author: Thompson, J. Livingston, J. Radcliff, J. Kent, J. Lewis, Ch. J.,

text:
    *Henderson and others against Brown.
    If a house he liable to be assessed, trespass will not lie against an inferior officer for executing a warrant of distress though the assessment be erroneous.
    Trespass for breaking and entering the plaintiff’s close, called the Hew Theatre, and taking and carrying away three hundred and twenty-five pieces- of silver coin, of the value of one dollar each. Plea not guilty, with an agreement that any of the facts, which now appeared in the case reserved for the opinion of the court, might be given in evidence with the same advantage as if they had been specially pleaded.
    The defendant was duly appointed a collector of the direct tax for the district in which the loom in quo is situated, under the act of congress, entitled “ An act to lay and collect a direct tax within the Tl nited States.” He was furnished with a list in which the bom in quo was designated as the dwelling-house of John Hodgkinson, and as such was taxed at three hundred and twenty-five dollars, for non-payment whereof he entered and took the silver coin in question.
    The theatre and appurtenances on which the tax was laid and levied as aforesaid, were not the dwellings of amy one, but merely buildings for the exhibition of dramatic performances, though the theatre itself was inserted in the list of dwelling-houses by the assessors in the valuation made under the act of congress, entitled “An act for the valuation of lands and dwelling-houses, and the enumeration of slaves within the United States, ’ and no appeal was made from the assessment.

      Had the theatre and property been inserted in the land list, the tax upon it would have been less than the one with which it was now charged. The defendant had not any authority to enter and make the distress, except such as he derived under the statute imposing the tax laid upon it as a dwelling-house.
    On this statement it was agreed that if the court should be of opinion there was sufficient to justify the entering and taking of the distress, a verdict was to be entered for the defendant, otherwise for the plaintiff, with interest from the time of the distress made; the form of action or of pleading not to prejudice the determination of the question on either side.

      Hopkins, for the plaintiff.
    The act of the 9th of July 1798, specifies the kinds of property which are the [*93] subjects *of valuation, and the manner of making the list. Dwelling-houses, with the outhouses appurtenant, and the lots on which the same are erected, not exceeding two acres in any case, are to be inserted in one list. All lands, &c. except those on which dwelling-houses are erected, are to be valued, inserted in another list, and valued with a reference to all buildings thereon. A theatre is not in its nature a dwelling-house. The case negatives the fact of its being the dwelling-house of any person whomsoever. It ought, therefore, to have been included in the list of lands with the buildings thereon. The manner in which the direct tax is to be levied by the act of the 14th of July, 1798, makes this very material to the citizen. Houses and slaves are taxed at specific sums: upon land is assessed only the residuary sum necessary to complete the amount directed to be levied in each state. Had the theatre, which as a house is taxed at three hundred and twenty-five dollars, been placed on its proper list it would not have been assessed to one fourth of the amount Here, therefore, is a wrong for which the law must afford some remedy. 1 H. Black. 68. 4 D. & B. 2 and 4. 8 D. & B. 468,

       show that in a similar cases the remedy, in the English courts, is established to be against the collector who distrains for the tax, and that trespass is the proper form of action. The mode of redress by appeal given by the act of the 9th July, 1798,

       is not applicable to the present case for many reasons; 1. The principal assessor can only correct inequalities in reference to other valuations : he cannot remove property from one list to the other; 2. The house or land might be very properly valued, though placed on the wrong list; in this case there would be a grievance, though nothing for the principal assessor to redress, because there would be no error in the valuation; 8. The time of appealing to the principal assessor is before the tax could by law be apportioned upon houses and lands. Therefore, although the circumstance of the theatre’s being placed on the wrong list might be the ground of a serious injury to the party, yet he could not at the time of the appeal know it would so operate: nor could the principal assessor take that circumstance into consideration, or be apprised of it at the period of pronouncing judgment on the appeal.

      *Hamilton, contra.
    Three questions present them- [*94] selves for the consideration of the court; 1. Whether this court will enter into any examination of the acts of the mere ministerial officers of the general government, acting under their revenue laws? 2. Whether the judgment of the assessor is at all examinable here ? 3. Whether a warrant, upon the face of it regular, is not a complete justification'to the defendant? On the first point, he said, he should not himself much insist, but as the idea had bee>v entertained, by gentlemen of some-consideration, he thought it his duty not to pass it over in silence. On the other points, he observed, policy and justice required that mere ministerial officers should not be either compellable, or even permitted, to question the legality of the proceedings of those under whom they act. With regard to officers of ■courts the rule certainly is, that the writ is a justification unless the want of jurisdiction, or a manifest abuse of that jurisdiction, appear upon the face of it. The inclination of the courts has been to narrow the liabilities of all mere executive officers. In cases like the present the hardship and inconvenience of making the officer liable are great. He must be supposed innocent of any intentional wrong, and acting merely in obedience to superior orders, against which no one is bound to indemnify him. There was nothing in the appearance of the theatre to strike his senses that it could not be used as- a dwelling-house. It was not a visible impossibility in the nature of the building: some part might have been occupied by the manager or Mr. Hodgkinson, as whose residence it was particularly described. The defendant did not therefore wilfully, with his eyes open, and when he was convinced he was doing wrong, commit the trespass complained of. If the plaintiffs are injured, they have their remedy by appeal to the principal assessor, who would certainly afford redress. Should it not be obtained, they may petition congress. The wrong now complained of, if any, is that of the assessors, and if individuals are to be made liable, the action ought to be against them, not against the collector.
    *Hopkins, in reply.
    Trespass is the proper and only remedy for the plaintiffs, nor could it be maintained against the assessors, unless the collector were liable: if so at all, it must be as a trespasser, and he may therefore be sued separately. If it be meant that case should be brought against the assessors, that action certainly will not lie, unless they maliciously and corruptly made a wrongful assessment. The rule that a process, regular upon the face of it, shall justify the officer, is confined to the officers of courts of record, and extends to no others. The plaintiffs know the defendant, not as acting under any authority, but as a mere trespasser. If he avail himself of any justification under the law of the United States, he must show himself protected by it; and if the court cannot examine that authority they must reject the justification, and then the party stands without defence. Numerous cases in the books show that the acts of all officers are examinable by action in a court of record. A very common one is that against messengers of commissioners of bankrupt. So the state warrant causes. Trespass against collectors of rates, fines and taxes is every day’s practice. Of this the authorities cited are proofs, and the one from H. Black, is nearly analogous: the appeal to the principal assessor cannot reach the grievance complained of. His power is to re-examine and equalize the valuations.' In the preceding section it is expressly provided, “ That the question to be determined by the principal assessor on appeal respecting the valuation, shall be whether the valuation complained of be, or be not, in a just relation or proportion to the other valuations in the same assessment district.” But the complaint here is of a different nature. Suppose the valuation in point of fact not too high in relation to other valuations, but much too low, still it may be taxed too high, because taxed as a house. How the tax would be affected by placing the theatre on a wrong list could not be known at the determination of the appeal; but even if known, the answer to the appeal would be a conclusive one: for if the property was valued either in a “just relation” to other property, or lower, the equalization which the principal assessor is authorized to make, would be no remedy for the error here complained of.

        а) July 14, 1798, con. 5, s. 1, c. 92, s. 4.

       S. 2, 5, 6.

       July 9th, 1798, con. 8, s. 1, c. 87, s. 8, 9.

       S. 18.

         Sec. 2.

         Harrison v. Bulcock and six others.

         William v. Pritchard, Eddington r. Borman.

        Perckard v. Heywood.

         Secs. 18, 19, 20.

         Sec. 20.

   Thompson, J.

This was an action of trespass for making a distress as collector for a tax on the theatre in [*96] New-York, ^imposed under the act of congress. It is admitted on the part of the plaintiff that the theatre cannot be considered as a dtoelling-house in the contemplation of the law, and of course not taxable as such. But it is contended that the collector is justified by his warrant notwithstanding this, so that the plaintiff has no remedy against the officer.

Officers, acting under process from superior authority, ought in all cases to be justified by their process, where that can be done consistent with the established principles of law, and the rights of parties. That the rule is not universal as it respects ministerial officers, I think well settled. The distinction that is laid down in 10 Coke’s Bep. 76, is, that where the subject matter of the suit is within the jurisdiction of the court, but the want of jurisdiction is as to the person or place, unless the want of jurisdiction appears on the process to the officer who executes it, he is not a trespasser; but where the subject matter is not within the jurisdiction of the court, there every thing done is absolutely void; the officer is a trespasser. If the present case be tested by this rule, the collector must be considered as a wrong-doer. . The theatre was not taxable as a dwelling-house. All proceedings, then, to impose the tax or collect it, must have been with out authority, and wholly void, being a subject not within the jurisdiction of the assessors. Unless the plaintiff has his remedy against the collector or the assessors, he is without redress in a court of justice, and we are driven to say here is an injury without a remedy. Admitting the assessors were liable, still this will not, upon the principles decided in the above case, excuse the collector; all are trespassers. The distinction above taken with respect to ministerial officers justifying under process appears to me analogous to the present case, and has been repeatedly recognized in the English courts, in actions of trespass against their commissioners and collectors of taxes. In the case from H. Black. Bep. 72, the action was brought against the collector and commissioners jointly; and in the two cases cited from Term Hep. the action was against the collector only. No question was there raised with respect to the officer’s being justified by his warrant; the sole inquiry was whether the property, for the tax of which distress had been made, was taxable; conceding that, unless it was, all the proceedings were void, and the oificer a trespasser; and the property not *being consi- [*97] dered taxable in the opinion of the court, judgment was given against the collector. So in the present case, the theatre, not being taxable as a dwelling-house, the subject matter was not within the authority of the assessors, and the imposing the tax was illegal, void, and could not afford ground of justification to the collector.

