that the rule of damages in this class of cases does not concern itself with the amount of the estate, or the size of the expected inheritance. The only legitimate purpose of the testimony before you lies in its claimed tendency to corroborate the claim of the plaintiff that the deceased as a man living quite alone and in possession of a competence expected to, and understood that he was expected to, pay for such services as the plaintiff may have rendered. It must have no effect beyond this in any event. The value of the services, if you come to that, is a matter to be determined quite apart from the size or value of the estate." (3) One Frank Law. rence, a nephew and heir at law of the decedent, was offered as a witness by the defendants. He testified at length as to his acquaintance with his uncle during the latter's last years and as to his uncle's methods of life, and said that on his visits to his uncle he had never observed that he was being materially assisted or cared for by any one, and that he had not seen the plaintiff in attendance upon his uncle. He was not asked to give an opinion as to the value of the plaintiff's claimed services. The plaintiff was a witness on rebuttal, and in her direct examination testified that since the decedent's death she had had a conversation with Frank Lawrence regarding his uncle and in regard to her services for him. She was then asked: "Won't you tell the jury what it was?" To this question the defendants objected, on the ground that the conversation was not binding upon the administrators. It was claimed by the plaintiff as showing bias in the witness Lawrence. The court admitted the question, the defendants duly excepting. The witness answered: "I told him I was going to put in a claim, and he said: 'All right.' I told him I didn't want him to kick over it. I said: "You know I have taken good care of your uncle, and I want my pay for it.' And he said: 'All right.' He said: 'I won't kick over your claim, if you don't kick over what I get.' I said: 'I have nothing to do with what you get. All I am looking for is what belongs to me." In the charge the court cautioned the jury in respect to this testimony as follows: "As to certain statements made by Lawrence, the nephew, to the plaintiff, after the elder Lawrence's death, you will be careful to remember, as I cautioned you when this testimony was admitted, that no statement of this witness Lawrence is of weight as tending to bind the estate, and his statements are admitted here only for the limited purpose of affecting his credibility as a witness, and it is for you, of course, to say whether they have any weight in that direction."

William E. Thoms, for appellants. Ulysses G. Church, for appellee.

HAMERSLEY, J. (after stating the facts). The first exception is not well taken. It appearing that the plaintiff and Lawrence, the

defendants' intestate, had stood in the same relations to each other for 16 years, the fact that at the commencement of these relations Lawrence asked the plaintiff to look after him and take care of him is not irrelevant to the fact that during the last 6 years of this period the services of the plaintiff in taking care of Lawrence were rendered at his request. Whether or not the relevancy should be deemed too remote to be material, under all the circumstances of the case, was within the discretion of the trial judge, and the record does not indicate that this discretion was abused.

For similar reasons the second exception is not well taken. The fact that Lawrence possessed a modest competence, in connection with other facts, is not wholly irrelevant to the fact that Lawrence requested the plaintiff to perform for him the general duties of a housekeeper and nurse, promising to pay her the reasonable value of such services, nor to the fact that for six years she performed these services without insisting upon payment. The expression of the judge at the time this testimony was admitted of his belief that in another case a similar question had been admitted as possibly bearing on the value of the services, if in any event it could be regarded as harmful, was certainly harmless in view of the charge of the court upon this point.

The third exception is not well taken. The testimony of Frank Lawrence was to the effect that during his visits to his uncle the plaintiff had rendered the latter no assistance, and that, so far as he knew, his uncle during his last years had not been assisted or cared for by any one. The testimony of the plaintiff admitted in rebuttal tended to show that the younger Lawrence did know that the plaintiff had taken care of his uncle. If it did not show this, its admission in connection with the charge of the court was harmless.

This appeal illustrates the necessity of calling attention to a seeming misconception as to the relative duties of a trial court and Court of Errors in respect to the application of the law of evidence to the peculiar conditions that may be developed in a trial. Strictly speaking, the law of evidence is a part of the law of procedure, and harmless error in its application in the course of a trial is not ground for new trial. In the main, its appliIcation to the circumstances of each case is a duty necessarily allotted to the trial court, and in most instances the judge conducting a trial is in a far better position to settle justly a doubtful application than a Court of Errors reading the printed record. The rule of logic or theory of chances which determines the relevancy of evidence must in nearly all cases of doubtful application be understood in connection with conditions and circumstances peculiar to the case on trial, evanescent in their character and difficult of adequate apprehension unless by the presiding

judge. Appeals to this court based on alleged mistakes of the trial judge in the exercise of his power and discretion in determining such doubtful questions of relevancy and remoteness must ordinarily prove futile. To entertain and discuss all such appeals would tend to promote prolixity, uncertainty, and injustice in trials, and to obscrue rather than make clear the practical duties of the trial court; and for this court to set aside judgments and compel new trials for such immaterial or academic reasons would tend to defeat rather than to serve the administration of justice.

