Doane v. Cummins , 11 Conn. 152 ( 1835 )

Waite, J.

The statute upon which the original action was brought, provides, that the offender “sh all be liable to pay treble damages to the party injured, and be fined the sum of seven dollars for the use of the treasury of the county where the of-fence was committed." It is claimed, that the suit was erroneously brought, because the plaintiff ought to have sued for the fine as well as the damages. But this claim is unfounded-The injured party was under no obligation to sue for the fine in which he had no interest. There is no necessary connexion between the damages given to the injured party, and the fine imposed for the benefit of the public. Whenever a statute, for the commission of an offence, imposes upon the offender a fine payable to the state, or some public treasury, and at the same time, gives damages to the injured party, the latter may sustain his action to recover his damages, without demanding the fine in his declaration. - v. Hundred of - Cro. Car. 336. Com. Dig. tit. Action. E. 1. Woodgate v. Knatchbull, 2 Term Rep. 148. So a public prosecution may be sustained for the fine alone.

It is further claimed, that the declaration is bad, because there is no averment that the acts complained of were committed against the statute. The use of such an averment is, to shew that the action is founded upon the statute. In this case, the action is brought directly upon the statute. The acts complained of shew a violation of it: and the declaration avers, that by force of the statute, a right of action has accrued to the plaintiff to recover the damages demanded. These averments are sufficient. Besides, the question has already been decided, by this court, in the case of the Town of Barkhamsted v. Parsons, 3 Conn. Rep. 1.

Although in actions brought for the recovery of treble damages, the usual, and perhaps the better way, is, for the jury to find the single damages, and for the court to render judgment for treble the amount; yet it is not indispensably necessary that course should be adopted. It is the duty of the court to see that judgment is rendered for the proper sum. Whether the jury find the single or the treble damages, a definite rule is given, by which .the court can determine the amount for which judgment may be rendered. Cross v. The United States, 1 Gallis 26. The court, in this case, by accepting the verdict, and rendering judgment for the treble damages found by the jury, complied with the requirements of the law; and did no injustice to the defendant in tile original action.

From the bill of exceptions it appears, that Doane, the defendant below, and Treat, were partners. Their books were produced, read in evidence, and laid in before the jury. It does not appear, that any objection was made to their admission, by Doane, the defendant. The counsel of the plaintiff below, af-terwards offered to read to the jury two entries upon these books. The defendant. Doane, objected to the admission of this evidence ; but the court overruled the objection, and allowed the entries to be read in evidence to the jury. The ground of the objection does not sufficiently appear. It is not stated in the bill of exceptions, that any reasons were assigned why these entries ought not to be read. It would seem from the facts detailed, that the principal reason, if not the only one, was, that the evidence was offered at too late a period in the trial of the cause, after all the witnesses, except one, had been dismissed, by the agreement of the parties, and after the counsel for the defendant had closed his argument to the jury. It was certainly very late to receive evidence ; but the admission of it, at that time, can furnish no ground for the reversal of the judgment upon a writ of error. A variety of matters must necessarily be left to the discretion of the court, before whom the trial is had, and which cannot be reviewed upon a writ of error. Of this sort are questions respecting the continuance of causes, the amendments of pleadings and petitions for new trials. The United States v. Buford, 3 Peters’ U. S. Rep. 32. Chirac v. Reinicker, 11 Wheaton 280. 302. Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch 206. White v. Trinity Church, 5 Conn. Rep. 187. So too, the lime and the order of admitting testimony in the trial of a cause, must be left to the discretion of the court.

It is also said, that the entries ought not to have been read, because it does not. appear, that they were made by Doane, or with his knowledge. But it does appear, that the entries were made upon the books of Doane & Treat, and that one of the entries was made by them. It would be too much for this court, in view of these facts, and in the absence of any allegation of the kind, to presume, that the entries were made without the knowledge and authority of Doane. If such had been the fact, it ought to have been so claimed, by the defendant below, and stated in the bill of exceptions. The rule laid down by Judge Story, in the case of The Bank of the U. States v. Winship & al. 5 Mason 176. and afterwards approbated, by Chief Justice Marshall, (5 Peters, 529.) is, that ordinarily the presumption is, that all the partners have access to the partnership books, and may know the contents thereof; but, that this is a mere presumption from the ordinary course of business, and may be rebutted, by circumstances, positively or presumptively repelling an inference of access. No facts or circumstances are shewn to repel this presumption.

Besides, it is a general principle, that a party in examining the admissibility of evidence, ought to be confined to the specific objection taken at the trial, and stated on the face of the bill of exceptions. Kensington v. Inglis & al. 8 East 279. Hinde's lessee v. Longworlh, 11 Wheaton 199. To adopt a different rule would be sanctioning a course of practice calculated to mislead. From the facts stated in the bill of exceptions, we are not authorised to say, that the judgment of the county court in admitting the evidence, ought to be reversed.

The superior court must, therefore, be advised, that there is no error in the judgment complained of.

Williams, Ch. J. and Bissell and Huntington, Js. were of the same opinion. Church, J. gave no opinion, not having heard the arguments of counsel.

Judgment to he affirmed.