I am, therefore, of opinion, judgment ought to be for the plaintiff.

Livingston, J.

Upon no principle ought the defendant to be liable. It is made his duty, on the receipt of the list, to collect the tax, if not paid by a limited time. It was not for a subordinate officer, who was concluded by the judgment of the assessors, to question the propriety of the theatre’s being classed as a dwelling-house. Having acted under a competent authority, and paid the money over, why should he refund the plaintiff’s loss out of his own pocket, and be left to the liberality of government for his indemnity ? If a wrong has been committed, and they are disposed to correct it and do justice, it is as probable they will act on the petition of the party aggrieved by the assessment, as on that of the collector; while a collector, by being thus exposed, might be ruined by a denial to reimburse him, no other individual can be very extensively injured by a like refusal. In this ease the assessors had jurisdiction over the subject, and their mistake in considering a theatre as a dwelling-house, must be regarded as an error in judgment, for which a collector ought not to be thus harassed. They might suppose that as a theatre yielded a considerable rent, it was reasonable it should be subject to as large a tax as a dwelling-house. In the cases cited from 1 H. Black. 68, and 8 Term Rep. 468, the proceedings were coram non judice. The only questions there related to the exemption of certain property altogether by the terms of the several acts of parliament. The officer’s liability to refund was not made a point in .the argument, but appears to have been submitted sub silentio; at any rate, these are recent cases, and not obligatory here. It is better, therefore, to sanction a rule suggested by the common sense and feelings of men, and which affords protection to every ministerial officer acting under persons clothed with proper authority, than to adopt the subtlety and refinement of certain modern decisions, which are calculated to deter inferior officers from a faithful and prompt [*98] discharge *of their functions, or to expose them to much vexation and expense.

It is also much in favor of the collector that the plaintiffs neglected to appeal. This being a remedy provided by the act, they ought not lightly to be permitted to elect another.

Radcliff, J.

On the trial of this cause it appeared that the plaintiffs were owners of the new theatre in the city of New York; that the same was assessed and valued as a dwelling-house, under the act of congress to provide for the valuation of lands and dwelling-houses and the enumeration of slaves within the United States, and was taxed as such, in pursuance of the act to lay and collect a direct tax within the United States. The defendant was a collector, and for non-payment distrained in a regular manner, for the tax, and justifies that he had a right so to do. As a theatre merely, it was conceded not to be a dwelling-house within the intent of these acts of congress, and it does not appear that it was ever occupied as such. The assessors, therefore, had no authority to assess it as a dwelling-house, and subject it to the tax on houses of that description; nor could the collector derive from their assessment, or from any warrant which he may have possessed, an authority to demand a tax, which no one had a right to impose. The power of the assessors was special and limited, and ought to have been strictly pursued within the bounds prescribed by law, and it was incumbent on the collector to see that he acted within the scope of their authority and his own, and by exceeding it he became in the eye of the law a trespasser.

In England the same rule prevails in regard to their officers of the revenue, and particularly in the analogous case of their land tax. The cases in the English books are uniform and decisive on this point, and in none of them was there a doubt entertained whether the officer collecting the tax was liable. Their acts on the subject of the land tax are numerous, and bestow on commissioners, assessors and collectors, powers equally extensive with those conferred on the officers appointed under the act of congress. They have also an appeal from the assessors to the commissioners, similar to that from *our assessors; [*99] and in the case of Harrison v. Bullock and others, reported in H. Blackstone, that appeal was made and dismissed, and the collector was still held equally liable. Indeed, I know of no cases more parallel in their circumstances, and more intimately connected in principle.

The decisions on this subject are founded on the general rule of the common law, that special powers are to be strictly observed, and that all ministerial officers concerned in the execution of them are bound to see that they are clothed with proper authority. If there be any hardship in the ease, it has been experienced for ages in England, and it belongs to government to indemnify its officers when acting with good faith. Individuals ought not to suffer, and they can have no other judical remedy than the one now sought. I think it no answer to this reasoning to say that the assessors had power to assess this theatre as land, (which would subject it to a different tax,) and that, therefore, they had authority over the subject matter. Inferior officers are liable for an excessive exercise of power as well as a total want of it. If they step out of the limits assigned to them, they are equally trespassers. This is settled even in the case of magistrates executing a judical trust: although they have jurisdiction over the process as well as the person and cause, they are liable if they exceed their authority. The extent of this doctrine is not only supported by the principles of the common law, and a current of English decisions, but was adopted by this-court in the case of Percival against Jones, in which we gave judgment against a magistrate for. exceeding his powers.

Whether by the just construction of the act of Congress it admitted of an appeal on the point in question to the principal assessor, I think immaterial. The omission to make that appeal, or if made, the decision of the principal assessor against it, would not alter the case, or conclude the appellant. Such decisions would still depend on the discretion of a ministerial officer only, and unless such discretion is declared to be definitive, or the nature of the subject requires it to be so considered, I deem it a maxim from which we ought not to depart, that no one shall be finally concluded in his rights, without an opportunity to be heard in a court of justice and the regular decision of a competent tribunal.

As to the question which concerns the jurisdie[*100] tian of this "court in civil cases, where the validity of an authority exercised under an act of the United States is drawn in controversy, I think it cannot originally be doubted. This is simply an action of trespass, and the pleadings are in the usual form. The question under the act of Congress arises incidentally upon the evidence on the part of the defendant, and Congress, by their act establishing the judicial courts of the United States, have expressly recognized the jurisdiction of the state courts, and provided a remedy by writ of error returnable in the Supreme Court of the United States, in case the decisions of the state courts should contravene their laws.

I am, therefore, of opinion, that we possess jurisdiction that there was no authority under the act of Congress to impose or collect this tax, and that this action is maintainable against any officer who enforced it.

Kent, J.

The question submitted is, whether the plaintiffs are entitled to recover upon the facts stated.

The Act of Congress of 9th July, 1798, provided for the valuation of lands, dwelling-houses, and slaves, by assessors, to be appointed by commissioners. “ Every dwelling-house above the value of one hundred dollars, and the lot” on which it was erected, not exceeding two acres, was to be valued at the" rate such dwelling-house was worth in money, “ with a due regard to situation.” “ All lands and town lots, except lots on which dwelling-houses” were erected as aforesaid, were to be valued “by the quantity at the average rate” which each lot was worth in money, “in a due relation to other lands and lots, and with reference to all advantages of soil and situation, and to all buildings and other improvements of whatever kind, except dwelling nouses aforesaid.” In making the assessments the assessors were to require from the owners or possessors of dwelling-houses, lands, or slaves, separate lists of each, and *the lists of dwelling-houses were to specify their [*101] situation, dimensions, stories, windows, materials, kc. The lists of lands and lots were to specify the quantity of each tract or lot, the number, description and dimensions of all buildings thereon, except dwelling-houses aforesaid. And the assessors were themselves to make the lists for persons not prepared to exhibit the same, and where persons, on being required or notified, refused or neglected to furnish the lists, the assessors were to enter on the lands, &c., and to make the lists from the best information they could obtain. After the lists were thus collected, the assessors were to value the same in a just proportion aforesaid, and to arrange the lands, dwelling-houses and slaves mto three alphabetical lists. The principal assessor was then to give public notice in each assessment district, of the place where the lists and valuations were to be seen, and that appeals were to be received by him relative to erroneous or excessive valuations. These principal assessors were authorized to receive, hear and determine in a summary way, according to law and right, all appeals against the proceedings of the assessors: provided that the question to be determined on an appeal respecting the valuation of any lands or dwelling-houses should be whether the valuation complained of was in a just relation or proportion to other valuations in the same assessment district. The appeals were to be in writing, and were to specify the particular cause, matter or thing respecting which a decision was requested ; and to state the ground of inequality or error complained of, by reference to some other valuations in the same district: and in all cases to which reference was to be made in any appeal, the principal assessor was authorized to re-examine and equalize the valuations as should appear just and reasonable. After the expiration of the time for appeals, the principal and other assessors were to transmit to the commissioners of the district, copies of their lists and abstracts of their proceedings, and the commissioners were authorized, if manifest error or imperfection appeared in the abstracts, to require the assessors that the same be explained and corrected.

These are all the parts of the law that have relation to &e assessment complained of.

By another act of Congress of the 14th July, 1798, a tax was laid and assessed upon houses, lands and slaves according *to the above valuation, and the survey- [*102] or of the revenue was to make out lists of the sums payable for every dwelling-house and tract or lot of land, distinguishing what was payable for dwelling-houses, and what for Jands, and the collectors were to be furnished with these lists, and were bound to collect the sums accordingly. In pursuance of this last act, the defendant entered and collected the sum as stated in the case.

