author: Spencer, J. Kent, C. J.

text:
    Lenox, Maitland, and Renwick, against Howland, Russell, and others.
    NEW-YORK,
    Nov. 1805.

    THE plaintiffs had, under the act authorising proceedings against absent debtors, procured, on the usual oath, an-attachment against the property of the defendants, who resided in Massachusetts. They, by affidavit, set forth, that they never had any dealings with the plaintiffs, who, as shippers of property on board the ship Ocean, belonging to the defendants, claimed compensation for damage the goods had sustained in consequence of the vessel’s having been run ashore when going up the harbour of Liverpool, by alleged negligence or misbehaviour of the captain, whereas the injury, if any, arose from the conduct of the pilot.

      Colden and Riggs on these facts, moved to supersede the attachment, notice 'of which had been duly published. They contended, that the debts contemplated by the act, were such as might be set off, the words of the statute being, that the demand must be glOO above, or clear of discounts'. Torts and unliquidated damages, therefore, not within the purview of the law, because of them no set-off can be made. Bankrupt Act, sec. 34. Coop. Bank. Law, 160. 224. 244. Sell. Prac. 42. 2 N. T. T. R. 33, Broxvn v. Cunt-

      ming-. But allowing such a claim might be set off, the pi~ lot, they said, was answerable. Malyne 59. 7 D.&E. 160. They referred also to the decision of this court, in the mat- ^ 0£Fitzgerald, an absent debtor 2 H. T. T. i?. 318.

      Under the act respecting absent and absconding debtors, this court will inquire into the foundation of the demand of the plaintiffs, and if it appear not to be such as to warrant (lie issuing an attachment, will order a super-sedeas.

      Hoffman and Harison contra,
    argued, that the court had no jurisdiction in this summary way, as the act had chalked out the only mode of proceeding by which a supersedeas could be obtained. That as to the matter of the claim being without the statute, the 21st sec. had ordered a bond to be given, to appear and plead to any action, and the terms of the condition were broad enough to include all cases, excepting pure torts alone ; even to appear and answer to a bill in equity. To support the attachment, the oath of the plaintiffs is all that is required, and cannot be done away by a counter deposition from the defendants. It wold be, to try tire cause by affidavit, and determine preliminarily, the fact of debt, or no debt. Whether the pilot or master were to blame, was not to be now investigated.
   Per curiam, delivered by

Spencer, J.

We do not think that because the statute points out a particular mode, by which a supersedeas may be obtained, we are ousted of jurisdiction in this state of the case. We conceive that, from the general superintending power of this court, we have a right to examine, whether the attachment has not improvidently issued, and, on this ground, review the order of the judge by whom it was directed. On the present occasion, the plaintiffs have not contradicted the affidavit of the defendants, but, resting their opposition on the matter it details, have reposed themselves on its contents. Exercising, then, that right of control, which we think we possess, we cannot but see, that the plaintiffs have failed in shewing such a debt as is within the purview of the act. The statute applies only to those which are capable of being set off, not to demands which arise from torts, or ex delicto. As, therefore, the claim of the plaintiffs is stated to be of this nature, proceeding from the misfeasance of the captain, and this is not denied by the opposite party, the motion must be granted; but with permission, however, to the plaintiffs, to shew, any day within term, that they have a debt such as is within the purview of the act.

Kent, C. J.

I am against the motion, because I think the only remedy is under the 21st section of the act, which, in my opinion, is fully sufficient. If the bond there directed, be given, the question, whether debtor or not, within the statute, can be decided; for the instrument can apply only to debts within the law. The proceedings below are regular, and on that score we have, therefore, no right to interfere.

Thompson, J. I concur in the opinion of the Chief Justice.


source: Caselaw Access Project

author: Kent, C. J.

license: Public Domain

text:
    Thomas Bennett against Charles Ward.
    NEW-YORK,
    Nov. 1805.
    ON certiorari to a justice’s court, in a suit under the 19th section of the “ act to regulate highways,” by which it is ordained, that the penalty of ⅞>5, imposedfor obstructing roads, shall be recovered “ in the name of any person who shall “ make complaint thereof, before any justice of the peace of “ the county where the offence shall happen, upon the oath “ of one or more credible witnesses, and levied by distress “ and sale” &c.

      Cadey assigned for error,
    that by the return, it appeared, a regular action of debt had been instituted, instead of the summary mode prescribed by the statute. This point, he said, had been already ruled, in a case of Hamilton v. Burton, decided in April, 1800. For where an act creates a new of-fence, and points out how the penalty inflicted is to be recovered, no other method can be pursued. 4 Bac. Ab. Old. Ed. 654. Rex v. Right, 1 Burr. 543. An advantage resulted, he urged, from the adoption of the summary proceeding ordered by the law, because, in such cases, the evidence is necessarily returned.

      Gold contra.
    It appears that the parties agreed to go to trial, and whatever advantage might have been taken of this objection, had it been made at a proper time, is now waived.

      Cadey in reply.
    If the magistrate had not authority to ⅛⅛ cognizance of the cause in this manner, consent will not _ . . , . . ’ give him jurisdiction. Besides, the levy is, alter conviction, to be by warrant of distress, and upon a regular judgment in debt, the usual writ of execution ought, perhaps, to go.

      If, in a statute, a clause creating a new of-fence, and inflicting a penalty, be so defectively worded, that by one part it appears to be recoverable in a summary way, and by another according to the usual course of proceeding, the latter shall be preferred. All statutes giving summary modes of recovery, are to be strictly construed.

        1 Rev. Laws. 595.

   Per curiam, delivered by

Kent, C. J.

The suit below, was an action of debt, conducted according to the regulations of the ¿10 act, and was brought to recover the penalty or forfeiture of f>5, under the 19th section of the act to regulate highways, which declares, that “ If any person shall obstruct “ any highway, &c. such person so offending, shall forfeit “ for every such offence, ⅜5, to be recovered, with costs of suit, in the name of any person who shall make complaint thereof before any justice of the peace fkc.upon the oath of “ one or more credible witnesses, and levied by distress and sale of the goods of the offender, by warrant from the justice, to be directed to any constable of the town, &c. and the “ constable is required t.o pay such penalty into the hands of u the commissioners of highways, &c. to be applied in im-ct proving the public roads and bridges in such town.”

The question is, whether the above recovery ought to have been in the manner prescribed by the ¿10 act, or ought to have been in a summary way, as the section under which it was had, would seem to prescribe ?

The section in question is very defectively drawn. , One part of it seems to contemplate a recovery by an action or suit in the ordinary mode, and the other part of it, so far at least, as relates to the collection of the money by the constable, uses language applicable only to cases of summary convictions. And where a statute admits of two constructions, it is advisable to give it that which is consonant to the ordinary mode of proceeding before magistrates, as being the most familiar to them, and because in that, the trial by jury is secured. Summary convictions are authorized frequently in the English laws, and they are required in three different cases in the act before us, viz. under the 11th, 12th, and 23d sections. But this mode of proceeding is always strictly construed by the courts, and is not to be adopted but where the language of the law is positive and Unequivocal. The judgment below must be affirmed.


author: Thompson, J.

text:
    Jonathan Case against Peter De Goes, and Others.
    NEW-YORK,
    Nov. 1805.
    TRESPASS for cutting down and carrying away a quantity of saw-logs, after notice of title, and being forbidden. The defendants justified under a licence from one Abraham Bull, who at the time of the trespass, was in possession, by virtue of a writ of restitution, awarded upon an indictment against the now plaintiff, for a forcible entry and detainer, which was afterwards quashed for irregularity, and re-restitution directed.
    A verdict having been found in favor of the plaintiff, a motion was now made to set it aside, on the following grounds. 1st. That as he was not in actual possession when the trespass was committed, the action would not lie. 2d. That if maintainable at all, it was against Bull, who possessed the locus in quo at the time.

