Atwood v. Buckingham

CourtSupreme Court of Connecticut
Writing for the CourtPRENTICE, J.
Citation62 A. 616,78 Conn. 423
Decision Date15 December 1905
PartiesATWOOD v. BUCKINGHAM.
62 A. 616
78 Conn. 423

ATWOOD
v.
BUCKINGHAM.

Supreme Court of Errors of Connecticut.

Dec. 15, 1905.


62 A. 617

Appeal from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge.

Action by D. Preston Atwood against Annie McLean Buckingham to recover a forfeiture incurred by defendant as an administratrix, for unexcused failure to file an inventory, as provided by Gen. St. 1902, § 324. From a judgment in favor of plaintiff for the limited amount provided in such actions by Pub. Acts 1905, p. 413, c. 217, plaintiff appeals. Affirmed.

E. P. Arvine and John J. Phelan, for appellant. Lucien F. Burpee and S. McLean Buckingham, for appellee.

PRENTICE, J. The plaintiff, in May, brought his action to recover $240, as the forfeiture provided by section 324 of the General Statutes of 1902, claimed to have been incurred by the defendant as an administratrix through her unexcused failure, for the 12 months prior to the bringing of the action, to file an inventory as provided by law. While the action was pending the General Assembly, by an act which was approved and went into effect on June 21, repealed said section. Pub. Acts 1905, p. 365, c. 100. Later in the session, by another act which was approved and went into effect July 6, 1905, it was enacted that "in all civil actions pending in the courts of the state brought under section 324 of the General Statutes for recovery of the forfeiture therein provided, such recovery shall be for the sum of one dollar only as the forfeiture for such neglect and the taxable costs of court." The act further provided that the defendant might before trial tender to the plaintiff the sum of one dollar and accrued costs, and that upon the plaintiff's refusal to accept the same he should not recover any sum in excess thereof. Pub. Acts 1905, p. 413, c. 217. The defendant thereupon filed an answer in which she set up a tender of the sum of $1 and the amount of taxable costs then accrued. To this answer the plaintiff demurred and assigned as grounds of demurrer various reasons involving the construction and effect of the two acts of 1905 referred to and the constitutionality of the one under which the tender was made and pleaded. The court overruled the demurrer, and, the plaintiff refusing to plead further, rendered judgment that the plaintiff recover the amount of the tender. Of this action he complains.

Section 1 of the General Statutes of 1902, provides, among other things, that the repeal of an act shall not affect any suit or prosecution or proceeding pending at the time of the repeal for an offense committed or for the recovery of a penalty or forfeiture incurred under the act repealed, and that the passage or repeal of an act should not affect any action then pending. The repeal of said section 324 did not, therefore, as the defendant concedes, affect the plaintiff's action or any other which may have been pending under said section. The repeal, however, was effectual not only to prevent the institution of new actions for future delinquencies, but also to prevent the bringing of such' actions for past ones. The plaintiff has erroneously assumed the contrary to be the situation as respects neglects which antedated the repeal. It is the well-settled rule that, in the absence of a saving clause or statute, the right to bring suit to recover a penalty or forfeiture falls with the act which provides it. Yeaton v. United States, 5 Cranch, 281, 3 L. Ed. 101; Maryland v. Baltimore, etc., R. Co., 3 How. 534, 11 L. Ed. 714; Norris v. Crocker, 13 How. 431, 14 L. Ed. 210; Welch v. Wadsworth, 30 Conn. 149, 79 Am. Dec. 239. There was no saving clause in the present repealing act. Section 1 of the General Statutes of 1902 contains the general provision that the repeal of an act should not affect any punishment, penalty, or forfeiture incurred before the repeal takes effect. But no penalty or forfeiture could by any possibility be Incurred under the repealed act by any delinquent before suit was in fact instituted, for the all-sufficient reason, if for no other, that the section expressly provides that there should be no forfeiture incurred in any case where the delinquent before suit is brought makes to the court of probate an acceptable excuse for his delay. The absence of this excuse at the moment suit is brought is thus made one of the conditions of forfeiture. This the plaintiff recognized when he framed his complaint, which averred the absence of an accepted excuse. By reason of this condition, no incurred forfeiture was possible under the act until the status of the party against whom a forfeiture was sought to be enforced was by the bringing of an action fixed as that of a delinquent subject to the statutory penalty. When, therefore, the repeal took effect, there was an end to all situations which could furnish the basis of new actions. Persons who had escaped suit might be in neglect, but none of them had as yet become subject to...