1. Upon this case I am of opinion that the plaintiffs had a remedy provided by the act for the error alleged, and that the principal assessor, upon appeal-, was competent to redress the grievance. The authority was in general terms to receive, hear, and determine, according to law and right, all appeals against the proceedings of the assessor. The limitation 'of the assessor’s power upon appeal respecting the valuation of lands, &c., did not apply to this case, for here the appeal would not have been respecting the valuation, but respecting the error in placing the theatre, which was not a dwelling-house, on the list appropriated to dwelling-houses. And as the plaintiffs did not avail themselves of the remedy by appeal, they may be considered as having acquiesced in the proceeding of the assessors. Here is a special trust created by statute, and a special remedy provided for the correction of mistakes in the execution of it; and I incline to the opinion, that the determination of tho principal assessor upon appeal was intended by the act to be of plenary discretion, and final authority. The multifarious and minute detail of the proceedings of the assessors seems to render such a discretion absolutely necessary to the due execution of the law; (Cowp. 524; 1 Burr. 544;) for I distinguish this from those cases in the English books where the assessors and collectors of their land tax have been held trespassers. There the commissioners had no authority at all over the subject matter which they included in the tax. (1 H. Bl. 68.) Here the theatre was required to be assessed by the assessors; if a dwelling-house, then as such: if not a dwelling-house, then as a lot of ground, with due regard to the improvements thereon; and, probably, the valuation would have been just the same, whether it had been placed on the one list or the other. The assessors had jurisdiction of the subject matter: they were bound to assess that building in the one view or the other, and in the exercise of that duty, it is alleged and admitted that they did not exercise their judgment duly. But [*103] this is very different from *the case in which they were not to exercise any judgment at all over the subject; in which they had stepped out of their path, and taken cognizance of a subject not at all delegated to them. In such an instance their proceedings would have been truly coram non judice, and they trespassers. Here the subject was by law sub judice, and the grievance is a mere error, or mistake by them while in the exercise of a lawful jurisdiction.

2. Another ground that may be taken upon this case is, that the grievance did not arise under the act of the 14th July, by virtue of which the defendant entered. That act ordered a tax (of which the sum collected by the defendant was a part) to be assessed upon dwelling-houses, lands and slaves, according to the valuations and enumerations to be made pursuant to the act of the 9 th of July. Congress by this law referred to, and adopted, the valuations that should be in fact made under the former law, without intending to discriminate between those valuations that should be accurately and truly in all respects made, from those which should be in fact made and returned in pursuance of the first law. The act cf the 14th of July, having adopted the valuations under the law of the 9th of July, and ordered a tax to be laid and collected accordingly, it was a complete authority to the defendant to enter as stated in the case. It would be a doctrine, I apprehend, of most manifest inconvenience (if it could be maintained) that if a tax be ordered by the legislature, and to be assessed and collected according to some antecedent valuation, that the collectors of such tax become trespassers, if peradventure there should be an error .in the assessment or in the arrangement of the prior valuations.

In England the annual land tax is to this day apportioned and assessed according to an antecedent valuation made as early as the year 1692, and this practice generally and necessarily prevails, in order to avoid the immense difficulty and labor of frequent valuations The continental assessments were also adopted by the legislature of this state in .the assessment and collection of a state land tax; and in all these cases of reference to- a valuation made, or to be made, by a former law, the true construction is, that the document referred to is not to be assumed as accurate, at the peril of the ministerial officer. The act adopting it necessarily ratifies it as sound, for *the [*104] specific purpose for which it is to be resorted to. And whether this reference be to a valuation under a law uf five days, or five years antecedent to the time of making .he reference, does not appear to me to make any difference in the principle. The gravamen now complained of »y the plaintiffs did not arise under the act by virtue of ivhich the tax was laid and the defendant entered, but under a prior law directing the valuation, and my opinion is, that the last act was a justification to the defendant, and for these reasons the plaintiffs are not'entitled to recover,

Lewis, Ch. J.,

declaring himself of the same opinion,

Ordered judgment for the defendant. ■

         Hard. 480; Buller, 82.

       4 D. & E. 2, 4; 8 D. & E. 468.

       1 H. Bl. 68; 4 T. Rep. 2, 4; 8 do. 468, and the cases cited. Vide 4 W. M., c. 1, and the acts referred to in' 1 H. BL 68.

         October term, 1800.. Since reported. 1 Johns. Cases, 393.

         Laws of United States, VoL IV., p. 168, et seq.

       1 Black Com. 326.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Callagan and others against Hallett and Bowne.
    A contract with a branch pilot of New-York to assist a vessel in distress foi a certain sum to be paid, is absolutely void.

      Qua. If good anywhere.
    After default a motion may be made in arrest of judgment, if on the face of the record it appear that the action was not maintainable.
    This was an action brought by the plaintiffs, who were pilots of the port of Hew-York, to recover five hundred dollars agreed to be paid to them by the defendants for bringing from Barnegat the brig Heptune, which had been there driven on shore.
    The declaration consisted of four counts: the first, an agreement with the captain on behalf of his owners; the second, on one with the owners themselves; the third, work and labor at the request of the defendants; the fourth,, a quantum meruerunt.

    Judgment had gone by default, but on the execution of the writ of inquiry, the defendants had come in and examined witnesses.

      Boyd

    now moved in arrest of judgment, contending thai the action appeared on the face of the record not main tainable.
    Pendleton, contra.
    It has long been settled that the master may, when in distress, hypothecate either vessel or cargo for necessaries to prosecute his voyage. Moor, 918. 2 Ld. Raym. 984. Hoy, 95.
      A fortiori he may bind to his engagements, when the vessel must otherwise be lost. If, then, the action be maintainable, this can be the only tribunal; it cannot be in the admiralty, and the reason is, the court has jurisdiction in cases of hypothecation on account of the extraordinary interest, and because the contract is on the credit *of the ship or goods, [*105] and their safe arrival. Owners are not liable in the court of admiralty. 6 Mod. 79. They must, then, bo answerable here. Whether the contract was with the owners or the master, is immaterial; for the contract of the master is obligatory on the owner. 2 Moll. b. 2, 203, s. 4, 15, 213. If the master ransoms, the remedy is against the owner. Cornu v. Blackburn, Doug. 641, and in Yates v. Hall, 1 D. & E. 73, the plaintiff recovered on the engagement of the master against the owners, though the vessel, for payment of the ransom of which he remained as a hostage, was given up in satisfaction of the ransom bill. In addition to these authorities, the laws of the state render the contract valid.

      Boyd, contra.
    Principles of general policy, and the invariable leaning of the court, are against this action. The words of our law are conclusive. The species of contract in which the master can bind his owners, and the distinctions from this case, will appear to the court in 1 Salk. 35. 2 Dall 194. 1 Bro. Parl. Cas. 284, and Abbott on Shipping.

         Barnard v. Bridgman.

         Johnson v, Shippen.

        Scarreborrow v. Lyvius.

   Per Curiam.

The defendant moves 'in arrest of judgment. The declaration states,

1. That the defendants were owners of the brig Neptune; that the brig, when at sea and bound for New-York, was in distress; that the plaintiffs contracted with the master to bring her safe into port for 500 dollars; that they brought her in accordingly.

2. The like against owners.

3. The usual counts on a quantum meruit.

Three questions are raised:

1st. Whether the action is maintainable on the first count, which involves two questions.

1. Could the master by such contract bind the owners ?

2. Was the contract lawful, the plaintiffs being branch pilots' belonging to the port of New-York?

2d. Can the defendants move in arrest of judgment after attending the execution of the writ of inquiry, and examining witnesses?

*3d. May not the court order an inquiry de nova on the third count, in the event of the first and second being held bad ?

The question of the right of the master to bind owners, it is not necessary to decide.

The legality of the contract is most material.

The act for the regulation of pilots and pilotage for the port of New-York, (sess. 7, c. 81, sec. 2 and 3,) makes it the duty of pilots to give all the aid and assistance in their power to any vessel appearing in distress on the coast, and for neglect or refusal subjects them to a fine or forfeiture of their places; but for the encouragement of such pilots who shall distinguish themselves by their activity and readiness to aid vessels in distress, it enacts, that the master or owner of such vessel shall pay to such pilot who shall have exerted himself for the preservation of such vessel, such sum for extra services as the master or owner and such pilot can agree upon; and in case no such agreement can be made, the master and wardens of the port are empowered to ascertain the reasonable reward.

It being made the duty of the pilots to assist the defendants’ vessel, it was oppression in them to exact the stipulation in question. It would lead to abuses of the most serious nature if such contracts, founded on such considerations, were held to be legal. There are several cases in the books tending to show the leaning of courts of justice against the oppressions of persons in public trust, and the illegality of exacting previous reward for doing their duty. The law allows them sufficient compensation for extraordinary exertion after the service performed: which show? it was an object with the legislature to prevent undue advantages being taken. We are, therefore, of opinion, the first and second counts are bad, as contrary to public policy and the spirit of the act. As to the second question, whether it be too late to move in arrest of judgment after attending the execution of the writ of inquiry, we are of opinion the authorities adduced do not apply to questions on the merits, but only to formal defects in the pleadings.

.On the third point we are of opinion, on the authority of Eddowes v. Hopkins, Doug. 376,, that the plaintiff may, on payment of costs, have (if he solicits it) an inquiry de nova on the quantum meruit, reserving the question, however, whether on such inquest he shall be entitled to more than his legal ^allowance, not [*107] having made the prescribed appeal to the master and wardens.