There is no error in the judgment of the superior court. In this opinion the other Judges concurred.

(79 Conn. 682)

FINCH v. BURR et al.

(Supreme Court of Errors of Connecticut. May 1, 1907.)

FORCIBLE ENTRY AND DETAINER-GROUND of ACTION-IRREGULAR EXECUTION.

After a judgment of foreclosure and the expiration of the time for redemption, the mortgagee was put in possession of the premises by the voluntary act of the mortgagor, and then died. The mortgagor returned, and the administrator of the mortgagee, finding him in possession, and the execution of the judgment not appearing on the records of the court, had the attorney who had obtained the foreclosure to procure and have served a writ of execution in ejectment founded on the foreclosure judgment. The clerk who issued it did not know of the mortgagee's death, and consequently that his attorney was no longer entitled to the writ. The attorney, although he knew of his client's death acted in good faith in the matter. Held that, although it was both a misuse of process and the use of an irregular process, the writ was not absolutely void, and the administrator was not liable to an action of forcible entry and detainer for causing its service.

Appeal from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge.

Action by George M. Finch against Gilbert B. Burr and others. From a judgment for defendants, plaintiff appeals. Affirmed. Howard W. Taylor, for appellant. Samuel A. Davis, for appellees.

BALDWIN, C. J. The complaint alleges that the defendant Burr, as administrator of the estate of John P. Keeler, deceased, forcibly put the plaintiff out of possession of certain lands, and, with the other defendants, is keeping him, with a strong hand, out of possession of them.

The material facts are these: The plaintiff on December 26, 1905, was occupying the premises as his homestead. He had mortgaged them to Keeler, who had obtained a decree of foreclosure, and that day was the last on which he could redeem. He did not redeem, but on that day sold part of his furniture to one Durgy, and Durgy hired the premises from Keeler and moved in, with the plaintiff's consent. The plaintiff a few days afterward left the premises, not intending to return to the state. A month later he did

return, and Durgy sublet to him four rooms. Durgy's lease expired April 1, 1906, and on that day he moved out, but the plaintiff did not and proceeded to extend his possession to the entire house. Keeler had died on March 24th. On April 7th Burr was appointed administrator of his estate, and retained an attorney to put the plaintiff out. The attorney was the same who had obtained the foreclosure, and had previously, on April 5th, procured from the clerk of the court the issue of a writ of execution in ejectment, founded on the foreclosure judgment. This execution he now had served, and the plaintiff was forcibly ejected upon it. The administrator thereupon let the premises to the two other defendants, who went into possession under the lease. There was no evidence of any use of "force and strong hand" except in serving the execution. It is plain, therefore, that judgment was properly rendered for the two defendants who came in later as tenants under the administrator. The administrator himself was liable to the action if he procured the dispossession of the plaintiff with force and strong hand, without other warrant than a void writ. The judgment in favor of Keeler was for two things-a foreclosure and possession. By force of it be fore his death Finch's equity of redemption had been forever extinguished. The judgment for his dispossession provided for a stay of execution until January 5, 1906. Before that time Finch removed from the premises and from the state, turning over the possession to Durgy. Durgy, having hired them from Keeler, must be deemed to have taken possession for him. The judgment was therefore fully executed before Keeler died. Nevertheless, as its execution did not appear on the records of the courts, it remained the prima facie duty of the clerk to issue final process on demand of the plaintiff's attorney. The attorney who demanded it had, in fact, ceased to be the plaintiff's attorney by reason of the plaintiff's death. He acted, however, it is found, in good faith, and, while he knew of this death, the clerk, so far as appears, did not.

