the father is taken for the debt of the son, the latter will not be estopped from afterwards claiming his inheritance, whether he was or was not in possession at the time of the levy. Levy is not, therefore, an "estoppel," in the technical sense of the word. Neither debtor nor creditor is concluded. If the debtor has no title, the creditor, on a scire facias, may aver the fact and disaffirm the levy.*® Becording. "The transfer of title by the levy of an execution is by *8 Smith V. starkweather, 5 Day, 210. *i Huntington v. Winchell, 8 Conn. 45. *6 Porter v. Seeley, 13 Conn. 571. (300) Ch. 9J CONSTABLES, ETC. (CONT'D). §120 virtue of the statute, and, to render it effectual, tlie requisitions of the law must be strictly observed. The statute requires, in order to the acquisition of title, not only a levy, appraisement, and setting off of the land levied on, but a recording by the town clerk of the ex- ecution, with the officer's return upon it, and a return of the execution, duly indorsed, into the office of the clerk whence it issued. Not one of these requisitions can be dispensed with. It is by their united operation that the levy is complete, and effects a legal transfer of title, and, without the observance of the last act re- quired, nothing is effectually done."*® It is always incumbent upon the execution creditor to know exactly the condition of the title, and the nature of all incumbrances, before he levies his execution.*'^ "The levy is inoperative to effect a transfer of title, even against the judgment debtor, unless and until the proceedings are recorded, and recorded within the life of the execution. It is true that, under a levy duly per- fected, the title of the creditor commonly relates back to the first step in the process; but this legal fiction is never permitted to work injustice to a bona fide purchas- er, in whom any rights may have meanwhile become vest- ed." The case of Smith v. Starkweather*^ is somewhat modified by the case of Schroeder v. Tomlinson.*^ Even where a prior mortgage has not been recorded, 46 Coe V. Stow, 8 Conn. 538 ; Burton v. Pond, 5 Day, 160. i'' See case of Quinebaug Bank v. Frencli, 17 Conn. 135. *8 Smith V. Starkweather, 5 Day, 210. 18 Schroeder v. Tomlinson, 70 Conn. 348. (367) § 120 ADMINISTRATIVE OFFICERS. [Ch. 9 if a creditor, with knowledge of the existence of such a mortgage, levies an execution upon the mortgaged prop- erty, it has been held that he stands in no better title than if, with such knowledge, he takes a conveyance of the property, and that he does not obtain priority of title.50 Correcting levy. If a mistake is made by the execution creditor in levy- ing upon property which he supposes to be subject to a valid incumbrance, and although, as a matter of fact, the incumbrance is a fraudulent mortgage, the execution creditor has the right, by a proper application to the court, to correct the levy of his execution, and take the property as though there were no such incumbrance.®^ Fees. The word "fees," as used in the statute concerning ex- ecution, is not restricted to the charges of the officer for his personal services, but embraces also all the expenses attending the levy, and included in it, such as surveyors' fees, etc.** 50 Mead v. New York, H. & N. R. Co., 45 Conn. 199. ei Lord v. Sill, 23 Conn. 325. 62 Camp V. Bates, 13 Conn. 1. (368) TABLE OF CASES. [EEPERENCES ABE TO PAGES.] A. Adams v. Ames Iron Co., 24 Conn. 230 84 Ahern v. Purnell, 62 Conn. 21 313 Allen V. Gleason, 4 Day, 376 333 V. Ranney, 1 Conn. 569 '. 257. V. Vining, 1 Root, 313 113 Parmelee v., 32 Conn. 115 261 Ailing V. Munson, 2 Conn. 691 200 Allyn V. Burbank, 9 Conn. 151 360 Ames Iron Co., Adams v., 24 Conn. 230 84 Anderson v. Cowles, 72 Conn. 335 268 Andrews v. Morse, 12 Conn. 444 212 Arnold, Brainerd v., 27 Conn. 616 18 Ashmead v. Colby, 26 Conn. 286 11, 13 Atwater Mfg. Co., Sheppard v., 43 Conn. 448 20 Atwood V. De Forest, 19 Conn. 512 . 302, 304 Augur V. Augur, 14 Conn. 82 274 Averill v. Buckingham, 36 Conn. 359 260, note Avery, Maples v., 6 Conn. 20 19 Parker v., Kirby, 353 29, 257, 258 B. Babcock v. Hubbard, 56 Conn. 284 221 Cbesebro v., 59 Conn. 213 168 Backus V. Danforth, 10 Conn. 297 • 314 Southmayd v., 3 Conn. 474 271 Bacon v. Fitcb, Kirby, 373 270, 282 V. Thorp, 27 Conn. 251 316 Baker v. Baldwin, 48 Conn. 131 315 Adm. Off.— 24. 370 TABLE OP CASES. [EBFBRENCES ABE TO PAGES.] Baldwin, Baker v., 48 Conn. 131 315 Blake v., 54 Conn. 5 286, note Leavenworth v., 2 Day, 317 365 Bank of United States, Sill v., 5 Conn. 102 271 Barker, Whitly v., 1 Root, 406 214, 270 Barnes v. State, 19 Conn. 397 171 Brady v., 42 Conn. 512 25 Barrows, State v., 52 Conn. 323 210 Bartholomew v.. Warner, 32 Conn. 98 338, 340 Bartlett, Hull v., 49 Conn. 64 272, 299 Bates, Camp v., 13 Conn. 1 355, 368 Heath v., 49 Conn. 342 207, 283 Batterson, Jessup v., 5 Day, 368 , 349,363 Beardsley v. Town of Washington, 39 Conn. 265 54 Curtiss v., 15 Conn. 518 169 Beers v. Botsford, 13 Conn. 146 362 V. Place, 36 Conn. 578 344 Beha, Blackman v., 24 Conn. 331 164 Belknap, Washburn v., 3 Conn. 502 185 Benjamin v. Benjamin, 17 Conn. 110 212, 213 V. Hathaway, 3 Conn. 528 313 Bennett v. Bennett, 43 Conn. 313 27 V. Howard, 2 Day, 416 270 Bentley v.'Lyman, 21 Conn. 81 172, 174 Betts V. Dimon, 3 Conn. 107 114 V. New Hartford, 25 Conn. 180 50, 71 Bill V. Pratt, 5 Conn. 123 353 Birch, Town of Huntington v., 12 Conn. 142 49, 53 Birchard, Strong v., 5 Conn. 357 233, 352 Bishop V. Bull, 1 Day, 141 278 V. Vose, 27 Conn. 1 272, note, 278 V. Warner, 19 Conn. 460 292 Fowler v., 31 Conn. 560 319, 325 Bissel V. Edwards, 5 Day, 94 344 Bissell V. Nooney, 33 Conn. 411 350, 351 Blackman v. Beha, 24 Conn. 331 164 Blake v. Baldwin, 54 Conn. 5 286, note Blakeslee, Hatstat v., 41 Conn. 301 268 Blakesly, Seers v., 1 Root, 54 269 Blanchard. Borough of Norwalk v., 56 Conn. 461 15 TABLE OF CASES. 371 [eefbbbncbs are to pages.] Bogart, Tweedy v., 56 Conn. 419 293 Booth V. Booth, 7 Conn. 350 284, 309 Borough of Bridgeport v. Hubbell, 5 Conn. 237 71 Borough of Danbury, Monroe v., 24 Conn. 199 71 Borough of Norwalk v. Blanchard, 56 Conn. 461 15 Boseli V. Doran, 62 Conn. 311 310 Botsf ord. Beers v., 13 Conn. 146 362 Bowler v. Eldredge, 18 Conn. 1 283 Brackett v. Norton, 4 Conn. 517 215 Brady v. Barnes, 42 Conn. 512 25 Brainard v. Bushnell, 11 Conn. 16 311 V. Wllford, 2 Root, 130 269 Brainerd v. Arnold, 27 Conn. 616 18 Bramley, Hannon v., 65 Conn. 193 313 Bray v. English, 1 Conn. 498 5,253 Clark v., Kirby, 237 274 Brennan's Liquors, State v., 25 Conn. 278 285 Brewster, Pratt v., 52 Conn. 65 212 Bridgeport Sav. Bank v. Eldredge, 28 Conn. 555 282 Bristol V. Town of Branford, 42 Conn. 321 62, 63 Brooklyn Trust Co. v. Town of Hebron, 51 Conn. 22 267 Brown V. Butler, 71 Conn. 576 210 V. Green, 7 Conn. 536 257 V. Town of Preston, 38 Conn. 219 65, 66 Pinney v., 60 Conn. 164 248, note Punderson v., 1 Day, 93 297, 359 Brush, Smith v., 11 Conn. 359 22 Bryan v. Town of Branford, 50 Conn. 246 64, 66 Brzezinski, Woods v., 57 Conn. 471 281 Buckingham v. Osborne, 44 Conn. 133 296, 311 Averill v., 36 Conn. 359 260, note Buel V. Metcalf, Kirby, 40 326 Edmonds v., 23 Conn. 242 274 Bull, Bishop v., 1 Day, 141 278 Ripley v., 19 Conn. 53 212 Bunnell v. Read, 21 Conn. 586 297 Burbank, Allyn v., 9 Conn. 151 360 Burgess v. Tweedy, 16 Conn. 39 136 Burnham, Haussman v., 59 Conn. 117 281 Burton v. Pond, 5 Day, 160 367 Burrows v. Stoddard, 3 Conn. 160 329 372 TABLE OF CASES. [eEFEEENCES ABE TO PAGES.] Bushnell, Brainard v., 11 Conn. 16 311 Gates v., 9 Conn. 530 337, 338 Butler, Brown v., 71 Conn. 576 210 Button, Pendleton v., 3 Conn. 406 352, 353 Butts V. Francis, 4 Conn. 424 278, 283, 310 0. Cady V. Gay, 31 Conn. 395 294 Foot v., 1 Root, 173 124 Cahill, Norwich & W. R. Co. v., 18 Conn. 484 8 Callender v. Colegrove, 17 Conn. 1 23 Camp V. Bates, 13 Conn. 1 355, 368 Crane v., 12 Conn. 464 120 Mills v., 14 Conn. 219 290 Page v., Kirby, 7 159 Campbell, Shaler & Hall Quarry Co. v., 53 Conn. 327 8 Canfleld, Giddings v., 4 Conn. 482 349, 350 Card V. Foot, 57 Conn. 427 185 Carney v. Wilkinson, 67 Conn. 345 76 Carrington v. Holabird, 17 Conn. 530 201 Carroll, State v., 38 Conn. 449 285, 286 Case V. Humphrey, 6 Conn. 130 274 Catlin, Town of Harwinton v., 19 Conn. 520 70 Chalker v. Chalker, 1 Conn. 79 234 Champion, Spencer v., 13 Conn. 11 341 Chapman, Fitch v., 28 Conn. 257 318 Mather v., 6 Conn. 54 356 Cheesebrough, Williams v., 4 Conn. 356 311 Chesebro v. Babcock, 59 Conn. 213 168 Church V. Knox, 2 Conn. 514 314 McGuire v., 49 Conn. 248 281 Roberts v., 17 Conn. 142 338 City of Bridgeport v. Eisenman, 47 Conn. 34 257 Swan v., 70 Conn. 143 269 City of Meriden, Wilcox v., 57 Conn. 120 22 City of New London,Daniels v., 58 Corn. 156 219 City of Norwich, Hamlin v., 40 Conn. 13 258 City of Waterbury, French v., 72 Conn. 435 ~. 201 Clapp, Robinson v., 65 Conn. 365 93 TABLE OF CASES. 373 [bbfebbnces aee to pages.] Clark V. Bray, Kirby, 237 274 V. Gaylord, 24 Conn. 484 325 V. Town of Middlebury, 47 Conn. 331 48, 68 V. Town of Saybrook, 21 Conn. 313 69 Town of SoutWngton v., 13 Conn. 370 48, 246 Wales v., 43 Conn. 183 291 Clyma v. Kennedy, 64 Conn. 310 182, 184 Cockran v. Leister, 2 Root, 348 200 Coe V. Stow, 8 Conn. 536 367 Coffee, State v., 56 Conn. 399 194 Colby, Ashmead v., 26 Conn. 286 11, 13 Colegrove, Callender v., 17 Conn. 1 ■. 23 V. Rockwell, 24 Conn. 584 29 Collins, Tomlinson v., 20 Conn. 364. 