author: Jones, C. J.,

text:
    Russell Attwater versus Theodosius Fowler.
    August Term, 1828.
    An action fbr money had and received, brought by a partner in a particular transaction against his co-partner, cannot be sustained, unless there has been a settlement of their joint affairs, and a balance struck, although there may have been a complete termination of the partnership.
    Therefore, where A. Sr F. were jointly interested in a purchase of stock in the old bank of the United States, and upon a termination of their speculation, F. wrote to A., enclosed him a copy of his account, exhibiting a balance against A., and informed him that he (A.) would be entitled to receive thereafter “ whatever re“sidue there might be on twenty-nine shares of said bank stock;’’ but which “ residue,” consisting of dividends on the shares, was afterwards received by F. himself: It was held, that he was not liable to account to A. for such dividends, in an action for money had and received. The remedy in such cases, it seems, is to be sought in a court of equity.
    This was an action of assumpsit for money had and received. The defendant pleaded the general issue, and gave notice of a set-off. The cause was tried before Mr. Justice Hoffman, on the 11th day of June, 1828.

    At the trial the plaintiff gave in evidence the following agreement between the parties ; and the following letter from the defendant to the plaintiff, viz:
    “ Memorandum of an agreement made this 28th March, 1812, “ between Theodosius Fowler, of Nexv-York, of the first part, and “ Russell Attwater, of St. Lawrence county, of the second part:— “ Whereas the party of the first part has lately purchased United States Bank stock, at a price less than par, and agrees to make “ such further purchases of the said stock of the late United States “ Bank, as shall be within his power, when offered to be had, at “ a price he shall think advantageous: And the said party of the ‘ second part, being entitled to subscribe for shares in the new “ stock of the Bank of America, about to be incorporated, “ which he engages he will do, to any number of shares he shall “ be able to obtain : It is now agreed and understood between “ the said parties, that the purchasers of said stock made by 11 the party of the first part, as well as the slock so subscribe “ ed for by the said party of the second part, shall be for the joint “ interest and benefit of both parties to this agreement, and they “ are to share equally in the profit or loss that may arise out of said u business ; each party to charge interest on all money advanced, “ but not for services done. In performance of this agreement ££ the parties bind themselves each to the other.
    “ Russell Attwater,
    “ Theod. Fowler.”
    “ New-York, 26 June, 1812.
    “ Dear Sir,
    “ I have received your two letters, one dated at N. York, and the “ other on 20th inst. at Albany. Since you left this our govern- “ ment has declared war against Great-Britain, which has had “ a wonderful effect on all banking institutions; so much so, that “ all the banks of this city are at par, or thereabouts. The “ Union Bank of this city is 5 per cent, under par. In this situa- “ tion I have thought it most prudent for your and my interest, " not to subscribe to the 6 million S.; and it has been a fortunate “ thing, so far, that I did not purchase any more of the U. S. Bank <£ stock.

    “ At foot you will see the statement of our accounts up to the 1st ££ inst., agreeable to your contract; the balance being $3,547,%%, ££ At the same time you are entitled to receive whatever the resi- “ due may be on twenty-nine shares of U. S. Bank stock.
    “ The above balance of $3,547,%%, is due me from the 1st inst., and I will thank you to make provision for the payment “ as soon as possible. At all events, as times are, it is best for ££ both of us to have an immediate settlement.
    (Signed) “ Theod. Fowler,”

      Russell Rttvjater,

      To Theod. Fowler Dr.

    1811.
    27 Dec. 20 United States Bank shares, at 97J per cent. - - - - $7801 00
    Interest 27th Dec. to 1st June, 5 months and 5 days, - - - 235 08
    8 United States Bank shares, at 97í per cent. - - . - - 3104 00
    Interest 27th Dec. to 1st June, 5 months and 5 days, - - - 93 54
    1812.
    29 Jan. 30 United States Bank Shares, at 98¡, ------ 11820 00
    Interest to 1st June, 4 months and 3 days, ------- 282 69
    23335 31
    Deduct half for T. F., 11667 65|
    Or. hy 70 per cent, rec’d on 29 shares, is 8120 00
    Balance due 1st June, 1812, to T. Fowler from Russell
    Attwater, - -- -- -- -- - - - - - 3547 65¡
    Theod. Fowler.
    The plaintiff then offered the depositions of Joseph Roberts, cashier for the trustees of- the late Bank of the United States, and of W. M. Walmsley, a broker residing in Philadelphia, for the purpose of proving, that certain dividends on the shares of the stock of said bank had been declared, and that the defendant received the amount paid on the 29 shares mentioned in said letter, over and above the 70 per cent, credited in the account.
    These depositions were objected to by the counsel for the defendant as inadmissible: and if admissible, as insufficient to establish the facts, which the plaintiff sought to prove by them.
    The objections were overruled by the presiding judge, and the point reserved for the consideration of the whole court. But as the decision of the case did not turn upon these depositions, and as the court gave no opinion, either upon their sufficiency or admissibility, it has not been deemed necessary to notice them further. The plaintiff also called a witness to corroborate the facts stated in the depositions, and the testimony offered by tended to prove that the defendant had received all the dividends declared on the 29 shares of stock mentioned in his letter.
    The defendant then moved for a non-suit, upon two grounds: first, that this action could not be maintained by the plaintiff: secondly, that the proof offered was not sufficient to show thatmonsy had been received by the defendant. This motion was denied by the presiding judge, in order that the facts of the case being established, the questions of law might be reserved for the consideration of the whole court.
    The counsel for the defendant then read,in evidence two letters from the plaintiff to the defendant, for the purpose of showing that the joint transactions between the parties, relative to the stocks mentioned in the foregoing agreement, had never been liquidated or closed. Those parts of the correspondence which bear upon this point, were as follows;
    “ ffew-York, June 2d, 1825.

      *•Theodacius Fowler, Esq.

    “Dear Sir,”
    “ By the conversation I had with you the other day, it ap- “ peared, that the business which was done by us, under the “ contract entered into on the 28th March, 18Í2, was not with- “ in your recollection, and as it may not be convenient to you to look up your papers referring to it, I have transcribed from “ those I have, such parti of them as will show you how the busi- “ ness is situated.
    “Agreeable to the contract, I subscribed for two hundred “ shares in the bank of America, amounting to $20,000, which “ money I borrowed of Messrs. Prime, Ward & Sands, for one “ year; at the end of which time I borrowed the same sum of “ the bank of America, and gave them my bond, with a pledge of “ the stock, and paid Messrs. P., W. & S., with the interest, which “ was seven hundred dollars more than the dividend for that yean “ Since then, the bank kept the dividends on the stock, until Ju~ “ly, 1823, when they agreed to take the stock, give me up my “ bond, and discharge me.” “The above isa statement of my of the business, by which.I have paid out seven hundred “ dollars about eleven years ago, and you have received on my “ 29 shares, Sept. 12, 1812, eighteen per cent.: April 1st, 1813, “seven per cent. : April 1815, five percent.: in 1817, four per “ cent: 1820, one and three quarters per cent., and in 1823, two “ and one quarter per cent, which overpays you for the money “ advanced, namely, $3,547 66, and the interest. “ After having examined into this business, you will please to “ let me know how you are' disposed to settle it.
    (Signed) Russel Attwater.
    New-York, June 4. 1825.

      Mr. Theod. Fmdler,

      “ Sir” . -
    “Yours of this day 1 have received. However absurd or “ laughable it may appear to you that I should request a settlement “ of a business commenced in 1812, and not finished even, at this “ time, is of no consequence to me. If I had not considered my “ claim legal as well as.equitable, I might not thought it worth “ my trouble to call upon you for a settlement; but as it possesses “ both, not only in my opinion, but of a gentleman well acquaint- “ ed with such transactions, (and the only one who has a know- “ ledge of it,) I might perhaps think of relinquishing it: as it is, “ you may be assured I shall not, but leave it for the public to “judge, whether it is most honourable for you to refuse a- settle- “ ment, or meto ask for one. I have good reason to believe that “ you knew that I subscribed for the bank stock ; and by our contract “ it was not contemplated that I should advance any money “ for the shares you purchased. ¥ou will understand by this, that “ I am not so modest a man as to desist from claiming my rights, “ and if you should not change your' mind, and let me hear again “ from you on this business, I'must' take some other course to . “ bring it to a close : but if you should be disposed to submit it •“ to any judicious and well-informed gentleman in businses, I “ should be pleased to abide by his opinion.
    “ I shall leave town to-morrow morning for Connecticut, on business, and I expect to be absent four or five days. On my “ return I should be pleased to have it settled, if it is to be, amicably. That will depend on yourself.
    I am yours, &c.
    (Signed) <c Russell Atwater.5*1
    Upon this evidence, a verdict was taken for the plaintiff for $877, subject to the opinion of the court, upon a case to be made, containing- the foregoing facts. If the court should be of opinion, that the action could not. he maintained, a judgment of non-suit was to be entered. If the action was adjudged maintainable,and the evidence sufficient, then the verdict was to stand. If the court were of opinion that the action could be maintained, ¿>ut that the evidence of the plaintiff was inadmissible, or insufficient, a new trial was to be granted.
    The cause was argued by Mr, T. L. Ogden and D. B. Ogden, for the plaintiff, and by Mr. Tallcott and Mr. Jay for the defendant.
   Jones, C. J.,

after stating the facts of the case, delivered the opinion of the court, as follows :

The objection taken by the defendant to a recovery in this cause, is, that the action is by one partner against another, in a partnership transaction, and therefore is not sustainable. The plaintiff insists that the letter of June 26th,1812, from the plaintiff to the defendant, and his acquiescence in its contents, were evidence of the mutual consent and agreement of the parties to terminate and close the joint concern, or if the contract was left open, and operations under it were merely suspended, the letter was conclusive evidence of the division by the defendant himself of the 58 shares of United States Bank stock, and a severance of the joint interest therein, and an allotment of the 29 shares to the plaintiff for his separate share, and that the plaintiff, by his silence, acquiesed in the arrangement and consented to the partition. It is also insisted, that the defendant by this operation became the trustee for the plaintiff of the 29 shares so allotted to him, but retained the same as security for the balance due from the plaintiff, and has received the dividends under them, insatis faction of that balance. In corroboration of this idea, it was spown Py extracts from the books of the trustees of the stockholders of the bank, that Fowler, the defendant, in May, 1812, had standing in his name 44 shares; and that on 28th September a separate power of attorney was given to receipt for twenty-nine of these shares; thus indicating, that a division had been made of the stock, and that from that time, those 29 shares were kept separate from the rest of the stock, and that it continued in his hands unsold, while the residue appears to have been u holly disposed of by him. These facts would seem to manifest an intention, on his part, to sever the common interest in the slock, and to vest in'the plaintiff exclusively "the 29 shares mentioned in the letter of June 26th, 1812, as being bis share of the stock and he entitled to receive the residue of the dividends thereon.