      Foote for the plaintiff.
    Those claiming under title, from a person who has been turned out of possession, in consequence of quashing an indictment for forcible entry and detainer, are trespassers themselves. Com. Di. tit. Trespass. B. 2. te A disseisee shall have trespass against a 64 stranger, for a trespass done during the disseisin, for by 44 re-entry, he revests the possession in himself ab initio,” citing 2 Boll. 554. 1. 39. So here, by the re-restitution, we are as if we never had been out of possession ; it follows, therefore, that we are entitled to all the remedies attendant on actual occupation. 2 Boll. Abr. 550. 1. 10. Ibid. 554. Co. Liit. 257 a. Lifford's Case, 11 Rep. 51. Dy. 316. Moore 461. Holcombe v. Bazulyns, Cro. Eliz. 540. 1 Burr. 81,5 and the decision of this court, in Case v. Shephard. The circumstance of being warned not to cut the timber, takes away all pretence of justification under the licence. They knew Bull to be a trespasser himself, and therefore unable to give permission.

      Woodxvorth contra.
    On the general principles of law which govern the action, the plaintiff, as he was out of possession, cannot recover. Bull held under legal title by judgment of law. It was good so long as that judgment remained in force, unless it be contended, that the re-entry under wr|t 0£ re-restitution should relate back so as to affect third persons. This cannot be, because the justice had cognizance of the subject matter. It was within the scope of his general jurisdiction, and the rendering the judgment of restitution, was no more than what he was authorised to do. The present case, therefore, differs from those where the magistrate has no jurisdiction, and the proceedings coram non judice. Perkins v. Proctor and Green, 2 Wils. 283. The same reasoning applies to judgments reversed for error, as well as irregularity.

      Trespass will not lie against a third person, acting under licence from one who was in possession under a writ of restitution awarded, on conviction for a forcible entry and detain-er, by a court having jurisdiction,though, the indictment be afterwards quashed, and a re-restitution directed; for a man cannot be a trespasser by relation.

      That the defendants were warned not to cut the wood, is immaterial. They had nothing to do with remote and latent claims, and the plaintiff can look only to the party in possession ; to him in whose hands the land really was. In trespass, a constructive possession is not sufficient. 13 Rep. 2, 22. This is there expressly said. “ When any ‘‘ man recovers possession or seisin of land, by erroneous “ judgment,” See. “ the same stands in force till reversed; “ and, therefore, the plaintiff in the writ of error, after “ the reversal, shall not have an action for a trespass “ mesne, because, he shall recover all the mesne profits “ against him who recovered; nor he that recovereth, “ shall be after barred of his action of trespass for a tres- “ pass mesne, by reason that his recovery is reversed, “ because he shall answer for all the mesne profits to the “ plaintiff in the writ of error.’’ It is settled law, that the rights of third persons, are equally protected, whether they be under irregular or erroneous judgments.

       See Gilbert's Tenures, 47.

       See Butler v. Baker, 1 Ander. 352. Godb. 388. Moore v. Hussey, Hob. 98. § Arguendo by counsel.

       Menvill’s case.

   Per curiam, delivered by

Thompson, J.

It has been submitted to the court to determine, whether an action of trespass can be sustained against the present defendants.' I am satisfied, from an examination of the authorities, that it cannot. Bull was put into possession by the judgment and proceedings of a court having jurisdiction of the subject matter. These proceedings, however, having been set aside for irregularity, Bull may be considered a trespasser by i-elation, and he made answerable for the damages. But it is a general rule with respect to the doctrine of relation, that it shall not do wrong to strangers, 16 Vin. Ah. 293. This rule is fully recognized in Men-vilVs case, 13th Coke, 21. where it is said, that by relation, a thing may be considered as annulled ah initio, betwixt the same parties, to advance aright; but the law will never make such a construction to advance a wrong, or to defeat collateral acts, which are lawful, and principally, if they concern strangers. Thus, also, in Lifford’s case, 11 Coke, 51, it is ruled, that where a person is disseised, the dis-seisee, after re-entry, can maintain trespass against the disseisor j for the law, as to the disseisor and his servants» will suppose the freehold to have continued in the dis-seisee ; but not so with respect to strangers, who come in by right or title under the disseisor ; they cannot be made-trespassers by relation. These authorities I think conclusive, in the present case, and go fully to exonerate the defendants. The defendants having been warned by the plaintiff not to cut the timber, cannot affect the question. They were not bound to enquire into the regularity of the proceedings by which Bull was put into possession. As it respected them, it was enough that he was there by the proceedings and judgment of a court of competent jurisdiction.

The opinion of the court, therefore, is, that the defendants are entitled to judgment.


author: Spencer J.

text:
    Ward, administrator of Nobles, against Sackrider.
    NEW-YORK,
    Nov. 1805.
    ON demurrer. The second count of the declaration was on a note or memorandum in writing, by which the defendant acknowledged to have received of Nobles, forty-two dollars, which he promised, on demand, to pay and refund, “ provided the said Nobles should make it appear “ (meaning thereby that the said Nobles should give rea- “ sonable evidence) that he the said Nobles was not able to “ hold a certain lot of land (meaning thereby, if the title “ so conveyed should prove defective) before that time “ sold and quit claimed by the said Sackrider to the said “ Nobles, in his life time,” with an averment that Nobles, jn üfe time, and the plaintiff since his death, had made ⅛ appear, by good and sufficient evidence, that the land could not be holden by virtue of the quit claim. To this the defendant pleaded in bar, that Nobles, in his life time, not make ⅛ appear, and the plaintiff, since his death, , , • , , ,T ’ had not made it appear to the said Sacknder, that Nobles was not able to hold, &c. Demurrer hide, shewing for cause, that the plea did not put in issue any new fact, and amounted to the general issue only.

      Where the declaration consists of two counts, one good and the other bad, if to Hie latter bo pleaded an insufficient bar, going to the whole cause of action, to which the plaintiff demurs, still he will be entitled to judgment on die count which IS. g-ood.

      Gold for the plaintiff,
    cited in support of the demurrer, LeyfiehPs Case, 10 Hep. 95. Lynner v. Wood. Cro. Car.' 157. 4 Bac. Abr. Old Ed. 60, 1. Hallet.y. Burch, 3 Salk. 272.

      Emott and Foote contra.
    As this case comes before the court on demurrer, judgment must be against him who committed the first fault. The declaration, then, is clearly defective. It ought to have averred either an eviction, or that the possession could not be obtained. The memorandum, too, is declared on as a specialty, and yet no seal is shewn. We deny that the plea amounts to the general issue. It admits the assumpsit as laid, but shews in bar, that the contingency on which we were to refund, has never happened

      Gold in reply.
    Even in covenant the count may be as broad as the instrument declared on. No more is done here, than to follow the words of the instrument. Lord Holt, himself, did not object to declaring on written instruments, in hooey erba; he only insisted on the setting forth a consideration. The bare reading the plea, shews it does not put any new matter in issue, and is therefore no more than the general issue.
   Per curiam, delivered by

Spencer J.

There are two counts in the plaintiff’s declaration, one for money had and received, another on a memorandum in writing. The latter count states, that by a note or memorandum in writing, the defendant acknowledged to have received of the intestate, ⅜4⅛, which he promised to refund, if the intestate would make it appear that he could not hold a certain lot of land, sold and quit claimed by the defendant to him, averring that the memorandum meant, that if the title so conveyed, should prove defective, then the money was to be refunded; averring also, that the intestate, before his death, and the plaintiff since, had made it appear, by good and sufficient evidence, to the defendant, that the intestate could not hold and possess the said lot of land by virtue of the said quit claim. To the first count the defendant has pleaded non assumpsit, and to the second in bar, that the intestate did not in his life time, and the plaintiff has not since his death, made it appear to him, that he was not able to hold the said lot of land by virtue of the said quit claim.

To this last plea the plaintiff has demurred specially ; that the plea in bar amounts to the general issue.

That the plea is vicious, and amounts to the general issue, is beyond a doubt. The defendant’s counsel, sensible of this, insist that the second count in the declaration is bad. 1st. Because the memorandum is declared on as a specialty, and 2d. because the averments do not correspond with the true exposition of the contract.

