Connecticut. Supreme Court of Errors.

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with the terms of the statute.

One of the writs under which the plaintiff acted was in
favor of N. G. English, described as of New Haven, in the
county of New Haven, against Edwin Barnes, described as
late of New Haven, now of Norfolk, Virginia. This writ was
returnable to the Superior Court for the county of Fairfield,
to be held at Danbury on the 2d Tuesday of August, 1868.
Under our statute we think that court had no jurisdiction of
the persons described in the writ. Gen. Stat., p. 17, § 80,
The process was void on its face, and it is not necessary there-
fore to bestow upon it further consideration. There remains
the writ of Skidmore against Barnes, which seems to be a
valid precept. The plaintiff, though not an executive ofiicer,
was lawfully deputed as an indifferent person to serve this
writ, and the question in this part of tiie case is, did he, in
serving it, attach ttie property in question ?

It has already been stated that be did not return it on the
writ as attached, but he offered himself as a witness to prove
that he did attach it, and was permitted to do so^ though the
defendant objected to the testimony.

Our statute, as we think, plainly requires that the return
on every writ of attachment should show what property has
been attached under it. To allow the ofiicer or indifferent
person who has served it, to come into court in another suit,
between other parties, and testify to his having attached other
property not mentioned in the return, and so leave the evi-
dence of the proceedings had on the writ to rest partly in
writing and partly in parol, would introduce infinite confusion
and mischief. We see no good reason for allowing a practice
so strange and anomalous. It is strongly insisted that the
officer may amend his return, even after a long period of time
has elapsed, indeed after he has gone out of office ; and that
is readily admitted. It is a just and salutary rule, oftentimes
necessary to correct mistakes, supply omissions, and make
the return a perfect and c<Hnplete record of the officer's



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602 FAIRFIELD COUNTY.

Sanford v. Pond.

doings. The^yery idea of amending it assumes that it is the
evidence, and, so far as he is concerned, the exclusiye evidence
of his doings under it. In Wilder v. Solden^ 24 Pick., 11,
12, Morton, J., in giving the opinion of the court, says —
" We know of no way to prove an attachment of property
but by the oflScer's written return on his precept. It is this
writing which perfects, if it does not constitute, the attach-
ment. * * * The officer may seize personal property, but
unless he make a proper statement of it in writing on a pre-
cept, it cannot be deemed an attachment. The right of tiie
officer and his servants to hold the property attached is perfect
before the return of the precept to the office where it is return-
able, and unless relinquished will continue till the return day.
If it be not returned at all the attachment will be dissolved.''
In a recent case in this court, WiUiams v. JveSj 25 C!onn,,
568, similar doctrine is recognized. That was an action of
trespass de bonis asportoUU against an officer. He gave in
evidence that he had a lawful writ in his hands against the
plaintiff, and that he took the property described by virtue
of the same. He subsequently learned from the plaintiff in
that suit, that the writ had been issued without his authority
and thathe wished him to proceed no farther in the service
of the writ, and to restore the property taken to the owner.
He did so, and made no return of his writ to court. The
plaintiff in the suit brought against the officer obtained a
verdict, and the defendant moved for a new trial, Hinmak,
J., gave the opinion of the court. He says — ^' He (the officer)
must justify by his process, or he stands in the condition of a
naked trespasser without process ; and he cannot prove by parol
that he had a legal warrant, but he must show it, and must
show by his return upon it what he did under it, that the court
may see whether his acts are justified or not." If an officer can-
not show by parol what he did with legal process for the pur-
pose of justification when sued, he ought not to be allowed to
show by parol what he did to establish a claim in his own
favor against another. If the law does not recognize parol
evidence in such a case as a shield to protect, it surely can-
not permit it to be used as a sword to attack.



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FEBRUARY TERM, 1871. 593

Sanford v. Pond.

There being then no legal evidence that the plaintiff ever
attached this property, he fails altogether to establish any
right, title or interest whatever, in it, or to it, and of course
cannot recover. Tliere is nothing to uphold this verdict ; it
must be set aside and a new trial ordered.

It is thus rendered unnecessary to decide any other ques-
tions raised on the record, but as we have given them some
consideration, and as it may be the means of saving expense
to the parties litigant, we have concluded to express om* views
on some other points.