The" defendant denies that these acts amount to a severance of the joint interest, and insists upon the principle, that there must be a liquidated settlement of the co-partnership accounts, and a balance struck, or a balance agreed upon by the partners to entitle the one to sue the other at law; he insists, that no such liquidation and settlement appear in this case, and he puts in evidence two letters of the plaintiff, of as late a date as 1825, to show that he then claimed an account upon the principles of a continuance of the partnership. I do not attach much importance to these letters. , They admit, I think, of the explanation given of them by the plaintiff’s counsel, and at any rate, they speak after too long an interval of time to be heard with any effect; and though used against the writer, yet I think the claim they prefer, which by the last letter appears to have been repelled, was one which could not be sustained. I cannot consider those letters as any evidence of the continuance of the joint concern ; and the conduct of the parties shows that they considered it as terminating in 1812. The two hundred shares of stock in the bank of America, subscribed for by the plaintiff, were never considered or treated as joint stock. It was managed. by the plaintiff solely. It was nursed by his care ; and finally wound up, the stock sold out, "and the operation closed by his agency alone, and without any consultation or advice of the defendant. The subscription was never made known to him, and he was an utter stranger to it, and to the disposition made of it, until 1825, two years after it was finally closed.

But the difficulty the plaintiff has, in my judgment to encounter is, that his own testimony fails to prove such separation of his joint interest with the defendant in the United States Bank shares, as to enable him to maintain an action at law against the defenddant for the avails of the 29 shares, as his exclusive property. If hie long silence and passive conduct are not evidence of an abandonment of the contract, his remedy in equity for an account is clear. But in an action of assumpsit at law, he must show more than a right to an account; he must show an actual account, or a division of the stock, or an adjustment and promise to pay. Does the testimony in this case establish either? The whole of the joint stock was purchased by the defendant, and the purchase money advanced by him. The times made it necessary, or highly expedient, in his judgment, to terminate the connection, or, at least; to suspend its operation. He knew of no purchases of stockin the Bank of America,and under these impressions and with these lights, the letter pf June 26th, was written. It transmitted an account of the defendant’s operation on joint account tip to the period of that statement, and the amount then due to the defendant for the plaintiff’s half of the defendant’s advances to effect the purchases, after crediting the 70 per cent, received in dividends. This sum, as no further purchases were intended to be made, the plaintiff was bound to pay for his share of the stock, and he would, of course, be entitled to the residue of the dividends on 29 shares, or one half of the stock, This may have been virtually a discontinuance or dissolution of the co-partnership, but it was not an adjustment of the partnership concerns.

In Casey and Lawrence v. Brush, [2 Caines’ R. 293.] the court held, that to entitle the plaintiff to recover in an action for the balance of an account growing out of a partnership dealing or transaction, there must be evidence of an express promise to pay the balance.

The case of Wetmore v. Baker, [9 John. R. 307.] was decided on the ground that there was no such partnership between the parties as to obstruct the action.

In Murray v. Bogert & Kneeland, [14 John. R. 318.] the plaintiff, and defendants and others had been jointly concerned in shipments and adventures which had all terminated, and been closed. The supercargo of one of the vessels sued the píaintiff and three others, for advances made by him, and expenses incurred on their account, and recovered a judgment against them, which they were compelled to pay, arid the plaintiff then brought a suit against the defendants to recover the proportion due from them of what had been paid by the plaintiff. It was objected, that the demand grew out of a partnership transaction, and was not recoverable in an action at law; and the court held, that there was nothing in the case showing a settlement of the co-partnership accounts, and balance struck, and a promise by the defendants to pay, so as to enable the plaintiff to sustain the action.

In Halsted v. Wiggins, [17 John. Rep. 80.] the court ruled the objection, that the demand arose out. of partnership concerns to be conclusive, unless there had been a liquidation of the demand. In this casé there has been no liquidation or settlement, nor any account stated between the parties; and unless the ground is tenable, that the joint interest in the stock was severed, and the share of each party allotted and assigned to him in severalty, the plaintiff must fail in his suit.

The features of the case which have the appearance of an actual division of the stock, are the advice to the plaintiff that he would be. entitled to receive the future dividends on 29 shares, and the fact of the separation of that number of shares from the whole quantity, and keeping them in a distinct parcel. Rut these were the acts of the defendant solely. He could not sever the joint interest in the 58 shares, so as to vest a separate property in himself in the shares taken by him. Suppose the portion of the stockreserved for himself had been sold by him, and the price of stock had afterwards fallen, would he not be accountable for the plaintiff’s share of what was sold 1 the apportionment could not bind the plaintiff, and the only purpose of the separation of the 29 shares from the residue, which could be useful, was the precaution of always keeping that quantity ready for the plaintiff, in case he should accede to the proposals of the letter of the 26th of June, 1812, and come to a settlement with the defendant, pay up the balance due from him, and take his part of the joint stock.

But it is said, that by his silence he acquiesced in these proposals, and must be considered as acceding to the severance of the stock, whereby the defendant became his trustee of the 29 shares set apart for him.

He received that letter, and did not answer it. But did he thereby agree to the defendant’s terms of settlement 1 Those terms were, that the plaintiff should forthwith pay the balance due from him, and make a final settlement of the joint concern.

The defendant presses him for payment, and invites him'to a settlement ; but there were acts yet to be done; neither of which was done, nor was any step taken by the plaintiff for the purpose of informing the defendant of his intention to accede to the arrangement, and perform his part of it. The allotment of the 29 shares to him, if such allotment can be considered as made, was provisional, and to take effect on his compliance with the terms of settlement, and finally winding up the concern. This he never did do. Could he then lie by, and by his silence accept or affirm the terms of the .'arrangements proposed by the defendant, which were favourable to him, and leave those unperformed which were inconvenient or unfavourable to him ? could he leave unpaid the balance he owed, and keep aloof from the final settlement to which he was pressed, and by which he would entitle himself to the shares, and yet insist on the severance of the shares as absolute, and charge the defendant against his will as trustee of those shares for him, and impose on that partner the duty of receiving the dividends, and attending to the concerns which the ownership of those shares imposed, without compensation 1 In my judgment he was bound to answer fully the terms of that letter, or he could claim no benefit from any part of it. But we may ascertain the effect of his letter by another test: Could the defendant have sued the plaintiff for the balance stated in that letter to be due to him from the plaintiff? By the contract the defendant had a right to charge interest upon his advances, but he could not call for payment of the principal, until the joint operation was wound up, and the profit and loss account was settled unless the joint interest was severed and the account settled and stated between them. Then, if he had sued for that balance, would not the answer have been, that he must first exhaust the joint funds, and could claim the deficiency and balance only of his advances and interest, which the avails of those funds failed to reimburse and satisfy ? Would it be any answer to this defence, that the defendant, had severed the joint interest by his own act and set apart the plaintiff’s portion of stock for him ? The plaintiff could not be concluded by that act, unless he affirmed it, and accepted the stock; his silence could not amount to an acceptance ; he was entitled to stand upon his rights ás they were; and leave the defendant to wind up the joint concern, which was under his charge for the joint benefit. In taking that stand, he secured himself from the call of the defendant for his proportion of the advances, and remained liable for the moiety of the final balance only, if there should be any. I interpret his silence to mean,that such was the course he determined to take, and the result was, what if well advised, he knew it must be. The defendant could not insist upon payment; the only obligation the defendant was under to him, resulted from the contract; and by that contract he was not bound to pay the advance.

The whole concern is now closed, and the joint operation has resulted in a gain. The moiety of this gain belongs to the plaintiff. But it is the fruit of a joint or co-partnership operation, and an action at law will not lie by the plaintiff against his former partner for it. There must, therefore, be a judgment of non-suit.

Judgment of non-suit.

[Ogden and Huggins, attys. for plff. P. A. Jay, atty. for deft.]


source: Caselaw Access Project

author: Oakley, J.

license: Public Domain

text:
    The Rector, Church Wardens and Vestrymen of All Saints Church in the City of New-York versus George Lovett.
    Oct. Term, 1828.
    Where there has been a body corporate defacto for a considerable period of time, claiming at least to be such, and holding and enjoying property as a corporation, it will be presumed that every mere formal requisite to the due creation of the corporation has been complied with.
    Where a person undertakes to enter into a contract with' a corporation in their corporate name, and accepts an official appointment under them, he thereby admits them to.be duly constituted a body politic and corporate under’such name; and cannot afterwards set up, by way of defence, that no such corporation ever existed, but is concluded by his admission.
    Where the trustees of a religious incorporation, bring a suit'eofore officii, the defendant cannot object to their right of recovery, upon the ground that they arc not trustees, without showing that proceedings have been instituted against them by the government, and carried on to a judgment of ouster. Being trustees defacto, all their proceedings are valid, until they are ousted by a judgment at the suit of the people, and no advantage can be taken of any non-user or misuser, on the part of the corporation, by any defendant many collateral action.
    Assumpsit for money had and received. Plea,[ the general issue, and payment, with a notice of set-off.
    This cause was tried before Mr. Jutsice Oakley.