272, 279, 296 Colt V. Eves, 12 Conn. 242 115 Connecticut Bank, Johnson v., 21 Conn. 148 297, 308 Connecticut River Brown Stone Quarry Co., Town of Cromwell v., 50 Conn. 470 . 470 Converse v. Hartley, 31 Conn. 372 28 Cooke V. Thresher, 51 Conn. 105 214 Cornish, Holcomb v., 8 Conn. 375 179 Couch, Gaylord v., 5 Day, 223 18 Stoddard v., 23 Conn. 238 280 Coughlin v. McElroy, 72 Conn. 444 346 Cowles, Anderson v., 72 Conn. 335 269 Crane v. Camp, 12 Conn. 464 120 Scott v., 1 Conn. 255 333,338 Crawford, Town of Union v., 19 Conn. 331 226, 228, note, 229 Crofut, Neth v., 30 Conn. 580 99, 383 Crone v. Daniels, 20 Conn. 332 8 Cross, State v., 72 Conn. 722 203 Cummins, Pond v., 50 Conn. 372 323 Cunningham v. Fair Haven & W. R. Co., 72 Conn. 244 202 Curtis, "Waterman v., 26 Conn. 241 363 Curtiss V. Beardsley, 15 Conn. 518 169 Ward v., 18 Conn. 290 281, note, 315 D. Dalliber, Grant v., 11 Conn. 233 270, 271, 350 Danforth, Backus v., 10 Conn. 297 314 374 TABLE OF CASES. [ebpbeences aek to pages.] Daniels v. City of New London, 58 Conn. 156 219 V. Wilcox, 2 Root, 346 282 Crone v., 20 Conn. 331 8 Darling v. Hubbell, 9 Conn. 350 178 Davenport v. Lacon, 17 Conn. 278 297, 363 Davidson v. Hannon, 67 Conn. 312 305 V. Murphy, 13 Conn. 213 126 Davis V. Salisbury, 1 Day, 278 183 Day V. Welles, 31 Conn. 344 200, 205 Spalding v., 37 Conn. 427 13 Dayton v. Merritt, 33 Conn. 184 323 Weed v., 40 Conn. 293 307 Dean, Goodwin v., BO Conn. 517 203 De Forest, Atwood v., 19 Conn. 512 302, 304 Denslow, Hayden v., 27 Conn. 335 89,91 Derwort v. Loomer, 21 Conn. 245 216 Dick, Sanford v., 17 Conn. 213 267 Dimon, Betts. v., 3 Conn. 107 114 Dodd V. Northrop, 37 Conn. 216 120 Dodge, Goodwin v., 14 Conn. 206 174 Doran, Boseli v., 62 Conn. 311 310 Doolan v. Wilson, 73 Conn. 446 329 Douglass V. Wickwire, 19 Conn. 489 102, 103 Draper v. Moriarty, 45 Conn. 476 278 Dunn's Appeal from Probate, 35 Conn. 82 21 Dunn, Bnscoe v., 44 Conn. 93 309, 325 Dutton V. Tracy, 4 Conn. 365 337 Dyer v. Smith, 12 Conn. 384 120 E. Edmonds v. Buel, 23 Conn. 242 274 Edwards, Bissell v., 5 Day, 94 344 Ranney v., 17 Conn. 309 256 Eisenman, City of Bridgeport v., 47 Conn. 34 257 Eldredge, Bowler v., 18 Conn. 1 283 Bridgeport Sav. Bank v., 28 Conn. 555 282 Ely v. Parsons, 55 Conn. 83 247 Embra v. Silllman, 1 Root, 128 270 English, Bray v., 1 Conn. 498 5, 253 Brwin v., 57 Conn. 562 219 TABLE OF CASES. 375 [beferences are to pages.] Enscoe v. Dunn, 44 Conn. 93 305,325 Erwin v. English, 57 Conn. 562 219 Evarts v. Killingworth Mfg. Co., 20 Conn. 448 277 Eves, Colt v., 12 Conn. 242 115 F. Fairfield County Bar v. Taylor, 60 Conn. 11 1S8, 222 Fair Haven & W. R. Co., Cunningham v., 72 Conn. 244 202 Farmers' & Citizens' Bank, Payne v., 29 Conn. 415 357 Farmers' & Mechanics' Bank, Grosvenor v., 13 Conn. 104 293 Parrel v. Town of Derby, 58 Conn. 234 230 Passett, State v., 16 Conn. 457 189,194 Faxon, Marion v., 20 Conn. 486 329 Fellowes, Woodruff v., 35 Conn. 105 219 Field, Inhabitants of Windsor v., 1 Conn. 279 45, 70 Fielding v. Jones, 38 Conn. 191 236, note Filley V. Phelps, 18 Conn. 294 342 Fillmore, Staples v., 43 Conn. 510 328 Finch, Ives v., 22 Conn. 101 162 Fish V. Sawyer, 11 Conn. 545 365 Fisher v. Towner, 14 Conn. 26 251, 252, 257 Fitch V. Chapman, 28 Conn. 257 318 Bacon v., Kirby, 373 270, 282 Fletcher, Winslow v., 53 Conn. 390 293 Flynn v. Morgan, 55 Conn. 130 351 Foot V. Cady, 1 Root, 173 124 Card v., 57 Conn. 427 185 Ford V. Kirk, 41 Conn. 9 91 Fowler v. Bishop, 31 Conn. 560 315, 325 V. Fowler, 50 Conn. 256 93 State v., 66 Conn. 294 225,226 Fox V. Hoyt, 12 Conn. 491 130, 131, 141 White v., 29 Conn. 570 260 Francis, Butts v., 4 Conn. 424 278, 283, 310 French v. City of Waterbury, 72 Conn. 435 201 Quinebaug, Bank v., 17 Conn. 129 367 Smith v., 46 Conn. 239 135 Frink v. Scovel, 2 Day, 480 268 Frisbie, Hobart v., 5 Conn. 592 359 376 TABLE OP CASES. [BEFEEENOES ABE TO PAGES.] G. Gaffy V. Hartford Bridge Co., 42 Conn. 143 253, 258 Gager v. Watson, 11 Conn. 168 212 Gallup V. Tracy, 25 Conn. 10 8, 74, 94 Gardner, Goddard v., .28 Conn. 172 208 Gates V. Bushnell, 9 Conn. 530 337, 338 V. Treat, 25 Conn. 71 259, note Yudkin v., 60 Conn. 426, 18;J Gay, Cady v., 31 Conn. 395 294 Gaylord, Clark v., 24 Conn. 484 325 V. Couch, 5 Day, 223 18 V. Payne, 3 Conn. 258 271 Giddlngs v. Canfleld, 4 Conn. 482 349, 350 Gifford V. Town of Norwich, 30 Conn. 35 44, 246 Gilbert v. Rider, Kirby, 180 333 Harrison v., 71 Conn. 724 237 Jones v., 13 Conn. 507 310, 316, 318 Smith v., 71 Conn. 149 298 Gillett V. Johnson, 30 Conn. 392 274 Gillet, Metcalf v., 5 Conn. 400 356 Gladwin v. Lewis, 6 Conn. 49 282 Gleason, Allen v., 4 Day, 376 333 Goddard v. Gardner, 28 Conn. 172 208 V. State, 12 Conn. 448 175 Goodale, Hollister v., 8 Conn. 332 288 Goodman v. Jones, 26 Conn. 264 IS' Goodwin v. Dean, 50 Conn. 517 203 V. Dodge, 14 Conn. 206 174 V. Town of Wethersfleld, 43 Conn. 437 12, 13, 58, 68 Gorham, Wheeler v., 2 Root, 328 364 Grant v. Dalliber, 11 Conn. 233 270, 271, 350 Graves v. Lockwood, 30 Conn. 276 17 Greathead's Appeal from Probate, 42 Conn. 374 364 Green, Brown v., 7 Conn. 536 257 Greene v. Town of Bast Haddam, 51 Conn. 547 55, 61, 68, 69, 71 Gregory v. Seamons, 1 Root, 367 260 V. Sherman, 44 Conn. 466 134 Lockwood v., 4 Day, 407 45 Grelle v. Pinney, 62 Conn. 478 224 Gridley, Nettleton v., 21 Conn. 531 25S TABLE OF CASES. 377 [eefeeenoes aee to pages.] Grosvenor v. Farmers' & Mechanics' Bank, 13 Conn. 104 293 Guarnieri, Hoyt v., 67 Conn. 590 116 Gwlllim, Seeley v., 40 Conn. 106 304 H. Hall V, Hall, 1 Root, 124 332 V. Merriman, 1 Root, 197 258 V. Norwalk Fire Ins. Co., 57 Conn. 105 254, and note Watson v., 46 Conn. 204 99,101 Wilkie v., 15 Conn. 32 311, 313 Halsey v. Huse, 46 Conn. 389 284 Hartshorn v., 1 Root, 92 316 Hamlin v. City of Norwich, 40 Conn. 13 258 State v., 47 Conn. 95 191, 193, 194 Hammond, Vail v., 60 Conn. 374 92 Hannon v. Bramley, 65 Conn. 193 313 Davidson v., 67 Conn. 312 305 Harris v. Town of Woodstock, 27 Conn. 567 60 Welles v., 31 Conn. 365 13 Harrison v. Gilbert, 71 Conn. 724 237 Hartford Bridge Co., Gaffy v., 42 Conn. 143 253, 258 Hartford, P. & F. R. Co., Windham Cotton Mfg. Co. v., 23 Conn. 373 8, 9 Hartley, Converse v., 31 Conn. 372 28 Hartshorn v. Halsey, 1 Root, 92 316 Hathaway, Benjamin v., 3 Conn. 528 313 Town of Suffield v., 44 Conn. 521 249, note Hatstat v. Blakeslee, 41 Conn. 301 268 Haussman v. Burnham, 59 Conn. 117 281 Havens v. Town of Wethersfield, 67 Conn. 533 247 Hawley v. Middlebrook, 28 Conn. 527 134 Monson v., 30 Conn. 51 217 Hayden v. Denslow, 27 Conn. 335 89, 91 Hayes, West v., 51 Conn. 533 128 Heacock, Nichols v., 1 Root, 286 124 Thatcher v., 1 Root, 284 274 Heath v. Bates, 49 Conn. 342 207, 283 Hellman, State v., 56 Conn. 190 231 Hicock, Preston v., 9 Conn. 522 292 Higgins V. Russo, 72 Conn. 238 207 378 TABLE OF CASES. [eEFEBENCES ABE TO PAGES.] Hine v. Stephens, 33 Conn. 497 229 Hinman v. Leavenworth, 2 Conn. 244 (note) 349 Lee v., 6 Conn. 165 363 Hinsdale, Town of Winchester v., ]2 Conn. 85 72 Hitchcocli V. Holmes. 43 Conn. 528 308 V. Hotchkiss, 1 Conn. 470 358 Hoadley v. Town of Waterbury, 34 Conn. 38 62 Hobart v. Frisbie, 5 Conn. 592 S-i;* Holabird, Carrington v., 17 Conn. 530 201 Holcomb V. Cornish. 8 Conn. 375 .' 179 V. Tiffany, 38 Conn. 271 260 Hollister v. Goodale, 8 Conn. 332 288 Town of Rocky Hill v., 59 Conn. 434 232 Holmes, Hitchcock v., 43 Conn. 528 308 Hopkins v. Town of Plainfield, 7 Conn. 286 181 Horton v. Town of Norwalk, 45 Conn. 237 64 Hotchkiss, Hitchcock v., 1 Conn. 470 3oS O'Connell v., 44 Conn. 51 126 Howard, Bennett v., 2 Day, 416 270 West v., 20 Conn. 581 i6 Howe V. Town of Ridgefield, 50 Conn. 592 65 Reynolds v., 51 Conn. 472 101 Hoyle V. Town of Putnam, 46 Conn. 56 249 Hoyt V. Guarineri, 67 Conn. 590 116 Fox v., 12 Conn. 491 130, 131, 141 Morey v., 62 Conn. 542 314 Olmsted v., 4 Day, 436 272 Hubbard, Babcock v., 56 Conn. 284 221 Hubbell V. Kingman, 52 Conn. 19 295 Borough of Bridgeport v., 5 Conn. 237 71 Darling v., 9 Conn. 350 178 Huebler v. Smith, 62 Conn. 186 340 Hull V. Bartlett, 49 Conn. 64 272,299 Humphreville v. Perkins, 5 Day, 117 114 Humphrey, Case v., 6 Conn. 130 274 Town of Wethersfield v., 20 Conn. 218 14, 63 Huntington v. Rumnill, 3 Day, 390 207 V. Winchell, 8 Conn. 45 366 Johnson v., 13 Conn. 47 352 Rumrill v., 5 Day, 163 212 Hurlburt, Town of Groton v., 22 Conn. 179 50, 63 TABLE OF CASES. 