The first objection is not well founded. The consideration is expressly stated to be the §42, admitted by the memorandum to have been paid by the intestate to the defendant. An averment of that payment would have been superfluous. This objection is of no weight.

The second objection has more weight, and might be fatal but for one circumstance. The second plea is to the whole cause of action, and extends as well to the second count as the first, which is confessedly a good count. If, therefore, this plea be considered in the light of a general demurrer, on the supposition that the plaintiff has committed the first fault in pleading, still the plaintiff is entitled to judgment, on the ground that one of his counts is good, and thence no objection to this result; because, on that count, if the plaintiff has a just right to recover, he can take his verdict, and it is broad enough to embrace his case. The plaintiff must have judgment.


text:
    Pease, ex dem. Pease, against Ralph Barber.
    NEW-YORK,
    Nov. 1805.
    Interest may be recovered imdera count and receuecl^1
    IN assumpsit for money had and received, the judge charged the jury to allow interest, which was accordingly done. The question, now without argument submitted, Was, whether, under a count for money had and received, . # a plaintiff could recover interest?
   N<?r curiam, delivered by

Kent, C. J.

The particular circumstances attending this case, are not disclosed, and we are therefore to determine whether, interest can, in any case, be recovered under the count stated.

The English court of C. B. in the case of Walker v. Constable, 1 Bos. and Pull. 307, and again in the case of Tappenden, &c. v. Randall, 2 Bos. and Pull. 472, decided, that in an action for money had and received, the plaintiff could not recover beyond the net sum received without interest, and the opinion is said to have been founded upon the authority of Moses v. Macferlan, 2 Burr. 1005. The point does not appear to have been argued in either case, and the reporter has not favored the public with the reasons on which the opinion was founded, (if any reasons were given) except a naked reference to the case in Burrow. But on examining that case, the question of interest does not appear to have arisen, and is not once mentioned. The court confined themselves to the discussion of the general principles of the ac ion, and those principles rather favor than contradict the position, that interest may be recovered in that form of action. I he ease ol Robinson v. Bland, 2. Burr. 1077, which was decided shortly after that of Moses v. Macferlan, shows pretty clearly, that the question of interest was not considered as being involved in the former decision, and interest was allowed to be recovered under the money counts, which were counts for money had and received, and money lent, and there was no distinction raised as between the two counts.

The action for money had and received is an equitable action, and the party must show that he has equity and conscience on his side. The rale in equity is to allow in* terest in many cases for money had and received, Barwell v. Parker, 2 Vezey 364. Ekins v. East-India Company, 1. P. W. 396. Lynch and Stoughton v. Administrators of Gardoqui, decided in the court of appeals in this state, in 1802,

We are of opinion, therefore, that interest may be recovered in an action for money had and received; and for what appears to the contrary, it may have been proper in the present case, and as the defendant has not disclosed by his case, the circumstances attending it, we are to intend interest was properly allowed. There may be cases in which the defendant ought to refund the principal merely, and there may be other cases in which he ought ex-csquo and bono, to refund the principal with interest. Each case will depend upon the justice and equity arising out of its peculiar circumstances, to be disclosed at the trial. Judgment for the plaintiff.


author: Kent, C. J. Livingston, J. Thompson, J.

text:
    Enoch Reynolds against Corp and Douglas.
    NEW-YORK,
    Nov. 1805.
    THIS was an action of trespass, assault, and false imprisonment, brought against the defendants, under the following circumstances.
    The plaintiff, in a suit against him by Corp, in which-Douglas was the attorney, had, in exoneration of his bail, been surrendered to prison, from whence he was liberated by a regularly obtained supersedeas, for want of being charged in execution in due time. After this, Douglas issued a ca. sa. upon the old judgment on which Reynolds had been in custody, took him in execution, and kept him in confinement, from the first of December to the twentieth of February following, on which day he was, by the ordfr of Douglas, discharged.
    On the trial, the counsel for the defendants contended, 1st. That the action would not lie ; because, so long as the judgment on which the ca. sa. was issued, remained unre-versed, it warranted the writ; the proceeding on which, could not, therefore, amount to a trespass. 2d. That the execution, being according to the judgment, was a com-píete justification to tbe defendants. 3d. That the statute, authorising the supersedeas, does not inhibit the subsequent issuing of a capias ad satisfaciendum. 4th. That, in order to impeach the execution, the award of the superse-deas.> should appear on the record, that it might, on the face of it, shew, how the now plaintiff was exempted from •the operation of the ca. sa. The judge, however, overruled all these positions, and charged for the plaintiff, in .favour of whom the jury found.

      If a defendant be liberated from confinement, for want of being' charged in execution, trespass will not lie &- gainst the plaintiff & his attorney, for imprisoning him a second time, on a ca: sa. issued on the old judgment in the discharged,*?: only ^voidable

      The application now was, to set aside this verdict, and grant a new trial for the reasons insisted on at Nisi Priiis.

      Van Vechten for the defendants.
    A supersedeas is no more than an authority for the sheriff or gaoler to discharge. It does not abrogate the judgment, and the words of the law do not take away our right to proceed upon it. The statute says, “ If any plaintiff shall obtain judgment, “ &c. against any defendant in custody, &c. and shall not “ charge such defendant, so remainingaprisoner, in execu- “ tion, within three months next after such judgment ob» “ tained, then such defendant, so remaining, &c. may be “ discharged out of custody, by a supersedeasy to be allow* “ ed by one of the judges of the court, &c.” The judgment, therefore, continues in full force. If the supersedeas is to have the effect of destroying its operation, the super-sedeas should constitute a part of the record; for that which is on record, can be done away by matter of record alone. Plow. 229. Should the court be against us on these points, the excessiveness of the damages ought to induce a new trial. They ought to have been merely nominal. It is enough to lose the debt.

      ‡ Livingston, J. Had Corp any notice of the supersedeas having issued ?

      Foote for the plaintiff.
    It could not have been obtained without notice to his attornies ; and we rely on that being sufficient to affect him, for a plaintiff is bound to know all that has been regularly transacted in his own suit. It is settled, that after supersedeas, obtained for want of being charged in execution, the defendant is not liable to an
      ca. sa. on the original judgment. Perkins v. Proctor, 2 Wills. 382. Blandford v. Foote, Cowp. 7%. Masters v. Edwards., IN. T T. R. 515. After production of the super - sedeas, the sheriff would be liable to an action, should he detain, and the same law exists against the plaintiffs, should they re-imprison. It is not correct to say, the debt due to the plaintiff is lost ; for an action may now be brought on the original judgment. Barkers. Braham and Norwood., is an authority to show, that an action will lie both against a plaintiff and his attorney, for suing out an illegal ca. sa. though it be so merely from informality. Eighty-one dollars cannot be thought excessive damages for near three months’ false imprisonment.

       Act for the relief of debtors, with respect to the imprisonment of their persons, 1 Rev. Laws, 290, sec. 12.

       1 Rev. Laws. 296, § 12. In England they have no statute requiring prisoners to be changed in execution, but tine whole depends upon the rules of court. 2 Cromp. 23. 2 Wils. 380. Bohun, 243. M. S. Note, by Kent, C. J.

   Kent, C. J.

There are several questions arising upon this case. 1. Whether trespass will lie at all, for suing out execution against a defendant who has been discharged, from custody by supersedeas, for want of being charged in execution l If it will, then whether the plaintiff can sue, so long as the award of the execution remains good, and has never been set aside for irregularity ?

