Colt and another against Eves, 12 Conn. 243

Williams, Ch. J. Various objections were made to the proceedings in the cause, commencing with the empannelling of the jury and ending with the charge of the court. It is said, that the jury being taken from the city, and not from the body of the county, although in conformity to the city charter, is not organized constitutionally, within the 7th

section of the amendment of the constitution of the United States, and the 2lst

section of the bill of rights of this state, by which provision is made that the right of trial by jury shall be preserved inviolate. So far as it regards the constitution of the United States, it is not necessary to examine what effect it could have upon this question ; because it has been well settled, that the amendments to that instrument were never intended to limit the power or to controul the proceedings of the state courts. State v. Phelps, superior court, Hartford county, September term, 1816. Jackson d. Wood & al. v. Wood, 2 Cowen 819. n. Murphy v. The People, 2 Cowen 815. Livingston v.

May- or of New- York, 8 Wend. 85. 100. Barron v. Mayor of the City of Baltimore, 7 Pet. 250. Lessee of Livingston & al. v. Moore & al. 7 Pet. 551. As to our constitution ; the city charter under which the jury were empannelied, was granted in 1784, and provided, that jurors for the city courts should be taken from the freemen of the city. The objection is, that they are not taken from the body of the county, but from a particular

section ; and so the trial by jury is not preserved inviolate. To preserve the trial by jury inviolate, cannot mean, that we must pursue the exact course taken in England to collect jurors. If it does, what time is to be selected ; for they have been constantly altering the qualifications, the exemptions and the mode of summoning jurors ? Besides, the common law required merely, that the jury should come from the vicinage. The statute of 4 & 5 Ann. requires, that the jury should be taken from the body of the county.

The most general rule, says Lord Coke, is, that every trial shall be of that town, parish or hamlet, or place known out of the town within the record, within which the matter of fact issuable is alleged, which is most certain and nearest thereunto, the inhabitants whereof may have the better and more certain knowledge of the fact. When a parish is alleged within a city, there, without question, the visne shall come out of the parish. Co. Litt. 125. And if there were not as many as four from the hundred, it was good cause of challenge. Note 191., by Hargrave, to Co. Litt. 125. a.

The strict principle of the common law seems to have been adopted in the city charter ; and a great inconvenience to our remote citizens is thereby avoided. Were this, however, an innovation upon the common law, it would not follow that the trial by jury was not preserved inviolate. It never could have been intended to tie up the hands of the legislature so that no regulations of the trial by jury could be made.

If it is so, it would be difficult to aee how the defendants could justify their proceedings, under a process with a jury of six; or how a recent act of our legislature could be vindicated, declaring that any electors may be jurors. And this court, upon a former occasion, has said, that within the reasonable intendment of that instrument, if the trial by jury be not impaired, although it may be subject to new modes, and even rendered more expensive, if the public interest demanded such an alteration, it would not be a violation of the constitution. Beers v. Beers, 4 Conn. Rep. 535. 539.

Again, this mode of forming a city jury had existed nearly forty years, when the constitution was adopted. That instrument declares, that the right of trial by jury shall be preserved inviolate ; and is it contended, that this instrument, so carefully securing the existing rights of trial by jury, necessarily destroys the right as it then existed in our cities ? The court cannot accede to this construction. Another objection was made to the jurors, that as the court of common council did not nominate them upon the day fixed by law for that purpose, they had no right to make such nomination at a future day.

The corporation, it is said, possesses no powers but such as are specially granted, and such as are necessary to carry into effect the powers so granted. The People v. The Utica Insurance Company, 15 Johns. Rep. 358. 383. One of the privileges given to this corporation, not to the court of common council merely, is, that they shall have a city court, who may try civil causes by jury. The court, are to be elected, by the freemen of the city ; the jurors, by the court of common council.

