Canfield v. Mitchell.

appeal to the Court of Common Pleas, which court erased the appeal from its docket, for the reason that the action was criminal in form and substance, and therefore there could be no appeal from the judgment of the justice of the peace.

Chief Justice SWIFT (Digest, Vol. 1, page 586,) says: "Whenever a statute prohibits an act as against the public, such as the neglect of some duty or the commission of some crime, under a penalty or forfeiture, part of which is given to the State and part to him who shall prosecute for it, then any common informer may bring an action qui tam on the statute, as well in the name of the State as in his own name, and it is wholly a civil suit and entirely under the plaintiff's control.

Whenever an act is prohibited by statute as a public offense under a penalty or forfeiture, part of which is given to the person prosecuting and part to the State, and the statute gives a remedy by information, then the common informer may proceed by way of information qui tam on the statute, and this is a sort of penal action carried on by a criminal instead of civil process; that is, the information must be presented to some court or magistrate and the party complained of may be arrested by forthwith process; and where the statute gives a remedy by action or information, the informer may elect to proceed by either, and the only distinction is that one is a civil and the other a criminal suit."

The distinction here taken between two possible modes of procedure under the same statute has often been incidentally recognized by judges of this court and rests upon a long and uniformly settled course of practice in this state; and we find no occasion from precedent or upon principle for disturbing it, or for depriving parties of the right to elect which of the two modes they will adopt. Indeed, upon general principles we should as a rule incline to encourage the adoption of civil rather than criminal forms of procedure where justice could as well be administered under the former as the latter, and to open rather than bar the door of appeal.

The case before us seems clearly to fall within the class first mentioned by Judge SWIFT; that is, it is an action, not an information, upon the statute. In substance, in reality, it is

Canfield v. Mitchell.

instituted by the plaintiff for the recovery of a sum of money which he says is due to him from the defendant by force of the statute. In form, the plaintiff has elected to summon the defendant to answer, not forthwith, but upon a distant return day fixed according to the requirements of the law for all civil processes returnable before a justice of the peace; he has given bonds, and is liable for the payment of costs; service is made by leaving a copy of the original writ at the defendant's usual place of abode; the defendant is not arraigned; he appears not in person but by his attorney, and pleads the general issue with notice of special matter of defense, and the plaintiff can withdraw the suit. The features are civil, not criminal; so that both in substance and form the action is civil. And that the plaintiff could elect to procecd civilly in this instance, is, as we have said, well settled, notwithstanding there are words in the statute such as "offense," and "conviction," which are legally pertinent to criminal rather than civil proceedings.

The case of Bartlett v. Evarts, 8 Conn., 523, was an action. qui tam, brought originally before a justice of the peace, for a penalty given in the first section of the act concerning nuisances, for obstructing a highway; substantially the section and the act upon which the case before us is founded. Upon the hearing the court rendered final judgment for the defendant; the plaintiff filed a bill of exceptions and brought a writ of error, on which the Superior Court reversed that judgment; and on motion in error by the original defendant the latter decision was brought before this court for revision, and this court found no error in the judgment complained of. This presents an instance of an inferential recognition of the civil character of an action which seems to partake of the nature of the one before us.

We think there is error in the judgment of the Court of Common Pleas, and that the case should be restored to the docket of that court.

In this opinion the other judges concurred.

Merriam v. City of Meriden.

NELSON MERRIAM vs. THE CITY OF MERIDEN.

The city of M, by its proper officers, laid out certain alterations of a street, which required the excavating of the front of the house lot of the plaintiff. The city had the damages assessed in due form under its charter, and the plaintiff appealed from the assessment. While the appeal was pending the plaintiff and the city entered into an agreement for the settlement of the matter, by which the city was to make the excavation, and was to pay the plaintiff $1,650 in settlement of the appeal, which the plaintiff was to withdraw on the money being paid. Soon after, and before the money was paid or the appeal withdrawn, the city commenced the removal of earth from the plaintiff's land, upon which the plaintiff demanded immediate payment of the amount stipulated, and on its being refused forbade the further prosecution of the work. The city proceeding with the work, the plaintiff brought an action of trespass, in which, upon demurrer overruled, the court assessed the damages at $2,000. Held

1. That while, under the original proceeding, the city could not have entered upon the land until the assessed damages were paid, yet the contract was an independent matter, and under it the city had a right to proceed with the work, the payment of the money not being a condition precedent, but resting only on the promise of the city, which the plaintiff could enforce in the ordi

nary way.