1. The statute only says, that aprisoner who is not charged in execution within three months after judgment, may be discharged from custody by supersedeas. The privilege of the prisoner from subsequent imprisonment upon the same judgment, is not founded upon the words of the act, but upon the construction and practice of the courts. 1 Caines, 515. The question is, whether a subsequent ca. sa. is to be deemed absolutely void, or is voidable only. I am inclined to think, that the process is voidable only, and that process will not lie, although, perhaps, a ca. sa. sued out with a knowledge of all the facts, and of the rule of practice, might subject the party to an action on the case, and also expose him to be punished as for a contempt, in abusing the process of the court. In the case before us, the judgment remains valid, and execution may go at any time against the property, and there is nothing upon record to show that the process by ca. sa⅛ is in itself irregular. The general rule is, that false imprisonment lies for arrest under process irregularly issued, but not for arrest under process erroneously issued. The irregularity, in such cases, seems, however, from an examination of the authorities, to have been apparent upon the face of the process itself, or upon inspection of the record. Parsons v. Loyd, 3, Wils. 341. Turner v. Felgate, 1. Lev. 95, and T. Raym. 73. Philips v. Biron, Str. 509. Barber v. Braham, 2 Black. Rep. 866. and 3, Wils. 368. And for this reason, privileged persons, certificated bankrupts, fkc. are not entitled to bring false imprisonment, although they may have been arrested. Cameron v. Lightfoot, 2. Black. Rep. 1190. Tarlton v. Fisher, Doug. 671. False imprisonment, it is said, will lie for arresting a person on Sunday, 1 Salk. 78. But this arises from the words of the statute, which declares the service to be void, 2 Black. Rep. 1195, and that the party shall be answerable in the same manner as if he arrested without process. I have not been able to meet with any case that comes home to the present, in its circumstances, or that will apply, by any fair rule of analogy, so as to support the action. Trespass has been held to lie against assignees, under a commission of bankruptcy, even before their commission was superseded; but this was upon the ground that the commissioners had exceeded their authority, and that their proceedings were, consequently, coram non judice, and void. Perkins v. Proctor, 2 Wils. 382. and also, to the same effect, Smith v. Boucher, Str. 993, and Terry v. Huntington, Hardress, 480. If a judgment be not ipso facto void, trespass will not lie for imprisonment under it. Prigg v. Adams, Carth. 274. Salk. 674. The case that most resembles the present, is that of issuing execution upon a judgment which has lain dormant above a year and a day. At common law, the plaintiff, in such case, was driven to sue out a new original, but the statute of 13 Eliz. 1. gave him a sci.fa. to revive the judgment. If, however, instead of bringing debt or scire facias upon the judgment, the plaintiff sues out a ca. sa. the court, upon application, will set it aside with costs. 2 Wils. 82. Barnes, 213. 206. 197 been often adjudged, and it is well settled, that the party is not responsible in trespass for suing out the ca. sa. for that the execution was voidable only, and was a good justification till reversed. Patrick v. Johnson, 3 Lev. 403. Shirley v. Wright, 1 Salk. 273. Martin v. Ridge, Barnes, 206. This case is extremely analogous to the present one, and the like rule of decision must apply to both. Although the plaintiff is no longer entitled to charge the defendant in execution on that judgment, yet, in each case, he may bring debt or scire facias, upon the judgment, and charge the defendant in execution upon the new judgment to be had thereon. But it has

2. But admitting that a trespass would lie, the plaintiff brings his suit prematurely, so long as the ca. sa. appears regular upon the record. He ought first to have applied to the court, and had the writ set aside as irregular; and in the particular case of proceedings, except by certain inferior officers beyond their powers, and whose proceedings are held to be coram non judice, I believe no instance can be found, in which trespass was brought, until application had been made to the court, to determine upon the validity of the process, and to set it aside. Until that be done, the process will be ajustification, and the court will not decide touching its validity in this collateral way. There may be circumstances existing, which might limit the interference of the court, upon the direct application, and induce them to set aside the process upon terms, and those circumstances cannot be examined into, nor the interference modified, in the present suit. Cne of the terms might have been, that no action of trespass should be brought. Such terms have been imposed by this court, on setting aside proceedings, and it is sometimes the practice in the English books. Barnes, 375. I am of opinion, therefore, for these reasons, that the verdict ought to be set aside.

Livingston, J.

This action ought not to be encouraged. The judgment warranted the execution, and although the plaintiff had been superseded, we have already determined that the object in providing this relief, was to compel the party to elect what process he would resort to, and *hat after a lapse'of three months, and even notice of application for a supersedeas, the body might be detained on a ca. sa. Why then, after an actual supersedeas should all right of personal recourse be forever gone ? The debt- or is no more injured by an exercise of this election after his discharge, than after the expiration of three months. Rut, without further reasoning, it will be sufficient to say, that my opinion is founded on the reasoning of some cases decided in this court. I have, therefore, thought it unnecessary very minutely to examine the practice in England, although if it be permitted there, as it is, to have a capias ad satisfaciendum in a second action, brought on a judgment, after a discharge of this nature, why not sanction one in the first instance, without all this expense and delay ? Would it not be more dignified to permit a thing to be done immediately, than to drive a creditor to a proceeding so circuitous and indirect, and for no other reason, than because he has been so forbearing as to permit his debtor for a while to leave the walls of a prison.

Notwithstanding the determination in Masters v. Edwards, which was a departure from principles formerly adopted, we have not yet said, that a party thus aggrieved shall have a remedy by action. We do enough, if as was done in the last case, we set aside the execution. So long as this can be done, either here, or by a judge at chambers, it is not probable we shall have many complaints.

Upon the whole, as the judgment remained in full force, as the act is silent as to the effect of a supersedeas, as the obligation to pay is as great as ever, as the ca. sa. was only voidable, and not void ; but more especially, to preserve a uniformity of decision, I think there ought to be a new trial, with costs, to abide the event of the suit.

Thompson, J.

The merits of this case are, I think, comprised within a very narrow compass, and the right of the plaintiff to recover in this action, will depend altogether upon the question, whether the execution issued against him, is, in judgment of law, to be deemed void, or only voidable f If the former, it was a nullity ab initio, and could afford no justification ; if the latter, it would afford a good justification, until set aside.

I am inclined to think the execution must be considered voidable only. That this court will relieve a prisoner charged in execution, after a supersedeas has regularly issued to liberate him from imprisonment, for want of being charged in due season, has been settled in the case of Masters v. Edwards, 1 N. Y. T. R. 516. But whether such execution is to be considered void, or voidable, is undetermined. It appears regular upon the face of it; it is warranted by the judgment, and is tobe avoided by some matter dehors the record, and which I think cannot be taken advantage of in this collateral way. A party justifying under the execution, may thus be taken by surprise, and also deprived of the equitable discretion frequently exercised by courts, according to the circumstances of the case, in setting aside executions improperly issued, upon terms, among which, that no suit for false imprisonment shall be brought, is often made a condition of the rule.

I think there are cases somewhat analagous to the present, when the process has been deemed voidable. Thus, if an execution be issued on a judgment that has lain dormant for a year and a day, it is deemed voidable only; and until reversed or set aside, is a good justification. 3 Lev. 403. An execution thus issued, is called, in the books, an erroneous process. 1 Salk. 273. And in the case of Parsons v. Loyd, 3 Wils. 345, De Grey, Ch. J. says, there is a great difference between erroneous process, and irregular (that is to say void) process. The first stands valid and good, until reversed ; the latter is an absolute nullity from the beginning. The party may justify under the first until it be reversed, but cannot under the latter.

And in the case of Prigg v. Adams, and others, 2 Salk. 674, an officer justified under an execution on ajudgment which, by an act of parliament, was void, and on demurrer, the question was, whether the judgment was so far void as that the party might take advantage of it in this collateral way, and it was held that it was not, but that it was only voidable by plea, or writ of error.

The result of my opinion, therefore, is, that in the present case the execution issued against the plaintiff was only voidable, and until set aside, affords a good justification. The verdict must, of course, be set aside.

Spencer and Tompkins, J. concurred.

       Cowp. 72.


text:
    Reynolds against Church and Douglas.
    NEW-YORK,
    Nov. 1805.
    S. P. .Especially if such defendant obtain his discharge from execution under the insolvent act, liis proceeding under that law being- a confirmation of the execution.
    THIS case differed from the antecedent in one point only ; which was, that the plaintiff, instead of being discharged from execution by the defendants, duly obtained, after a three month’s confinement, his liberation under the 4th and 5th sections of the “ act for the relief of debtors “ with respect to the imprisonment of their persons.”— The judge, on this account, directed a nonsuit.