An execution issued upon a judgment satisfied in fact, but not of record, is not void, although the defendant in the action may have preventive relief against its service, and if it should be served by the plaintiff's direction, with knowledge of the facts and malicious intent, there will be a liability to respond in damages. Luddington v. Peck, 2 Conn. 700. The same principle must govern when an execution is issued on a judgment in favor of a dead man; the death not having been suggested upon the record, and not being in fact known to the clerk of the court. The sheriff who, acting in good faith, may serve it, is no trespasser. He has a process valid upon its face. The party who put the execution in his hands, if acting in good faith, is also no trespasser. While the proper

method of proceeding for Burr as the administrator of Keeler's estate would have been to sue out a scire facias, his failure to pursue that course was but an irregularity. Had it been an execution to collect a sum of money, and the officer had collected the money and made return accordingly, the judgment, according to a decision of the superior court in the eighteenth century, would have been discharged. Worthington v. Hosmer, 1 Root, 192. A judgment is not annulled by the death of the judgment creditor. Whether the state sees fit still to enforce it in his name, or in that of his personal representatives, and whether in the latter case a preliminary writ should first be applied for, is a matter of mere form. The whole law of executors and administrators is bound up in the legal fiction that their title relates back to the moment of the death of him whom they represent, and that through them his personality, for certain purposes, is prolonged. To make this the more effectual, courts have never hesitated, in case of the death, pending suit, of a party to the action, to date back some of the steps in the proceeding so as to make them appear to have been taken before they were. Had the judgment in Keeler's favor been rendered after his death, on a hearing had while he was in life, it would have been fully effectual if entered nunc pro tunc. So, under the English practice at common law, if an execution bore tests of a date before the plaintiff's death, on which it might lawfully have been granted, it was of force, although not issued until after that event. Center v. Billingshurst, 1 Cow. 33. Forms of proceeding for the accomplishment of justice, whether through the use of a legal fiction or of particular kinds of judicial processes are but means to an end. They are not so essential to its attainment that every departure from them makes what is done a nullity. In the case at bar, after a judgment for possession, the plaintiff had been put in possession by the voluntary act of the defendant, and had then died. The administrator upon his estate, having subsequently found the original defendant again in possession, employed an attorney to eject him, and the attorney proceeded to do so, under an execution on the satisfied judgment. It was both a misuse of process and the use of an irregular process, but neither of these facts rendered the writ absolutely void. Reynolds v. Corp, 3 Caines, 267, 273; Day v. Sharp, 4 Whart. 339, 34 Am. Dec. 509; Hughes v. Wilkinson, 37 Miss. 482; Jenness v. Circuit Judge, 42 Mich. 469, 4 N. W. 220. The plaintiff, while conceding the actual good faith of Burr in using the execution to dispossess him, contended that it was not good faith in law. This apparently rests upon the claim that the facts found exclude the possibility of such good faith as would constitute any legal defense to the action. Burr's knowledge that Keeler was dead was not legally inconsistent with his honest be

A misjoinder of causes of action can be properly raised only by demurrer as provided by Practice Book, p. 50, § 170.

[Ed. Note. For cases in point, see Cent. Dig. vol. 39, Pleading, § 435.]

2. APPEAL-CAUSES OF ACTION-ELECTION— PREJUDICE.

Plaintiff sued in one count to recover damages for the pollution of a water course, and in another to recover a penalty of $1,000 for defendant's violation of an injunction prohibiting such pollution. Before any evidence was introduced plaintiff was compelled to elect on which cause he would proceed, and elected the first count, "without waiving any right to a trial on the issues framed under the second." Defendant's objection to this reservation was overruled, and after verdict plaintiff was permitted, over objection, to amend the complaint by striking out the second count. Held that, a verdict having been rendered in excess of the penalty sued for in the second count, defendant was not prejudiced by such reservation, because, if the court had not permitted it, plaintiff might have elected to have proceeded on the second count.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4077, 4079.] 3. PLEADING COUNTS ELECTION DRAWAL.

--

WITH

Where plaintiff, having alleged a cause of action for damages in two counts, on being compelled to elect on which he would go to trial, chose the first, such election was none the less final because he attempted to attach a reservation that he did not waive any right to a trial on the issues framed under the second count. Hence the court did not err in permitting plaintiff to withdraw the second count after verdict. 4. JUDGMENT-ALTERNATIVE REMEDIES-CON

CLUSIVENESS.

Plaintiff sued in two counts, the first to recover actual and punitive damages sustained by pollution of a water course, and the second to recover a penalty for defendant's violation of an injunction restraining the same acts. On the trial plaintiff, pursuant to an order to elect, elected to proceed on the first count, and recovered judgment in excess of the injunction penalty. Held, that such remedies were alternative, and that, plaintiff having recovered on the first count, his judgment barred an action to recover the penalty.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, § 1106.]

5. WATER COURSES- POLLUTION DAMAGES EVIDENCE.

PUNITIVE

In an action for damages for the pollution of a water course, the record of a former injunction suit brought to restrain the same acts and the judge's testimony respecting the efficiency of certain filter beds installed for the

filtration of defendant's sewerage, after the commencement of the first action, were admissible, as bearing on plaintiff's right to recover punitive damages.