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36 practice notes
  • Second Injury Fund of the State Treasurer v. Lupachino, No. AC
    • United States
    • Appellate Court of Connecticut
    • June 3, 1997
    ...legislative enactments, determine the rights [45 Conn.App. 342] secured thereby, and apply the remedies prescribed." Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 (1905); see Wilson v. Security Ins. Group, 199 Conn. 618, 628, 509 A.2d 467 (1986); Genco v. Connecticut Light & Power Co.,......
  • Caldor, Inc. v. Thornton
    • United States
    • Supreme Court of Connecticut
    • September 6, 1983
    ...to construe legislative enactments, determine the rights secured thereby, and apply the remedies prescribed.' Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 [1905]." State v. Clemente, 166 Conn. 501, 509-10, 353 A.2d 723 " 'No court can directly set aside an Act of the legislature; and ......
  • State v. Rodriguez
    • United States
    • Supreme Court of Connecticut
    • April 29, 1980
    ...apply the remedies prescribed.' " State v. Page 921 Clemente, supra, 509-10, 353 A.2d 728, quoting Atwood v. Buckingham,[180 Conn. 385] 78 Conn. 423, 428, 62 A. 616 (1905). Statutes relating to the qualification of jurors are part of the machinery created by the legislature to prescribe app......
  • Kinsey v. Pacific Employers Ins. Co., No. 17182.
    • United States
    • Supreme Court of Connecticut
    • March 7, 2006
    ...191 Conn. 336, 343, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985), quoting Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 (1905). "[T]he legislature makes, the executive executes, and the judiciary construes the law." (Emphasis added; internal quotation......
  • Request a trial to view additional results
36 cases
  • Second Injury Fund of the State Treasurer v. Lupachino, No. AC
    • United States
    • Appellate Court of Connecticut
    • June 3, 1997
    ...legislative enactments, determine the rights [45 Conn.App. 342] secured thereby, and apply the remedies prescribed." Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 (1905); see Wilson v. Security Ins. Group, 199 Conn. 618, 628, 509 A.2d 467 (1986); Genco v. Connecticut Light & Power Co.,......
  • Caldor, Inc. v. Thornton
    • United States
    • Supreme Court of Connecticut
    • September 6, 1983
    ...to construe legislative enactments, determine the rights secured thereby, and apply the remedies prescribed.' Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 [1905]." State v. Clemente, 166 Conn. 501, 509-10, 353 A.2d 723 " 'No court can directly set aside an Act of the legislature; and ......
  • State v. Rodriguez
    • United States
    • Supreme Court of Connecticut
    • April 29, 1980
    ...apply the remedies prescribed.' " State v. Page 921 Clemente, supra, 509-10, 353 A.2d 728, quoting Atwood v. Buckingham,[180 Conn. 385] 78 Conn. 423, 428, 62 A. 616 (1905). Statutes relating to the qualification of jurors are part of the machinery created by the legislature to prescribe app......
  • Kinsey v. Pacific Employers Ins. Co., No. 17182.
    • United States
    • Supreme Court of Connecticut
    • March 7, 2006
    ...191 Conn. 336, 343, 464 A.2d 785 (1983), aff'd, 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985), quoting Atwood v. Buckingham, 78 Conn. 423, 428, 62 A. 616 (1905). "[T]he legislature makes, the executive executes, and the judiciary construes the law." (Emphasis added; internal quotation......
  • Request a trial to view additional results

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