17 Conn. 402 | Conn. | 1845
The first question in this case, is, whether Jonathan Branch was a competent witness for the plaintiff.
The defendant concedes, that he was not interested in the event of the suit, not being entitled to any portion of the damages which might be recovered, nor liable to the plaintiff, if she failed to recover. But he claims, that the witness was
Nothing appears in the motion as to the-interest or estate of the plaintiff in the premises to which the injury is alleged to have been committed, excepting that, the witness being the owner thereof, the plaintiff erected the mill thereon, by his licence and permission, and ever since the erection of it, used and occupied it, in the same manner as if she was the owner thereof. It is insisted by the defendant, that such licence, in connexion with such use and occupation, conferred on the plaintiff a leasehold estate at will, and created the relation of landlord and tenant between them ; and therefore, that there was such a privity of interest that the rule of evidence founded on such privity, is applicable to this case.
There is no doubt that any words which are sufficient to denote the intention of the parties that one shall divest himself of the possession of land, and the other come into it, are enough to constitute, and will in legal construction amount to, a lease, as effectually as if the most apt 'and pertinent words had been used for that purpose, provided the transaction does not want, in any other respect, the constituents necessary to make a lease ; and it is immaterial whether the words are in the form of a licence, covenant or agreement. Bac. Abr. tit. Leases, &c. K. Evans v. Thomas, Cro. Jac. 172. Hall v. Seabright, 1 Mod. 14. Thus, if one “licence” another to enjoy such a house or land from such a time to such a time, it is a lease. Bac. Abr. ubi supra. So if one “ licence” another to inhabit, or to come upon his dock and carry on his trade, it amounts to a lease. Right d. Green v. Proctor, 4 Burr. 2209. Anon. 11 Mod. 42. But such language does not necessarily, and independent of any thing more to show that there was a contract between the parties, constitute a lease. A lease is more than a mere licence ; it is a contract for the possession and profits of lands and tenements on the one side, and a recompense of rent or other income on the other; or, in other words, a conveyance to a person for life, or years, or at will, in consideration of a return of rent or other recompense. 4 Cruise’s Dig. 67. Jackson d. Webber & al. v. Harsen & al. 7 Cow. R. 326. 3 Blk. Com. 317. If, therefore, the words, whatever they may be, which confer authority to another to take possession of land, are not accompanied with
The relation of the plaintiff to the witness would, at the utmost, be that of a mere servant, although it is difficult to perceive how even such a relation would be created by a mere licence, at least any further than to affect the owner by acts authorized by such licence, as having been done by his permission and authority, and in law consequentially by himself. Viewed in this the most favourable light for the defendant, the question would be, whether a master, in an action brought by his servant, in which the former has not assumed, and is not bound to assume, the prosecution of the suit, and is not interested in any damages which may be recovered, and where there can be no liability over by the former, if the latter should fail to recover, is a competent witness for the servant. The answer must depend on whether the record in the suit could be used as evidence, in another suit, by the master in his favour, or by the defendant against him. The only case, which gives any semblance to the claim that such record would be admissible in a subsequent suit to which the master is a party, is Kinnersly v. Orpe, 2 Doug. 517., where, in an action for trespass in the plaintiff’s fishery, a verdict for the plaintiff in a former action against one who had justified as the servant of one Cotton, although held not to be conclusive, was admitted as evidence against the defendant, upon its appearing that the defendant had also acted by the command of said Cotton. The authority of this case has been much questioned. Mr. Phillipps, in his treatise on Evidence, says, that it is not easy to reconcile it with the general rules of evidence. The correctness of the decision is strongly doubted, by Lord Ellenborough, in Outram v. Morewood, 3 East,
With respect to the testimony of Smith, we think that the court below properly left it to the jury to determine whether it proved, that, during the three years when he tended the mill, he occupied as tenant of the plaintiff, or jointly with her, or as her servant. It does not appear for which of the parties he was called as a witness; nor at the instance of which party his testimony, as detailed, was given ; nor whether it was elicited on his direct or cross examination, or both. We are aware of no principle, which required the court, as matter of law, on the circumstances stated by him, to determine as to the character in which he occupied the mill. Those circumstances were only evidential of the character of his occupation, and were therefore proper to be submitted, not to the court, but to the jury, for them to weigfi them, in connexion with the credit due to the witness, and to determine the main fact in controversy between the parties, to which that testimony applied, in regard to the character of such occupation.
