y 5^75 J8S0 Cornell University Law Library The Moak Collection 1 PURCHASED FOR r The School of Law of Cornell University And Presented February 14, 1893 IN nEHORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF. THE SCHOOL By his Wife and Daughter A. M. BOARDMAN. and ELLEN D. WILLIAMS 1 * Cornell University Library KFN5975.B46 1880 v.1 Benedict's treatise containing a sumrnar. 1924 022 882 439 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022882439 Benedict's Treatise.- CONTAINING A SUMMARY OP THE JURISDICTION, POWERS AND DUTIES JUSTICES OF THE FEACE IN THE STATE OF NEW YORK, &fcaptefc to t\yz OTtrtre of ^rocrtrute in attbil ^assess. ALSO, A PRACTICAL TREATISE ON THKIR JURISDICTION, DUTIES AND AUTHORITY IN CRIMINAL CASES. TOGETHER WITH A GREAT VARIETY OF FORMS. IN TWO VOLUMES. VOL.! BY JOSEPH BENEDICT, COUNSELLOR AT LAW, UTICA. SEVENTH EDITION. GREATLY ENLARGED AND CAREFULLY CORRECTED ALBANY: W. C. LITTLE & CO., Law Bookselletcs and Publishers, 525 Broadway 18S0. jf/tifb. Entered according to Act of Congress, in the year one thousand eight hundred and seventy-eight, by W. C. LITTLE & CO., In the office of the Librarian of Congress, at Washington. PREFACE TO THE SEVENTH EDITION. Since the issue of the sixth edition of this work in 1878, the last nine chapters of the New York Code of Civil Pro- cedure have finally passed the Legislature and become a law. In view of the important changes made in the Practice in Justices Courts by the passage of this Act it has become necessary to prepare a new edition of the work. This seventh edition gives the entire Law and Practice in these courts as it now exists, both as to their Civil and Criminal Jurisdiction. In the revision of the forms as required by the new statute the endeavor has been to cover all the changes re- quired. The new forms (noted as such) will be found embodied in the volumes. These forms are taken from the blanks published by Avery Herrick, Esq., of Albany, as Preface. revised for him by the Hon. K C. Moak, which is a suffic- ient warrant of their entire accuracy. Mr Moak's labors iu this department have stood the test of time and secured the confidence of the profession The Supplemental Index embracing the new matter is placed at the end of the regular index. The sections of the new Code referred to may be found by a reference to the Supplemental Index. Albany, Nov., 1, 1880. TO THE PUBLIC. It is now twelve years since the Fourth Edition of my Treatise was issued, and I am grateful to be able to state lhat it has been received with favor by those who have had occasion to use it in the line of their business and profession. Since that time, however, many important changes have been made in the law governing Justices' Courts, and the various special proceedings within their jurisdiction. I have inserted in this edition much new matter, such as amendments made by the Legislature, and have cited authorities made by the various Courts, in order to give those doing business in Justices' Courts and within their jurisdiction, the benefit of the law governing these Courts, and defining their powers. When we consider that the greater portion of the litiga- tion in our country is settled by and before these Courts, no one will, for a moment, hesitate in saying that the latest alterations of the statutes, and the latest decisions of the appellate Courts, should be placed before them; and more especially when we realize that among the greater number of these Justices of the Peace, but very few, comparatively, have access to the Law Libraries of our country. This edition will be found to contain all the forms neces- sary to be used under the various matters of which they have jurisdiction, and they have been abridged so as to con- form to the spirit of the Code of Procedure in this State. The law and practice in relation to criminal proceedings, 2 To the Public. cognizable by and before Justices of the Peace, have been more carefully and extensively laid down in this, than any former Treatise of the kind in this State; and, I have no doubt, will be found a safe guide for all those doing business in that most' important branch of the administration of our Government. It will be perceived that a very important change has been made in the trial of those persons charged with crime. As the law now stands, any person on trial, charged with any crime whatever, may oifer himself as- a witness in his own behalf, and testify as in civil actions. Commending it to the candid perusal and favorable con- sideration of all those interested in the faithful administra- tion of the laws of out country. I submit it again to the public. J. BENEDICT. BENEDICT'S TREATISE. P^RT I. JURISDICTION, POWERS AID DUTIES OF JUSTICES OF THE PEACE IN CIVIL PROCEEDINGS. BENEDICT'S TREATISE. CHAPTER I. OF THE JURISDICTION OF JUSTICES OF THE PEACE, I. What Relates to the Justice Personally. By the 18th section of the Amended Constitution of this State, it is provided as follows : § 18. The electors of the several towns shall, at their annual town meeting, and in such manner as the Legisla- ture may direct, elect Justices of the Peace, whose term of office shall be four years. In case of an election to till a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the Peace and Judges or Justices of inferior Courts, not of record, and their Clerks, may be removed after due notice and an opportunity of being heard, by such Courts as may be prescribed by law for causes to be assigned in the order of removal. Justices of the Peace and District Court Justices shall be elected in the different cities of this State in such manner, and with such powers, and for such terms respectively, as shall be prescribed by law; all other judicial officers in cities whose election or appointment is not other- wise provided for in this article, shall be chosen by the electors of cities or appointed by some local authorities thereof. 1 1 Article VI. Sections 18 and 19 of Amended Constitution of 1869. 6 Jurisdiction. § 19. Inferior local courts of civil and criminal jurisdic- tion may be established by the Legislature; and except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in such manner as the Legislature may direct. The Statute authorizing special elections to supply vacancies in certain town offices, does not extend to the office of Justice of the Peace. 1 The Constitution withholds from the Legislature the power of providing for the election of Justices of the Peace except at an annual (own election. 1 The Legislature, in 1859, passed a law authorizing vacan- cies in the office of Justices of the Peace in the several towns of this state to be filled by the supervisor, town clerk, and justices of the said town, which statute reads as follows : § 1. Whenever -there shall be a vacancy in the office of a justice of the peace in any town in this state, occurring after and in the same year of the regular annual town meeting in such town, the supervisor, town clerk, and re- maining justices of the peace, or a majority of such officers, are hereby authorized by warrant under their hands and seals, to appoint a suitable person to fill such vacancy, and the person so appointed shall hold said office until the first day of January next succeeding such appointment. If the vacancy shall occur before the annual town meeting, it may be supplied by appointment in the same manner, and the person so appointed shall hold said office until the annual town meeting; and any person so appointed may qualify immediately in the same manner as if elected, and enter upon the discharge of the duties of said office. § 2. Every such appointment shall be filed in the office of the town clerk, and a copy thereof in the office of the county clerk before the person so appointed shall be autho- rized to act. 3 Every justice of the peace elected in any town of this state, or appointed for any city in which special courts are not established by law, :i is hereby autho- 1 Expsirte Quackenbusli, i Hill R. 309. 2 Sue Sess. Laws 1859, chap. 476. ••> 3 R, S. Ti'i{?e 420, full cd . § 1 ; 1 Konian 281; 21 Barb. 546. General powers, 10 Wend 213; 2 Bm-lt. 3J0. Jurisdiction. 7 rized to hold a court for the trial of all actions in the next section enumerated, and to hear, try and determine the same according to law and equity; and for that purpose, where no special provision is otherwise made by law, such court shall be vested with all the necessary powers which are pos- sessed by courts of record of this state. § 3. Actions cognizable before a justice may be brought by and against all persons who sue or are sued in their own right, and by and against all town and county officers in their official character, and by executors and administra- tors, and by and against corporations. The Legislature have no power to shorten the constitu- tional term of office of a Justice of the Peace. This cannot be done indirectly by the erection or division of counties. Where a town is transferred from one county to another, or a new county made out of several towns, the Justices of these towns continue to hold their offices as Jus- tices of the same town or towns in the new counties. The office of a Justice of the Peace is a town office, thousrh it has county powers. 1 Justices of the Peace must reside in the town for which they were chosen, and shall not try a civil cause in any other town, except in cases otherwise provided for by law. 2 / A Justice may, however, issue his process at any place in the county, taking care, in civil cases, to make it returnable in the town in which he resides. 3 A person elected to the office of Justice of the Peace, and entering upon the discharge of its duties without having first taken the oath prescribed by the law, is nevertheless, a Justice of the Peace de facto, and his acts as such, so far as relates to the public and third persons, are valid. 4 The office of a Justice of the Peace will not be vacated in consequence of an increase or diminution of his territorial jurisdiction, by the erection of a new town, or the annexing 1 Session Laws 1849, chapter 28, § 1. 2 1 R. S. 5th ed., p. 383, 9 Wend. 319, 8 Cow. 6J2. 3 9 Wend. 319. i Weeks vs. Ellis, 2 Barbour S. C. Reu. 320, and Cases cited. 8 Jurisdiction. of part of one town to another ; he is allowed by law to serve out the full time for which he was elected. 1 No action to recover a penalty given to a town, can be brought before a Justice residing in the town for the benefit of which the same is prosecuted — it must be brought before some Justice residing in another town of the same county. - The above provision applies only to cases where the penalty is given directly to the town in its corporate capacity. Accordingly, where an action was brought before a Jus- tice of the Peace in the name of the Overseers of the Poor, to recover the penalty given by 1 11. S. 680, § 15, for sell- ing spirituous liquors without license, held, that though the penalty, when recovered, was to be applied to the use of the poor of the town of E, and the Justice resided there, he had jurisdiction. * No Justice of the Peace, being an inn-holder or tavern- keeper in fact, shall have any power or jurisdiction under the provisions of title four of the second chapter of the third part of the Revised Statutes, but if a judgment shall have been actually rendered before a Justice before he be- came so disqualified, he may issue execution thereupon as iu other cases. 4 Under the Revised Statutes, the Supreme Court decided that a Justice of the Peace was not deprived of jurisdiction by being a tavern-keeper, provided he was such at the time of his election: otherwise of a Justice who had become a tavern-keeper after his election. 71 That statute was amended, however, in 1846, and deprived a Justice of jurisdiction who was a tavern-keeper in fact. Although, under the foregoing statutes, a Justice of the Peace is deprived of jurisdiction in certain cases, yet he. is not disqualified to entertain proceedings against a person for refusing to work upon the road, on the complaint of an Overseer of Highways, although he is a tavern-keeper at the 1 1 B. S. 5th ed. p. 403, §§ 103, 104. 2 1 R. S. 5th ed. 837, § 5; G Hill, 59. 3 Wood vs. Rich, Hill, 58, Kolsou J. i'A K. S. Oth fd. 4-'7, §§ i, 3,4. 6 Parmelue vs. Thompson, 7 Hill 77. Bronson J. Jurisdiction. 9 time. Those statutes relate solely to the civil jurisdiction of Justices of the Peace under title four of the second chapter of the third part of the Revised Statutes, and do not interfere with the powers conferred by other statutes. 1 Relationship to one of the parties to an action before him, disqualifies a Justice from trying the cause; and should the Justice persist in trying the cause, after the fact properly appeared before him, the judgment he might render would be reversed — he should, therefore, dismiss the cause for want of jurisdiction. 2 The relationship to one of tbo parties, however, should bo so near as to amount, of itself, to strong presumption of par- tiality or fraud. It has been determined that it is no objection that the Justice is half uncle to the plaintiff's wife. 15 In another case the Court say that the Justice who ad- mitted that he was a son-in-law of the plaintiff, insisted on retaining jurisdiction, was of itself evidence that the trial was not fair and impartial, and reversed the judgment. 4 In a recent case, however, the Supreme Court decided that the following section of the statute applies to Justices of the Peace, viz :"' No Judge of any Court can sit as such in any cause to which he is a party or in any way interested, or in which he would be excluded from being a juror, by reason of consanguinity or affinity to either of the parties. lie cannot entertain an action where he is within the ninth degree of kin, either by consanguinity or affinity to either of the parties. The degrees of consanguinity are de- termined by commencing with the common ancestor of the persons between whom they exist, and counting each gene- ration downwards to the one farthercst removed. The number of generations denotes the degree. Thus, if both are grandchildren of a common ancestor, they are cousins in the third degree; if one is a grandchild and the other a great-grandchild, they arc cousins in the fourth degree. 1 Rice & Thorp vs. Milks, 7 Barbour, 337. 3 17 Jolm. R. 133. s 13 John. R. 191. * 19 John. R. 172. s Edwards i-s. Russell. 21 Wend. 63. Cowon J. 10 Jurisdiction. Degrees of affinity are determined by regarding a husband or wife of a blood relative of the same degree as such relative. Kin by affinity ceases on the death of the blood relative whose marriage occasioned it, unless there be issue •of the marriage, in which case the blood of the issue keeps up the affinity. Thus, a father is no longer of kin to his daughter-in-law, after the death of her husband, unless she have children. If she have children, the blood relationship between the children and their grandfather and their mother preserves the affinity. 1 It is often made an inquiry how the fact shall be made to appear to the Justice ? The Court, Cow en J., say the Justice may withdraw him- self on his mere suggestion, and such is the uniform course with other Judges. 2 He cannot sit. If he did, his acts would be void ; any judgment rendered by him is, therefore, void. So, too, it has been decided under this statute, that a Justice of the Peace, whose wife is the sister of A.'s wile can- not take jurisdiction of a cause in which A. is the plaintiff in interest, though prosecuted in the name of another ; and if he render judgment therein, it may be treated as absolute- ly void. A judgment rendered under such circumstances is coram non judice, and may be questioned collaterally. 3 If a justice should, therefore, issue a process, contrary to the foregoing section, and on ascertaining the fact, should render, a judgment against the plaintiff for costs, the judg- ment' would be reversed. The Court say he should not ren- der any judgment at all. l The entire ( want of a jurisdiction in the Justice may be shown or raised at any stage of the proceedings. The safer course would bo, when the Justice discovers that the process issued, or the proceedings taken, are contrary to the above section of the statute, or when there is doubt in the mind of the Justice, to dismiss the proceedings, and render no judgment whatever in the matter. 1 3 Comstock R. 547. a 21 Wend. 63. 3 Foot vs. Morgan, 1 Hill, 954, Cow. J. * 1 Hill, 054, Cowen J. Jurisdiction. 11 II. Of the Parties to Civil Actions. By the 15th subdivision of <$ 64 of the Code of Procedure, it is provided, that the forms of action, parties to actions, the rules of evidence, the time of commencing actions, and the service of process upon corporations, as therein pro- vided, shall apply to Justices' Courts. The subdivision will be found under its appropriate head in chap. 2d of this work, and is intended to apply to these courts so far as they can reasonably be made applicable. It is, therefore, necessary to insert in. this work Title III of the Code, which reads as follows : TITLE III. Of the parties to civil actions. Section 111. Action to be in the name of the real party in interest. 112. Assignment of a thing in action not to prejudice a defence. , 110. Executor or trustee may sue without the persons beneficially interested. 114. When married woman is party, her husband to be joined, ex- cept, etc. 115. Infant to appear by guardian. 110. Guardian, how appointed. 117. Who may be joined as plaintiffs. 1 18. Who may be joined as defendants. 110. Parties united in interest, when to be joined; when one or more may sue or defend for the whole. 120. Plaintiff may sue in one action the different parties to commer- cial paper. 1.1. Action, when not to abate by death, marriage or other disabil- ity, etc. ; proceedings in such cases. 122. Court when to decide controversy, or to order other parties to be brought in. § 111. [91.J (Am'd, 1849, 1851, 1862, 1866.) Action to be in the name of the real parti/ in interest. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section one hundred and thirteen ; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract. But an action may be maintained by a grantee of land in the name of a grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming un- 12 Jurisdiction. dcr a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff shall be- allowed to prove the facts to bring the case within this provision. § 112. [92.] (Am'd, 1849.) Assignment of a thing in ac- tion not to prejudice a defence. In the case of an assignment of a thing in action, the ac- tion by the assignee shall be. without prejudice to any set-off or other defence existing at the time of or before notice of the assignment ; but this section shall not apply to a nego- tiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due. ^ 113. [93.] (Am'd, 1851.) Executor or trustee may sue xoithout the persons beneficially interested. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made foi the benefit of another. § 114. [94.] (Am'd, 1851, 1857.) When married woman is party i her husband to be joined, except, etc. When a married woman is a party, her husband must be joined with her, except that : 1. When the action concerns her separate property, she may sue alone. 2. When the action is between herself and her husband she may sue or be sued alone. And in no case need she prosecute or defend by a guardian, or next friend. § 115. [95.] (Am'd, 1849.) Infant to appear by guardian. When an infant is a party, ho must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge. § 116. [96.] (Am'd, 1849, 1851, 1852, 1862, 1863, 1865.) Guardian, how appointed. The guardian shall be appointed as follows : 1. When the infant is plaintiff, upon the application of Jurisdiction. 13 the infant, if he be of the age of fourteen years ; or, if un- der that age, upon the application of his general or testa- mentary guardian, if he has any, or of a relative or friend of the infant ; if made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one ; if he has none, then to the person with whom such infant resides. 2. When the infant is defendant, upon the application of the infant, if he be of the ago of fourteen years, and apply within twenty days after service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of ■ a relative or friend of the infant, after notice of such appli- cation being first given to the general or testamentary guard- ian of such infant, if he has one within this estate ; if he has none, then to the infant himself if over fourteen years of age, and within the state; or, if under that age, and within the state, to the person with whom such infant resides. And in actions for tlie partition of real property, or for the fore- closure of a mortgage or other instrument, when an infant defendant resides out of this state, or is temporarily absent therefrom, the plaintiff may apply to the court in which the action is pending, at any special term thereof, and will be entitled to an order designating some suitable person to bo the guardian for the infant defendant, for the purposes of the action, unless the infant defendant, or some one in his behalf, within a number of days after the service of a copy of the order, which number of days shall be in the said or- der specified, shall procure to be appointed a guardian for the said infant, and the court shall give special directions in the order for the manner of the service thereof, which may be upon the infant. And in case an infant defendant having an interest in the event of the action shall reside in any state with which there shall not be a regular communication by mail, on such fact satisfactorily appearing to the court, the court may ap- point a guardian ad litem for such absent infant party, for the purpose of protecting the right of such infant in said action ; and, on such guard iau ad litem, process, pleadings 14 Jurisdiction. and notices in the action may be served in the like manner as upon a party residing in this .state. ^ 117. [97.] Who may be pined as plaintiffs. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title. $ 118. [98.] (Am'd, 1849, 1867.) Who may be joined as defendants : Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein ; and in an ac- tion to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants ; and any person claiming title or a right of possession to real estate may be made parties plaintiff or defendant as the case may require, to any such action. ^ 119. [99.] (Am'd, 1849.) Parties united in interest, ■when to be joined ; when one or more may sue or defend for the whole. Of the parties to the action, those who are united in in- terest must be joined as plaintiffs or defendants ; but if the consent of any one, who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint, and when the ques- tion is one of a common or general interest of many per- sons ; or when the parties are very numerous and it may be impracticable to bring v them all before the court, one or more may sue or defend for the benefit of the whole. § 120. [100.] Plaintiff may sue in one action the different parties to commercial paper. Persons severally liable upon the same obligation or in- strument, including the parties to bills of exchange and promissory notes may, all or any of them, be included in the same action, at the option of the plaintiff. % 121. [101.] (Am'd, 1849, 1857, 1862, 1869, 1870.) Action, ivhen not to abate by death, marriage or other dis- ability, etc. ; proceedings in such case. JURISDICTION. 15 No action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest there- in, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the court on motion, at any time within one year thereafter, or after- wards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. After a verdict shall be rendered in any action for a Avrong, such action shall not abate by the death of any par- ty, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law. At any time after the death, marriage, or, other disability of the party plaintiff, the court in which an action is pend- ing, upon notice to such persons as it may direct, and upon application of any person aggrieved, may, in its discretion, order that the action be deemed abated unless the same be continued by the proper parties, within a time to be fixed by the court, not less than six months nor exceeding one year from the granting of the order. And where judgment has heretofore or shall hereafter be recovered for the pos- session of real property,and the party recovering said judg- ment shall have died subsequent to the recovery thereof, his successor in interest in said land, whether by grant, devise or inheritance, may revive said judgment and enforce the same by execution, on motion, within one year after said death, or afterwards on supplemental complaint. Where an intestate, not being an inhabitant of the state, shall die out of this state, not leaving assests therein, and there shall be pending in the supreme court, or in the court of appeals, an appeal brought by such intestate from a judgment against him, the court in which said appeal is pending may order the judgment appealed from affirmed, with costs, unless the attorney for the intestate on said ap- peal procure said action to be revived, within six months 16 Jurisdiction. after notice, to perfect such appeal, by the substitution of a representative of said intestate in said action. § 122. [102.] (Am'd, 1849, 1851.) Court when to decide controversy, or to order other parties to be brought in. The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. And when, in an action for the re- covery' of real or personal property, a person, not a party to the action, but having an interest in the subject thereof makes application to the court to be made a party, it may order him to be brought in by the proper amendment. A defendant, against whom an action is pending upon a contract, or for specific, real or personal property, may, at any time before answer upon affidavit, that a person, not a party to the action, and Avithout collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party on his de- positing in court the amount of the debt, or delivering the property, or its value, to such person as the court may di- rect ; and the court may, in its discretion, make the order. The Supreme Court say that when a public office is in- stituted by the Legislature, an implied authority is conferred on the officer or officers, to bring all suits as incident to his office, which the proper and faithful discharge of the duties of his office require. 1 The statute, however, expressly authorizes suits to be brought by the Supervisors of the county ; the Loan officers and Commissioners of Loans of a county ; the County Su- perintendents of the Poor, Supervisors of Towns, Overseers of the Poor, Commissioners of Common Schools, Commis- sioners of Highways, Trustees of School Districts, Trustees of School and Gospel Lots, etc., upon any contract lawfully 1 18 John. R. 418 i 12 How. Pr. R. 367. JUEISDICTION. 17 niiidc with them or their predecessors in their official char- acter, to force tiny liability or any duty enjoined by law upon such officers, or the body they represent, and to recover damages for any injuries done to the property or rights of such officers, or the bodies represented by them. 1 The officers above named are authorized to bring such actions in the name of their respective offices, notwithstand- ing the contract or obligation on which the same is founded, may have been made with or to any of their predecessors in office, in their individual name or otherwise. But in all cases the action should be brought in the name of the officer, with the addition of his name of office, and not merely in the name of the office. 2 As a general rule, all public officers though not express- ly authorized to sue by statute, have a capacity to sue com- mensurate with their public trusts and duties. 3 In actions either by or against any of the officers named m 2 E. S. 473, \ 92, the individual name of the incumbent must be used with the addition of his name of office. Ac- cordingly where the action was brought in the name of The Supervisor of the Town of G., without mentioning the name of the incumbent, held, that it could not be main- tained. 4 It is proper to observe here, that when a suit is brought by or against the Board of Supervisors, the county Super- intendents of the Poor of any county, or against any Town, or the Supervisor, or the Overseers of the Poor in their official character, and judgment is obtained against them, no execution can be issued on such judgment, but the same is to bo presented to the next Board of Supervisors of the coun- ty, in the manner prescribed by law. See 3 E. S. page 774, $ 106, 5th ed. 5 In actions on contract. Prior to the adoption of the Code Procedure, actions upon contract, with a few exceptions, 1 3 R. S. 774, § 105, 6th ed.; 2 Kern. 62. 2 3 R. S. 775, § 109; 19 Barb. 179. > The Supervisor of the town of Galway agt. Stimson, 4 Hill 136, Bron« son J. ■ * 18 John. 407; 1 Cowen, 260; Avery vs. Slack, 19 Wend. 50 Cowen J. 6 8 R. S. oth ed. 776. § 120. A 18 JUIMSDICTION. were required to be prosecuted in the name of the pci'son to whom the contract was made. The exceptions to the rule arose in the case of bills of exchange and negotiable promis- sory notes, and in a few other cases provided by statute. The Code of Procedure has changed the rule and requires that every action must be prosecuted in the name of the party in interest, except that when a married woman is a party, her husband must be joined with her, unless the action concerns her separate property, or is between herself and her husband, when she must sue alone. 1 As a cause of action not arising upon contract is not assignable, 2 the pro- vision in effect simply extends to the assignee of a contract, whether express or implied, the right to bring an action upon it in his own name. If the contract is joint and several, the action may be brought against all of the contracting parties in default or against any one of them severally. Where there are a number of persons named as contractors, they will be deemed joint contractors, unless it is otherwise expressed in the contract. If, however, a promissory note be drawn, "I pro- mise to pay," &c, and subscribed by two or more persons, it is held to be a joint and several note. 3 If the action be upon a joint contract, it should be brought against all the parties liable upon it ; and if it is not so brought, the want of proper parties will bo a good answer. 4 If, however, the want of proper parties be not set up in the answer, it will be too late to make the objection at the trial; and if the^ contract is there proved to have been made by the defendants and other persons as joint contractors, it will be sufficient to warrant a recovery against the defendants named. 5 The provision contained in the eleventh subdivi- sion of section sixty-four of the Code of Procedure, author- izing the amendment of the pleadings at any time before trial, during the trial or upon appeal, when by such amend- ment substantial justice will be promoted, although it enables a Justice to obviate any objection arising upon the pleadings, does not by its terms reach the case of an improper joinder 1 Code of Procedure, § 4. 2 Id. § 111. S 7 Mass. 68. 1 1 Chit. PI. 47. 6 i Barn. & Aid. 224. Jurisdiction. 19 of persons as defendants, and the ancient rule would there- fore seem to govern in such ca/ses. 1 There are some cases in which a person may sue for the recovery of damages for the breach of a contract to which he is not a party and to whom there has not been any assign- ment of the right of action. Where one person pays money or delivers property to another, and the latter in considera- tion thereof promises to pay a certain sum of money to some third person, such third person may maintain an action in his own name to recover the sum specified, although no con- sideration moves from the party who brings the action. 2 Although by the fifteenth subdivision of section 64 of the Code the foregoing sections are made applicable to Jus- tices' Courts, they should be so construed as not to give Justices' Courts any new or extraordinary powers, such as bringing in new parties, striking out the name of some of the parties in an action on contract and the like; and the Court say, in Gates agt. "Ward, 17 Barbour E. 427, that the rules prescribed by the Code, as to the necessary parties to an action are applicable to these Courts, so far as consistent with their constitution and duties, and no farther; they have no power to amend the process or pleadings in an action against two or more defendants on a joint contract, by striking out the name of a co-defendant and rendering judg- ment against one and in favor of the other. 3 III. By Executors and Administrators. Although the statute -deprives the Justice of jurisdiction of suit against executors and administrators, and allows suits to be brought and maintained by executors and administrators, yet, if a suit be brought by them before a Justice, the defendant may plead or give notice of set- off, and if he prevails, may have judgment against the plaintiff in his or their, (as the case may be,) representa- tive character, which shall be evidence of a debt established 1 Webster vs. Hopkins, 11 How. Pr. 140; 17 Barb. E. 424. 2 Barker agt. Bucklin, 2 Denio, 45; Hale agt. Boardman, 27 Barb. 82; 6 E. P. Smith, 364. 8 11 How. Pr. R. 140; 17 Barb. 427. 20 J UIJISDICTION. to he paid in the course of the administration, but execution shall not issue thereon until directed by the Surrogate who granted the letters of administration, and if the defendant neglects to put in his set-off, according to the preceding section of the statute, he will be precluded from ever after collecting his demand. 1 By the Ecvised Statutes "no executor or administrator shall be chargeable upon any special promise to answer damages or to pay debts of the testator or intestate, out of his own estate, unless the agreement for that purpose, or some memorandum or note thereof, be in writing and signed by such executor or administrator, or by some other person by him thereunto specially authorized." The promise must be made upon some valid and sufficient consideration to the executor or administrator as well as reduced to writing and signed." 2 And where an administrator gives his note for the debt of his intestate, he cannot be made personally liable upon it, unless it is shown that he has assets or that for- bearance was the consideration ; and where this is not proved, the Court will not infer it from the fact that the note is payable in sixty days. :i A transfer by one of several executors or administrators is as valid as a transfer by all of them: Bogcrt agt. Hertell, 4 Hill 492, and cases cited. This rule applies as well to notes and other securities given to executors as such after the death of their testator as to those given to him in his lifetime; Nelson, Ch. J. Money deposited by one as execu- tor may be sued for and recovered by him in his own right. 1 Executors and administrators stand in the place of their testator or intestate, and may bring an action for taking, detaining or injuring his goods, or the goods which have come to their hands, 6 and in like manner may the trustee of an express trust. 6 And where an action of trover was brought by a son entitled to succeed to his father's personal 1 8 R. S. 656, 5th ed. §§ 16, 17 i 8 Wend. 5S0; 21 Wend. 675-, 6 Barb. 330. 3 8 R. S. 201, 5th ed. § 1. 8 9 Wend. 273. i Cheney agt. Beals,47 Barb. 523. 5 1 Pick. 389; Code of Procedure, § 113; 5th ed. R. S. vol. 8, p. 201. 6 Id. Jurisdiction. 21 estate for its conversion, although it was shown that no let- ters of administration had been grantatl, the action was sustained. 1 In suits brought by executors or administrators the defendant may set off demands existing against their tes- tators or intestates, and belonging to the defendant at the time of their death, in the same maimer as if the action had been brought by and in the name of the deceased. To enable a set-off to be made in actions brought by executors and administrators under sections fifty-five and fifty-six of the statute, it is necessary that the demand must have belonged to the defendant at the time of the death of the testator or intestate. In case the set-off established in such case exceeds the plaintiff's demand, the judgment rendered in the defendant's favor is not collectable against the plaintiff out of his goods and chattels, but is merely evidence of a debt established, payable in the course of ad- ministration and upon which execution cannot issue until ordered by the Surrogate.' 2 Where a co-partnership executes a note in the name of the firm and one of the partners dies, his executors cannot be joined with the surviving partners in a suit upon the note. The creditor is bound to resort to his legal remedy against the surviving debtors. 3 On the appointment of an administrator, the personal property of the intestate vests in him by relation from the death of the intestate, and he may lawfully bring trespass for unlawfully taking goods or property of the intestate, after his death and before administration granted. He may also maintain an action for a trespass committed on the real estate, or for taking and carrying away the goods of the intestate in his lifetime. 1 So an administrator could always bring trover in his own name, without declaring in his representative capacity, for the goods of his intestate, converted after his death, even though the conversion was before the granting of letters of 1 7 Wend. 354. 2 3 R. S. 5th ed. p. 201. 3 2 Denio, 577; 18 Barb. 592. * Rockwell vs. Sanders, 18 Barb. 473, and many cases cited. 22 Jurisdiction. administration, because the granting of administration related back to the time of the death, and gave the administrator title by relation. (Valentine agt. Jackson, £> Wend.) This has not been changed by the Code. 1 § 317. (Am'd, 1851, 1852.) Costs in an action by or against an executor or administrator, trustee of an express trust, or a person expressly authorized by statute to sue. In an action prosecuted or defended by an executor, ad- ministrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered as in an action by and against a person prosecuting or defending in his own right, but such costs shall be chargeable only upon, or collected of, the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defence. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom, by section 41 of title 3, chapter 6 of the second part of the revised statutes; and whenever any claim against a deceased person shall be referred pursuant to the provisions of the revised statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law. And the court may, in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs. 2 IV. By and against Corporations. Justices of the Peace have jurisdiction in suits against corporations and may issue a summons as in other cases. In actions against corporations, the Code of Procedure pro- vides, that the summons which is issued in the same manner as against natural persons, may be served by delivering a copy to the president or other head of the corporation, secre- tary, cashier, treasurer, a director or ' managing agent thereof; but the service can be made in respect to a foreign 1 Sheldon v. Jloy, 11 How. R. 11. 2 SON. Y. l;. 201. Jurisdiction. 23 corporation only when it has property within the state, or the cause of action arose therein. 1 A county is a corporation — so also A town is a corporation. A county must sue in the name of the Board of Super- visors thereof, except when county officers shall be author- ized by law to sue by their name of office for the benefit of the county. 2 In all legal proceedings against the Board of Supervisors the first process, and all other proceedings requiring to be served, shall be served on the chairman or clerk of tho Board. 3 A town must sue by its name, except when town officers shall be authorized by law to sue in their name of office for the benefit of the town. Actions therefore can be brought before a Justice of the Peace against either a county or a town in its corporate capacity, subject to the restrictions and limitations con- tained in section fifty-four of the Code of Procedure. 4 The managing agent upon which a process can be served must be one whose agency extends to all the transactions of the corporation. The process against corporations may be issued as in other cases, and may be served on the presiding officer, sec- retary, cashier, treasurer or any director or trustee thereof, by whatever name such director or trustee may be called, and although a Justice has no jurisdiction of a suit against a foreign corporation, such corporation may confer jurisdic- tion by appearing and answering without objecting to tho jurisdiction. Personal service upon the managing agent of a corpora- tion is personal service upon the corporation itself, and if the constable's return shows such a service, the jurisdiction of the Justice is established and his judgment will be regular on its face. 5 1 Code of Procedure, § 134. 2 3 R. S. 774, § 105; 2 Kernan, 52; 19 Barb. 179; 4 Hill, 137. 3 1 E. S. 901, § 3, 5th ed; 2 Kernan, 52; 18 Barb. 574. i Brewster vs. The Mich. Railroad Company. 5 How. 183; 9 How. 448; 2d E. D. Smith, 519. '■> 18 Barb. 574. 24 Jurisdiction. A railroad corporation whose road passes through two or more counties, may be sued before a Justice in either county, provided the process can be served on the proper officer in such county. A railroad company must be treated as an inhabitant and freeholder in each county where its track is laid, therefore a summons issued against such a company by a Justice of the Peace must be made returnable not less (han six nor more than twelve clays from the time of service. A summons against a corporation returnable within three days is a nullity. The Justice has no jurisdiction over the corporation as a non-resident. It is irregular for the same person to appear as attorney for both parties on the return of summons issued by a Justice. It should appear by the return to a summons issued by a Justice against a corporation in what manner the process was served, so that the Justice may be able to determine whether it was served on the proper officer. 1 V. Residence of the Parties. The statute restricts the jurisdiction of a Justice of the Peace in respect to the residence of the parties. 2 Thus, every action must be brought before some Justice of the town wherein either pf the plaintiffs or any one of them reside, or whore the defendants or any one of them reside, or before some Justice of another town in the same county next adjoining the residence of the plaintiff or defendant. 3 The above rule has, however, the following exceptions : 1. If the defendant has absconded from his residence, the action may be brought before a Justice of the town in which such defendant or his property may be. 4 The words in italics probably have reference to suits com- menced by attachment, of which I shall treat in its proper place in this Treatise. 2. If the plaintiffs be all non-residents of the county, or the defendant be a non-resident of the county, then such I 15 Bai-b. 650; 11 Barli. O'Jl. :i 3 R. S. 427, § G. t Wend. R. 452. 4 3 R. S. 427, § 7. Jurisdiction. 25 action may bo brought before any Justice of the town in which such plaintiff or defendant may be. 1 Joint debtors may be sued in a Justices' Court by long summons, though one of them bo a non-resident of the county. (Burghart vs. Rice, 2 Dcnio, 95. Harriott vs. Van Cott, 5 Hill, 285.) So a person having no legal resi- dence anywhere, it seems may bo sued by a long summons. That process is appropriate unless the defendant is a non- resident of the county. (Barnes vs. Harris, 4 Comstock, 374, and many cases cited.) In Hunter vs. Burtis and Ellsworth, 10 Wend. Hep. 385, it was decided by the Supreme Court, that a suit in favor of a non-resident plaintiff may be brought before any Justice of the count}'. VI. The Amount in Controversy. Suits cognizable before a Justice of the Peace may be brought in all cases, where the debt or balance due, or the damages claimed, shall not exceed two hundred dollars. 2 If the plaintiff state his demand for more than two hun- dred dollars, but claim only a balance of two hundred dol- lars, the Justice has jurisdiction and the proceedings will be deemed regular. If, however, a Justice issue a summons stating a cause of action for more than two hundred dollars, it is a nullity, and lays the defendant under no obligation to appear and answer to it. 2 A Justice has no jurisdiction where the sum total of the accounts of both parties, proved on the trial to the satisfac- tion of the Justice, shall exceed four hundred dollars, but when accounts have been settled, the balance only shall be regarded as an item of account; where payments have been made, expressly in satisfaction of the plaintiff's demand, neither the payments so made, or that portion of the demand 1 3 E. S. 427, § 7; 10 Wend. 3G0. 2 Yager vs. Hannay, 6 Hill R. 631. The Code now authorizes $200 to be inserted in the summons or warrant. 26 Jurisdiction. so satisfied by said payments, shall form any part of said accounts. 1 In an action in which the plaintiff demanded judgment for three hundred and thirty-six dollars, and* interest, the defence was payment and counter claim of two hundred dollars. On the trial, the plaintiff's claim was found to be two hundred and sixty dollars and ninety-two cents, and that the defendant had made payments on account to the amount of ninety-five dollars and eighty-five cents, and had a counter claim to the amount of one hundred and thirty- six dollars and forty-three cents. It was held the amounts between the parties did not exceed four hundred dollars. 2 A Justice of the Peace has no jurisdiction of an action for taking personal property where the Plaintiff in his complaint claims more than two hundred dollars. In such a case, a judgment in favor of the plaintiff will bo reversed after a trial upon the merits, without objection. 3 (These cases will apply where the plaintiff claims more than two hundred dollars. — Ed.) Where the amount of the accounts still subsisting is a question of fact, and the evidence is conflicting the deter- mination of the Justice is necessarily as conclusive on such question of fact, as upon any other and cannot be disturbed. 4 Section 54 of the Code of Procedure takes from a Jus- tice of the Peace, jurisdiction of a case, when the amount of the accounts of both parties exceed $400, and the 4th sub- division invests the Justice with the power of adjudicating this question and fixes the time when he may decide it (viz.) when the fact shall be proved to his satisfaction. This period cannot arrive until the trial has commenced and the proof entered upon. Until he decides that question he has jurisdiction to act. 5 It is a judicial finding upon a hearing of both parties. 1 2 R. S.159, § 4; 2 Cow. R. 413,Matteson vs. Bloomfield; 10 Wend. R. 555, 557, Note Ex parte Mills vs. N. T. Com. Picas; 4 Denio, 370, 371 j Parker vs. Eaton, 25 Barb. 122. - Crim agt. Croukhite, 15 How. 280. 3 14 Barbour 250; 6 Hill 631; 5 Barb. 574. 4 25 Barb. 122. 6 Glackin vs. Zollor, 52 Barb. 147. Jurisdiction, sbrc. !26d Jurisdiction and General Powers. § 2861. A justice of the peace has such jurisdiction in civil actions and special proceedings, as is specially con- ferred upon him by statute, and no other. § 2862. Except as otherwise prescribed in the next sec- tion, a justice of the peace has jurisdiction of the follow- ing civil actions : 1. An action to recover damages upon or for breach of a contract, express or implied, other than a promise to marry, where the sum claimed does not exceed two hun- dred dollars. 2. An action to recover damages for a personal injury, or an injury to. property, where the sum claimed does not exceed two hundred dollars. 3. An action for a fine or penalty, not exceeding two hundred dollars. 4. An action upon a bond conditioned for the payment of money, where the sum claimed to be due does not exceed two hundred dollars ; the judgment to be rendered for the sum actually due. Where the sum secured by the bond is to be paid in installments, an action may be brought for each installment, as it becomes due. 5. An action upon a surety bond taken by any justice of the peace. 6. An action upon a judgment rendered in a court of a justice of the peace, or in a district court of the city of Sew York, or in a justices' court of a city, being a court not of record. 26b JuBisDiclrolsr, etc. 7. An action to recover one or more chattels, with or without damages for the taking, withholding, or detention thereof, where the value of the chattel, or of all the chat- tels, as stated in the affidavit made on the part of the plain- tiff, does not exceed two hundred dollars. § 2863. But a justice of the peace cannot take cogni- zance of a civil action in either of the following cases : 1. Where the people of the State are a party, except for one or more fines or penalties not exceeding two hundred dollars. 2. Where the title to real property comes in question, as prescribed in title third of this chapter. 3. Where the action is to recover damages for an assault battery, false imprisonment, libel, slander, criminal con- versation, seduction, or malicious prosecution. 4. Where, in a matter of account, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars. 5. Where the action is brought against an executor or administrator as such. § 2864. A justice of the peace has also jurisdiction to render judgment, upon the confession of a defendant, as prescribed in title sixth of this chapter, where the sum confessed does not exceed five hundred dollars. § 2865. An action, cognizable by a justice of the peace, may be brought by or against a corporation ; by or againt a natural person in his own right; by or against a town or county officer in his official character ; or by an executor or administrator. Jurisdiction, etc. 86c § 2866. A justice of the peace, who is an innholder or tavern keeper in fact, has no power or jurisdiction under any provision of this chapter ; but if a judgment has been actually rendered by him before he became so disqualified, he may give a transcript thereof, or issue execution there- upon, or satisfy the judgment, upon payment thereof. § 2867. A justice of the peace, who is a member of the senate or assembly, is not obliged to take cognizance of a civil action or special proceeding ; but he may take cognizance thereof, in his discretion. § 2868. A justice of the peace must hold, within his town or city, a court for the trial of any action or special proceeding, of which he has jurisdiction, brought before him. He must hear, try, and determine the same according to law and equity ; and for that purpose, where special provision is not otherwise made by law, the court is vested with all the necessary powers possessed by the supreme court. § 2869. An action must be brought before a justice of a town or city wherein one of the parties resides, or a jus- tice of an adjoining town or city in the same county» except in one of the following cases : 1. Where the defendant has absconded from his resi- dence, it may be brought before a justice of the town or city in which the defendant, or a portion of his property, is at the time of the commencement of the action. 2. Where the plaintiff is not a resident of the county, or if there are two or more plaintiffs, Where all are non- residents thereof, it may be brought before a justice of the town or city, in which the plaintiff, or either of the plain- 20d JtTKISDICTION, ETC. tiffs, or his attorney, is at the time of the commencement of the action. 3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city, in which he is at the time of the commencement of the action. 4. Where it is specially prescribed by law that a parti- cular action may be brought before a justice of the town, city, county, or district, where an offense was committed, or where property is found. A defendant designated in section 2879, section 2880, or section 2881 of this act, is deemed, for the purposes of this section, a resident of the town or city where the person, to whom a copy of the summons is delivered, resides. § 2870. A justice of the peace has power to punish, for a criminal contempt, a person guilty of either of the fol- lowing, acts ': 1. Disorderly, contemptuous, or insolent behavior towards him, while engaged in the trial of an action, the rendering of a judgment, or any other judicial proceeding; where such behavior directly tends to interrupt the pro- ceedings, or to impair the respect due to his authority. 2. Breach of the peace, noise, or other disturbance, directly tending to interrupt his official proceedings. 3. Resistance wilfully offered, in his presence, to the execution of his lawful mandate. JuBISDICTION, ETC. 26e He has not power to punish, for a criminal contempt, in any other case. § 2871. Punishment for a contempt, specified in the last section, may be by fine not exceeding twenty-five^dollars, or by imprisonment in the county jail not exceeding five days, or both, in the discretion of the justice. Where a person is committed to prison for the non-payment of such a fine, he must be discharged at the expiration of ten days . but where he is also committed for a definite time, the ten days must be computed from the expiration of the definite time. § 2872. A person shall not be punished by a justice of the peace, for a contempt, until an opportunity has been . given him to be heard in his defense. And, for that pur. pose, the justice must issue a warrant, directed, generally, to any constable of the county, requiring the constable to bring the offender before him. § 2873. A justice, who convicts a person of a contempt, must, within ten days after the conviction, make up, sub- scribe, and file in the county clerk's office, a record thereof, stating therein the particular circumstances of the offense, and the punishment awarded by him upon the conviction. § 2874. A warrant of commitment for a contempt must set forth the particular circumstances of the offense ; otherwise it is void. § 2875. An officer, who collects or receives a fine, 26f Jurisdiction, etc* imposed by a justice of the peace for a contempt, must, within ten days thereafter, pay the money, for the benefit of the poor, to the overseer or superintendent of the poor of the town, city, or district, wherein the fine was imposed ; or, where there is no such officer, to the officer or officers performing corresponding functions under another name ; unless the board of snpervisors has directed the payment of fines and penalties to the supervisor of the town, in a case where it is authorized by law so to do. Proceedings in Justices' Courts. 27 CHAPTER II. [. Of the Courts held by Justices of the Peace and the Pro- ceedinffs therein. Remedies iu the Courts of Justice arc divided into : 1. Actions ; 2. Special Proceedings. An action is an ordinary proceeding in a Court of Jus- tice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or preven- tion of a wrong, or the punishment of a public offence. Eveiy other remedy is a special proceeding. Actions are of two kinds : 1. Civil; 2. Criminal. A criminal action is prosecuted by the people of the State, as a party, against a person charged with a public otFence, for the punishment thereof. Every other is a civil action. Where the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other. The following sections comprise the law as laid down in the Code of Procecdure in relation to Justices' Courts. Of the courts of the justices of the peace. Section 52. Repeal of certain existing provisions. 53. Jurisdiction of these courts. 51. Jurisdiction in civil actions limited. 55. Answer of title to land. 50. Undertaking therein. 57. Suit before justice to be discontinued; costs. 58. Proceedings if undertaking not given. 59. The same. GO. New action in supreme court ; pleadings therein. Gl. Costs of action in supremo court. 28 Proceedings in Justices' Courts. 62. Proceedings where several causes of action, and answer of title as to one. 63. Docketing justices' judgments and effect thereof. 64. Rules in justices' eourts. Rule 1. The pleadings. 2. Pleadings, how put in. 3. Complaint. 4. Answer. 5. Pleadings, what to contain. 6. Demurrer. 7. Proceedings in demurrer. 8. Plaintiff to prove his case if defendant do not appear. 9. Proceedings in action on account, or instrument for the payment of money only. 10. Variance, when disregarded. 11. Amending pleadings. 12. Executions, when issueable and returnable. 13. Execution on justices' judgment docketed. 14. Requiring party to exhibt his account. 15. Certain provisions applicable to these courts. ^ 52. [45. J Repeal of certain existing provisions. The provisions contained in sections two, three and four, of the article of the revised statutes entitled, " Of the juris- diction of justices' courts," as amended by sections one and two of the act concerning justices' courts, passed May fourteenth, one thousand eight hundred and forty, and the provisions contained in sections fifty-nine to sixty-six, of the same arti- cle, both inclusive, are repealed, and the provisions of this title substituted in place thereof. But this repeal shall not affect any action heretofore commenced in a court of a jus- tice of the peace. <$ 53. (46.) (Am'd, 1849, 1851, I860, 1861, 1862, 1865.) Jurisdiction of these courts. Justices of the peace shall have civil jurisdiction in the following actions, and no others ; excepting as in the second section it is provided : 1. In actions arising on contracts for the recovery of money only if the sum claimed docs not exceed two hun- dred dollars. 2. An action for damages for injury to rights pertaining to the person, or to personal or real property, if the dama- ges claimed do not exceed two hundred dollars. 3. An action for a penalty not exceeding two hundred dollars. Proceedings in Justices' Courts. 29 4. An action commenced by attachment of property, as now provided by statute, if the debt or damages claimed do not exceed two hundred dollars. 5. An action upon bond conditioned ,for the payment of money, not exceeding two hundred dollars, though the pen- alty exceed that sum, the judgment to be given for the sum actually due. Where the payments are to be made by installments, an action may be brought for each install- ment as it becomes due. 6. An action upon a surety bond taken by thenf, though the penalty or amount claimed exceed two hundred dollars. 7. An action upon a judgment rendered in a court of justice. of the peace, or by a justice, or other inferior court in a city where such action is not prohibited by section seventy-one. 8. To take and enter judgment on the confession of a defendant, where the amount confessed shall not exceed five hundred dollars, in the manner prescribed by article eight, title four, chapter two, of part three of the revised statutes. 9. An action for damages for fraud in the sale, purchase or exchange of personal property, if the damages claimed do not exceed two hundred dollars. 10. [§ l.J An action to recover the possession of personal property claimed, the value of which, as stated in the affida- vit of the plaintiff, his agent or attorney, shall not exceed the sum of one hundred dollars. [ § 2. J The plaintiff in such action at the time of issuing the summons, but not afterward, may claim the immediate delivery of such property as hereinafter provided. [ § 3.] Before any process shall be issued in an action to recover the possession of personal property, the plaintiff, his agent or attorney, shall make proof by affidavit, showing : 1. That the plaintiff is the owner, or entitled to immediate possession of the property claimed, particularly describing the same. 2. That such property is wrongfully withheld or detained by the defendant. 3. The cause of such deten- tion or withholding thereof, according to the best knowl- edge, information and belief of the person making the affida- 30 Proceedings in Justices' Courts. vit. 4. That said personal property has not been taken for any tax, fine or assessment pursuant to statute, or seized by virtue of an execution or attachment against the prop- erty of said plaintiff ; or, if so seized, that it is exempt from such seizure by statute. 5. The actual value of said personal property. The following form will answer for the affidavit, being careful to fill it as required by the preceding section. In Justices' Court. 1 Affidavit on claim of delivery against mm I * l of personal property. County, ss. plaintiff in this action, being duly sworn, says that the owner of the folloAv- ing personal property claimed in this action, that is to say : that the said property is wrongfully withheld or detained from the plaintiff by the defendant herein. That the cause of the detention thereof, according to this deponent's best knowledge, information and belief, is as follows : that the said personal property has not been taken for any tax, fine or assessment, pursuant to statute, or seized by virtue of an execution or attachment against the property of the plaintiff and that the actual value of said personal property of the plaintiff Sworn before me, this ) day of 18 . \ Proceedings in Justices' Courts. 31 Form of Indorsement on the Affidavit by the Justice. Town of County of To any Constable of the county of You are hei*eby required to take from the defendant the property mentioned in the within affidavit, and keep the same to be disposed of according to law. Dated, 18 Justice of the Peace. [ \ 4.] On receipt of such affidavit, and an undertaking in writing, executed by one or more sufficient sureties, to be approved by the justice of the peace before whom such action is commenced, to the effect that they are bound in double the value of such property, as stated in said affidavit, for the prosecution of said action, and for the return of said property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against said plaintiff, the justice shall indorse upon said affidavit a direction to any constable of the county in which said justice shall reside, requiring said constable to take the property described therein from the defendant, and keep the same to be disposed of according to laV ; and the said justice shall, at the same time, issue a summons directed to the defendant, and requiring him to appear before said justice at a time and place to be therein specified, and not more than twelve days from the date thereof, to answer the complaint of said plaintiff; and the said summons shall contain a notice to the defendant that, in case he shall fail to appear at the time and place therein mentioned, the plaintiff will have judgment for the posses- sion of the property described in said affidavit, with the costs and disbursements of said action. Summons, Affidavit and Notice. Town of ? ss County, ) To You are hereby summoned and required to appear be- 32 Proceedings in Justices' Courts. fore me, the undersigned Justice of the Peace, at my office, in the said town, on the day of 187 , at o'clock in the noon, to answer the complaint of . plaintiff ; and if you- fail to appear at the time and place above mentioned, the plaintiff will have judgment for the possession of the property described in the affidavit, a copy of which is herewith served upon you, with the costs and disbursements of this action. Witness my hand the day of 187 . Justice of the Peace. Form of Undertaking, tfic. In Justices' Court, before , Justice. J. D. against E. V. Whereas, the above named plaintiff has commenced an action against the above named defendant, for the recovery of certain personal property, mentioned and described in the affidavit of (as case may be) made for such purpose. Now, therefore, we, A. B., of the town of , county of , and C. D., of the same place, do acknowledge ourselves bound in the sum of {double the value of the prop- erty) for the prosecution of the said action, for a return of the said property to the said defendant, if return thereof be adjudged ; and for the payment to the defendant of such sum as may for any cause be recovered against the plaintiff in this action. A. B. Utica, county of , January 1, 1871. D. C. Form of Acknowledgment Indorsed. County, ss : I hereby certify that on the day of Jan- uary, 1871, before me came A. B. and D. C, to me person ally known to be the persons described in, and who executed the foregoing undertaking and severally acknowledge the execution thereof. Justice of the Peace. 1'koceedings in Justices' Courts. 33 Qualification of Surely Indorsed. County, ss : D. C, being duly sworn by me, deposeth and saith he is a freeholder, residing in , in said county, and is worth $ (double the amount in undertaking) over and above all debts and liabilities he owes or has incurred. D. C. Justice of the Peace. Sworn to before rao this day of January, 1871. Approval of Undertaking . I hereby approve of the within undertaking as sufficient. Dated January 1, 1871. Justice. [§ 5. J The constable to* whom said affidavit, indorsement and summons shall be delivered shall forthwith take the property described iu said affidavit, if he can find the same, and shall keep the same in his custody. He shall thereupon, without delay, serve upon said defendant a copy of such affidavit, notice and summons, by delivering the same to him personally, if he can be found in said county ; if not ■found, to the agent of the defendant in whose possession said property shall be found ; if neither can be found, by leaving such copies at the last or usual place of abode of the defend- ant, with some person of suitable age and discretion. And shall forthwith make a return of his proceedings thereon, and the manner of serving the same, to the justice who is- sued the said summons. ["} 6.J The defendant may, at any time after such service, and at least two days before the return day of said summons, serve upon plaintiff, or upon the constable who made such service, a notice in writing that he excepts to the sureties in said bond or undertaking ; and if he^ail to do so, all objec- tion thereto shall be waived. Form of Exception to the Sureties. In Justices' Court, before Justice. A. B. against D. C. B 34 Proceedings in Justices' Courts. Take notice that the defendant herein excepts to the surety of the plaintiff in the above mentioned action. Yours, D. C, Defendant. To A. B., Plaintiff. Dated, January 4, 1871. It will be observed, the foregoing exception, if served, must be served at least two days before the return day of the summons. If such notice be served, the sureties shall justify, or the plaintiff give new sureties, on the return day of said summons, who shall then appear and justify, or said justice shall order said property delivered to defendant, and shall also render judgment for defendant's costs and disburse- ments. [§ 7.] At any time before the return day of said summons the said defendant may, if he has not excepted to plaintiff's sureties, require the return of said property to him, upon giving to the plaintiff, and filing same with the justice, a written undertaking, with one or more sureties, who shall justify before said justice on the return day of said summons, to the effect that they are bound in double the value of said property, as stated in plaintiff's affidavit, for the delivery thereof to said plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against said defendant ; and if such return be not required before the return day of said summons, the property shall be delivered to said plaintiff. Ix Justices' Court, before , Justice. A. B. against D. C. Whereas, the above named defendant has required {or is about to require) the return to him of the personal property taken by G. H., one of the constables of said county of to-wit, (here state the property), being certain personal property mentioned and described in the affidavit of made in this action. PUOCEEDIXGS IN JUSTICES' COUKTS. 35 Now, therefore, uc, , of the town of , in the county of , and , of the same place, do acknowledge ourselves bound in the sum of {double the value) for the delivery of the said property. to the plaintiff, if deliv- ery thereof be adjudged, and for the payment to the plain- tiff of such sum as may for any cause be recovered against the defendant in this action. C. D. G. II. Dated Utica, January 6, 1871. [<$ 8.J The qualification of sureties, and their justification" under this act, shall be the same as provided in sections one hundred and ninety-four and one hundred and ninety-five of the Code, in respect to bail on arrest in the supreme court. The following are sections 194 and 195 referred to in the above section : § 194. [1C9.] (Am"d, 1849.) Qualifications of bail. The qualifications of bail must be as follows : 1. Each of them must be a resident and householder or freeholder, within the State. 2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execu- tion, but the judge, or a justice of the peace, on justification, may allow more than two bail to justify severally in amounts less than that expressed in the order, if the whole justifica- tion be equivalent to that of two sufficient bail. \ 195 [170.] (Am'd, 1849.) Justification and allowance of bail. For the purpose of justification, each of the bail shall at- tend before the judge, or a justice of the peace, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or justice of the peace, in his discretion may think proper. The examination shall be re- duced to writing and subscribed by the bail, if required by the plaintiff. \\ 9.] Sections two hundred and fourteen, two hundred and fifteen and two hundred and sixteen of the Code shall 3>n Con. 2 ; 1 Toml. L. Die. Tit. Agreement 2. C to fcitoCEfeDtrtds in Justices' Court's. Executory, as if he agree to deliver the wagon at some future day, in that case the right only, vests in me, not in possession, but in action only. A contract executed conveys a chose in possession ; a contract executory conveys only a chose in action. 1 As we have seen, the slightest consideration will support an assumpsit, and the least benefit to the defendant, or loss to the plaintiff is sufficient within this rule, as if I promise something in consideration of the discharge of a demand, the delivery of an instrument or other security, in procuring the enjoyment of a house, the procuring a note from the de- fendant to the plaintiff, in consideration that you will deliver me goods, upon which you have a lien, in some manner, or that you will assign to me an uncertain debt, &c, or that you will enter into A.'s land, which I claim, I will indem- nify you, that you will do some act for the benefit of A., I will pay you a certain sum of money. 3 One promise is a good consideration for another, as in cases of mutual promises to marry ; aud the promise of an infant to marry is a good consideration for a corresponding promise on the part of an adult, and although infancy is a defence to an action for a breach of promise of marriage, yet au infant plaintiff may maintain the action ; so when in consideration of your promise to deliver me a cow, I promise to pay you twenty dollars, your mere promise is a good con- sideration for mine, though you have not performed ; but such promises must be mutual, and made at the same time, and I cannot maintain an action without -showing perform- ance, or what is equivalent to performance, on my part. 3 There are many instances given, where a moral obligation has been held a good consideration for a promise. In pur- suance of this rule, it has been determined, that where a note is given to A. for my benefit, which you purchase of A. and I afterwards promise to pay it to you, this binds me on the ground of my prior equitable obligation, and though, if one command or request another to commit a trespass, or 1 Id. * 2 Wend 588; 2 Hill 606 i 1 Com. on Con. 13, 14, 15 ; 2 Jolm. Cases 52 ; 1 Caines 45. 87 Cow. 22 ; 1 Caines 583; 12 John. 190; 2 Kent's Com. 464, 3d ed. l'uocJiliDlJfds in Justices' Courts. 51 other wrong, which is done, the law will not imply a prom- ise of indemnity, yet an express promise to indemnify, cither before or after, will bind. 1 And a promise founded on a moral obligation, in order to be binding, must be express, and not implied. So, where a plaintiff claimed a sum of money of the defendant, who de- nied it, but promised that if the plaintiff would swear to the correctness of the claim, he wonld pay it, and the plaintiff made affidavit accordingly, it was held that the making the proof or affidavit was a sufficient consideration for the. pro- mise, and that, in an action to recover the amount sworn to, the defendant would not be permitted to prove that the plaintiff had sworn falsely, or 'that he was mistaken. 2 If one person made a promise to another for the benefit of a third person, that third person may maintain an action upon it. 3 The delivery to a person of property levied upon by a sheriff or constable, or leaving it under his control, is a suf- ficient consideration for a promise to deliver it to the sheriff or constable. 3 The owner of goods may maintain assumpsit against one who has taken them away wrongfully, and the defendant cannot set up that he took them wrongfully, as the plaintiff has the right to recover against him as for goods sold and delivered, waiving the tort, and so a promise to pay will be implied from an agreement of the parties to abide by the decision of individuals named between them, to appraise the value of certain work and services done and performed by one party for the other.* On a contract to pay money by installments, or do any other act at different times, an action lies for each and every default, though the contract be a single and entire one. 5 "Where there was an entire contract by which plaintiff 1 14 John. 468; 2 Caines50; 8 Page 398 ; 1 Camp. 345. 2 6 John. 283; 2 Kent's Com. 465; 18 John. 337. 1 Cow. Tr. 3d ed. p. 83; id Denio403; 5 Cow. 195. i 2 Wend. 667; 1 Cow. Tr. 84. 62R.S. 158, § 3; Code § 53. 52 Proceedings in Justices' Cotjkts. agreed to furnish oil cloths and carpets, and to carpet de- fendants house, and he did a part of it in an unskillful and unworkmanlike manner, the defendant is at liberty to avoid the contract and return the goods. In such case, where the goods have been returned by the defendant, the plaintiff cannot recover on the contract. 1 The measure of damages against a party who has employed another to do certain mechanical work, at a price agreed upon, and who has countermanded his directions, and for- bidden the further execution of the work, after it had been commenced, is not the whole amount agreed to be paid, but a just recompense for such injury as the party employed has sustained on account of the breach of the agreement.' 2 The party so employed has no right to proceed with the work after such countermand. 3 Where, in a contract for the erection of a building upon the land of another, performance is to precede payment, and is the condition thereof, the builder having substantially failed to perform on his part, can recover nothing for his labor and materials, notwithstanding the owner has chosen to occupy and enjoy the erection. Merc occupation of a building in such case is not a waiver of strict performance. 4 A. agrees to sell to B. certain lands, and convey the same to him on a day named, within ten months, and B. pays down the purchase money. A. also agrees that at the ex- piration of a year, if B. shall desire it, and give thirty days' notice, he will pay back the money with interest. This agreement, being signed by both parties, it seems, is not void for want of mutuality or consideration, although it con- tains no express engagement on the part of B. to do any- thing. 5 The purchase of the same and the payment to B. of the money, constitute a sufficient consideration to sustain the engagement. 1 Hnstod vs. Craig, 36 N. Y.221; Baker vs. Iliggins, 21 N. Y.397; Smith vs. Brady, 17 N. Y. 173. 2 Clark vs. Marsiglia, 1 Donio R. 317. 8 Id. * Smith vs. Brady, 17 N. Y. 173; 5 Seidell, 93; 14 Barb. 171. 5 Eno vs. 'Woodworth, 4 Comstock. 209. Pkoceedixgs in Justices' Courts. 53 Where the parties deviate from the terms of a special contract to perform work and labor, in an action for the work done, the contract price will, so far as applicable, be the rule of damages. 1 But where the contract is terminated by the employer against the will of the contractor, the latter is not confined to the contract price of the work done, but may bring his action for a breach of the agreement, and recover, as damages, the profits he would have made, if allowed to complete the work ; or he may waive the contract, and bring his action for work and labor generally, and recover what the work done is actually worth. But where the con- tractor elects to consider the contract as rescinded, and brings his action for work and labor generally, he cannot recover for the profits upon the unexecuted part of the work. In such a case, the rule of damages is the actual value of what has been done under the contract. Where, by the terms of a contract for work and labor, the full price is not to be paid until the work is completed, and a complete performance becomes impossible, by the act of the law, the contractor may recover for the work actually done, at the full price agreed on. 3 Where a party agrees to work for another for a month, and if the parties are suited with each other, that he will work during the season, or six or seven months, he is bound to determine and make his election at the end of the month, whether to quit or stay through the season. If he continues to work after the expiration of the month, this is presumptive evidence that he has determined to stay through the season, and he cannot afterwards leave the employers service before the end of the season, except for a cause that would be a justification for abandoning or rescinding the contract. In an action for the breach of a contract, for work and labor to be done upon a farm, evidence of damage occurring to the plaintiff's crops in consequence of the defendant's leaving his service, is inadmissible. The legal measure of damages in such cases, is the difference between the wages agreed to 1 Clark vs. The Mayor of New York, 4 Com. 338. 