Judgment arrested.

        Starke v. Cheeseman, Carth. 509.

       See ante, Bogert v. Hildreth, page 4, r. (a), and Woods v. Van Ranken, post, 122,

       See also, Postley v. Mott, 3 Den, 353; Hopkins v. Beedle, 1 Cai. R 347; livingston v. Rogers, 1 Id. 583.

      ) Bridge v. Cage, Cro. Ja. 103. Stolesbury v. Smith, 2 Burr. 924.


text:
    Allen against Brace.
    Venue changed in an action on a promissory note.
   Assumpsit on a promissory note.

The affidavit of the defendant stated fraud in obtaining it, and that his witnesses resided in the county to which it was then moved to change the venue.

Motion granted.

         1 Sell. 538. 2 Wils. 380.


text:
    Post against Wright and Buchan.
    If a cause has been duly set down upon the day calendar, and on being call ed, the defendant does not appear, nor his counsel who is then in court, the plaintiff may take an inquest, which the court will not set aside though merits be sworn to, if the absence of the defendant's counsel be not accounted for.
    An inquest had been taken in this cause, at the last sittings, in June, at New York

      Hoffman

    moved to set it side, on two affidavits; one made by the defendants, which stated, that they verily believed that, they had a good, substantial and legal defence; the other by the counsel in the cause. This last set forth that he was counsel for the Humane Society of New-York, and, in that capacity, obliged to visit the gaol on Monday in every week; that this cause being noticed for trial on a Monday, he came into court instantly after discharging his duty to the society, when he found, an inquest had been taken in the suit; that he, on the same day, wrote to the attorney of the plaintiff, offering to pay all the costs of the inquest, and to engage to try the cause in the then sittings, if the plaintiff would abandon his inquest, which he refused to do.

      Hoffman also observed, the calendar had been gone through more than once, and that the plaintiff needed not to have lost the sittings but for his own obstinacy.
    * Woods

    relied on the counter affidavit of the plaintiff’s attorney, which stated, that the cause was duly set down in its order on the day docket; that it was regularly called and tried; that when called on,-- ■-, Esquire, was in court, and, in the hearing of the deponent, said he was of counsel for the defendants, but as he did not see his client, nor any of their witnesses, he would not appear; that on this the defendants were called, and an inquest taken.

      Woods remarked, that, if, after these facts, the inquest should be set a side, there would be no end to these applications. A defendant had only to keep himself and his witnesses, or even his counsel, out of the way, and be sure to gain a term whenever he pleased.
   Per Curiam.

All reasonable notice to attend and defend the suit was given. The cause was on the day docket, and there is no kind of excuse why the defendant was absent. He had a counsel in court, and might have been there himself, with his witnesses. The defendant, therefore, can take-nothing by his motion.

Hoffman urged strongly the rigour of the practice, that it would operate only against the attorney of the plaintiff, that it was the first instance of such strictness.

The Court answered, there must be a first time in all proceedings; that they found it necessary to enforce their rules, and had made a determination so to do, as the only mode of having them obeyed.

Motion denied.

Radcliff and Livingston, Justices, absent.

         See M'Kay v. Marine Ins. Co., 2 Caines’ Rep. 384, the absence of coun Bel discountenanced as an excuse; and Sayer v. Finch, lb. 336. The same excuse reluctantly admitted, though the plaintiff’s counsel was absent, from an opinion that the cause would not come on, induced by expressions to that effect from the partner of the attorney on record for the plaintiff. The rule seems to be, that as it is the duty of counsel and attorney to attend, that duty will not be dispensed with, unless in cases of necessity, or misconception. See Rogers v. Garrison, 2 Caines’ Rep. 379.
      See also Farnam v. Despard, 1 Wend. 287; Jackson v. Wakeman, 2 Cow, 578.


text:
    Ryers against Hillyer.
    If a notice of motion for nonsuit be titled versus instead of ad sectum, and the affidavit annexed rightly titled, the notice will be good.
    Spencee moved, on the common affidavit, for judgment as in case of nonsuit for not proceeding to trial.

      Hoffman

    resisted the application, because the notice was entitled William Hillyer against Joyn P. Byers, instead of William Hillyer ad sect. John P. Byers; this, he said, was fatal, there being no such suit in existence as the one in which the notice was given, but he added, he would not have urged it except from its being one of Mr. Golden's causes, whose state of health the whole court knew.
    Spencer,
    contra, observed, that there could be np force in the objection, unless it appeared that the party had [*113] been *misled. The notice was for judgment as in case of nonsuit for not proceeding to trial, therefore, it must have come from a defendant. In the next place, it was an affidavit, a copy whereof was annexed, and that affidavit was rightly entitled. It is a mere question of who shall pay costs. There has been no countermand, and the defendant kept all the circuit with his witnesses.

      Hoffman.

    As this is the first default, will the court oblige us to stipulate ?

       This is the true principle. Therefore, where the Christian name of a plaintiff was “Teunis,” and the notice “Jeunis,” as there was no other suit against the defendant by a person of the same surname as the plaintiff, the variance was deemed immaterial. Quick v. Merritt, 3 Caines’ Rep. 133. So a notice to quit, styling the premises “ The Waterman’s arms,” was held good, though the sign of the house was “The Bricklayer’s arms,” the defendant holding no other house of the plaintiff, and there being no such sign as “The Waterman’s aims ” in the parish. Doe ex dem. v. Cox et al. v. 4 Esp. Rep. 185. See post, 344.
      On the same principle where a notice of executing a writ of inquiry “ on Tuesday the 14th of January inst.” was given, the court of 0. B. refused to set aside the execution of the writ, because the 14th was on a Thursday, saying it was clear the defendant could not have been misled. Batten v. Harrison, 3 Bos. & Pull 1.

   Per Curiam.

Stipulate to try at the next circuit for the city and county of New-York, and pay the costs of the present application.

On stipulating, and paying costs,

Motioned denied.

Radcliff and Livingston, justices, absent.


text:
      Brandt, on the demise of W. R. Van Courtland and P. Van Courtlandt, against M. and A. Buckhout.
    If there be a neglect in not proceeding to trial, defendant must avail himself of it the first opportunity; if he do not, it will be a waiver, and subject him to costs, if he afterwards move for judgment as in case of nonsuit
    The issue in this cause had been joined in January, 1801, and notice of trial given in the June following; it however did not come on, in consequence of the defendants applying for a commission to obtain testimony from Virginia. On the arrival of the commission in that state, it was found the witness had removed into Kentucky, whither he was followed, and his evidence, to the interrogatories, taken on a deposition, made before two justices of the peace. A copy of this, accompanied with an affidavit of the facts, was served on the plaintiff’s attorney in August, 1802, and communication at the same time made, that a regular, commission would be sued out and sent into Kentucky. On this the plaintiff did not notice for trial; for not proceeding, however, to which,

      Woods

    now moved for judgment as in case of nonsuit.

      Spencer

    opposed the application, as being too late, insisting it ought to have been made the very first term after the neglect, and asked for costs of resisting the application.
   Per Curiam.

The defendants have not accounted for their delay; if that be not done, and the application be not immediately after the loches, the default is waived, and' cannot now be taken advantage of.

Motioned denied, with costs.

Radcliff and Livingston, justices, absent.

       S. P. Gillet ads. Wilde, Col. Cas. 64. S. C., 1 Johns. Cas. 30. See also Mumford v. Col Ins. Co., 2 Cai. R. 251; Chapman v. Van Alstyne, Wen. 517 ; Harrison v. Stevens, 7 Wen. 519; Anon., 9 Wen. 461


text:
    *Camman against The New-York Insurance Company.
    The rule for consolidating applies only to several actions on one policy, and does not extend to several policies on one risk, though the question be the same on all, because the contracts are several.
    The plaintiff had, for himself and several other persona with whom he was variously interested, effected eleven policies on distinct parts of the cargo of the same vessel. The -name of the plaintiff was in each insurance, but associated with different parties, according as he was connected. The point in dispute was the same in all. .

      Hoffman

    moved to consolidate the actions, or to stay proceedings in ten of the suits till the eleventh was determined ; the defendants being willing to pay on the residue, if that should be determined against them. The object of his endeavor was, as he said, to save the enormous costs which would otherwise accrue.

      L. Ogden.

    The contracts are several; and though a number of actions on one policy will be consolidated, that is because the contract is one, and therefore the very reason of the practice in such a case is sufficient to overrule the present application.
    An application was made by myself to this court, for leave to consolidate five actions on five promissory notes to the same plaintiff, and refused, because of the diversity of the contracts.

       By the practice of the English courts, if the defendant be held to bail in two actions which might be joined, the plaintiff will be obliged to consolidate and pay the costs of the application. Cecil v. Briggs, 2 D. & E. 639.

   Per Curiam.

The contracts being separate and independent it is not a case for consolidation, and not to be distingu.kh.3J from that of the notes. There never was an instance of consolidating different policies.

Motion denied.

Radcliff and Livingston, Justices, absent.