It appears that these writs, in the hands of Sanford for ser-
vice, were returned by him, and judgment was rendered by
default at the August term, 1868, of the Superior Court for
the county of Fairfield. No execution had been taken out on
either judgment at the time of the trial of this action, Octo-
ber term, 1870,

Assuming now that the property in controversy was legally
attached by the plaintiff, has he, in view of these facts, a
right to recover in this suit ?

We think he has not. There can be no dispute as to the
principle on which his right to recover rests^ It has been
settled too often to admit of doubt. Story on Bailments, 94 ;
Drake on Attachment, 848. As tersely and correctly stated
by Judge Carpenter in Dayton v. Merritty 33 Conn., 186,
" the plaintiff (an attaching officer sueing on a receipt) can
maintain his action onTy because of his accountability to the
attaching creditor, or to th6 owner of the property attached.
If the circumstances are such that he is accountable to nei-
ther he cannot recover."

The only persons to whom the plaintiff can be liable are
the attaching creditors, whose writs he served, and the owners
of the property which he attached. English and Skidmore
are the attaching creditors. The court in Fairfield (bounty
could not entertain jurisdiction in the case of English against
Barnes ; the process, as we have already said, was void on its
face; the judgment rendered was necessarily void, and of
course there is no foundation for. any claim in favor of Eng-
lish against the plaintiff. In Skidmore's case there was no

Vol. xxxvii. — 75



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694 FAIRFIELD COUNTY.

S«nibrd v. Pond.

appearance for the defendant ; it was defaulted and went into
judgment at the first term. Our statute, (Gen. Statutes, p.
17, sec. 77,) says of such an action, " The court shall con-
tinue the same to the next term." It may be further contin-
ued, if the defendant does not then appear, at the discretion
of the court, but the court is allowed no discretion as to the
continuance at the first term. If the defendant does not ap-
pear before judgment the court of course acquires no jurisdic-
tion over his person and can render no judgment that would
be binding upon him personally. The proceeding becomes a
mere statutory proceeding for the appropriation of the prop-
erty attached to the payment of the debt on which it is at-
tached. This being so, every step required by the statute
must be taken, precisely as an officer in levying an execution
on real estate must comply with every statutory requirement
in the proceeding or no title will pass by the levy. Here a
most important statute requisite was omitted, and consequently
a levy of the execution on the property would have been of
no effect.

Passing all this by, supposing this judgment to have been
a lawful and valid one, we find a period of more than two
years to have passed before the trial of this case in the court
below, and no execution had been taken out Any lieu created
by the attachment on this pix>perty for the benefit of Skidmore
continued for sixty days after the judgment, and no longer.
Years therefore had elapsed, when this case was tried in the
court below, since Skidmore had had any interest in this
property, directly or remotely, by virtue of this attachment.
He omitted to take the necessary legal steps to fix any liabil*
ity to him on the officer during the sixty days, and none ex-
ists. We have no hesitation in saying that the plaintiff is
under no responsibility to Skidmore on account of this prop-
erty. A call by him on Sanford, as attaching officer, for not
applying ihe property attached according to law on the exe*
cution, is conclusively answered by the admitted fiskct that no
execution was ever issued.

The cases of Burrows t. Stoddard^ 8 Conn., 481, and MSUb
y. Camp^ 14 Conn, 219, may seem to give countenance to a



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FEBRUARY TERM, 1871. 595

Sanfbrd v. Pond.

contrary doctrine. The case of Burrows v. Stoddard was
never weighty as an authority ; it was doubted by Church, J.,
in giving the opinion of the court in Q-ates v. Btishnell, 9
Conn., 634, and Judge Peters, in the same case, p. 636, ex-
pressed himself with judicial emphasis, as " glad to see Bur-
rows V. Stoddard shaken, and he thouglit it would not survive
another concussion.'' We are not inclined to vindicate the
doctrine of that case. MiUs v. Cofnq^ was an action of tres-
pass brought by a deputy sheriff, who claimed title to the
property in dispute, iron ore, by virtue of the levy of sundry
writs of attachment iti favor of creditors of the owners of the
property. The defendants took the same property on writs
of attachment in favor of other creditors, claiming that the
property had not been lawfully attached. The plaintiflF ob-
tained a verdict, and, on a motion for a new trial by the de-
fendant, one claim was that the plaintiflF had lost his lien
created by the original attachment, if any was created, by
omitting to make demand of the defendant for the property
on the executions which issued. The court did not recognize
the claim, and refused a new trial. They say : " They (the
defendants) continued to hold it (the property) wrongfully
after judgment was rendered, and still deny that he (the
plaintiflF) had any right to make demand of them. As be-
tween the plaintiflF and themselves the obligation lay on them
to return the property, not on him to demand it."

