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that the rule of damages in this class of cases defendants' intestate, had stood in the same does not concern itself with the amount of relations to each other for 16 years, the fact the estate, or the size of the expected inheri that at the commencement of these relations tance. The only legitimate purpose of the Lawrence asked the plaintiff to look after testimony before you lies in its claimed ten him and take care of him is not irrelevant to dency to corroborate the claim of the plain the fact that during the last 6 years of this tite that the deceased as a man living quite period the services of the plaintiff in taking alone and in possession of a competence ex care of Lawrence were rendered at his re pected to, and understood that he was ex quest. Whether or not the relevancy should pected to, pay for such services as the plain be deemed too remote to be material, under tiff may have rendered. It must have no all the circumstances of the case, was within effect beyond this in any event. The value of the discretion of the trial judge, and the recthe services, if you come to that, is a matter ord does not indicate that this discretion was to be determined quite apart from the size abused. or value of the estate.” (3) One Frank Law. For similar reasons the second exception is rence, a nephew and heir at law of the dece not well taken. The fact that Lawrence posdent, was offered as a witness by the defend sessed a modest competence, in connection ants. He testified at length as to his ac with other facts, is not wholly irrelevant to quaintance with his uncle during the latter's the fact that Lawrence requested the plaintiff last years and as to his uncle's methods of to perform for him the general duties of a life, and said that on his visits to his uncle housekeeper and nurse, promising to pay her he had never observed that he was being the reasonable value of such services, nor to materially assisted or cared for by any one, the fact that for six years she performed and that he had not seen the plaintiff in at these services without insisting upon paytendance upon his uncle. He was not asked ment. The expression of the judge at the to give an opinion as to the value of the time this testimony was admitted of his belief plaintiff's claimed services. The plaintiff was that in another case a similar question had a witness on rebuttal, and in her direct ex

been admitted as possibly bearing on the amination testified that since the decedent's value of the services, if in any event it could death she had had a conversation with Frank be regarded as harmful, was certainly harmLawrence regarding his uncle and in regard less in view of the charge of the court upon to her services for him. She was then asked: this point. “Won't you tell the jury what it was?" To The third exception is not well taken. The this question the defendants objected, on the testimony of Frank Lawrence was to the efground that the conversation was not binding fect that during his visits to his uncle the upon the administrators. It was claimed by plaintiff had rendered the latter no assistance, the plaintiff as showing bias in the witness

and that, so far as he knew, his uncle durLawrence. The court admitted the question, ing his last years had not been assisted or the defendants duly excepting. The witness cared for by any one. The testimony of the answered: “I told him I was going to put in plaintiff admitted in rebuttal tended to show a claim, and he said: 'All right.' I told him that the younger Lawrence did know that I didn't want him to kick over it. I said: the plaintiff had taken care of his uncle. “You know I have taken good care of your If it did not show this, its admission in conuncle, and I want my pay for it.' And he nection with the charge of the court was said: 'All right.' He said: 'I won't kick

barmless, over your claim, if you don't kick over what

This appeal Illustrates the necessity of callI get.' I said: 'I have nothing to do with

ing attention to a seeming misconception as what you get. All I am looking for is what to the relative duties of a trial court and belongs to me.'" In the charge the court cau Court of Errors in respect to the application tioned the jury in respect to this testimony of the law of evidence to the peculiar condiag follows: "As to certain statements made

tions that may be developed in a trial. Strictby Lawrence, the nephew, to the plaintiff, aft

ly speaking, the law of evidence is a part of er the elder Lawrence's death, you will be the law of procedure, and harmless error in careful to remember, as I cautioned you its application in the course of a trial is not when this testimony was admitted, that no ground for.new trial. In the main, its applistatement of this witness Lawrence is of

cation to the circumstances of each case is a weight as tending to bind the estate, and his duty necessarily allotted to the trial court, statements are admitted here only for the

and in most instances the judge conducting a limited purpose of affecting his credibility as

trial is in a far better position to settle justa witness, and it is for you, of course, to

ly a doubtful application than a Court of Ersay whether they have any weight in that

rors reading the printed record. The rule of direction.”