2 Jones vs. Judd, 4 Comstock, 411. Gardiner J. 54 Proceedings in Justices' Courts. be paid -to the defendant and the price the plaintiff was obliged to pay for labor to supply his place. 1 Where one contracts to serve another for a specific time, he may leave his employer before the expiration of the time agreed upon, if sufficient cause exists to justify such leaving, and he will bo permitted to recover for the time he actually served, and in some cases, beyond that. Where there is a provision in the contract, that the employee may leave in case of a disagreement, the fact of a bona fide disagreement is all that is necessary to entitle either party to put an end to the contract. Where one contracts with an infant to pay him for personal services, he is not at liberty, after the ser- vices have been rendered, to refuse to pay him, because at the time of contracting he was an infant without a guardian. Where the plaintiff undertakes to perform certain work upon the house of the defendant, at a price stipulated to be paid, and the building is destroyed by fire before the work is completed, the plaintiff will be entitled to recover for the work performed up to the time of the fire. 2 In such contract, by the destruction of the house without the fault of the plaintiff, the defendant is put in default upon the principle that he was bound to finish the house to enable the plaintiff to complete his contract. • Where the owner of property retains possession and con- tracts for the performance of work upon it, there is an im- plied obligation for him to have it on hand and in readiucss for the labor to be performed. 3 Where the defendant, when called upon to fulfill his con- tract with the party with whom it was made, refuses to ful- fill it, and declares that he will not, and does not intend to fulfill on his part, the other party is thereby excused from a tender of performance on his part. His right of action is assignable, and his assignee may recover the damages con- sequent upon such breach. A verbal agreement to purchase merchandise exceeding fifty dollars in value, and further, that an existing debt of 1 Peters va. Whitney, 23 Barb. il. 2 Niblo vs. Binsse, 1 Kcyes, 476. S Soars vs. Conovur, 3 Keyes, 113, and cases cited. Proceedings in Justices' Courts. 55 the seller to tlio purchaser should be applied as a payment upon the price, does not take the transaction out of the statute of frauds. The agreement is wholly void, the verbal understanding that the debt should be applied in payment not being a payment at the time of making the contract, within the last clause of § 3, 2 E. S. 136. 1 But where the completion of a job is arrested by the act or omission of the party for whom the work is done, the con- tractor has an election to treat the contract as rescinded, and recover on the merits, the value of his labor, or he may sue upon the agreement, and recover for the work completed, at the stipulated price, and for the loss in profits or otherwise sustained by the interruption. 2 Hindrances by one party to a contract whereby the other party is prevented from completing ,his part of the contract by the time stipulated, afford a legal excuse for non-per- formance within such period. 3 An objection to the offering of any excuse by the plain- tiff for not performing his part of the contract within the time stipulated, is properly overruled. "Where the work to be performed by the plaintiff could not be performed until other work was done by the defendant or his employees, the failure to have such preliminary work completed in season to enable the plaintiff to complete his within the time limited by the contract, is a sufficient reason or excuse for the plaintiff for not completing the work within the time pre- scribed. All agreements by which one person engages to pay another for his aid or influence in procuring an appointment to office, it seems, are illegal and void, and every new agreement entered into for the purpose of carrying into effect any of the unexecuted provisions of a previous illegal contract, is void. 4 A contract, the consideration of which is that one of the parties thereto would give all the aid in his power, spend 1 Mattice vs. Allen, 3 Kpyes, 492. 2 Id; 7 Hill, 71, 73; 2 Wend. 34b; 22 Pickering, 384; 1 Comstock, 321. S Stewart & Howell vs. Ketellas, 36 N. Y. 388, and cases cited. * Gray vs. Hook, 4 Comstock, 449; this ease in 6 Barbour, 398, reversed. 56 Proceedings in Justices' Courts. such reasonable time as may bo necessary, and generally use his utmost influence and exertions to procure the passage into a law of a bill introduced into the legislature, is void as against public policy, and will not be enforced. Such contracts tend to subject the legislature to secret, improper and corrupt influences. 1 The defendant, who owned a flouring and custom mill, contracted to "take" the wheat of the plaintiffs which was to be of good mercantile quality, and to give them ono barrel of superfine flour at his mill, for every four 36-G0ths bushels. He was to pack the flour in first-rate barrels, and warrant it to pass inspection, one-half the flour to be deliv- ered on a given day, and the other half on a given day later, or as much sooner as he could make it. 2 Held, that the contract imported a sale of the wheat and not a bailment, and therefore, further held, that the acci- dental destruction of the mill and the wheat after it was received into the mill, did not excuse the defendant from delivering the flour. Two- principles reiterated as well settled, first, that in a contract between A. and B., wherein B. agrees to pay money to C, the latter may maintain an action against B. to recover the money. Secondly, that where land is conveyed, subject to a mortgage, without express agreement to pay, no action involving personal liability can be maintained by the mort- gagee against the buyer. 3 Every description of contract is vitiated by fraud or deceit of one of the parties, and contracts so vitiated may be avoided by the party imposed upon. The basis of all dealings is good faith, and each party contracting has a right to insist that the other shall neither state to him any falsehood in relation to the subject matter of it, nor conceal any secret defect, with a view to obtain an advantage. Thus, if one in making a sale to another, conceal a secret defect in the article from the purchaser, he may, if ho discover it 1 Mills vs. Mills, 40 N. T. 643; 36 N. T. 235. 2 Norton vs. Woodrnir, 2 Conixtuck. 1 •"»'<$, Gardiner J. 3 Durgeldein vs. 3d A v. I;. It., 37 N. Y. 575, Hunt, Ch. J. : Belmont vs Conn.'in, 22 N. Y. 4-.S. Proceedings in Justices' Courts. 57 before the delivery, refuse to cany the contract into efl'ect, and if afterwards, may return the article, regard the sale void, and recover the price paid in an action against the vendor. 1 It will make no difference if the party deceived was led by the deceit to agree to run his own risk as to the quality of the article, or other subject of the contract ; the fraud or deceit practiced will avoid it." If the fraud or deceit were committed by the agent of the contracting party, the latter will be bound by it in the same manner as if he committed it himself. Thus, where an agent to sell a picture, knowingly suffered the purchaser to be deceived in relation to a fact which would have in- fluenced his opinion of its value, as whether it was made by a particular artist, the contract was held void. 3 The concealment of any fact which the contractor is in good faith bound to communicate, is of itself a fraud. So is any misrepresentation by which a party is misled, and this may be by acts or signs, or even by silence as well as by word. And where a material misrepresentation is made, although inadvertently, or through mistake or ignorance, it is considered a constructive fraud, because its effect was to deceive.' The misrepresentation, however, must be in regard to a material fact operating as an inducement to the con- tract, and if it is the concealment of a fact, one which it was the duty of the party in good faith to disclose. 5 "Within the principle of the rule laid down in the last paragraph, a vendor, in negotiating a sale of property, must not conceal any secret defect in it, nor employ any artifice to disguise it. lie is not, however, bound to enumerate all the defects of the article to be sold. The vendor must rely upon his own judgment, and purchase at his own risk, and if he is negligent in making the purchase, it should not therefore be avoided. The law simply protects him against unfairness and fraud, and will only relieve him 1 23 Wend. 350; 2 Hill, 288. 2 6 John. 110; 12 Id. 400. 3 4 Term 39; 1 Id. 12; 1 Stark. 434. 13 Bl. Com. 106; 1 Story Eq. 202; 9 Vescy, 21; 2 Bro. C. C. 389; 6 Bing. 396. 5 Story on Contracts, §§ 171, 172, 173. 58 Proceedings in Justices' Courts. from the contract when he was deceived and actually mis- led. ' If he, at the time, knew the statements or representa- tions made to him to be false, he could not have been misled by them, and the contract would be valid, notwithstanding their falsity. 1 Where one purchased goods on credit, obtained by fraudu- lent representations, the vendor may reclaim his goods from the vendee or any one to whom he has transferred them, except a purchaser in good faith and for value, 2 or he may recover their value in an action brought immediately and without regard to the credit agreed to be given. 3 If, how- ever, he have received from the fraudulent purchaser, a note, he must first offer to return it, or assign any judgment he had obtained thereon. 4 The expression sometimes used in the books that when a sale is procured by fraud and misrepresentation, no title passes to the vendee, must be taken with due qualification. The sale is not absolutely void, but only voidable at the option of the vendor. There can be no doubt of the soundness of the principle, lhat the vendee himself acquires no property in, or title to the goods, and cannot retain them against the vendor, if he (the vendee) obtained them by fraud, practiced on the ven- dor, under color of a purchase, whether on credit or otherwise. It is not competent to the person guilty of the fraud on the other party to the agreement to avoid the contract on this ground. The election is left solely to the party de- frauded. The election on the part of the defrauded party to rescind the contract, must be exercised as soon as the fraud is discovered. And if, after the fraud practiced on him has come to his knowledge, he deals with the subject matter of the contract, he cannot repudiate the contract, although he subsequently discover further circumstances connected with the same fraud. 1 Story on Contracts, §§ 172 to' 177. 2 23 John. 235; 20 Wend. 167, 267; 13 Id. 570; 1 Hill, 311; 3 Barb. Ch. 451. 3 6 John. ftO. l 2 Denio, 136. Proceedings ix Justices' Courts. 59 In order to establish fraud in the purchase of goods, it is not necessary that the purchaser should have made false statements concerning his pecuniary ability, by which the credit was obtained. The fraud consists in the purchase with intent not to pay, and this intent may be proved by facts and circumstances, as well as by the affirmative declara- tions of the purchaser, as to his pecuniary condition. 1 When a sale is procured by fraud, no title passes to the vendee. The vendor still retains the legal right to the goods, unless, after discovering the fraud, he assents to, and ratifies the act of sale positively, or by such delay in re- claiming the goods as would authorize a jury to infer assent. (Ash v. Putnam, 1 Hill, 302.) A sale, therefore, under circumstances of fraud, is not absolutely void. The party defrauded may or may not avoid the sale at his option. If he designs to rescind the contract, he must do whatever may be necessary to restore the parties to the condition in which they were at the time of the sale, in respect to the thing soid and the consideration paid. If he has received anything under the contract, ho must restore, or offer to restore it, for he cannot rescind in part, and affirm as to the residue. ( Voorhees and others v. Earl & Kellogg, 2 Hill, 288.) The party who would disaffirm a fraudulent contract must return whatever he has received upon it. This is on a plain and just principle. He cannot hold on to such part of the con- tract as may be desirable on his part, and avoid the residue, but must rescind in toto, if at all. (Masson v. Bovet, 1 Dcnio, 74.) Thus, in Baker v. Bobbins, (2 Denio, 138,) it was held that if the plaintiff had been defrauded in regard to the notes, ho had an undoubted right to avoid his agree- ment to receive them in part payment. But in order to do this, he was bound to return, or offer to return, what he had received on the contract ; and until this was done, the agree- ment upon which the notes were transferred remained in full force. At the trial, the plaintiff produced and offered to cancel the notes; but this came far short of such rescision of the contract as entitled it to a restoration of the property. 2 1 Johnson vs. Morrell, 2 Keyes. 055, and cases cited. [Id. 652. 2 3 Kernan, S22j 13 Barb. S. C. R. 401; 20 Id. 253, 403; 21 Id. 585; 22 60 Pkoceedixgs in Justices' Courts. Every contracting party has an absolute right to rely on the express statement of an existing fact, the truth of which is known to the opposite party and unknown to him as the basis of a mutual engagement, and he is under no obligation to investigate and verify statements to the truth oL which the other party to the contract, with full means of knowledge, has deliberately pledged his faith. 1 The endowment of a literary institution is not a sufficient consideration to uphold a subscription to a fund designed for that object. And although there is annexed to the sub- scription a condition that the subscribers are not to be bound unless a given amount shall be raised, no request can be im- plied therefrom against the subscribers, that the institution shall perform the services and incur the expenses necessary to fill up the subscription accordingly, where the defendant subscribed eight hundred dollars to a fund for the payment of the salaries of the officers of Hamilton College, and a condition was annexed that the subscribers were not to be bound unless the aggregate amount of subscriptions and conditions should be fifty thousand dollars.' Held, that there was no consideration for the undertak- ing, and that no action would lie upon it, although there was evidence tending to show that the whole amount had been subscribed or contributed according to the terms of the condition. It is not necessary that a consideration should exist at the time a promise is made. Thus, if one party promise another to pay him a certain sum of money if he will do a particular act, and the latter docs the act before the revocation of the promise, the promise thereupon becomes binding, although the promisee does not at the time engage to do the act. In such a case the doing the act is a good consideration for the previous promise, and the promise amounts to a request to do the act.' 3 A memorandum acknowledging the receipt of a specified 1 Mead v. Bunn, 32 N. Y. 275, Porter J. 2 Trustees of Hamilton College vs. Stewart, 1 Comstock, 581, Gardiner J 3 9 Barbour, 202, and cases cited, Paige J.; 20 John. 89: 7 John 122- 6 Pickering. 42i . ' Proceedings in Justices' Courts. CI number of barrels of apples " in store," to be forwarded to New York, at so much per barrel, is a contract betweeu the parties, and the general rule is therefore applicable that parol evidence cannot be received to add to, or vary its terms; all oral stipulations between the parties preceding or accompanying the executioii of such an agreement, are to be regarded as merged in it, and the receipt is to be treated as the exclusive medium of ascertaining the agreement entered into by the parties. There, a distinction exists be- tween a mere receipt acknowledging money paid, and a receipt containing an agreement, condition or stipulation between the parties. The latter is in the nature of a con- tract, and cannot be varied by parol evidence. 1 A parol lease of lands for the term of one year, to com- mence at a period subsequent to the day when the contract is made, is valid under our statutes. The provisions of the second section of the title of the Revised Statutes, in reference to fraudulent conveyances and contracts, in relation to goods and chattels and things in action, have no application to contracts concerning lands, or any interest therein.' 2 * As a general rule the store of the merchant, the shop of the mechanic or manufacturer, and the farm or granary of the farmer, at which commodities sold are deposited or kept is the place of delivery, when the contract is silent as to the place. But this rule ceases to be applicable when the collateral circumstances indicate a different place. 3 Where an action against a party for a forfeiture of a con- tract executed in duplicate, the copies produced by the re- spective parties, vary in their phraseology, the Court will follow the copy which is in the defendant's hands and by which he was governed in making his payments, 2 I^eoceedings In Justices' CoURtS. in that case, the one promise is a good consideration for the other. 1 Where several persons subscrihe to raise money for an object in which all feel an interest, the mutual promises of the subscribers form a valid consideration for the promise of each. But the agreement of a single person, to make a donation to a public institution without any undertaking on the part of the donor to do anything, is without consid- eration and void. All contracts, therefore, to be valid, must be founded upon some legal consideration, must be such as will bind both contracting parties. If, therefore, the contract grows immediately out of, or is connected with, an illegal or im- moral act, a court of justice will not enforce it. 2 Where a contract is entered into for fraudulent or illegal purposes, the law refuses its aid to enable either party to disturb such parts of it as have beeu executed or carried into effect, and as to such parts as remain executory it will not compel the contractor to perform his engagements or pay damages for non-performance ; thus, in both cases, leaving the parties where it finds them, accordingly it was held that a plaintiff chargeable with notice, was not entitled to recover in an action on a promissory note given in part consideration of a fraudulent conveyance of land. 3 Money having been placed in the hands of an individual as a mere depositary for the use of another, maybe recovered by the latter, whether it was paid to the depositary on a legal or an illegal contract. The liability of the depositary arises upon the receipt of the money, and is entirely separate from and independent of any illegal contract. 4 Matters of Account. Matters of account arc such demands as arise in the various dealings among. men, and where, from the nature of the transaction, the law will imply an undertaking on the 1 2Denio,416, 417. 2 2 Kent, 405; Nellia vs. Clark, 20 Wend 24. 3 20 Wend. 24, and many cases cited. 4 Woodworth vs. Bennett, 53 Barb. 301. I'ROCEEDiNtiS tN JuSTtCEs' COURTS. 63 part of the person indebted, to pay such a sum as is justly found due, according to the evidence introduced upon the trial. These demands arise in a variety of cases, among which are the following : For goods sold and delivered. — If goods are sold and de- livered to a person, although no specific amount be agreed upon, the law will imply an obligation on his part to pay what they are reasonably worth, and where goods are sold and delivered under and by virtue of a special agreement, which agreement has been fully performed, the plaintiff may nevertheless recover under the general count for goods sold and delivered, nothing remaining to be done but the pay- ment of the money. 1 Where a defendant, by fraud, induced the plaintiff to sell goods to a third person, who was insolvent, and then got the goods into his possession, it was held he was liable upon the common count for goods sold and delivered. 1 Where one has unlawfully taken possession of another's property, the tort may be waived and an action brought for its value as for goods sold, and such a cause of action is assignable. 3 It may be brought whenever any personal property has been sold, either at a price agreed upon or left to be implied by the law at what it is reasonably worth. The action may be where the defendant has received the goods by an actual delivery or its equivalent, or where he has simply contracted to purchase and refused to take and pay for them. In either case, the plaintiff may recover the value of the goods sold, and in the latter case, he may retain them in his possession as a pledge until he obtains satisfaction of his judgment, either by sale of them upon his execution against the pur- chaser, or in some other manner. 3 Where the goods were sold and delivered to the defend- ant, the fact should, with the bargain of sale, be alleged in the complaint. If, however, the defendant has refused to receive and pay for the goods, and they have not been de- livered, the contract of sale should be stated, and the fact 1 11 Wend. 477; 12 East. 1 ; 4 Cow. 564. 2 Hawk vs. Thorn, 54 Bavb. 161. 3 1 Chitty PI. 379, 380. 64 Proceedings in Justices' Courts. that the plaintiff had offered to deliver, and the defendant had refused to receive and pay for them. 1 An action may be brought as well by the purchaser as by the vendor, if the latter fail to comply with his contract of sale by delivering the goods. In this case the purchaser is entitled to recover from the vendor the difference between the contract price and that which similar goods were worth on the day when they were to have been delivered. It will not change the rule of damages if it appear that the pur- chaser had agreed to sell them at a price above the market, and lost the opportunity of making a profit thereby. 2 For Work and Labor. — If one person perform services for another, at the request of the latter, an action will lie to recover the compensation agreed upon; or if there be no specific agreement as to the compensation, the reasonable worth of the services may be recovered, and the plaintiff will be permitted to show on the trial — 1st, that he performed the services; and 2d, what those services were worth. A request to perform the services must bo either expressly proved, or reasonably implied from the situation of the parties, or the circumstances of the case. 3 Where labor and services are performed for a person with his knowledge and assent, there would be a strong presump- tion that they were performed at his request ; the Court or Jury are the proper judges, from all the facts and circum- stances introduced, whether they were performed at his request either express or implied. If a laborer hire himself to work a stated length of time, and, without the consent of his employer, leave his service before the expiration of the time agreed upon, he cannot recover for the labor performed under the agreement. 4 If, however, his employer discharge him without good cause, or abuse him in such a manner as renders it unsafe or improper to live with him longer, he is permitted to recover for his services, under the general count for labor and ser- vices done and performed, or he may recover damages for the breach of the agreement on the part of the employer, lllJohn.178. 2 24 Wend. 322. 3 10 John. 249; 12 John. 352. * 12 John. 105; 8 Cow. 03. I'llOCEEDINGS IN JUSTICES' COURTS. G5 tlic law liiiving bound him on his part — 1st, to give the laborer employ during the time he so hired to him, and 2d, to iiso him in a proper and becoming manner during that time. If, however, there be a special agreement to do a piece of work, and the work be completed, but not according to such agreement, the party may nevertheless recover for labor and services rendered. And in all cases where delay is caused by the willful acts or omissions of the party for whom the work is done, with intent to embarrass the performance of the contract by the other party, who, notwithstanding, proceeds and bestows his time and labor in attempting to complete it, until in despair he finally abandons the work, the rule that the spe- cial contract must control the rate of compensation no longer prevails, and the party is entitled to the actual value of his services. 1 If a builder contract to build a house of specified dimen- sions and with specified materials, and deviate from the specification, he cannot recover; but where one not a builder iinishes work differently from the specification and the em- ployer accepts it, ho may recover the contract price, deduct- ing such a sum as it would require to complete it apcording to the specification. The reason of this distinction is, that in the latter case the work is accepted by the employer, while in the former it is not, although from necessity the house remains on his land, and he derives some benefit from it. But as he agreed for a particular kind of building, it would be manifestly wrong to compel him to pay for a dif- ferent one merely because it occupies his land. In the case of an article other than a building, he need not accept it ; but if he chooses to receive it, reason and justice require that he should pay for it. In the case of a building, he is com- pelled against his will to take what he did not contract for and does not want, and it is equally just that he should not be compelled to pay for it. Where one has ordered a carriage or other chattel to be 1 16 Wend. 586 ; 4 Cow. 564. 66 Proceedings in Justices' Courts. made for him by a mechanic, aiid it is made pursuant to the order, and on being tendered to him, he refuses to ac- cept and pay for it, it may be left in charge of a third per- son with notice to the customer, and an action maintained for the price or it may be sold for the best price it will bring, and an action be brought for the loss upon the sale. 1 Where the owner of a lot employed a mason to work for him on a building at stipulated prices, and after a portion of the work was done, upon the owner neglecting to furnish the necessary materials, the mason quit the job, it was held that he could only recover for the labor performed after the contract price, in the absence of proof of circumstances to show greater damages ; but that if by the neglect of the owner to furnish the materials, the contractor was compelled to do his work at a less favorable season, or at an increased expense, such additional expense ought to be taken into consideration and added to the contract price. 2 Where one contracts to do certain work by a given time, but not to do a portion of it until directed by his employer, the employer cannot suspend the work so long as to pre- vent its completion within the time agreed upon. If he docs, and then directs the work to be performed, the con- tractor is not limited by the contract price, but can recover upon the implied agreement to pay what the work so per- formed is worth. 3 So, if there be a special agreement, whether sealed, in writing or oral, to do a piece of work, and it be done with the assent of the employer although not pursuant to it, either in point of time or other respects, the contractor can recover what the work was reasonably worth. The employer, by permitting the contractor td proceed and finish it after the time limited has expired, waives all right to object on that ground, and the law im- plies a promise on his part to pay for it. 4 And if an em- ployer accepts work partly done he can thereafter claim a deduction only for the part not done. 5 Whore labor is performed under a special agreement 1 15 Wend 497. 2 7 Wend. 121. 3 4 Weud. 285. 4 ir j„] ui . 94. 4 Cow 2 85 G 25 Wend. '665. 1'ltOCKEDINGS IN JUSTICES' COURTS. 67 which remains in force, the action must be brought upon 1hat, and the recovery will be had pursuant to its provi- sions. 1 And in such cases the contract must be produced or accounted for.' 3 But if while the contractor is performing his special contract the employer gives a separate order to do more or different work upon it, the value of that is not to bo measured by the special contract, but there is an im- plied promise to pay what it is reasonably worth. 3 If the employer, after a portion of the work is completed, prevents the contractor from finishing it pursuant to the contract, the contractor will recover his damages for the violation of the contract by the employer, and not the simple value of the services already rendered. 4 "Where a contractor puts into an article better materials than he is required by his contract, he cannot on that ac- count recover more than the stipulated price, nor after delivery of the article, require it to be returned beeause the buyer will not pay an increased price for it. 5 So, where work is undertaken at a given price, the employer is not liable to pay a greater sum by consenting to alterations from the original plan, unless he is either expressly informed or must necessarily, from the nature of the work, be aware that the alteration will increase the expense. "Where A. repaired premises held by B. under a lease containing a covenant to repair, on a parol promise by B. to assign the lease to A., upon his refusing to assign to A., an implied promise to pay A. for the repairs was held. 8 So, where A. by a fraudulent representation of being the owner of land induces B. to bestow labor upon it in the expecta- tion of enjoying the property as joint owner, B. may, upon discovering the fraud, abandon the contract upon which his labor was performed, and recover for its value on an im- plied promise to pay for it. And in such a case it is no objection that the contract was for an interest in lands and void by the statute of frauds for not being in writing. 7 1 12 John. 274; 13 id. 94. 2 24 "Wend. 60; 1 Sand. 206. 3 1 Mood & Malk. 413. * 4 Cranch. 564. 6 3 Car. & Payne, 453. ° Ey & Mood. 420. 1 16 Wend. 25. 68 Proceedings in Justices' Courts. But where I contract with you to sell me land, and 1 enter upon it and improve it, and you refuse to convey, whereby the contract is rescinded, I cannot recover for my labor expended upon that land. 1 Nor can I, if I enter upon another's land without his consent or color of right, and clear and improve it. Hence, as there is neither a legal or moral obligation to pay me for my labor, a promise subse- quently made to pay for it, would be without consideration and void. 2 An action may be maintained for professional services per- formed at the defendant's request, by an attorney or coun- sellor at law, 3 a clergyman, 4 a physician or surgeon whether he be licensed or not. Formerly the fees of attorneys were regulated by statute, but the measure of their compen- sation is now left to the agreement express or implied be- tween them and their clients. 11 It was also, prior to 1844, provided that none but a licensed physician could collect payment for his services. It is to be observed that where there is an entire con- tract for work and labor and materials, the value of the latter is not recoverable under a count for goods sold, nor can the count for work and labor and materials be main- tained, unless the article agreed for has been furnished, and appropriated to the defendant by his consent, and he has acquired a property in the chattel. To support this count, the plaintiff must in general have completely performed the work contracted for, and if not, it is necessary to declare specially if the defendant has wrong- fully prevented the plaintiff from performing the work. For Use and Occupation of Lands, Houses, Rooms or other Real Property. — The statute provides that a " land- lord may recover in an action on the case, a reasonable sat- isfaction for the use and occupation of any lands or tene- ments by any person under any agreement not made by deed, and if any parol demise or other agreement not being 15 John. 85. 2 5 John. 272. 3 26 Wend. 451. i 1 Sid. 409; 10 John. 244. 6 Laws 1844, ch. 275; 1 R. S., 4th Code, § 303. ed. 861, § 31. Proceedings in Justices' Courts. 69 by deed (i. c. under seal,) by Avhich a certain rent is reserved shall appear in evidence on the trial of any such action, the plaintiff' shall not on that account be debarred from a recov- ery, but may make use thereof as evidence of the amount of the damages to be recovered." 1 The action on the case is abrogated by the Code of Procedure, but all rights of action secured by the existing laws may be prosecuted by "civil action." 2 The action is founded upon contract, and unless there is a contract express or implied between the parties, it cannot be maintained. 3 There must be a lease, or evidence show- ing the relation of landlord and tenant, 4 and therefore when defendant enters on the premises under an agreement to purchase, the action will not lie. 5 But wherever the defend- ant occupies by permission of the plaintiff, whether there be any stipulation as to rent or not, the action lies to recover the reasonable compensation implied by law. And in such a case, the defendant will not be permitted to question the plaintiff's title. If the occupation was not by the landlord's permission, his remedy is not for the use, but for the wrong. 3 Where the defendant occupies under a lease or permis- sion from the landlord, although he may not be the imme- diate lessee, but may hold as his assignee or under-tenant, the law implies a contract from him to pay the landlord for the use and occupation of the premises. Thus, if A. agree to let lands to B., and B. permits C. to occupy them, A. may recover against C. for their use. The action lies where there is a sealed agreement to give a lease, and the defendant enters and occupies. Here the tenancy is not by the deed, for that is only executory and a parol demise is implied. It also lies where a tenant holds over his term, the law implying a renovation of the contract for another year. And as the tenancy in some cases will continue until after a 1 1 R. S. 748, § 26, [4th od. 155, « Code, § 468. § 20.] 3 1 Term , 378, 387 ; Chit, on Coat. 107 ; *7Har.&John. 251; 13 John. 480. 13 John. 240. 5 6 John. 46. 6 1 Esp. Dig. Gould's ed. 56 to C2; 13 John. 240. 70 Proceedings in Justices' Courts. notice by one of the parties to the other, a brief synopsis of the rules in relation to its termination is here given. When a lease is made providing for an annual rent, whether payably yearly or quarterly, but without limit to the period of holding, it is called a general letting, and the holding a tenancy from year to year. This tenancy exists also where a tenant either by the express or the implied permission of his landlord continues 1o occupy lands after the term for which they were leased has expired ; x and it may arise from a parol lease void by the statute of frauds, whore the tenant has entered under it. J In either of these cases, neither party can terminate the lease, but by giving notice of the intention to the other at least one month before the end of the current year ; ' and if no notice is given, the landlord cannot compel the tenant to quit ; and the tenant will be liable for the rent for the ensuing year, unless the landlord takes possession or lets it to another tenant. 4 Where an action is brought for the rent against a tenant holding over, he cannot defend himself on the ground that the landlord has no title. The tenancy from year to year is upon the terms of the old lease, so far as they are applicable to a yearly holding, unless there appears some agreement to the contrary. But where the old rent was merely a ground rent and the laud- lord is entitled to the buildings erected by the tenant, the annual value of both the land and the buildings is the meas- ure of damages. 5 Either party, however, may show an express agreement to vary the rent. 6 In the city of New York, agreements for the occupation of lands or tenements, which do not specify the duration of the occupation, are, by statute, deemed to be valid until the first of May next ensuing the possession, and the rent paya- ble upon the usual quarterly days, unless otherwise ex- pressed. 7 1 15 John. 505; 4 Cowen, 349; 14 2 Chit. on Cont. 257, 258; 3 Wend. 219. Wend. 327. 3 l R. s 745 §§ 7 to 9, [4th ed. vol. 2, 1 Chit, on Cont. 258; 13 John. 210, p. 153.] 297; 25 Wond. G(><) ; 1 Di-nin, 1 13; 2 ■"", Chit on Cont. 258; 15 John. 505. Id.8t. "2 Wond. 607. 7 1 R. S. 744, [4th ed. 152, §1.] Proceedings in Justices' Courts. 71 In an action for use and occupation, it is not necessary to prove an express contract with the tenant when he took possession, to take the premises, an express reservation of rent, nor that the tenant has paid rent. Where the holding by permission is established, the right to a reasonable rent is implied ; and if it appears that a certain rent was reserved, that will govern the recovery 1 And although there be a written agreement not under seal, upon which the premises were held, and the plaintiff in his complaint omits to men- tion it, and simply alleges that the defendant is indebted to him for the use and occupation of the premises, yet when the agreement is produced, the rent reserved in it will fix the measure of damages ; and the defendant is not at liberty to give evidence of the value of the use, to reduce the re- covery below the stipulated rent. 2 Where there was an agreement to lease a house for live years, by leases to be executed, and the defendant entered and subsequently refused to accept the lease, the Court held that the plaintiff might bring his action for the use and oc- cupation and not upon the agreement ; and that as it was not on that, the statute of frauds was no bar to it. It also held that the taking of the key of the house by the defend- ant, without a continued occupation, was sufficient to warrant a recovery. 3 The action is maintainable where the premises arc destroyed by fire after the letting before the rent accrues. 