         On promissory notes the court refused to consolidate, though the suits were between the same parties. Philips & Ludlow v. Roget, Caines’ Prac. 134, from MS. Kent, Ch. J. So where the notes fell due on different days, the K. B. denied the application. Mussenden v. O'Hara, 1 Tidd, (edit. 1803,) S56. The same principle governs in ejectments. When there are several defendants, who have several interests, the court will not consolidate. Medlicot v. Bruester, 2 Keb. 524. Aliter, where the suits are for the same premises on the same demises. Grimstone v. Burgers and others, Barnes, 176. Inactions on policies of assurance, where the rule for consolidating does apply, the court will grant imparlances in all but one, till the plaintiff’s consent to enter into the consolidation rule, which is the same as that in the English courts. Church ads. Clason & Stanley, Cole. Cas. 62. Where after consolidating a cause in one inferior court, the plaintiff discontinued in that court, and brought, for the same cause, an action in another court, proceedings were stayed till after trial of the principal cause in the consolidation rule. Parkin v. Scott, 1 Taun. 565.


text:
    *Shuter against Hallett.
    If the defendant has joined in a con mission, the court will not, vn tho plaintiff’s application, vacate the rule by which it was granted, but will grant one to proceed to trial notwithstanding the commission.
    D. L. Ogden moved for a rule to vacate the rule for a commission which had issued in this cause in the spring of 1802. The facts, as appeared by affidavit, were these:
    A commission had issued as above, in which the defendant had joined, but not being returned, another was sued out in November last, and as there were no hopes of the first being returned, the parties agreed that the testimony taken on. the second, which was on the same interrogatories, should be read in evidence on the trial. After this the cause was duly noticed, but the judge refused to let it come on, as the counsel for the defendant had joined in the commission.
   Per Curiam.

The commission is as much the defendant’s as the plaintiff’s and he may take the benefit of it on trial. We cannot, therefore, vacate the rule, but the plaintiff may have one to proceed to trial notwithstanding the commission.

Motion denied.

Radcliff and Livingston, Justices, absent.

       See Brain v. Rodelichs and Shivers, ante, 74. See Note [2] ante.

       See Kirby v. Walhers, post, 503. Caines’ Prac. 428 — 430: inclusive.


text:
    Way, and Hannah his wife, against Bradt.
    Costs of circuit.
   It was said by the court, in this suit, that when a judge on a circuit has not time to try a cause, the costs must abide the event of the suit.

Radcliff and Livingston, Justices, absent.


text:
    E. Weed, by N. Weed, his Guardian, against Ellis.

    A younger issue tried, no proof that an older might have been heard.
   The Court ruled that a younger issue being tried, is not always conclusive that a cause might have been brought on. At a circuit the judge will sometimes . take up a cause he may think short, when he will not enter into a long one.

Radcliff and Livingston, Justices, absent.

       S. P. Jackson v. Valentine, 3 Caines’ Rep. 128. See Jackson v. Chamberlin, post, 171.


author:
      Per Curiam.

      Per Curiam.

text:
    Grover against Green.
    Court will not discharge on motion, a person arrested while attending a reference under an order of the Common Pleas, if there be not a notice of applying; hut will only grant a rule to show cause.
    The defendant was attending a reference, under a rule c. f the court of common pleas for Cayuga, in a suit wherein *he was plaintiff, and the present plain- [*116] tiff, defendant, when he (Green) was arrested by Grover, on a writ out of this court.

      Emott

    moved for a rule that the defendant be discharged out of custody, on common bail, the plaintiff having abused the process of the court, but no notice had been given of the motion.

      Emott.

    If the affidavit be false, tire party may be indicted for perjury.
   Per Curiam.

By this means any body may get himself discharged.

Per Curiam.

But the plaintiff may lose his debt. Take a rule to show cause the first day of next term why he should not be discharged, and in the mean time let proceedings be staid.

Motion denied: rule to show cause ordered.

Radcliff and Livingston, Justices, absent.

       The rule as to immunity of persons is, that all whose attendance is required in a court of justice, either directly on the business of the court, or in any manner relative to that business, shall be protected from arrest, eundo, morando, et re-eundo. Meekins v. Smith, 1 H. Black. 636. On the arrest, therefore, of either plaintiffs or defendants, when going to attend their cause, it will be put off, and, without.costs, if there be any collusion with the creditor, until the return of a ha. cor. which the judge at N. P. will grant. Solomon v. Underhill, 1 Camp. 229. Bail attending to justify. Meekins v. Smith, ubi sup. So persons upon recognizance at the sessions. Bours v. Tuckerman, 7 Johns. Rep. 638. Witnesses to prove a will. Norris v. Beach, 2 Johns. Rep. 294. For the purposes of protection, all before whom proceedings in a cause are judicially heard, are quasi a court of justice. Commissioners of bankrupt, (Ardinge v. Flower, 8 D. & E. 524,) arbitrators, (Spence v. Stewart, 3 East, 89,) and referees under a rule at N. P. (Moore v. Booth, 3 Ves. jun. 350,) Waiting at a coffee-house from day to day, if in the vicinity of the court, is held to be within the morando. Childerton v. Barrett, 11 East, 439. Staying in the afternoon to dine at a tavern in the neighborhood of the court, within that of redemdo. Lightfoot v. Cameron, 2 Black. 1113.


text:
    Lackey and Briggs against M’Donald.
    "When a defendant commits a crime for which he is sentenced to the state prison, the plaintiff may discontinue without payment of costs.
    The plaintiffs, in July, 1802, had stipulated to try this cause at the next circuit court, and did not do so.

      M. B. Hildreth,

    on this ground, now moved for judgment as in case of nonsuit.

      Schoenhoven

    read an affidavit, which was not denied, stating that the defendant, after the commencement of the suit, and before a trial could be had, was sentenced to the state prison, where he still remained, and prayed to discontinue without payment of costs.

      Van Ness, amicus curiæ,

    mentioned, that when the defendant rendered proceedings useless, the court was always disposed to permit a plaintiff to discontinue without costs. In Jackson, on the demise of Ludlow, v. Webb, after issue joined, the defendant abandoned the possession, and the lessor of the plaintiff having entered, did not notice the cause for trial. The defendant then moved for judgment as in case of nonsuit, but the court denied his motion, and gave leave to discontinue without payment of costs.

       As to discontinuing without costs, see also Case v. Beffmap, 5 Cow. 422; Honeywell v. Bwns, 8 Cow. 121; Helenwoth v. Wrigley, 1 Hall, 145; Labron v. Woram, 5 Hill, 373; Fifield v. Brown, 2 Cow. 503; Ludlow v. Haskett, 18 J. R. 252; Van Buren v. Fort, 4 Wend. 209; Arden v. Merritt, 1 Wend. 91; Camp v. Gifford, 7 Hill, 169.

   Per Curiam.

The opinion of the court is, that sufficient has been shown to prevent the judgment of nonsuit. The defendant has by his own act deprived the plaintiffs of that ^remedy which they might have had [*117] against his person; his body is out of their reach, and that by his own act. It is not, therefore, necessary that they should proceed and incur expenses for nothing, as there is not any property from whence they can be reimbursed. The plaintiffs, therefore, are entitled to discontinue, and without costs.

Motion granted.

Radcliff and Livingston, Justices, absent.

         In civil cases, the principle of this decision is adopted. Whenever, therefore, a defendant has obtained his discharge under an insolvent law, the plaintiff may discontinue without costs. Story v. Hart, 1 Johns. Rep. 143. But unless the discharge be obtained he will not, for mere insolvency is nc ground for discontinuing as a right. Collins v. Evans, 6 Johns. Rep. 333. See Shawe v. Wilmerden, 2 Caines’ Rep. 380.


author: Per Ouriam.

text:
    Malin against Kinney. The Same against Lane.
    J.f a plaintiff get relieved Rom his own stipulation, he restores the defendant to all rights as he stood when the stipulation was entered into.
    These causes were noticed for trial at the circuit held for Ontario, in June, 1802. The defendants attended with their witnesses, hut the plaintiff not bringing on the causes, the defendants agreed to waive taking advantage of it, provided the plaintiff would consent that the two above suits should abide the decision of a ease made in one by the same plaintiff against George Brown, which turned on the same point, and had, together with another of the same sort, been tried. The plaintiff acceded to the proposition, but at the last term applied to the court to be released from Ms engagement. This the court was pleased to order.

      Emott

    now moved for judgment of nonsuit, and that the plaintiff pay the costs not only of not proceeding to trial in 1802, but those also for not trying at the last circuit.
    He contended, that as the agreement was done away on the application of the plaintiff, the defendant had a right to those costs which he waived only in consequence of that agreement. The agreement was the consideration of the waiver, and the consideration being taken away, he had a right to insist on not waiving. Then as to the costs of-the last circuit, it was clear he was entitled; because, as the plaintiff had been released and had not tried, it was manifest he was in default, and costs due.
    Stuart, contra,
    read an affidavit, stating that the rule to discharge the agreement was made at the latter part of the last term, and that, from the late information he received of it, he could not avail himself, at the last circuit, of the advantage it afforded.
   Per Ouriam.