    At the trial, the plaintiffs produced a certificate of incorporation, bearing date the 17th day of May, 1824, which recited, that in pursuance of notice given, the male persons of full age, belonging to the church, congregation or society in the city of New-York, in which divine service is celebrated according to the rites of the protestant episcopal church, met at the house of the Rector, the Rev. William A. Clarke, for the purpose of incorporating themselves under the act entitled “ an act to provide for the incorporation of Religious Societies,” “ and the act to amend the same.” That at said meeting George Dominick was called to the chair, and presided : that certain persons, therein named, were appointed vestrymen, and the name by which the said church, congregation or society, should’be known in law, was agreed upon and fixed. This certificate was regularly subscribed and sworn to, before the first Judge of the Common Pleas, in the city and county of New-York, and duly recorded in the office of the Register theieof.
    The .plaintiffs then .produced their book of minutes, and called their secretary as a witness, who testified, that by a resolution passed by the plaintiffs in April, 1825, the defendant was appoint-? ed their treasurer, and acted as such, until the spring of the year 1827 : that the proceeds of certain property belonging to the plaintiffs had passed into the hands of the defendant, who had acknowledged to the witness, that the balance of such proceeds remaining in his hands was $807, 70. The witness further testified, that on the 21st day of April, 1827, Joseph F. Perry was appointed treasurer in place of the defendant. The plaintiffs then proved, that notice had been given to the defendant to deliver over to the new treasurer all the property belonging to the plaintiffs in his hands; but that he had declined, upon the ground that the election of wardens and vestrymen, who had made the new appointment, was illegal and void.
    The plaintiffs here rested their cause; whereupon the counsel for the defendant moved for a non-suit, upon the ground that the plaintiffs had not shown themselves entitled to maintain this action. The motion was overruled by the presiding judge, whose opinion was excepted to by the defendant.
    The.counsel for the defendant then offered to prove, that the church in question was originally established as a free church, and that its funds were subscribed with the express understanding, that the establishment should forever remain as a free Episcopal Church. That the certificate of incorporation was drawn by the said Rector, who having omitted to insert a clause stating that said church was to remain free, had promised, upon objections made by the vestry, that the omission should be supplied by a resolution, which was passed on the 10th of June, 1824, and stated that the pews of said church, when erected, should forever be free. That for the purpose of inducing persons to subscribe, a printed paper, headed “ plan for a free church,” bearing signatures of the bishop and other clergy, was circulated; together with another of a like kind, drawn up by the said Rector* that the original vestry were warmly in favour of the plan of a free church, and that the said rector, although professing to entertain the same sentiments, was secretly actuated by the fraudulent purpose of appropriating the funds raised, to the different object of a church upon the ordinary plan. That the said rector fraudulently avoided the meetings of the vestry, where his presence was indispensable for a period of move than seven months: that during said period, while the functions of the vestry were suspended, the said rector fraudulently endeavoured to qualify a number of persons having no interest in said church, to become voters at the next election: that in the month of April, 1827, the last-mentioned election was held, at which the said rector presided, and that he, notwithstanding the remonstrances of those who had contributed their funds, received the votes of persons having no interest in said church, for wardens and a vestry, according to a printed list, which he had prepared and circulated, whereby he procured the former wardens and vestry to be removed, although a large majority of the legal voters were in favour of their re-election. That several of the newly-elected wardens and vestry had refused to accept their appointments, but the remainder, with said rector, claiming to be the corporation, had erected a new church, in which the pews were not free, but had been sold to the highest bidder. That all the property of the corporation which could be obtained by the new wardens and vestry had been used to .defray the expenses of erecting said last-mentioned church, and the funds now in the hands of the defendant, if recovered, were to be devoted to the same object. That the whole of said proceedings were fraudulent, illegal and void ; that the defendant had never been legally removed from his office, and that the resolution appointing his successor was not a resolution of the corporation, and that no legal demand had ever been made upon the defendant for the money in his hands in behalf of the corporation.

    These several matters we. 3 ruled-by the presiding judge to be inadmissible as a defence to this action, and the jury thereupon found a verdict for the plaintiff.

      Mr. Roosevelt for the defendant,
    now moved for a new trial, and contended,
    I. That the evidence produced on the part of the plaintiffs was not sufficient to entitle them to a verdict. On the plea of the general issue, the plaintiffs must prove themselves to be a corporation to be non-suited. [Hartford Bank v. Murrel, 1 Wend. R. 87. 19 John. R. 300. 14 John. R. 416.] In this case, the principal, if not the only proof produced by the plaintiffs upon this point, was the certificate of incorporation. This certificate having been filed and recorded under the provisions of the act under which the plaintiffs exist as a corporation, if they have any legal existence, [2 R. L. 112.] must be conformable to its requirements, or it will not be evidence to support the issue.

      By this act it is expressly provided, that at the first meeting of the vestry, the rector, or if there be none, or he be necessarily “ absent, then one of the church wardens or vestrymen, or any other person called to the chair, shall preside at the first election.” And it is also further provided, [5 Vol. L. 34. it.] that he, “ together with two other persons, shall make certificate,” &c.
    Now, from the certificate before the court, it appears that the rector did not preside at the first meeting of the vestry: but why he did not, is not shown. It does not even appear that he was absent; and from any thing disclosed by the certificate, he might have been present at the meeting, without presiding. If he was absent, then that certificate should have stated, that he was necessarily so, and have assigned that as a reason why another person was called to the chair. The certificate, so far from showing that the requirements of the act have been complied with, proves that they have been neglected": it cannot, therefore, be used as any evidence to- prove the, existence of the plaintiffs as a corporation. Upon this point, therefore, the plaintiffs are without proof, and should have been non-suited at the trial. [1 Kyd, 451.]
    II. The plaintiffs, before they could bring this action, were hound to make a legal demand. [Utica Bank v. Van Gieson, 18 John. R. 486. 9 J. R. 361.] In order to do this, they must show an authority to make - such demand; and whether they had or not, depends entirely upon the validity of the election of the wardens and vestry which removed the defendant and appointed his successor. The evidence offered on the part of the defendant, as to this point, or some part of it at least, ought to have been admitted.
    This evidence would certainly have established the fact, that the'last election was fraudulent and illegal. That all the objects for which the subscriptions were first obtained were perverted, and a church finally established which was the very opposite of the one intended by those who contributed their money. If the election was illegal, then the defendant has never been removed from office, no legal demand has been made upon him, and he has a right to retain the money in his hands, as trustee, for those who gave it, and who wish him to retain it.
    The question in this case is not as to who are the trustees de facto, but who are the trustees de jure. Those who claim the money, must prove a right to demand it; and if their official stations have been obtained by fraud, they have no legal existence, and cannot have any legal or moral rights. In the case of the People v. Runkle. [8 John. R. 363.] (which was a contest betweeen two sets of trustees,) it was expressly decided, that the only question was, as to who were the legal parties, not who were trustees defacto. A new trial was granted on that ground, and the question finally settled in favour of the old trustees.
    The question of a dissolution by surrender, or by acts, which in judgment of law amount to a surrender, may be tried in a civil suit without a quo warranto. And if a corporation suffers acts to be done, which destroy the end and object for which it was instituted, it is equivalent to a surrender of its rights. Slee v. Bloom, [19 John. 456.] The defendant also offered to prove, that the persons by whose votes the present vestry were elected, were not qualified to vote at all; and that such votes were fraudulently procured by the rector. This evidence, also, should have been admitted, because these illegal votes, of themselves, avoided the election. [2 Kyd, 7, 8.]

      Mr. Beverly Robinson, for the plaintiffs, contended,
    I. That the defendant had no right to question the legal existence of the corporation, having himself admitted that, by accepting and holding an office under the plaintiffs. If the question could be gone into by the defendant, there is enough before the court, to enable them to infer that all the requirements of law have been complied with. After the plaintiffs have been exercising their rights as a corporation, for years; after having filed and recorded a certificate, to which no objection was made by any of the parties in interest, it would be a stretch of nicety to say, that it was the presumption of law, that the provisions of the act had been violated, by the omission of a fact in the certificate which was in no way material. It is admitted, that if the rector were necessarily absent, at the first election of the vestry, then another person might preside.
    We find by the certificate, that a person other than the rector did preside, and the natural inference is, that the rector was necessarily absent. But whether that be so or not, cannot be inquired into by the defendant, because he has, by his own acts, expressly admitted that the plaintiffs are duly incorporated. He is estopped to deny what he has expressly admitted: his own acts are conclusive upon him. [14 John. R. 238. 1 Phil. Ev. 171.]
    II. The plaintiffs had a perfect right to make the demand, because the trustees chosen in 1827, became such de facto, let their legal existence be what it might. The evidence offered by the defendants was clearly inadmissible in this collateral action, even if it had been true. The plaintiffs had no objection to join issue upon the facts offered to be proved, if the inquiry could have led to any profitable result. But if the defendant wished to question the validity of the election, he should have done it by a proper course of proceeding, which would have put that matter directly in issue. It is an established principle, that any misuser or non-user, amounting even to ad issol ut.ion of the corporation, cannot be set up by way of defence to an action by such corporation.
    The defendant personally is not permitted to question the validity of the proceedings of those who are trustees in fact, as great inconvenience and embarrassment would ensue, if those questions were constantly to be agitated by every person who might chance to come in collision with the corporation.
    The evidence, therefore, was rightfully rejected. [6 Cow. R. 27. Trustees of Vernon Soc. v. Hills.]
   Oakley, J.