379 [beferences abb to pages.] Huse, Halsey v., 46 Conn. 389 284 Husted V. Town of Greenwich, 11 Conn. 383 4 I. Inhabitants of Chaplin, Kent v., 6 Conn. 72 237, note Inhabitants of Danbury, Inhabitants of Newtown v., 3 Conn. 553 240 Inhabitants of Darien, Waterbury v., 9 Conn. 251 19, 4,6, 246 Inhabitants of Fairfield, Inhabitants of Stratford v., 3 Conn. 588 233, 240 ■ Inhabitants of Middletown, Treat v., S Conn. 243 46, 245 Inhabitants of Newtown v. Inhabitants of Danbury, 3 Conn. 553 240 Inhabitants of Windsor v. Field, 1 Conn. 279 45, 70 In re Clark's Appeal from Commissioners, 65 Conn. 17 103, 104 In re Bion, 59 Conn. 372 177, 181 In re Curtis-Castle Arbitration, 64 Conn. 501 256, and note In re Hall, 50 Conn. 131 200 In re Premier Cycle Mfg. Co., 70 Conn. 473 20a In re Westcott, 66 Conn. 585 222 Ireland, Town of Norwalk v., 68 Conn. 1 265 Ives V. Finch, 22 Conn. 101 162 V. Town of East Haven, 48 Conn. 272 19, 20, 71 Williams v., 25 Conn. 568 269, 299 J. Jarvis, Middletown Sav. Bank v., 33 Conn. 372 297 Jessup v. Batterson, 5 Day, 368 349, 363 Johnson v. Connecticut Bank, 21 Conn. 148 297, 308 v. Huntington, 13 Conn. 47 352 V. Olmsted, 49 Conn. 509 90 V. Sanford, 13 Conn. 461 16 V. Stanley, 1 Root, 245 234 Gillett v., 30 Conn. 392 274 Perry v., 37 Conn. 32 179, 181 Scripture v., 3 Conn. 211 359 Jones V. Gilbert, 13 Conn. 507 310, 316, 318 Fielding v., 38 Conn. 191 236, note Goodman v., 26 Conn. 264 18 Judd, Lynde v., 3 Day, 499 208 Taylor v., 41 Conn. 483 272, note 380 TABLE OP CASES. [befeeences are to pages.] K. Keeler v. Stead, 56 Conn. 501 122 Kelley v. Madden, 40 Conn. 274 85 Kellogg V. Wadhams, 9 Conn. 201 273, 274 Stebbins v., 5 Conn. 265a 19 Kendall v. New England Carpet Co., 13 Conn. 383 24 Kennedy, Clyma v., 64 Conn. 310 182, 184 Scovil v., 14 Conn. 349 83 Kent V. Inhabitants of Chaplin, 6 Conn. 72 237, note Kibbe, Sheldon v., 3 Conn. 214 334 Kilbourn v. State, 9 Conn. 560 172 Kllllngworth Mfg. Co., Evarts v., 20 Conn. 448 277 Kingman, Hubbell v., 52 Conn. 19 295 Kingsbury v. Phips, 2 Root, 358 172 Potter v., 4 Day, 98 174 Kinney, Marcy v., 9 Conn. 393 356 Kirk, Ford v., 41 Conn. 9 91 Kirkland, Mitchell v., 7 Conn. 229 351 Kloppenberg, Norwich Printing Co. v., 50 Conn. 295 212 Knapp V. Lockwood, 3 Day, 131 233 V. White, 23 Conn. 529 27 Knox, Church v., 2 Conn. 514 341 L. Lacon, Davenport v., 17 Conn. 278 297, 363 Ladd V. Town of Franklin, 37 Conn. 83 230 Lampson, Miller v., 66 Conn. 432 146, 282 Landon, Phelps v., 2 Day, 370 329 ■Lathrop, Thames Mfg. Co. v., 7 Conn. 550 231 Lavette v. Sage, 29 Conn. 577 30 Lawrence, Stoyel v., 3 Day, 1 333 Leavenworth v. Baldwin, 2 Day, 317 365 Hlnman v., 2 Conn. 244 (note) 349 Leavitt, Patterson v., 4 Conn. 50 258 Starr v., 2 Conn. 24 349, 365 Lee V. Hinman, 6 Conn. 165 363 Leister, Cockran v., 2 Root, 348 200 Lemon, Martin v., 26 Conn. 192 8, 72 Lewis V. Wildman, 1 Day, 153 257 Gladwin v., 6 Conn. 49 282 TABLE OF CASES. 381 [bbfeeenoes aee to pages.] Litchfield, Town of Windham v., 22 Conn. 226 44 Lockwood V. Gregory, 4 Day, 407 45 Graves v., 30 Conn. 276 17 Knapp v., 3 Day, 131 233 Loomer, Dewort v., 21 Conn. 245 216 Loomis V. Storrs, 4 Conn. 440 334 Lord V. Sill, 23 Conn. 319 368 V. Strong, 1 Root, 475 272 Lbwndes v. Wicks, 69 Conn. 15 147 Luno's Case, 1 Conn. 428 188,191 Lyman, Bentley v., 21 Conn. 81 172, 174 Lynde v. Judd, 3 Day, 499 208 Lyon, Sumner v., 7 Conn. 281 360 M. McArthur v. Morgan, 49 Conn. 347 27 McElroy, Coughlin v., 72 Conn. 444 346 McGuire v. Church, 49 Conn. 248 281 Madden, Kelly v., 40 Conn. 274 85 Magie v. Stoddard, 25 Conn. 565. 148, 266 Mallett V. Plumb, 60 Conn. 352 224, note Mallory v. Town of Huntington, 64 Conn. 88 228, 229, note, 243, and note Maples V. Avery, 6 Conn. 20 19 V. Park, 17 Conn. 333 310 Marcy v. Kinney, 9 Conn. 393 356 Marion v. Faxon, 20 Conn. 486 329 Martin v. Lemon, 26 Conn. 192 8,72 Mather v. Chapman, 6 Conn. 57 356 Mead v. New York, H. & N. R. Co., 45 Conn. 199 368 Merriman, Hall v., 1 Root, 197 258 Merritt, Dayton v., 33 Conn. 184 323 Merwin v. Richardson, 52 Conn. 223 234 Metcalf V. Gillet, 5 Conn. 400 356 Buel V.-, Kirby, 40 326 Middlebrook, Hawley v., 28 Conn. 527 134 Middletown Ferry Co. v. Town of Middletown, 40 Conn. 65. .275, note Middletown Sav. Bank v. Jarvis, 33 Conn. 372 297 Miller v. Lampson, 66 Conn. 432 146, 282 Williams v., 16 Conn. 143 309, 343 382 TABLE OF CASES. [befbrencbs akb to pages.] Mills V. Camp, 14 Conn. 219 290 V. Mills, 26 Conn. 213 212 Mitchell V. Kirkland, 7 Conn. 229 351 Monroe v. Borough of Danbury, 24 Conn. 199 71 Monson v. Hawley, 30 Conn. 51 217 Richardson v., 23 Conn. 94 92 Montague v. Richardson, 24 Conn. 337 30S Moore, Smith v., 38 Conn. 105 131 Morey v. Hoyt, 62 Conn. 542 314 Morgan v. Thames Bank, 14 Conn. 99 314 Plynn v., 55 Conn. 130 351 McArthur v., 49 Conn. 347 27 Moriarty, Draper v., 45 Conn. 476 278 Morse, Andrews v., 12 Conn. 444 212 Moss, Trumbull v., 28 Conn. 253 239 Munson, Ailing v., 2 Conn. 691 260 Potter v., 40 Conn. 473 93 Todd v., 53 Conn. 579 210 Murphy, Davidson v., 13 Conn. 213 126 Nash, Town of Torrington v., 17 Conn. 197 47, 245 Neth V. Crofut, 30 Conn. 580 99, 383 Nettleton v. Gridley, 21 Conn. 531 258 New England Carpet Co., Kendall v., 13 Conn. 383 24 New Hartford, Betts v., 25 Conn. 180 50, 71 New Haven & Northampton Co., Town of Burlington v., 26 Conn. 51 230, 232 New York, H. & N. R. Co., Mead v., 45 Conn. 199 368 Nichols V. Heacock, 1 Root, 286 124 Niles, Town of Chatham v., 36 Conn. 403 233 Nooney, Bissell v., 33 Conn. 411 350, 351 Northrop, Dodd v., 37 Conn. 216 120 Norton v. Petrie, 59 Conn. 200 166 Brackett v., 4 Conn. 517 215 Norwalk Fire Ins. Co., Hall v., 57 Conn. 105 254, and note Norwich Printing Co. v. Kloppenberg, 50 Conn. 295 212 Norwich & W. R. Co. v. Cahill, 18 Conn. 484 8 Story v., 24 Conn. 94 18 Nugent V. Wrinn, 44 Conn. 273 139 TABLE OF CASES. 383 [BEFEBENCES ABE TO PAGES.] o. O'Connell v. Hotchkiss, 44 Conn. 51 126 Olmsted v. Hoyt, 4 Day, 436 272 Johnson v., 49 Conn. 509 90 Osborne, Buckingham v., 44 Conn. 133 296, 311 P. Packer, Town of Plainfleld v., 11 Conn. 576 48, 245, 246, note Page V. Camp, Kirby, 7 159 Painter, Town of Plymouth v., 17 Conn. 585 102, 285 Palmer v. Palmer, 1 Root, 202 113 V. Thayer, 28 Conn. 237 310, 311 Park, Maples v., 17 Conn. 333 310 Parker v. Avery, Kirby, 353 29, 257, 258 Parks V. Sheldon, 36 Conn. 466 . .'. 321 Parmalee v. Town of Bethlehem, 57 Conn. 270 157, 158 Parmelee v. Allen, 32 Conn. 115 261 Parsons v. Phillips, 1 Root, 481 326 Ely v., 55 Conn. 83 247 Patten v. Smith, 4 Conn. 450 301, 302 Patterson v. Leavitt, 4 Conn. 50 258 Payne v. Farmers' & Citizens' Bank, 29 Conn. 415 357 Gaylord v., 3 Conn. 258 271 Peck, Webster v., 31 Conn. 495 342, 343 Wilson v., 39 Conn. 54 93 Peckham v. Town of Lebanon, 39 Conn. 231 67, 68 Pendleton v. Button, 3 Conn. 416 352, 353 Perkins v. Perkins, 7 Conn. 558 283, 310 V. Town of Andover, 31 Conn. 601 62 V. Town of Colebrook, 68 Conn. 113 78, 80, 247 Humphreyille v., 5 Day, 117 114 Perry v. Johnson, 37 Conn. 32 179, 181 Petrie, Norton v., 59 Conn. 200 166 Phelps V. Hunt, 40 Conn. 97 221 V. Landon, 2 Day. 370 329 Filley v., 18 Conn. 294 342 Phillips, Parsons v., 1 Root, 481 326 Phips, Kingsbury v., 2 Root, 358 172 Picket, Tweedy v., 1 Day, 109 351 384 TABLE OP CASES. [eefeeences aeb to pages.] Pierce v. Town of Southbury, 29 Conn. 490 71 Pinney v. Brown, 60 Conn. 164 248, note Grelle v., 62 Conn. 478 224 Place, Beers v., 36 Conn. 578 344 Plumb, Mallett v., 60 Conn. 352 224, note Pond V. Cummins, 50 Conn. 372 , 323 V. Skldmore, 40 Conn. 213 290 V. Town of Mllford, 35 Conn. 32 50, 59, 60 ■ Burton v., 5 Day, 160. 367 Jrratt v., 45 Conn. 386 344 Sanford v., 37 Conn. 588 291, 343 Town of Wolcott v., 19 Conn. 597 4S Porter v. Seeley, 13 Conn. 564 366 Potter V. Kingsbury, 4 Day, 98 174 V. Munson, 40 Conn. 473 93 V. Sanborn, 49 Conn. 452 136 Pratt V. Brewster, 52 Conn. 65 212 V. Fond, 45 Conn. 386 : 344 Bill v., 5 Conn. 123 353 Sweeney v., 70 Conn. 274 213 Preston v. Hlcock, 9 Conn. 522 zyi' Price V. Society for Savings, 64 Conn. 362 3U8 Pulford's Appeal from Commissioners, 48 Conn. 247 209 Punderson v. Brown, 1 Day, 93 297, 3&9 Purnell, Ahern v., 62 Conn. 21 313 Q. Quinebaug Bank v. French, 17 Conn. 129 367 K. Ranney v. Edwards, 17 Conn. 309 256 Allen v., 1 Conn. 569 257 Read, Bunnell v., 21 Conn. 586 297 Reed v. Tousley, 1 Root, 381 318 Toby v., 9 Conn. 216 344 Reynolds v. Howe, 51 Conn. 472 101 V. Reynolds, 15 Conn. 83 78 Richardson v. Monson, 23 Conn. 94 92 Merwin v., 52 Conn. 223 204 Montague v., 24 Conn. 337 306 TABLE OF CASES. 385 [bepeeences aee to pages.] Rider, Gilbert v., Kirby, 180 333 Ripley v. Bull, 19 Conn. 53 212, 213 Roberts v. Church, 17 Conn. 142 338 Robinson v. Clapp, 65 Conn. 365 93 Rockwell, Colgrove v., 24 Conn. 584 29 Rogers, Town of New Haven v., 32 Conn. 221 150 Rowe y. Smith, 51 Conn. 266 133 Rumnill, Huntington v., 3 Day, 390 207 Rumrill v. Huntington, 5 Day, 163 212, 213 Russo, Higgins v., 72 Conn. 238 207 S. Sage, Lavette v., 29 Conn. 577 30 Salisbury, Davis v., 1 Day, 278 183 Sanborn, Potter v., 49 Conn. 452 13ft Sanford v. Dick, 17 Conn. 213 267 V. Pond, 37 Conn. 588 291, 34a Johnson v., 13 Conn. 461 16 Saugatuck Bridge Co. v. Town of Westport, 39 Conn. 337 66 Sawyer, Fish v., 11 Conn. 545 365 Seamons, Gregory v., 1 Root, 367 260 Scripture v. Johnson, 3 Conn. 211; 359 Schroeder v. Tomlinson, 70 Conn. 348 367 Scott V. Crane, 1 Conn. 255 333, 338 V. Spiegel, 67 Conn. 349 184 Scovel V. Smith, 1 Root, 300 113 Frink v., 2 Day, 480 268 Scovil V. Kennedy, 14 Conn. 349 83 Scutt V. Town of Southbury, 55 Conn. 405 70 Seers v. Blakesly, 1 Root, 54 269 Seeley v. Gwillims, 40 Conn. 106 304 Porter v., 13 Conn. 564 366 Shaler & Hall Quarry Co. v. Campbell, 53 Conn. 327 8 Sheldon v. Kibbe, 3 Conn. 214 334 Parks v., 36 Conn. 466 321 Shelton v. Town of Derby, 27 Conn. 414 49' Sheppard v. Atwater Mfg. Co., 43 Conn. 448 20 Sherman, Gregory v., 44 Conn. 466 134 Town of New Milford v., 21 Conn. 101 239, 240, note Sherwood, Sturges v., 15 Conn. 149 177 Adm. Off. — 25. 