If this doctrine goes to the extent of holding that an offi-
cer may recover for property which he has attached, without
reference to his liability over to third persons, we cannot give
it our assent. That is one of the obnoxious features in Bur-
rows V. Stoddard. But the case at bar is clearly distinguish-
able from both these cases. In them there were regular,
valid judgments, and executions duly issued. In this case
tiie judgment, to say the least, was erroneous, and no execu-
tion has been issued. In Milfs v. Camf the court say that
the plaintiflF's right of action accrued, and his suit was insti-
tuted, before judgment was rendered. That claim is made
in this case. There is no doubt but that an oflScer who has
duly attached property may, while the suit is pending in court,



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696 FAIRFIELD COUNTY.

Sanford v. Pond.

recover its value from any one who has wrongfully taken it
from him, and tliis on the ground of liis undoubted liability
over, either to the attaching creditor or to the owner. But
if his liability over is ended, his right to recover is also ended.

Tliis case is distinguishable from both the above cases in
another important particular. The property in this case be-
longed to Preston and Baines jointly. The plaintiff attached
the interest, or attempted to attach tlie interest, of Barnes
only. Tlie defendant attached the interest of Preston only.
Evidence was given, it seems, in the court below by the de-
fendant, of writs in his hands against fiarncs, but they were
not laid in, and form no part of the record. The process on
which he must rest is -the two writs against Preston, one in
favor of Carrington, the other in favor of King. He sold all
the interest of Preston in the property taken by him on Car-
rington's execution. There is no evidence tliat he sold or
attempted to sell Barnes's interest. His holding or selling
Pj-eston's interest was no denial of the right of tlie plaintiff
to sell Barnes's interest. In Mills v. Camp and in Burrows
V. Stoddard the parties were contesting the right to the same
property. Here the plaintiff claims a right to Barnes's inter-
est, and the defendant a right to Preston's intei^st, the prop-
erty being joint property.

The plaintiff tlien is certainly not answerable in any way
to Skidmore. There is no one else to whom he -can be liable
but tlie owner of the property. The plaintiff claims that it
belonged to Barnes ; as his, he attached it. Testimony was
given on the trial of a sale of this property by Barnes to Eang.
King testified that he bought it. The plaintiff scouts the
idea of such a sale. It may or may not have taken place.
We have only to say that, whetlier it belongs to Barnes or
King, and it seems to be admitted that it belongs to one or
the other, neither of them has any claim on the plaintiff.
King has no claim, for he bought Pi*eston's interest at sher-
iff's sale and took possession of the whole property. What
more can he have ? If Barnes is still the owner he has no
claim on the plaintiff, for the defendant sold Preston's inter-
est to King, delivering him tlie possession ; and a delivery of



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SUPPLEMENT. 697



Keyser v, Coe.



property, owned jointly, to a co-tenant, after the attachment
is dissolved, discharges the liability of the oflScer. Frost v.
Kellogg^ 23 Verm., 308. King bought Preston's interest,
and so came lawfully into possession of the whole property.
If Barnes still continues owner of his share, he can call on
King for it, but not on the plaintiflF.

The plaintiff then has not only failed to show that he ever
attached this property, but has also failed to show any exist-
ing liability over to any person even if there had been an
attachment. Should this verdict be allowed to stand, for
aught that we can discover the plaintiff would be allowed to
put this money into his own pocket and use it for his personal
benefit, without the color or shadow of right to it. No one
has the hardihood to make such a claim ; it is repugnant
alike to common sense and common honesty.

Let the verdict be set aside and a new trial be granted.

In this opinion the other judges concurred.



• ♦•



SUPPLEMENT.