This was an action of assumpsit for money had and received. The defendant was treasurer of the church, and as such received the proceeds of certain lands which belonged to the church, and which were sold during the time he acted as treasurer. In 1827, a new treasurer was appointed, and the defendant refused to pay over to him the balance of moneys remaining in his hands. This action was brought to recover such balance.

The first objection to the plaintiffs’ right of recovery is, that the certificate of their incorporation is defective, and that they do not show themselves to have been duly created a body corporate, and entitled to sue as such.

By the act authorizing the incorporation of protestant episcopal churches [2 R. L. 112.] it is provided, that at the first election of a vestry, the rector, or if there be none, or he be necessarily absent, one of the wardens or other person shall preside, and shall unite in the certificate to be filed under the act. By the certificate produced by the plaintiffs it appears, that the rector did not preside at the first election; nor did it appear by the certificate or by any other evidence, that he was necessarily absent. The defendant contends, that the requisitions of the act were not complied with, and that the plaintiffs never became a corporate body.

The certificate of incorporation is dated on the 27th of May, 1824. From that period to the present, the whole case shows that there has been a body corporate, defacto at least, claiming to be a church, and holding and enjoying property as such. After such a lapse of time I am of opinion that it ought to be presumed, that every formal requisite to the due creation of the corporation was complied with. The presence or absence of the rector at the first election of a vestry was a very immaterial circumstance ; and as the law does not prescribe, that the fact of his absence shall be stated in the certificate, it will be intended if necessary to give validity to the incorporation. -

I am of opinion, also, that the defendant cannot be permitted to allege that the original incorporation of the church was invalid, or irregular. In the case of the Dutchess Cotton Manufactury v. Davis, [14 Johns. 238.] the Supreme Court held, ’ that where the defendant undertakes to enter into a contract with the plaintiff in their corporate name, he thereby admits them to be duly constituted a body politic and corporate under such name. In the present case the defendant accepted from the plaintiffs, acting as a corporation, the appointmentof treasurer; hé acted several years under such appointment, and obtained possession of the money of the plaintiffs, now in his hands, by virtue of the official station he held under them. It would be a volation of all common sense and justice to permit him now to set up, that no corporation ever existed. I consider the defendant as coming fairly within the principle laid down by the Supreme Court in the above-mentioned case. He has, in the most formal manner, recognized and admitted the existence of the body corporate, and must now be concluded by such admission.

II. The defendant contended, that the defence set up by him at the time was improperly excluded. He offered to prove, in substance, that the church in question was originally established as a free church: that the rector by various fraudulent a.rd illegal claims defeated that object, and particularly, that the election of the vestry in 1827, (by which he was removed from the office of treasurer, and a new one appointed,) was illegal and fraudulent. The judge held this defence to be inadmissible.

In the case of the Trustees of Vernon Society v. Hills [ 6 Cowen’s R. 23.] the Supreme Court have expressly decided, that when the -plaintiffs have acted as trustees of a religious incorporation, and have brought a suit colore officii, the defendant cannot sustain an objection to their right of recovery, on the ground that they are not trustees, without showing, that proceedings have been instituted against them by the goverment, and carried on to -a judgment of ouster. The doctrine of the case is, that being- trustees de facto, all their proceedings are valid, till they are ousted by a judgment at the suit of the people, and that no advantage can be taken of any non-user or mis-user on the part of the corporation by any defendant, in any collateral" action.

la the present instance it appears, from the proof in the case, and from that offered by the defendant that the vestry chosen in 1827 became trustees of the church “ de facto That they acted as such: that they removed the defendant from his office as treasurer, and appointed a successor, and that they took possession of the temporalities of the church claiming to be the corporation. This suit, then, is clearly brought by them colore officii, and the character in which they sue cannot be questioned bn the ground of any illegality in their election. The case in the 6th of Cowen’s R. seems to be conclusive on the subject.

It was a part of the defence offered, that several of the vestry elected in 1827, refused to accept their appointment. This offer was clearly not broad enough, if under many circumstances the, refusal by those elected to act, could have been taken advantage of by the defendant. It is clear, that nothing short of the refusal of a majority to take upon themselves the character of trustees could, in any event, have affected the right of those newly elected to represent the corporate bodjr.

I am, on the whole, clearly of opinion, that the defence offered was rightly rejected, and that the motion for a new trial must be denied.

Motion to set aside the non-suit denied.

[B. Robinson, atty. for the plff. J. J. Roosevelt, atty. for the deft.]


author: Per Curiam.

text:
    John Leonard versus Ezekiel Manard.
    Oct. Term, 1828.
    The affidavit of a party to a suit, made in the progress of the cause, for the purpose of resisting a proceeding on the part of his antagonist, cannot be excluded by counter affidavits, setting forth, that the party making the affidavit is an atheist. The competency of a witness’cannot be attacked in this collateral way, as he has no opportunity for explanation or reply. But where a party has been induced to make an application to the Court by the incorrect declarations of the opposite party, the Court, although they may refuse the application, will compel the party in fault to pay the costs of the application.
    This was an application on the part of the defendant to compel the plaintiff to give security for costs, upon the ground, that he was a non-resident. The plaintiff, in reply,, put in an affidavit stating his residence to be in the city of New-York. The defendant then read affidavits to show that the plaintiff was an atheist, and had no belief in a superintending Providence, or a state of future rewards and punishments. Upon these affidavits, the defendant insisted, that the plaintiff was not competent to testify or make an affidavit, and that the case was therefore to be considered as if his affidavit were not in the question.
   Per Curiam.

The competency of a witness to testify, or of a party to make an affidavit, cannot be attacked in this collateral way. He has no opportunity for reply or explanation. It may be, that the plaintiff can so explain his views upon the subject of his belief, as to bring himself within the rules of law, and his affidavit cannot be excluded in this manner, nor he himself be thus attacked. The motion must be denied.

The defendant then shewed, that he had been led to make the application by the plaintiff’s own declarations, he having asserted that his residence was in the kingdom of Spain, and not in New-York. The Court were still of opinion, that the motion must be denied, but decided that the plaintiff should pay the costs of the application, as he had, by his own declarations, induced the defendant to make it.

Motion denied, but the plaintiff to pay costs.

[F. B. Cutting, atty. for the plff. A. Williams, atty. for the deft.]


text:
    John Wheelwright versus John A. Moore.
    Oct. Term, 1828.
    In every action upon a special agreement, the declaration must set forth a sufficient consideration; and any material variance in the proof of the consideration will be fatal to the plaintiff’s recovery.
    The plaintiff declared, upon a special agreement of the defendant, to guaranty the payment of certain promissory notes made by one Scovell in favor of the plaintiff, in consideration of a sale and delivery of goods by him to Scovell.
    At the trial, the plaintiff introduced the special agreement in evidence. This agreement recited the notes of Scovell, which purported to be for value received, but contained no consideration for the defendant's promise, except such as might he inferred from the words “ value received” used in the notes, and no other evidence of a consideration was offered. Upon demurrer to this evidence, it was HELD that the proof did not meet the declaration : but as it was competent for the plaintiff to support the action by parol proof, that the sale of the goods and delivery of the agreement were concurrent acts, the court awarded a venire de novo, to give the plaintiff an opportunity of proving all the facts of his case.
    This cause came before the court on a demurrer to the plaintiff’s evidence.
    The declaration contained two counts. The first set forth that the defendant, on the 5th day of December, 1827, in consideration that the plaintiff would sell and deliver to one Noah Scovell a quantity of merchandise, promised to guaranty to the plaintiff, or his order, the payment of three promissory notes, made by Scovell, in favour of the plaintiff, bearing date on the day and year aforesaid, and payable, the first in seven, the second in nine, and the third in twelve months after date.
    This count then alleged a sale and delivery of the goods to Scovell, the taking of the notes in payment, and concluded by an averment, that the first note havingbeco me due, had not been paid by Scovell, nor the payment thereof guarantied to the plaintiff by the defendant.
    The second count set forth the guaranty of the first note as in the preceding count, and averred that the note having become due, had not been paid by the defendant, nor the payment thereof guarantied to the plaintiff by him, although requested, &c.
    The defendant pleaded the general issue.

      At the trial, the plaintiff produced in evidence the Iast-mentioned note, unpaid, and an agreement in writing, executed by y^ defendant, in the following words:

      “ New-York, Dec. 5th, 1827.

      a Whereas Noah Scovell, of the city of New-York, has this day passed to John Wheelwright, of the said city, his three promis- “ sory notes, of which the following are correct copies, viz:

      “ New-York, Dec. 5th, 1827.
    “ Dolls. 3,530 27-100
    “ Seven months after date I promise to pay to the order of “ Mr. John Wheelwright three thousand five hundred and thirty “ 27-100 dollars for value received. N. Scovell.”

      “ New-York, Dec. 5th, 1827.
    “ Dolls. 3530 26-100
    “ Nine months after date I promise to pay to the order of Mr. John Wheelwright, three thousand five hundred and thirty “ 26-100 dollars for value received. N, Scovell.”
    New-York, Dee. 5th, 1827.
    “ Dolls. 3,530 27-100
    “ Twelve months after date I promise to pay to the order of “ Mr. John Wheelwright, three thousand five hundred and thirty <( 27-100 dollars, for value received. N. Scovell.”
    “ Amounting together to ten thousand five hundred and ninety “ 80-100 dollars : now, in pursuance of the understanding and agreement between the said John Wheelwright and the said “ Noah Scovell, I do hereby guaranty the just and full payment “ of the said notes to the said John Wheelwright, or his order; “ and should any default of payment thereof be made by the said “ Scovell, I bind myself for the full amount of such default,”
    Jno. A. Moore.”