      Van Vechten in support of it,
    contended, that the plaintiff, after treating the execution as good and valid, was estopped from saying the reverse. Besides, in consequence of the proceedings under the statute, he was forever discharged from the judgment, which circumstance would distinguish this from the preceding case.

      Foote contra
    insisted the execution was void ab initio, and could not be made good by any subsequent acts of the plaintiff himself.
   Per curiam;, delivered by

Thompson, J.

There can be no grounds for the application, to set aside the nonsuit in this case, for the reasons urged in the preceding cause. — ■ But in addition thereto, the execution being deemed voidable, the defendant must be considered as having waived the error, and affirmed the execution, by availing himself of his imprisonment under it, for the purpose of obtaining the benefit of the act for the relief of debtors with respect to the imprisonment of their persons.


author: THOMPSON, J.

text:
    Kline against Husted.
    NEW-YORK,
    Nov. 1805.
    IN error on certiorari, in this, and two other causes, the following points were relied on. 1st. That the action being trover, and the defendant having justified by pleading a right of entry, under a lease for rent-arrear, in consequence of which, he entered, distrained, and sold, (as it was lawful for him to do,) the justice ruled the plea to be equivalent to the general issue, and proceeded accordingly. 2d. That the court was held on the 12th of the month, and adjourned to th'e 22d, but the venire was tested on the 21st, when the court was not sitting, or, in other words, out of term. 3d. That the venire was directed to any constable of the county. 4th. That the cause of action appeared on the record to have arisen in the town of Hills-dale, and the trial was in that of Livingston. 5th. That in the oath, stated to have been administered to the constable, the words “ until they have agreed,” were omitted. 6th. That in one cause, no issue was joined; for, on pleading the justification, oyer of the lease being demanded, and not given, the justice went on and tried the cause, Aough the defendant abandoned it.

      W. W. Van Ness for the plaintiff in error.
    To warrant a venire, issue must be joined, for till then, there can be nothing to try. 1 his observation applies to the first and last objections, in neither of which, does the return shew a joinder. Even if we allow the special plea to be equivalent to the general issue, yet, it would not justify the proceedings adopted. On such occasions, a venire is not awarded, but the party is driven to his demurrer, on which, alone, the goodness of the plea can be determined. ' It is not, however, conceded, that the judgment on the plea was correct, notwithstanding the dictum, that in trover, only the general issue of not guilty, or a release, can be pleaded. Because the special matter may be given in evidence under the general issue, it does not follow, that such matter may no; be specially pleaded. For instance, payment, or infancy may be pleaded; yet, each may be given, in evi~ dence under the general issue. In trover, the true rule is, yOU must either traverse or deny the conversion, or confess and avoid it. Esp. Di. 595. A variety of cases may be adduced, in which this principle has governed the matter pleaded. In Thomsbn v. Clerk, Cro. Eliz. 504, in trover for a conversion of goods, in Nottingham, the defendant confessed and avoided, under a judgment in the Queen's Bench^and afi. fa. thereon, to the sheriff of York, who, at Wakefield, in the said county, by virtue thereof, took the goods in execution, and delivered them to him in satisfaction of the judgment. On a general demurrer, the plea was holden ill, not on account of its amounting to the general issue, but because it did not state where the Queen’s Bench was held, or traverse the taking in Nottingham ; and because the sheriff could not, on a fi.ja. deliver the goods, but must sell. It is, therefore, to be presumed, that had the plea amounted to a bar, it would have been otherwise. So in Gomersale v. Wayts, Cro. Jac. 255. a plea, thattke goods were taken for distresses under a dis-tringas, on a plaint in a court baron and sold, was overruled, merely, because, on such a writ, the goods could not be sold. The same principle is found in Brownlow v. Lambert, Cro. Eliz. 716. From these authorities, it is evident, that matter which confesses and avoids the conversion, may be pleaded, if it be set forth in due form of law. On the second point, we insist, that the venire was prematurely awarded. Till the opening of the court, and whilst out of term, as it may be called, the justice had no authority to directone. The adjournmentwas,unto the day after the venire issued, before which time, the magistrate had no authority orderit. In Day v. Wilber

       1 am aware ithas beenruled, that when a party pleads, he waives all objections to the ve-nire.

       But the decision there applies to cases where the exception is taken by the party, at whose request the writ is sued out. The inference, therefore, is, that he who does not pray the writ, may object. The direction also is to an officer who does not exist. There is no such person as a constable of the county. The law knows only constables ef towns ; and though a direction to a wrong officer may be cured, one to a non-existing officer is fatal» 1 his cannot be called a matter of form, and, therefore, not within the act of 1801,t) which, indeed, is no more than an extension of the statute oí jeofails. The fourth error relied on, speaks for itself; and the fifth is expressly within the last resolution, in Day v. Wilber, which settles, that though a justice is not hound to set forth the oath administered to a constable j yet, if lie undertake it, and mis-recite, the judgment must be reversed. On the sixth exception, something has already been said; but the justice was certainly wrong in proceeding to trial, without an issue joined, merely, because oyer was refused, when, as the demise was not pleaded with a proferta it does not appear to have been by deed; and if by parol it was not demr.ndable.

      Special pleading in a justice’s cowt is to be discountenanced. If in trover, before a justice, a justification be pleaded, which goes to the merits, and he determine that it amounts to the general issue, whereon atrial is had, in which it does not, from the record, appear that the whole merits were not before the jury, the court will intend that they were, and affirm the judgment below pronounced, on the verdict rendered. AH objections to a venire issued by a justice ought to bemadebefosc' trial.

      Parker and Foote contra,
    argued, that all defects in the venire and venue, were cured by pleading in chief, according to the case of Day v. Wilber; and, as the decision of the justice upon the special plea, was clear law, it must be intended the jury tried the facts set forth, in the same manner as if they had been adduced in evidence under the general issue ; their verdict is, therefore, conclusive against the justification set up. The oath of the constable, they urged, might be rejected altogether, as mere surplusage.

      W. W. Van Ness replied,
    the intendment of trial could not be made, as it was against the record, which stated, that the defendant abandoned the cause.

       2 Vol. 134.

       6 Res. Ibid. 136. § Act for the more speedy recovery of debts to the value of 25 dollars. 1 Aeo. Law, 491. sec. 19.

   THOMPSON, J.

This case comes before the court on certiorari. The exceptions taken to the return, are, 1st. That the proceedings were in the county of Dutchess, and the whole cause of action stated to have arisen in the county of Columbia. 2d. That there was a special plea put in, and justice went,to trial without any replication, or issue being joined. 3d. That the venire is defective in being directed to a constable of the county.

The first exception, on examination of the record, does not, in point of fact, appear to be well taken. The action, is in trover; the declaration not very formally, or technically drawn, and much unnecessary matter introduced. But the plaintiff below, alleges himself to have been in possession of the property, at North-East Torvn, in Dutchess county; and that the conversion, which is the git of the action, was at the same place. The declaration, I think, states the plaintiff’s demand with all necessary certainty, to enable the defendant to answer and defend, which is all that ought to be required in justices’ courts.

With respect to the second exception, it is to be observed, that the plea purports to be a plea of justification, and without determining whether such a plea in an action of trover, would be good on demurrer, it is enough, I think, to say, that the whole matter set up in the plea, might have been given in evidence, under the general issue. The defendant was, therefore, under no necessity to interpose a special plea; and all such pleadings, in justices’ courts, ought to be discountenanced, as being calculated to mislead magistrates, and involve proceedings in their courts, in all the technical niceties of special pleading. The defendant has, in his plea, detailed the facts which he relied upon in his defence, which amount substantially, to a denial of the plaintiff’s right to recover against him. 1 his I think sufficient, without requiring a special replication from the plaintiff. The parties went to trial upon the merits. The defendant was not precluded from any defence he had to make; the whole merits of the case, for any thing that appears on the return, were before the jury, and we must necessarily intend, because nothing to the contrary is shewn, that the defendant below, failed in supporting by proof, the allegations contained in his plea.