logic or theory of chances which determines William E. Thoms, for appellants. Ulysses the relevancy of evidence must in nearly all G. Ohurch, for appellee.

cases of doubtful application be understood

in connection with conditions and circumHAMERSLEY, J. (after stating the facts). stances peculiar to the case on trial, evanesThe first exception is not well taken. It ap cent in their character and difficult of adepearing that the plaintiff and Lawrence, the quate apprehension unless by the presiding

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judge. Appeals to this court based on alleged | return, and Durgy sublet to him four rooms. mistakes of the trial judge in the exercise of Durgy's lease expired April 1, 1906, and on his power and discretion in determining such that day he moved out, but the plaintiff did doubtrul questions of relevancy and remote. not and proceeded to extend his possession to ness must ordinarily prove futile. To enter the entire house. Keeler had died on March tain and discuss all such appeals would tend 24th. On April 7th Burr was appointed adto promote prolixity, uncertainty, and injus ministrator of bis estate, and retained an attice in trials, and to obscrue rather than make torney to put the plaintiff out. The attorney clear the practical duties of the trial court; was the same who had obtained the foreclosand for this court to set aside judgments and ure, and had previously, on April 5th, procured compel new trials for such immaterial or from the clerk of the court the issue of a academic reasons would tend to defeat rather writ of execution in ejectment, founded on than to serve the administration of justice. the foreclosure judgment. This execution he

There is no error in the judgment of the now bad served, and the plaintiff was forsuperior court. In this opinion the other cibly ejected upon it. The administrator Judges concurred.

thereupon let the premises to the two other
defendants, who went into possession under

the lease. There was no evidence of any use (79 Conn. 682)

of “force and strong band” except in serving FINCH V. BURR et al.

the execution. It is plain, therefore, that (Supreme Court of Errors of Connecticut.

judgment was properly rendered for the two May 1, 1907.)

defendants who came in later as tenants FORCIBLE ENTRY AND DETAINER-GROUND OF

under the administrator. The administrator ACTION-IRREGULAR EXECUTION. After a judgment of foreclosure and the

himself was liable to the action if he proexpiration of the time for redemption, the mort cured the dispossession of the plaintiff with gagee was. put in possession of the premises by

force and strong hand, without other warthe voluntary act of the mortgagor, and then died. The mortgagor returned, and the admin

rant than a void writ. The judgment in istrator of the mortgagee, finding him in pos favor of Keeler was for two things—a foresession, and the execution of the judgment not closure and possession. By force of it be appearing on the records of the court, had the

fore his death Finch's equity of redemption attorney who had obtained the foreclosure to procure and have served a writ of execution in had been forever extinguished. The judgejectment founded on the foreclosure judgment. ment for his dispossession provided for a The clerk who issued it did not know of the

stay of execution until January 5, 1906. Bemortgagee's death, and consequently that his attorney was no longer entitled to the writ.

fore that time Finch removed from the premThe attorney, although he knew of his client's ises and from the state, turning over the death acted in good faith in the matter. Held

possession to Durgy. Durgy, having hired that, although it was both a misuse of process and the use of an irregular process, the writ

them from Keeler, must be deemed to have was not absolutely void, and the administrator taken possession for him. The judgment was was not liable to an action of forcible entry and therefore fully executed before Keeler died. detainer for causing its service.

Nevertheless, as its execution did not appear Appeal from Court of Cominon Pleas, Fair. on the records of the courts, it remained the field County; Howard J. Curtis, Judge. prima facie duty of the clerk to issue final

Action by George M. Finch against Gil process on demand of the plaintiff's attorney. bert B. Burr and others. From a judgment The attorney who demanded it bad, in fact, for defendants, plaintiff appeals. Affirmed. ceased to be the plaintiff's attorney by reaHoward W. Taylor, for appellant. Sam

son of the plaintiff's death. He acted, howuel A. Davis, for appellees.

ever, it is found, in good faith, and, while

he knew of this death, the clerk, so far as BALDWIN, C. J. The complaint alleges appears, did not. that the defendant Burr, as administrator of