2. That the license given by the plaintiff in the contract, being itself a part of the contract, could not be revoked.

3. That the forbidding of the city to proceed with the work was not a rescinding of the contract.

4. That if the plaintiff, on the city's refusing on demand to make payment within a reasonable time, could have rescinded the entire contract, yet that he could not rescind a part only.

5. That the court should have assessed only nominal damages.

TRESPASS qu. cl. fr., brought to the Superior Court in New Haven County, and heard in damages, on demurrer overruled, before Hitchcock, J. The court found the following facts.

The plaintiff was, at the time of the transactions hereinafter stated, and still is, the owner of a homestead, fronting on Colony street in the city of Meriden, one hundred and thirtytwo feet front by two hundred and twenty-five feet deep. On the 22d day of April, 1872, the common council of the city of Meriden widened Colony street, and thereby took off from the lot a strip of land about eleven feet wide.

As the common council were unable to agree with the property owners on the street as to the damages, the matter was

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Merriam v. City of Meriden.

referred to the board of compensation, and on the 27th of May, 1872, the board reported to the common council, assessing to the plaintiff $450 damages, which report was accepted on the same day. On the 19th of June, 1872, the plaintiff took an appeal from this assessment to the Superior Court for New Haven County, which appeal is now pending.

On the 26th of May, 1873, after the appeal had been pending nearly a year, the common council passed the following vote. "Voted, that the street commissioner be, and he hereby is, instructed to settle with Nelson Merriam for a sum not exceeding $1,650.”

On the 20th of May, 1873, the plaintiff and defendants made the following contract:

"Whereas, in the matter of the lay-out and alteration of Colony street, Nelson Merriam was aggrieved at the award of the board of compensation of the city of Meriden, in the matter of damages awarded to him, and took his appeal to the Superior Court for New Haven County, where said appeal is still pending; and whereas the court of common council of the city of Meriden has authorized the street committee to make a settlement with said Nelson Merriam, upon the basis of the specifications submitted by him, provided said settlement could be made for a sum not exceeding sixteen hundred and fifty dollars. Therefore the said Nelson Merriam, and the city of Meriden by its street committee, have agreed as follows, viz.: The city of Meriden is to make the necessary excavation for wall in front of the premises of said Merriam, including foundation therefor, with all excavation for sidewalk and steps and the foundation therefor. And said city of Meriden agrees to pay to the said Nelson Merriam the sum of sixteen hundred and fifty dollars in settlement of his said appeal. In consideration whereof, the said Nelson Merriam withdraws his appeal and makes no further opposition to the said alteration as fixed by the common council, said appeal to be withdrawn upon the payment to said Merriam to his satisfaction of the above sum. Meriden, May 30th, 1873. (Signed,) A. C. WETMORE, Chairman Street Committee.

NELSON MERRIAM."

Merriam v. City of Meriden.

On the 2d day of June, 1873, the common council passed the following vote: "Voted, that the city clerk be authorized to draw his order on the city treasurer for $650, in favor of Nelson Merriam, and that the treasurer be authorized to give the city's note for the amount of one thousand dollars in settlement for grading, building wall, and steps."

Immediately after the execution of the contract on the 30th of May, 1873, the plaintiff left the state, and remained absent until the 14th of June, 1873, and in his absence the city, without his knowledge, began to excavate the earth and rock on his homestead. On the day of his return he found that the city had begun the work, and immediately called on the city clerk, and treasurer and the mayor of the city, and demanded payment of the $1,650, which the city and its officials refused to make, and the city has never paid the same or any part thereof to the plaintiff; and the plaintiff, immediately after the refusal, forbade the city officials and the persons engaged in making the excavation to enter upon the land and make any excavation, or remove any earth or rock therefrom; but the city and its servants continued to remove the earth and rock from the premises and to excavate, and sold quantities of rock to divers persons to build cellar walls with, received the pay for the same and placed the same in the city treasury, down nearly to the time of the bringing of the present suit, leaving the premises from that time to the present almost wholly inaccessible from Colony street, the side next to the street being left in a rough and jagged condition, with a perpendicular descent.

Before the commission of the above acts the homestead, by an easy slope, with a well-kept lawn and well-grown shade. trees, descended to the street line, terminating and abutting on the street with a bank wall about five feet high, with steps in a recess at or near each end, and approaching the house with curved walks, paved and of easy grade. Outside of the wall was a wide paved walk about three or four feet above the traveled track of the carriage way.

On the 16th day of June, 1873, the common council passed the following vote. "Voted, that we rescind the vote passed