4 It will not he against a tenant holding over, where proceed- ings are instituted under the statute to evict him ; nor where the title is in dispute between the plaintiff and defendant, the Courts refusing in this manner to determine a question of title ; 5 nor for premiseslct for the purpose of prostitution; 1 ' nor where there has been no occupation by the defendant during the term for which the premises were leased. 7 What I have stated in relation to the law governing use 1 2 Gill & John. 32G. 2 7 w"ond. 109. 3 3 Wend. 219. * 4 Taunt. 45. 5 1 Wend. 134. « 2 Com. Cont. 510 to 525; 4 Kent's 7lDenio, 37. Com. 112, 113, 72 Proceedings in Justices' Courts. .and occupation, is sufficient to give the reader a synopsis of the rules which control this subject. For Money Paid by one Person for the Benefit of An- other.— To maintain an action for money paid, it must appear that money, or something equivalent, has been actu- ally advanced. But property received as money Avill sup- port this count for money paid. l It must also appear, that tlie plaintiff paid money for th« defendant, and that such payment was made at the defend- ant's request, express or implied. 2 It is clear, however, that if money be paid by a person in consequence of a legal liability to which he is subject, but from which a 'third person ought to have relieved him, by himself paying the amount, a request will be implied. 1 ' But if one, of his own accord, and without any legal obli- gation, pay money for another, no action will lie to recover it back. Thus, if an officer, without any request, pay an execution, or a collector a tax, the payment will create no right of action against the defendant or person taxed. 4 For Money Had and Received. — The form of this count is extremely simple and plain, merely stating that the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant, to and for the use of the plaintiff. It must in general appear that the defendant has received money ; positive proof need not, however be given, for if it may fairly be presumed from the facts proved, that the defendant has received the plaintiff's money, it will be suffi- cient. 5 When goods or other property, improperly received by the defendant, are saleable, it may, under the circum- stances and after a lapse of time, be presumed against him, that he has sold the property and received the money, pro- 1 8 John. 202 7 Cow. C62; 10 Woncl. ■» 10 John. 301 • 1 ( John. 87. 408. r > 7 John. 13-J; 11 John. 404; 10 Wend. 2 1 Chitty PI. 381 ; 5 Cow. 087. 430. 3 1 Chitty PI. 384. Proceedings in Justices' Courts. 73 vided there be reasonable evidence that the defendant has converted the same into money, biit not otherwise. 1 The principle is elementary that where one person receives money for another and the law makes it the duty of the person thus receiving it to pay it to the person for whom or for whose use it is thus received, a promise to pay it in accord- ance with the duty is always presumed, and a priority estab- lished as matter of law between the parties. It is unneces- sary to cite authorities' for so plain and well established principles. 2 An action for money had and received lies against a sheriff for money collected by him in favor of the person for whom the money was collected. This is well settled. 3 A Vhcre money has been collected and placed in the hands of town officers for the purpose of paying interest on bonds issued by the town pursuant to the provisions of a statute, and the statutes makes it the duty of such officers to apply the money in satisfaction of such interest, a bondholder may maintain an action against such officers to recover the interest due upon his bonds. 4 Under a complaint containing a count for an indebtedness from the defendant to the plaintiff for hay, corn and other property sold and delivered by the plaintiff to the defendant at his request and for money had and received, the plaintiff offered to prove a tortious taking, the sale of the jn'operty and the receipt of the money by the defendant and to waive the tort and go for the money had and received, or for the value of the hay and the corn as for goods sold and delivered. Held, that the plaintiff should have been allowed to prove the conversion of his hay and corn by the defend- ant, and the receipt of the money by the defendant to the plaintiff's use is the fact which constitutes the cause of action in such a case. 5 The action for money had and received is a liberal action in which the plaintiff waives all tort, trespass and damages, 1 1 Chitty PI. 3-18. 4 Mnrdock vs. Aikin, 29 Barb. 59 ; 6 2 Ross vs. Curtis. 30 Barb. 238, and Cow. 465. cases cited. 5 Ilarpending v . Shoemaker, 37 Barb 3 Shephevd vs. Unit, 7 Hill, 198 270; If, N. Y. 250. 74 Proceedings in Justices' Courts. and only claims the money the defendant has actually received. To have alleged the wrongful taking and conver- sion and claimed damages upon contract for the money would have been improper. 1 Money is received under an implied promise to pay it to the proper owner : 1. When received by an agent for his principal, an attor- ney for his client, a sheriff or constable on an execution, or a justice in the course of his business, all of whom, in some degree, are agents of the party for whom they receive it. 2. When paid under mistake, or through the deceit of the other party. As when two men are reckoning, if one through mistake overpays the other, the latter receives it to the use of him paying it ; and if one falsely tell me he has paid certain money, or performed certain work for me, and I pay him for it, the money so obtained from me by the deceit, is received by him to my use. In case of a mistake, it must be a mistake of fact. That is, there must some fact exist which is unknown'to the parties, with a knowledge of which the payment Avould not be made, or some fact be supposed to exist which induces the payment, which really does not exist. The principle upon which the rule is founded, is, that if the parties believing that a certain state of facts exist, come to an agreement with such belief for its basis, on discovering their mutual error they are remitted to their original rights. But a mistake of law will not avoid the transaction, nor render the money in the hands of him who receives it the money of him who paid it. As where one is truly acquainted with the facts, but is ignorant of or misconceives their legal consequences. Here his mis- take is one of law, and the party receiving the money takes it to his own use. 3 Where a clerk to Avhom moneys of his employer have been entrusted, used and lost the same at a jramblinsr house. Held, that an action for moneys had and received could be 1 16 N. T. 250; 12IIow. 320 ; 6 Barb. "- 1 Wend. 355;20 Id. 174; 1 Hill, 287; 658. 9 Pick. 112; 2 Hall, 252. Proceedings ix Justices' Courts. 75 maintained by the employer of such clerk against the pro- prietors of the gambling house where such moneys were lost. 1 3 When paid upon a consideration whuh happens to fail ; as if I advance money to a man for carrying my goods, and without my fault be fails to carry them ; or to one upon his promise to sell and deliver me certain goods, and he fails to do so. 4.' When paid as a consideration for an agreement which is afterwards rescinded. As where A. and B. made a con- tract for the sale and purchase of a quantity of timber to be delivered at a future day, and fifty dollars upon account of it is paid by B. at the time of making the contract, on the rescission of the contract, A. is held to have received the money to the use of B. In such a case, however, when a purchaser would rescind a contract and entitle himself to the money paid upon it, he must place the vendor in the same situation that he was before the sale. 5. When paid to one acting 'under or in pursuance of a void authority. As if one come to mo in behalf of my creditor with a forged order or power of attorney to receive the debt, and I pay him the money. Here, although both of us may have supposed the order or power of attorney to be good, yet the authority being in fact forged and void, the money was received to my use. fi. When obtained by extortion, imposition, or taking an undue advantage of the party's situation. As where I pledge my horse for a debt of one hundred dollars, and the bailee upon ury tender of the sum owing, refuses to redeliver him unless I pay an additional sum, Avhich in order to obtain him, I pay ; where one sells me lands which have no exist- ence, and receives of me the money for the price ; where my friend is insolvent and I give one of his creditors a sum of money to induce him to become a petitioning creditor, or to grant him a letter of license ; or where a sheriff or con- stable or other officer extorts money, or receives exorbitant fees. But money paid under an order, decree or judgment of a court, although the judgment is fraudulent, is not re- ceived to the use of the party paying it. 1 Caussidicre vs. Beci-s, 2 Kcves. 108. 76 Proceedings in Justices' Courts. 7. When embezzled, or moneys of Avhich one has been defrauded by cheating or otherwise. As where money is embezzled or stolen by one's clerk, servant or other person, or obtained from him by any cheating at play by false cards or dice. 8. When paid under a judgment or adjudication of any court which is afterwards reversed for error. 9. When paid upon any contract declared void, either by common law or statute, except in cases where the party himself is a party to the criminality, as in case of an usu- rious contract. And where a contract is entered into, the object of which is to violate the provisions or the spirit and policy of a public statute, and one pays money in further- ance of it, and it is in part executed by a partial accom- plishment of the original design, leaving a portion of the money advanced unexpended, an action will not lie to re- cover it back. In some cases, however, statutes provide that one paying money on an illegal contract may recover it from the person receiving it, as where money is wagered, 1 or paid for a chance in a lottery or raffle,' 2 or where more than twenty-five dollars is lost at play. 3 In order to give illustrations of the classes of cases enu- merated, the following abstract of decisions under each of them, where actions have been, and where they have not been maintained, has been collated. They are not given as all the reported decisions, but as sufficient to show the va- riety of transactions from which are implied the receipt of money to the plaintiff's use, and promises to pay it to him, and such as are not within the rule. Under the first class, when received by agents, attor- neys, officers, &c, and held to be received to the plaintiff's use : Money received by an agent or attorney for the plaintiff, who refuses to account for it and pay it over, (4 Day 175 ; 3 Greenl. 369 ; 7 Id. 298 ; 7 Mass. 14 ; 3 Cow. 624 ;) or where he has received a note for the plaintiff for which he refuses to apcount, (3 Mass. 403 ; received by the 1 1 R. S. 602. [4th ed. vol. 2, 72, § 9.] MK.S. 6G5, [4th ed. vol. 2. 76, §§ 31, 32.] 3 1 R. S. 662, [4th ed. vol. 2, 73, § 14.1 Proceedings in Justices' Courts. 77 defendant to pay over to the plaintiff, (11 Mass. 147 ; 3 liar. & McHen. 451; 17 Mass. 575, 400; received by the defendant, a banker, to pay a bill deposited with him be- longing to the plaintiff, although the banker's clerk had told the person paying the bill be could not give it up until he had seen his master, (14 East. 582, n.;) received by the de- fendant from the plaintiff to retain until it should be ascer- tained whether it should be paid to a third person, and by the defendant paid over without plaintiff's concurrence, (7 Moore, 465 ;) received by the defendants, assignees of a bankrupt, or an insolvent debtor, and clue to the plaintiff for his dividend under the order of the Court, (Doug. 437;) or received by him under a voluntary assignment in favor of creditors, (4 Pick. 59;) received by the defendant to whom securities had been given in trust to collect and pay certain debts and the balance to the plaintiff, (12 John. 276; 1 Har. & Gill, 485;) where the defendant, plaintiff's factor, had sold his goods and taken in payment for them and a debt of his own, the purchaser's bond, although no money had in fact been received, (6 Cowen, 183, note a;) or where he has received the purchaser's note, when not authorized to sell upon credit, (5 Pick. 389;) or where goods have been consigned by the plaintiff to the defendant to sell, and he, after an unreasonable time has expired, has refused to ren- der an account of them, (7 Pick. 214;) the plaintiff's share of moneys received by the defendant as the whole price of an article held by him and the plaintiff as tenants in com- mon, (2 Caines, 1G6; 15 John. 159; 1 Wend. 470;) the plaintiff's share of moneys received by the defendant, his co-surety, for the amount they have been compelled to pay as bail for a third person, (1 Wend. 202; 5 Id. 48;) received by the defendant from the plaintiff as stakeholder upon an unlawful wager, (10 John. 408; 3 Dcnio, 103; 1 Comst. 392;) received by the defendant, the drawee of a bill of ex- change which he had not accepted, to enable him to pay it, the plaintiff being the endorsee of the bill, (3 Camp. 176;) received by the defendant, the drawer of a bill from the plaintiff, the acceptor, to pay it, where the drawer succeeds in a defence upon the bill, (3 Camp. 107;) received by the 78 PROCEEDINGS IN JUSTICES' COURTS. defendant, the holder of a' note from the plaintiff, an en- dorser upon it, to pay a judgment recovered upon it against the plaintiff, when it appeared that previous to the payment the defendant had discharged a prior endorser, (4 Wend. 360;) where the defendant, an insurance broker, had', with- out receiving for the plaintiff his principal moneys due him from the underwriters, discharged them upon an adjustment with them of private accounts, (3 Camp. 399:) money levied by the defendant, a sheriff, upon the plaintiff's execution, (3 Camp. 430; 6 Cowen, 465; 1 Wend. 534;) where the de- fendant, a sheriff, has returned an execution as collected, although he had not demanded payment upon it, (3 Camp. 347; 2 Greenl. 91;) where the defendant, a sheriff, hastaken a note from a defendant in an execution to indemnify him for an escape, and the plaintiff has demanded the note and he refuses to give it to him, (5 Wend. 207;) moneys re- ceived by the defendant, an administrator, who has drawn an order in favor of the plaintiff for , his debt against the intestate, the order having been allowed defendant on his accounting, but never having been accepted by the drawee, (13 John. 510.) In the following cases, however, an action for money had and received has been hold not to lie ; against an attorney for moneys collected by him Avhere a demand had not been made before suit, (5 Cow. 376 ; 4 Greenl. 532 ;) against one bound by contract to pay a sum when he shall receive it of his debtor, he having taken a mortgage from the debtor to secure the debt, (4 Pick. 60 ;) where plaintiff paid money to seamen in advance for their wages, which they deposited with the defendant to indemnify him for covenanting that they should not desert, they having deserted, (13 John. 508;) where a debtor of plaintiff placed money in defendant's hands to pay the debt, there being no communication or under- standing between the plaintiff and the debtor concerning it; the reason here given was that there was no privity between the plaintiff and the defendant, and the debtor might at any time make a different disposition of the money, (24 Wend. 260;) by plaintiff against an agent whom he had directed to send money by a certain route, when the agent sent it by Proceedings in Justices' Courts. 79 another, by which means the money got into the hands of his creditors, (2 Camp. 68 ;) by a banker against a partner- ship for money paid by him and charged the partnership upon a bill drawn by one of the partners in his own name, the bill having been negotiated by the same agent who had procured discounts from the banker for the firm, (15 East. 7 ;) by one who lays illegal wagers in the defendant's name, and then without his subsequent direction pays them, (4 Taunt. 165 ;) by plaintiff in whose name defendant makes a contract, sues and collects money upon it without the knowl- edge of the plaintiff, (4 Taunt, 380 ;) by a landlord against . a sheriff who sold the goods of a tenant without paying a year's rent due, (3 Camp. 260 ;) by the purchaser of an equity of redemption against a mortgage for the surplus arising on sale of the moitgagcd premises, the mortgagee having obtained a judgment against the mortgagor which was a lien against them at the time of the purchase of the equity of redemption, (13 Wend. 488.) Under the second class of cases, where in consequence of mistake or deceit, the defendant is held to have received money to the plaintiff's use, are the following : as a general rule, the inquiry is to which party in equity and justice docs the money belong, (2 Denio, 91;) money paid to defendant by the plaintiff under a mistake of facts, (6 Barn. & Cress. 671 ; 3 Wend. 412 ; 3 id. 69 ;) overpaid by mistake on a purchase of goods, or where by mistake, a note for goods purchased was given for more than the price, notwithstand- ing it was paid after the discovery of the mistake, (4 Pick. 228 ;) where on settlement of a bond the obligor was, by mistake, credited with a year's interest which had not been paid, (8 Wend. 561 ;) money paid the defendant for a bank note or a bill of exchange which turns out to be a forgery, neither party knowing it at the time, (5 Taunt. 488; 2 Har. & John. 368; 17 Mass. 33; 1 Hill, 287;) but in the case of a forced bank note it should be returned within a reason- able time, or the right to recover the money paid for it will be waived, (17 Mass. 33 ;) where the plaintiff the promisee of a note, received from the defendant a counter- feit bank bill in payment, (6 Mass. 182;) money paid by the 80 Proceedings in Justices' Couets. plaintiff to defendant upon the return of a bad check, mis- takenly supposed to have been sent by the plaintiff to the defendant's bank, (3 Mass. 74;) paid by the plaintiff, the endorser of a note void in its creation, to the defendant, the holder of the note, notwithstanding the endorsement was bona fide, (8 Mass. 402 ;) money received by the defendant upon an execution in his favor, the proceeds of goods not belonging to the debtor, levied upon and sold by the sheriff, the plaintiff,' (2 Camp. 452;) where the plaintiff, the en- dorser of a bill upon which he has not been charged, pays it under the belief arising from a misapprehension of facts that he is liable, (9 Mass. 408 ;) paid by an executor or ad- ministrator, who supposes the estate he is administering solvent for a debt against it, it subsequently appearing to be insolvent, (17 Mass. 380;) paid to the defendant, a col- lector of taxes, who had advertised the lands of several non- residents for sale and received the whole expense from the plaintiff, who was one of them, (2 Day, 369 ;) where on settlement of, accounts, a note was given by mistake for more than the true balance, the excess was held money re- ceived to plaintiff's use, although the note was unpaid, (1 Greenl. 152 ;) money by mistake paid by the plaintiff to the defendant, an agent, who had before notice of the mis- take carried it to the credit of his principal upon his books, (3 Maule. & Selw. 344.) To protect the agent against the payment, it must appear that he received the money for his principal and had actually paid it to him before notice of the mistake, (1 Taunt. 359 ; 5 id. 815;) money obtained by any overreaching, false allegation or fraudulent concealment, (4 Mass. 488; 13 Serg. & Rawlc, 259 ;) withheld contrary to equity, (17 Mass. 575,) money obtained upon the note of defendant, upon which he had forged the endorsers' names, notwithstanding the note has not become payable, (15 Mass. 75 ;) where the defendant paid the plaintiff bills of a broken bank, with reasonable grounds to suspect they were worth- less, (6 Mass. 182 ;) where the defendant fraudulently in- duced the plaintiff to sell goods to an irresponsible person, and then upon the sale of them by him obtained the money received for them, (2 Ball & Beat. 369; 3 Saund. 274;) PKOCEEDIXOS IN JUSTICES' COL'ETS. 81 where the defendant, without giving value for them, has got possession of bank notes lost by plaintiff, (2 Car. & Payne, 176 ;) money deposited by the plaintiff with the defendant for a particular purpose and misapplied, (2 Bos. & Pul. 277;) money paid on an execution issued on a satisfied judgment, (lb Wend. 321;) money paid by the plaintiff on the pur- chase at a constable's sale of a chattel interest in lands, the constable refusing to convey it, (10 John. 73;) money re- ceived by the defendant to pay a bill of exchange to the plaintiff, but which he applied to pay his own debt, (17 Mass. 575 ; Id. 400 ;) money paid by the maker of a note under an agreement that it should be endorsed upon it, the defendant not endorsing it, and then taking judgment for the full amount, (16 Mass. 306.) Where the defendant has received the plaintiff's money, it is no defence to him that he has paid it out upon a forged order or receipt, nor that he has paid it upon a check which had been altered, (8 Dowl. & Eyl. 464 ; 5 Barn. & Cress. 750.) And in all cases where money has been paid by the plaintiff to the de- fendant by mistake, notice of the mistake and demand of repayment, before bringing the action to recover it back, are unnecessary, (18 John. 485.) In the following cases the action was not sustained : where plaintiff voluntarily paid an award made by arbitra- tors, although it was obtained by fraud, (8 Mass. 402; 12 Id. 134 ; 1 Day, 130 ;) money paid under a full knowledge of the facts, but under a mistake as to the law, (5 Taunt. 143 ; 12 Mass. 134 ; 9 Cow. 674 ;) in the latter case the doc- trine of payments by mistake is very fully examined ; paid on a forged note both parties being innocent in the transac- tion, (17 Mass. 1;) paid by an executor who bad requested the defendant to purchase a note against the estate, when it appears that the amount paid exceeded the dividend to which the note would entitle the holder, (7 Pick. 46 ;) paid by the drawee of a forged bill to an innocent holder, (3 Corns. 230.) But where upon a settlement of accounts be- tween plaintiff and defendant, a third person computed the interest and without their knowledge compounded it, and the plaintiff brought his action for the excess of interest, it 82 Proceedings in Justices' Courts. was held a mistake of fact and the plaintiff recovered, (2 Dcnio, 107.) Under the third class, money paid upon a consideration which happens to fail, are the following decisions: money- paid the defendant on the sale of property the title to which turns out to be defective, (5 Burr. 2G39 ; 5 Pick. 480 ;) and this though the payment have been made in, the note of a third person, this being deemed an equivalent to the pay- ment of money, (3 Cowen, 272 ; 10 Mass. 31; 13 Id. 21G ;) where the thing contracted to be sold is not delivered, (1 Str. 407 ;) money paid to the defendant on his contract to deliver a chattel, and the delivery is a condition precedent to tire sale, when before the delivery the chattel is destroyed, (I Wend. 58;) paid by plaintiff as the price of hay sold by him for the defendant, and paid to him before payment by the purchaser or delivery, when the defendant's servant sent to deliver it, is before delivery, cheated out of it, (8 Bing. 8G;) obtained on a bill of exchange received by defendant in advance for goods which are not delivered, (4 Maule & Selw. 47G ;) paid for goods which turn out to be of a different kind from those contracted for and of little value, the plaintiff returning them, and this though there bo neither fraud nor warrautry, (15 Mass. 319 ;) paid for goods on a contract of sale void by reason of defendant's fraud, the plaintiff rescinding the contract and returning or offering to return the goods, (4 Mass. 502 ; 13 Id, 319 ;) money paid by the plaintiff on a parol contract for land , or received by the defendant on- a note given him by the plaintiff on such contract, the contract being void by the statute of frauds, (15 John. 503 ;) advanced to the defendant, a broker, to pay duties on goods, upon his rep- resentation that he would by their sale discharge his lien and leave a surplus — the sale being defeated, (5 Taunt. 446 ;) money paid to defendant as a consideration for a ser- vice, contracted to be performed, which he puts it out of his power to perform, or when he prevents the plaintiff from performing his part of the contract, and so defeats it, (7 Cowen, 24 :) money paid by the plaintiff, an endorser upon a judgment recovered against him on a note, where l'UOCEKDIXGS IN JUSTICES' CoUJttTS. 83 llic holder, before (he judgment, had discharged his prior endorser, (4 Wend. 300;) money paid io defendant upon a security which turns out .to be of no value, or differ- ent from what was intended, as upon a genuine note with a forged endorsement, (15 Mass. 75, 156;) money paid on ; ubscriptiou to support a minister, where the fund was not m applied, (3 Pick. 322.) In the following cases, the action was xot sustained : for money paid on a parol contract for lands, there being no default in the vendor, (12 John. 454; 9 Coweu, 46;) money paid on an agreement to purchase lands where all the pay- ments were not made according to the contract, and the land is sold to another, (4 Barb. 354 ;) paid as the considera- tion of a quit-claim deed on the title failing, there being neither fraud nor warrantry, (6 Mass. 81 ;) so though there be a covenant that the grantee shall have it after grantor's death, (4 Mass. 135 ;) paid an executor for lands of his tes- tator, sold under a license for the payment of debts, the lands having been recovered from the plaintiff by an older and better title, (4 Greenl. 101;) paid by a judgment creditor to redeem land, he failing to pay the whole debt, (6 Greenl. 142 ; ) paid for lands purchased, afterwards ascertained to be deficient in quantity, the relief being an equitable one, (3 John. 506 :) paid for goods delivered agreeably gcncricalty with the sample and contract, but miserable in quality, and wholly unfit for use, the proper remedy being upon the implied warranty, (2 Camp. 416 ;) an action by the payee against the maker of a note on the failure of its consideration, the giving of a note not being an equivalent to the payment of money, unless it be received as such in payment or discharge of a liability of the party sought to be charged, (1 Wend. 424.) Under the fourth class, where money has been paid aa a consideration for an agreement which is afterwards rescinded, are the following cases : money paid by the plaintiff upon a conditional sale, or contract, that is re- scinded, (1 Term, 133; 1 Caines, 47; 12 John. 363;) money paid by the plaintiff to the defendant in considera- tion of an act to be done by him, and which he fails to do, 84 Proceedings in Justices' Courts. (3 Pick. 20 ;) money paid on a contract void for want of power in the opposite party to contract, (7 Mass. 31 ;) in consideration of a void bond, (2 Bos. & Pul. 467.) Where, however, a payment has been made upon a con- tract still open, and neither fulfilled or rescinded, the action will not lie, (Doug. 23; 7 East, 274 ;) nor upon one that has been in part executed, (1 N. PI. 17 ;) and generally where one seeks to recover money paid under a void or rescinded contract, must show that he in fact paid monej', (5 Barb. 319.) Under the fifth class, moneys received in pursuance of a void authority, it is held that money paid by the plaintiff to the defendant under the sentence of a court having no jurisdiction, may be recovered, (Ld. Raym, 642 ; Cowp. 419 ; 4 Cowen, 454.) So if paid to the innocent second endorsee of a certificate of deposit which had been stolen, and an endorsement of the payee forged, (1 Hill, 296 ;) or if paid to the holder of a draft payable to the order of one whose endorsement is forged, (1 Hill, 287 ; 2 Sand. 431.) The action was sustained against the United States Mar- shal to whom the plaintiff, a surety upon a recognizance estreated by the United States Circuit Court, had volunta- rily paid the penalty, and afterward, when the Court adjudged the recognizance void, before the money had been paid over by the Marshal, demanded it of him, (1 Barb. 355.) In the following cases, the action was not sustained: against one having money belonging to ;ui estate, who paid it to one having the probate of a forged will, (3 Term, 125 ;) against a tax gatherer for a lax erroneously paid, but which he has paid over, (4 Term, 553 ; Cowp. 66 ;) against a public officer who has collected money by crder of his official superiors, (1 John. 515;) money paid with knowl- edge of the material facts in satisfaction of a claim which could not be enforced at law, (4 Pick. 114 ;) paid on an illegal distress, the remedy being for the wrongful act, (2 N. II. 461 ;) by the drawee of a forged bill against an inno- cent endorsee to whom he paid the amount, (3 Burr. 1354 ; Taunt. 76.) Uuder the sixth class, moneys obtained from the plain- Proceedings in Justices' Courts. 85 tiff by extortion, imposition, or taking an undue advantage of his situation, are the following : paid by the plaintiff to officers of the revenue to discharge goods which he seized for want of a permit, when in fact they had one, (4 Term, 485 ;) unlawful fees required by a District Clerk of the United States Court in a suit relating to the wrongful seiz- ure of a vessel before he would give an order for its deliv- ery, (9 John. 370;) money demanded for illegal fees and paid to a public officer, (4 Dowl. & Ey. 283 ; 2 Barn. & Cress. 729 ; 2 Barn. & Aid. 562 ; 1 Chitty, 296 ;) excessive tolls taken from plaintiif, (2 Barn. & Aid. 206 ; 4 Barn, Sorp;. Re * 1 Mass. 138; 1 1 M. 309. Knwlo, 8; 4 Tick. 283. r> 5 Esp. 171. " 3 N. II. 270; 17 Mass. 40 i. « 1 Car. & Payne, 431. 3 1 Hill, 345. 7 7 Wend. 119. Pboceedixgs ix Justices' Courts. 89 would not be for money paid. Where a plaintiff at the request of the defendant, defends an action in -which the latter is concerned and may he benefited by the event, and a judg- ment is obtained against the plaintiff, he can recover against the defendant the expenses of the defence. 1 The money must, or something which is accepted as an equivalent, be paid by the surety and in discharge of the indebtedness of the principal. This may be by the surety's promissory note, 2 or by land conveyed to the creditor and accepted in discharge of the debt. 3 It is not sufficient that he has given his bond for the debt, nor that he is impris- oned in execution upon it. 4 If", the surety extinguishes the debt by paying only one-half the amount, he is entitled to recover no more than he actually paid. 3 The payment must also be made by the plaintiff at the request of the defendant, cither express or implied. If, therefore, a sheriff voluntarily suffers an escape, or a consta- ble suffers an execution to expire in his hands, and then without the defendant's request pays the debt, he cannot recover the money paid. 3 So if a collector of taxes pay over my tax without demanding it of me, 7 or if the endorsee of a bill of exchange pay the amount before a demand of the acceptor," the payment is a voluntary one. In these cases, however, if the defendant requests the payment to be made, or afterwards promises to pay the money, the action will lie. And the request furnishing the foundation of the claim where one becomes a surety at the request of another surety and the latter pays the debt, he cannot resort to the former for a contribution. 9 Where one was employed as the agent of certain others to purchase for them a piece of land and take the convey- ance to himself, and a third person at the request of the principals became surety for the agent in a promissory note for the purchase money which the surety paid, it was held that the surety alone might have his action against the prin- 1 1 Esp. 1G2. • 5 7 Cowen, 662; 2 Wend. 481. 2 3N.1J. 360; 4 Pick. -Ill: 8 JoJm. C 3 John. 434; 8 Id. 430; 8 East, 171. 1102; 2 Esp. 571. ' 10 John. 301. ■" 7 Cow. UG2; 2 Wend. 481 . s 2 John. Cas. 75. 4 2 Barn. & Aid. 61 ; 8 Jolin. 202. 210. 9 12 Mass. 08. 90 Proceedings ijt Justices' Courts. cipals for the money tlius paid. 1 So where two jointly interested in a transaction, execute a bond with A. as surety, and B. at the request of one of the principals pays the bond, B. has his action against the principals, but cannot recover against the surety, as the request of the principals did not enure as his request.' The action lies by an endorsee against his endorser for money paid on a judgment obtained against the former by the holder of the note. 1 So for a payment made by him it is in full, 4 and upon a second payment he may have another action. 5 But where two persons make and exchange notes, neither can maintain an action against the other for money paid on his own note."' If a contract within the statute of frauds be performed wholly or partly by one party, and the other refuses to per- form it on his part, the action majr be maintained by the party performing, to recover the money he has expended in the execution of the contract on his part. 7 It also lies where one of several defendants pay a judg- ment recovered against them in an action upon contract for a contribution against each of the others, but not if the re- covery was for a tort, unless an express promise to pay is shown. s It was, however, held where the recovery was for an injury sustained by the negligence of the defendants' ser- vants, neither party being preseut, that an action for contri- bution would lie. 9 One joint contractor who pays money for another on a mere equitable claim capable of being enforced only in a court of equity, may maintain the action against his co-con- tractor, 10 and where several are liable for work done and a payment is made to the creditor by a third person at the request of one of the debtors, the action lies against all. 11 So where several persons subscribed money for running a stage coach, and appointed an agent to carry out their plan, who 1 5 Greenl. 501. 7 7 Mass. 268. 2 5 John. 170. S 8 Term, 186; Kirby, 114; 2 John. Cb 3 2 "Wend. 360. 131; Bibb. 502. * 20 John. 307; 3 Barb. G31. 9 2 Car. & Payne. 417. B 6 Wend. 284. 10 6 Taunt. 289; 1 Marsh. 003. 6 3'Denio, 187. 11 11 Wend. 87. Bills of Exchange and Promissory Notes. 91 advanced his money for the- purpose, it was held that he might maintain an action against a subscriber for the amount of his subscription. 1 But if one of two joint agents is im- posed upon, and in consequence pays money to a wrong per- son, and is afterwards obliged to pay it over again to the person entitled to receive it, he cannot recover from his co- ageut his share of the money paid. 2 If one of two joint contractors upon a breach by them of their engagement, without the consent of the other, agrees with their creditor to submit (he amount of damages to arbitration, and then pays the award, he may recover from the other contractor his share of the payment so made. 3 The action lies by a stranger against the defendant for money paid for necessaries furnished to or support provided for one whom he is under a legal obligation to maintain.' 1 Or where the defendant goes abroad, leaving a wife who dies in his absence, and a third person voluntarily pays the expenses of her funeral, suitable to her husband's rank aiul fortune, though without his knowledge or assent. 5 "Where money is paid for defendant at his request, it is no defence to the action that the defendant lost the benefit of the payment in consequence of the plaintiff withholding the evidence of it until he had been indemnified by the defend- ant, who refused to pay him. 6 The action will not lie for money paid on an illegal trans- action: 7 and in all cases of partnership in such transactions, neither partner can recover back money paid for the other, unless he has received express directions to make the pay- ment. s So, money advanced by one to another with a knowledge that it is to be applied in furtherance of an ille- gal purpose, cannot, after it is so applied, be recovered. 9 Promissory Notes. A promissory note may be defined to be a written cngago- 1 & Pick. 228. 14 Taunt. 165; 3 Id. 6; 3 Barn. & Aid. 2 Chit, on Cont. 181. 179; 2 Bos. & Pul. 371; Chit, on 3 -1 Moore, 340. Cont. 182. * 5 Wend. 558 S 3 Taunt. 11; 2 Marsh. 512; 7 Taunt. 5 111. Bl. 00; 3 Camp. 2H8. 246. 6 7 Mass. 268. » 2 Star!;. Ev. 3d. Am. cd. 104. 5. 92 Bills of Exchange and Promissory Notes. ment by one person to pay another person, therein named, absolutely, and unconditionally, a.certain sum of money at a time specified therein. The definition given by Mr. Jus- tice Blackstone is, that promissory notes or notes of hand are a plain and direct engagement in writing, to pay a sum specified, at a time limited therein, to a person therein named, or sometimes to his order, or often to the bearer at large. In a promissory note, there are but two original parties, the maker and the payee. 1 In a bill of exchange there are ordinarily three original parties, the drawer, the payee, and the drawee, who, after acceptance becomes the acceptor. In a bill of exchange the acceptor is the primary debtor in the contemplation of law to the payee, and the drawer is but collaterally liable. 2 No particular form of words is necessary in a promissory note, it may be varied at the pleasure of the individual, so that it always amounts in legal effect, to a written promise for the payment of money absolutely and at all events, and it interferes with no statute regulation. A promissory note is a written instrument. A verbal promise however format in its language, and obligatory in point of law, is not deemed a promissory note. This is obvious upon the slightest consideration. 3 Its form is sub- stantially as follows : Utica, January 1, 1871. $50. I trojiise to tay J. Brown, ["or order" or, " or bearer," if it is to be made negotiable,] fifty dollars, [omittiting the time of payment, if payable immediate^, and if payable at a future day, inserting the day, as "on the fiiist of September next" or, "thirty days after date ,"] for value received. Samuel Cole. It is not necessary that any particular form should be used. Any words which import an absolute engagement to pay, arc sufficient. As a common due-bill in these words : "Due S. or bearer, $10;" "clue A. B. $325, payable on 1 Story on Promissory "Notes, § 1. 3 Bailey on Bills; Story on Pr. Notes, 2 lb. § 4. § 10. Bills of Exchange and Promissory Notes. 93 demand ; " " due B. $1, on settlement ; " a promise to deliver money ; that the payee shall receive money ; or to be account- able or responsible for money. 1 An instrument in these words: "borrowed of J. S. .