6. JUDGMENT-RECORD-ISSUES EVIDENCE.

Where, in an action for pollution of a water course, the record of a former suit to restrain the same acts was introduced, but did not show whether defendant's system of filtration would wholly prevent any future injury to plaintiff, was raised or determined in the prior action, testimony of the judge who tried the same that such question was within the issues and decided was admissible.

[Ed. Note. For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1823, 18241⁄2.]

In an action for pollution of a water course running through plaintiff's dairy farm, evidence of the extent of the milk business that plaintiff conducted on the farm before the stream was polluted, in connection with evidence of the amount of such business possible during the period for which damages were claimed, was admissible to prove the diminished value of the use of the farm from the acts complained of.

[Ed. Note. For cases in point, see Cent. Dig. vol. 48, Waters and Water Causes, § 65.] 8. SAME.

Evidence that there had been numerous cases of typhoid fever in a building, the drainage from which was conducted by defendant to its filtration beds, which emptied into the stream, was admissible in connection with evidence that the stream continued to be contaminated by the drainage after the use of the filter beds, to show the diminished value of the use of the farm of plaintiff and the diminished market value of such use, without proof that the germs of the disease actually reached the plaintiff's stream, or that the water was then used for drinking purposes.

Appeal from Superior Court, New Haven County; Alberto T. Roraback, Judge.

Action by Charles E. Gorham against the city of New Haven to recover damages for polluting a stream on plaintiff's land by sewage, and also to recover a penalty for violating an injunction granted in a previous action, restraining pollution of such stream. From a judgment for plaintiff for $2,300 on the first cause of action, defendant appeals. Affirmed.

Leonard M. Daggett and James Kingsley Blake, for appellant. Henry G. Newton and Ward Church, for appellee.

HALL, J. The complaint, dated August 20, 1904, contained originally but one count. The second count was added by amendment April 28, 1905. The first count, as amended, alleges, in substance, that ever since November 7, 1899, the defendant has polluted a stream running across the plaintiff's dairy farm by depositing therein the sewerage from the "Springside Home," where the poor of New Haven are kept, and from the washhouse and piggery connected therewith, whereby the plaintiff has been unable to use his farm for pasturage purposes, and has been deprived of the benefit of it, and on account of which the profits therefrom have been reduced, and several of his animals have died; that the defendant was enjoined

The

against the further pollution of said stream by a judgment of the superior court rendered November 7, 1899, and has since willfully and wantonly continued such pollution. second count sets forth the record of said former action in the superior court between the same parties, including the judgment rendered November 7, 1899, enjoining the defendant, under a penalty of $1,000, against further polluting said stream by causing or permitting any of said sewerage or drainage to flow into it, and alleges a violation of said injunction. The complaint asks for $10,000 as the damages, "including exemplary damages," sustained by the acts described in the first count, and $1,000 "being the penalty of the injunction set forth in the second count." Demurrers to the second count and to said prayers for relief having been overruled (which rulings are not made reasons of appeal), and, the defendant having filed its answer to both counts, the court, upon the defendant's motion, before any evidence was introduced, ordered the plaintiff to elect upon which count of the complaint he sought to recover. The plaintiff thereupon moved that the issues framed upon the second count be withdrawn from the jury. The court declined to pass upon this motion, and called upon the plaintiff to elect upon which count he would proceed to trial. The plaintiff. claiming to do so without waiving any right to a trial of the issues framed under the second count, elected to proceed to trial to the jury upon the first count. The defendant objected to any reservation by the plaintiff of a right to a subsequent trial of the issues framed under the second count. The court required the plaintiff to make no other election than that above stated. After the verdict and before judgment, the court, against the defendant's objection, permitted the plaintiff to amend the complaint by striking out the second count, and the second claim for relief. The defendant claims that by these rulings the court enabled the plaintiff to speculate upon the chances of recovering the penalty for a violation of the injunction by subsequent proceedings under the second count, in case he should not be satisfied with the amount which the jury might award him under the first count.