      After the introduction of this proof, the plaintiff rested his cause, and the defendant thereupon demurred to the evidence.
    And now, Mr. J. Anthon for the defendant,
    contended, that the proof offered at the trial was not sufficient to support the action. It appeared, (he said) from the evidence, that the notes of Scovell were delivered to Wheelwright before the guaranty was signed by the defendant. This constituted a separate and complete contract' between the plaintiff and Scovell, before the defendant had any connexion with it; thereby making the defendant’s undertaking decidedly collateral. It was a guaranty of a previously subsisting debt: the promise, therefore, required a distinct consideration to support it, and that, also, should have been expressed in'the memorandum. [Fell on Mer. Guar. p. 1—15, p. 20—25, p. 37. 2 Term R. 80.]
    The declaration sets forth a collateral undertaking on the part of the defendant, and the evidence must support the promise stated. The agreement, therefore, must be considered as collateral, or it will not support the declaration; and if collateral, it is void, no consideration being expressed in the writing. [5 East, 10. 4 Barn. & Ald. 595. 3 Bing. 107. 6 Moore, 86.]
    II. A guaranty, without a consideration expressed upon the face of it, is considered good in those cases only, where the original and collateral engagements are simultaneous, and are both original undertakings. [8 John. R. 29. 11 John. R. 221. 13 John. R. 175. 3 John. R. 210. 4 Ib. 281. 5 Mass. R. 362.] In all these cases, the declarations counted upon an original undertaking on the part of the guarantor, and proof that the collateral engagement was simultaneous with the original undertaking, was considered as disclosing a sufficient consideration to sup^ port the promise. In the present case, if this be considered as an original undertaking, then it ought to have been declared on as such ; but now, the allegata and probata do not comport with each other, and the demurrer is well taken.
    III. The extent of the interval of time between the making of the original contract and the contract of guaranty, is of no consequence, whether one day or one.year, the sole question being, whether the original contract was perfected between the original parties, by the delivery of the notes, before the contract of guaranty was signed." The consummation of the first contract before the making of the second, constitutes the latter ipso facto a collateral engagement, which is void, unless conformed to the statute. In this case, the written document, which forms the whole of the evidence,-speaks of the notes as having been passed to the plaintiff by Scovell, showing thereby that the original transaction was at an end. It then sets forth as a consideration for the contract of guaranty, (which is written at the foot, not of the original notes, but of copies,) that it was pursuant to the understanding and agreement between Wheelwright and Scovell, which is no legal consideration whatever.
    The contract of guaranty is therefore within the statute of frauds, and void.
    IV. If the Court should be of opinion, that the demurrer is well taken, then the question arises, as to what judgment shah be entered thereon.
    A demurrer to evidence admits the competency of the evidence, as well as the verity of it, but objects that it is insufficient to maintain the issue. The judgment is final, either for the plaintiff or the defendant; and the verdict, Avhich is a conditional one, stands or falls with the judgment. [1 Wash. Rep. 360.]
    A venire de novo is only awarded where the demurrer is so negligently framed that no judgment can be given upon it. [1 Arch. Prac. 186. 2 Trials per Pais, 577. 2 H. Black. 187. Anthon’s Ni. Pri. p. 79. note.]

      Mr. Wilkes, contra, for the plaintiff.
    The plaintiff rests his case upon the principles established by the Supreme Court in the case of Leonard v. Vredenburgh, [8 John. R. 29.] The only objection made to the plaintiff’s right of recovery, is founded upon the supposition that the defendant’s contract is a collateral one, and Aoid by the statute of frauds, for not disclosing a sufficient consideration upon the face of the guaranty. But the inference to be drawn from the evidence, is not, that the original transaction was perfectly passed, when the guaranty was executed. On the contrary, the fair import of the expressions used is, that the guaranty was given in pursuance of a previous understanding of the parties, that it should make part of the transaction which led to the giving of the notes. The giving of the notes, and the execution of the guaranty, are to be considered as concurrent acts, and all part of one transaction. Upon a demurrer to evidence, any fact which the jury could infer from it, is admitted by the party demurring, and we think that a jury would say, from this evidence, that the guaranty was connected with the original transaction.
    II. The guaranty, then, being an essential branch of the same transaction, which caused the notes to be given, it needed no new or distinct consideration to pass between the plaintiff and defendant, but was supported by the same consideration which upheld the notes. The consideration of the notes was the consideration for the guaranty, and being one and the same transaction, the same consideration was sufficient to support both contracts. This is the very principle of Leonard and Vredenburgh, and it entirely covers this case.
    III. But even if this were not so, still the plaintiff has shown a sufficient consideration upon the very face of his evidence. The notes purport to be given for “ value receivedthe contract re-" cites the notes, and therefore admits “ value received,” as a consideration for the guaranty. The case from the 8th of Johnson, (29) supports this principle entirely, and embraces the present contract. The pleadings in this case are not drawn in controversy ; for the plaintiff has declared according to the facts of his case. If the principles upon which he relies are correct, his .pleadings must be correct also.
    IV. But if the plaintiff be mistaken in this view of the evidence, the Court will not conclude his rights by pronouncing a definitive judgment upon the verdict. If he has failed to sustain his action, it is because the whole merits of the transaction are not disclosed by the proof: for it is evident, that the whole case must turn upon the fact, whether the giving of the notes and executing the guaranty were concurrent acts. If the plaintiff’s evidence be defective in this particular, he can explain it by parol proof upon another trial.
    In cases where all the proof is before the Court, and it is sufficient to sustain a judgment, in such cases, upon a demurrer to evidence, the judgment is conclusive, either for the plaintiff or the defendant. But where material facts are omitted, which can be supplied upon a further investigation, there the Court, for the purposes of justice, will award a venire de novo. [Doug. 119. 2 Hen. Bla. 187.]
   Oakley, J.

This case comes before the Court on a demurrer by the defendant to the plaintiff’s evidence. The declaration sets forth, that the defendant, in consideration that the plaintiff, at his request, would sell to one Scovell a quantity of goods, promised the plaintiff to guaranty the payment of certain notes, made by the said Scovell to him. The notes are particularly set forth, and the plaintiff then avers, that he sold and delivered the goods to Scovell; that one of the notes had become due, and had not been paid : and that the defendant has refused to pay the same, or to guaranty the payment of it. The plea was non-assumpsit.

On the trial, the plaintiff offered in evidence, an instrument in writing, signed by the defendant, dated Dec. 5th, 1827.

This paper, after reciting that Scovell had that day passed to the plaintiff his three promissory notes, sets forth copies of the same, by which it appears that they severally bore date on the said 5th of December, and were expressed to be given for value received. The instrument then contains the following stipulation: “ Now, “ in pursuance of the understanding and agreement between the said “ John Wheelwright and the said Noah Scovell, I do hereby gua- “ ranty the just and full payment of the said notes, to the said “ John Wheelwright, or his order, and should any default of “ payment thereof be made by the said Scovell, I bind myself “ for the full amount of such default.”

The plaintiff also produced the first of the said notes, showing the same to be due and unpaid. To this evidence, the defendant demurred, and the question is, whether the evidence supports the cause of action as set forth in the declaration.

The rale appears to be, that upon a demurrer to evidence, any fact which a jury could infer from it, is admitted. [Corksedge v. Fanshaw, Doug. 119.] Applying this rule to the present case, I think it might fairly be inferred, from the written instrument given in evidence by the plaintiff, that the guaranty of the defendant was a part of the original contract, on which the notes of Scovell were made. The guaranty is stated to be given in pursuance of the agreement between the plaintiff and Scovell, and although the recital in the instrument speaks of the notes of Scovell as having been already passed to the plaintiff, this language is not inconsistent with the idea that the making of the notes, and the giving of the guaranty, were, in substance, a simultaneous act, and both done in pursuance of the same understanding or agreement.

If this be the correct view of the transaction, it seems to follow, that the promise of the defendant, in the present case, was a part of the original contract between the plaintiff and Scovell, and may be supported by the same consideration. The law upon this subject was particularly considered by the S. C. in Leonard v. Vredenburgh, (8 John. 29.) The guarantee of the defendant in that case was very similar to the present. It was there written on the original note. That circumstance seems to me to be of no importance, any further than it may be evidence of the fact, that it was a simultaneous act with the making of the note. It contained no other consideration than that expressed in the note, which was for value received. The plaintiff, on the trial, offered to show, by parol proof, what was the origin of the contract, and that the making of the note, and the giving of the guaranty, constituted one entire transaction.

The Comí, in considering the case, say, that there are three classes of cases on this subject: one of which is, where “ the “ guaranty is collateral, but is made at the same time with the “ principal contract, and is an essential ground of the credit given to the principal debtor.” In such a case, there need not be any ot^er c0nsj¿eratjOn, than that moving between the creditor and .the original debtor; and it was expressly held, that the consideration imputed by the words “ value received,” contained in the note, applied to the guaranty, the whole being one entire contract. It was also expressly held, that “ if there was no consi- “ deration, other than the original transaction, the plaintiff ought “ to have been permitted to show that fact by parol proof.” And it was likewise held, that “if there was any doubt upon the face “ of the paper, whether the note and the guaranty were concur- “ rent acts, and one and the same transaction, parol proof was ad- “ missible to show that fact.”

The case of Leonard v. Vredenburgh is a leading one on the subject, and has always given the rule, in this state, for the decision of like cases; [Bailey v. Freeman, 11 J. 221.] and the doctrine of it has been considered, by the Supreme Court of the United States [D‘Wolf v. Raubaud, 1 Peters, 501.] as reasonable, and founded in good sense.