£50, which I promise never to pay," was held a good note, the word never being rejected as surplusage.. 2 In like manner, an instrument in the fol- lowing form : "N. will much oblige W. by paying J. E. or order $20,"-* was" held a bill of exchange ; and in another case, where the plaintiff held a note against L., and wrote upon it, "L. M., please pay the above note and hold it against me on settlement," and L. M. accepted it, the instru- ment was held a bill. 1 It is not necessary that a promissory note should be dated, although it is safe to write it with one. If it be not dated, all computations of time in relation to it, will be made from the day it was issued, as if payable two months from date, the court will intend two months from the day it Avas made. 5 In promissory notes, the signer is called the maker, the person to whom it is made payable, the payee, and when he endorses it, he becomes the endorser, and the person to whom it is endorsed the endorsee, who, by endorsing it may become an endorser, as in the case of bills. The relative rights and obligations of the parties to promissory notes and bills after acceptance, are very nearly similar, the acceptor and maker standing in the same relation to the payee and endorsers ; the drawer, in the case of an accept- ance, standing in the place of an endorser prior to the payee. Promissory notes and bills should specify by whom and to whom they are payable. If payable "by A. or B.," or "to A. or B.," they are not valid as notes or bills, although if they are expressed to be "for value received," they are good as contracts, and will warrant a recovery in an action for money had and received." Where there are two per- sons having the name of either of the parties to the note or 15 John. 232; 2 Cow. 530; 10 Wend. 5 4 Barn. &. Cress. 908; 6 Maule & 675; 1 Hill, 256. Selw. 73; 2 Chit. 300. 2 Chitty on bills, 149 to 151. 6 4 Earn, fe Aid. G79; 2 Id. 417 i 4 3 1 Esp. R. 129. Wend. 575. * 1 Wend. 522. 94 Bills of Exchange and Promissory Notes. bill, it is well to distinguish which is meant, by his place of residence, or some addition, as "senior," "junior," "second," &c. Where there was a father and son of the same name, a note or bill payable to the name, was held prima facie pay- able to the father. But if the son held the instrument, he might recover upon it in his own name. A mistake in the name of the payee is immaterial where it can be shown who was intended. 1 They may be drawn payable to bearer generally without the mention of any person as payee, in which case they can be negotiated by simple delivery. They may also be drawn payable to the order of a fictitious person or to the order of the maker, in which cases when negotiated by the maker, they ( have the same effect as if made pa} r able to bearer. 3 If the name of the payee be left blank, the holder may insert his own as payee, 3 but if the promise is not to pay any one, but simply " I promise to pay $500 on demand, value received," it is mere waste paper. 4 If drawn in the singular number, as if a note be drawn "I promise to pay," and signed by two or more persons, it is regarded as made by them jointly and severally, and the holder may bring his action against all or any one of them. If payable to one by a wrong name, he may bring his action in his right name and show the mistake. Bills and notes take effect from the time of their delivery, without regard to their date, though the presumption is that they are delivered on the day of their date. They may be made payable at any time agreed upon by the parties, as any number of days, months or years, after date, or after sight, or upon any particular day, or upon demand, and with or without interest from the date. If the time of payment is not expressed, they are payable on demand, and in this case they draw interest from date, although there be no mention of interest contained in them. 5 The time of pay- ment cannot be altered by parol evidence, and a separate 1 Taunt. 325. 3 2 Maule & Sohv. 90; 5 Taunt. 529; 1 2 1 R. S. 7C8, § 5, |.4lli od. vol. 2, Marsh. 31; 10 Sarg. & Rawlc, 170; 4 178;] Chitty on Bills, 170; 3 Hill, John. 59. 112; 2 Sand. 138. * ti Wend. 637. « 8 John. 189; 15 Wend. 308. Bills of Exchange and Promissory Notes. 95 written agreement varying it, is not a part of the contract but a distinct one, and the subject of a cross action if vio- lated. 1 An alteration of a bill or note in a material part, whether done by a party or a stranger, unless done with the consent of all parties concerned, renders it void, even in the hands of an innocent holder. Alterations are material when they affect the date, time of payment, place of payment, sum to be payed, manner of payment, as by inserting after the name of the payee "or order," or consideration. 2 But a promissory note, it seems, need not be written in ink, for it has been held that it may be in pencil. It may all be printed except the signature, but the signature must be in the hand writing of the party executing it, or if it be by mark, that mark must be verified by the hand writing or attestation of some person who acts for the marksman or at- tests it at his request. If signed by an agent it is of course, in order to bind the principal, to be signed by the agent thereto, or at least signed by him in his character as agent. ;! A promissory note maybe made by one or more persons; it may be joint, or it may be joint and several, when two or more persons sign a note written thus : We promise to pay, <&c, it is a joint note. When two or more persons, sign a note written thus : I promise to pay, <&c, it is a joint and several note, and they may be sued jointly or severally, at the option of the holder. 4 > If a note be signed by a person in the name of a firm, whether that name represents in form more than one person, as A. & Co., or represents in form one person only, as A., in both cases it is treated as the joint note of the firm, and all the parties may be sued thereon, whether written We promise or /promise, providing it be the debt of the firm. "When a note is signed by two persons written thus : We promise, and signed A. B., principal, C. D., surety, it is still the joint note of both, and if it were written, I promise, <&c, and signed in the same manner, it would be the joint and 1 8 John. 189; 4 Mass. 414. 3 story on Pr. Notes, § 11; 4 Ter- 2 19 John. 391; 17 Wend. 238; 24Irl. mont R. 11. 374. 4 Story on Pr. Notes, § 57; 7 Mass. 58. l JG Bills of Exchange and Promissory Notes. several note of both. For the language designating tho principal and surety does not change the rights of the payee or subsequent holder, but merely ascertains the relation of the makers to each other, and operates as notice of that re- lation to the other parties thereto. The drawee of a bill is bound to know the hand writing of the drawer, and if he pays the bill to a bona fide holder, he cannot recover the money back, although the bill turns out to be a forgery. 1 And the same rule applies in general it seems to a, party who intervenes and takes np a protested bill for the honor of the drawer. If he pays the bill after seeing it, he is concluded by the act, and cannot recover back the money, although the bill is a forgery. 2 In general the holder of commercial paper is presumed to have received it in good faith and for value received. 3 When, however, the paper is shown to have been put in circulation fraudulently, it seems the presumption is chang- ed, and the holder must show that he received it in good faith and for value. 4 Payment of a note cannot be demanded on the fourth day of July so as to charge the endorser, but if that be the last day of grace, demand should be made on the third. 5 When two persons, not partners, endorse a note payable to their order, they cannot be made liable, unless notice of non-payment be given to each, though othericise as to part- ners* In order to charge the endorser of a note made by two or more persons, not partners, a demand must be made of both makers. 7 A note given upon the settlement of any doubtful claim against the maker, will be upheld as founded upon a suffi- cient consideration, without regard to the validity of the claim.* 1 Goddard vs. Merchants' Bank, 464 Hill. 129, Bronson J.s 2 mil, 5S7. Comst. 117. C 5 mil,' 232, Willis vs. Green. 2 Id. 230. 7 Russell vs. Cook, 3 Hill, 001. 3 W- 1G0. s id. 001 * 4 Id. 11,'Li.s Oh- Exchange and Promissoey Notes. 97 A joint uctton cannot bo maintained against several de- fendants upon a promissory note, when some of them are guarantors and not makers or endorsers. 1 An endorsement in blank, is, in legal efl'ect, an agreement to pay on the usual conditions of demand and notice, and the case is not open to the intendment that the party meant to contract a different obligation. 2 In an action upon a note, mere inadequacy of considera- tion, there being no warranty nor fraud in the case, cannot be given in evidence as a defence, otherwise as to an entire want 6f consideration, for that may always be shown as a complete answer to a suit upon an executory contract. , If, however, the article sold be of the slightest value, it will be a sufficient consideration for a promise to pay the stipulated price, however disproportionate to the real value — (no fraud being shown. 3 ) The endorsee of a negotiable note to whom it has been transferred simply as collateral security, is not entitled to be regarded as a bona fide holder in the commercial sense 4 In an action on a note brought by one not entitled to be treated as a bona fide holder, the maker may defend, on the same grounds as though it was in the hands of the original payee. 5 It is provided by statute that in any suit founded upon any negotiable promissory note, or bill of exchange, or in which such note, if produced might be allowed in the de- fence of any suit, if it appear on the trial that such note or bill was lost while it belonged to the party claiming the amount due thereon, parol or other evidence of the contents thereof may be given on sucli trial, and notwithstanding such note or bill was negotiable, such party shall be entitled to recover the amount due thereon, as if such note or bill had been produced. It is, however, further provided, that to entitle a party to such recovery, he shall execute a bond to the adverse party, in a penalty at least double the amount of such note or bill, with two sureties, to be approved by i 2 Hill, 188. * 2 Hill, 140. 2 Seabury vs. Hungerford, 2 Hill, 80. « 4 Hill, 424. 3 2 Hill, GOO; 21 Wend. 593. 98 Indemnity against Lost Bill ok Note. the Court in which the trial shall be had, conditioned to in- demnify the adverse party, his heirs and personal represen- tatives against all claims by any other person on account of such note or bill, and against all costs and expenses by rea- son of such claim. 1 Form of a Bond to Indemnify against a Lost Bill or Note. Know all men by these presents, that we, John Doe, Rich- ard Roe and James Jackson, are held and fiinily bound unto John Smith, in the sum of {here insert double the amount claimed on {the note or bill,) to be paid to him, his heirs and assigns, to which payment we hereby bind ourselves, our heirs, executors and administrators. Sealed with bur seals May 1, 1871. The condition of this obligation is as follows : The said John Doc is prosecuting an action against the said John Smith, before David Babcock, a Justice of the Peace of Oneida county, upon a promissory note made by said John Smith to said John Doe or bearer, for fifty dollars, dated about the 1st clay of November, 1866, which said John Doe alleges is lost. Now, if the said John Doe shall indemnify the said John Smith, his heirs and personal representatives, against all claims by any other person on account of such note, and against all costs, and expenses by reason of such claim, then this obligation shall be void. Otherwise it shall remain of force. John Doe. [l. s. ] Richard Roe. [l. s. j James Jackson, [l. s.] I approve of the foregoing sureties, May 1, 1871. D. Babcock, Justice of the Peace. It will be seen that the above provisions apply only to negotiable paper ; the remedy upon lost bills or notes not negotiable remains the same as it existed previous to the Revised Statutes. The party is himself a competent witness to prove the i R. S. 406, § 76. Davs of Gkace. 09 loss of a bill or note, but nothing more ; and in all cases whenever ii party is permitted to prove, by his own oath, i he loss of any instrument, in order to admit other proof of the contents thereof, the adverse party may also be ex- amined by the Court on oath to disprove such loss, and to ;. '-count for such instrument. 1 It must appear affirmatively that the note or bill was ne- gotiable, or the plaintiff will he entitled to recover without giving the bond, and the burden of proof lies upon the de- fendant to show that the instrument was negotiable, as it is settled that the Court will not presume a lost note to be ne- gotiable.' 2 An action docs not lie on a Bank check against the drawer until after notice of presentment and non-payment. 3 When a bill or note is payable at a certain day, as so long after date, after sight, or after demand, it is not payable at the time the Avoids naturally import, but the maker or ac- ceptor has till the third day after, and exclusive of the day expressed in which to make payment, and has the whole of this third day in which to pay, and no action can be brought against him till the morning of the next day. Thus, when a note is made payable the first day of May, it is not due .till the fourth, and an action cannot be brought on it till the fifth. 4 If the third day of grace fall on Sunday, the demand should be made on the da}' preceding the third day of grace.'' At the session of the Legislature of 1870, the following statute was passed in relation to holidays : An Act to amend an act to designate the holidays to be ob- served in the acceptance and payment of bills of exchange and promissory notes, passed April fourth, eighteen hun- dred and forty-nine. Passed April 23, 1870. The People of the Stale of 'New York, represented in Sen- cte and Assembly, do enact as follows : Sec. 1. The following daj r s, viz : the first day of Janu- 1 12 Wend. 173; 2 R. S. 327, § 90. 3 20 Wend. 192; 21 Wend. 372. 2 3 Wend 314; 12 Wend. 171, Ncl- 4 8 Cow. 203; 25 Wend. G73. son Ch. J. 6 2 Hill, 537. 100 Day's -of Grace. my, comirtouly called New Year's day, the twenty-second day of February, the fourth day of July, the twenty-fifth day of December, and any day appointed or recommended by the Governor of this State, or the President of the United States, as a day of fast or thanksgiving, shall, for all pur- poses whatsoever as regards the presenting for payment or acceptance, and of the protesting and giving notice of the dishonor of bills of exchange, bank checks and promissory notes, made after the passage of this act, be treated and con- sidered as is the first day of the week, commonly called Sunday; and. when cither of those days shall occur on Sun- day ,'the following Monday shall be deemed a public holiday, and any bill of exchange, bank check, or promissory note made after the passage of this act, which, but for this act, would fall ddc and payable on such Sunday or Monday, shall become due and payable on the day following such Sunday or Monday. ^ 2. All acts and parts of acts inconsistent herewith are hereby repealed. ^ 3. This aet shall take effect immediately. The following statute recently passed, clearly defines what commercial paper is not entitled to days of grace : ^ 1. All bills of exchange or drafts, drawn payable at sight at any place within this State, shall bo deemed due and payable on presentation,, without any daj-s of grace boing allowed thereon. § 2. All checks, bills of exchange, or drafts, appearing on their face to have been drawn upon any bank or upon any banking association or individual banker, carrying on banking business under the act to authorize the business of banking which arc on their face payable on any specified clay, or in any number of days after the date or sight thereof, shall be deemed due and payable on the day mentioned for the pay- ment of the same, without any days of grace being allowed and it shall not be necessary to protest the same for non- acceptance. § 3. "Whenever the residence or place of business of the endorser of a promissory note, or of the drawer or endorser of a check, draft or bill of excuwige, nau\\ be in the city or Notice or Nox-fayhext. 1,01 town, or -whenever the city or town indicated v. ^der the en- dorsement or signature of such endorser or drawer, as bis or her place of residence, or whenever in the absence of such indication, the city or town where such endorser or drawer, from the best information obtained by diligent in- quiry, is reputed to reside, or have a place of business, shall be the same city or town where such promissory note, «he.ck, draft or bill of exchange is payable or legally presented for payment, or acceptance, all notices of non-payment and of non-acceptance of such promissory note, check, draft, or bill of exchange may be served by depositing them, with the postage thereon prepaid, in the post-office of the city or town where such promissory note, check, draft,, or bill of ex- change was payable, or legally presented for payment or acceptance, directed to the endorser or drawer, at such city or town. § 4. This act shall take effect on the first day of July next, but shall not apply to any bills of exchange, checks, drafts, or promissory notes bearing date prior to that time. If a note payable in specific articles fall clue on Sunday, it shall be adjudged payable on the Monday following. 1 A bill or note may be endorsed after it is due, in which case it must be demanded, and notice given in a reasonable time, as in cases of bills payable at sight. 2 A full indemnity given by a maker to the endorser, to se- cure him against his liability as endorser, or a promise to pay by the endorser, with a knowledge that no demand was made, will, in either case, dispense with demand and no- tice. 3 Due presentment for payment, and notice of non-payment are conditions precedent to the liability of an endorser of a promissory note. 1 No precise form of Avoids is necessary in giving notice. It is sufficient if the language used is such as to convey, either in express terms or by necessary implication, notice to the endorser of the identity of the note, and that pay- 1 i c ow# T,\ 223. i Cayuga Co. Bank vs. Warden ot. al ; •i 9 John. 121; 1 Coiv- Tr. 237. 1 Comst,413. 3 17 "Wend. 489. 102 Notice of Nost-Paymext. ment on due presentment has been neglected or refused by the maker. Where a notice misdescribes the note in some particular, it may. be shown in aid of the defect that there was no other note in existence to which the description con- tained in the notice could be applied. A notice of protest need not in terms state (hat a demand has been made upon the maker. It is sufficient if it slate that the note has been protested for non-payment. An endorser of a note does not dispense with the neces- sity of presentment for payment, and notice of non-payment by taking from the maker security against his liability. 1 A note delivered by the maker without consideration therefor to a third person, to enable the latter to raise money thereon for the maker or himself, has no legal inception in his hands. If ho negotiates the note upon a usurious con- sideration it is void. 2 A notice of the non-paj'ment of a note may be directed to the endorser in a village, where he has an office, for the transaction of his business, and is in the habit of receiving his letters, although he may reside in a neighboring village in which a post-office is located, where he receives some of his letters. 3 In an action upon a negotiable promissory note payable to bearer, or endwsed in blank by the payee, possession of (he note by the plaintiff is prima facie evidence that he is the owner of it for a good consideration, and evidence that the possessor did not obtain the note until after it became due, does not rebut such presumption. The case of Bris- bane vs. Pratt, (4 Denio, G3,) commented upon, and its cor- rectness questioned. ' A note made by C. and payable to N., or bearer, was, be- fore maturity, offered to the plaintiff by N., in part payment for a horse. The plaintiff refused to receive it unless X. would endorse it, or guarantee the payment, or put his name to it, Avhereupon N. signed his name under C.'s, and delivered the note to the plaintiff. Held that he thereby 1 8 KcrtiHH, 55. t James vs. Clialmors, 2 Sdden 200; - Catliti vs. Giinter. 1 K<-rnnn, 308. 17 Barh. 230; 18 Barb. 344 j in •"■ S Sotilen, 491, 480. Burb. 147 Notice of Non-Payment. 103 made himself jointly and severally liable with C. as maker, and that an action could he maintained by the plaintiff against both. 1 The discounting of a new note, and the application of the proceeds realized from it to the paj r ment of a former note, extinguishes the old debt and creates a new one. 3 Creditors who have taken a new security in the shape of a promissory note, upon extending the time of payment of a debt, shall not, by an allegation of their own turpitude, set aside the new security and resort to the original indebt- edness. Yet if the debtors themselves take the initiative in avoidance of the new note as being usurious, either by de- fence in a suit upon it alone, or in a suit upon the original security, the plaintiff may recover upon the original notc. ;i "Where the date of a promissory note is left blank, the holder may fill up the blank with any date within the month named, without invalidating the note. All the parties to a note designed for circulation, arc presumed to consent that the person to whom the same is entrusted for the purpose of raising the money, may fill up the blank date.- One who writes his name upon the back of a non-ncgu-. tiable note, may be held liable by the holder as guarantor or maker, and is not entitled to notice of demand or non- payment. The holder may use the endorser's name with a contract of guaranty, or as maker of the note/' A note given to procure an officer to violate his official duty is against public polic}', and void in the hands of the original payee, or any subsequent holder thereof, with knowledge of its character." 1 The -whole duty of the holder of a protested bill is dis- charged by notice to his immediate endorser, and all parties to the bill or note •will be charged, if they receive notice in due course, from their immediate subsequent endorsers. 7 1 19 Barb. 248. * Paige vs. Morroll, 3 Keyes, 117. 2 Fisher vs. Marvin, 47 Barb. 150; « 40 N. Y. 491, 1 Keyes, 570, and 9 N. T. 463; 24 Wend. 115. cases cited. 3 Winsted Bank vs. Webb and others, 6 36 n. T. 531, Devlin vs. Brady. 4G Barb. 177; 5 Wend. 695, and ' The West River Bank vs. I. B. cases cited. Taylor, 34 N. T. 128. 104 Of Guarantees. The holder of a promissory note, transferred in payment of a note already due, is a holder for value. 1 When a promissory note is not made payable at any particu- lar place, generally, in order to charge the endorser, payment must be demanded of the maker at his place of residence or business. Yet there arc various exceptions to this rule. If the maker has no known residence or place of business, the holder will be excused from making any demand whatever. So, if in the intermediate period between the time when the note was made, and when it became due, the maker has re- moved his domicil or place of business to another State, the holder will be excused for non-presentment for payment, and will be entitled to the same recourse against the endor- sers as if there had been a due presentment. It will, in such a case, be sufficient to present the note at the maker's former residence or place of business. 2 * The addition of the name of another person to a several note as maker, without the knowledge or consent of the original signer, is not such a material alteration as will avoid the note. 3 The signature of a notary to a notice of protest need not be in writing, it is sufficient if it be printed. 4 Of Guarantees. A guaranty of payment endorsed on a promissory note though given at the time the note was made, and in order to afford additional security to the payee is not itself a promissory note. 5 It is a special promise to answer for the debt or miscarriage of another person, within the language and spirit of the statute of frauds, (2 E. S. 135, § 2,) and to be valid must express the consideration on which it was made. Where a debtor settles an account with his creditor, and 1 31 N. Y. 113. 4 28 N. T. 5C1. 2 Adams vs. Leland, 30 N. Y. 309; «IU1 vs. Farmer & Dootiule, 5 3Dcnio,145; 24N.Y.28. Denio, 481, Bcardsley Cli. J. •'1 BrowneU vs. Winnie, 29 K. Y. 400. Note — Quorc (?) w!n>t!iur In: is obliged to make anv demand in such cases. 21 N. Y. 28. Of Guarantees. 105 gives his note for the balance duo payable on demand, and at the same time procures a third person to endorse on the back of the note a guaranty of the payment thereof, and delivers it with the note, such guaranty is void by the statute of frauds, unless a consideration be expressed therein. Such an undertaking is void, because it is founded upon no con- sideration in fact, there being no new advance nor any new credit given. 1 Where the payee and holder of a promissory note trans- ferred it to his creditor in exchange for his own note, held by such creditor, and at the same time executed on the back of the note transferred a guaranty of the payment thereof, held that the guaranty was not within the statute of frauds, and was therefore valid although it expressed no considera- tion? Such an undertaking, although in form a promise to an- swer for the debt of another, is in substance an engagement to pay the guarantor's own debt in a particular way, and would be good without any writing. It falls within the third class of cases mentioned by Kent Ch. J., in Leonard vs. Vredcnburgh (8 J. E. 389,) where there is a new and dis- tinct consideration moving between the parties to the new promise. The terms of a guaranty must be strictly complied with, or the guarantor will not bo bound. Thus, where J. being desirous of purchasing goods of the plaintiff on credit, procured a letter of guaranty from the defendant to. the plaintiff, by which the defendant promised to be surety for the amount of the goods to be paid January 1, 1840, and the plaintiff, sold the goods to J. and took his note payable December 25,, 1839, held, that the defendant was not bound by his guaranty, although the plaintiff did not require pay- ment from J- until after January 1, 1840. 3 "Where one contracts in the form of a guaranty upon the back of a promissory note, he cannot bo made liable as en- dorser, nor can he set up in his defence the want of demand 1 2 Cimist. R. 553, in Court of Ap- 3 Walrntli vs. Thomson, 2 Comstoclc, peals. 185. 2 Brown vs. Curtis*, 2 Cuni*t«rk, 225, 533. 106 Of Guarantees. and notice. The mere neglect of the holder of a note to sue the maker does not discharge the guarantor, although the maker becomes insolvent. 1 A general letter of credit authorizes any person to whom it is presented to act upon the proposition therein contained, and where any person does act thereon, a contract arises between him and the maker of the instrument in the same manner as if it had been addressed to him by name. 2 Where a note not negotiable, is endorsed by the payees generally, such endorsement does not amount to a guaranty/' In such a case the payees may be treated as endorsers, and where that can bo done, it seems the holder has no option to proceed against them as guarantors. 4 In a suit upon a note thus endorsed against the makers and endorsers, presentment of the note by the owner, need not be averred. Au action will not lie upon such a note by the endorsee against the makers and endorsers jointly. A guaranty that a demand is collectable is a conditional promise binding upon the guarantor only in case of dili- gence. 5 After the guarantor of a note has been discharged by tho laches of the holder, there is no moral obligation to pay it, and he cannot bo again made liable, even upon an express promise. A person who guarantees a note is in no sense a party to the note. A guaranty is a special contract and must be specially declared on. The law will not imply a contract of guaranty where the evidence shows that the defendant un- dertook to be bound as endorser. Where parties have agreed upon an express contract, the. court will not imply one of a different legal cffei-t and obligation. A guaranty should be construed by tho same rules that are applied in the construction of other instruments. The 1 2 Comstock, 225. 4 Id. This decision was made under 2 Union Bk. vs. Coster's Executors, the Code. See Code, § 119, 107. 3 Comstock, 203; 20 Wend. 184, 5 Vanderveer vs. Wright, 9 Barb. 201; 24 Wend. 35; 4 Iliil, 200. 517; 5 do. 501 3 White vs. Low. 7 Barbour, 204, Hand J. Of Guarantees. 107 leading rule is to ascertain from the written instrument the intention of the parties. The whole context of the instru- ment should be considered and applied to the transaction to which it relates, with a view of ascertaining the intention of the parties. 1 The following classes of contracts arc, by a statute, ordi- narily denominated the statute of frauds, required to be in writing, Avith the consideration exjwessed, and to -be subscribed by the party, to be charged therewith, viz : 1. Every agreement that by its terms is not to bo per- formed within one year from the making thereof. 2. Every special promise to answer for iho debt, defaidt or miscarriage of another. 3. Every agreement, promise or undertaking made upon consideration of marriage, except mutual promise to many. 3 4. Every contract for the leasing for a longer period than one vear, or for the sale of any lands, or any interest in lands.' 5 Under the first class of the contracts mentioned in the preceding section, it is held that agreements which may be completed within a year arc not included as an agreement to furnish materials and build a house within fifteen months, for the terms of the contract do not provide that it may not be d6ne within the 3-ear. ' But where in January, 1841, one agreed to clear oft' a lot of Avood land for another, so as to have it ready for a crop in the spring of 1842, and Avas to have for his labor the right of putting a crop upon it in the .spring of 1842, it Avas held that the contract Avas void be- cause the part of the agreement giving the contractor the use of the land for the crop to be put in in 1842, extended the period of its performance beyond one year. So an iigreciiicnt to Avork two years for one hundred dollars, for ihe implied agreement is that the money is to be paid at the end of the tAvo years/' In order, hoAvever, to render the contract void, it must be, necessarily, incapable of perform- ance AA'ithin a year." 1 The Farm, and Mecli. Bk. vs. Ev- * 15 AVond. 336. ans. 4 Barb. 487. s 2 Denio, 87. - 2 R. S. 135, § 2, [.(tli cd. p. SU.l 6 13 Wend.' 307. 3 2R. S. 135, § 9, [-Itli cd. |t. ill ft. I 108 Of Guarantees. Under the sj;coxd class, promises to answer for the debt, default or mis',arriagc of another, it is held that in order to render the contract void, it must bo one -where the con- tractor becomes strictly a surety or guarantor, and not one where he enters into an original obligation to pay his own debt by paying an existing debt of another person, or by having it paid by another person previously indebted to him. Thus, where A. is indebted to B., and C. in consideration of one dollar paid to him by B., agrees that A. shall pay the debt, the case is one of guaranty, and the agreement must be in writing, having the consideration expressed and the signature of the contractor. But where A. promise B. upon a good consideration, that a stranger will pay a sum of money, or do any other act, this is an original undertak- ing and not within the statute, and it makes no difference whether the stranger is under an obligation to do the act or not. If A. sell and deliver his horse to B. upon a promise by the latter that C. will pay him one hundred dollars, the agreement is just as obligatory as it would have been had B. promised to paj r the money himself, and in neither case is a writing essential. And if in such a case, B. deliver A. the note of C. for one hundred dollars, and agree that it' shall be paid at maturity, or that it may be collected by due process of law, it is still an original undertaking and. not within the statute. 1 So where C. holds the note of A., and purchases something of B., and in payment gives him the note and promises to see it paid ; or whore C. was indebted to B. and gave to him the note in part payment, and prom- ised to see it paid ; in these cases the contract is an original one and need not be in writing, or if in writing, need not express the consideration. 2 Upon the same doctrine, where the defendant owed J. S.„ and J. S. owed the plaintiff, and J. S. directed the defendant to pay the amount to the plain- tiff, his verbal promise to the plaintiff to pay it was held good. 2 The signature of sureties to an instrument so drawn as to express an obligation to pay on the part of the principal 1 i Hill, 173; 2 C.imst. 225. 5 8 Barn, and Cress. 812. Of Guarantees. 109 atone, is held an effectual promise within the statute, as a blank endorsement, or a signature to a promissory note. 1 Where, however, one writes to another that if he will let a. third person have goods on credit he will see him paid, the consideration is sufficiently expressed, and it is held a good compliance with the statute. 2 Here, it will be seen the contract was in writing, signed by the contractor, and the consideration was expressed. But if the promise had been a verbal one, it would have been void. Thus, if I tell A. that if he will sell an article to B. upon credit I will see it paid, my contract is void, for it supposes a credit to B. which I guaranty. So if I tell him to sell goods to B. and charge it to us both, for here I become merely B.'s surety. If, however, I tell A. to sell goods to B. and I will see him paid, this is regarded as a sale to me and not to B., and the contract is good, for there is ■no debt against B. It makes no difference in the rule that the guarantor has had property placed in his hands to indemnify him, and to pay the debt. 3 The question in all these cases, is whether the contract is to pay one's own debt or the debt of another. Where there was an original debt, and the guarantor at- tempts to become a surf ly for it, or where he attempts to become jointly liable v ith another for a debt which he is about to contract, the agreement is within the statute, and must be in writing, expressing the consideration, , and be signed. Under the tiii;{D class it has been held that an ante- nuptial agreement to support the daughter of the wife is void, imless in writing, expressing the consideration. 4 The terms of the statute expressly extend it only to pay money or perform some act in consideration of the marriage. A promise contained in a letter, to give a certain fortune with one's daughter in marriage, is a sufficient contract within the statute. 5 Under the foukth class, verbal agreements to extend the time for performing a contract for the sale of land, 6 for the 1 2 Hill. CG3. * 11 Paige, 257. 2 3 Comstook, 203. s Com. on Cont. 72 to 75. s 12 John. 201. 6 15 John. 200. 110 Of Guarantees. purchase of growing limber, grass or fruits, 1 and for the sale of a pew in a church, are within the statute and void. But a verbal lease for a term not exceeding a year, although it is to commence at a future day, has beeu upheld. So a contract to sell a growing crop may bo made by parol. The reason of a different rule in the latter case from that where growing timber is sold, is that grow- ing timber or grass being the natural products of the soil, are considered real estate, while cultivated crops are chattels, and neither lands nor real estate. There is a variety of property attached to a freehold which is so fixed as to be in readiness to be severed, and ca- pable of being separated from it without violence, which the courts hold may be sold Avithout a written contract ; such as ripe crops, millstones, gravel, buildings and fixtures. When the owner sells them as personal property, the law so regards them. But it must be a sale contemplating an im- mediate severance of them from the freehold in their present condition. 3 ' The defendant wrote to the plaintiff, a dealer in leather, in behalf of M. E. McGee, a shoemaker, the following letter : "Sir — I will be responsible for what stock M. E. McGee has had, or may want hereafter, to the amount of five hun- dred dollars." Held, a ■ continuing guaranty, and not exhausted' by purchases of, and payments for stock to the amount mentioned. Held, also, that it expressed the consideration within the requirements of the statute of frauds. 3 A contract to guaranty the debt of a third person must be in writing, and express the consideration upon which it is made, or it will be void. The consideration cannot be suppressed by parol proof. A guaranty written beneath a promissory no'te of a third person, and delivered with it upon a previous agreement, is not a part of the note, and the guarantor is not a joint maker with the maker of the note. It is a distinct contract, and must comply with the requirements of the statute of frauds. 1 1 Barb. 513. 3 3 Reman, 232, and many cases cited * 4 Kent's Cora. 161. by Denio J. Of Guaraktees. Ill The consideration of a guaranty may be the credit given to the principal debtor. The expression hi the contract, "for value received," would be a compliance with the statute. The cases of Leon- ard vs. Vreedenburgh, (8 John. 28,) Marrow vs. Durham, (3 Hill, 584,) Lequeer vs. Prosser, (1 Hill, 256,) and Oakley vs. Boorman, (21 Wend. 588,) commented upon and disap- proved. 1 A contract to guaranty the payment of a promissory note, although made simultaneously with the note, and written upon the same paper, and upon a consideration advanced on the credit of the guarantor, conformably to a previous understanding, must express the consideration upon which it is made, or it will be void. 2 In an action upon a guaranty indorsed upon a promissory note, it is not necessary to prove by witnesses the signature of the maker of the note. This is sufficiently proved as against the guarantor by proving his execution of the guar- anty. Where a guaranty is written upon a note, and the note is transferred, the sale and delivery of the note, with the guaranty upon it, furnishes prima facie evidence of a sale of the contract of guaranty. And the possession of the note and the guaranty is prima facie evidence if a right in the holder to the guaranty, and will authorize him to maintain an action thereon, unless it be shown that the contract of guaranty was not transferred, and at the time the note was transferred. When a guaranty is expressed to be "/or value received," the consideration is sufficiently expressed to satisfy the re- quirements of the statute of frauds. 