An execution issued upon a judgment satisthe estate of John P. Keeler, deceased, for fied in fact, but not of record, is not void, cibly put the plaintiff out of possession of although the defendant in the action may certain lands, and, with the other defendants, have preventive relief against its service, is keeping him, with a strong hand, out of

and if it should be served by the plaintiff's possession of them.

direction, with knowledge of the facts and The material facts are these: The plaintiff malicious intent, there will be a liability to on December 26, 1905, was occupying the respond in damages. Luddington v. Peck, premises as his homestead. He had mort 2 Conn. 700. The same principle must govern gaged them to Keeler, who had obtained a when an execution is issued on a judgment in decree of foreclosure, and that day was the favor of a dead man; the death not having last on which he could redeem. He did not been suggested upon the record, and not beredeem, but on that day sold part of his fur ing in fact known to the clerk of the court. niture to one Durgy, and Durgy hired the The sheriff who, acting in good faith, may premises from Keeler and moved in, with the serve it, is no trespasser. He has a process plaintiff's consent. The plaintiff a few days valid upon its face. The party who put the afterward left the premises, not intending execution in his hands, if acting in good to return to the state. A month later he did faith, is also no trespasser. While the proper

death pending sult of its party to the action

, a

method of proceeding for Burr as the ad lief that he had a right, as the representa-
ministrator of Keeler's estate would have tive of the decedent, to enforce the judgment
been to sue out a scire facias, his failure to for possession previously recovered. Το
pursue that course was but an irregularity. charge him with a scienter in the respect
Had it been an execution to collect a sum of mention does not convict him of malice.
money, and the officer had collected the mon In view of the law which we have taken,
es and made return accordingly, the judg. the exceptions founded on the refusal of the
ment, according to a decision of the superior court to alter its finding of fact in certain
court in the eighteenth century, would have points become immaterial.
been discharged. Worthington v. Hosmer, There is no error. The other Judges con-
1 Root, 192. A judgment is not annulled by curred.
the death of the judgment creditor. Whether
the state sees it still to enforce it in his
name, or in that of his personal representa-

(79 Conn. 670) tives, and whether in the latter case a pre

GORHAM V. CITY OF NEW HAVEN. liminary writ should first be applied for, is a (Supreme Court of Errors of Connecticut. matter of mere form. The whole law of ex

May 1, 1907.) ecutors and administrators is bound up in 1. PLEADING - DEMURRER MISJOINDER OF the legal fiction that their title relates back CAUSES OF ACTION. to the moment of the death of him whom

A misjoinder of causes of action can be

properly raised only by demurrer as provided they represent, and that through them bis

by Practice Book, p. 50, $ 170. personality, for certain purposes, is pro (Ed. Note.--For cases in point, see Cent. Dig. longed. To make this the more effectual, vol. 39, Pleading, $ 435.] courts have never hesitated, in case of the 2._APPEAL-CAUSES OF ACTION-ELECTION

PREJUDICE.

Plaintiff sued in one count to recover damto date back some of the steps in the pro

ages for the pollution of a water course, and in ceeding so as to make them appear to have

another to recover a penalty of $1,000 for de been taken before they were. Had the judg. fendant's violation of an injunction prohibiting ment in Keeler's favor been rendered after

such pollution. Before any evidence was introhis death, on a hearing had while he was in

duced plaintiff was compelled to elect on which

cause he would proceed, and elected the first life, it would have been fully effectual if en count, "without waiving any right to a trial on tered nunc pro tunc. So, under the English the issues framed under the second.” Defend.

ant's objection to this reservation was overruled, practice at common law, if an execution bore

and after verdict plaintiff was permitted, over tests of a date before the plaintiff's death, on

objection, to amend the complaint by striking out which it might lawfully have been granted, the second count. Held that, a verdict having it was of force, although not issued until been rendered in excess of the penalty sued for

in the second count, defendant was not prej. after that event. Center v. Billingshurst, 1

udiced by such reservation, because, if the court Cow. 33. Forms of proceeding for the ac had not permitted it, plaintiif might have elected complishment of justice, whether through the to have proceeded on the second count. use of a legal fiction or of particular kinds [Ed. Note.-For cases in point, see Cent. Dig. of judicial processes are but means to an end.

