25 Conn. 556 | Conn. | 1857
Several questions have been discussed which we have no occasion to decide and shall pass them, confining ourselves to two objections which are decisive against the correctness of the judgment below.
And the first is, that the judge ruled that the defendant’s counsel should not inquire of the plaintiff’s witness the character, height and condition of a certain fence. The witness had testified in chief that the plaintiff's lot was inclosed by a fence, well and substantially erected, partly of stakes and poles and partly of stones, but he knew not its height, having never measured it. Upon his cross-examination he was inquired of, how the fence in the above particulars compared with another which stood close by on the other side of the highway. The judge, on objection taken, ruled that the inquiry was irrelevant and would raise a collateral issue and rejected it. We think that he erred in so ruling.
Testimony is not irrelevant because it is comparative. This may be and often is the very best and only evidence the case admits of; and if otherwise, yet, it may be entirely appropriate and satisfactory. The judge will see that the in
Suppose we wish to know the height of a building, may we not compare it with a building or tower near by, the height of which has been measured and is known ? So the quality or durability of materials, wood, marble, stone and iron, may be ascertained by comparison ; so also the capacity and adaptedness of machinery or mechanics’ tools. Indeed, much of all that testimony which is derived from analogy or experience, is of this nature. If the inquiry is kept within reasonable bounds, this is satisfactory testimony, and just such as governs mankind in the daily transactions of life. In this view of the evidence, we think the inquiry was proper, and that the court erred in holding otherwise.
As to the by-law of the town of Milford, wé think it should not have been rejected because of the want of proof aliunde that the town meeting was warned specially for that purpose. Such warning may be necessary and wé believe it is, but we think the record of the town clerk is prima facie evidence that the meeting was so warned, for he declares that fact in the record of the meeting and of the very vote itself, and he is a sworn officer to keep the record truly, as he undoubtedly did in this instance. The language is, “ at a special meeting of the inhabitants of the town of Milford, warned and held for the purpose of making a by-law,” &c. He had the evidence before him, and could certify to the fact as it was better than any other person. It was his duty to record the fact if it was so ; and although it may be true that he makes a record of a fact which precedes the action of the meeting, and is not strictly the act of the meeting, still it is a part of the proceedings which he is officially to notice and duly to enter of record. The moderator might have been appointed, as is usually the case, before the clerk, but the clerk can make a record of the appointment; and so of his own appointment and of his taking the oath required by law. This point was decided in the case of Willard v. Killingworth Manuf. Comp., 20 Conn., 457, where the clerk of a corporation recorded his
If then it is proper for the town clerk to make the record in the manner he has done in this instance, the record may be received as presumptive evidence of the truth of the fact; and hence we decide that the by-law should not have been rejected for the want of evidence aliunde, as to the legal warning of the town meeting.
The case of Hayden v. Noyes, 5 Conn., 291, and Willard v. Killingworth Borough, 8 Conn., 250, which have been pressed upon us, as conclusive in the defendants’ favor, contain no doctrine inconsistent with what we have stated. The first of these cases does not raise the present question at all, and the second one, so far as it goes, seems to favor the doctrine we have laid down. In Hayden v. Noyes, the question was, whether a warning for an annual meeting and “ to do other business then thought proper by said meeting,” was sufficient to render it legal to transact any special business not named. This question arose on demurrer and the court held the notice insufficient. In Willard v. Killingworth Borough, the question was, whether a bare naked vote of the town, a certified copy of which was produced, counting simply on a “legal” meeting, was prima facie evidence that the meeting had been specially warned to give its consent, as the law required it should do, to the passage of the by-law. The court held that such a vote was not proof of the necessary notice; but their language is to be remarked. They say, “ the special warning not appearing on the doings of the town, it was not enough, and perhaps it should appear on the face of the proceedings.” In the present case the records of the proceedings do show that a special warning was given. See further the case of Brownell v. Palmer, 22 Conn., 108.
For these reasons we advise a new trial.
In this opinion the other judges, Storrs and Hinman, concurred.
New trial advised.