However much the corporation ought to suffer for their own default, it would be a very harsh construction, to say, that by the neglect of their officers, they should forfeit their charter. This is not claimed ; but it is said, that they shall not have a jury for that year. Suppose the common council neglected this duty intentionally ; would not a mandamus lie to compel them to discharge it ? 10 Conn. Rep. 208. And would it be a good answer by them, that the time had elapsed ? May they, by their negligence or by design, thus deprive the public of the right of a court within the city ?

For others without the city may need the benefit of this tribunal, as well as those within the city. Is it not incident to the enjoyment of the privileges conferred by this charter, that there should be a jury? Is it not necessary for the administration of justice according to the charter ? To effect this, it is made the duty of the court of common council to nominate these jurors ; and they are directed when to do it.

It is said, that the law is as imperative as to the time, as it is as to the duty ; and it is analogous to the nomination of jurors in the towns in the month of January, for each year ; which, it is said, cannot be done at any other time. There, it is not confined to a single day, but may be done during the month. This fact, with the penalty for non-compliance, has been sufficient to prevent any question under this law. An omission by one or two towns would not prevent the accustomed administration of justice in the county ; and it cannot be supposed such an omission could be general.

There is one case decided by this court, not alluded to in the argument, which seems to bear upon the point under consideration. Our statute requires the assessment list to be made up and an abstract left with the town-clerk, by the 1st of December in each year. In the case referred to, the abstract was not left with the town-clerk until the 20th of December. It was there contended, as it is here, that the statute, as to time, was merely directory.

The court, however, were of opinion, that as the object evidently was, to give to the citizens opportunity to examine the assessment, so that they might have opportunity to appeal, they must be allowed the time fixed by the statute ; and therefore held, that the statute on this point must be considered imperative. But they further held, that although another part of the same statute required the town-clerk to return an abstract of such list to the comptroller, by the 1st of March, under a penalty of 15 dollars, an omission to return such abstract by the 1st of March, would not have the same effect.

Of course, this was considered directory merely. The Thames Manufacturing Company v. Lathrop & al. 7 Conn. Rep. 550. 556. The principle there assumed seems to be, that where the object contemplated by the legislature could not be carried into effect, by another construction, there the time prescribed must be considered as imperative; but where there is nothing indicating that the exact time was essential, it should be considered as directory. The object, in the case before us, was, to have jurors at all times when wanted. So the abstract of the lists ought to be with the comptroller, for his use, when wanted.

But as there seems no particular reason to be assigned, why the particular day designated by the law should be suffered to be passed over, more in one case than in the other, we think the requisitions in this respect should be subject to the same construction, and both be considered as directory. Some decisions in the state of New- "York, also, confirm this view of the subject. Their statute requires a sheriff, within twenty days after notice of his election, to give certain bonds. In the case of The People v.

Holly, 12 Wend. 486. notice was given to the sheriff of his election on the 1st of December ; and he did not give the bond required until the 1st of January. The court held the time to be merely directory, and that he did not thereby lose his office. The militia law of that state makes it the duty of certain commanding officers to appoint a brigade court martial, on or before the 1st day of June, in each year. In the case of The People v.

Allen, 6 Wend. 481., the commanding officer omitted to appoint the court martial until the day of July ; and it was contended, that the acts of the court martial so appointed after the time prescribed by law, were void.

But the court held, that the general rule was, that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it would be considered as directory merely, unless the nature of the act so to be performed, or the language used by the legislature, shews, that the designation of the time was intended as a limitation of the power of the officer. There, a power was given to a military officer to appoint a court martial, on or before the 1st of June.

Here, the mayor and com. mon council are to meet and appoint jurors on the 1 st Monday of July. In each case, public officers are to perform official acts regarding the rights and duties of others ; one regarding a military, and the other a civil tribunal to administer justice. There is nothing in the nature of the power given, or in the manner of giving it, that justifies the inference, that the time was intended as a limitation more in the one case than in the other.