386 TABLE OF CASES. [EEFEBENCES ABE TO PAGES.] Sill V. Bank of United States, 5 Conn. 102 271 Lord v., 23 Conn. 319 3B8 Silliman, Bmbra v., 1 Root, 128 270 Sisson V. Town of Stonington, 73 Conn. 348 244 Skidmore, Pond v., 40 Conn. 213 290 Smith's Appeal from County Commissioners, 65 Conn. 135 186 Smith V. Brush, 11 Conn. 358 22 V. French, 46 Conn. 239 135 V. Gilbert, 71 Conn. 149 298 V. Moore, 38 Conn. 105 131 V. Starkweather, 5 Day, 207 366, 367 V. State, 19 Conn. 493 103 V. Town of New Haven, 59 Conn. 203 52 Dyer v., 12 Conn. 384 120 Huebler v., 62 Conn. 186 340 Patten v., 4 Conn. 450 301, 302 Rowe v., 51 Conn. 266 133 Scovel v., 1 Root, 300 113 Terrell v., 8 Conn. 426 335 Town of Naugatuck v., 53 Conn. 523 151 Wales v., 13 Conn. 216 (note) 127 Society for Savings, Price v., 64 Conn. 362 308 Soudant v. Wadhams, 46 Conn. 218 285 Southmayd v. Backus, 3 Conn. 474 271 Spalding v. Day, 37 Conn. 427 13 Spencer v. Cfiampion, 13 Conn. 11 341 V. Waterman, 36 Conn. 342 92 Waldo v., 4 Conn. 71 175, 178 Sperry, Stannard v., 56 Conn. 541 86 Spiegel, Scott v., 67 Conn. 349 184 Whitten v., 67 Conn. 551 197 Sprague v. Taylor, 58 Conn. 542 205 Stanley, Johnson v., 1 Root, 245 234 Stannard v. Sperry, 56 Conn. 541 86 Staples V. Fillmore, 43 Conn. 510 328 Starkweather, Smith v., 5 Day, 207 366, 367 Starr v. Leavitt, 2 Conn. 243 349, 365 Whittlesey v., 8 Conn. 134 284, 309 State V. Barrows, 52 Conn. 323 210 v. Brennan's Liquors, 25 Conn. 278 285 V. Carroll, 38 Conn. 449 285, 286 TABLE OF CASES. 387 [bbfebences aee to pages.] state V. Coffee, 56 Conn. 399 194 V. Cross, 72 Conn. 722 203 V. Fassett, 16 Conn. 457 189, 194 V. Fowler, 66 Conn. 294 225, 276 V. Hamlin, 47 Conn. 195 191, 193, 194 V. Hellman, 56 Conn. 190 231 V. Towers, 71 Conn. 657 283 V. Town of New London, 22 Conn. 163 232 V. Tuller, 34 Conn. 280 219 V. Turner, 6.0 Conn. 222 102 V. Watson, 56 Conn. 188 179 V. Wolcott, 21 Conn. 272 191 Barnes v., 19 Conn. 397 171 Goddard v., 12 Conn. 448 175 Kilbourn v., 9 Conn. 560 172 Smith v., 19 Conn. 493 103 Stead, Keeler v., 56 Conn. 501 122 Stebbins v. Kellogg, 5 Conn. 265a 19 Stephens, Hine v., 3 Conn. 497 229 Stevens v. Stevens, 39 Conn. 474 326 Stoddard, Burrows v., 3 Conn. 160 329 V. Couch, 23 Conn. 238 280 Magie v., 25 Conn. 565 148, 266 Storrs, Loomis v., 4 Conn. 440 334 Story V. Norwich & W. R. Co., 24 Conn. 94 18 Stow, Coe v., 8 Conn. 536 367 Stoyel V. Lawrence, 3 Day, 1 333 Strong V. Burchard, 5 Conn. 357 233, 352 Lord v., 1 Root, 475 272 Sturges V. Sherwood, 15 Conn. 149 177 Sumner v. Lyon, 7 Conn. 281 360 Swan V. City of Bridgeport, 70 Conn. 143 269 Sweeney v. Pratt, 70 Conn. 274 203 T. Taintor v. Williams, 7 Conn. 271 290 Taylor v. Judd, 41 Conn. 483 272, note Fairfield County Bar v., 60 Conn. 11 198, 222 Sprague v., 58 Conn. 542 205 Terrell v. Smith, 8 Conn. 426 335 388 TABLE OF CASES. [beperences akb to pages.] Terry v. Town of Waterbury, 35 Conn. 526 48 Thames Mfg. Co. v. Lathrop, 7 Conn. 550 231 Thames Bank, Morgan v., 14 Conn. 99 314 Thatcher v. Heacock, 1 Root, 284 274 Thayer, Perkins v., 28 Conn. 237 310, 311 Thorp, Bacon v., 27 Conn. 251 316 Thresher, Cooke v., 51 Conn. 105 214 Tiffany, Holcomb v., 38 Conn. 271 260 Toby V. Reed, 9 Conn. 216 344 Todd V. Munson, 53 Conn. 579 210 Tolland, West v., 25 Conn. 133 62 Tomlinson v. Collins, 20 Conn. 364 272, 279, 296 Schroeder v., 70 Conn. 348 367 Tousley, Reed v., 1 Root, 381 318 Towers, State v., 71 Conn. 657 283 Town of Andover, Perkins v., 31 Conn. 601 B^ Town of Beacon Palls v. Town of Seymour, 44 Conn. 210, 46 Conn. 281 240 Town of Berlin, Town of Middletown v., 18 Conn. 189 240 Town of Bethany, Town of Hamden v., 43 Conn. 212 , . 2*0 Town of Bethlehem v. Town of Watertown, 51 Conn. 490 240 Parmalee v., 57 Conn. 270 157, 158 Town of Burlington v. New Haven & Northampton Co., 26 Conn. 51 230, 232 Town of Branford, Bristol v., 42 Conn. 321 62, 63 Bryan v., 50 Conn. 246 64, 66 Town of Canaan, Town of New Hartford v., 52 Conn. 158 121 Town of Chatham v. Niles, 36 Conn. 403 233 Town of Colebrook, Perkins v., 68 Conn. 113 78, 80, 247 Town of Cromwell v. Connecticut River Brown Stone Quarry Co., 50 Conn. 470 244 Town of Darien, Waterbury v., 8 Conn. 162 46, 245, and note Town of Derby, Farrel v., 58 Conn. 234 230 Shelton v., 27 Conn. 414 49 Town of East Haddam, Greene v., 51 Conn. 547 55, 61, 68, 69, 71 Town of Lyme v., 14 Conn. 394 113, 114 Town of East Haven, Ives v., 48 Conn. 272 19, 20, 71 Town of East Lyme, Town of Haddam v., 54 Conn. 34 229, 230 Town of Franklin, Ladd v., 37 Conn. 53 230 Town of Greenwich, Husted v., 11 Conn. 383 4 Town of Groton v. Hurlburt, 22 Conn. 179 50, 63 TABLE OP CASES. 389 [EBFEBENCES ABE TO PAGES.] Town of Haddam v. Town of Bast Lyme, 54 Conn. 34 229, 230 Town of Hamden v. Town of Bethany, 43 Conn. 212 240 Town of Harwinton v. Catlin, 19 Conn. 520 70 Town of Hebron, Brooklyn Trust Co. v., 51 Conn. 22 267 Town of Huntington v. Birch, 12 Conn. 142 49, 53 Mallory v., 64 Conn. 88 228, 229, note, 243, and note Town of Kent, Town of Washington v., 38 Conn. 249 238, 240 Town of Lebanon, Peckham v., 39 Conn. 231 67, 68 Town of Lyme v. Town of East Haddam, 14 Conn. 394 113, 114 Town of Middletown v. Town of Berlin, 18 Conn. 189 240 Middletown Ferry Co. v., 40 Conn. 65 275, note Town of Middlebury, Clark v., 47 Conn. 331 48, 68, 69 Town of Milford, Pond v., 35 Conn. 32 50, 59, 60 Town of Montville, Town of Salem v., 33 Conn. 141 240 Town of Naugatuck v. Smith, 53 Conn. 523 151 Town of New Hartford v. Town of Canaan, 52 Conn. 158 121 Town of New Haven v. Rogers, 32 Conn. 221 150 Smith v., 59 Conn. 203 52 Town of New London, State v., 22 Conn. 163 232 Town of New Milford v. Town of Sherman, 21 Conn. 101 239, 240, note Town of Newington, Wetherell v., 54 Conn. 67 248 Town of Norwalk, ^orton v., 45 Conn. 237 64 V. Ireland, 68 Conn. 1 265 Town of Norwich, Gifford v., 30 Conn. 35 44, 246 Town of Plainfield v. Packer, 11 Conn. 576 48, 245, 246, note Hopkins v., 7 Conn. 286 181 Town of Plymouth v. Painter, 17 Conn. 585 102, 285 Town of Portland, Waldo v., 33 Conn. 363 8 Town of Preston, Brown v., 38 Conn. 219 65, 66 Town of Putnam, Hoyle v., 46 Conn. 56 249 Town of Ridgefield, Howe v., 50 Conn. 592 65 Town of Rocky Hill v. Hollister, 59 Conn. 434 232 Webb v., 21 Conn. 468 48 Town of Salem v. Town of Montville, 33 Conn. 141 240 Town of Salisbury, Town of Sharon v., 29 Conn. 113 228, 234 Town of Saybrook, Clark v., 21 Conn. 313 69 Town of Seymour, Town of Beacon Falls v., 44 Conn. 210, 46 Conn. 281 240 Town of Sharon v. Town of Salisbury, 29 Conn. 113 228. 234 390 TABLE OF CASES. [references ABE TO PAGES.] Town of Southbury, Pierce v., 29 Conn. 490 71 Scutt v., 55 Conn. 405 70 Wile v., 43 Conn. 53 238 Town of Southington v. Clark, 13 Conn. 370 48, 246 Town of Stonington, Sisson v., 73 Conn. 348 244 Williams v.. 49 Conn. 29 56-58 Town of Suffleld v. Hathaway, 44 Conn. 521 249, note Town of Thomaston, Welton v., 61 Conn. 397 244 Town of Tolland v. Town of Willington, 26 Conn. 579 234 Town of Torrington v. Nash, 17 Conn. 197 47, 245 Town of Union v. Crawford, 19 Conn. 331 226, 228, note, 229 Town of Washington v. Town of Kent, 38 Conn. 249 238, 240 Beardsley v., 39 Conn. 265 54 Town of Waterbury, Hoadley v., 34 Conn. 38 62 Terry v., 35 Conn. 526 '. ' 48 Town of Watertown v., 1 Root, 212 257 Town of Watertown v. Town of Waterbury, 1 Root, 212 257 Town of Bethlehem v., 51 Conn. 490 240 Town of Weston, Town of Wilton v., 48 Conn. 325 227 Town of Westport, Saugatuck Bridge Co. v., 39 Conn. 337 66 Town of Wethersfleld v. Humphrey, 20 Conn. 218 14, 63 Goodwin v., 43 Conn. 437 12, 13, 58, 68 Havens v., 67 Conn. 533 247 Town of Willington, Town of Tolland v., 26 Conn. 579 234 Town of Wilton v. Town of Weston, 48 Conn. 325 227 Town of Winchester v. Hinsdale, 12 Conn. 85 72 Town of Windham v. Litchfield, 22 Conn. 226 44 Town of Wolcott v. Pond, 19 Conn. 597 48 Welton v., 45 Conn. 329 239, note Town of Woodstock, Harris v., 27 Conn. 567 60 Towner, Fisher v., 14 Conn. 26 251, 252, 257 Tracy v. Williams, 4 Conn. 107 178 Button v., 4 Conn. 365 337 Gallup v., 25 Conn. 10 8, 74, 94 Treat v. Inhabitants of Middletown, 8 Conn. 243 46, 245 Gates v., 25 Conn. 71 .' 259, note Trubee v. Trubee, 41 Conn. 36 14 Trumbull v. Moss, 28 Conn. 253 239 Turner, State v., 60 Conn. 222 102 Tuller, State v., 34 Conn. 280 219 Tweedy v. Bogart, 56 Conn. 419 293 TABLE OF CASES. 39 1 [references are to pages.] Tweedy v. Picket, 1 Day, 109 351 Burgess v., 16 Conn. 39 136 Tyler v. Tyler, 2 Root, 519 273, note V. Vail V. Hammond, 60 Conn. 374 92 Vining, Allen v., 1 Root, 313 113 Vose, Bishop v., 27 Conn. 1 272, and note, 278 w. Wadhams, Kellogg v., 9 Conn. 201 273, 274 Soudant v., 46 Conn. 218 285 Waldo V. Spencer, 4 Conn. 71 175, 178 V. Town of Portland, 33 Conn. 363 8 Wales V. Clark, 43 Conn. 183 291 V. Smith, 13 Conn. 216, note 127 Ward V. Curtiss, 18 Conn. 290 281, note, 315 Warner, Bartholomew v., 32 Conn. 98 338, 340 Bishop v., 19 Conn. 460 292 Washburn v. Belknap, 3 Conn. 502 185 Waterman v. Curtis, 26 Conn. 241 363 Spencer v., 36 Conn. 342 92 Waterbury v. Inhabitants of Darien, 9 Conn. 251 19, 46, 246 V. Town of Darien, 8 Conn. 162 46, 245, and note Watson V. Hall, 46 Conn. 204 99,101 V. Watson, 9 Conn. 141 283, 310 Gager v., 11 Conn. 168 212 State v., 56 Conn. 188 179 Webb V. Town of Rocky Hill, 21 Conn. 468 48 Webster v. Peck, 31 Conn. 495 342, 343 Weed V. Dayton, 40 Conn. 293 307 Welles V. Harris, 31 Conn. 365 13 Day v., 31 Conn. 344 200, 205 Welton Y. Town of Thomaston, 61 Conn. 397 244 y. Town of Wolcott, 45 Conn. 329 239, note West V. Hayes, 51 Conn. 533 128 V. Howard, 20 Conn. 581 16 V. Tolland, 25 Conn. 133 62 Whitlock v., 26 Conn. 406 233 Wetherell v. Town of Newington, 54 Conn. 67 248 392 TABLE OF CASES. [BEFERENCBS AEE TO PAGES.] Wheeler v. Gorliam, 2 Root, 328 364 White V. Fox, 29 Conn. 570 260 Knapp v., 23 Conn. 529 27 Whitlock V. West, 26 Conn. 406 233 Whitten v. Spiegel, 67 Conn. 551 197 Whittlesey v. Starr, 8 Conn. 134 284, 309 Whitly V. Barker, 1 Root, 406 215, 270 Wicks, Lowndes