The present case, as far as it regards the sufficiency of the written memorandum of the agreement, to charge the defendant, falls, ofmy judgment, clearly within the principle laid down by the Supreme Court in Leonard v. Vredenburg; and if the transaction should appear, in evidence, to be as set forth in the declaration, I should think that the defendant would be bound by his contract of guaranty, though it might be considered, that no sufficient consideration was expressed in it; and that parol proof might be given, to show the original contract between the plaintiff and Scovell, and to connect the contract of guaranty with it, as constituting an entire agreement.

It is contended, however, by the defendant, that if the written memorandum, in this case, is sufficient to charge the defendant, it does not prove the particular contract set forth in the declaration ; and that the plaintiff must fail in this action on the ground of the variance.

The rule on this subject is, that in every action on a special agreement, the declaration must set forth a sufficient consideraíion; [4 John. Rep. 283.] and it is well settled, that any material • variance m the proof of the consideration, is fatal to the plain- . tiff’s recovery. Every contract must be proved as laid,

In the present case, the consideration alleged, is the sale and delivery of goods by the plaintiff to Scovell. There is no proof of any such consideration, unless it is to be inferred from the words “ value received,” contained in the copies of the notes set forth, in the defendant’s agreement. I think such an inference would he altogether too loose and uncertain. It was competent for the plaintiff to have sustained the declaration set up by him, by parol evidence; and not having done so, he has failed to support his action as laid in his declaration, and cannot recover on the evidence as it now stands. When there is a demurrer to evidence, which is certain, as in the case of documentary proof, the practice is for the court to give final judgment, as on a special verdict; but where there is no certainty in the statement of facts proved, the court may award a venire de novo. [1 Arch. Prac. 185, 6. 2 H. B. 209.] In the present instance it is evident, that the whole merits of the plaintiff’s case have not been disclosed ; and I think, that it is competent for us, in the exercise of our discretion, to send the cause to another trial. The purposes of justice would not be subserved by giving a peremptory judgment on this record.

Venire de novo awarded.

[H. & E Wilkes, Att'ys for the plff. Edward Anthon, Att'y for the def't.


text:
    John Aldridge vursus Peter G. Stuyvesant.
    Oct. Term, 1828.
    An action lies in favour of a landlord, against any person, who so wrongfully and maliciously disturbs his tenants, that they abandon his premises, and the landlord thereby loses his rent.
    The declaration in this case set forth, that the plaintiff was possessed of the unexpired term of a house, which he demised to certain'jpersons, who entered, and were in the quiet possession of the same. That the defendant, knowing^ that they rightfully held possession as tenants of the the plaintiff, and wrongfully and maliciously intending to injure him, “ so disturbed his said tenants” that they were obliged to abandon the premises: whereby the plaintiff lost his rent, and the premises became injured for the want of occupation.
    Upon demurrer to this declaration it was held, that the plaintiff wasfen titled to judgment.
    This was a special action on the case for disturbing the plaintiff’s tenants.
    The declaration contained three counts. The first set forth, that the plaintiff was possessed of an unexpired term of a house in the city of New-York, which he had rented to certain tenants for one year. That the tenants entered upon the premises, and were in the quiet possession thereof; when the defendant well knowing that they rightfully held and enjoyed the same as tenants, but contriving wrongfully and maliciously intending to injure the plaintiff, came to the premises and threatened the said tenants and their families, that he would levy and seise their goods. By means of which wrongful and malicious threats the defendant coerced said tenants to remove from the premises; thereby causing the plaintiff to lose his tenants, and the premises to remain vacant and unproductive for the space of eleven months : during all which time the plaintiff lost the rents and profits of said house and premises.
    The second count set forth, the possession of the term by the plaintiff, and the letting of the premises to tenants, as in the first count. That the defendant, knowing that the premises were rightfully held and enjoyed by the tenants, but maliciously intending to injure the plaintiff, threatened said tenants, that he would levy and seize their goods, « unless they loould move out of

      said house and depart therefrom.” By which threats the defendant caused the tenants to abandon the premises, whereby the plaintiff lost the rents, which he otherwise would have received from his said tenants, was unable to procure other tenants, and the premises " became greatly dilapidated by reason of their untenanted state,” 8ic.

    The third count stated the possession and letting of the premises, as in the preceding counts, and that the defendant contriving and wrongfully intending to injure the plaintiff, to deprive him of his tenants, and prevent the occupation of his house, “ so disturbed his said tenants” “ that by the mere force of such disturbance, they were obliged by the defendant to abandon the premises. By means of which disturbance, the plantifflost his tenants, his rent, &c. and the premises became greatly injured fot the want of occupation.
    To this declaration, the defendant demurred generally.

      Mr. Jay, for the defendant, and in support of the demurrer.
    This is an action brought by a landlord against a stranger, for disturbing his tenant, and the question is, whether it can be sustained 1

    No precedent for such a case can be found and it is very doubtful whether the action can be supported by any principles of law. To lay the foundation of such an action, there must be “ damnum et injuria,” and the only ground upon which it can be sustained in the present case, is the injury to the plaintiff arising from the loss of his tenants.
    Now, the tenants could not have been lost, for the relation of landlord and tenant, existing between them and the plaintiff could not be dissolved by the act of the defendant; but they continued to be tenants of the plaintiffs, as much, after leaving the premises as before. They remained liable upon their agreement after their departure, and the conduct of the defendant would have formed no defence to an action brought against the tenants by the plaintiff to recover the rent.
    The only authority which has any bearing upon this subject, is in Rolle’s Abridgment, (p. 108,) where it is said, that "if a man, menace my tenants, by which they depart from their tenures, an action upon the case lies.” Upon referring to the Year Book, [9 Hen, VII, p. 8.] it will be found that the tenants spoken of were tenants at will; and the injury to the plaintiff consisted, not in threatening the tenants, but in causing them to depart from their tenures. But that case cannot support the present, because the tenants here, being tenants for years, cannot “ depart from their tenures :” they remain bound by their contract with the landlord, and he has a perfect remedy to enforce a performance of the contract.
    II. The rent from the tenants to the plaintiff could not have been lost by any act of the defendant, because it was not due at the time of the disturbance, and there is no averment in the declaration, that the tenants were rendered unable to pay then rent. Neither is there any thing to show that the plaintiff could not have enforced his rights by distress. The action lies in favour of the tenant, rather than the landlord; for all the injury in the case falls upon the tenant, and the declaration alleges, that the wrong was done to him.
    If the reversion were injured by the acts of the defendant, then the plaintiff might sustain an action ; for the wrong, in that case, would be done to the landlord; but there, the injury comes merely by remote consequence, and if the action can be sustained, there may be a double satisfaction, or a double punishment rather, for the same injury. Extend the principle a little, and the consequences of sustaining this action will at once be perceived. Suppose a tenant puts his rent into his pocket, to carry it to his landlord, and on his way is met by his enemy, beaten, and so much injured, that the landlord is, by that means, for a long time kept out of his money : would an action lie in favour of the landlord against the wrong-doer, to recover damages for the remote injury received by him, in consequence of the immediate wrong done to the tenant 1 So in this case, the direct injury is done to the tenant, the remote consequences of which may fall upon the landlord ; but there is no rule of law which can give damages to the landlord in an action like the present;

      Mr. Mulock, contra, for the plaintiff.
    . It is a principle of our law, that for every wrong done to an mdividual, there are means of redress, and for every injury an appropriate remedy may be found. If the declaration in this case sets forth an injury done to the plaintiff'by the defendant, it follows almost as a matter of necessary consequence, that the action is well founded in law.
    The declaration, in each of the counts, alleges a direct injury to the plaintiff; from the wrongful and malicious acts of the defendant. It states, as a matter of fact, that the injury complained of, has fallen upon the plaintiff, through the malice of the defendant, and the demurrer admits, that the facts are correctly stated. It is no excuse for the defendant, therefore, that the tenants may have acted precipitately or unwisely : it is enough, for the purposes of this action, that the wrong has been done. Even if the positions assumed by the counsel for the defendant were all of them correct, there is enough stated in this declaration to bring the plaintiff’s claims within those principles ; for it is expressly averred, that in consequence of the defendant’s unlawful interference, the tenants abandoned the premises, which became thereby “ greatly dilapidated, by reason of their untenanted stated If, therefore, the plaintiff had received all his rent from the tenants, his premises were injured by the wrongful interference of the defendant; and it cannot be, that he can admit that fact by the pleadings, and also admit that he has acted maliciously, without giving a cause of action to the plaintiff.
    But in this case, the wrong done to the plaintiff is of a more extensive character. It appears, as a matter of fact, before the court, in this stage of the cause, that the plaintiff, in consequence of the wrongful and malicious acts of the defendant, has lost his rent. It was not necessary to state the want of a distress; for it being admitted that the rent is lost, the want of a distress will be inferred.
    The case then comes down simply to this: the defendant admits that he has, by a wrongful and malicious disturbance, deprived the plaintiff of his tenants, whereby his rent is lost, and the premises are greatly injured. And yet, it is said, that the plaintiff is left by the law, without redress !
    By what right can any man maliciously interfere between land’ lord and tenant, to the prejudice of either 1 If there be a wrong, shall there not be a remedy 1

    It is no objection to this action, that no express precedent can be found for its support. It is well founded in principle, and cannot be objected to in point of form. It rests upon the foundation which upholds this whole class of cases : that for every wrong there is redress, and for every injury, an appropriate remedy may be found. The injury here (if that were an objection) is not by remote consequence. It is immediate and direct; it has fallen upon the plaintiff through the malice and wrong of the defendant, and the law will make him answerable for the consequences. [3 T. R. 51. 2 Vin. Abr. A. 1. and the cases there cited. 3 Mod. R. 53. Ashby v. White, 1 Com. Dig. A. 2. “ Action on the case for misfeasance,” A. 6. “ Malicious misfeasance,” Cro. Jac. 606.]
   Oakley, J.

