Donahue v. Coleman.

of his title the plaintiff offered in evidence a certified copy of the execution and the officer's return thereon, to which the defendant objected on the ground that the return was on its face insufficient and void.

That part of the return to which the objection applies is as follows:-" And thereupon, the creditor having appointed Jason B. Chandler, and the debtor neglecting and refusing to appoint or agree on one or more appraisers, I applied to Oscar Tourtellotte, a justice of the peace for said county of Windham, residing in said town of Thompson, and by law qualified to judge between said parties, who designated Joseph Bickford and Russell H. Spencer, all indifferent freeholders of said town of Thompson, appraisers to appraise and value said land."

To furnish ground for the defendant's claim that the return fails to describe Chandler as an indifferent freeholder of the town of Thompson, as by statute it was necessary that he should be, the words, "all indifferent freeholders of said town of Thompson, appraisers to appraise and value said land," must be construed as applicable only to Bickford and Spencer, the last two persons named. But such a construction is neither necessary nor reasonable. It virtually requires the substitution of the word "both," which designates only two persons, for the word "all," which naturally includes more than two. And it is worthy of remark that the certificate of the justice appointing Bickford and Spencer appraisers, which the officer has annexed to and made part of his return, refers to the two as "both." And in the certificate of the appraisers, also annexed, they describe themselves as freeholders of the town of Thompson.

We think the return was in every respect in due form and showed upon its face that all the provisions of the statute relating to a levy on lands had been complied with.

As tending to prove the fact that Chandler was not a freeholder when he was appointed and acted as appraiser, the defendant offered a certified copy of a deed dated November 16th, 1878, from Robert Coit, described as VOL. XLIX-59.

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register in bankruptcy, conveying to Nathan Rawson, described as assignee in bankruptcy, all the estate owned by Chandler on the 31st of August, 1878, except such property as might be exempt by the provisions of the bankrupt act of the United States. And the defendant's counsel claimed, and asked the court to charge the jury, that the effect of this deed was to disseize Chandler of all his freehold estate and to impose on the plaintiff the burden of proving that he had thereafter acquired a freehold estate.

From the motion it would seem that the plaintiff virtually accepted the legal proposition involved in the defendant's request, for, after the introduction of this deed, the plaintiff on his part offered evidence tending to prove that Chandler was in fact a freeholder on the 13th of January, 1879.

The court did not charge as requested, but left it to the jury to determine from all the evidence in the case, whether Chandler was a freeholder or not.

The rule of evidence which the defendant sought to invoke was the familiar one, that an existing state of things or a personal relation, when once established by proof, is presumed to continue till the contrary is shown. 1 Greenl. Ev., § 411. 2 Wharton's Law of Evidence, § 1289.

The presumption in such a case is merely one of fact, and its effect depends on the nature of the matter or condition in question relative to its permanency and uniformity. For this reason such a presumption must in some cases (and we think bankruptcy is one) be confined to a limited range of time.

The deed in this case purported to convey only the estate owned by Chandler on the 31st of August, 1878, but he was appointed an appraiser on the 31st of January, 1879. There are so many ways, according to common experience and observation, that a freehold estate might have come to the party in this interval, that the inference of continued bankruptcy would be slight, but still it was doubtless legitimate evidence and as such it was received by the court and weighed by the jury.

Donahue v. Coleman.

If there had been no evidence on the subject and the question at issue had depended wholly on this presumption, the omission to charge as requested would have furnished ground for a new trial; but in this case the presumption relied upon did not stand without countervailing evidence tending to show after-acquired freehold estate. The appointment of the appraisers and their sworn certificate and the official return of the officer made a prima facie case for the plaintiff, and after the deed was received further evidence was offered tending to show that Chandler was in fact a freeholder. Under these circumstances we do not see how the defendant could have been aggrieved by the action of the court in leaving it to the jury to determine the question by the preponderance of the evidence.

As the counsel for the plaintiff virtually conceded the existence and force of the presumption relied upon and met it by evidence of estate afterwards acquired, we do not think the omission of the court to instruct the jury particularly as to the effect of the deed in raising the presumption could have prejudiced the defendant's cause before the jury. Indeed, the effect of such a mere presumption of fact we think must be quite obvious to the common mind and there is no probability that it was overlooked.

And here we make this further suggestion, that as the bankruptcy proceedings were not in evidence, no authority in Coit to give the deed as register appeared. So that, in strictness, if the point had been made in the court below, the defendant would have been deprived of his sole ground of defence.

The only question remaining is, whether the defendant. should have a new trial because the court refused to charge whether there were exemptions under the bankrupt act. This was undoubtedly a question of law for the court, and if the bankruptcy proceedings had been introduced in evidence and the request to charge had been made at the proper time, the omission of the court to charge the jury on the subject would have furnished sufficient ground for a new trial. The delay of the defendant to make any request

Donahue v. Coleman.

till after the court had charged the jury was a clear violation of section first of the 17th rule of the General Rules of Practice, and defeats his right to a decision of the question by this court. The rule referred to is as follows:"If the counsel of either party, upon the trial of any action, intends to raise any question of law which may be the subject of a motion for a new trial, he must state the same distinctly to the court before his argument is closed, and in such time as to give the opposite counsel an opportunity to discuss the same, and must request the court to take note of the point. And if this be omitted, it will not be the duty of the court to decide the question, nor reserve the same on a motion for a new trial."

Justice to both the court and the opposite party requires in all cases the strict observance and enforcement of this rule. And in this case especially it would seem very improbable that its application can work hardship to the defendant, for, if the appraiser referred to had not been a freeholder of the town of Thompson, an examination of the land records would easily have established the fact. For some unexplained reason this source of certain evidence was discarded and the defendant's sole reliance was upon the slight presumption raised by the register's deed in bankruptcy.

A new trial is not advised.

In this opinion the other judges concurred; except CARPENTER, J., who, having tried the case in the court below, did not sit.

Fitch v. Belding.

SAMUEL FITCH vs. MILO M. BELDING AND OTHERS.

D, owning a large mill pond and the land below on both sides of the stream, and two mills which were supplied by a canal with water which returned to the stream below, sold a mill site to R at a still lower point, the deed describing the privilege conveyed and stating a covenant of the grantor as follows:-Which privilege shall consist of the right to pond back the water of the river to a point [describing it;] with the right to use all the water now used or which may hereafter be used at the two privileges owned by the grantor. And the grantor doth hereby covenant that the grantee and his assigns shall at all times have as much water to use as will be required, with a properly constructed breastwheel, to run six complete sets of woolen machinery during twelve hours in each working day; provided the dam of the grantee be properly graveled and kept in repair, and provided there be water enough in the pond to furnish this quantity without reducing the head at the grantor's mills. Held that the description of the right granted as a right to use "all the water" &c., was to be taken in connection with, and was qualified by, the covenant of the grantor, and that the grant was of only sufficient water to run six sets of machinery for twelve hours each day.

PETITION for an injunction against the diversion of water and for other relief; brought to the Superior Court in Tolland County. Facts found by a committee and case reserved for advice. The case is sufficiently stated in the opinion.

A. P. Hyde and D. Marcy, for the petitioner.

C. E. Perkins and M. R. West, with whom was B. H. Bill, for the respondents.

PARDEE, J. This is a petition for an injunction restraining the respondents from diverting any portion of the water of Hockanum river from the petitioner's privilege.

On June 22d, 1864, A. Dart was the owner of Paper Mill Pond on Hockanum River and of land on both sides of the stream below. Water passed through a canal over the wheels of his two mills, Twine and Star mills, and returned to the stream within the limits of his land. Below the