We are satisfied that the defendant was not so prejudicially affected by these rulings as to entitle it to a new trial. They were in effect favorable to the defendant. Assuming that the defendant was entitled to have the plaintiff elect upon which count he claimed to recover, as to which no question is made before us, it is difficult to see how the defendant has been injured or was placed at a disadvantage by the fact that, in making his election, the plaintiff attempted to reserve the right of a possible future trial of the issues raised under the second count. The court did not decide whether or not the plaintiff could reserve any such right by making the election in the form he did, nor was

it required to do so, nor to decide whether there was a misjoinder of causes of action; the latter question being properly raised only by demurrer. Practice Book, p. 50, § 170. It may be said that it is possible that the plaintiff would have elected to proceed under the second count had the trial court expressly ruled that an election to recover under either count would be a final relinquishment of any right of recovery under the other. But, even if the court ought to have required the plaintiff to make his election without condition or reservation, we ought not to grant a new trial merely to enable the defendant to try again the issues raised under the first count, which are now the only ones remaining in the case; nor would the mere possibility that the plaintiff, if required to make upon another trial an unqualified choice, might elect to proceed under the second count, justify us in setting aside the entire proceedings, including the withdrawal of the second count, and restoring the parties to the position they were in when the plaintiff was ordered to elect. As a matter of law, the fact that the plaintiff in making his election as he did claimed that he might by subsequent proceedings recover under the second count did not render his election any the less a final one, and there was no error in permitting the second count to be afterward withdrawn. The plaintiff was not entitled to recover under both counts. Such remedy as he had of enforcing payment for his own benefit of the penalty for the violation of the injunction (Rogers Mfg. Co. v. Rogers, 38 Conn. 121) was no longer open to him after a verdict under his election to go | to the jury for the recovery of both actual and punitive damages under the first count, nor would it have been, even had the verdict been for a less sum than the injunction penalty. To the extent that the two remedies, namely, an action for damages and an election to recover the injunction penalty for his own benefit, were open to the plaintiff, they were alternative remedies for the same injury, a recovery upon one of which barred all recourse to the other.

The trial court admitted in evidence, against the defendant's objection, the record of the former action between these parties, including the judge's memorandum of decision, and the judgment of November 7, 1899, granting the injunction described in the first count of the complaint, and also admitted the testimony of Judge Elmer, who tried and decided said action, that upon the trial before him testimony was offered respecting the efficiency of the filter beds, for the filtration of sewage, which had been placed in operation after the commencement of said first action, and also the testimony of said judge that the efficiency of such system was one of the issues contested and decided in that case. This evidence was admitted only in support of the plaintiff's claim for punitive damages, and upon condition that it should

be shown that the discharge of sewage into the plaintiff's stream since November 7, 1899, was a continuation of the nuisance enjoined against by the judgment of that date. It is unnecessary to discuss the admissibility of the memorandum of decision, as the court in its charge withdrew it from the consideration of the jury. The testimony of Judge Elmer in connection with the record of the former action was admissible. Whether the system of filtration which had been put into operation would wholly prevent any future injury to the plaintiff from the drainage complained of was an issue which the parties might properly have raised and have had determined in the former case. As the record does not show whether it was or not, extrinsic evidence was admissible to prove that it was, if that fact was pertinent to any of the issues in this case. Mosman v. Sanford, 52 Conn. 23, 32; Supples v. Cannon, 44 Conn. 424, 429. That it was so put in issue and decided, as testified to by Judge Elmer, was pertinent evidence upon the question of punitive damages made in the present case, although the record does not expressly state that such issue was so made and decided in the first case, and although there was no other evidence than such record, and such evidence of Judge Elmer that the defendant knew that such issue was so decided in the former case. Proof that the acts complained of in this case were a continuation of those prohibited by the injunction in the former action was evidence of willfulness or gross negligence upon the part of the defendant. Sutherland on Damages, § 1052; Paddock v. Somes, 51 Mo. App. 320. Evidence of the extent of the milk business carried on by the plaintiff on this farm before the stream was contaminated, in connection with evidence of the amount of such business possible during the period for which damages are claimed in the complaint, was admissible as tending to prove the diminished value of the use of the farm from the acts complained of.

Evidence that there were numerous cases of typhoid fever in a building, the drainage from which was conducted by the defendant to the beds for filtering the sewage that ran into the plaintiff's stream, was also admissible in connection with evidence that the plaintiff's stream continued to be contaminated by the drainage after the use of the filter beds, as tending to prove both a diminished value to the plaintiff of the use of the farm and a diminished market value of such use, even without further proof that the germs of such disease actually reached the plaintiff's stream, and although it appeared that the water of the plaintiff's stream was not then used for drinking purposes. Under such circumstances the plaintiff could neither be expected to use such a stream for drinking purposes for his own cattle nor to be able to procure others to so use it. No objection was made to this evidence upon the ground that