We think, therefore, that we are bound to say, that the regular administration of justice in our cities, is not to be defeated, by an omission of this kind: that the time fixed for selecting jurors, is merely directory : and therefore, that this objection cannot prevail. As to the objection to the individual juror, Lucius Hotchkiss. It seems his name was duly drawn from the box, and entered in the venire ; but the sheriff, by mistake, summoned Lewis Hotchkiss. The mistake being discovered, the officer is directed to, and actually does summon the man whom he was .first sent to summon.

A bare statement of the facts seems to us a sufficient answer to this objection. The next class of exceptions is to the opinion of the court in admitting and excluding evidence. It was proved and admitted, that the defendant, Mix, was plaintiff in the execution against Durand ; and that the defendant, Colt, Was the officer who executed it; that they entered together into the premises, with intent to remove the plaintiff, by virtue of the process against Durand ; and that Colt acted under the direction of Mix.

It having been proved, that Mix told the occupants of the house, that unless they would consent to hold as tenants under him, they should be put out, that night; on their declining, Colt said, that he should follow the directions of Mix. This reply was objected to ; because it did not appear, that Mix was present; but it was admitted by the court. And we th'rtfck, it was properly admitted. It having been proved, that these persons acted in concert, the declarations, as well as the acts, of one, must affect the other.

The rule is well settled, that where a community of design is established, the acts of each of the parties, and their declarations at the time of prosecuting those acts, are evidence against each other. 2 Stark. Ev. 403. 1 East's PI. Cr. 97. The defendants offered as a justification, certain proceedings before Justice Bennett, viz. a complaint by Mix against one Durand, under the statute to enable lessors, by a

summary process, to recover premises let from their lessees, showing that Mix was owner of the house in question, and leased it to Du-rand to the 1st of May, 1836 ; that notice to quit had been duly given, and he held over ; praying process, dated 24th of May, 1836 ; on which due process issued, citing Durand to appear on the 30th of May, and also a jury ; which was duly served.

On the 30th of July, Justice Bennett issued another summons for a jury to appear on the 1st of August, to inquire into the facts stated in the above complaint; which summons was served, by the defendant, Colt; and the jury convened on the 2nd day of August, to which time Colt, in his return, says, the cause was continued. The jury found, that Durand was lessee of Mix; that notice to quit was given, and he held over, as claimed; and for Mix to recover possession, «fee.

The justice thereupon issued execution as upon a judgment before him of the 2nd of August, for possession ; and directed the officer to cause said Mix to become possessed of the premises, by putting out said Durand and all others, and putting Mix into peaceable possession; which the officer returns he did do. It was objected, that these proceedings were irregular, and even as against Durand could have no effect; and at all events, could not affect the plaintiff, who was not party or privy to them. They were finally read, subject to the future disposition of the court.

To meet this evidence, the plaintiff then offered testimony to show, that Durand never had the exclusive possession of the premises as tenant of Mix, but by permission of and in common with, one Clark, who claimed to be tenant in common thereof, and who had never been out of possession ; under whom the plaintiff entered, on the 3rd of May, 1836, as tenant, without any knowledge of, or privity with Durand, who had not been in the occupation since the plaintiff entered. ^\.nd to show the character of her possession» she o§ered to prove, that Clark was owner in fee of an undivided estate in the premises in common ; to which evidence the defendant objected, on the ground that Clark’s title was not in issue, and that the proceedings before Justice Bennett were conclusive against the plaintiff, upon all the facts which they purported to prove.

As the objection to the testimony offered by the plaintiff is founded upon the effect of the proceedings before Justice Bennett, the disposition of the question regarding that process will settle the other ; and as the same questions are made to the charge of the court, it may perhaps be as well to consider the evidence as all before the court, and inquire what effect it ought to have; and the case must come to the point, what effect shall the proceedings before Justice Bennett have upon the rights of persons not parties to them. The plaintiff claims, that they are all void, and can have no effect whatever.