vol. 3, Appeal and Error, $$ 4077, 4079.] They are not so essential to its attainment

3. PLEADING — COUNTS — ELECTION WITH

DRAWAL. that every departure from them makes what

Where plaintiff, having alleged a cause of is done a nullity. In the case at bar, after action for damages in two counts, on being a judgment for possession, the plaintiff had compelled to elect on which he would go to trial,

chose the first, such election was none the less been put in possession by the voluntary act of

final because he attempted to attach a reservathe defendant, and had then died. The ad

tion that he did not waive any right to a trial ministrator upon his estate, having subse on the issues framed under the second count. quently found the original defendant again

Hence the court did not err in permitting plain.

tiff to withdraw the second count after verdict. in possession, employed an attorney to eject

4. JUDGMENT-ALTERNATIVE REMEDIES/CON. him, and the attorney proceeded to do so,

CLUSIVENESS. under an execution on the satisfied judgment. Plaintiff sued in two counts, the first to It was both a misuse of process and the use recover actual and punitive damages sustained of an irregular process, but neither of these

by pollution of a water course, and the second

to recover a penalty for defendant's violation of facts rendered the writ absolutely void. Rey an injunction restraining the same acts. On the nolds. y. Corp, 3 Caines, 267, 273; Day v. trial plaintiff, pursuant to an order to elect, Sharp, 4 Whart. 339, 34 Am. Dec. 509 ;

elected to proceed on the first count, and re

covered judgment in excess of the injunction Hughes v. Wilkinson, 37 Miss. 482; Jenness

penalty. Held, that such remedies were alterV. Circuit Judge, 42 Mich. 469, 4 N. W. 220. native, and that, plaintiff having recovered on The plaintiff, while conceding the actual the first count, his judgment barred an action good faith of Burr in using the execution to

to recover the penalty.

[Ed. Note.-For cases in point, see Cent. Dig. dispossess him, contended that it was not

vol. 30, Judgment, $ 1106.] good faith in law. This apparently rests

5. WATER COURSES - - POLLUTION - PUNITIVE upon the claim that the facts found exclude DAMAGES-EVIDENCE. the possibility of such good faith as would In an action for damages for the pollution constitute any legal defense to the action.

of a water course, the record of a former in.

junction suit brought to restrain the same acts Burr's knowledge that Keeler was dead was

and the judge's testimony respecting the et. not legally inconsistent with his honest be ficiency of certain filter beds installed for the

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filtration of defendant's sewerage, after the against the further pollution of said stream commencement of the first action, were admis

by a judgment of the superior court rendersible, as bearing on plaintiff's right to recover punitive damages.

ed November 7, 1899, and has since willfully 6. JUDGMENT-RECORD-ISSUES-EVIDENCE.

and wantonly continued such pollution. The Where, in an action for pollution of a second count sets forth the record of said water course, the record of a former suit to

former action in the superior court between restrain the same acts was introduced, but did not show whether defendant's system of filtra

the same parties, including the judgment rention would wholly prevent any future injury

dered November 7, 1899, enjoining the de to plaintiff, was raised or determined in the fendant, under a penalty of $1,000, against prior action, testimony of the judge who tried

further polluting said stream by causing or the same that such question was within the issues and decided was admissible.

permitting any of said sewerage or drainage [Ed. Note.-For cases in point, see Cent. Dig.

to flow into it, and alleges a violation of vol. 30, Judgment, $8 1823, 18241/2.]

said injunction. The complaint asks for $10,7. WATER COURSES-POLLUTION-DAMAGES 000 as the damages, "including exemplary EVIDENCE.