v., 69 Conn. 15 147 Wickwire, Douglass v., 19 Conn. 489 102, 103 Wilcox V. City of Meriden, 57 Conn. 120 'i^t Daniels v., 2 Root, 346 282 Wildman, Lewis v., 1 Day, 153 257 Wile V. Town of Southbury, 43 Conn. 53 238 Wilford, Brainard v., 2 Root, 130 269 Wilkie V. Hall, 15 Conn. 36 311, 313 Wilkinson, Carney v., 67 Conn. 347 76 Williams v. Cheesebrough, 4 Conn. 356 311 V. Ives, 25 Conn. 568 269,299 V. Miller, 16 Conn. 143 343 V. Town of Stonington, 49 Conn. 229 56-58 Taintor v., 7 Conn. 271 290 Tracy v., 4 Conn. 107 178 Young v., 17 Conn. 393 362 Wilson V. Peck, 39 Conn. 54 93 Doolan v., 73 Conn. 446 329 Wilson Sewing Mach. Co. v., 51 Conn. 595 272 Wilson Sewing Mach. Co. v. Wilson, 51 Conn. 595 272 Wilton V. Town of Wolcott, 45 Conn. 329 239, and note Winchell, Huntington v.. 8 Conn. 45 366 Windham Cotton Mfg. Co. v. Hartford, P. & F. R. Co., 23 Conn. 373 * 8, 9 Winslow y. Fletcher, 53 Conn. 390 293 Wolcott, State v., 21 Conn. 272 191 Woodruff V. Fellowes, 35 Conn. 105 219 Woods V. Brzezinski, 57 Conn. 471 281 Wrinn, Nugent v., 44 Conn. 273 139 Y. Young V. Williams, 17 Conn. 393 362 Yudkin v. Gates, 60 Conn. 426 183 INDEX. [references ake to pages. J ACCEPTANCE, of report of committee by court, 30. of selectmen not conclusive settlement, 233. of service by attorney at law, 214, 270. by officer of corporation, 282. ACCESS, to client, attorney's right of, 203. ACCOUNT, action on, before committee, 13. ACCOUNTING, before justice of the peace, 159. ADDITIONAL EVIDENCE, power of court to hear, 24. ADJOURNMENT, in criminal cases before justice of the peace, 173. of justice's court to adjoining town, 114. power of committee de, 5, 12. ADMISSION TO BAR, 199. 394 INDEX. [REFESENCES AEE TO PAGES.] ADVERTISEMENT, in foreclosure sales, 32. in highway cases, 49. in partition suits with sale, 89. AGREEMENT, of counsel de continuance in justice's court, 111. enforcement of, 219. of several creditors de executions on real estate, 349. ALLEGATION, of common convenience and necessity in petition for layout of highway, 45. of neglect and refusal of selectmen in petition for layout of highway, 46. AMENDMENT, of highway committee's report, 59. to officer's return, 311. to record of case in justice's court, 124. power of attorney at law to agree to, 219. ANSWER, in suits for layout of highway, 47. APPEAL, demurrer pro forma for, 168. effect of, on execution, 345. in justice's case, 161. from nonsuit not allowed in justice's court, 166. papers, order of, 170. APPOINTMENT, of appraiser on real estate execution not a contract, 352. of arbitrators, 251. of committee, 2. in foreclosure suits, 32. on staking out oyster grounds, 93. INDEX. 395 [BEFEBENCES ABE TO PAGES.] APPROPRIATION, of material on adjoining lands for making of highway, by se- lectmen, 244. APPRAISAL, of mistaken quantity of interest of debtor on execution, 358. APPRAISERS, disqualification of, 351. in executions on real estate, 351. In foreclosure suits by sale, 33, 37. payment of, 37. form of report of, 39. ARBITRATION, parties aggrieved by layout of highway may join selectmen in submitting to, 243. submission of claims to, by selectmen, 229. ARBITRATORS, 250. acting with less than full number, 254. appointment of, 251. to do distinct acts, 259. award of, 256. conduct of hearing before, 253. costs, 259. damages, 256. disqualification of, 252. fees of, 260. mistake in law, effect on award, 258. mistakes corrected by court, 260. notice to parties, 253. powers of, as construed by courts, 257. seal on award of, 260. strict rules of law need not be observed by, 254. umpire, 253, 255. • witnesses before, 253. 396 INDEX. [eefeeences ake to pages.] ATTACHMENTS, 287. contingent and uncertain interests, 296. covering more than one day's time, 292. description of property, 313. effect of defective service on, 295. exemptions, 300. extent of lien, 294. failure to return writ, 284. family relics, 308. interests incapable of appraisal, 297. leaving personal property in debtor's possession, 289. manufacturers' tools not exempt, 302. of nonresident's property, 292. of personal property, 287. of promissory note, 293. release by attorney at law, 217. of real estate, 287. removal of property, 287, 291. photographic lens, when exempt, 305. of tools, 301, 303. not valid unless writ is in officer's hands, 291. writ invalid, good as summons, 269. ATTORNEY AT LAW, 198. acceptance of service by, 214, 270. acting for different parties in same litigation, 204. agreements de amendments, 219. arguments of, 202. authority of, 216. challenging authority of, 200. collections by, 215. conduct of, in trial of cases, 201. confidential communications to, 208. continuance of relation with client, 200. disbarment of, 222. disqualification of, 201. enforcement of agreements by, 219. examining committee of the bar, 199. fees of, 221. liability to officer for fees, 207, 283. INDEX. 397 [BEFEEENCES ABE TO PAGES.] ATTORNEYS AT LAW— Cont'd. lien for fees, 212. notice to, 203. personal liability, 206. power of, to agree to amendments, 219. over matters connected with suit, 214. qualifications of, 198. release of attachments by, 217. release in full by, 216. right of access to client, 203. transactions with client, 211. waiving objections, 219. AUDITORS, COMMITTEES, AND REFEREES, for trial of issue of fact, 2. AUTHORITY, of attorney at law, 216. challenging, 200. of selectmen in city limits, 231. AWARD, of arbitrators, 256. B. BAILIFF OF BOROJJGH, service of certain process by, 279. BAR, admission to, 199. BASTARDY, 149. bond in, 150. complaint, 149. continuance, 150. examination in, 153. judgment, 153. 398 INDEX. [REFEEBNCES ARE TO PAGES.] BASTARDS— Cont'd. mittimus on continuance, 155. recognizance, 154. return of warrant, 149. BODY EXECUTIONS, 330. BOND, on adjournments in criminal cases, 173. in bastardy cases, 150. of constable, 265. in highway cases, 63. on sale in foreclosure cases, 32. of selectmen, 227. service of process by oificer before giving, void, 280. of town treasurer, 227. BOROUGH BAILIFFS, service of certain process by, 279. BOUNDARY LINE, between towns, highway ending at, 66. BRIDGES, over highways, 65. BRIEFS, before committee, 14. BURIAL, of pauper, 241. BURYING GROUND, partition by sale of, 93. BY-LAWS, of town or borough, jurisdiction of grand jurors de, 106. INDEX. [references are to pages.] c. CERTIFICATE, of appraisal of real-estate execution, 353, 356. CHALLENGE, in jury trials before justice, 146. of authority of attorney at law, 200. CHANGE OP TITLE, effect on execution, 365. CHARGE TO JURY, by justice of the peace, 146. CITY SHERIFF, of Waterbury, serving writ, 282. CIVIL JURISDICTION, of justice of the peace, 108. COLLECTIONS, power of attorney at law in, 215. COMMITTEE, acting with less than full number, 52, 72, 94. action on account before, 13. additional evidence, 24. adjournment before, 5, 12. appointment of, 2. in vacation, 3. briefs before, 14. conclusive character of facts found by, 28. conduct of hearing before, 2. contempt, 3. continuance before, 5, 12. death of, 4. disqualification of, 9. 399 400 INDEX. [BEFEEENCES ABE TO PAGES.] COMMITTEE.— Cont'd. on encroachment on highway, 72. fee of, 30. in foreclosure sales, 31. advertisement in, 32. appointment of, 32. appraisers, 33, 37. form of report, 39. bond, 32. conduct of sale, 34. deed, form of, 40. duties of, 32. failure of purchaser to pay, 35. fee of, 38. motion for decree by sale, 32. notice, form of, 38. report, form of, 42. search of title, 33. sign, 33. on layout of highway, 49. advertisement in, 49. allegation of common convenience and necessity, 45. allegation of neglect and refusal of selectmen in petition for, 46. amendments to report, 59. answer in cases before, 47. assessment of damages, 243. bond, 63. bridges, 65. common convenience and necessity of highway, 45. conduct of hearing before, 53. damages, 69. deviation in layout from petition, '68. disqualification of, 50. entertainment of, 53. evidence before, 62. evidence of cost of building, 62. of expense of maintenance before, 62. of expense of repairing connecting roads, 64. of financial condition of town, 62. INDEX. 401 [eeferences are to pages.] COMMITTEE— Cont'd. of location, 65. ex parte statements before, 58. fees, 57. highway ending at boundary between towns, 66. judgment of practical men as evidence, 65. jurisdiction of court, 44. notice, 49. oath, 53. obstruction to navigation, 66. party defendant, 43. personnel of committee, 72. pleading, 48. pleasure travel, evidence of, 64. power of court over report, 71. remonstrance to report of, 71. report, 15. res adjudicata, 48. testimony of property owners, 242. withdrawal of petition, 61. on layout of private way, bounds, 78. deviation of layout, 79. on lost boundaries, 75. majority acting, 94. new evidence before, 13. oath, 4. on partition suits, equity of redemption, 91. open and visible possession, 84. with sale, 87. advertisement by, 89. burying ground, 93. difficulty of partition not a defense, 90. discretion of court, 89. loss of Incorhe no defense, 90. ore bed, 92. school building; 93. trees, 93. without sale, 80. conclusive character of finding, 86. metes and bounds, 82. Adm. Off.— 26. 