3 One who guarantees the payment of a bond assigned by him thereby estops himself from denying in an action on the guaranty, that the makers of the bond were competent to contract in the manner they did. 4 The sureties on a deputy sheriff's bond are not concluded 1 Snow & Brewster vs. Silence, 4 3 Cooper vs. Dedrick, 22 Barb. 516. Solden, 207, and cases cited. *■ Kemscn vs. Graves, 41 N. T. 471. 2 20 Barb. It. 298; 25 Barb. 625. 112 Of Guarantees. by a recovery against the sheriff where they had no oppor- tunity to appear and defend. 1 The same on an administrator's bond.'- After a guarantor of rent has become fixed and liable for rent in arrear, such liability can only be discharged by pay- ment, release or other satisfaction. It will not be discharged by a surrender by the lessees of the unexpired term, and the possession of the demised premises, withdut the knowl- edge or consent of the guarantor, upon an agreement that the lessor will release his claim for rent yet to accrue, but that such surrender shall not affect his claim for rent. already due. 3 A guaranty indorsed upon an agreement for the sale of goods, and bearing even date therewith, by which a third person promises as follows : "I will be responsible for all such goods as Mr. White shall buy of the Messrs. Church within one year from date, which shall not be paid for ac- cording to the terms of the within contract," is void, for want of a consideration expressed therein. The decision in Brews- ter vs. Silence, (11 Barb. 144 ; 4 Selden, 207,) reaffirmed and held to be the existing law, notwithstanding the case of the Union Bank vs. Coster's Executors, (3 Cow. 203.)' "Where a guaranty of a promissory note is a separate in- strument from the note, title to it will pass by delivery, with the note for a good consideration. A written assignment is unnecessary. The transfer of the note guaranteed, and the delivery with it of the guaranty, carries with it the title to the guaranty without any written assignment. 5 One Avho guarantees in writing the payment of a bond assigned by him, thereby estops himself from denying in an action on the guaranty that the makers of the bond were competent to contract in the manner they did, and that the instrument is a binding obligation upon the makers. 6 A guaranty of the collection of the amount of a bond 1 Thomas vs. Ilubbell, 35 N. Y. 120. Gould vs. Ellory, 39 Barb. 163 ; 9 '■* 35 N. Y. 256. Wend. 80; 23 Barb. 4G1. 3 Kingsbury vs. Williams, 53 Barb. 6 Eeinsen vs. Graves, 41 N. Y. 471) 142, and cases cited. 15 N. Y. 502 ; 34 Barb. 208. 1 Church and others vs. Brown, 2',) Barb. 4S0. Of Guarantees. 113 and mortgage as it becomes due, is but an undertaking on the. part of the guarantor that the' debt will be paid, if the principal be prosecuted with reasonable diligence, and the former is discharged by want of such diligence on the part of the creditor to prosecute the principal debtor to judg- ment and execution. 1 Where the facts arc undisputed, the question of what is reasonable diligence is a question of law for the court, and a delay of prosecution for six months after the debt has be- come due, where all the principals reside in the State, and can be personally served, is not a reasonable diligence, and discharges the guarantor.' 3 A contract to be accountable that B. Avill pay you for glass, paints, &c, which he may require in his business to the extent of $50, is a continuous guaranty. The limitation is not of the credit to B., but of the extent of the guaran- tor's liability. The doctrine of Gates vs. McKec, (3 Kernan, 232,) reaffirmed." 5 M. S. addressed a letter to S., introducing A. to him in the following words : Brooklyn, February 24, 18G2. Dear Sir : This note will introduce to you Valentine Arnott, I spoke of to you on the 2 2d inst. He wishes to purchase some pure liquors on a credit of three months, for any amount not exceeding $100. I consider him perfectly good, and if required will indorse for him to that amount. To I. O. S., 10 Broadway. M. S. The liquors were sent upon this letter of recommendation. It was held : 1. That the letter was not in itself a guaranty to the plaintiff for the price of the goods sold to A. 2. That the guaranty was conditional, to be created if required, and thereby indorsement only. 3. That the defendant could not be made liable in any other form, until after a refusal by him to indorse A.'s note. 4 1 Craig vs. Parkis, 40 N. Y. 181. * Stqckbridge vs. Schoonmakor, 45 2 3 Kernan, 232. Barb. 100; 13 John. 07. 3 Rindge vs. Judson, 24 N. T. 64. 114 Injuries to the Persox. Of actions for damages for an injury to the person, to real properly, and for taking, detaining, or injuring personal property, cognizable in Justices' Courts. 1 Under the ancient system of pleading, the cases which arc comprehended under this classification, found their rem- edies in actions of trespass, trespass on the case, detinue and replevin. "Where an injury to one's person or property was a direct one, the appropriate aetiou was trespass ; where it was in consequence of the defendant's wrongful or negligent act, it was trespass on the case ; where it was for unlaw- fully taking one's personal property, it was an action on the case called trover, or if the plaintiff wished to recover the propcrtj', replevin ; and where for unlawfully detaining property, detinue or replevin. There were a great variety of rules of pleading and evidence peculiar to the different actions. With the abolition of the forms of action, most of these arc superceded, and all the remedies furnished by each oi ibe ancient forms, are now to be obtained by the "civil action." 2 In considering the injuries treated of in this chapter, the subdivisions indicated in their enumeration will be followed. 1. Actions for injuries to the person. 2. Actions for injuries to real property. 3. Actions for taking, detaining, or injuring personal propertjr ;. and as many of the causes of action arising under each of these divisions, arise from the acts of persons acting under color of law or of legal process, in a further subdivision. 4. The rights and liabilities of persons acting under color of law or legal process, will be examined. 1. Actions for Injuries to the Person. — The exclusion from a Justice's jurisdiction of actions for assault and bat- tery, false imprisonment, libel, slander, malicious prosecu- tion and seduction, provided by the Code of Procedure, 3 extends to all cases of wilful direct injury to the person, and 1 Code of Procedure, § 53, ». 2; 4lli 3 Code of Procedure), § G-l. cd. R. S.vol. 2, p. 488. 2 Code of Procedure, §§ 69, 64, sub, 10} 4th ed. R. S. vol. 2, p. 493, 491. Injuries to the Person. 115 limits it to cases where the injury js a consequence of some wrongful or negligent act. Such act or negligence may be committed either by a defendant or his servant or ageni. The general rule is, that where any one either personally or by his servant, does an illegal act, or a lawful one in such a negligent manner that it is likely to produce an injury to others, he is answerable to every person who is in conse- quence of it injured. 1 If, however, the plaintiff by his own negligence contrib- uted at all to the accident, he cannot recover, unless the case was one of wilful or gross negligence. This is not tolerated, whatever may have been the plaintiff's negligence. 3 Thus the action may be maintained where an injury was received by being run against by the defendant in the high- way in a dark night, the defendant being no otherwise blamable than by driving on the wrong side of the road. But where a child of such tender age as not to possess suffi- cient discretion to avoid danger, was permitted to run in the highway without an attendant, and was there run over by Ihe carriage of a traveler and injured, an action was held not to lie by him against the traveler, without showing that the injury was voluntary or wilful. The child was negli- gent, and though incapable of knowing how to avoid the danger, was held bound by the same rule as an adult, if he exposed himself to it. 3 Injuries for which damages may be recovered, may happen from accidents arising from a very slight degree of negli- gence, as well as from those where there has been a gross disregard of the rights of others ; as the injury from being run against in the highway in the night, occasioned by the defendant's driving on the wrong side of the road : 4 where the defendant drove a high spirited horse which he ciuld not control, and it ran against the plaintiff, or where the injury was occasioned by carelessly pulling the wrong rein in driv- ing, or by fastening his horse by an insufficient halter, which 1 14 John. 432; 4 Dcuio, 4G4. 3 21 Wend. 615; C Hill, 592. 2 21 Wend. 188; 6' Hill, 592; 8 Kcr- * 14 John. 432. nan, 9; 2 Id. 425; 1 Id. 432; 4 Selden, 175-222; 3 Id. 493, and cases cited. 116 IxjUEIES TO THE PERSON. lie broke ; the unskilfully building a wall which full and injured the plaintiff; or the digging a pit in the highway iuto which the plaintiff fell. If the injury happen from unavoidable accident, neither party is responsible for it. It is, therefore, necessary for the plaintiff to show that there was negligence on the part of the defendant, and then if it appear that the plaintiff by his negligence contributed even slightly to the injury, the defendant is entitled to a judgment. The injuries may also arise from the negligence of one's servants or agents engaged in the transaction of his business. In this case, the action may be brought against the princi- pal and his agent, or the master and his servant jointly. 1 It is otherwise, however, if the injury were occasioned by the agent's or servant's wilful act, excepting in the case of in- juries to passengers in a carriage kept by a common carrier of passengers. In the hitter case, the owner of the carriage is responsible for the wrongful acts of his servants by which his passengers may suffer. 3 It has been remarked that one is liable for injuries sus- tained by the negligence of his. servant. Thus, if a servant in the course of his master's business, negligently drive his cart against the carriage of another person, by which he is injured, or if he obstructs the highway by which a traveler sustains an injury, the master is liable. 3 The question which governs the liability is, whether the act was one which the servant can justify to his master. Thus, in an action against the master for an injury occa- sioned bv the obstruction of a highway by a pile of wood, laid tliei^ by his servant where it appeared that the master had been accustomed to lay his wood for several years, and that the servant while he was sick, and without his knowl- edge, had placed it there, it was held that this was an act in the course of his business as a servant, and the action was sustained. 4 In such a case, if the wood pile had been placed 1 1 Cowen, 100j 0. Cowcn, 071; 19 3 g Cowcn, 189. Wend. 313. * Id. 2 1 R S. GOG, § 6, [4lh od. vol. 2, p. 105.] 19 Wend. 343. Injuries to the Peksox. 1 17 on the defendant's land, within the road fences, but not within the true lines of the highway, the act would have been excused. The owner need not fence up to the boun- ' daiy of the highway ; and if he does not, he may place an obstruction without his fences and out of the road, without being liable to another for an injury in consequence of it.- The liability for injuries arising from the negligence of servants and agents, extends to the acts of subordinate per- sons employed by the agents for a party in any of his busi- ness which requires their services. Thus, where one employs another to build a chimney, and he lays lime in tbe high- way, by which a carriage is overturned and an injury ensues, the employer is liable. So, where the owner of a farm em- ploys an agent to work it for him, and he employs servants who are paid from the funds of the principal, the principal and not the agent is responsible for any injury sustained by their negligence or want of skill. In these cases there is an implied authority in the agent to employ the subordinate agents, 1 and he is not responsible for their negligence. 3 Wherever a master becomes liable for an injury sustained inconsequence of his servant's negligence, he can maintain an action over against him for the damages he is compelled to pay in consequence of it. 3 It is provided by statute that whenever any persons trav- eling with carriages shall meet upon a public road, they shall seasonably turn their carnages to the right of the centre of the road, so as to permit them to pass without interference or interruption. 4 The term carriages includes all classes of vehicles used for the transportation of persons and property. The right of the centre of the road is held to mean the right of the centre of the worked part of the road ; although the whole of the smooth or most traveled path may be on one side of the centre. The traveler should therefore in passing, keep the right of the centre of the worked part, although the traveled path lie entirely on the left of that centre, so as to render it necessary for him to 1 5 Earn. & Cresa. U1. * 1 R. S. 005, § 1. [1th ed. vol. '1, p 2 6 Term, ill. 104 ] 3 Reeve's Dom. Rel. 377. 118 Injuries to the Person. turn completely to the right of it and leave it entirely to the person he is meeting. And it is held to be no defence to an action for collision, that he attempted to prevent it; that the road on his side was rough and rutty, and that it was more difficult for him than for the other party to turn out. Unless the obstacles to turning out arc insuperable or extremely difficult, he is without excuse. 1 But the rule requiring persons meeting each other on any turnpike road or public highway, to keep their vehicles to the right of the centre of the worked part of the road, does not apply to the winter season, when the depth of the snow renders it impossible or difficult to ascertain the centre of the worked part of the road. It is a reasonable construction of the statute to define the centre of the road when obscured by snow, to be the centre of the beaten or traveled track, without reference to the worked part. 3 Within the rule governing in the cases of injuries by neg- ligence, and the law of the road as provided by the statute, where a collision happens upon a highway, it would in ordinary cases be sufficient to show that the plaintiff was on the right side of the road, and that the defendant drove against him. This would fix negligence upon the defendant ; for he could not insist that the collision was unavoidable, which he might have prevented by keeping on his own side of the road. Yet if the street is sufficiently wide, although the defendant were on the wrong side of it, the plaintiff would not be justified in crossing over to it and interfering with him, merely because the law authorized him to drive upon that side ; and if in consequence of his doing so, the defendant unintentionally ran into his carriage or against him, the plaintiff would have contributed by his negligence to the injury, and would be entitled to no damages against the defendant. 3 It is, therefore, held that the rule of the road is not to be held strictly, where by departing from it injury can be avoided. Prima facie, the party on the wrong side of the road is liable, but if it bo shown that the part}' 1 7 Wond. 185? 17 Hari>. P-l. 3 3 Esp. 6S3; Id. 44; Id. 273. 2 12 Bur.!). 013, Ilubbar.l I. Injuries to the Peesox. 1 19 oil the right side might easily and conveniently avoid the collision, he will be without remedy for the injury he has sustained. 1 The same rule which prevails in relation to injuries by collisions upon the road, prevails in relation to injuries sus- tained by vessels running foul of each other, with this mod- ification. If the collision is occasioned by the carelessness of the person injured, or if he in any degree contributed to it, he cannot recover from the other. If a passenger is in- jured by the negligent act of the persons navigating both vessels, he could bring his action against both or cither of them. The injury may arise from an act committed in violation of law, but without an intention to injure any one, as where one placed a pile of wood or other obstruction in the high- way by means of which the plaintiff was injured. 2 If, how- ever, the obstruction is in such a position as to be plainly visible and easily avoided, if one in the day time carelessly drive into it and is injured, it is his own fault. 3 And if the highway was one claimed, not by having been laid out, but by user alone, and was in fact but two and a half rods wide, and it being questionable whether the wood was actually within the road as established by the use, it was held prop- erly left to a jury to determine whether or not the wood was in the highway, for all the land within a highway fence is not necessarily subject to the right of way, and when it is not, it may be occupied by the owner, and if he place an obstruction there, he is not liable for an injury which another sustains by running against it. 4 One is liable for injuries to the person arising from negli- gence in the keeping and care of domestic animals. If he keep an animal naturally wild or ferocious, and it escapes and injures any person, he is responsible for it. 5 He is not, however, answerable for injuries to the person of another committed by domestic animals, as horses, cattle, dogs and the like, unless ho has had notice that they had previously 1 3 Car. & Payne, 5'ii. * G Cowen, 180. 2 6 Cowen, 189. 3 2 Lcl. Raj'. 1083. 3 11 East, 60. 120 Injuries to the Peksojc. attacked persons. 1 If, however, be knows that his bull has attacked a man, he is answerable for any injury which he afterwards does, or if he knew that his dog had bitten man- kind, an action will lie if the dog bite one, though he care- lessly trod upon his toes.'' The owner's knowledge of the animal having previously committed a similar injury, must be shown, but it may be by circumstantial evidence. "Where one was severely bitten by a dog, and the owner promised to make her a pecuniary recompense, but there was no proof that the dog had previously bitten any one, the court held the circumstances were not sufficient to authorize a jury to inter the knowledge. 3 Proof that the defendant had warned a person to beware of the dog lest he should be bitten in one case, and in another that there was a report that the dog had bitten, and that his master had thereupon tied him up, was submitted to the jury upon which to find whether the owner knew of the dog being accustomed to bite. 4 Where the iujury is sustained from an animal known by the owner to be vicious, he. will be liable, although he has undertaken to secure it, if the means employed were not effectual. Every man may keep a dog for the protection of his house and property, and may cautiously use him for that purpose, and if any one go into his yard at night after the dog is properly let loose, if he is bitten no action will lie. 6 So if he is bitten in consequence of being on the land of the owner of the dog where he is not entitled to go. But if he have no means of knowing the danger and is not otherwise in fault, he may recover, although the owner had set up a notice warning people of the danger, which he being illit- erate, cannot read. 7 And where the defendant knowingly permitted to be at large upon his premises a ferocious clog, which would worry persons passing over his fields in the daytime,, although technically trespassers, he was held liable for the injury committed by him upon a person so trespass- ing. 8 1 1 Comst. SIS; 4 Demo. 127. •'• 3 Car. ft Pavnu, Vib. '■'■ Str. 1201 ; 13 John. 330. « 1 Esp. 203. " ■'< 4 Camp. 108. V 4 Car. & Payne, 207. J 1 Stark. 25-3; 2 E?i>- 183. S 17 \v c „d. 400. Injuries to the Peesos. 121 "\\ here, in an action to recover damages for alleged in- juries to the plaintiff's dog, inflicted by the defendant's dog, it is immaterial to show the character and habits of the defendant's dog, the plaintiff must prove that the defend- ant's dog was the aggressor in that particular fight. If the plaintiff's dog provoked the quarrel and caused the fight, the defendant, as the owner of the other dog, cannot be made responsible for the consequences. The cases in which dogs have attacked human beings, although trespassers, and their owners have been held liable, are not applicable to the case of one dog attacking another. A distinction is to be observed between keeping a dog which is dangerous to human life, and one that is unwilling to have strange clogs upon his master's premises, and is in the habit of attacking them and driving them off. Owners of valuable dogs are bound to take care of them and to keep them within their own precincts or under their own c}-o, as the rule is not general that when two dogs fight and one is killed, the owner can recover damages for his loss from the owners of the victorious dog. 1 Two dogs of unequal size, owned by different persons, in company killed sheep of the value of $19, and the jury in an action against the owner of the larger dog found a ver- dict against him for $12 damages. Held, that the jury had the right to say the larger dog did more damage than the smaller one, and that their apportionment of the damages could not be shown to be incorrect, and was therefore con- clusive. 3 The defendant's dog was identified as one of the two that killed the sheep by witnesses acquainted with it, Avho only heard it bark in the lot where the sheep were killed in the night without seeing it. Held, that it was a question for the jury to determine whether the dog had such a peculiar bark, that witnesses acquainted with the animal, could iden- tify it by only hearing it bark. 3 To hold the owner of a dog liable for an injury committed 22 Barb. CjO. 3 18 Wend. Ml. Wilbcr vs. Hubbard. 35 Barb. 30:1. 122 Injuries to the Person. by him, it must appear that the dog was vicious, and the owner knew it, or that he was a trespasser at the time of doing the injury. l If an individual knows that his dog is in the habit of fol- lowing teams driven by such person, and of watching them after they arc hitched and left by him, and if he knows that such dog is accustomed to attack and bite strangers ap- proaching teams so watched, he is liable for any injury done by the dog to a person lawfully approaching the team for the purpose of unhitching it. A man owning such a dog must secure it at home, so that it will not follow him. Where a dog which has the vicious habit of attacking am] biting other dogs, without being incited to do so, is suffered to go at large, and he attacks and kills the dog of a person lawfully coming upon the premises where he is, his owner is liable in damages for the value of the dog so killed, where . it is shown that such owner had knowledge of the vicious ness of his dog.' 2 A do" - which is accustomed to attack and bite other dojrs, without being incited to do so, is a vicious animal, whether it has been trained to such habits or not. Vicious dogs are a nuisance, and their owners must either kill or confine them, or answer in damages for injuries inflicted by them. Dogs in general have no fixed or general market value. If there is any particular breed or class of dogs which is generally or usually sold in market, and have established some fixed or general market value, opinions of witnesses are as competent to fix the value of such breed or class, as of any other marketable property. 8 In order to render opinions as to tho value of a dog com- petent evidence should be first shown that tho dog in ques- tion is a marketable animal. Opinions as to value, founded on mere taste or fancy of the owner, or the witnesses are not competent. 4 1 Fairohild vs. Bentlcy, 30 Barb. 117. * 17 Barb. 561, overruling the dc- 2 Wheeler vs. Bryant, 23 Barb. 324. cision in 23 Wend. 354. 3 Brown vs. Hoborger. 52 Barb. 15. Injuries to the Person. 123 The killing of a dog while in the act of chasing and wor- rying sheep being a justifiable act, no recovery can be had. Every person in possession of an;/ dog, or who shall suffer any dog to remain about his house for twenty days previous to the injury of the sheep by such dog, shall be deemed the owner of the dog for all the purposes of this title. In order to maintain an action under this statute, where the defendant denies that he is the owner of the dog, the plaintiff must prove that the defendant had the possession, or suffered the dog to remain about his house for twenty days previous to the injury to the sheep. 1 An injury to one's person is sustained when his health or comfort is impaired by any private nuisance, or any un- wholesome, noisome or offensive erection made by another, as a mill-pond which generates unwholesome odors, a hog- pen, slaughter-house, tannery, or other building where busi- ness is conducted which disagreeably infects the air of the neighborhood. And the action may be brought against the party erecting it, or any one who continues to use it. 3 It cannot, however, be maintained against the person who maintains it until after a request to remove it, although it may against the party erecting it. 3 To maintain the action, the nuisance must affect the plaintiff. A public nuisance, where the injury is common to all the citizens of the State, as an obstruction in a highway, or a navigable river, will not warrant it, unless the plaintiff has been actually injured 1))' it. But if he falls over it by which his leg is broken, or he be otherwise injured, the action will lie. There arc a variety of cases where a man is injured in the character of husband, father or master, as where on ac- 1 Strong vs. Newlin, 38 How. SCI; 2 5 Colco, 100, 101; Willcs, 5S3; 10 2 R. S. 4th cd. 112; 1 Donio, 500. Mass. 72. 3 Sec 7 Convci], COO, fill. .124 Injuries to the Person. count of the negligent acts of another, his wife, child or servant is hurt, where they are enticed away from him, or where one has criminal intercourse with his wife, or seduces his daughter or servant. The law affords a remedy in all these cases, but it is not always within the jurisdiction of a Justice. His jurisdiction, for this class of cases, is limited to actions "for an injury to the person" which is not "an assault, battery, false imprisonment, libel , slander, malicious prosecution, criminal conversation or seduction." 1 Actions for criminal intercourse with one's wife, daughter or servant, are excluded. In the cases, however, where a wife, child, or servant is injured by the negligence of another, as by an accident occasioned from his carelessness or inattention, or by the unskilfulness and negligence of a physician or sur- geon, the injuries are to the person, although not to the per- son of the husband, father or master, and not within the exceptions of assaults and batteries contained in the fifty- fourth section of the Code of Procedure. They would seem, therefore, to be within the jurisdiction of a Justice of the Peace, though in most cases, it would be better to bring the action in a court having general jurisdiction, or to bring it in the name of the person actually injured. 2 If the party injured be an infant, the action may be brought in his name as well as if he were an adult. 3 Enticing a wife from her husband, or a child or servant from its father or master is a good cause of action, unless where in the case of a wife, it be done by a near relative, as her father, and for good reasons. 4 In a case where the father of one's wife induced her to leave her husband, the presumption is that he had good cause for doing it until 1 Code of Procedure, § 53, sub. 2 and Ing it. 2 Root, 'JO; 1 Camp. 493; such § 04, sub. 3; 4th ed'. R. S. vol. i, cases, it is supposed, would rarely be P- 48S3. brought in a Justice's Court. 2 A Surgeon is liable to an action for 3 21 Wend. 015. negligence in unskilfully perform- 4 Reeve's Dom. Rel. 37C; 1 Black, ing an operation on the plaintiff's 373, wife, notwithstanding she died dur- Injuries to the Persox. 125 unworthy motives are shown. 1 And where a defendant per- mitted his wife's mother to live with him, although forbidden to by her husband, but without having enticed her away, and not opposing the husband in his attempts to reclaim her, an action was held not to lie. 2 It may be doubted whether the jurisdiction of a Justice of the Peace extends to this class of cases. They arc strictly "injuries to the person" although they are calculated to inflict severe mental suffer- ing, and whenever they occur without a good excuse, the damages of the suffering party may be safely estimated at a sufficient sum to warrant an action in a court of general jurisdiction. Prior to the adoption of the Code of Procedure, where one beat the minor child or apprentice' 5 of another, so that the latter suffered a loss of its service, or was put to expense in having it cured, he might maintain an action before a Justice of the Peace for the loss of service and expense to which he was subjected, though the action for the direct injury to the child was an assault and battery, and not within the Justice's jurisdiction. 4 The language of the Code seems, however, to exclude the action of the father for his loss of service and expenses, as well as that of the child for his in- juries. The former can hardly be called an action for injury to the person, although it is for a pecuniary loss in conse- quence of an injury to the person of the child. And it is clearly not one for "injuring personal property." 5 1 5 John. 196. i 1 Esp. 217; Reeve's Dom.Rel. 375, 2 3 Mass. 317. 370. 3 Cro. Jac. 618. 5 Code of Procedure § 53, sub. 2; 4th cd. R. S. vol. 2, p. 488. It may he useful in connection with the text, to embody here a condensed abstract of the general principles of law which relate to the corporeal punishment of minor children, apprentices and pupils in schools, laid down in Reeve's Do- mestic Relations, p. 374. A parent has the right to inflict moderate corpo- real punishment upon his child under full age, for disobedience to his lawful commands, negligence in his business, or insolent 'behavior. A master has the same authority over his apprentices and menial servants, to whom he stands in the place of a parent, but not to servants of full age, although members of his family. In ordinary cases, the master's wife does not possess the right, but if the servant is so young that the principal care over him is devolved upon her, +he duty of punishing him for improper behavior belongs 120 Injuries to Real Property. 2. Actions for Injuries to Ileal Property. — This class of actions may be maintained for any injuries which may be committed to real estate, whether direct or consequential. I shall discuss this branch of the law with particular re- ference to its application in a Justices 1 Court. This remedy, in its application to injuries to real property, may be considered with reference — 1st. To the nature of the property affected ; 2d. To the plaintiff's right thereto ; and 3d. To the nature of the injury, and by whom committed. The gist of this action is, the injury to the possession, and the rule is, that unless at the time the injury was com- mitted, the plaintiff was in actual j)Ossession, trespass cannot be supported. The plaintiff in a Justices' Court cannot litigate any other question of title, except the question of actual possession at the time of the alleged injury ; and although the question may be litigated in a Justices' Court, yet it does not deprive the Justice of jurisdiction on the ground that the title to lands comes in question. 1 The Legislature have provided, that if it appear on the trial, from the plaintiff's own showing, that the title to lands is, in question, which title shall be disputed by the defendant, the Justice shall dismiss the cause, and the plaintiff shall pay the costs. 2 The Supreme Court have decided, that though the plain- tiff in a Justices' Court give evidence of title to lands, the Justice is not bound to dismiss the cause unless such title be disputed by the defendant. 3 The term real property used in the statute is synonymous to her. The right of punishing a servant is personal, and cannot be delegated by either master or mistress. A schoolmaster in his own right, and not by delegation of the parent, possesses the same power to punish his pupil for improper conduct while under his care, that the parent does over his child. 9 Co. 76 i 1 Ld. Ray. 310; Str. 953; Cro. Jack. 030. In each of these cases, the party is not answerable, unless the punishment is so disproportionate to the offence as to indicate a bad temper or bad intention in its infliction. Sec 1 Sid. 125, 177; Cro. Car. 197; 1 Ventr. 70; Cro. Jack. 865; 8 Mod. 120; Ld. Ray. 3G0; 3 Bur. 56G; 1 Bl. 428. 1 6 Hill, 537, Beardsloy J. 3 Adam3 vs. Beach, Hill, 271, Nol- 2 2 R. S. 1C8, § 03. „on Ch. J. j Hill, 41, Cowcn J Injuries to Real Property - . 127 •with land, and comprehends in its meaning any portion of the surface of the earth, whether covered with water or not, together with all buildings and erections thereon, 1 excepting such erections for the purposes of trade as are temporarily attached thereto. The spontaneous growth of the soil, as grass, trees and fruits while growing, and before they are severed from it, are parcel of the real property, though crops of grain or vegetables which are sown or planted from year to year, are, while growing, the personal property of the owner. 2 Fences, and rails used as fences, although tem- porarily removed from their places, are part of the land, excepting where put up by a tenant under an agreement with the owner that he may remove them. 3 In like manner manure, whether scattered on land or lying in heaps, con- stitutes a part of it. 4 But trees and plants raised for sale by a nurseryman upon premises leased by him for a nursery, are regarded as personal property, removable by him during his term. Within the definition given' in the preceding paragraph, all water privileges, together with the right of flowing ad- joining lands appurtenant to any lands of the owner, are real property, injuries to which are the subject of actions in the Court of a Justice of the Peace. * The owner of land lying upon a highway or stream not navigable from the ocean, is presumed to own to the centre of the highway or stream, until the contrary appear. 5 Where his deed bounds his lands " along the highway or stream" or " upon it" its legal effect is to grant to the centre. So where the boundary line runs " to the highway or stream," it is un- derstood to go to its centre. 6 If, however, the boundary is upon the north or other line of the highway, 7 or the north or other bank of a stream, or where a boundary line runs to a tree or a stake on the north or other bank, and thence along the said bank, the whole of the highway or stream is ex- cluded from the grant. 8 The land within the highway re- 1 Co. Lit. 42; 4 Bl. Com. 18. 5 12 John. 252; 6 Cowen, 518, 579. 2 8Wend. 584; 1 Barb. 542; 2 Id. 613. « IS John. 447. 3 2 Hill, 142; 1 Comst. 564. 1 2 Id.; 6 Barb. 284. * 7Barb. 263; 211111,142; 15 Wend. 8 4 Hill, 369; 5 Denio, 599. 109. 128 Ixjukies to EfiAji Property - . mains the property of the original owner, subject only to the use of the public for the purposes of a highway, and the owner mny maintain an action for any exclusive appropria- tion of the soil or use of it inconsistent with such purposes. 1 Every man's land is in law surrounded by an imaginary fence or close, and every entry upon it without the owuer's leave is technically termed breaking Ms close, and the law implies some damage from every breach, whether it be merely stepping upon the land or standing off from it and doing some particular injury to it, or anything growing from or affixed to it so as to constitute a part of it.* The leave or license of the owner to enter upon his real estate may be expressly given or implied from his acts or implied from his acts or custom. Express leave is given whenever the owner invites any one or the public generally to come upon his premises or consents to the entry. Of this description of leave is the invitation which a tavern-keeper, or a dealer in merchandise, by his public sign holds out to all persons desiring to deal with him to enter his inn or shop. Implied leave arises where from the familiar intercourse of one neighbor with another, he habitually enters upon his land, or into his house for friendly intercourse ; where the neighbors are in the habit of going to the plaintiff's well or spring to fetch water ; where neighbors and strangers go into his lands to view a curiosity, to drink at a mineral spring ; or where the public are in the habit of using a way or path which the plaintiff has left open for them. In such, and a vast variety of similar cases, the consent of the owner of the soil is presumed from the acknowledged rules of friendly intercourse and good neighborhood. A license, whether express or implied, may at any time be revoked by the owner of the freehold, unless it were made upon such valuable consideration as to be sustainable as a contract. And when revoked, any attempt to exercise it after notice of the revocation, constitutes a wrongful entry. Where the license was to an individual, the notice of revocation should be given to him. If to the public, it should 1 2 John. 857; 15 Id. 447, 483. See 2 3 Bl. Com. 209, 210; 10 John. 385. 7 Barb. 207, and 4 Id. 50. Injuries to Real Pkopekty. 129 lie given with sufficient publicity to afford reasonable informa- tion that it was withdrawn. 1 Where, however, there is a parol license to erect upon one's own land a building affect- ing injuriously the light or air of the party giving it, lie cannot after the building is erected revoke it. The license is a direct encouragement to expend money, and.it is against conscience to revoke it after the expenditure becomes bcnc r . ficial. Such a license is not within the statute of frauds-." . A license to one man to enter or cross my grounds gives him no authority to take another with him. But if I au- thorize him to enter and do certain acts, as to cut down trees, dig clay, &c, he may take with him such tools, cattle and servants, as are needful to do it. 3 And in general a license implies an authority to do every thing necessary to perform tho act licensed. 