John H. Keyser vs. Enoch Coe.

[United States Circait Court, District of Connecticnt. Before Woodbuff and
Shipmam, Jb. Decided at September Term, 1871.]

Whether, where noxious odors, generated by the defendant in a manufactory car.
ried on by him outside of the jurisdiction of this court, are transmitted through
the air to the residence of the plaintiff situated within such jurisdiction, and
there inflict injnr)^, this court has jurisdiction to arrest the evil, the parties
being properly before it : Qutxrt.

Under the patent of Connecticut of March 19th, 1631, known as the Warwick
Patent, and the charter of Connecticut of April 23d, 1662, granted by CharlM



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698 SUPPLEMENT.



Eeyser v. Ooe.



n, and the patent of Charles II to the Duke of York, of March 12th, 1664
upon which three doooments the territorial limits and jarisdiction of the c<d
onies of Connecticut and New York rested, the islands lying easterly of the
land boundary between the two, and adjacent to the Connecticut shore, are
within the jurisdiction of Connecticut.

The possession of Connectiout has always been oonsistent with this view of the
documentary title.

Although New York has claimed jurisdiction over three islands, called Captain's
Islands, lying some ten miles to the westward of Goose Island, a small island

V lying about a mile from the shore off Norwalk, Connecticut, yet Connecticut
has never conceded such claim, and New York has nerer claimed jniisdictioa
over Goose Island.

Goose Island is within the territorial limits of Connecticul

Shipman, J. This was a bill in equity to enjoin a nuisance.
The plaintiff owns and occupies a residence on the shore of
Long Island Sound, in the town of Norwalk, in ttie state of
Connecticut, and the defendant owns a small island, called
Goose Island, about a mile from the shore. On this island
the defendant has an establishment in which he manufactures
artificial manures, from dead fish and other offensive materi-
als, the fumes of which often reach the main-land and tlie
plaintiff's residence, and create, as the bill alleges, an intol-
erable odor, exceedingly disagi'eeable and sickening. The
plaintiff brought his bill against the defendant to enjoin this
nuisance, in the Superior Court of Connecticut for Fairfield
County. Tlie defendant removed the cause into this court,
and filed a plea to the jurisdiction, alleging that Goose Island
is not within the state of Connecticut, and consequently not
within the limits of this judicial <iifltrict ; and averring that
therefore this court is without jurisdiction. This plea the
plaintiff traversed, and the evidence on the issue of fact thus
raised having been heard, on the 5th of May last Judge Wood-
ruff delivered an oral opinion of the court, finding tiiis fact
adversely to the claim of the defendant, and overruling the
plea ; at the same time stating that a written opinion, fully
embodying the views then expressed, would be filed at a sub-
sequent day. We now proceed to set forth in somewhat more
detail the views thus orally presented.

The main question is, whether the subject matter of this
«uit is within the jurisdiction of the court The bill alleges



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SUPPLEMENT. 599



Keyser v. Coe.



that the noxious odors complained of are transmitted through
the air, from the defendant's works on the island, to the
plaintiff's residence -which is in Connecticut, injuring the
health and destroying tlie comfort of himself and family,
and impairing the value of his property. It was suggested
on the argument that even if Goose Island, where the nox-
ious odors are generated, be without the district of Connecti-
cut, yet as these odors are blown to the shore, and there
inflict the ii\jury complained of, this court has ample jurisdic-
tion to arrest the evil, the parties being properly before it.
This is an interesting question, but the conclusion which we
have reached on another and more comprehensive branch of
ihe case, renders it unnecessary that we should pass upon it.
We therefore confine ourselves to the question of fact to
which the proof was addressed, and the only one which was
discussed on the argument, and that is whether Goose Island
is within the limits of the state of Connecticut.

The rules of evidence applicable to controversies touching
the boundaries of states do not differ materially from those
relating to the boundaries of land between individuals. In
both cases resort is made to documents and muniments of
title, such as grants, charters, and deeds, and when these fail,
to evidence of use and occupation. We have, in tliis case,
tested the question now under consideration by both of these
classes of evidence.