With respect to the last exception, if it could have been made in any stage of the proceedings, it comes too late, and does not involve in it an examination of the merits of the case between the parties. The opinion of the court, therefore, is, that the judgment below be affirmed.


author: Thompson, T. LivingstoN, J. Kent, C. J.

text:
    Baker and Rowlson against Richard and Henry Arnold.
    NEW-YORK,
    Nov. 1805.
    ASSUMPSIT by the indorsees against the makers of a note, for ^‘330, dated March the 31st, 1796, payable on the 31st March, 1799, with interest from thence, to Roszoell Lombard, or order, with an indorsement' to the plaintiffs in these words : “ Pay the within note to Erastus Baker and “ Sylvester Rowlson value received, March 30th, 1799, Ros- “ well Lombard.’’’’

    On the trial, the hand-writings of the defendants and payee being admitted, the plain tiffs there rested their cause.
    Tne defendants, to establish that the indorsement was made after the note was due, and thus afford an opportunity of impeaching the consideration, by letting in their equities, called the indorsor himself, who, after some objection as to his competence, was, on the authority of the former decision in this case, received by the court. Lombard then testified, that before the instrument became payable, he sold it to one Holt, for Susquehannah lands, lying in the State of Pennsylvania, within the Connecticut claim; but that he did not then indorse it over, nor did he ever know that the note was in the hands of the plaintiffs, or that they had any interest in it till June, 1799, when he was called on by one Elmer, on behalf of the plaintiffs, with a request to indorse it, which he refused, and that he did not till the September after, upon a second application, yield to the persuasions of Elmer, a Mr. Pepoon, and one of the plaintiffs, by putting his name on the back of the note. This, however, he swore was done in blank, with a knowledge of the consideration on which he had parted with.it to jETo/í, and that at the same time, it was mentioned, a suit had been commenced against the defendants.
    The way being thus prepared for investigating what had passed from him, when the note was given to the defendants, they called one Gardner, a subscribing witness to the instrument, and he deposed that the consideration was, like that for which it had been indorsed, Susquehannah lands, lying within the Connecticut claim, in Pennsylvania.

      In an action by-a bona fide holder of a note taken before due, against tire maker, the consideration cannot be inquired into, if the instrument be not in its creation void. The letters of an indorsor may be adduced to contradict bis testimony as to the time of his indorsing, and it is for the jmy to determine whether his oath or letters are to be credited.

      To rebut this testimony, and impeach Lombard’s credit, ^ Pontiffs gave in evidence the following letter, to the defendants, signed by Lombard himself.
    “ Slockbridge, May 31, 1797. Messrs. Richard and Henry Arnold.,

      “ Gentlemen,
    “ This may certify that I have sold the obligation which “ I held against you. I sold it to Mr. Jacob Holt, of Ca- “ naan, in Connecticut, and I have received a line from Mr. “ Holt, wishing me to transfer the obligation to Erastns Ba- “ ker, and Silvester Rorulson, mentioning in the line, that he “ has received property to the amount of the obligation, and tc transferred by me, Roswell Lombard.” They also produced the letter of the 4th of March, 1799, from the defendants to the plaintiffs, set forth in the former report of ibis casey and another of 19th of April, 1799, still offering to settle on the same terms, but threatening, if they were not accepted, a defence, which should prevent all recovery. The plaintiffs also produced a witness, who deposed that he was present when Holt disposed of the note to them, and understood from Holt and Lombard, and the defendants, the consideration, both for the transfer and making of it, to have been lands in Canada, a tract of which he had himself sold to the plaintiffs, who, by another pei’son, proved, that in the beginning of March, 1799, one of the defendants acknowledged the note to be an honest debt, and that he had then come to make provision for its discharge.
    On the part of the defendants Lombard was again called, and swore he never had said the note was given for lands in Canada.

    The judge, on charging the jury, said, the first question for them to. determine was, whether the note was indorsed after due ? That Lombard had sworn positively to this, but how far he was to be credited, was, under the circumstances of the case, for their determination, as the fact, with respect to the time of indorsement, came within their province to determine. If they believed it to be before the note was due, the plaintiffs were entitled to recover, as the consideration could not then be impeached. If, on the other hand, the indorsement was after the day of payment, their verdict, should they be of opinion the consideration was Susquehannah lands, ought to be for the defendants.
    The jury having found for the plaintiffs, application was now made to set aside the verdict on two grounds. 1st. On account of misdirection in leaving the date of the indorsement to the jury. 2d. Because the verdict was against law and evidence.
    Woodworth, for the defendants,
    argued, that on the first point there could be very little hesitation, for, from the decision on the first appearance of these parties before the court in 1 N. Y. T. R. 275, it appears the date of an in-dorsement, is perfectly immaterial, and yet from this circumstance, the jury were left to infer against the defendants, though the actual period at which it was done, lay, necessarily, within the knowledge of Lombard, and the insertion of the date, may well be the act of the plaintiffs. As to the verdict, he said it was against the weight of testimony, none of which went to impeach Lombard’s credit.

      Henry contra,
    cited Peacock v. Rhodes

       to shew that in the hands of bona Jide holders of negotiable paper, not void ab initio, the consideration was not inquirable into, if the instrument was received before due ; this, he contended, appeared from the dates of the defendants’ letters to the plaintiffs, and the incredibility of Lombard’s testimony, which stood contradicted by the indorsement, and his letter of May, 1797. That at all events, he had parted with the note before due, and the mere act of indorsing being pnly what ought to have been originally performed, equity would consider it as having taken place, and a court of law permit it,, at any time, to be done. Smith Vo Pickering, Peake, Ni. Pri. Ca. SO.

      1 Vol.258.

       1 vol 259 260.

       Doug. 633.

   Thompson, T.

The misdirection complained of, so far ' r , , , , , , . as I have been able to understand it, irom the points made in the case, or from the argument of the counsel, is, that the indorsement upon the note, and the certificate of May, l^g/, which both speak a language, directly contradicting the testimony of Roswell Lombard, were submitted to the jury as facts, in any measure, impeaching the veracity of Lombard, or the correctness of his memory. This objection appears to me altogether unfounded. It was deemed all-important to the defendants, and the turning point in the cause, to ascertain the time when the indorsement was made, whether before or after the note became payable. l.ombard, the indorsor, swore he made it after the note fell due, though it purported to have been made before. It was admitted by the witness himself, that the indorsement was not in blank; that it was filled up when he signed his name; and from inspection, I think it .is pretty evident, that the whole indorsement is his hand-writing. Here then, we have his oath one way, and his declaration in writing, the other; and it would be a little extraordinary, if a jury were not permitted to contrast the two, in order to determine which was correct. Had the indorsement been in blank, it might have altered the complexion of the case. Is it not every day’s practice, to give in evidence, decla-tions made by witnesses, at other times, inconsistent with their testimony, in order to impeach their credit? Aman is bound to tell the truth at all times, whether under oath or not; and Ishould hardly suppose,that because the story was committed to writing, it would excuse the falsehood; and if not, it was certainly a circumstance operating against the credit of Lombard. If it was not true that he made the indorsement, when it purports to have been made, his motives must have been fraudulent, and the indorsement antedated, for the purpose of precluding the defendants from a just defence. If a man, coming into a court of justice, and thus testifying the facts, which expose his own turpitude, does not render himself suspicious, I am at a loss to say what would. His oath stands directly contradicted by his .own acknowledgment in writing, in another particular. He swears positively and unequivocally, that he never knew or heard that the note was in the hands of the plaintiffs, or that they had any interest m it, or contemplated purchasing it, until after it became due; whereas, he certifies, as early as May, in the year, 1797,that Hit, to whom he had sold the note, had written him a letter, informing him that he, Holt, had sold it to the plaintiffs, and requesting him, the witness, to indorse it to them. These are circumstances, in my judgment, tending strongly to impeach the credit of Lombard. But it was peculiarly within the province of the jury to determine the credit due to him_ which they have done by their verdict. If Lombard was unworthy of credit, the verdict cannot be said to be either against law or evidence. It is admitted, that if the indorsement was made when it purports to have been, the consideration could not be impeached. My opinion, therefore,, is, that the motion ought to be denied.

LivingstoN, J.

