Clyma v. Kennedy

64 Conn. 310 | Conn. | 1894

Andrews, C. J.

We think the District Court erred in holding that justice Tuttle was disqualified to hear and determine the grand juror complaint for libel, by reason of interest. It was doubtless indecorous and unwise for him to try the 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-matter 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 interest in the proceedings. Commonwealth v. Keenan, 97 Mass., 589. 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 action has in it. All the cases ancient and recent are to this effect. Dr. Bonham’s Case, 8 Coke, *226, was an action brought by Thomas Bonham against George Turner and others for a false imprisonment; The defendants pleaded in bar the charter of the “ College or Commonalty of the Faculty of Physic in London,” by which it appeared that certain persons called the censors of that college, might summon before themselves any one who practiced physic, for examination, and on finding such person to be unskillful in such practice, impose a fine upon him, one moiety of which was to be paid to themselves; and alleged that the plaintiff had been so summoned and examined, and had been ordered to pay a fine of one hundred shillings, and that for the nonpayment of fine he had been arrested and imprisoned. Upon this plea the case says, p. *234:—“The censors cannot be judges, ministers and parties; judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfeiture ; quia aliquis non debet esse Judex in proprid causd, imo iniquum est aliquem sum rei esse judicem.” Day v. Savadge,,Hobart’s Rep., 85, 87, is of the same kind. These are the oldest cases found in the books. Recent ones are Bletcher v. Peck, 6 Cranch, 87, 133; Taylor v. Porter, 4 Hill (N. Y.), 146; Doolittle v. Clark, 47 Conn., 316; Parrott v. Housatonic R. R. Co., 47 id., 575; Dyer v. Smith, 12 id., 384. The case most strongly pressed by the plaintiff was Schroder v. Ehlers, 31 N. J. Law, 44. A statute of that State provided that certain trespasses to lands might be punished by a fine which went to the owner of the land. The defendant in the case was a justice of the peace and was the owner of the land on which such a trespass had been committed by the plaintiff. The defendant had arrested the plaintiff, brought him before himself and sentenced him to pay a fine. The case was a writ of error to reverse that judgment. In the course of the opinion the court says:—“ The entry upon the land in question was in no wise a breach of the peace, but a simple tort, of a civil character. Its punishment appertained not to criminal but to civil jurisdiction.” The judgment was reversed on the ground that the defendant was disqualified by interest from acting in the case. Cooley on Torts, 421. The cases of Rex v. Great Yarmouth, 6 B. & C., 646, and Rex v. Hoseason, 14 East, 605, cited by the plaintiff, are cases which, though criminal in form, are really civil in effect. In each of these cases the magistrate who tried it was the complainant, or moving party in the prosecution.

The complaint in the case before us alleges, as ground upon which damages were demanded, the arrest of the plaintiff on the warrant signed by justice Tuttle, and the detention before him, as well as the arrest on the mittimus, the being taken to jail, and the imprisonment there. We have shown that justice Tuttle had authority to issue the warrant, and to try the case and to pass sentence.

The District Court also found that the mittimus issued by justice Tuttle did not properly state the cause of commitment. From this finding there is no appeal. We think the mittimus was void, and that the plaintiff is entitled to recover damages for whatever was done under it. All the acts done by the defendants, or any of them, subsequent to the passing of the sentence, were unlawful, viz.-: the arrest of the plaintiff on the mittimus, the taking him to and the imprisonment in the common'jail. For these acts the plaintiff is rightfully entitled to demand and recover damages. It is altogether probable that the damages awarded by the trial court were assessed mainly for the acts last named. But there is no rule furnished in the record by which this court can determine. If there was such a rule there would be no need of a new trial in the case. This court could in such a case set aside that part of the judgment which was erroneous and affirm that part which was not erroneous. Stebbins v. Waterhouse, 58 Conn., 375; Sherwood v. Sherwood., 32 id., 15.

It appears that Kennedy drew up the mittimus. He participated in the unlawful acts for which the plaintiff is entitled to recover damages. The judgment properly went against him.

There must be a new trial, but it should be limited solely to the assessment of damages.

There is error and a new trial is granted. The new trial to extend only to the assessment of damages as herein indicated.

In this opinion the other judges concurred.