The application is for judgment as in case of nonsuit, and to pay two sets of costs; those of June, *1802, and those of the last circuit. Four [*118] causes were depending: two were tried, and, after the court rose, there was a stipulation that the two causes not tried should abide the same event as those, which had been tried. An application was made in May last to be relieved ; that the two causes not tried might be restored, and the plaintiff not bound by his stipulation. This was ordered, and the causes restored, as in June, 1802. If the plaintiff was relieved, the defendant was also; and then the stipulation being vacated, the causes must stand in the same situation as in June, 1802. If the defendant had then applied, nothing appears why the rule should not -then have been granted, at least a rule to stipulate and pay costs. The only reason to excuse now offered is, that the plaintiff did not receive notice of his own rule. Both circuits mentioned have passed without trial; therefore, the defendant must have the effect of his motion, unless the plaintiff stipulate to try the cause at the next circuit, and pay the costs of that in June last.

On stipulating and paying costs,

Motion denied.

Radcliff and Livingston, Justices, absent.

       See ante, 1, Bogert and Lewis v. Hildreth, when he will not be lieved.


text:
    Spencer against Webb, on scire facias.

    On sci. fa. notice of entry of the rule to appear and plead need not be given, as the service of the sci. fa. is notice of itselfj and the default may be entered on expiration of the rule; but judgment cannot be entered till four days after; if it be, the judgment will be set aside, and the default, if regular, stand. No default ever set aside when regular, except accounted for to the satisfaction of the court.
    The facts, as they appeared by affidavit, were as follows:
    The defendant was served with a scire facias on Tuesday, the 3d of May last, which was returned scire feci on the 10th. On the same day the plaintiff entered a rule for the defendant to appear in four days, and plead in twenty after notice, or that his default be entered. Notice of the rule was not given, nor was it put up in any conspicuous part of the clerk’s office, nor was any affidavit of notice on file. Default was entered, without any such affidavit, on the 14th of May, on which day the plaintiff entered his judgment also. The defendant swore to a just and material defence, and that he had paid the plaintiff six hundred dollars which had not been allowed him, and offered to let the judgment stand as a security.

      Van Vechten,

    upon an affidavit stating the above facts, moved to set aside the default and judgment thereon, and that the defendant be let in to plead.

      Spencer.

    Several grounds of objection may be [*119] taken *to the proceedings. One is, that notice ought to have been given of the return of the sci. fa. and of the rule entered. From the fourth rule of this court, made in April term, 1796, it appears, that rules to appear on sci. fa. and in ejectment, are placed on the same footing. It is not necessary, on entering the rule, to give notice that the rule has been entered. The notices by the sci. fa. and in ejectment, by the declaration, are tantamount. When the attorney appears, then notice is required ; but a sci. fa. is notice in itself. The default, therefore, being regularly entered, must stand. The next question, then, is whether, if the proceedings are correct in entering the default in four days, the court will let the defendant in, on the merits ? Griswold v. Stoughton,

       decided the last term, is ■ in point, that as there is no account given for not appearing, the default is correct, and will not be set aside. There is no excuse for not entering an appearance, and for four days the defendant certainly slept. In Edwards ads. WKinsiry, Cole. Cas. 124, the court said that a default must always be accounted for.

      Graham,, amicus curiæ,

    observed, that it being a point of practice of some importance, he begged leave to mention that, according to the English practice, when, on a sci. fa. to revive, two nihils were returned, judgment was signed of course on showing the returns to the office.

      Van Vechten.

    We are not to obtain the effect of our motion for two reasons. Because, according to the English practice, there are no rules on a sd.fa., and because no account is given for the 'default. As to the first, whatever the practice may be in England, our courts have established that a four day rule is to be entered on the return of the writ, and then the ordinary rule is to be given, and if the default be not entered, the defendant may come in at any time. A scire facias is to all intents a new suit, and, therefore, there should be the same practice as in other cases; there may be a plea, &c. In this the default has produced no injury. There could be no judgment till next term. Therefore, this rigid rule of saying that if you do not account we will not hear you, though you give evi[*120] dence of *reasons for our interference, can have no force when we apply to the discretion of the court. The power used in these cases is founded on justice, and whenever any thing like injustice presents itself, the court will interpose and see that no advantage is taken. Here the defendant offers to let the judgment stand, therefore the plaintiff runs no risk, as the defendant’s lands are bound. He swears six hundred dollars have been paid on the judgment. The question then is, whether the defendant does not necessarily deserve favor. Whether the plaintiff shall have execution for six hundred dollars more than are due when merits are sworn to, That the plaintiff is able to re-pay it, is no answer; the oppression of thus wringing so much from the defendant may be intolerable. Notice, either express or constructive, is necessary to a default ; here there is neither. Griswold v. Stoughton does not apply; it was a mere irregularity and no affidavit of merits. The court cannot too much bear in view that no injury can result by letting the defendant in to plead.
    Spencer,
    in reply, said he had strong doubts whether, on a scire facias, there could be any defence except nul tiel record, or the judgment satisfied.

         Cole. Cas. 2, 3.

       Ante, 6.

         To a sci. fa. the defendant may plead in abatement, or in bar. 2 Inst 410. But be can plead nothing in bar, which he might have pleaded to the original action. This rule, as to pleading, applies equally, though the judgment be by confession. Therefore, if there be any matter prior to the judgment which might be urged against the execution sought by the sci. fa., the court must be applied to by motion, as it cannot be pleaded. M'Farlan v. Irvin, 8 Johns. Rep. 78. But where the judgment was on a warrant of attorney, as the defendant could have had no opportunity of pleading, the court of K. B. has ordered an issue to let in the defence of usury. Cook v. Jones, Cowp. 121. The defendant may also plead in abatement that there were not fifteen days between the teste and return; (Nares v. Eairl of Huntingdon, Lut. 9, 12,) and for want of these fifteen days the Supreme Court hag set aside, on motion, the proceedings on a sai. fa., (Woodman and others ads. Little, Cole. Cas. 54,) as a scire facias is a judicial writ. See Com. Dig., title Abatement (H. 14)

   Per Curiam.

It appears that the defendant did not enter any appearance before the expiration of the rule, nor indeed was it until some weeks after that any appearance was entered. It is suggested in answer, that notice ought to have been served of the entry of the rule; this is, on the other hand, denied; and rightly. The default, therefore, is regular, and no reason whatever is assigned how it has been incurred. In all such cases we have determined to hold the party to his default, The rule of this court says, Upon the return of writs sci. fa. if the defendant be returned warned, or the second writ be returned nihil, the defendant shall ^appear in four days, or [*121] judgment shall be entered by default.” Therefore the entry of the default is perfectly consistent with the practice of the court, and must remain. But as judgment ought not to have been signed till four days after, and it appears to have been done on the very day, that is irregular, and therefore must be set aside.,

Motion granted, as to setting aside judgment only.

Radcliff and Livingston, Justices, absent.

        а) Rule of October, 1791, Cole. Cas. 31.

       On a- verdict a rule nisi for judgment may be entered the first, or any other day in term, Rose v. Rock, 6 Johns. Rep. 330, though an order to stay proceedings has been obtained, Hackley v. Hastie and Patrick, 3 Johns. Rep. 252. But even an interlocutory judgment on a default cannot be entered in vacation, though a term has elapsed since entering the default. Hogeboom v. Genet, 6 Johns. Rep. 325. Before a default can be entered, for vjant of a plea, there must be twenty days after service of notice, which are counted one day exclusive, and one day inclusive; that is, you exclude the day whereon the service is made, and include, as within time, the twentieth day afterwards, within the whole of which day the defendant has to. plead, and a default cannot be entered till the day after, or on the twenty-second day. Hoffman v. Duel, 5 Johns. Rep. 232. If the time thus calculated expire on a Sunday, the default cannot be entered till the Tuesday, for the defendant has the Monday, because he is entitled to twenty law days, and Sunday, being dies non jurídicas, is as no day. Cock v. Bunn, 6 Johns. Rep. 326 If this mode of calculation had heen adopted, the default would have been entered too soon; for it was entered on the fourteenth, on a return of the tenth. The English rule on sci. fa. expires four days exclusive of the day in which given; (2 Tidd, 1040, last ed.,) it would seem, therefore, that according to our rule the calculation of time on a rule in sci. fa. to appear, varies from the English, and from that on a rule to plead. The words of the 4th rule of April, 1196, are a rule “of four days.” The English practice i» to enter judgment on the day of default in appearing.

       For proceedings to revive a judgment, see Code of Procedure, sect, 316, et seq.


text:
    Neilson against C. Cox, M. Beekman, and A. H. Beekman and Wife.
    In partition, if the defendants do not appear, the court will, on motion, make an order for partition as prayed.
    In partition.
    The defendant had not appeared, and the act not specifying any mode of compelling them to come in, Woods, on behalf of Biggs, moved for the following rule, which, after being submitted to the court for perusal, was ordered.
    BULB.
    New-York Supreme Court. William Neilson In Partition. The defendants having neglected to answer or to plead to the petition of the plaintiff, within the time allowed them by a rule Catharine Cox, Magdalene Beekman Abraham H. Beekman and Jdhannah his wife. of this court for that purpose, and it appearing by the said petition, that the plaintiff is seised in fee-simple, as tenant in common, of two undivided fifth parts of the premises in the said petition mentioned, and that the defendant Catharine Cox is seized in fee simple, as tenant in common, of one equal undivided fifth part thereof, and that the defendant Magdalene Beekman is seised in fee-simple, as tenant in common, of one equal undivided fifth part thereof, and that the defendants Abraham H. Beekman and Johannah his wife, in right of the said Johannah, are seised in fee-simple of one equal undivided fifth part thereof, which not being denied, the court doth therefore determine the rights of the said parties to be, as in the said petition is, stated, whereupon, and on motion of Mr. Biggs, attorney *for the plaintiff, it is ordered, that [*122] partition of the said premises be made between the said parties, according to their said respective rights, and it is ordered, that A. B., G. D. and B. F., being three reputable freeholders of the city of New-York, be, and they are hereby appointed commissioners to make the said partition among the said parties, quality and quantity relatively considered, according to the respective rights of the parties aforesaid. Partition as prayed.
    Ordered accordingly.