402 INDEX. [references are to pages.] COMMITTEE— Cont'd. property held in common, 93. power of court de adjourning, 5, 12. court to correct report of, 22. report of, acceptance by court, 30. in foreclosure sale, form, 42. recommitment by court, 19. remonstrance to, 18. rules governing hearings, 10. on staking out oyster grounds, 93. for trial of issue of fact, 2. COMMITMENT WITHOUT HEARING, in criminal matters, 178. COMMON, partition of property held in, 93. COMMON CONVENIENCE, necessity of highway, 45. COMPETITION, suppression of, in execution sales, 340. COMPLAINT, in bastardy cases, 149. COMPLETION OF SERVICE, by officer outside his precincts, 279. CONCLUSIVE CHARACTER, of facts found by committee, 28. of finding in partition suits without sale, 86. CONDUCT, of appraisal of real estate on execution, 3B3. of attorney in trial of cases, 201. INDEX. 403 [references aeb to pages.] CONDUCT— Cont'd. of hearing before arbitrators, 253. before committee, 2. on layout of highway, 53. of sale in foreclosure suits, 34. CONFIDENTIAL COMMUNICATIONS, between attorney and client, 208. CONSTABLES, 264. bond of, 265. election of, 264. oath, 265. CONSTRUCTION, of officer's return, 309. of execution on real estate, 350. CONSTRUCTIVE POSSESSION, by receiptsman, 329. CONTEMPT, in court of justice of the peace, 160. power of committee de, 3. power of grand jurors de, 106. CONTINGENT AND UNCERTAIN INTEREST, attachment of, 296. CONTINUANCE, in bastardy cases, 150. by committee, 5, 12. in justice's court. 111 et seq. COPY, signature of officer on, 280. 404 INDEX. [KEFEEENCES ARE TO PAGES.] CORPORATION, acceptance of service of process by officer of, 282. of service of process on, 275. CORRECTION, of levy of execution, 368. COSTS, in arbitration, 259. of building highway, evidence of, in highway cases, 62. in justice's cases, 157. COUNTY COMMISSIONERS, power over highway, 247. CREDITOR, as keeper, 296. CRIMINAL JURISDICTION, of justice of the peace, 170. D. DAMAGES, caused by highway, assessed by three disinterested electors, 243. in layout of highway, 69. questions of, before arbitrators, 256. DATE, of service of writ, suits to take effect from, 272. DEATH,- of committee, 4. of officer before completing service, 279. DEBTOR, out of state when execution is levied on real estate, 352. INDEX. 405 [kbferences are to pages.] DE FACTO, grand jurors, 102. officer, 285. DEFAULT, in justice's cases, 135. In justice's court, 110. DEFECT, in report, to be remedied by court, 26. in warrant before justice in criminal cases, 179. DEFECTIVE SERVICE, effect on attachment, 295'. DEMAND, before levy of execution, 335. on execution on nonresident, 338. DEMURRER, pro forma for appeal, 168. DEPUTIES, deputing proper person to serve writ, 274. DESCRIPTION, of property attached, 313. DEVIATION, in layout from petition, 68. of private way, 79. DIFFICULTY, of partition, not a defense, 90. DIRECTION, of process, 273. to grand jury, 188. 406 INDEX. [REFKBENCES ABE TO PAGES.] DISABILITIES, of selectmen, 223. DISBARMENT, of attorney, 222. DISCLOSURE, of financial condition by one asking aid of selectmen, 235. DISCONTINUANCE, of highway or private way by selectmen, 244. DISCRETION, of court in partition suits with sale, 89. DISQUALIFICATION, of appraisers on real-estate executions, 351. of arbitrators, 252. of attorney, 201. of committee, 9. on layout of highway, 50. of grand jury, 192. of justice of the peace, 118. in criminal cases, 187. does not apply to ministerial acts, 120. waiver of, 122. DIVERSION, of water from spring by selectmen, 249. DOCKET, of justice of the peace, 109. DOWER, levy of execution on, 364. DUTIES, of committee in foreclosure suits, 32. INDEX. 407 [kefebences are to pages.] E. EFFECT OF APPEAL, in criminal cases before justice, 185. on levy of execution, 347. on execution, 345. ELECTION, of constables, 264. of grand jurors, 97. of selectmen, 223. ENCROACHMENT ON HIGHWAY, committee on, 72. ENFORCEMENT, of agreements between counsel, 219. ENTERTAINMENT, of highway committee, 53. EQUITABLE DEFENSE, in justice's case, 147. EQUITABLE INTEREST, levy of execution on, 363. EQUITY OF REDEMPTION, levy of execution on, 359. in partition suits, 91. where land is in more than one town, execution on, 359. on several pieces of land, levy of execution on, 360. ERASURE, of officer's indorsement, 315. ESTATE, acquired by creditor levying on equity of redemption, 360. 408 INDEX. [references are to pages.] ESTOPPEL BONDS, as officer's receipts, 316. effect of execution as, 366. EVIDENCE, in actions on officer's receipts, 329. additional, before committee, 24. before highway committees, 62. financial condition of town in highway cases, 62. judgment of practical men in highway cases, 65. location in highway cases, 65. officer's return as prima facie, 310. opinion as to convenience of highway, 63. pleasure travel in highway cases, 64. r.epairing connecting roads in highway cases, 64. EXAMINATION, in bastardy, 153. in proceeding on poor debtor's oath, 157. EXAMINING COMMITTEE OF BAR, 199. EXCEPTIONS, list. of, to be made by committee, 18. EXECUTION SALE, 314. personal property, 338. suppression of competition in, 340. EXEMPT PROPERTY, levy of execution on, 343. EXEMPTION, from attachment and execution, 300. EX PARTE STATEMENTS, before highway committees, 58. INDEX. 409 [beperences aee to pages.] EXPENSE, of maintenance, evidence of, in highway cases, 62. of repairing connecting roads, 64. EXPENSIVE, what is, in execution on live stock, 342. EXPIRATION OF OFFICE, of officer serving process, effect of, 279. EXPLANATION, of officer's return, 310. F. FACTS, found by committee, conclusive character of, 28. FAILURE, of purchaser to pay in foreclosure sales, 35. to return writ of attachment, 284. of town to elect grand jurors, 107. FAMILY RELICS, not exempt from attachment, 308. FEES, of arbitrators, 260. of attorneys, 221. of committees, 30. in foreclosure sales, 38. on layout of highway, 57. of de facto officers, 286. on execution, how construed, 368. of officer, indorsement of, 280. of oyster committee, 94. right of highway committee to demand, 57. 410 INDEX. [references are to pages.] PERRY, power of selectmen as to, 232. FINANCIAL CONDITION, of town, evidences of, in highway eases, 62. FINDING, \}j justice, that parties were notified, 129. FOREIGN CORPORATIONS, service of process on, 275. FORECLOSURE SUITS, committees in (see "Committee"), 31. FORMER JUSTICE, perfecting record of, 133. FORMS, appraisers' report in foreclosure suits by sale, 39. certificate of town clerk in jury trials before justices of the peace, 144. committee's deed in foreclosure sales, 40. committee's report in foreclosure sales, 42. judgment in bastardy cases, 153. mittimus on continuance in bastardy cases, 155. notice of sale of mortgaged premises, 38. officer's return, where several creditors levy on real estate, 363. poor debtor's oath, 156. recognizance on appeal before justice, 163. recognizance in bastardy cases, 154. recognizance in jury trial before justices of the peace, 143. return on bastardy warrant, 149. summons to constable in jury trials before justice of the peace, 144. warrant in bastardy cases, 149. warrant in jury trial before justices of the peace, 143. INDEX. 411 [kefeeences ake to pages.] FURNITURE, when exempt from attachment, 305. G. GRAND JURORS, 97. contempt, 106. de facto, 102. election of, 97. failure of town to elect, 107. history of law de, 98. meetings of, 103. power to administer oath, 107. power as to by-laws of town or borough, 106. refusal to make complaint, 99. state attorney at meetings of, 106, trespass, 101. witnesses, 103. GRAND JURY, 187. directions to, 188. disqualification of membei of, 192. prisoner before, 190. record of, 197. presumption as to verity of, 197. secrecy of proceedings before, 193. testimony of, 193. GUIDE POSTS, erection of, by selectmen, 247. H. HEARING, of property owners on proposed highway, 242. HIGHWAYS, answer in suit, 47. committee de layout of (see "Committee"), 43. 412 INDEX. [references ABE TO PAGES.] HIGHWAYS— Cont'd. county commissioners de, 247. ending at boundary line between towns, 66. power of selectmen de, 241. repair of, by selectmen, 232. HISTORY, of law de grand jurors, 98. HOLDING, of other office by justice of tbe peace, 148. HOUR, of return day in justice's cases, 136. I. IDENTIFICATION, officer cannot use physical force to prove, 299. ILLEGIBILITY, of return date of writ, 281. INCONVENIENCE, of partition, not a defense, 90. INDIFFERENT FREEHOLDERS, appraisers in real-estate executions must be, 355. INDIFFERENT PERSON, service of process by, 273. INDORSEMENT, on copy left with defendant, 292. of officer, erasure of, 315. of officer's fees on writ, 280. INDEX. 413 [eeferenoes are to pages.] INTEREST, of attorney as disqualification, 201. disqualification of committee for, 9. incapable of appraisal, cannot be attached, 297. INTERLOCUTORY ORDERS, before justice of the peace, 140. J. JOINT CONTRACTORS, service of process on, 277. JOINT TENANTS, tenants in common and co-parceners, distinction between, 81. JUDGMENT, in bastardy cases, 153. of court after committee's report, 30. by default in justice's court, 110. in justice's court, 159. of practical men, evidence of, in highway cases, 65. JURISDICTION, of court in suits for layout of highway, 44. of justice in criminal cases, 170. of justice of the peace, 109, 113. outside town where elected, 172. when not re-elected, 116. loss of, by justice of the peace. 111. JURY TRIAL, before justice of the peace, 142. JUSTICE OF THE PEACE, 108. accounting before, 159. adjournment to adjoining town, 114. adjournment in criminal cases before, 173. 