This is a special action on the case. The first count of the declaration sets forth, in substance, that the plaintiff was possessed of the unexpired term of a certain house, and demised the same for one year to certain persons, who entered, and were in the quiet possession of the same as the tenants of the plaintiff: that the defendant knowing that they rightfully so held possession, as tenants of the plaintiff, and wrongfully and maliciously intending to injure the plaintiff, came to the premises, and threatened to seize the goods of the tenants then lying on the premises : that by means of such wrongful and malicious act of the defendant, he caused the tenants to remove from the premises, whereby the plaintiff lost his tenants; the said premises became vacant and unoccupied for a long period, and the said plaintiff lost the rents and profits of the said house during such period.

The second count states the letting of the premises, as in the first; and the entry and quiet possession of the tenants, and the knowledge of the defendant that they were rightfully in possession, and that the defendant wrongfully and maliciously intending to injure the plaintiff, threatened to seize the goods of the tenants living on the premises, if they did not remove from the same : by means of which he caused the tenants to abandon the possession, and the plaintiff thereby lost his tenants and his rents, which he would otherwise have received from the tenants : that he was unable to procure other tenants for the premises, and that they remained vacant and unoccupied, and were greatly dilapidated by reason thereof.

The third count sets forth a malicious disturbance of the tenants by the defendant, with the intent to deprive the plaintiff of his tenants, and prevent the occupation of the premises, and then avers, that by means thereof the tenants were obliged to abandon, and did abandon the premises; that the plaintiff thereby lost his tenants and his rents, which be would otherwise have received, and that the said premises remained vacant for a long period, during which they were greatly injured by means of their being so vacant.

To this declaration there is a general demurrer, and the question is whether, in either of the said counts a sufficient cause of action is disclosed.

It is believed that this is an action of the first impression; but that is no objection to maintaining it, if it appears to fall fairly within established principles.

In Com. Dig. (tit. Action on the Case for Misfeasance, A. 6.) it is laid down, that if man threatens the tenants of another, whereby they depart from their tenures, an action lies. On referring to 1 Rol. Abr. which is cited in Comyns, and to the Year Book, [9 H. VII. p. 8.] it appears that the tenants spoken of were tenants at will, who could dissolve their tenancy, or depart from their tenures at pleasure.

In the present case, the tenants, being tenants for years, could not, in judgment of law, depart from their tenures, though they might abandon the possession of their premises. The averment in the declaration, therefore, that the plaintiff lost his tenants, does not seem to set forth such an injury or damage as the law can notice. The case, however, in Comyns seems to establish the principle, that if a man, by interference with the tenants of another, or by disturbing or threatening them, causes damage to the an action will lie against him.

jn Pasley v. Freeman (3 D. & E. 51.) it was held, that a false affirmation made by the defendant with the intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action, though the defendant is in no way benefited by it, and does not act in collusion with the person who is.

In Yates v. Joyce (11 Johns. Rep. p. 136.) the second and third counts of the declaration set forth in substance, that the plaintiff had a judgment against A., which was a lien on a certain lot of land; that A. had no other property to satisfy the judgment, and was insolvent; and that the plaintiff caused the said lot to be taken in execution on the judgment. It was then averred, that the defendant knowing the premises, but intending to defraud the plaintiff of the recovery of satisfaction of the judgment, demolished certain buildings on the lot, whereby the lot became of less value, and the plaintiff lost the benefit of his judgment to that amount. To these counts in the declaration, there was a general demurrer: but the action was sustained. The court said, that the declaration showed, that the plaintiff had sustained damage by the act of the defendant, which he alleged was done fraudulently, and with the intent to injure him. Trespass, say they, will not lie, for the plaintiff was not in possession. If, then, there is any remedy for him, it is in this form of action; and they go on to lay down the general principle as a sound one, that where the fraudulent misconduct of a party occasions an injury to the private rights of another, he shall be responsible in damages."

In that case, it will be remarked, that the immediate injury done by the defendant, by the destruction of the buildings, was to the owner or possessor of the land, who might clearly have had his action for the trespass. But the court count on the fraud, that because, the defendant knew the plaintiff’s right, and the interest he had in the land by virtue of his judgment, and intended an injury to him, he should be responsible.

It seems to me, that the facts set forth in the declaration in this case, and particularly in the third count, bring it fairly within the principles established in tire cases abo'vb alluded to. The plaintiff’s allegation substantially is, that the defendant, knowing that he was the rightful possessor by his tenant of the premises in question, and wrongfully and maliciously intending to injure him, so disturbed his tenants, that they abandoned the possession, whereby he lost his rent, which he would have received if they had continued in possession, and the premises sustained injury and dilapidation, by reason of being vacant and unoccupied for the remainder of the year. Here is certainly damage to the plaintiff, and it is alleged to have been caused by the wrongful and malicious act of the defendant, committed with a full knowledge that he was violating the plaintiff’s rights, and with the intent to injure him. The case seems in all respects to come within the general principle laid down by the court in Yates v. Joyce.

It is said, however, that the tenant had no right to abandon the possession of the premises on account of the disturbance by the defendant; and that if the plaintiff bad sustained the injury complained of, it is owing to the wrongful act of the tenants, and the plaintiff’s remedy is against them. It does not follow, in my judgment, that because the tenants had violated their contract with the plaintiff, and are liable to him for the rent, that the defendant is to be excused from liability. The defendant has wrongfully, and with the intent to injure the plaintiff, caused the tenants to abandon the premises, and the damage, which is the gist of the action, is charged directly to his wrongful act towards the plaintiff.

Thus there are in the case damum et injuria, and where these are found united, they always constitute the ground of an action. I am of opinion, that the plaintiff is entitled to judgment on the demurrer.

Judgment for the plaintiff on the demurrer, with leave to the defendant to withdraw the same on payment of costs.

[W. Mulock, Att'y for the plff. P. A. Jay, Att'y for the def’t.]


text:
    Abraham Mitchell versus John Roulstone and Moses B. Stickney.
    Oct. Term, 1828.
    On an attachment against the Sheriff for not returning the defendant’s^ body, it appeared that bail had been put in, and had justified, subsequently to the rule for the attachment, but no notice thereof had been given to the plaintifi’s attorney, although he was present at the justification. HELD, that the want of notice was an irregularity, and that the costs incurred subsequently to the rule should be paid by the Sheriff.
    The certificate of the clerk, that the rule on wliich the attachment is grounded has been entered, must in all cases accompany the affidavit of notice of motion for an attachment against the Sheriff, for not returning the defendant’s body.

      Judah moved for an attachment against the sheriff of the city and county of New-York, for contempt, in not bringing in the defendants’ bodies, founding the motion upon an affidavit containing the following statement of facts, viz :
    The capias ad respondendum in this cause was returnable at the term of October, 1828. The first week in term had elapsed, and no bail had been put in by the defendants. The plaintiff then ruled the sheriff (on the 20th of October, 1828,) to bring in the defendants’ bodies, and served due notice thereof, according to the practice of the court. At the expiration of the rule, the defendants perfected special bail, (the plaintiff’s attorney attending at the justification,) but gave no notice of the filing of the hail piece, or of the bail having justified. The plaintiff’s attorney demanded of the sheriff, and of the defendants’ attorney, the costs upon the rule, and upon the subsequent proceedings.
    Upon this state of facts, Judah, in behalf of the plaintiff, contended, that, as it was incumbent on the defendants, by the 9th rule of this court, to perfect special bail during the first week of term after the return of mesne process, and as the plaintiffs were allowed by the same rule to proceed against the sheriff, or upon the bail-bond, in default of bail being put in and perfected within the period stated; and as in this case no bail was offered until long after the time for putting in bail had expired, and after the sheriff bad been ruled to return the defendants’ bodies,bail could not now be tender-without leave obtained upon a special application to the court. [1 Arch. Pr. 98.] That it was well settled, that on such an application, the court would not grant leave to file bail for the defendants without payment of costs. That permission to put in bail at all in this stage of the cause, was only to relieve the sheriff, and to prevent an attachment against him, and this was granted only on payment of costs. That the entry of the rule against the sheriff, is the foundation of a new cause, to which the original action bears the same relation that it does to a suit upon, the bail bond. The sheriff cannot be excused from the contempt committed, but by the favour of the court. With regard to justification, it signifies nothing, where the sheriff has been ruled. [.Llofft, 438.] In this case, bail was put in after the time allowed by the rales of court, and consequently was irregular. That even if it were regular, no proper notice of bail had been served, the attendance of the plaintiff’s attorney before the judge, at the justification of the bail, being no waiver of-the right of notice. The service of notice was material, since, without it the plaintiff was deprived of the opportunity of examining the bail piece, or of the affidavits of justification. That the plaintiff may proceed against the sheriff even though he has opposed the bail, or consented to them, or has been informed of their justifying. [2 Bos. and Pul. 341.] That the sheriff is liable to an attachment, notwithstanding the bail have justified, provided the order for their allowance is not served on the plaintiff’s attorney. [4 T. R. 493.] That justification is waived, if notice thereof be not served. [2 Bos. and Pul. 342.]
    That the court will interfere from motives of judicial policy in enforcing the right to bail, and even if the motion for an attachment be denied, they will certainly order the sheriff to pay the costs of the rule to bring in the defendants’ bodies, and of the subsequent proceedings, as they are not properly taxable in the original suit. [1 Cow. R- 214. 1 Bos. and Pul. 325. 3 Bos. and Pul. 603. 1 Cow. R. 54. 1 Arch. P. 80.]