I am neither dissatisfied with the judge’s charge, nor with the jury.

The first was such as the testimony called for, and so far from thinking the verdict wrong, I should not, if on the jury, have consented to any other. It is probable, they disbelieved, as they had a right to do, every word Lombard said. His conduct, throughout this transaction, discovers him to be a crafty, designing man. Although he sold the note as early as in May, 1797, yet, when he discovers he had omitted to indorse it, he makes a thousand difficulties, with a view, no doubt, of extorting a further consideration. At length he puts his name on it, and immediately after sets about defeating a title derived from himself. This is not all. He swears positively to his ignorance “ of the note’s being in the plaintiffs’ hand, or that “ they had any interest in it, or comtemplaied its purchase ‘‘until June, 1799.” And yet two years before, he had written a letter, which is part of the case, informing the defendants “ that Holt, to whom he had sold the note, is had transferred it to the plaintiffs, and wished him to “ indorse it.” Such a wilful departure from truth in otic particular, for it could not have been a mistake, warranted the jury in discrediting every other part of his testimony. R is impossible that a man who pretends to so perfect a recollection of the most minute and immaterial circumstances, and that after a lapse of several years, should have forgotten so important a fact; one too, which he had communicated in writing to the defendants.

But were this a verdict against evidence, it ought not to be disturbed, because the merits are most clearly with the plaintiffs, and the defence is of the most unconscientious kind. The plaintiffs are innocent holders of this note.— They obtain it near two years before it falls due, and for a full and valuable consideration. The defendants are immediately apprized of all these facts. They treat with the plaintiffs, and that long before its time of payment had expired, and offer them satisfaction on certain terms.— Were the suit in the payee’s own name, but for the plaintiffs’ benefit, and all these matters had been disclosed, I would have protected their interests, and stopped every inquiry into consideration, the same not being such as to render the note void in the hands of a third person. A fortiori^ the indorsement, whenever made, should have been regarded particularly in support of a just debt, as relating back to the time of its actual delivery to the plaintiffs. But this, it is said, would have been in derogation of the defendants’ rights, who, if no actual indorsement took place, until after the note became due, might impeach its consideration. This necessarily leads to an inquiry into the nature of the present defence; for if such practice be correct in any state of things, which I do not admit, it ought not to apply to a case where the object of ascertaining the exact time of in-dorsement is to let in a defence against conscience, and founded in a violation of private faith. Although this court may have decided on the illegality of the consideration of notes of this description, and may not enforce their payment,.in suits between the original parties, the obligation to pay, in foro comcienUw, if the party has received value, still remains. Such is the case here. The defendants have received full value in lands, which they have probably sold to a profit, or of which they, or their tenants, for aught that appears, may now be in the quiet enjoyment. It was not alleged or pretended that the consideration had failed, although seven years had elapsed at the last trial, since the land had been conveyed to them.

There are circumstances in this case, which look very much like a combination between the makers and payee of the note, to defraud the plaintiffs. The Arnolds first receive value for it, from Lombard, who takes care to sell it to Holt. When they have thus both pocketed a consideration for this paper, and sent it abroad into the world, they lay their heads together for the purpose of rendering it a nullity, in the hands of a third person. This ought not to be endured. The defendants have had two chances already; with my consent, they shall not have a third.

Kent, C. J.

The most material question of fact in this cause is, whether the note was or was not actually indorsed by Lo r.bard, before it became due. The 'ndorsement purports to have been made on the 30th March 1799, the day before it fell due; but to repel this evidence, the in-dorsor testifies, that it was not indorsed until some time af-terwards. He speaks positively as to the time of indorsement, and relates circumstances to confirm the accuracy of his testimony. The testimony on the part of the plaintiffs also shows, that the note was not indorsed at the time it was sold and delivered by Lombard to Holt, and by him to the plaintiffs; but it might still have been indorsed at the time the indorsement is dated. If the testimony of Lombard was unimpeached, it would be decisive; but there is one fact that materially affects the credit of his testimony. He testifies, in a very positive manner, that he never knew, or heard, that the note was in the hands of the plaintiffs, or that they had any interest therein, or contemplated purchasing it, until June, 1799 j and yet, by a letter under his own. hand, bearing date in 1797, and directed to the defendants, hfe admits he had sold the note to Holt, and that Holt had sold it io the plainrifFs. This inaccuracy in his testimony, and of which he was clearly convicted, detracts greatly from his credibility. The circumstances relative to his testimony, were fairly submitted to the jury, and the verdict may be considered as evidence, that the jury did not give credit to his testimony. I think I should have drawn a different conclusion, but still the verdict ought not, on that account, to be disturbed. It is the peculiar province of the jury to judge and determine upon the credit due to a witness, when there are circumstances contradicting his testimony and affecting his credit. Upon this ground, I am against a new trial.

SpenceR, J. gave no opinion, having been concerned.

Tompkins, J. concurred.


author: Spencer, J. Thompson, J. Kent, C. J. Livingston, J.

text:
    Levinus Lansing against Thomas M'Killip.
    NEW-YORK,
    Nov. 1805.
    If two considerations, both of which are good, be alleged as the ground work of a special agreement reduced to wilting, both must be proved as laid, though the instrument say for “ value “ received.”
    ASSUMPSIT, on a special agreement, in consideration of a horse, and divers goods and merchandizes, to deliver, for value received, forty dollars worth of merchantable boards.
    At the trial, the plaintiff adduced the subscribing witness to the note, who testified that the horse was the only consideration. Upon this, the defendant moved for-a nonsuit, insisting that the plaintiff was bound to prove all the several considerations, as laid. The judge, ruling to the contrary, charged in favor of the plaintiff, for whom the jury found. The application now was to set aside that verdict.
    Cranj, for the defendant.
    If a promise be made on two considerations, proof of one only cannot establish it; for it is to be presumed that the qssumpsit was founded on both. Leneret v. Rivet, Cro. Jac. 503, cited, Esp. Di. 133. It is immaterial whether they be both good. Bradburne v. Brad-burne, Cro. Eliz.lAB, cited, Esp. Di. 139. The necessity of making the proof correspond with the declaration, is shown mBristotv v. Wright, Doug. 666. The form of the pleadings substantiate the same principle ; each consideration must be averred, and it is a settled rule, that you must prove your averment.
    Foote, contra.
    It was not necessary to state, or prove any consideration. The instrument says, “ for value received.”

      Crary in reply.
    In cases of promissory notes, and bills of exchange, the position may be correct. But even there it has been doubted. Kyd, on bills, 61,2. The present is not a negotiable instrument, and therefore not within the rule.
   Spencer, J.

If the averment of a consideration on anote like the one in this case, was necessary, then the plaintiff by averring- a consideration which did not exist, has failed in his proof j for if two considerations be alleged, as the foundation of a promise, both must be proved. Cro. Jac. 503. Esp. Dig. 133, 9. If, however, the admission of value by this paper, is of itself sufficient, then the averment of a consideration would be surplusage, and might have been struck out on motion, and therefore cannot vitiate.

That the present is not a promissory note within the statute will not be disputed; it is therefore a promise which can only be enforced on the ground of a consideration; and though value is admitted to be received, it does not supersede the necessity of averring the consideration, that the court may see that it is of that kind and nature to sustain the promise. Prior to the statute of 3d. and 4th. Ann. ch. 9. no action could be maintained expressly on a note, even for the payment of money, without declaring on it as a special agreement, and setting forth the consideration. The case of Carlos v. Fancourt, 5 D. & E. 482. contains the whole law on this subject; and there the court unanimously held, that in declarations on notes not within the statute, they were to be regarded as special agreements, and the consideration was necessary to be set out. In my opinion, the defendant is entitled to a new trial.

Thompson, J.

It is not pretended that the instrument in writing, which was given in evidence, is a note within the statute. And if not, I apprehend, the terms for va° lue received, contained in it, will not, of themselves, imply a consideration, but that a consideration must be averred and proved. It is a general rule, that when a special agreement is the foundation of the action, and tha" agreement stated in the declaration, the contract must be proved as alleged. The plaintiff having averred two considerations, his proof ought to have squared with it. In the case of King, v. Robinson, Cro. Eliz. 79, the court went much farther, and said, that if the promise alleged, be proved, yet if it appear to have been made on a different consideration than the one stated in the declaration, it will not support the action.