414 INDEX. [eefekences aee to pages.] JUSTICE OF THE PEACE— Cont'd. agreement of counsel de continuance before. 111. amendment of record in cases before, 124. appeal, 161. from nonsuit, 166. appraisal in levy of execution on real estate, 352. bond on adjournment in criminal cases, 173. bond in bastardy cases, 150. challenging in jury trials before, 146. charge to the jury, 146. civil jurisdiction, 108. commitment without hearing in criminal cases by, 178. contempt, 160. continuance. 111 et seq. costs, 157. criminal jurisdiction, 170. default, 110, 135. defect in vi^arrant, 179. in record of former justice, 133. demurrer for appeal, 168. disqualification in civil cases, 118. in criminal cases, 187. docket, 109. effect of appeal in criminal cases, 185. equitable defense in cases before, 147. holding other offices, 148. hour of return day, 136. interlocutory orders before, 140. judgment, 159. by default, 110. jurisdiction, 109, 113, 170. outside town, where elected, 172. when not re-elected, 116. jury trial before, 142. loss of jurisdiction, 111. ministerial duties, 113, 120, 134. mittimus in criminal cases, 184. new trials not allowed, 159. nonsuit, 166. notice of date of trial, 112. INDEX. 415 [references are to PAGES.l JUSTICE OF THE PEACE— Cont'd. notice to parties, 129. order of appeal papers, 170. plain view, commitment, 178. pleading, 141, 147. presumption of validity of judgment in criminal cases, 179. recognizance on appeal, 163. in criminal cases, 177. in proceedings for sureties of the peace, 177. record of, 124. cannot be attacked collaterally, 133. - in criminal cases, 179. after death, 128. endorsed on writ, 126. perfection of, by former, 133. reform-school complaints, 101. return hour not inflexible, 136. sentence in criminal cases, 184. talesman, jury trials, 145. tavern keeping without license, 171. taxing costs, 158. transfer of case to another justice, 119. trial before return day, 160-. verdict of jury, 147. waiver of disqualification, 122. warrant in criminal cases, 173. K. KEEPER, officer's, 296. L. LAW, strict rules of, need not be observed by artitrators in evidence, 254. LAYOUT OF HIGHWAY, 65. committee on, 43. 416 INDEX. [EEFERENCES ABE TO PAGES.] LEVY OP EXECUTION, appraisal of machinery, 357. on body, 330. correction of, 368. conduct of sales, 338. demand on nonresidents, 338. on dower interest, 364. on equitable interest, 363. on equity of redemption, 359. on exempt property, effect of, 308, 343. exemptions, 300. on interest of tenant in common, 364. on life estate, 364. on live stock and perishable property, 342. mistake in amount, 366. on personal property, 335. photographic lens exempt, when, 305. property of third person, 344. property of voluntary association, 346. on real estate, 345. agreement of several creditors de, 349. appraisal, certificate of, 353, 356. of mistaken equity of debtor's interest, 358. appraisers, 351. appointment of, 352. disqualification of, 357. must be indifferent freeholders, 355. justice of the peace as, 352. change of title, 365. construction of officer's return, 350. debtor in prison, 350. debtor out of state, 352. ■ demand, 355. different portions of same tract, 356. effect of appeal, 347. on equitable interest, 359. equity of redemption, 360. metes and bounds, 348. on nonresident, 338. recording title, 366. INDEX. 417 [eefbrfnces aee to pages.] LEVY OF EXECUTION— Cont'd. several creditors levying together, 363. tenants in common, 364. undivided interests, 349. on real and personal property together, 365. with sale, 314, 338. of partnership property, 341. suppression of competition, 340. subsequent executions, 343. transfer of stock on sale, 314. tools, 301, 303. undivided part of equity of redemption, 362. validity when not returned to court, 344. void judgments, 343. voluntary association, 346. LIABILITY, of attorney for officer's fees, 283. to officer employed, 207. of officer in serving process, 282. as trespasser, 298. of parties to officer's receipts, 317. personal, of attorney, 206. of selectmen, 230. LIEN, of attorney, 212. only to amount of attachment, 294. LIFE ESTATE, levy of execution on, 364. LIVE STOCK, levy of execution on, 342. LOCATION, evidence of, in highway cases, 65. Adm. Off.— 27. 418 INDEX. [keferfnces are to pages.] LOSS, of income, not a defense in partition suit with sale, 90. of jurisdiction by justice of the peace, 114. LOST BOUNDARIES, committee on, 75. M. MACHINERY, in mill, how appraised on execution, 357. MAJORITY, of committee acting, 94. MANDAMUS, direction of, 283. MANUFACTURER'S TOOLS, not exempt from attachment, 302. MARRIED WOMAN, accepting service of process, 271. MEETING, of grand jurors, 103. METES AND BOUNDS, partition by, 82. real estate to be set off on execution by, 348. MILL MACHINERY, how appraised on execution, 357. MINISTERIAL DUTIES, of justice of the peace, 113, 134. INDEX. 419 [KEFBRFNOES ARE TO PAGES.] MINUTES, from which record is made in justice court proved after death of justice, 128. MISTAKE, in amount on execution, 366. in award of arbitrators, power of court to correct, 260. in committee's report, power of court to correct, 22. in date of writ, 272. in law, effect on award of arbitrators, 258. MITTIMUS, on continuance in bastardy cases, 155. in criminal cases before justice, 184. MOTION, for decree by sale in foreclosure suits, 32. MUNICIPAL, CORPORATIONS, direction of writ of mandamus on, 283. N. NEGLECT OR REFUSAL, of selectmen to lay out highway, 46. NEW EVIDENCE, power of committee de, 13. NEW TRIALS, not allowed before justice, 159. NONRESIDENT, attachment of property of, 292. attending court, when protected from service of process, 271. defendants, order of notice to, 278. demand on execution on, 338. 420 INDEX. [REFERFNCES AEE TO PAGES.] NONRESIDENT— Cont'd. executors, service of process on, 277. service of process on, 271. voluntarily submitting to jurisdiction waives service, 281. NONSUIT, no appeal from, 166. NOTICE, to attorney is notice to client, presumption that, 203. of date of trial in justice's court, 112. in foreclosure sales (form), 238. in -highway cases, 49. to parties by arbitrators, 253. by justice of the peace, 129. of proposed highway, 242. of sale of mortgaged premises, form of, 38. to selectmen in pauper cases, 238, 240. to town in highway cases, 49. o. OATH, in cases of service of process by indifferent person, 274. of committee, 4. on layout of highway, 53. of constable, 265. of poor debtor, 155. form, 156. power of grand juror de, 107. of selectmen, 226. OFFICER, de facto, 285. indorsement of, erasure, 315. liability of attorney at law to, 207, 283. presumption of performance of duty by, 314. receipt of, 315. effect as estoppel bonds. 316. INDEX. 421 [befbkfnces are to pages.] OFFICER— Cont'd. evidence in actions on, 329. liability of parties, 317. partnersliip property, 326. pleading in actions on, 316. reversal of judgment, effect on, 329. seal, 323. search for property, 329. valuation, 325. return of, 309. amendment to, 311. construction of, 309. de real estate, 350. explanation of, 310. as prima facie evidence, 283, 310. several creditors levying together, 363. should have reasonable construction, 284. as trespasser, 298. OPEN AND VISIBLE POSSESSION, in partition, 84. OPINIONS, as to convenience and necessity of highway, 63. ORDER OF NOTICE, to nonresident defendants, 278. ORE BED, partition by sale of, 92. OVERSEERS OF THE POOR, powers of selectmen as, 234. OVERSEERS OF SPENDTHRIFTS, power of selectmen as, 233. OWELTY, of partition, 82. 422 INDEX. [REFERPNCES ARE TO PAGES.] OYSTER GROUNDS, committee on staking out, 93. P. PARTITION, owelty of, 82. suits, committee on (see "Committee"), 80, 87. PARTNERS, service of process on, 271. PARTNERSHIP PROPERTY, officer's receipts of, 326. sale of, on execution, 341. PARTY DEFENDANT, in suits for layout of highway, 43. PAUPERS, burial of, 241. notice to selectmen de, 238, 240. settlement of, 236. state, 241. PERFECTION OF RECORD, by former justice of the peace, 133. PERISHABLE PROPERTY, levy of execution on, 342. PERSONAL LIABILITY, of attorney, 206. of selectmen, 230. PERSONAL PROPERTY, attached left in debtor's possession, 289. INDEX. 433 [eefekfnces ake to paoies.] PERSONAL PROPERTY— Cont'd. attachment of, 287. levy of execution on, 335. PERSONNEL, of highway committee, 72. PHOTOGRAPHIC LENS, exempt from attachment, when, 305. PHYSICIANS, employed by selectmen, 235. PLACE OP ABODE, service of process at, 270. PLAIN VIEW, commitment by justice on, 178. PLEADING, in actions on officer's receipts, 316. in justice's cases, 141, 147. in highway pases, 48. PLEASURE TRAVEL, evidence of, in highway cases, 64. POOR DEBTOR'S OATH, 155. examination, 157. POSSESSION, open and visible, in partition, 82. of process necessary to enable officer to attach, 291. POWER, of attorney at law to agree to amendments, 219. in collections, 215. 424 INDEX. [EEFERFNCES ARE TO PAGES.] POWER— Cont'd. over matters connected with suit, 214. de release of attachment, 217. in full, 216. to waive objections, 219. of court to correct mistakes in report of committee, 22. to hear additional evidence, 24. to recommit report of committee, 19. to rectify mistakes in award of arbitrators, 260. of grand juror to require oath, 107. of grand jurors over witnesses, 103. of justice of the peace de interlocutory orders, 140. POWERS OP ARBITRATORS, liberal construction of, 257. over witnesses, 253. POWERS AND DUTIES OP SELECTMEN, 226. de highways, 241. as overseers of the poor, 234. to be strictly pursued, 232. over trees and shrubbery near highway, 247. PRECEPT, officer need not look outside of, 283. PRESUMPTION, that notice to attorney is notice to client, 203. that officer has performed duty, 314. of validity of judgment in criminal cases before justice, 179. PRIMA FACIE EVIDENCE, return as, 310. PRIVATE WAY, across pond, layout of, 78. layout of, by committee, 77. by selectmen, 246. INDEX. 