damages,” sustained by the acts described In an action for pollution of a water course

in the first count, and $1,000 “being the penrunning through plaintiff's dairy farm, evidence of the extent of the milk business that plain- alty of the injunction set forth in the second tiff conducted on the farm before the stream count.” Demurrers to the second count and was polluted, in connection with evidence of

to said prayers for relief having been overthe amount of such business possible during the period for which damages were claimed, was

ruled (which rulings are not made reasons of admissible to prove the diminished value of the appeal), and, the defendant having filed its use of the farm from the acts complained of. answer to both counts, the court, upon the

(Ed. Note.—For cases in point, see Cent. Dig. defendant's motion, before any evidence was vol. 48, Waters and Water Causes, $ 65.]

introduced, ordered the plaintiff to elect up8. SAME.

on which count of the complaint he sought Evidence that there had been numerous

to recover. cases of typhoid fever in a building, the drain

The plaintiff thereupon moved age from which was conducted by defendant that the issues framed upon the second count to its filtration beds, which emptied into the be withdrawn from the jury. The court destream, was admissible in connection with evi. dence that the stream continued to be contam

clined to pass upon this motion, and called inated by the drainage after the use of the filter

upon the plaintiff to elect upon which count beds, to show the diminished value of the use of he would proceed to trial. The plaintiff. the farm of plaintiff and the diminished market

claiming to do so without waiving any right value of such use, without proof that the germs

to a trial of the issues framed under the of the disease actually reached the plaintiff's stream, or that the water was then used for second count, elected to proceed to trial to drinking purposes.

the jury upon the first count. The defendant Appeal from Superior Court, New Haven

objected to any reservation by the plaintiff County; Alberto T. Roraback, Judge.

of a right to a subsequent trial of the issues

framed under the second count. The court Action by Charles E. Gorham against the city of New Haven to recover damages for

required the plaintiff to make no other elec

tion than that above stated. After the verpolluting a stream on plaintiff's land by sewage, and also to recover a penalty for

dict and before judgment, the court, against violating an injunction granted in a previous

the' defendant's objection, permitted the action, restraining pollution of such stream.

plaintiff to amend the complaint by striking From a judgment for plaintiff for $2,300 on

out the second count, and the second claim

for relief. The defendant claims that by the first cause of action, defendant appeals. Affirmed.

these rulings the court enabled the plaintiff

to speculate upon the chances of recovering Leonard M. Daggett and James Kingsley

the penalty for a violation of the injunction Blake, for appellant. Henry G. Newton and

by subsequent proceedings under the second Ward Church, for appellee.

count, in case he should not be satisfied with

the amount which the jury might award HALL, J. The complaint, dated August | bim under the first count. 20, 1904, contained originally but one count. We are satisfied that the defendant was The second count was added by amendment not so prejudicially affected by these rulings April 28, 1905. The first count, as amended, as to entitle it to a new trial. They were in alleges, in substance, that ever since Novem effect favorable to the defendant. Assuming ber 7, 1899, the deferdant has polluted a that the defendant was entitled to have the stream running across the plaintiff's dairy | plaintiff elect upon which count he claimed farm by depositing therein the sewerage to recover, as to which no question is made from the "Springside Home,” where the poor before us, it is difficult to see how the deof New Haven are kept, and from the wash fendant has been injured or was placed at a house and piggery connected therewith, disadvantage by the fact that, in making his whereby the plaintiff has been unable to use election, the plaintiff attempted to reserve his farm for pasturage purposes, and has the right of a possible future trial of the is. been deprived of the benefit of it, and on ac sues raised under the second count. The count of which the profits therefrom have court did not decide whether or not the been reduced, and several of his animals plaintiff could reserve any such right by makhave died; that the defendant was enjoined ing the election in the form he did, nor was