The defendant claims, that the jury should have been instructed, that if they found that, during a part only of the time when the land was overflowed by the defendant, the plaintiff
On the question whether, as to that portion of the time embraced in the declaration, when the plaintiff was a joint owner with Smith, a plea in abatement could have been properly interposed by the defendant, and the writ abated as to the cause of action relating to that time, for the non-joinder of Smith, we have been referred to no authorities. According to the general rules which prevail as to pleas in abatement, there appears to be no substantial objection to a plea of that description as to that portion of the time ; nor are we aware of any technical difficulty which prevents it; and it would be manifestly unjust to allow a plaintiff, by uniting in his declaration causes of action in favour not only of himself alone, but also of himself and another person, to prevent the defendant from availing himself, by the only appropriate plea, of the objection that the latter was not made a party plaintiff, in the same manner, and to the same extent, as he might have done, if the suit were only for a single cause of action in which both were jointly interested, ft is a well established principle in pleading, that when a cause of action is divisible, the writ
The cause of action stated in the declaration, in the case before us, is clearly in its nature divisible, the time during which the injury is alleged to have been committed being separable ; and if, as to any particular portion of that time, any legal exception exists in regard to the mode of bringing the action, there seems to be no objection to the defendant’s taking advantage of it, by plea in abatement, nor any difficulty in that course. If this be so, the ground on which the defendant claims that he should have had the advantage of it on the trial, in the manner attempted, fails ; since he should have pleaded the non-joinder of Smith in abatement, as would be required in the ordinary case of an omission to join the necessary plaintiffs.
If, however, it were not competent for the defendant to avail himself, by a plea in abatement, of the non-joinder of all the joint owners as to that portion of the time when the plaintiff was not solely in possession, we should not think ourselves called on, in the exercise of a just discretion, to grant a new trial, under the circumstances of the present case. The reason why it is held to be necessary to join all the joint tenants or tenants in common, in actions of this description, is, that the defendant may not be harassed, by the several joint owners, with a multiplicity of suits for the same cause. Applying the reason of that rule to this case, it is obvious, that the defendant has suffered no injury, by the course taken on the trial, where only the plaintiff’s proportion of the damages sustained, was awarded by the jury. If it were true, as claimed by the defendant, that during a portion of the time when the injury was committed, the plaintiff was a joint owner or occupier of the premises with Smith, the defendant would
The defendant claimed on the trial, that it was necessary for the plaintiff to prove a request from her to the defendant to reduce the height of the dam in question. This point, however, has not been pressed before us, nor has any authority in support of it been adduced. This case clearly does not fall within the principle established in Johnson v. Lewis, 13 Conn. R. 303. where the darn causing the obstruction complained of, was erected, not by the defendant, but by his grantor. In the present case, It was erected and continued, by the defendant himself, who therefore was the originator of the injury.
We think, that the defendant has no reason to complain of the manner in which the question, as to the effect on the water of the temporary and main dams, was submitted to the jury. The question made was, whether the discharge of the water through an aperture in the main dam. while the defendant was erecting the West part thereof, so that, during that time, it did not flow over, or rise to the height of, the East side of the dam. constituted such a cessation or interruption of the defendant’s use or enjoyment as prevented him from connecting that time with the time during which the water was actually raised to the height of the dam, for the purpose of making out the requisite period of time in order to presume a grant to the defendant to maintain the water to the height of the dam. The charge of the court below gave
The superior court is therefore advised, that a new trial should not be granted.
New trial not to be granted.