The first piece of documentary evidence which claims our
attention is the patent of Connecticut, well known in her his-
tory as the Warwick Patent. The date of this patent was
March 19, 1631* It is stated by Trumbull, in his history of
Connecticut (vol. 1, p. 27), that Warwick derived his title
from the Council of Plymouth, by a grant made to him in
1630, and confirmed by a patent from Charles I. The Coun-
cil of Plymouth held under the great patent of New England,
from James I, dated November 8, 1620. Though the descrip-
tive words of tlie grant in this Warwick Patent of 1631 are
peculiar, a careful consideration of them leaves no substan-
tial doubt as to theur true meaning, so far as they bear on the
present controversy. This descriptive clause is as follows :



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600 SUPPLEMENT.



Kcyser v. Coe.



"All that part of New England, in America, which lies and
extends itself from a river tliere called Narragansett river,
the space of forty leagues upon a straight line near the sea-
shore towards the south-west, west and by south, or west, as
the coast lieth towards Virginia, accounting three English
miles to the league ; and also all' and singular the lands and
hereditaments whatsoever, lying and being within the lands
aforesaid, north and south in latitude and breadth, and in
length and longitude of and within all the breadth aforesaid
throughout the main-lands there, from the western ocean to
the south sea, and all lands and grounds, place and places,
soil, wood, and woods, grounds, havens, ports, creeks and
rivers, waters, fishings, and hereditaments whatsoever lying
within said space, and every part thereof; and also all
islands lying in America aforesaid, in the said seas, or either
of them on the western or eastern coasts, or parts of said
tracts of land by these presents mentioned to be given,
granted, etc." It will be noticed that the eastern boundary
of the tract here granted is not described except by naming
Narragansett river (now called Narragansett Bay) as the line
from which the belt of land included in the grant took its
start. Th® northern boundary is not described at all, but it
has universally been understood to be coincident with the
southern boundary of the colony of Massachusetts Bay, as
fixed by the grant of the Cpuncil of Plymouth to Sir Henry
Roswel and others, March 19, 1627. The western boundary
of the line granted by the Warwick patent it is not necessary
to determine in this controversy. It was long a subject of
dispute between Connecticut and other colonies, and involved
interests of great magnitude, but which do not now concern
us. The words in this patent " from the western ocean," re-
fer of course to the Atlantic. This is clear from the fact
that the grant to Sir Henry Roswel and others, already re-
ferred to, and dated four years earlier than the Warwick
patent, employs the words " from the Atlantic and Western
sea and ocean on the east part to the South sea on the west
part/* Whether the words " South sea" in the Warwick



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SUPPLEMENT 601



Kcyser v. Coe.



patent meant what is now called the Pacific Ocean, as has
been generally supposed, we do not stop to inquire.

We now come to that part of the southern boundary of
the Warwick grant which is gennane to the question before
the court. It commenced at Narragansett river, or bay, on
the east, and extended westerly " as the coast lieth toward
Virginia," forty leagues, or an hundred and twenty miles.
The words " upon a straight line" are not used in the instru-
ment to designate the actual southern boundary, but merely
as a line on which the distance between the two teimini was
to be measured, these termini being Narragansett river on the
east, and a point on the coast forty leagues fi»m that starting
point. The words " near the sea-shore" must have been used
in the sense of " alonff the sea-shore." But if we were to
construe the words " upon a straight line" literally, tlie bound-
ary indicated by it would not support the defendant's plea to
the jurisdiction. For a straight line drawn from Point Judith,
the starting point, to Lyons Point, which has long been prac-
tically settled as the western terminus, would leave Goose
Island on the north and within the limits of the grant. But
as already stated, we regard the southern boundary indicated
by the descriptive words of the grant to be the coast washed
by the sea. Tliis interpretation is confirmed by other com-
prehensive words of the grant, by which are included in it,
not only all " havens, ports, waters, fishings," but '^also all
islands lying in America aforesaid, in the said seas or either
of them, on the western or eastern coasts, or parts of said
tracts of lands." The word "seas" in this pas8ag:e cannot
be confined to Narragansett Bay on the east and the Pacific
Ocean on the west, for the former . is called only a river in
this grant. "Seas" must have included the Atlantic, of
which Long Island Sound was an arm. We need not trouble
ourselves now to inquire whether or not Ijong Island could
be properly covered by this grant, as Connecticut long and



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