425 [kbfebfnces ake to pages.] PRISONER, before grand jury, presence of, 190. levy of execution on real estate of, 350. service of process on, 270. PROCESS, service of (see "Service of Process"), 266. void on face, duty of officer de, 283. PROMISSORY NOTE, attachment of, 293. PROPERTY OWNERS, on proposed highway, notification and hearing of, 242. Q. QUALIFICATION, of reputable lawyer, 198. E. REAL ESTATE, levy of execution on (see "Levy of Execution on Real Estate"), 345. RECEIPTS, of officers (see "Officer"), 315. several, do not constitute one bailment, 325. void sixty days after judgment, 325. RECOGNIZANCE, in appeal from justice's decision, 163. after hearing in criminal cases before justice, 177. in bastardy cases, 154. in proceedings for sureties of the peace, 177. 426 INDEX. [KEFBRFNCES AEE TO PAGES.] RECOMMITMENT, of report of committee on layout of highway, 71. power of court de, 19. RECORD, of case in justice's court, 124 et seq. in criminal cases before justice, 179. of grand jury, 197. of justice of the peace cannot be attacked collaterally, 133. of justice's court, indorsed on writ, 126. of ministerial duties of justice, 134. RECORDING TITLE, by levy of execution, 366. RECTIFICATION, of mistakes in award by court, 260. REFORM-SCHOOL COMPLAINTS, 101. REFUSAL, of grand juror to make complaint, 99. of selectmen to lay out highway, 245. of witness to answer grand jurors, 103. REGISTRAR, of voters, cannot be selectman, 225. RELATIVE VALUE, of different portions of same tract in appraisal on execution, 356. RELEASE, of attachment, power of attorney at law de, 217. in full, power of attorney at law de, 216. RELIEF, to party aggrieved by layout of highway by selectmen, 242. INDEX. 427 [kefeepnces aee to pages.] REMONSTRANCE, to report of committee, 18. in layout of highway, 71. REMOVAL, of property attached, 287. of portion of personal property attached, 291. REPORT OF COMMITTEE, 15. acceptance by court, 30. defect in, supplied by court, 26. in foreclosure sale, form, 42. judgment of court, 30. on layout of highway, 70. amendments to, 59. mistakes in, corrected by court, 22. power of court to correct, 22. power of court over, in highway cases, 71. recommitment by court, 19. remonstrance, 18. of selectmen not conclusive settlement, 233. to town treasurer, 227. REQUISITE FORMALITIES, observation of, by oiBcer in levy of execution on real estate, 350. REQUISITES, of valid levy, must appear in officer's return, 309. RES ADJUDICATA, in highway cases, 48. RETURN, on bastardy warrant, 149. date, illegibility of, 281. day, trial before, 160. of officer (see "Officer") 309. of process, 269. 428 INDEX. [BEFERFNCES ABE TO PAGES.] RETURN— Cont'd. necessary to absolve officer from liability, 268. of sales on execution, 314. REVERSAL, of judgment, effect on officer's receipts, 329. RULES, to govern hearings, power of committee de, 10. s. SALES, on execution, conduct of, 338. return of, 314. of partnership property on execution, 341. SCHOOL BUILDING, partition by sale of, 93. SCRIVENERS, instructions to, not privileged, 210. SEAL, on award of arbitrators, 260. effect of, in officer's receipts, 323. SEARCH, for property receipted for, necessity of, 329. of title in foreclosure suits, 33. SECRECY, of proceedings before grand jury, 193. SELECTMEN, 223. appropriation of material for making highway by, 244. de arbitration, 229. INDEX. 429 [REFEEFNCBS ARE TO PAGES.] SELECTMEN— Cont'd. authority of, in city limits, 231. bond of, 227. claims, settlement of, 226. disabilities of , 223. discontinuance of highway by, 244. of private way by, 244. diversion of water from spring by, 249. election of, 223. erection of guide posts by, 247. ferries, 232. financial condition of applicants for aid, 235. highways, 241. neglect or refusal of, to lay out highway, 245. notice of proposed layout of, 242. repair of, 232. oath, 226. overseers of the poor, 234. paupers, burial of, 241. notice de, 238, 240. state, 241. personal liability, 230. powers and duties in general, 226. private way, 246. physicians employed by, 235. relief to party aggrieved by layout of highway, 242. relief not conclusive settlement, 233. report to town treasurer, 227. special authority strictly followed, 230. spendthrifts, 233. submission of claims to arbitration by, 229. superintendence of town ofiicers, 228. term of office, 225. trees and shrubbery near highway, 247. SENTENCE, in criminal cases before justice, 184. SERVICE OF PROCESS. acceptance of, by 'officer of corporation, 282. 430 INDEX. [reperfnces are to pages. J SERVICE OF PROCESS— Cont'd. by attorney at law, 214, 270. bond, when void, 280. by borough bailiffs, 279. completion of service by officer beginning it, 272. by officer outside his precincts, 279. on corporations, 275. death of officer, 279. deputing proper person to serve writ, 274. direction of mandamus, 283. on municipal corporations, 283. direction of process in, 273. effect of error on attachment, 295. erasure of officer's indorsement, 315. effect of expiration of term of office, 279. on foreign corporations, 275. identification by officer, 299. indifferent person, 273. indorsement on copy left with defendant, 292. indorsement of officer's fees, 280. on joint contractors, 277. liability of officer, 282, 298. married woman accepting service, 271. mistake in date of writ, 272. nonresident, 271. executors, 277. when protected from, 271. oath by indifferent person, 274. officer's return, 309. order of notice on nonresident defendants, 278. partners, 271. place of abode, 270. possession of writ by officer necessary, 291. prisoners, 270. return of, 149, 268, 269. on several defendants, 270. signature of officer, 280. in suits for layout of highway, 43. on Sunday, or between sunset and sunrise, void, 280. on Thanksgiving Day void, 282. INDEX. 43J [REFERFKCES ABE TO PAGES. J SERVICE OP PROCESS— Cont'd. on town and county oflacers, 275. on voluntary associations, 277. waiver of defect, 267. waiver by nonresident, 281. writ in general, 269. SERVING WRIT TWICE, 281. SETTLEMENT, of claims by selectmen, 226. of paupers, 236. SIGNATURE, of officer on copy of writ, 280. SIGN, in foreclosure suits by sale, 33. SPECIAL, AUTHORITY, given to selectmen, strict following of, 230. STATE'S ATTORNEY, at meetings of grand jurors, 106. STATE BOARD, of arbitration and mediation, 261. STATE PAUPERS, support by town, 241. STOCK, transfer of, on execution sale, 314. SUBMISSION OF CLAIMS, to arbitration by selectmen, 229. 432 INDEX. [eefekfnoes are to pages.] SUBSEQUENT EXECUTIONS, time of levy of, 343. SUNDAY, service of process on, void, 280. SUPERINTENDENCE, of town oflBcers by selectmen, 228. SUPPORT, of paupers, 237. SURETIES OP THE PEACE, 176. recognizance, 177. SURVlEY, of highway by selectmen, 242. T. TALESMEN, in jury trials before justices, 145. TAVERN KEEPING, without license, 171. TAXING COSTS, in justice's court, 158. TENANT IN COMMON, levy of execution interest of, 364. TERM OF OFICB, of selectmen, 225. TESTIMONY, of grand jury de proceedings, 193. INDEX. 433 [KEFEEFNCES AKE TO PAGES.] THANKSGIVING DAY, service of process on, void, 282. THIRD PERSON, levy on property of, 344. TIME OF HEARING, 4. levy of subsequent executions, 343. TITLE, change of, effect on execcution, 365. not in receiptsman, effect of, 324. in receiptsman, effect of, 323. TOOLS, to be exempt from attachment, must be actually in use, 303. exempt, what are, 301. TOWN TREASURER, bond of, 227. report of selectmen to, 227. TRANSACTIONS, between attorney and client, 211. TRANSFER, of case to another justice of the peace, 119. of stock on execution sale, 314. TRAVEL, for pleasure, evidence of, in highway cases, 64. TREE, partition by sale of, 93. TREES AND SHRUBBERY, by highway, power of selectmen over, 247. 434 INDEX. [KEFERFXCES AKE TO PAGES. J TRESPASS, jurisdiction of grand jurors de, 101. TRESPASSER, liability of officer as, 298. TRIAL, before return day in justice court, 150. of case, conduct of attorney in, 201. u. UMPIRE, in arbitration, 253, 255. UNDIVIDED INTERESTS, in real estate, when set out, 349. UNDIVIDED PART, of equity of redemption, levy of execution on, 362. V. VACATION, appointment of committee in, 3. VALIDITY, of execution not returned to court, 344. VALUATION, in officer's receipts, 325. VERDICT OF JURY, in justice trials, 147. VOID JUDGMENT, levy of execution in, 343. INDEX. 435 [EEFEEFNCES ABE TO PAGES J VOLUNTARY ASSOCIATION, levy of execution on property of, 346. service of process on, 217. w. WAIVER, of defective service of process, 2'67. of disqualification of justice of tlie peace, 122. of objections, power of attorney at law de, 219. WARRANT, in bastardy cases, 149. in criminal cases before justice, 173. WATER, partition of use of, 83. WITHDRAWAL,, of petition in highway cases, 61. WITNESSES, before arbitrators, 253. before grand jury, 189, power of grand jurors over, 103. WRIT, invalid as attachment, may be good as summons, 269. » .''"'^