       For proceedings for the partition of real estate, see Code of Procedure, sect. 448: Myers v. Rasbark, 4 How. P. Rep. 83; Barker v. Stilwel, 3 Id. 318; Row agst. Row, 4 Id. 133; Traver agst. Traver, 3 Id. 351; Reed agst. Child, 4 Id. 125.

   ISP™ The commissioners are named by the party to the court, and if approved of, appointed according to the nomination.

Radcliff and Livingston, Justices, absent.


text:
    Woods against Van Ranken.
    To change the venue in a transitory action, very special cause must be shown.
    Van Vechten moved to change the venue from New* York to Albany, in an action on the following promissory note: “ On or before the 18th day of February next, foi value received, I promise to pay at the Bank of Albany, to Maus B. Van Banlcen or order, seven hundred and twenty-five dollars. Witness my hand this 9th day of August, 1802.
    “ Derick Tee Broeck.”
    The deposition on which he ipoved, stated it to have been given on a usurious consideration, but did not set forth in what the usury consisted, nor between whom it had passed.

      Woods

    read an affidavit made by the agent of the plaintiff, who was the second endorsee, denying all usury in hiiiself, or any one else, to his knowledge, and that the note was taken in part payment for a bona fide sale of goods in Hew-York. In addition to this, Woods insisted on the general rule, that in transitory actions the venue is never changed except on very cogent and strong circumstances. He also relied on the deficiency of the defendant’s affidavit
   Per Curiam.

This is an application to change the venue in a transitory action; special cause ought, therefore, to be shown. We are of opinion that what has been done is not sufficient to take the case out of the general rule adopted with respect to suits of this nature. The defendant ought to have offered as much to change, as the opposite party would have been obliged to allege in order to retain.

Supposing, therefore, that to be the criterion, he [*123] ought to *show when the usury originated, and that the witnesses resided here; but the affidavit does not state when the usury took place, nor that the cause of action arose in Albany. For though the note is apparently made here, and payable at the Bank of Albany, ■ it was negotiated in Bew-York, and the presumption is, it was made where it was passed. The doctrine now acted upon is established. 1 D. & E. 781. It is necessary to show that the cause of action arose, and that material testimony is to be given in the place where the venue is to be removed. The defendant, therefore, can take nothing by his motion.

Motion denied.

Radcliff and Livingston, Justices, absent.

         Jenkins ads. Union Turnpike Company, Caines’ Prac. 126. Sayer and Hurd v. Brevoort, id. ibid. Slosson ads. Wheaton, Col. Cas. 121. Baker v. Sleight, 2 Caines’ Rep. 46. Gibbs ads. Scott, Col. Cas. 12Í.

         Foster v. Taylor.

       In transitory actions, the courts are not disposed to take from the plaintiff his right of electing the venue; Holcroft v. Colwest.; Andr. 65, therefore, on an award day it has been refused; Whitburn v. Staines, 2 Bos. and Pull. 355, yet on a promissory note it may be changed; Kirk v. Broad, Say. 7, especially if some serious inconvenience will arise from denying the application. Evans v. Weaver, 1 Bos. and Pull. 20. But in the C. P. engaging to give evidence on a count on a promissory note, in the county where the venue was laid, has been held a sufficient cause for denying a change. Duke of Bedford v. Bray, Barnes, 491. Downes v. Brian, 2 Black. 993. See ante, p. 4, n. (a).


text:
    Jackson against Mann.
    If a plaintiff notice his cause for trial, and afterwards countermand it, he must pay the defendant the intermediate costs of subpoenaing his witnesses.
    Woodworth moved for judgment as in case of nonsuit, for not proceeding to trial according to notice, on an affidavit stating that the cause being duly noticed, the defendant issued and served subpoenas on his witnesses, after which the notice was countermanded.

      Schoenhoven, contra,
    read an affidavit setting forth that the plaintiff, for want of a material witness, who could not be then, found, was unable to proceed to trial, and that notice of countermand had been given four days before the circuit court; he therefore insisted, there was no ground for the application, and that from the principle of Brandt v. Buckhout,

       the defendant could not only take nothing by his motion, but the plaintiff was entitled to his costs for opposing.

      Woodworth

    distinguished this from the case mentioned, by the defendant’s having been here put to costs.

         Ante, 113.

   Per Curiam.

The only question here is, who shall pay the expense. The plaintiff must certainly bear the charges of his own countermand; that and the notice are equally his acts; the expenses therefore incurred after notice, always fall to him, when he countermands. The judgment of nonsuit must, therefore, be refused, but the plaintiff to pay the defendant the costs of subpoenaing his witnesses prior to the countermand.

On payment of costs up to the countermand,

Motion denied.

Radcliff and Livingston, Justices, absent.

       See 2 Rev. Stat. 618, sec. 36; Keys v. Beardsley, 18 J. R. 135; 2 Wend. 241; 1 Id. 97; Jackson v. Brown, 1 Cai. R. 484.


text:
    *Martin against Bradley, B. and N. Beach, Administrators of E. Beach, late Sheriff of Onondaga.
    Debt will not lie against the administrators of a sheriff, for an escape in the lifetime of. their intestate.
    Debt against the administrators of the sheriff of Onondaga for an escape in the lifetime of their'intestate.
    'General demurrer to the declaration.
    Henry, in support of the demurrer.
    The present question will give but little trouble to the court, for as it is debt for an escape against the administrators of a sheriff, it will be brought to a single point, whether this suit does not fall within the rule of “ actio personalis moritur cum persona.” It is founded on a tort, arising ex delicto of the intestate. 3 Black. Com. 302, is express that it is not maintainable, because the right against the intestate is derived ex delicio, and therefore dies with the person. In the case of Ilamhly v. Trott, Cowp. 375, Lord Mansfield, in settling the meaning and extent of the rule now insisted on, specifics the action of escape against a sheriff, as one which, from its cause, dies with the person. It is an injury ex maleficio, from which the intestate derived no advantage to himself, and this is the principle on which his personal representative is not answerable. Ibid. 376. The same doctrine is to be found in Fitzh. N. B. 121, A. n. a. In Berwick v. Andrews, 6 Mod. 126, case 171. In Dyer, 271, a. the same principle is acknowledged, for it is there ruled, that debt for an escape will not lie against an heir. And in Whitacres v. Onelsey and others, executors,  it was held that it could not be supported against the warden of the fleet. , From these authorities it is evident the action cannot be maintained.

      Russel, contra,
    merely referred the court to 1 Com. Dig. tit. Administration, and the authorities there, to [*125] prove *that when the ground of complaint rested on tort, or misfeasance, there was a remedy against the administrator.

        а) It was not the point in question, but a dictum of Powell, J., which Butt said he had known adjudged contrary. The law, however, is clearly as in Hambly v. Trott.

       That was against the heir of the gaoler.

       Dyer, 322, a.

   Per Curiam.

The law has been settled, both from the time of Dyer and Fitzherbert, as stated by the counsel for the defendant; judgment must, therefore, be in favor of the demurrer.

Judgment for the demurrant.

        ) S. P. 1 Roll. Abr. 921; Mason v. Dix, W. Jones, 173; S. C. Latch, 167. But an executor may bring case against a sheriff for a false return of a levy Williams v. Carey, 1 Salk. 12. Though the executors of a sheriff cannot maintain case against a gaoler for an escape of prisoners committed to his custody by their testator. Kain and others v. Ostrander, 8 Johns. Rep. 207. See also The People v. Gibbs, 9 Wend. 29; Gravath v. Plympton, 13 Mass, R. 454.


author: Lewis, Ch. J.

text:
    The People against Shaw.
    An indictment for forcible entry and detainer, must state a seisin in the prosecutor at the time of the entry, and also show an entry by tho defendant. To entitle to costs on quashing an indictment, it must appear that the party traversed the indictment. This court may grant re-restitution.
    The defendant was indicted in the court below for a forcible entry and detainer, and convicted.
    A writ of restitution having issued, the proceedings were brought up by certiorari.

      The indictment stated, “ that Samuel Millerman, of the town of Hoasick, in the county of Bensselaer, yeoman, long since lawfully and peaceably was seised in his demesne as of fee of and in one messuage consisting of a dwelling-house with the appurtenances in Hoasick, in the county aforesaid, and Cornelius Shaw of the said town of Hoasick, and county aforesaid, laborer, on the fourteenth day of instant March, at the said town of Hoasick, and county aforesaid, with strong hand and armed force the said messuage or freehold aforesaid, did without law or right detain, and him the said Samuel Millerman thereof, and with strong hand and armed force, so did keep out from the said messuage, with the appurtenances aforesaid, from the said fourteenth day of inst. March, in this present year .of our Lord one thousand eight hundred and one, until the day of the taking of this inquisition, with like strong hand and armed force, *did keep out, [*126] and doth yet keep out, to the great disturbance of the peace of the people of this state, and the form of the statute in such case made and provided.”