4 An agreement for the sale of land does not of itself license the person receiving it to enter upon it, s nor does an express license to enter, imply a right to cut and consume timber. Much less would a contract to sell and convey land upon the performance of certain future conditions by tho purchaser, give him a right to enter or cut timber before he has complied with them. Neither does an agreement made with one of several purchasers that until all of them had executed the contract of purchase, and a certain bond for the performace of its covenants, " no timber should be cut on the lot," imply a license to the purchasers after the con- tract and bond are executed to commit waste by cutting and carrying away the timber. The most that can be implied from such a contract is a permission to the purchaser to enter in the meantime as a tenant at will, and occupy the land in such reasonable manner as tenants at will lawfully may. A tenant at will is one who occupies the land of another by his consent, when no terms of a lease have been agreed upon, 7 or where one has leased lands for one or more years, 1 10 John. 246. * 9 John. 35, 331 ; 7 Cowen. ^29. 3 3 Kent's Cora. 452. ° 9 John. 35, 331. 3 Jac. La-w Die. tit. License. ' 2 Caines, 169. i W"iles, 191. n 130 Injuries to Real Property. and after the expiration of the term, the tenant remains in possession. In the latter ease, he is also termed a tenant from year to year. 1 Such a tenant is not authorized to cut timber. 3 A license to enter a house with a key will not justify an entrance in a manner by which it is left in an exposed con- dition., A tenant being desirous to sublet his house, left it lacked, with authority to his landlord to let it if an oppor- tunity offered, and for that purpose deposited the key with his neighbor. An opportunity to let the house occurred, but the person having the key having absconded, the land- lord entered by placing a ladder against the house, and raising the first floor window, when after showing the house, he left it in the same state as before. The house was after- wards entered by persons unknown and furniture taken from it. The tenant having brought an action against the land- lord for breaking and entering the house and leaving it in- secure, in consequence of which his property was stolen, it was held that the entry by the window was without license. s A license to enter upon lands is given by law in a great variety of cases ; as to execute legal process issuing from any of the courts : to a landlord or reversioner to see that his tenant docs no waste and keeps the premises according to his duty or covenants : to a creditor to demand or request money due or payable there ; to any person entering an inn or tavern to get refreshment, 4 to one making a lease except- ing the trees, to enter and show them to a purchaser, 5 to a purchaser of a tree, a crop, a horse, or any other article upon the premises of the vendor, to go upon them to take it awa)'. 6 But the rule in the latter case is confined to an entry to take chattels which were sold to him upon the prem- ises by their owner. It does not authorize one to enter upon another's lands to take away his own chattel not purchased there. 7 Under the ancient system of pleading, a distinction was 1 5 now. Pr. 81. 5 10 Co. 46. 2 4 9 John. 85, 331. Bac. Ab. Trespass f.; 11 East, 306. 3 2 Dowl & Ryl. 714. 7 C John. 5; 14 Id. 400. * 3 Bl. Com. 212. INJURIES TO liEAL PKOrEKTY. 131 made between the unlawful or wrongful act oi one who had entered upon real estate by express license of the owner, or by license from the act of the law. In the former case, his wrongful acts rendered him liable in an action of trespass upon the case, but did not constitute him a trespasser from the beginning. In the latter case, although his entry were lawful, yet if he abused his authority, his original entry was deemed unlawful, or in technical language, ho became a trespasser ab initio. 1 The change effected by the Code' of Procedure has rendered the distinction obsolete. The wrong- ful act is now the subject of the action whether the entry was under permission of the party or the authority of law, or without either. If, therefore, one who enters a tavern behave with rude- ness, or one who comes upon premises with legal process, or to demand a debt payable there, commit any excess, as to break doors, assault the occupants of the house, or any sim- ilar act, he is equally liable for the act, as if he had not been authorized in the first place to enter. But the mere inten- tion to do an unlawful act, where the intention is not carried into effect, will not warrant a recovery. Thus, where one distrained a horse doing damage, and was leading it towards a pound, with intent there to impound it before he had ap- plied to the fence viewers to appraise his damages, and the owner undertook to prevent him by force, it was held that the distrainer was not a trespasser from the beginning. 3 The entry upon another's lands to warrant an action, must be with some degree of fault, for if I, as I lawfully may, with my dog drive my neighbor's cattle off from my land, and the dog follows them just into his land from which I call him as soon as possible, I am in no fault whatever, and an action will not lie. 3 But if there is any neglect, although the injury be slight, the action will lie, as where one in cut- ting the grass in his own field, carelessly cut over the line, and by mistake mowed a little of his neighbor's, 4 or where in removing obstructions from a highway, he carelessly or 1 13 John. 411; 5 Wend. 506; 5 3 Poph. 100. Donio, 319. * 3 Lev ' 37 ' 2 20 John. 427. 132 Ixjuuies to Heal Pe6peetv. unnecessarily injured his neighbor's crops, fences or build- ings. 1 When a highway is impassable, one may of necessity pass over the adjoining lands, and when founderous he may re- move a feuce to pass around the obstruction. 2 It is other- wise, however, if the road is his private one, for it is his own fault if it is not kept in repair. 3 "Where tLa defendant ascended in a balloon, which de- scended into the plaintiff's garden, and the defendant be- coming entangled in it, and in a perilous condition called for help, and a crowd came to his assistance, treading down the garden, it was held that the defendant was answerable for the injury. 4 The action may be brought by the tenant in possession, if the injury is done to the crops or fixtures, or to any portion of the premises in which he has the property, and in this case he may maintain his action against the owner of the land, for so far as all his interest is concerned the close is his. 5 It may in like manner, where one has acquired a right to the crops alone, or to dig gravel or clay, for the law judges such person in actual possession so far of the land. 6 But where the injury is to the reversion, as when timber is cut, or other acts of waste committed, which damage the owner of the estate, the reversioner may bring his action, 7 and where the injury is to crops growing upon a farm worked by the tenant upon shares, the landlord and tenant should unite in the action. 8 Inasmuch as a Justice of the Peace has no jurisdiction of an action where the title to re:il property shall come in ques- tion, 9 the plaintiff" in an action for injury to real property can only show his possession in order to maintain his action. This is usually shown by his fencing, cultivating or other- wise improving it, or performing any ordinary acts of own- ership over it, as by using it for a -wood lot. 10 And it is not 1 7 Conn. 125. 7 l r. s. 030, § 8. [1th ed. vol.2. 8 7 Barb..3C9. p. 156.] 3 2 Show. 28) Doug. 71G. 83 J h n . 21 6. i 19 John. 381. u Code of Procedure, § 51, subd. 2, 6 9 John. 108; 9 Cowon, 39, 43. . [4th ed. 11. S. vol. 2 p. 488.] C 9 John. 108, 143. 10 \.± Wend. 239. Injuries to Real Property. 133 necessary that every part of it bo inclosed. The actual oc- cupancy of a part of a farm, a portion of Which only is inclosed with a claim of title to the whole, is sufficient to show possession of the whole. 1 The -plaintiff may show his own acts and declarations at the time of his entry, and his deed, in order to determine the extent of his claim of pos- session, as well as his acts of ownership. And this would not be the involving of a question of title within the statute, but merely the establishing of his possessory right. The deed, it is true, might be used as evidence of title, but in such a case it may be used as evidence of possession. Where land is unoccupied, so that no actual possession can be proved, the person holding the legal title is deemed to be in possession so as to maintain an action for an injury to it. 2 So where a tenant at will commits voluntary waste, as by cutting timber, the waste terminates the tenancy, and the owner may bring his action against him. 3 The possession of land occupied by a highway, is in tho owner subject to the use of the public for traveling, and ho may maintain an action against any one who appropriates any portion of it for any other purpose, or who cuts timber upon it or digs into it. By the act of laying out the high- way, the public acquire the right of preparing it for travel- ing and using it for that purpose. In doing this, the public authorities may use the timber growing in it, which may bo requisite to repair it and the bridges upon it. 1 Subject to this, every other right in it belongs to the owner as exclu- sively as before. The qualified possession which the corpo- ration of a city or village have in tho streets, is not sufficient to sustain an action by them for an injury to it as to their real estate. 5 But. the trustees of a religious societjr, whether incorporated or not, have sufficient possession of their church to maintain an action for an injury to it. 6 Where a lease is for a fixed term, the tenant is not entitled 1 1 Caines, 358; 12 John. 4,">2; Code, * 7 John. 1 ; 9 Id 35. § 82; 5 Denio, 415; 7 Barb. 92. * 1 R. S.525, § 126, [4th cd. p. 1055, 2 12 John. 183; 10 Wend. 639; 8 § 153.] Terra. 72; 14 East. 249; 6 Id. 154; » 1 Blackf. 88. 1 Id. 244; Str. 1238; 5 Bing. 7. « 9 Weud. 414. 134 Injuries to Real Property. to crops growing and not harvested at the end of his term, although they were sowed or planted by him. If, however, the lease is for the life of a. person, or terminable upon any uncertain event, as the will of the landlord, the tenant is entitled to any crop which he has sowed or planted, before the happening of the event which puts an end to his lease. 1 The owner of a leasehold interest in lands with buildings may recover his damages for the negligent destruction of the buildings. And if he erect buildings upon the land, although in an exposed and hazardous situation, from the existing use of the adjoining lands, he is not chargeable with negligence within the rule, that if the plaintiff's negligence concurs in producing the injury, he may not recover. Where the plain- tiff builds near a smithy, or on the track of a railroad, 01 near the usual course of a steamboat, he may recover for its loss by fire occasioned by the negligence of the smith, or the servants of the railroad, or steamboat companies.' 2 Every owner of land has a right to use it in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lot. I can, therefore, maintain an action against my neighbor, who digs a pit oil his own laud so near mine, that it causes my soil to fall into it. But he has a right to dig a pit on his own land, if necessary to its convenient use, where it can be done without injury to mine in its natural state, and I cannot deprive him of this right by erecting a building on my lot, the weight of which will cause my land to fall into the pit. 3 And if in the ex- ercise of ordinary care and skill in making an excavation for the improvement of his own lot, he digs so near the foundation of a building on my lot as to crack it and cause it to settle, he is not liable for any injury.' The action may be maintained for injuries to land occa- sioned by the defendant's cattle, or fowls, or inanimate chat- tels, as well as for direct injuries by wrongful act or negli- gence. The owner of such animals as arc not restrained by fences, must keep them on his own premises at his peril, and he is accountable for any injury they do to his neighbors. 1 10 John. 300. « i Paige, 10'.). 2 1 Dcnio, 91. l 17 Jolm 9:2. Holes in Relation to Division Fences. 135 Ho is not liable, however, for damages committed by such animals as are usually restrained by fences, if they escape from his premises into his neighbor's land, through the de- fect of a fence which the latter is bound to repair. 1 It is, therefore, important to examine the rules in relation to the maintenance of fences. In relation to Division and other Fences. The statute, as amended in 1S6G, provides the following rules in relation to division and other fences : 3 § 30. "Where two or more persons shall have lands ad- joining, each of them shall make and maintain a just and equal proportion of the division fence between them, in all cases where one-half or more of each of such adjoining farms or lands shall be cleared or improved. ^ 31. Where two or more persons shall have lands adjoin- ing, and not within the provisions of section thirty of said article, as hereby amended, each of them shall make and maintain a just and equal proportion of the division fence between them, except the owners of either of the adjoining lands shall choose to let such lands lie open to the public. If he shall afterwards inclose it, he shall refund to the owner of the adjoining land, a just proportion of the value .at that time of any division fence that shall have been made and maintained by such adjoining owner, or he shall build his proportion of such division fence. ~ § 32. Where a person shall have afarm or lauds lying open, one-half or more of such farm or lands being cleared or im- proved, he shall refund to the owner of the adjoining laud, a just proportion of the value at the time this act shall take effect, of any division fence that shall have been made and maintained by such adjoining owner, or he shall build his proportion of such division fence. ^ 4, As Amended. — Where two or more persons shall own lands adjoining, in case either of them shall sell, convey, or devise such lands, or any portion thereof, the owner of any division fence that shall have been theretofore made I 12 John. 433. 2 Session Laws of 1866, Ch. 510. 13G Ixjuries to Real Peopertv. and maintained by him, shall not be deprived of his interest therein in consequence of such sale, except so far as it re- lates to the grantor, and in all cases where such sale or de- vise shall interfere with or affect the division fences existing between such adjoining owners at the time of such sale, or on receiving such devise, a subdivision of such division fence shall then bo made by all the adjoining owners affected thereby ; and each adjoining owner shall refund to the owner of the adjoining land, a just proportion of the value at the time of such sale, or on receiving such devise, of any di- vision fence that shall have been theretofore made and main- tained by such adjoining owner, or that shall have been made and maintained by the persons from whom he received such title, or the adjoining owner shall build his proportion of such division fence. The value of such fence, and the proportion thereof to be paid by such person, and the pro- portion of the division fence to be built by him, shall be de- termined by any two fence viewers of the town. § 33. If disputes arise between the owners of adjoining lands concerning the proportion or particular part of fence to be maintained, or made by either of them, such dispute shall be settled by any two of the fence viewers of the town. § 34. When any of the above mentioned matters shall be submitted to fence viewers, each party shall choose one ; 'and if either neglect, after eight days' notice to make such choice, the other party may select both. § 35. The fence viewers shall examine the premises and hear the allegations of the parties. In case of their disa- greement, they shall select another fence viewer to act with them, and the decision of any two shall be final upon the parties to such dispute, and upon all parties holding under them. § 36. The decision of the fence viewers shall bo reduced to writing, shall contain a description of the fence, and of the proportion to be maintained by each, and shall be forth- with filed in the office of the Town Clerk. § 37. If any person liable to contribute to the erection or reparation of a division fence, shall neglect or refuse to make and maintain his proportion of such fence, or shall permit Rules in Relation to Division Fences. 137 the same to be out of repair, he shall not be allowed to have and maintain any action for damages incurred, but shall be liable to pay to the party injured, all such damages as shall accrue to his lands and the crops, fruit trees and shrubbery thereon and fixtures connected with the said land, to bo ascertained and appraised by any two fence viewers of the town, and to be recovered with costs of suit ; which ap- praisement shall be reduced to writing, and signed by the fence viewers making the same, but shall bo only prima facie evidence of the amount of such damages. 1 § 38. If such neglect or refusal shall be continued for the period of one month after request in writing to make or repair such fence, the party injured may make or repair the same at the expense of the party so neglecting or refusing, to be recovered from him with costs of suit. § 39. If any person who shall have made his proportion of a division fence, shall be disposed to remove his fence, and suffer his lands to lie open to the public, ho may do so. provided such farm or lands are not one-half or more cleared or improved, at any time between the first clay of Novem- ber in any one year, and the first day of April following, but at no other time, giving ten days' notice to the owner or occupant of the adjoining land, of his intention to apply to the fence viewers of the town for permission to remove his fence ; and if at the time specified in such notice, any two of such fence viewers to be selected as aforesaid, shall deter- mine Unit such fence may, with propriety, be removed, he may remove the same. § 40. If any such fence shall bo removed without such notice and permission, the party removing the same shall pay to the party injured, all such damages as ho ma}*- sus- tain thereby, to be recovered with costs of suit. § 41. "Whenever a division fence shall be injured or des- troyed by floods or other casualty, the person bound to make and repair such fence, or any part thereof, shall make or repair the same, or his just proportion thereof, within ten days after he shall be thereunto required by any person in- 1 As amended Ch. 261 of I.aivs (if 1838, [4th ed. R. S. vol. I, p. 6G2.] 138 Injuries to Eeal Property. terested therein. Such requisition shall bo in writing, and signed by the party making it. ^ 42. If such person shall refuse or neglect to make or repair his proportion of such fence, for the space of ten days after such request, the party injured may make or repair the same at the expense of the party so refusing or neglecting, to be recovered from him with costs of suit. ^ 43. Witnesses may be examined by the fence viewers on all questions submitted to them, and cither of such fence viewers shall have power to issue subpoenas for and to ad- minister oaths to such witnesses ; and each fence viewer and witness thus employed shall be entitled to one dollar and fifty cents per day. Such fence viewers, or a majority of them shall determine what proportion thereof shall be paid by each of the parties interested in such division fence, and reduce their determination to writing, and subscribe the same, and file it in the office of the Town Clerk, where such fence viewers shall reside. The party refusing or neglecting to pay such fence viewers or either of them, shall be liable to be sued for the same, with costs of suit. ^ 44. Whenever the electors of any town shall have made «ny rule or regulation, prescribing what shall be deemed a sufficient fence in such town, any person who shall thereafter neglect to keep a fence according to such rule ox regulation, shall be precluded from recovering compensation in any manner for damages done by any beast lawfully going at large on the highways, that may enter on any lands of such person, not fenced in conformity to the said rule or regula- tion, or for entering through any defective fence. § 45. When the sufficiency of a fence shall come in ques- tion in any suit, it shall be presumed to have been sufficient until the contrary be established. The occupant of land under a lease, who is interested in maintaining a division fence, is entitled to avail himself of the remedies afforded by the statute, as well as the owner of the fee. The notices and requests necessary to be given under the provisions of the statute may, except where its language Rules in Relation to Division Fences. 139 expressly requires that they should be in writing, be given verbally, and where- the notice is in writing, its contents may be proved by parol. 1 An agreement relative to the proportions or particular part of a partition fence to bo maintained by each, may be made between adjoining owners without resorting to the provisions of the statute, but in order to render it perma- nent and effectual it should be made between the owners of the freehold. 3 And after such an agreement, if a dispute arise concerning the proportion or particular part of the fence to be maintained by each, it may lie determined by the fence viewers. 3 The obligations of adjoining proprietors in relation to the particular fence to be supported by each, may also be deter- mined hy prescription, or an usage of the tenants for a "time whereof the memory of man runneth not to the contrary." In such cases, the law will assume that there may have been ancient assignments or agreements to regulate them which o o o have become lost by lapse of time. 1 "Where two persons own lands adjoining, and there is a division fence between them, one portion of which one of the parties is bound to repair, and the other portion the other party is bound in like manner to keep in repair ; and the cattle of one of them escapes from his field through the division fence into the field of the other, by reason of the defect or insufficiency of that portion of the division fence, which the latter isbouud to keep in repair, he has no remedy. And if the cattle, while so upon his land, do him damage, it is his own fault. 5 The provision of the statute directing that owners of adjoining lands shall each make and maintain a just propor- tion of the division fence between them, unless one of them bhall choose to let his land lie open, was intended to apply to cases where lands have been partially fenced, as well as to those in which the owner chooses to let his laud lie alto- gether in commons. The language of the statute includes l 3 Wend. 142, 148; 9 John. 130. * G Mass. R. 93. - I John. 414; 1 Cowcn, 80, note a. 6 Cowlos vs. Balycr, 47 Barb. 502. 3 4 John. 414. 140 • Injuries to Keal Property. any case where the owner does not choose to inclose his land entirely. 1 Where a division fence between adjoining owners has been in existence, and acquiesced in by the parties as on their dividing lino for more than forty years, the law will deter- mine the line of such fence to be the true line between the parties. And this, notwithstanding the fence was originally put up under an agreement that it was to be altered at some future day, in case it should be found, upon actual survey, not to be on the true line. In such cases it is the long acquiescence which renders the practical location conclusive. J Cattle Going at Large on Highways. By the Revised Statutes it is provided that the electors at town meeting in each town may make "rules and regu- lations for ascertaining the sufficiency of all fences in such town ; for determining the times and manner in which cattle, horses or sheep shall bepermitted to go at large on highways, and for impounding cattle." 3 It has been doubted whether the Legislature has the power to authorize a regulation to permit cattle to go at large, and depasture upon the high- way where it runs over the land of another person than their owner. The right of the public to a highway as laid down in all the early authorities, is merely an easement to pass and repass upon it, and subject to this right, the soil and its products belong to the proprietor, and are still in the strictest sense private property ; it has, therefore, been contended, that to allow the public to turn animals upon it to depasture, or to use it for any other purpose than as a road, is not within the province of the Legislature. As there has been considerable discussion of the question in our courts, and it has not been settled by the tribunal of dernier resort, a synopsis of the opinions which have been delivered upon the subject, although furnishing no certain rule, will present to the reader a view of the present state of the question. 1 Chryslarvs. ^Vestfall, 41 Barb. 159. 3 1 R. S. 311, § 5, sub. 11. [4th ed. 2 Pierson vs. Hosier, 30 Barb. 81 ; p. 647.] 16 K. Y. 359. Cattle Goixg at Large on Highways. 141 By a former act, towns had power to make regulations " for permitting or preventing cattle, &c, to go at large, and for directing the time and manner of using their common lands." 1 In a case which arose under this statute, Ch. Jus- tice Savage remarks, "This section undoubtedly has refer- ence to such towns only as have common lands, the property of the town in its corporate capacity." In another part of his opinion he continues, " Suppose a case where the town has no common land, and they pass a by-law permitting cattle to run at large— where are they to run ? Surely not on individual property. Where then? in the highway? The public have simply a right of passage over the high- way. They have no right to depasture the highway. The owner of the land through which the highway runs is the owner of the soil, and of the timber, except what is neces- sary to make bridges, or otherwise aid in making the highway passable, (15 John. 453 ;) and if the owner of the soil owns the timber, why not the grass ? This question has never been distinctly raised in this court, and some inti- mations have been given from which it might be inferred that towns have a right to permit cattle to run at large in highways ; but in Stackpole v. Healy, (16 Mass. 33,) the question has undergone a very full consideration and discus- sion, and the Supreme Court of Massachusetts have decided that the public have no such right in highways." 3 The intention of the Legislature by adding to the words, to go at large " on highways" was doubtless to give the right of making regulations to authorize cattle to depasture on highways. The constitutional right to enact such a law is distinctly denied by Ch. J. Beardsley, in the case of the Tonawanda Railroad Company v. Hunger, 3 he holding that the right of the public is only that of an easement, subject to which the proprietor owns the soil and its herbage, It was not, however, a distinct question in the case whether such a regulation was constitutional, and the remark was therefore obiter. The judgment of the Supreme Court in the case was affirmed in the Court of Appeals, 4 and no dis- 1 2 II. L. 131, 5 12. 3 6 Donio, - 255j 9 IIow. Pr. 453. 2 3 Wend. 142. * 4 Comst. 849. 142 Injuries to Real Property. approbation of the doctrine contained in the opinion ex- pressed. This case was followed by White v. Scott in the first judi- cial district, decided in 1848. In this case, Justice McCoun delivered the opinion of the court. In examining the statute he holds that it is constitutional, but that it is to be con- strued to authorize regulations to be made to permit one to depasture the highway which is upon his own lands subject to such safeguards to prevent trespasses upon the lands of others, as the town by its li regulations" provide. 1 It is to be remarked of this case, as one of the last mentioned, that the question was not necessarily before the court. The last case upon the subject, and one where the question was distinctly before the court, was that of Griffin v. Martin? decided at the general term of the Supremo Court in the fourth judicial district, in November, 1849. Justice Willard, in a very learned opinion, reviews the earlier cases and dicta and arrives at the conclusion that the Revised Statutes, in making a provision for the compensation of owners of land over which a highway is laid, and at the same time author- izing towns to pass regulations to permit cattle to run at large therein, contemplate a compensation for all damage to be sustained by the proprietor for this, as well as the ordi- nary use of the highway for passing. Justice Paige con- curred in the opinion. Justice Hand dissented, holding that the Legislature had no constitutional right to pass an act authorizing towns to depasture upon the highway where it ran over the land of another person, and approving the dicta of Ch. J. Beardsley and Justice McCoun. As the law now stands, the most recent decision of the Supremo Court, and indeed the only one which has been made where the question has distinctly arisen since the Revised Statutes were enacted, is by a majority vote of two Justices against one, in favor of the constitutionality of the law, and against the opinions expressed by Ch. Js. Savage and Beardsley and the Justices in the First Circuit, as well as the opinion of the Supreme Court in Massachusetts in the case referred to in the text. 1 4 Barb. 50. * 7 Barb. 297. Floaving Lands by Water. 143 It is doubtful -whether a town can by regulation interfere with the interior regulation of one's farm, by compelling the owner to keep his swine or other animals shut up in a close pen; and a by-law that, " All hogs shall be shut up," must be construed to mean merely that they shall not go at large on the highway, and not to restrain their owners from permitting them to be at large on their own lands. And if hogs at large on their owner's lands break through the defec- tive partition fence of his neighbor, and which he is bound to maintain, no action will lie for the damage they commit, notwithstanding such a by-law. 1 Where cattle or other animals arc not lawfully in the highway, the owner is liable for the damage they do, if they break through the oiiter fence adjoining the highway or common, although the fence be a defective one. 2 It is obvi- ous that the question whether they are lawfully in the high- way in a town which has passed a regulation permitting them to go at large in the highway, depends upon the con- stitutional question whether the Legislature can confer such a power upon towns of permitting a man's soil, over which the highway passes to be depastured by the public. 2 Where, however, there is no town regulation, cattle cannot be law- fully in the highway, except while using it for the mere purposes of passing upon it, and their owner will be liab]c for any damage they occasion by passing from it to his field:,, whether they are defectively fenced or not. He is bound to keep his cattle on his own premises, and answerable when they come on his neighbor's, except it be through the neigh- bor's defective division fence. Flowing Lands Ly Water. Among the various injuries to real property, the subject of action in a Justices' Court, may be enumerated the dam- age sustained by flowing it by a mill-dam ; the diversion from its natural course of a stream of water running to the plaintiff's mill or across his land ; the confining it in a pond and discharging it at irregular or inconvenient times to the 1 12 John. 433. 2 3 Hill, 38. 144 Injuries to Eeal Property. annoyance' of the proprietors below j 1 the obstruction of one's private road or its unauthorized use. The rule in relation to the flowing of waters is, that " every one has the right to the flow of water in his own land without diminution Or alteration ;" 2 " each proprietor has an equal right to use the water which flows in the stream, and consequently no proprietor can either diminish the quantity which would otherwise descend to the proprietors below, or throw the water back upon the proprietors above.' 1,1 "The true test of the principle and extent of the use is, whether it is to the injury of the other proprietors or not." 4 "Mere priority of appropriation of running water confers no exclusive use." 5 Within these principles it is held, that where the water of a river is divided by an island, so that only one-fourth of the stream descends on one side of the island, the owner of the shore where the largest quantity of water flows, is entitled to the use of all the water flowing there, and the owner of the other shore may not place obstructions at the head of the island, to cause one half of the stream to descend on his side of the river. Nor can the latter require the other in the use of the water, to keep up a tight and secure dam. If either can avail himself of the natural advantages afforded by his site, with no dam or an imperfect one, he may do so. 5 In Connecticut, where the defendant raised his dam below on the same stream with the plaintiff's mill, which at first did not affect the plaintiff's water wheel, but afterwards, when he had occasion to lower it, clogged it with back water, was held that an action lay. 6 In England, the occupier of a mill maintained an action for forcing back water to his injury, although he had within a few years previous, erected a wheel requiring less water than he had previously used. 7 .In all cases where an unlawful or wrongful act is com- mitted upon the real property of another, the law implies 1 3 Kent's Com. 440. » 10 "Wend. 260j Cowcn & Hill's •i 6 East, 214, per Ld. Ellunborough. Notes, 377. 3 1 Sim. & Stu. per S. J. Loach. « 9 Conn. 102. * 4 Mason 400, per Story J. 7 l Barn. &. Aid. 258. "Jj" lowing LanIis by WatJsk. 145 iin injury, and in an action for it, nominal damages must be given. The flowing of land by means of another's unau- thorized dam, though in the least possible degree, is within this rule. 1 But ina case where the plaintiff complained that the defendant erected above him a dam, on a stream which passed through his land, and thus caused the water to run in a different channel, and with greater violence than before, and so injured his banks and premises, the jury found the plaintiff's banks were not injured by the dam, but added that the plaintiff had no right to stop the water in the slim- mer time, it was held that an entry of a verdict for the de- fendant, ordered by the Judge on the finding, was right ; that flowing water is publici juris, and an individual can only acquire a right to it by appropriating so much of it as he requires for a beneficial purpose ; and that, therefore, the plaintiff could not recovcrtlamagcs for the mere erection of a dam, but was bound to allege and prove that he had sus- tained an injury from the want of a sufficient quantity of water. 2 One may not, however, divert the water from running in its natural course to another's mill, and in order for a plain- till' to maintain an action, for thus violating his rights, it is sufficient to show his possession of the mill. 3 By the prior erection of a mill, upon a stream of water, one does not gain an exclusive right to use the water against another who erects a dam above him, by which the water is in part diverted, and ho in some measure injured. 1 Each owner has a right to the reasonable use of the water flowing over his land, yet he has no right to use the water as he pleases, or to stop the natural flow of the stream, so as to destroy or render useless the mills below him, and if he either detain the water unreasonably, or let it out of his pond in such unusual quantities as to prevent the owners below from using it, and to deprive them of a reasonable participation in the benefits of the stream, he is liable to them for the injury they sustain thereby. 5 A continued use of the water, in a 1 1 Kawle, 27. * 15 John. 213. •2 4Dowl.8t.Ryl.583. 6 17 John. 306; 9 Wend. 316; 8 2 liar. & McIIeii. 473. Paige, 577; 6 Id. 435. I 146 "Wrongful Taking of Personal Property. particular manner, for twenty years, will, however, afford the presumption of a grant by the owners above and below ;. fleeted by it, and bar their claims. ///. Of Actions for Taking, Detaining or Injuring Personal Property. The ta,vm personal properly, as used in the Code of Pro- cedure, includes money, goods, chattels, things in action and evidences of debt, 1 and with the exception of real estate, it includes every thing in which one can have a valuable interest. One may have this interest in any domestic animal, as a dog or a cat, or in animals naturally wild which have been tamed, as wild geese, hares, doer in a park, rabbits in an enclosed warren, doves in a dove house, pheasants or partridges in a mew, hawks that are fed and commanded by him, and fish in a private pond or tank. In the case of ani- mals naturally wild which are so tamed or secured, the owner has a qualified right of property. They continue his until they regain their natural liberty, but no longer. They do not, however, regain this liberty merely by being let loose, because many of them go and return at pleasure, and as long as they do so and do not deviate from their usual time of returning, the private ownership continues.'-' Where wild geese had been tamed, the fact that tiny had twice strayed away, was held no excuse for one wh o took them from their owner. The question in such a case is, whether the animal have so regained his liberty as to lose all disposition to return to its owner/' Bees when hived arc of this description of qualified property, as are also the young of wild animals found upon a man's land before they arc able to escape. 4 In order to acquire a property in a wild animal by hunting him, he must be actually taken or reduced by wounds, traps or nets, to such a situation that he cannot escape. Merely being on the point of taking him, although one have chased him with his hounds all day, will give him no right to claim nim against a person who should then step in and kill him. 5 1 Code of Procedure, § 4G3. [4th 3 10 John. 102. ed. R. S. vol. 2, p. 558.] 4 3 Bl. Com. 894. 2 2 Bl. Com. 391,2. " 3 Caines, 175. > WttcXGi'UL Taking of Personal Property. 147 Where personal property belongs exclusively to any per- son, he is said to have a, general property in it, and is then called its owner. To this title, possession is always presumed to attach. "Where one holds goods as a bailee, or has any temporary interest therein, either in his own right and for his own use, or by authority of law for legal purposes, he is said to have a special properly in them. 1 Within this class are all persons who have hired personal property for a time, or who are entitled to its temporary possession, and persons having a lien upon it. Where the owner of prop- city in the actual possession of another, has the right to reclaim it immediately, he has the constructive possession.' 