29 Conn. 564 | Conn. | 1861
On the trial of this case it became material for the prosecution to show that the assaulted party, Mr. Benjamin E. Palmer, was the conservator of the person and estate of the defendant, and entered his dwelling-house as such, with appraisers, for the purpose of making an inventory. To prove that he was such conservator the record of his appointment was shown in evidence, against the defendant’s objection. It is said the record was not between the same parties, which is undoubtedly true, and would be an objection if it was offered to prove a disputed fact, supposed to be settled by it, in respect to the parties to it or their privies, who alone are bound by it. But that was not the object here. The question whether Mr. Palmer was the defendant’s conservator was wholly collateral to the issue on trial, like the conviction of a witness, which might be shown for the purpose of affecting his credit; and such conviction, when it thus becomes important, may of course be shown by the record of the conviction, though the parties to it were different from those in the case in which the witness testifies! The superior court was clearly right therefore on this point.
But again, it is said that the appointment of the conservator by the probate court was a nullity, because the application to that court was not in fact signed by all of the selectmen, but only by one of them, he affixing thereto the names of his associates. We think the ruling of the superior court was correct on this point. The application to the court was correct in point of form. It appeared to be regularly signed by the selectmen. It was regularly served upon the defendant, and the court had jurisdiction of the subject matter of the process and of the parties. Suppose that the defendant had appeared and waived all exception on this ground, either expressly or
But the ground chiefly relied upon for a new trial is, that the court did notin its charge sanction the defendant’s claim, that as the conservator entered the house without permission, and did not leave on request, he was there in his own wrong, and the defendant was justified in using sufficient force to remove him. By statute, the conservator is bound after his appointment forthwith to make a perfect inventory of the ward’s estate and lodge the same with the court of probate. As he has also the care and management of this estate, and is bound to manage it with care and skill, and is liable for any neglect of duty, he must of course have all the powers necessary to enable him to do this. The appointment is based upon the idea that the ward is incapable of managing his property, and that the management needs to be placed in the hands of a conservator, as trustee. It would seem therefore more properly to belong to him to give permission to his ward to enter upon the property and use it, than to be his duty to ask such permission of the ward when an entry on the property, or the possession of it, becomes necessary for any purpose connected with the discharge of his duty as conservator. There is no analogy between the condition of a conservator and that of an officer who is about to enter a dwelling house for' the purpose of. making an attachment. The analogy is more perfect between him and an officer who has already attached and has the property of a debtor in his custody. We are clearly of opinion therefore that the instruction asked for would have been erroneous had it been given, and consequently the superior court was correct in refusing it.
We therefore do not advise a new trial on any of the grounds on which it is claimed.
In this opinion the other judges concurred.
New trial n6t advised.