The defendants claim, that they are valid, at least so far as to protect those who act under them from an action of trespass. There are here two defendants ; one of them the actor in those proceedings, the other an officer acting under the execution ; and as they have severed in their defence, these cases demand separate examinations. For although an officer may be justified, by a legal warrant or execution, yet the party must shew, not only a warrant, but the judgment upon which it is founded. Turner v. Fellgate, 1 Lev. 95. Moravia v. Sloper, Willes, 34. Is the defendant Mix justified, by those proceedings? This

summary process was dated the 24th of May, and was returnable the 30th of May. After service, nothing is heard of it. It does not seem, that the parties appeared ; that there was any court; on the return day, all are silent; and the proceedings appear to be ended. And yet on the 30lh of July following, without any new. process, Justice Bennett issues his precept to the sheriff to call a jury to enquire as to a lease from Mix to Durand, notice to quit and holding over, &c. and to meet on the 1st day of August.

On the 2nd day of Avgust, to which the sheriff in his return says the cause was continued, the jury met, and found a verdict for the plaintiff. Whether the parties, or either of them, were present, or whether any evidence was laid before the jury, no where appears ; or whether even the justice was there, does not appear, except by the execution ; nor is there any other evidence that a judgment was rendered by him.

Upon a verdict so obtained, the magistrate issues an execution, directing that not only Durand, but all other persons, are to be put out of possession of that property of which Mix claimed to be the owner on the 24th of May preceding, and which the plaintiff claims she was in possession of, by permission of Clark, who was tenant in common of the premises from the said 30th of May to the time of this execution. From this brief statement it appears, that on the 30th of July, there was no complaint pending before Justice Bennett.

The return day of a former complaint had passed, and the complainant had suffered it to sleep more than two months; and the county court might as well summon a jury to try the causes discontinued at the former term, as could this magistrate issue this venire ; more especially, as he did not summon in any party who was to be affected by it. Notice to the party is an indispensable requisite, founded upon the principles of natural justice, as well as express statute. 4 Bla. Com. 280. Chase v. Hathaway, 14 Mass. Rep. 222, 224.

Nor is there any record that any judgment was rendered, even that the plaintiff should recover possession. We need go no further to declare these proceedings entirely irregular. The magistrate had no authority to issue an execution, without complaint, without a hearing and without a judgment. The party then who procured it, or acted under it, cannot be justified by it. Parsons v. Lloyd, 3 Wils. 345. It is contended, however, that trespass will not lie; and Watson v. Watson & al. 9 Conn. Rep. 141. is cited. That was a case where the proceedings were regular, but the process was abused.

Here, the proceedings are irregular; and in such case, trespass always lies. The defendant Mix has, therefore, no claim for a new trial. As it respects the sheriff; it is said, that he had in his hands an execution valid upon its face, which it was his duty to execute, without enquiring into the proceedings upon which it was founded ; and the question arises, was this process of that character? Had Justice Bennett a right to command all persons to be removed from these premises ?

Our law has carefully reserved the trial of the title of land for the decision of the higher courts, so that even in an action of trespass, where title is pleaded before a justice, his jurisdiction ceases ; and the county courts have not final jurisdiction in the most trifling suits of that kind. It was found, that tenants sometimes took advantage of this salutary law, to retain possession of premises they held under leases.

To guard against this, the legislature, in 1806, passed the act upon which the proceedings before Justice Bennett were founded ; by which, a lessor, giving thirty days notice to his tenant to quit, after the expiration of his lease, might complain to a single minister of justice; and six days after the expiration of the thirty, might bring his tenant to answer before the justice, and a jury, who are to enquire whether the tenant is lessee of the plaintiff, and holds over after his lease has expired, and after the notice to quit; and if they so find, the justice may render judgment for the plaintiff, to recover possession of the premises and his costs, and award execution.

When we consider the

summary nature of this process ; that it was brought before a single justice of the peace ; and that its effect is to turn families from their dwelling-houses, after a week’s notice; it is clear, that this power, thus conferred, is not to be extended beyond the object contemplated, unless the terms of the statute imperatively require it. The object in view, evidently, is, to restore to the plaintiff a possession, which is retained by the defendant, contrary to an express stipulation. It does not purport to affect the rights of any but those who were parties, or derive right from the parties.

