Borough of Wallingford v. Hall

• Decision Date: 29 June 1894
• Citation: 64 Conn. 426,30 A. 47
• Parties: BOROUGH OF WALLINGFORD v. HALL.
• Court: Connecticut Supreme Court

30 A. 47

64 Conn. 426

BOROUGH OF WALLINGFORD

v. HALL.

Supreme Court of Errors of Connecticut.

June 29, 1894.

Appeal from court of common pleas, New Haven county; Hotchkiss, Judge.

Action by the borough of Wallingford against Henry F. Hall. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Tilton E. Doolittle, for appellant Charles Kleiner, for appellee.

FENN, J. The charter of the borough of Wallingford, which is a public act, empowers its court of burgesses to make and enforce by-laws upon certain subjects, one of which is the "excavation or opening of the streets or highways for public or private purposes." Pursuant to such authority, said court of burgesses passed a by-law "prohibiting the opening or making of any excavation, vault or cellar, in, upon, or under any street or highway in said borough, without the consent of the warden or court of burgesses," and providing that "every person violating said by-law shall forfeit and pay, for such offense, a sum not exceeding twenty-five dollars, for the use of said borough." This action was brought for a violation of such by-law, the alleged breach being an excavation made by the defendant in the highway adjacent to a tract of land owned by him. The complaint was made returnable before a justice of the peace. The writ was dated November 18, 1892, and served November 19, 1892. It was alleged that the defendant made an unauthorized excavation in May, 1891, "and has ever since allowed and caused said excavation to remain," and that, "by reason of said offense of the defendant in making said excavation, the defendant has forfeited and become bound to pay to said borough the sum of twenty-five dollars, as provided by said by-law." In the court of common pleas, to which the action was appealed by the defendant, to the defense of denial the defendant added, as a second defense, the limitation of Gen. St. § 1379, which provides that "no suit for any forfeiture, upon any penal statute, shall be brought, but within one year next after the commission of the offense." It was alleged that "the offense was not committed within one year next before the bringing of this action." To this defense the plaintiff demurred, and the court overruled the demurrer. The plaintiff then denied the matters contained in said second defense, and, upon the issues made up by the defendant's denial of the complaint and the plaintiff's denial of the second defense, the case was closed to the jury. Upon the trial, the plaintiff having introduced its evidence and rested its case, the defendant moved for judgment, as in case of nonsuit, which the court granted, upon the ground "that the plaintiff proved that the excavation in question was made, if ever, in May, 1891, and the file shows that the suit was not brought until November 19, 1892, more than one year later, thus bringing it within the statute of limitations." The court of common pleas having denied a motion to set aside said nonsuit, ...