      Kinney, contra, in behalf of the defendants,
    contended, that the attendance of the plaintiff’s attorney before the judge at the justification of the bail, was a waiver of the right to notice, and that the bail having justified, the motion ought to be denied. [1 Arch. P. 97. 1 Dunl. P. 198.]
   Per Curiam.

The want of service of notice of hail was irregular, and not cured by the attendance of the plaintiff’s attorney at the justification. And with regard to costs, it was the duty of ■the sheriff to pay such costs as were incurred by his own neglect in not bringing in the defendants’ bodies pursuant to the exigency of the rule entered against him. The costs which have accrued subsequent to the entry of the rule are taxable as against the sheriff, and not in the original suit. The motion for an attachment must therefore be granted, unless all the costs which have accrued subsequent to the entry of the rule against the sheriff are paid within four day s.

         At the argument, the court suggested, that on a motion for an attachment it was proper, that the clerk’s certificate of the entry of the rules on which the attachment is grounded, should accompany the affidavits of service of notice of the motion, and that hereafter such certificate would in all cases be required. This is now the practice of the court.


text:
    Joel Wolf versus Abraham R. Luyster.
    Oct. Term, 1828.
    Where, upon demurrer to the plaintiff’s declaration, the demurrer is overruled, and leave given to the defendant to answer over upon payment of costs, it is the duty of his attorney to seek the opposite party without delay, pay the costs, and plead to issue.
    Judgment having been rendered in favour of the plaintiff in this cause upon demurrer to his declaration, the defendant was allowed to withdraw the demurrer, and answer over upon payment of costs. The defendant having neglected to do this, the plaintiff proceeded with his cause, and executed a writ of inquiry.

      Mr. J. Anthon, for the defendant,
    on an affidavit of merits, and papers showing, that after the execution of the writ of inquiry, and before the expiration of the rule for judgment, the defendant offered to avail himself of the benefit allowed him by the rale on the demurrer, and also that his neglect in not sooner pleading had arisen solely from the .illness of his attorney, now moved to set aide the writ of inquiry and proceedings subsequent thereto, for irregualarity. He contended, that the defendant was entitled to fifteen days after service of the rule for judgment on the demurrer, within which to plead and pay the costs, because no time for this purpose was fixed by the court.

      Mr. Judah, for the plaintiff,
    insisted, that his proceedings were all regular, it being the duty of the defendant, if he wished to a-A'ail himself of the proviso in the rule for judgment on the demurrer, to pay the costs, and plead immediately, Viz. within twenty four hours. [He cited 2 Cowen, 452-599. n. b. also Sands v. Mc Lellan, 6 Cowen, 582. and n.] He also contended, that if his proceedings were regular, they could not be set aside, a trial having been lost.
   Per Curiam.

The plaintiff’s proceedings were all regular, according to the practice of the Supreme Court. Where a favour is granted to a party upon payment of costs, it is his duty to seek the adverse party immediately, or Avithin 24 hours, pay the costs, and then avail himself of the benefit allotved by the rule. In this case, however, as it appears that the defendant’s attorney Avas unable to attend to his professional duties, by reason of sickness, and there is an affidavit of merits, the proceedings upon the writ of inquiry, and subsequent thereto, must be set aside. The defendant, however, must pay all the costs up to this time, upon the presentment of the taxed bill; and until that is done, the judgment must stand.

[S. B. H. Judah, Att'y for the plff. H. Western, Att’y for the deft.]

Note.—The court intimated that the practice in Such cases, hereafter, would be, that if the taxed bill Avere not paid upon presentment, the party in whose favour it had been taxed would be at liberty to proceed.


text:
    Michael Tally versus James A. Hamilton.
    Oct. Term, 1828.
    Where a plea in abatement has been interposed on the part of the defendant by mistake, and under a misapprehension of facts, the court will, upon a proper application, and upon prescribed terms, permit the plea to be withdrawn, notwithstanding it has been verified by affidavit.
    The plaintiff brought his action upon a certain agreement in writing made with the defendant, and the defendant pleaded, in abatement, the non-joinder of C. H. Hall as a co-defendant, he being a joint contractor with the defendant, and equally responsible to the plaintiff upon the agreement. The plea was verified by affidavit; but the defendant subsequently discovered that Hall, although in fact equally interested with him in the subject matter of the contract, had never signed the agreement, nor did it run in his name, although the defendant had always supposed that it was executed by him also; and with this impression he had interposed the plea in abatement.

      J. P. Hall, for the defendant,
    upon an affidavit setting forth these facts, and showing that the plea was put in under a clear mistake and misapprehension as to the circumstances of the case, but in good faith, now moved for leave to withdraw the plea. [He cited Arch. Prac. 124. 7 Taunt. R. 278. (Free. v. Hawkins) and 2 Strange, 906-960.]
    The motion was opposed by Mr. O’Conner, on the part of the plaintiff, who insisted, that as the plea was verified by affidavit, it could not be withdrawn.
   Per Curiam.

The plea, it appears, was put in under a mistake as to the facts of the case, and under such circumstances as to make the mistake natural. The court will, therefore, permit the plea to be withdrawn, notwithstanding it is verified by affidavit, for that was necessary; but it must be upon terms. The defendant must pay the costs of the motion, and such as pertain to the plea, and must plead an issuable plea without delay.

[O’Conner, Att'y for the plff. P. Hamilton, Att'y for the deft.]


text:
    Gershom Smith versus The New-York Insurance Company.

      Oct. Term, 1828.
    Where an important witness is absent from the country, and will not return until' several terms have elapsed, this court will put off a cause for a reasonable period, notwithstanding the delay may comprehend more than one term.

      Mr. O. Hoffman, for the defendants,
    moved to put off the trial of this cause for several terms. He read an affidavit, showing that an important witness for the defendants was absent at sea, and was not expected to return for some months to come; but he would return before a commission could reach him, or be of service.
   Per Curiam.

The motion is no more than reasonable when addressed to this court, which sets at such short intervals, that witnesses who are absent have little chance of return before the cause is brought to trial. In the Supreme Court, where the terms are several months apart, a different practice may well prevail, and there it may be sufficient in general to put off a cause from term to term only. But the witness in this cause cannot be expected to return, considering the place to which he is gone, before the time specified in the plaintiff’s affidavit, and of course, not until long after the next term of this court. As that time is reasonable, considering the circumstances of the case, the motion must be granted.

Motion granted.

[E. Anthon, Att'y for the plff. Hoffman and Tallman, Att'ys for defts.]


author: The Court

text:
    Henry W. Warner versus Oliver M. Lownds, Sheriff, &c.
    Oct. Term, 1828.
    In an action on the case against a Sheriff for non-feasance, wherein he is acquitted, single costs only are to be allowed to the officer, on taxing a bill in his favour.
    This was an action on the case against the sheriff for a neglect of his official duty. The declaration contained two counts. In the first, the plaintiff claimed damages of the sheriff for not levying on the property of a defendant under certain executions issued in favour of the plaintiff; in the second, for not returning said executions. Plea, not guilty.
    A verdict was taken for the plaintiff, subject to the opinion of the court, on a case to be made; on which case, judgment was finally pronounced in favour of the defendant, who now claimed double costs. The question was submitted to the court for directions to the taxing officer.

      Mr. J. Anthon, for the defendant, observed,
    I. That as this was an action on the case against the sheriff sounding in tort, for a neglect of his official duty, it was within the act; and the defendant; therefore, was entitled to double costs. [1 R. L. 155. Crummer v. Huff. 1 Wend. Rep. 24.]

    II. Any neglect on the part of the sheriff, in the discharge of his official duties, is an act of mal-feasance, for which an action on the case lies; and the sheriff, in such actions, if acquitted, is always entitled to double costs. The only protection which the sheriff has against harassing actions on the case, is that afforded him by the statute, allowing double costs, and the act being remedial, must receive a liberal interpretation, to afford the security which it contemplated.
    The cases of Platt v. Osborn, (2 Cow. 527.) and Blanchard v. Bramble, (3 Mau. and Sel. 131.) were actions of assumpsit, and therefore expressly excluded from the act. But here, in an action on the case, sounding in tort, the defendant is entitled to double costs.

      Mr. Warner, contra, in propria persona.

    The statute giving double costs, in certain cases, is penal, and must therefore be construed strictly. [Stone v. Woods, 5 John R. 182.] And it has been often decided, that the statute does not apply to cases of mere non-feasance, or neglect of duty. [Atkins v. Barnwell, 3 East, 92. Blanchard v. Bramble, 3 M. and S. 131. Platt v. Osborne, 2 Cow. 527.] The cases last cited were actions on the case, (in assumpsit,) and were founded solely on the distinction between non-feasance and mal-feasance, in the construction of the statute.
   The Court

directed single costs only to be taxed in favour of the sheriff, considering this as a case of non-feasance merely on the part of the officer, and for which the action was brought.

[Mr. E. Anthon, Att'y for the deft. Mr. H. Warner, in propria persona.]


text:
    The People versus Oliver M. Lownds, Sheriff of the City and County of New-York.
    Oct. Term, 1828.
    On an attachment against the Sheriff for not returning a fi. fa. ruled, that the recognizance be in double the amount of the fi. fa. and that the sheriff should answer such interrogatories as should' be regularly exhibited.
    An attachment had been issued against the sheriff for not returning a fi. fa. on which were endorsed directions to levy $331 Judah moved, that the sheriff’s recognizance to appear de die in diem, (until the court should determine concerning the matters objected against him,) be in double the amount o^ the fi. fa. with two sureties, according to the form in the first of CowerCs Reports, [580. n. (a.) See also Herring v. Tylee, 1 Johns. Cases, 31. and 1 Dunlap's Prac. 346.]
   The Court

directed the recognizance accordingly, and thatthe sheriff should answer such interrogatories as should be regularly exhibited.