It does not even require the complainant to prove his title to the property. We must then examine with care the language of the statute, to see if there is any thing, which requires a construction, that will affect the innocent as well as the guilty, those who have title as well as those who have not, and those who have no notice, as well as those who have had due notice. If the statute allows all persons to be put out of possession, by a process against any one who may have taken a lease, it may be used as an instrument of great oppression, in the hands of the malevolent.

Any person, who has taken a lease from another, and is charged with notice and holding over contrary to his stipulation, may, by permitting judgment and execution against himself, furnish an instrument as operative against a stranger as himself; and thus a tenant under the real owner, or even the real owner himself, with his family, without any previous notice, may be driven from his home, and have to seek a return by the slow process of a common law suit, which, in many cases, could not furnish any thing like adequate redress. Does the statute require such a construction ?

It says, indeed, that judgment must be rendered that the plaintiff recover possession of the leased premises. What possession 1 The possession of which he claims he is excluded, by his lessee, and those who derive title from him. Their possession is the only thing of which he complains, and for which he seeks redress. It cannot be supposed, that the law intended to give him what he did not seek, or more than he asked for. When then he is restored to the possession of which he claims to have been deprived, complete justice is done to him, and no injustice to others.

It may be said, that the words of the statute are not satisfied, unless exclusive possession is given to him ; nor can he be said to have possession, unless it be exclusive. The statute does not expressly require this ; and when we find the fourth

section of the act extending its provision to those who derive title from the lessor or lessee, though the primary object may have been to say the process may be taken out against them or by them; perhaps also, it may be taken to mean, that persons deriving their title from the lessee, may, by process against them, be excluded from the possession. If this is a fair construction of that clause, it shews, that it was before at least doubtful, whether even such persons would, by the general provision, have been affected, by an execution. If so, of course, others having no privity with the lessee, could not be. Again, the third

section provides, that all persons claiming title to the premises, shall, notwithstanding this act, or any proceedings that may have been had under it, be entitled to their remedy at law, in the same manner as if this act had not been passed. Might not, then, the owner of property, who had taken no lease from the plaintiff, and who had been turned out of possession by the execution; sustain an action of trespass, were it not for this act ? And if so, do the proceedings under it, as against him, make it less a trespass ? Does not this

section intend to protect all persons claiming title from the operation of the other sections, and the proceedings under them ? This construction will give to the statute entire operation, for all the purposes for which it was designed, while a salutary check will be imposed upon improper proceedings under it. As it respects the lessee, who is holding over, it will be an instrument of coercion, which may be speedily called into action. As it respects all others, it will be harmless. This execution, then, instead of commanding to put out of possession ¿S'.

Durand and all others, should have directed to put out of possession Durand, or Durand and all others deriving title from him. The first would be certainly safe and proper ; but under the third

section of the statute, he might have a right to remove others claiming under his lessee, without which the statute might be inoperative. It may be said, how is the sheriff to know who do claim under the lessee 1 He must act, as in many other cases, at his peril. When reasonable doubt exists, he is not bound to proceed witnout indemnity ; and then the loss, if any occurs, will fall where it ought. It was said, the form of execution was taken from Judge Swift. It is true, that form is adopted in 2f Sw. Dig. 781, 2.

It was not, however, in pursuance of any decision of court; nor were these forms, it is believed, collected by him in person. They cannot, therefore, be considered as authority. We are, therefore, of opinion, that the execution purported to give an authority to the officer, which the justice could not grant; and that he must, therefore, be responsible. This being so, the evidence offered to show Clark’s title and the plaintiff’s entry under it, though perhaps unnecessary, was certainly proper, as tending to repel any supposed privity with Du-rand.

The superior court is, therefore, advised, that there is no error in the judgment of the city court. In this opinion the other Judges concurred. Judgment affirmed.