Waterbury v. Inhabitants of Darien

Williams, J. It is claimed, that the petition is insufficient, because although it avers that the select-men have neglected and refused to make the road, though specially requested, on the 3rd of January 1831, at Darien; yet.it does not aver by whom requested : and it is said, not only time and space must be specified, but the person by whom it is done must also be named. The petitioners contend, that however this may be, here a request is alleged ; and that the omission of time or manner is only a subject of special demurrer: That here there was not even a general demurrer, for this was waived ; and if there be a defect, it is cured by the judgment. They also claim, that no such averment was necessary. In a former case between these parties, there was no allegation that the select-men had neglected or refused to lay out a highway ; nor did it appear, that any application was made to them. This was held to be insufficient. Waterbary v. Darien, 8 Conn. Rep. 182. To avoid this error, the draftsman has now not only averred, that the select-men have neglected and refused, but that a special demdnd was made upon them., at a certain time and place. It is now claimed, that he should have gone farther, and shown by whom it was made. I think he has done, already, more than he was bound to do; and that the allegation of a special demand was unnecessary and may be rejected. The legislature did not intend, that the courts should be troubled with the regulations of the affairs of towns unnecessarily ; but authorized their interference, when the agents of the town neglected their duty. The charge that the selectmen neglected and refused is sufficient to give the county court a right to act. It is said, that neglect implies something more than mere omission ; otherwise the bare fact that there was no road, would prove neglect, and so the allegation would be useless. That the statute intended something more than omission, i. do not doubt; and something more than omission must be proved. But it does not therefore follow, that a formal request must be made. The attention of the select-men may be called to the subject; and by a suggestion of one of their own number,— by a vote of the town authorizing them to examine and report, or upon a hiqt from one of the petitioners, they may have examined the proposed route, and omitted to do any thing regarding it. In these and many other ways, enough may be shown, it [265] is apprehended, to satisfy the Court, that they neglected to lay out the road, though it cannot be shown, that they were ever. requested, in terms, to do it. The demand, like a demand to prove a conversion, is one step in the progress of the proof; is one mode of making out the principal fact; but it is but one mode ; and I see no more reason for alledging a demand in one case, than in the other. But if a request was necessary, a request is stated. It is not indeed shown, by whom it was made. This, as well as time and place, is an omission rather of form than of substance ; and although imperfectly stated, yet the principal fact being stated, it will be presumed, after the facts are found, that the circumstances important to the principal one, were proved. At most, the omission amounts to an incomplete or defective statement; and is cured by verdict, or by a finding of the facts by the court, as in this case. 1 Chit. Plead. 402. 1 Day 186. n. c. 1 Wms. Saund. 228. a. & seq. 1 Johns. Rep. 469. The respondents also claim, that a demurrer was entered, upon which no judgment was ever given. The form of the plea was, that the facts were not true nor sufficient. Without adverting to this singular mode of pleading, I would remark, that when the parties under such a plea go on to try the facts, it is pretty strong evidence that the demurrer is not insisted on; as in King v. Lacey, 8 Conn. Rep. 499. But upon this record the court find, as a matter of fact, that the defendants did not insist on the demurrer ; and so no decision was made thereon. And is a judgment to be reversed, because a point was made in the court below, which was expressly waived, — or which the party so conducted with, that the court find it was not insisted on ? This can mean nothing less than that it was waived. And it has been well remarked, by an eminent jurist: “A court below cannot be said to have committed an error, when their judgment was never called into exercise, and the point of law was never taken into con-«¡deration, but was abandoned by acquiescence or default of the party who raised it.” Per Rent, Chancellor, in Gelston v. Hoyt, in error, 13 Johns. Rep. 577. Again, it was urged, that the committee were allowed to take back and amend their report. It seems, that the report was made at April term, and the court adjourned until June, when the report, Upon application of the committee themselves, was handed back to them to make an alteration therein ; and [266] the alteration so made was of a clerical mistake of the corn- . , „ . . , , , . ; and was in conformity with the actual survey. As an adjourned court is considered part of the original term, it must stand upon the same ground«as if made at the April term. Fellows v. Carpenter, Kirb. 364. Commonwealth v. Sessions of Norfolk, 5 Mass. Rep. 435. In Massachusetts, the court have allowed a general verdict, given at a previous term, to be applied to a particular count only, upon the certificate of the judge. Barnard v. Whiting & al. 7 Mass. Rep. 358. Without saying that this amendment could be made at a different term, I see no reason to doubt why the court, in this stage of the cause, might not suffer this alteration to be made. The cause was before the court; a-clerical error was discovered ; and whether it was made by the parties in their pleadings, or by the clerk in his entries, no rule of law is shown, which forbids its correction. It is true, the papers may have been delivered, by the committee, to the court. Nothing further could be done, by the committee, without the approbation of the court. But as the court must have had the power to recommit the report, they must have had the power to recommit it, for a certain specified object; and if for any purpose, the correction of a clerical error was one of the least objectionable. The petitioners claimed, that this was not a subject of a writ of error. It is not necessary to settle that question. But it seemed to me to differ from questions of amendment under our statutes, which depend upon the sound discretion of the court. It seems rather a question, whether the court had power to repossess the committee of this report; and if they had no such power, and attempted it, I do not see why tiieir opinion should not be a subject of revision in the superior court. ■ Another question was made as to the admission of certain testimony. A witness was offered to prove, that six years before, an inhabitant of the town, but not a petitioner, requested the then select-men to lay out the road ; and shortly before the petition was brought, another inhabitant, but not a petition-: er, requested it of one of the present sclect-men, but did not inform them that he was acting at the request of a petitioner, The remarks before made, shew, that any evidence from which the court might fairly infer neglect, on the part of the select-turn, was proper. The evidence was of that character, and was properly admitted, [267] Other causes of error were assigned, but were not insisted on. .... .... I am of opinion that the original judgment was correct, . and that there is manifest error in the judgment complained of. The other Judges were of the same opinion, except Bissell, X who gave no opinion. Judgment reversed.