it required to do so, nor to decide whether be shown that the discharge of sewage into there was a misjoinder of causes of action; the plaintiff's stream since November 7, 1999, the latter question being properly raised only was a continuation of the nuisance enjoined by demurrer. Practice Book, p. 50, $ 170. against by the judgment of that date. It is It may be said that it is possible that the unnecessary to discuss the admissibility of plaintiff would have elected to proceed un the memorandum of decision, as the court in der the second count had the trial court ex its charge withdrew it from the considerapressly ruled that an election to recover un tion of the jury. The testimony of Judge der either count would be a final relinquish Elmer in connection with the record of the ment of any right of recovery under the oth former action was admissible. Whether the er. But, even if the court ought to have re system of filtration which had been put into quired the plaintiff to make his election with operation would wholly prevent any future out condition or reservation, we ought not injury to the plaintiff from the drainage to grant a new trial merely to enable the de- complained of was an issue which the par. fendant to try again the issues raised under ties might properly have raised and have had the first count, which are now the only ones determined in the former case. As the recremaining in the case; nor would the mere ord does not show whether it was or not, possibility that the plaintiff, if required to extrinsic evidence was admissible to prove make upon another trial an unqualified that it was, if that fact was pertinent to any choice, might elect to proceed under the sec

of the issues in this case. Mosman v. Sanond count, justify us in setting aside the ford, 52 Conn. 23, 32; Supples v. Cannon, entire proceedings, including the withdraw 44 Conn. 424, 429. That it was so put in al of the second count, and restoring the par issue and decided, as testified to by Judge ties to the position they were in when the Eliner, was pertinent evidence upon the ques. plaintiff was ordered to elect. As a matter tion of punitive damages made in the present of law, the fact that the plaintiff in making case, although the record does not expressly his election as he did claimed that he might state that such issue was so made and deby subsequent proceedings recover under the cided in the first case, and although there second count did not render his election any was no other evidence than such record, and the less a final one, and there was no error such evidence of Judge Elmer that the dein permitting the second count to be after fendant knew that such issue was so deward withdrawn. The plaintiff was not en cided in the former case. Proof that the titled to recover under both counts. Such acts complained of in this case were a conremedy as he had of enforcing payment for tinuation of those prohibited by the injunchis own benefit of the penalty for the viola tion in the former action was evidence of tion of the injunction (Rogers Mfg. Co.'v. willfulness or gross negligence upon the part Rogers, 38 Conn. 121) was no longer open to of the defendant. Sutherland on Damages, him after a verdict under his election to go 8 1052; Paddock v. Somes, 51 Mo. App. 320. to the jury for the recovery of both actual Evidence of the extent of the milk business and punitive damages under the first count, carried on by the plaintiff on this farm bepor would it have been, even had the verdict fore the stream was contaminated, in conbeen for å less sum than the injunction nection with evidence of the amount of such penalty. To the extent that the two remedies, business possible during the period for which namely, an action for damages and an elec damages are claimed in the complaint, was tion to recover the injunction penalty for his admissible as tending to prove the diminish. own benefit, were open to the plaintiff, they ed value of the use of the farm from the acts were alternative remedies for the same in- complained of. jury, a recovery upon one of which barred Evidence that there were numerous cases all recourse to the other.

of typhoid fever in a building, the drainage The trial court admitted in evidence, from which was conducted by the defendant against the defendant's objection, the rec to the beds for filtering the sewage that ran ord of the former action between these par. into the plaintiff's stream, was also admisties, including the judge's memorandum of sible in connection with evidence that the decision, and the judgment of November 7, | plaintiff's stream continued to be contaminat1899, granting the injunction described in the ed by the drainage after the use of the filter first count of the complaint, and also admit. beds, as tending to prove both a diminished ted the testimony of Judge Elmer, who tried value to the plaintiff of the use of the farm and decided said action, that upon the trial and a diminished market value of such use, before him testimony was offered respecting even without further proof that the germs the efficiency of the filter beds, for the filtra of such disease actually reached the plaintion of sewage, which had been placed in tiff's stream, and although it appeared that operation after the commencement of said the water of the plaintiff's stream was not first action, and also the testimony of said then used for drinking purposes. Under such judge that the efficiency of such system was circum tances the plaintiff could neither be one of the issues contested and decided in expected to use such a stream for drinking that case. This evidence was admitted only purposes for his own cattle nor to be able to in support of the plaintiff's claim for punitive procure others to so use it. No objection was damages, and upon condition that it should made to this evidence upon the ground that

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