      Emott

    now moved to quash the indictment, and for a writ of restitution. He took several exceptions to the indictment, but insisted only on the sixth and seventh, which were,
    6th. That it did not appear that the seisin of the said Samuel Millerman continued until the time of the alleged force.
    *7th. That it was not stated in what manner, [*127] or at what time, the defendant entered on the premises, or that he entered at all.”

      He said, it was indispensable to show that the seisin of the prosecutor continued to, and at the time of, the forcible entry; whereas it was only stated he was “ long sinceseised.” 4 Com. Dig. tit. Forcible Entry, D. 3. D. 4. The seventh exception is fatal on the authority of 1 Hawk, 42. b. 1, c. 64, s. 40, for it must be made to appear in what time the defendant entered, or at least that he did enter, neither of which are shown.

      Foot, contra,
    Two objections may be made to this motion. First, that as it comes before the court on certiorari, errors ought to have been assigned; the motion to quash is therefore improper. There is, to be sure, no express authority for this position, but it may be supported on general principles; where proceedings are removed, and a return made, the practice is to assign errors. The only ground is, that by the charge in the indictment it does not appear when the forcible entry took place. The entry is not material, the detainer is the crime; the statute is against either forcible entry or detainer, therefore unnecessary to state more than the detaining. From the nature of the transaction, and the authority being given to the magistrates, complaints of this kind must necessarily be before such as are not acquainted with forms, and, therefore, the court will not insist on a rigid adherence to. them.

      *Emott, in reply.
    The practice now adopted is hat of every day, both in this and the English courts. Because the .authority in cases of this sort is given to magistrates, it is contended that no kind of forms are to be observed; the power is of a dangerous nature, and in a degree gives a right to try titles to land; this court will, therefore, keep it under strict control. The most important fact is totally omitted; the entry by force when the seisin was in Millerman. This ought to have fully appeared; whereas his seisin is said to have been “ long since," and might have been discontinued. The statute is particularly framed against forcible entries; the detaining is only a continuation of the crime of forcible entry; for if the entry was by right, and peaceably, the defendant might be entitled to detain by force.

        а) The indictment should have stated here “ being so seised, one.” &c.

       Here an entry should have been stated. “ The said messuage with the appurtenances situate in the town of Hoasick aforesaid, with force and arma, and with strong hand, unlawfully did enter, and the said S. M. from the peaceable possession of the said messuage with the appurtenances then and there, with force and arms, and with strong hand, unlawfully did expel anf put Out,” &c. See Rex v. Storr, 3 Burr. 1698.

   Lewis, Ch. J.

delivered the opinion of the court, There are two substantial and incurable defects in this indictment.

1. It doth not state that the prosecutor was seised at the time, &c. not even by implication, and this is necessary to be stated. Bacon, tit. Forcible Entry and detainer, E. vol. 2. p. *561, 562, 566, Oro. Jac. 214. [*129] Sir Nicholas Poynt’s Case. Ibid. 639. Bridge’s Case.

2. It does not state any entry peaceable, or forcible by defendant, which must be stated; for without an entry, it does not appear but the party was in possession a sufficient length of time to justify his detaining by force. Bacon, tit. Forcible Ent. and Det. E. or vol. 2, 562, 566 ; Cro. Jac. 19, 20.151. 1 Hawk. c. 64. s. 40.

From the general discretionary power this court has in these cases, they may set a restitution aside, and award a re-restitution (whenever it shall appear that restitution hath been illegally awarded) either for insufficiency, or defect in the indictment, or other cause. 2 Bac. For. But. and Det. letter G-. p. 565.

I am, therefore, of opinion, the motion be granted. It was decided in this court in the case of Beebe and others ads. The People (Jan. term, 1802,) that if the indictment be bad, re-restitution must follow of course; and in that case the indictment was quashed, and re-restitution awarded. But this is not within any of the statute provisions for costs, and none are recoverable. The statute (1 Rev. Laws, 104,) gives costs only when the party indicted traverses the indictment and is convicted; and no traverse is returned, or stated in the present case.

The judgment of the court is, that the indictment and proceedings be set a side, and a writ of re-restitution awarded, without costs on either side.

Motion granted, without costs.

       But had a seisin of the prosecutor, at the time of entry, been alleged, even by implication, it would have been sufficient. Wroth and Capel’s Case, 3 Leon. 102, 4 Leon. 191. As if the indictment had stated that the defendant “entered, expelled and disseised” the prosecutor. Ubi sup. Though where it only set forth the entry, and that the defendants held out the prose» cutor “disseised, expelled and ejected,” the indictment was quashed, be cause the expulsion, &c., were not positively stated. The King v. Dorny, Salk. 260. A seisin must be shown though the entry be on a lessee, in which case it is stated as on the freehold of B. in the possession of A The Queen v. Taylor, 7 Mod. 128. An entry on a “ tenement ” is too uncertain. Wroth and Chapel's Case, ubi sup. It must be stated to have been on the seisin of those having the legal estate. Therefore, in an indictment for a forcible entry, &c., on a church, it must show the entry, or the seisin of the legal trustees. The People v. Runkle, 8 Johns. Rep. 464. A certiorari is grantaWs, of course, without any special cause. The People v. Runkle, 8 Johns. Rep. 534.
      See also The People v. Runkle, 9 J. R. 147; The People v. Van Nostrand, 9 Wen. 51; The People v. Nelson, 13 J. R. 340; The People v. Reed, 11 Wen 57 The People v. Godfrey, 1 Hall, 240; The People v. King, 2 Cai. R. 98.

        а) A traverse to an indictment for a forcible entry and detainer need not be in writing, and the defendant may be found guilty of the detainer only. When the proceedings are under the 3d section of the act, the justice assesses the damages on ordering- restitution, and to give him cognizance it is not necessary that he go in person and view the force. The People v. Anthony, 4 Johns. Rep. 198. When he does, and under the first section records the force, the conviction upon his view is not traversable. Mather v. Hood. 8 Johns. Rep. 44. It is then his duty to impose.a fine; and a conviction, where the party is committed till a fine be paid without imposing one, is bad. The precedent in 3 Ld. Raym. 360, is on this account faulty. It is corrected in 2 Burn’s Just.. 351, but see a good form in Mather v. Hood, vbi sup.

      See Fitch v. The People, 16 J. R. 141.

        Brooks v. Hunt, 3 Caines’ Rep. 128; Jackson v. Woodworth lb, 136.


text:
    Campbell against Munger and others.
    If several actions, turning on the same point, be noticed for trial, and on the hearing of the first, the judge direct a nonsuit, exception to which is taken by the counsel of the plaintiff, he shall not be liable to judgment as ir case of nonsuit for not proceeding to trial on the other causes, nor be obliged to stipulate, and the costs shall abide the event of the suit.
    This was a motion for judgment as in case of nonsuit for not proceeding to trial. The affidavit, on which, it was grounded, stated, that issue was joined in January term, 1802; that the cause was duly noticed for the circuit in the same year; that it was not then tried, and was noticed again for the circuit in May last, when it was not brought on, though it was one of the oldest issues on the calendar, and no countermand of trial had been given.

      Van Antwerp

    resisted the application, on a deposition made by himself, admitting *the notice [*130] for the last circuit, but setting forth also, that this cause, as well as another at the suit of one Elijah Montgomery against the same defendants, were actions of trespass guare clausum, involving the same question and same defence; that on the trial of the said cause, Montgomery was nonsuited by the direction of his honor Mr. Justice Kent, to which an exception was then taken, and by consent of the defendant’s attorney, the making up of the case was postponed till this term; that it was understood and agreed, between the deponent and the defendant’s attorney, that the decision in one of the causes should be conclusive in the others; and thereon, shortly after the trial, so as above said to have been had in the other cause, the witnesses for both parties were dismissed, and that it was very doubtful whether a trial in this present action could have been had.
   Per Curiam.

This is a motion for a nonsuit for not pro ceéding to trial at the last circuit in Saratoga. The plaintiff’s attorney thought it unnecessary, until the opinion given by the judge could be reviewed by this court, to bring on the trial of this cause; and he swears that “ it was un derstood, and agreed, between the defendant’s attorney and himself, that a decision in the cause tried should be conclusive in the other, and that, thereupon, shortly after the trial, the witnesses of both parties were dismissed.”

Without relying much on the agreement of the attorneys, which was not in writing, the court think the plaintiff has accounted satisfactorily for not bringing this cause to trial. He noticed it in good faith, and appears to have been prepared to try it, but finding the opinion of the judge against him in another cause embracing the same question, and depending on the same evidence, [*131, 132, 133] it would have been folly *in him to proceed in the others until the judgment of this court could be had. We think, therefore, that he ought not to stipulate, and that the costs for not proceed- ■ ing to trial abide the event of the suit tried.

Judgment of nonsuit refused.

       See Brant v. Fowler, 2 Wend. 284; Palmer v. Mulligan, 2 Cai. R. 95; Jackson v. Leggett, 5 Wen. 83 Sherman v. McNitt, 2 Cow. 452.