Where all the considerations alleged are good, all must be proved, for the promise shall be deemed to be founded on all these considerations. Cro. Eliz. 759. Esp. Dig. 139. I am therefore of opinion, that the proof was defective, and that the plaintiff ought to have been nonsuited on the trial. The verdict must of course be set aside.

Kent, C. J.

This being an action of assumpsit upon a special agreement, it was necessary to state a consideration, and the plaintiff has accordingly stated, that the consideration for the defendant’s promise, was a horse, and divers goods and'chattels, sold to him by the plaintiff.

If a plaintiff allege several good considerations, they xnust all be proved, for the promise shall be deemed to be founded on both considerations taken together. The promise to pay, in the present case, boards to the value of $40, was founded, not singly upon the sale of the horse, (and which we must presume was not estimated at that value,) but upon the sale of divers goods and chattels, as distinct articles from the horse, and which, when added to the value of the horse, amounted to the full consideration of $40. This rule appears to have been long ago settled, and repeatedly recognized. In Tisdale’s case, Cro. Eliz. 758, the court of C. B. held, that where a consideration consisted of two or three parts, and everyone of them was valuable, the plaintiff was bound, of necessity, to show the perfoi'mahce of every part thereof. And in the Case of Coulston v. Carr, Cro. Eliz. 847, the K. B. agreed, that if two considerations be alleged, and one of them be found false by the jury, the action fails. So again in the case of Leneret v. Rivet, Cro. Jac. 503, the K. B. ruled, in arrest of judgment, that if the plaintiif declare on two considerations, he must make a good and sufficient averment of the performance of both. The only exception to this rule is, where both considerations are not good, but one of them insufficient or frivolous, Cro. Eliz. 149, 848. But that distinction can have no application to the present case, as the sale of the horse, and of divers goods and chattels, are considerations equally valid. The verdict, therefore, must be set aside for misdirection of the judge, with costs to abide the event.

Tompkins, J. concurred.

Livingston, J.

This action being brought on a note by which the defendant acknowledges his having received value for the promise he makes, it was not, in my opinion, necessary to prove any consideration, nor should the defendant have been permitted to shew that it was incorrectly set forth, unless he were able to impeach it on the ground . of fraud, turpitude, or illegality. It is superfluous, as well as dangerous, to require proof of the consideration of an undertaking in writing, when a valuable one is acknowledged, under the signature of the party himself. It is ' asking what rarely canbe complied with. How seldom is it that the whole consideration appears on the face of a contract; or that even a subscribing ■ witness knows any thing of it; or if he did, how easily might it escape the memory, or such proof be lost,by death, or other accident? So long then, as it is permitted to set up any unlawful consideration, it is all that can reasonably be asked, and no one can complain that his own acknowledgment is regarded as evidence, at least, prima facie, of one that is fair and valuable. The motion to nonsuit, was therefore properly overruled by the chief j ustice; for here was not only a consideration acknowledged under the defendant’s hand, but his.receipt of a horse actually proved. Under these circumstances, it would be doing great injustice to listen to t¡1(J present application, merely because an additional con» sideration alleged in the declaration, which may be regard-ecl as surplusage, and the want of which constituted no defence, could not be proved, or was disproved. No case has yet gone this length, and I should require a series of decisions-to satisfy me of the propriety or necessity of so much strictness. The case of Bristow v. Wright, is very different from the present. There the demise proved, varied from the one stated in the declaration. That is, the contract itself and not merely its consideration, was erro-neousjy Set forth. The case of Leneret v. Rivet, cited from Crake., settles nothing more than that if two good considerations are alleged as conditions, precedent to the defendant’s liability, performance of both must be averred, which is too reasonable to have wanted the support of any authority. In King v. Robinson, it was proved that the defendant assumed to do what was alleged, and something more. This too, presents the case of a variance between the contract laid and the one proved, and not only between the motives to it as alleged and proved. The note of this case in Espi-nasseÁ is incorrect. I know not of a single decision, ren- . ° dering it necessary, on a contract of this nature, to prove a consideration. We are not now examining whether a nude pact, evidenced by writing, has ever been held to be bad,; but whether, which is a very different question, a promise in writing, acknowledging the receipt of value, shall not, prima facie, be sufficient to support an action without proof of its actual consideration. I know it to be a general and wholesome principle, that contracts must be made on some consideration, and that ex nudo pacto non oritur actio; but the question.still recurs, who is to prove, in a case of this kind, the nakedness of the contract, or its want of consideration ? The same law, which requires this quid pro quo in a contract, does not demand an absolute equivalent, but is satisfied in many cases, with the most trifling-ground that can be imagined. Why not then be content in point of evidence, with a declaration under the hand of ihe party, that he has received a valuable one, without indulging the useless curiosity of prying further into the transaction ? Why so very careful of a defendant’s rights as not to suppose him capable of judging for himself, what was an adequate value for his promise? Would it not be more just, and better promote the ends of justice, that one, who had signed an instrument of this kind, should, without further proof, be compelled to perform it, unless he could impeach the validity on other grounds? It may be said that whoever asks the interposition of a court, must show a right to recover, founded on a valid contract. This is not denied, but does not settle the way in which this proof is to be made, whether the defendant’s acknowledgment of value received shall be regarded as sufficient, or what other evidence shall be required. Of specialties, the considerations we know are not inquirable into, in actions founded on them. And yet the reason assigned by Powell, for excluding this investigation, applies to all bargains in writing. In a specialty says he, “there is a sufficient “ consideration apparent, namely, the deliberate will of the “ party who made the deed.” Does the mere absence of a seal, require us to believe that this deliberate will does not exist in other written contracts ? The truth is, that little or no deliberation intervenes between signing and delivering a deed. They generally take place, as near as two distinct things can, in the same instant. This deliberation then being formed, antecedently to a delivery and even signature of a deed, ought, on the ground of reason alone, to be evidence of a consideration, as much in the one case as in the other. But without disturbing any of the distinctions, which for ages have existed between these contracts, no adjudged case can be found repugnantto my conclusion. That no actions were maintainable on promissox-y notes at common law, where, however, they were regarded as evidence of debt, on counts for money had and received against the maker, is admitted. This establishes what is not controverted, that notes like these must be declared on as special contracts, and their consideration set forth; but we are still at liberty to settle what shall amount to proof °f them. In the case of Carlos v. Fancourt, I will only say, that nothing like the present question occurred. 1 he plaintiff had declared on a note of hand, payable on a certain contingency, as on a note within the statute of Anne, an¿ ⅛ was not so, was the single point determined. No latitude of expression, therefore, in which the judges may have indulged bn points not before them, could have the effect of settling the law, even in England. Unfettered, then, by any decision, as to what shall be received as evidence of the consideration, of notes of this description, I have little hesitation in saying, that it ought never to be necessary to prove the consideration of a contract, although stated in the declaration, where a party has acknowledged in writing- that it was made for value, in any other way than by a production and proof of the instrument itself; and that the defendant ought not to be allowed to shew that it was made on any other, unless it be of a nature to destroy, or in any manner affect its validity. This is no more than is done in actions of trover, in which, although a loss and finding be alleged in a declaration, proof of neither is required; where then the extravagance of alleging any legal consideration to comply with the usual form of declaring, and letting it be inferred from the production of a note which admits on its face a valuable one ? Good sense would suggest the propriety of going further, and saying that such a-note might be declared on as a specialty, without alleging any consideration, only leaving to the defendant the same right of investigating its legality, or failure. Such an innovation, however, in the form of declaring, should not be introduced without much deliberation on the consequences it might produce. The plaintiff is, in my opinion, entitled to the Postea.

      Doug. 640.

      Cro. Jac. 503.

       Cro. Eliz. 79. § Esp. N. P. 139.

       On Cont. 333.

       5 D. & E.482.