1 An action for the wrongful taking or detention of per- sonal property lies, although there be no wrongful intention ; as if a sheriff or constable by mistake take the goods of a wrong person in execution, or levy upon goods by virtue of an execution after its return day, and if this be done by direction of the plaintiff and his attorney, they are all equally liable. 3 So if one who has purchased at a sheriff's sale, property of another person than the defendant in the execu- tion, upon which he had by mistake levied, ho would be liable for the property, if upon request from the owner he should refuse to deliver it to him, though he would not be for simply receiving it from the sheriff upon the sale. 1 Any one who unlawfully intermeddles with another's goods, although there be no manual interference with them, as by exercising an authority over them in defiance or ex- clusion of the owner, is liable for the damages he sustains in consequence of such acts. Thus a constable who having an execution against G. levied upon goods in his possession belonging to L., made an inventory of them, and took secu- rity for their delivery, was held liable ; 5 and in another case, a constable -who required a receiptor with whom he left the property, was held liable for his wrongful levy. In a more 1 1 Caincs ; 14j \2 John. 403; 7 Cow. * 2 Rolle's Ab, 55b ; pi. CO; Bro. 294. Ab. Trespass pi. 48; 6 John. 44. 2 8 Pick. 333. E 7 Cowen, 735. 3 Cbitty's PI. 129; 3 Lev. 37; 7 Cow. « 8 Wend. 610. 735; lOAVeud. 343. 148 AVkONGFUL TaKISO OF PERSONAL pROPEltT*. recent case, where the constable went to the place where the property was, informed the persons in whose possession it was that he had levied upon it, and requested them to keep it until he called for it, an action for the possession of the property, brought against him, was maintained, 1 the court holding that a naked levy without any manual inter- ference with, and without any exercise of ownership or authority over it, excepting what might be inferred from the act of levying, was sufficient to justify an action against cither the officer or the party directing him. A sheriff or constable who has levied goods upon an exe- cution, may maintain an action against any one who takes, detains or injures them, and proof of the execution and levy is sufficient to sustain his action without showing the judg- ment. 2 A purchaser must, however, show the judgment, execution and sale, in order to maintain an action against a third person, unless he has reduced the property to actual possession before the wrongful act complained of. 3 If, how- ever, he have purchased in good faith upon a sale upon an execution, he does not lose his title to the property, even if the judgment be reversed. In an action brought by a defend- ant against an officer for levying upon his property, it is sufficient for the officer to show an execution in his hands regular on its face. 4 The action of trover, prior to the adoption of the Code of Procedure, was the usual one to recover the value of prop- erty which had been unlawfully appropriated by a defendant to his' own use/' It was in form an action upon the case, for the conversion of property of the plaintiff which had casually come into the defendant's possession by finding. The real grievance complained of, however, was the conver- sion, and as it was in some respects a more convenient action to maintain than trespass for the actual wrongful taking of the property, it was commonly resorted to in all cases where the defendant wrongfully converted the property, whatever 1 10 Wend. 319: 15 Id. 031. I 12 John. 395; 6 Wend. 170; 6 Id. 2 6 John. 195. 307 ; 12 Id. 496 ; 2 Denio, 80 ; 3 7 John. 535 ; 12 Id. 213, 215. 2 Comst. 473. B Bac. Ab. Trover. A; 15 Petersd. Ab. 190. n. Wrongful Conversion of Personal Property. 149 might have been the maimer in which he obtained its pos- session. Any person having cither the general or special property in the thing converted might bring the action. Thus every one who was entitled to the possession of goods or chattels as against other persons than their owner ; as carriers, factors, consignees, pawnees, trustees, agisters of cattle, persons who have borrowed horses to use, and indeed every bailee who was not the mere servant of the owner, might bring the action against any one but the owner. 1 And in general where goods bailed were converted by a stranger, either the bailor or bailee might bring the action, and the one first bringing it determined the right of the other, and recovered the whole value of the goods. 2 But where the goods were bailed to the bailee for a certain time which was unex pired, the bailor not being then entitled to the possession, could not bring the action for that reason, as it was neces- sary in the action for the plaintiff to have the right of pos- session. The bailee there could alone bring it. 3 What effect the provision of the Code of Procedure requiring all actions to be "prosecuted in the name of the real party in interest," 1 may have had upon the right of bailees to prosecute for the conversion of property of their bailors, has not hitherto been judicially determined. Where the bailee stands in the position of a warrantor or insurer of the goods, and is liable for their full value to the owner, or where he has a lien upon them for their full value, he clearly has an interest in them to the extent of their value, which is prejudiced by their ^wrongful taking and conversion, and in conformity to the general object of the provision of the Code referred to, should bring his action for the damage to himself. In like manner, where he has a special property in them for but a portion of their value, he should bring his action for the damage to himself. But where he is but a naked bailee, without interest, as a consignee to sell, who has not made advances, the policy and plan of the Code of Procedure 1 13 Wend. 63 ; 6 Barb. 3G2. * Code of Procedure ;§ 111. [4th 2 7 Cowen, 328. ed. B. S. vol. 2, p. 499.] 'i 8 John. 432 ; 15 Wend. 474; 9 Con*. 62. 150 Constable's Title to Property Levied. seem to indicate that the owner should bring the action ; and that where one having special property in them, recovers for the injury he has sustained, the owner should not be barred from obtaining his damages in another action. In practice, it will generally be as convenient to bring the action in the name of the owner as of a consignee or other naked bailee. Where brought in the name of a consignee, and an unqual- ified assignment is shown, the legal presumption is that lie is the owner until the contrary be shown. 1 Possession of personal property is prima facie evidence of title, 2 and is sufficient to warrant a recovery for taking or detaining it against all persons except the owner, or those who have some right or interest derived from him. Thus, the finder of a chattel has a special property in it, which is good against every person but the owner or his bailee. But the finder of a chose in action has no special property in it, and where M. found a lottery ticket, and gave it to W. to advertise for the owner, and none appeared, and it finally drew a prize which he received, it was held that M. could not recover the money received upon it from him. 3 Where one who had only a special property, brought his action of trover against another who converted it, the defend- ant might, by showing the ownership in a third person, and that through him he held some claim to the property, and that the defendant had either had no special property, or none at all, as against the owner, mitigate the damages or defeat the action entirely. But it was not enough to show property in a third person, without also showing some right in the defendant derived from him. 4 A constable or sheriff has a special property in goods upon which he has levied, and can maintain an action for them against any person who, without right, takes them from him, or from any one with whom he has deposited them for safe keeping, and his right of property is in no way affected by the circumstance that the levy is excessive. 6 If the action be brought by the officer against the defendant in the exc- 1 15 Wend 471. Ml Wend. 54; 1G Id. 5G2. 2 11 Wend. 51. 5 lGowen, 322; 2 Hill, 425-, 3 Hill, 3 9 Cowen, 670. 215. Constable's Title to Property Levied. 151 cution for taking the goods away, or if, on the contrary, the defendant in the execution sue the officer for levying on the goods, the execution, if good upon its face, is sufficient evidence of his right without showing the judgment upon which it was issued. 1 It is also sufficient in an action by an officer against a mere stranger, without pretence of title, who intermeddles with the goods, 2 or a purchaser at the sale, for the price bid for them. 3 It is otherwise, however, where a stranger sues the officer and shows a title in himself, prior to the levy, for then the officer can only defend himself by showing the stranger's title void in respect to creditors, and to do this must show the judgment. 4 An officer's right against an officious stranger depends upon his special property. His process and levy shows this prima facie. But whore the stranger showing a title brings the action he can show that the officer's process was void, as having been issued upon a judgment obtained without jurisdiction, in which case the officer has no special property, and is not liable over. And where an officer sues to recover property levied on, and it appears that the plaintiff in the execution is the real party in the action, the officer being a mere nominal party, must show a valid judgment. 5 The title of a purchaser of goods upon an execution depends upon the validity of the judgment as well as the execution. Where, therefore, he either brings his action against the former owner, or any one in whose possession the property purchased is, he must show the judgment, exe- cution and sale. He must also do this in defending his title against the former owner. 15 It is quite common for a sheriff' or constable, after a levy, to deliver the property levied upon to a receiptor on receiv- ing his covenant or agreement to return it when called for, or upon the day of sale. Such disposition of it does not change the officer's rights to it. The receiptor for this pur- pose gains neither a general nor special property as against him. He is his mere servant or agent. 7 112 Wend. 75, and cases there 4 16 Wend. 514, 510. cited; Cowen & Hill's Notes, 1078. 5 16 Wend. 5G2. 2 6 John. 195; 8 Wend. 445. « Cowen & Hill's H. 1078, 9. 3 5 Watts, 515. 7 7 Cowen, 294. 152 Wrongful Detention of Personal Property. As an action for taking, detaining, or injuring personal property, must be brought by the party sustaining the dam- age arising from the act complained of, it will often be necessary to determine the ownership of the property in question upon the rules governing the transmission of the title in contracts of sale. The true inquiry in all such cases is, whether the title has so passed that the property is at the risk of the vendee. If it has, the sale is executed and (he vendee is its owner. If it has not, the contract of sale is merely executory, and if the goods are stolen or destroyed, the vendor must abide tbe loss. 1 "Where a mechanic is employed in making au article for me, if it be made from his own materials, or if the princi- pal materials be his, the article is his until completed and delivered to me. If, on the other hand, the principal mate- rials are mine, the property remains mine, notwithstanding his expenditure of labor or of materials upon it, but he is entitled to retain it under his lien for his labor and materials furnished. Thus, where a ship carpenter builds for me a ship with his own materials, although I have paid him for it in advance, the title of the ship is in him until its deliv- ery, and if it should casually be destroyed, the loss is his ; where, he builds it for nv, of my materials, it remains mine subject to his lien. In cither case, an execution against the person deemed the owner, may be levied upon it. a The rule is the same where one takes raw materials to manufacture upon shares, as black salts to make into pearl- ashes, 3 or corn to make into whisky, 4 and it will make no difference if the manufacturer gives security to the person furnishing raw materials to account for his share. 5 Where personal property is obtained wrongfully, the taker cannot, by any act of his own, acquire title to it by convert- ing it into a different species of property. It remains the property of the original owner as long as the identity of the original materials can bo traced. Thus, where "timber is converted into shingles," corn made into whisky, 7 , cloth 1 15 John. 319. l 7 Cowun, ZiS. 5 VI Wend. 51. 3 7 John. 473. <■ 5 John. BIS; 9 Id. M I. ■' 10 John. 287. ' 7 a Tomst. 379/ Wrongful Conversion of Personal Property. 153 made into u garment, or leather into shoes, the title to the manufactured article remains in the owner of the raw mate- rials. But if the identity of the thing be destroyed, as if the timber had been made into shingles or boards, and they worked into a house, so as entirely to change their nature from timber to real estate, or if money be converted into a cup, the title is changed. 1 If the personal property obtained wrongfully, is con- verted by an innocent purchaser, into an article of a differ- ent species, the rule laid down in the last section does not prevail. In such a case the title of the manufactured article is in the innocent purchaser.' 2 A sale procured by fraud passes no title to the purchaser, whatever may be the degree of fraud ; 3 but in such a case where the owner had parted with his possession to the fraud- ulent vendee, and furnished him with the external indicia of the right of selling the goods, he cannot recover the goods from an honest purchaser of the fraudulent vendee, 1 who, at the time of purchase, paid a good consideration for them. ' But an assignee of the fraudulent vendee, or one who bought them of him in payment of a previous debt, or a sheriff who levies upon them with an execution against him, have no title as against the original owner." If the purchase be obtained by an act amounting to felony, their sale to a bona fide purchaser will not affect the title of the original owner. 7 "Where goods are bought under false pretences, if the seller knowing the fraud, sue* for the price, ho affirms the sale. -1 And where one wrongfully takes goods into his own possession, and the owner recovers a judgment against him for its value, the satisfaction of the judgment transfers l he title of the goods to him. 9 Where one repairs or renews an article for another, the I 7 Cowcii, 95, 97. 6 13 "Wend. 570. i 3 Oust. 379. 6 13 Wend. 570; 20 Id. 2G7; 23 Id, ' U Wend- 31 ; 1 Hill, 311. Oil, 372. 1 10 John. 185; 8 Cow. "J38 ; 20 7 3 -Barb. 20. Wend. 267 ; 11 Id. 31 ; 1 I'iiigo, 8 4 p a i g o, 537. 492. u John. 108; 8 Cuwen, 438. 154 Gifts. title to it remains in the original owner, notwithstanding the relative value of the labor and materials bestowed upon it, in repairing or renewing it, may exceed its original value. 1 If one becomes possessed of an article belonging to another, as a wagon, and his servant changes a portion of its appen- dages by substituting new Avhiffletrces or devices for those attached to it when he obtained it, and the owner repossesses himself of the wagon without knowledge of the change, an action will not lie against him for the taking. It seems, however, that jf, upon the owner of the substituted articles demanding them, he refuses to deliver them to him, he is liable for the conversion. 2 Gift. A gift of property without delivery Avill not pass the title of it to the donee, so as to enable him to bring an action in relation to it ; :) as if one should say to another, " I will give you the corn growing in that field," unless it is delivered, the donee is liable for taking it away. The delivery may, however, be inferred from circumstances ;is in other cases. And where a father bought a lottery ticket which he declared he gave to his infant daughter, and wrote her name upon it, and after it drew a prize said the money was hers, it was held that the jury might infer a gift and delivery. 4 Where animals are let for hire, their increase belongs to the person who hires them, unless it is otherwise agreed at the time the contract is made. 8 It is otherwise, however, where they arc lent. In that case the owner is entitled to the increase. 1 ' Where one delivers personal property to another to be returned after a certain time, at the expiration of the time it reverts to the bailee, and, he may take it from one having a wrongful possession without rendering himself liable. It is otherwise, however, Avherc the contract is in the alterna- tive, as to redeliver the article or another of the same kind and quality. 7 1 2 Denio, G28. 4 10 John, 293; 2 Str. 955. 2 13 Wend. 296; 16 Id. 514. -f> 8 John. 432; 12 Id. 314. 3 2 Str. 955 ; 2 John. 52 ; 7 Id. 26; « 9 Cowen, 687. 12 Id. 188. 7 7 Cowen, 752. Liens. 155 It is essential to the validity of a gift that it goes into effect immediately and completely, and where the donor had just purchased some household furniture under a sale on a chattel mortgage made by A., which furniture was then in the house of A., and in the possession and use of his family, and the donor pointed out a part of the furniture to the wife of A., and told her that he gave her that property, and all that he had purchased on that day, this was held to be a valid gift, and it was also held that although the furniture continued to remain in the house, and in the use of the wife and family as before, it was not liable to be taken by the creditors of the husband, although he continued to reside in the house. 1 If it is to take effect in future, it is a mere promise, and, since it is a promise made without any consideration to sup- port it, the law will not enforce it. For this reason it is indispensable that every oral gift to be valid should be accompanied by an actual or symbolical delivery of the thing given, if the subject matter is capable of delivery. In this respect there is no difference between a gift between living persons or one made in view of death. If Uie posses- ion, or some means of obtaining the possession and control, is not transferred to the doiiec, the title does not pass. But the delivery need not be to the donee in person, a delivery of the thing given to a third person for the use of the donee is sufficient- It is clear upon authority that choscs in action, such as bonds and mortgages, and promissory notes not indorsed, may be well transferred by delivery only. 3 Liens. Liens arc within the definition of special property. They are either general or specific. A general lien is a right to detain the property of another in the possession of the bailee until all his claims against the owner are paid. A specific 1 Allen vs. Cowen, 9 E P. Smith, 3 -Wcsterlo vs.DeTVill, 3G If. Y. 340, 502; reversing 28 Barb. 90. 412. 2 It Carl). 243; 19 Barb. 631; 25 Barb. 505; 19 Barb. 801. 156 Liexs. lien, or as it is sometimes called, & particular lien, is a right to detain it until the bailee is paid lor some labor or expense Destowedupon the identical property, and nothing more. 1 Possession is necessary to create a lien, except in cases where it arises from a particular contract, as in the case of a mort- gage, or from a levy, when it is supposed to be in the actual possession of the officer levying ; and as a general rule where the holder of a lien parts with the possession of the property to which it is attached, his lien is lost. The lien simply extends to the detention of the property. It does not authorize the person holding it to sell it without the consent of the owner. 2 Such a consent may be implied from circumstances as well as by express words, 3 and in the case of a factor, he having a right to sell, has the means of pay- ment within his control. ' A general lien is founded upon the custom of a particular trade or business, and is not favored in law. It requires strong evidence of a settled and uniform usage, or a partic- ular mode of dealing between the parties to establish it. By the custom of a trade, an agent may have a lien upon the property of his employer intrusted to him in the course of that trade, not only in respect to its management, but for his general balance of accounts. This custom must, how- ever, have been so uniform and notorious as to warrant the inference that the party against whom the right is claimed had knowledge of it, and that his dealings were in contem- plation of it. It may also exist by special agreement, as where a dealer gives notice that he will not receive property for the purposes of his trade or business, except upon cou- l 2 Kent'sCom. 030; Story on Agency, § 375. 2 It was intimated by the learned author of Kent's Commentaries (vol. 2, p. 642,) that the only method of enforcing satisfaction from a lien is by a bill in Chancery. This, under our present system of practice would require an action for specific relief, which would bo beyond the jurisdiction of a Justices' Court. The editor cannot, however, discover any objection to the party holding the lien bringing his action for the debt owing him, and then by exe- cution levying upon the property subject to his lien. If the debt were of a less amount than would be sufficient to warrant an action in the Supremo Court, it would seem to be a convenient and safe way to realize the benefit of the lien. 3 22 Pick. 40; Holt's N. P. 383. 1 2 Kent's Com. 042. General Liens. , 157 tlition that he shall have a lieu upon it not only in respect to the charges arising upon it, but for the general balance of the owner's account, and it is shown that the owner received the notice prior to entrusting his property with the dealer. In this case the law implies that the dealing with the notice amounts to an express agreement that the general lien shall attach. 1 In respect to a few classes of business, the usage uphold- ing a general lien has been so established that the Courts recognize it without proof. Thus attorneys at law have a general lien upon their client's papers and moneys which come into their hands in the course of their professional business, until their bills for services and disbursements are paid, and the client cannot obtain his papers, whatever may be the result of his action, without paying not only the amount due in respect to the business for which the papers were furnished, but also in respect to all other professional business. 2 They have, however, no lien upon their client's moneys before it comes into their hands. ;i Prior to the adoption of the Code of Procedure, an attorney had a modi- fied lien upon costs incorporated in a judgment recovered in favor of his client, which he might enforce as against the judgment debtor, by giving him notice not to pay them to the client. This description of lien is not abrogated by the Code of Procedure, as was first supposed, but the lien of the attorney retained as before.* Factors have a general lien for liabilities incurred by them in the course of their agency, whether for payments, advances or guaranty; 5 bankers, one upon the securities and moneys of their customers in their hands, or deposited with them f insurance brokers one upon the policies in then- hands, and any funds received through their means ; 7 com- mon carriers for freight and charges upon goods carried, but not upon general balance unless' it can be shown by 1 2 Kent's Com. G36. 5 Story on Agency, § 376 ; G Term, 2 Bac. Ab. "Attorney." E. ; 2 Kent's 258. Com. 640. "3 Bro. C. C. 21; 7 Taunt. 278; 3 12 Wend. 261. Smith's Merc. Law. 338; Story on * Code of Procedure, § 303; 9 How. Agency, § 381. Pr. E. 10 ; 4 Barb. 47 ; 12 How. 136. 7 5 Taunt. 56. 158 Specific Liens. express agreement, or notice to the owner. 1 Calico printers, fullers in some places, packers and wharfingers have also been held to have a general lien. 2 All tradesmen and agents have a particular lien upon property in their hands upon which they have expended money or labor for the owner. 3 The lien extends to the entire work upon which the expenditure has been made, as where a carrier transports an entire cargo, he may retain the whole of it until he is paid for his services. 4 And where one has bestowed labor on an article for a stipulated price, he will not lose his lien, although the article be delivered at different times while the labor is being bestowed, if the work to be done under the agreement is entire, and the article is in his possession when it is finished. 5 The law favors a par- ticular lien. As a specific lien is intended for the convenience and encouragement of trade only, it does not apply where the service or expense bestowed upon the' property is not within the scope of some particular branch of commerce or trade. As an illustration of this rule, a farmer or stable-keeper who receives horses to feed and care for, has no lien upon them, because the service is not that of a tradesman. But a tavern-keeper who receives and feeds the horse of his guest has a lien upon it for the "service, because it is within the scope of his trade. If, however, the tavern-keeper receives his neighbor's horses into his stable to keep by the week, month or year, he will for this purpose be regarded in the same light as a farmer or si able-keeper, and have no lien except by special agreement. Where on the other hand, a farmer receives horses or colts, to train or break, or mares to be covered by his horse, it seems that he will for this purpose be deemed a tradesman, and have a lien. 6 The lien of a tavern-keeper is in some respects peculiar. He is bound to receive and entertain travelers, and is answer- able for the loss of goods of his guest, although they are 1 Story on Cont. § 331. 4 Bac. Ab. Trover, E. j 2 Kent's 2 Mont. Law of Lien, 32. Com. 633. 3 3 Hill, 486. 5 5 Maule 8c Selvv. 180; 3 Id. 1G7. « Crow. Car. 271; 3 Hill, 485. Specific Liexs. 159 stolen or lost without any fault upon his part. For this extraordinary liability, the law gives him a lien upon their goods for his reasonable charges. In order to constitute one a guest within the rule, it is not necessary that he should be actually within the tavern where the loss happens or the lien accrues. If one sends his horse or trunk in advance to an inn, saying he will soon be there himself, ho would for the purpose of both the inn-keeper's liability and his lien, be regarded as a guest from the time the host took charge of them. 1 So if he left his horse at the inn to be fed and cared for while he went to a neighboring town to remain a few days and return, the horse will be in the inn-keeper's hands as the horse of a guest, and subject to his lien. 3 If, how- ever, the guest had left with the inn-kecpcr some inanimate property from the keeping of which he derived no advan- tage in the way of his trade, neither the extraordinary lia- bility of the inn-keeper nor his lien would attach. The inn- keeper's lien will be lost as against all persons except the owner, if he permits the goods to bo taken away from his possession although they are returned to him. And he cannot detain one horse for the charges incurred for another, where the guest has several horses kept and has taken all but one away. 3 His lien for the keeping of the horse of his guest is valid against the owner, even where the guest stole the horse, if it was received and kept without knowledge of the wrongful taking-' The rule is the frame if the horse is wrongfully seized under color of a legal proceeding unless he kneAV the party making the seizure was a wrong doer at the time. 5 The lien of a mechanic or manufacturer will attach to the article he manufactures, although the material and apart of the expense bestowed upon it is furnished by the owner. Thus, a brickmaker who manufactured a quantity of bricks upon a brick-yard furnished by its owner, who also supplied all the wood and necessaries to carry on the work, and agreed 1 3 Hill. 486. 4 J'ic. Law Die. "Inns;" Salk. 388; 2 25 Wend. 653. 1 Str. 557 ; 3 Eulst. 208; 1 Roll. 3 3 Hill. 485; 7 Bills. 207, 217. Ab.449. B 3 Stark. 172. 1G0 SrEciPic LiEXS. to pay the workmen a particular price for every thousand of the brick made upon the return of the vessel that trans- ported them to market, was held to retain his lien until he parted with the possession of the bricks. 1 A person engaging to supply one entire work, has a lien for the price or balance due upon every individual part of it, so that after delivering a part, he may retain the residue for such price or balanced A mere creditor has no lien upon the goods of his debtor which may happen to be in his hands, and he cannot, therefore, apply them in payment of his demand/' But where one advanced money on notes deposited by the payee, to whom they were given for the debt of a third person who was in- debted to him, it was held that the lender had a lien. 4 Wherever there is a lien, the person entitled to it may retain the goods against the owner, until the money owing is either paid or tendered.' The payment or tender of the money owing, satisfies the lien, and then the party owing it is entitled to its immediate possession, and if it is refused, he can maintain an action for its unlawful detention or con- version. And if one having a lien upon goods, claims to retain them upon a diifcrent ground when they are demanded- of him, and makes no mention of the lien, he will be liable for their detention Avithout showing a satisfaction of the lien. 6 A lien may be waived by express contract, as where a factor agrees that upon the receipt of his principal's goods, he will, irrespective of his balance, pay him the proceeds. It is also waived wherever the person holding it, enters into a special agreement, inconsistent with its existence, or from which a waiver may fairly be inferred ; as when on a pur- chase, the vendor gives credit by extending the time of pay- ment, or takes a distinct and independent security for it. Here he shows that he relics in one case upon the responsi- bility of the vendee, and in the other, upon the new security. 1 4 Wend. 292. 6 9 Cowcn, 52; 6 Wend. G08. 2 3 Maule & Sclw, 107. « 1 Camp. 410; Dowl. & Ryl. 31 ; 3 15 Mass. 490. 20 Wend. 208: 3 Selden, 288. * 1 Marsh. 109. Specific Liens. i6i In 18C0, the Legislature passed a lirvv for the benefit of boarding house keepers, as follows : ^ 1. The keeper of a boarding house shall have the same lien upon, and right to detain the baggage and effects of any boarder for the amount which maybe due for board by such boarder, to the same extent, and in the same manner as inn- keepers have such lien and such right of detention. 1 The court say, since the Act of April 16, 1860, for the protection of boarding house keepers, the keeper of a board- ing house has a lien for board upon the goods brought upon the premises by a boarder to furnish his room, although they in fact do no$ belong to the boarder, but to a stranger. 2 It was the intention of the Legislature by that act to give boarding house keepers the same lien in respect to the effects of their boarders as the common law gave to inn-keepers as to the goods of their guests. The Legislature in 1867, passed an act to prevent fraud and fraudulent practices upon, or by hotel and boarding house keepers, which reads as follows : § 1. Every person who shall at any hotel or inn order and receive, or cause to be furnished any food or accommodation with intent to defraud the owner or proprietor of such hotel or inn out of the value or price of such food or accommo- dation : And every person who shall obtain credit at any hotel or inn by the use of any false pretence or device, or by depositing at such hotel or inn any baggage or property of value less than the amount of such credit, or of the bill by such person incurred ; and any person, who, after obtain- ing credit or accommodation at any hotel or inn, shall abscond from such hotel or inn, and shall, surreptitiously remove any baggage or property therefrom, shall, upon conviction, be adjudged guilty of a misdemeanor. 3 ^ 2. Every keeper of a hotel, restaurant, boarding house or inn shall post in a public and conspicuous place in the office or public room, and in every bed-room in said house a printed copy of this act, and a statement of the charge or 1 Laws of I860, Ch. 440. 3 Session Laws 1867, Ch. 077. 2 Jones vs. Morrill, 42 Barb. C23; 3 Ilill, 485. J 1(52 Action for a Penalty Given by Statute. rate of charges by the day, and for meals or items furnished, and for lod«-iu«-. No charge or sum shall be collected or received by any such person for any service not actually rendered, or for any item not actually delivered, or for a longer time than the person so charged actually remained at such place. For any violation of this section, or of any provisions herein contained, the offender shall forfeit to the injured party three times the amouut so charged, and shall . not be entitled to receive any money for the meals, items, services or time charged. The foregoing is an important statute to hotel and board- ing house keepers, and should be strictly observed, or they will fail of collecting pay for their services and accommo- dations. ///. Action for a Penally given hy Statute. Where a pecuniary penalty or forfeiture is given or granted by law to any person injured or aggrieved by any act or omission of another, the same may be sued for and recov- ered, and the action shall be prosecuted and conducted in the same manner as other personal actions in all respects, unless otherwise provided, and shall be subject to all the provisions of law concerning amendment of the process, pleadings and records therein. 1 An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this State, except where the statute im- posing it prescribes a different limitation, must be brought within three years from the time the same occurred. 2 An action upon a statute for a forfeiture or penalty to the people of this State, within two years. 3 An action upon a statute for a penalty or forfeiture, given in whole or in part to any person who will prosecute for the same, must be commenced within one year after the com- mission of the offence ; and if the action bo not commenced within the year, by a private party, it may be commenced within two years thereafter, in behalf of the people of this 1 2R. S. 301, § 1, 2. 2 Code. §02. 3 Id. § 93. AoTION roll A PENALTY GlVEN BY STATUTE. Irj3 Stntc, by the Attorney General or the District Attorney of the county where the offence was committed. The most usual actions brought in this court, for a penalty given by statute, are actions for selling strong and spirituous liquors without license, and other penalties arising under the statute to regulate taverns and groceries, actions for various penalties under the act to regulate highways, bridges and ferries, for money, or any other thing won at playing any game, under the statute of Betting and Gaming, and a great variety of other penalties for divers offences, scattered through our statute book, the rules of prosecuting for which are nearly the same in all cases. And it is proper to remark here, in regard to these actions, that the husband is, in gen- eral, answerable for a forfeiture under a penal statute incur- red by the wife, as for selling spirituous liquors without license, winning money at play, and so of other cases. 1 As one of the most familiar actions under this head, I will treat of the action for a violation of the Excise Law, and which will show the course to be pursued by Justices of the Peace, in actions of a like character. All suits for forfeitures incurred for a violation of this statute must be brought in the name of the Overseers of the Poor of the town where the offence was committed, and by Boards of Excise of the different counties in this State. 2 A license to keep an inn or tavern is a personal trust, and cannot be assigned so as to protect any one except the very person to whom granted. 3 Whether a contract to sell five gallons of spirituous liquor, to be taken away in small quantities, at the pleasure of the purchaser, the seller having no license, is a violation of the excise law, depends upon the question whether the seller's intention be fair, or a mere evasion of the statute, and this is a question for the court or jury. 4 A party who violates the provisions of the Revised Statutes in respect to excise and the regulation of taverns and gro- 1 1 R. S. G76, § 15 and 16. Id. 1149; 2 1 R. S. 672, § 45; Wend. 97. 10 John. 247. (See Act to Sup- 3 14 John. 231. press Intemperance, passed April * 16 Id. 73. 10, 1857. 1G4 Action for a Penalty Given by Statute. ccries, niiiy bo indicted and fined for such violation, not- withstanding he has been sued by the Overseers of the Poor of the town whore the offence was committed, and the pen- alty collected. 1 In an action for a penally given by the statute for selling strong or spirituous liquors without a license, it is not nec- essary for the plaintiff to show that the defendant had no license, the onus lies upon the defendant to show that he was authorized to sell. 2 In debt by Overseers of the Poor for selling spirituous liquors without a license, in violation of the statute, several distinct penalties may be recovered in the same suit. 3 The provisions of the statute requiring a license for sell- ing strong or spirituous liquors in small quantities, do not conflict with any provisions of the Constitution. The Su- preme Court have also decided that selling strong beer with- out a license, is a violation of the excise law. 4 A suit against the trustees of a school district to recover teacher's wages, docs not abate, and is not discontinued by the expiration of the defendant's term of office, and "the choice of other persons to succeed them. If, where the suit is in a Justices' Court, their successors voluntarily appear and consent to be substituted as defend- ants, (or pl'fl's.) such substitution should be made, and the suit should proceed. But a Justice of the Peace has no power to compel the substitution of new parties in a suit before him, {the provision in 2 11. S. 474, ij 100, not being applicable to Justices' Courts.) Where the new officers do not apply to bo substituted, the suit against the old ones should proceed, and if a recovery is had, they are entitled to be allowed the amount in their official accounts. 5 The statute prescribes the forms of pleadings and pro- ceedings in suits for the recovery of penalties and forfeit- ures, and for money, goods, &c., received contrary to the provisions of any statute. 6 1 People vs. Stevens, 13 Wend. 341. 6 Colgrove vs. Breed and others, 2 2 Potter vs. Deyo, 19 Wend. 361. Demo, R. 125 ; tliis applies to 3 Rood 8c Kimball vs. Deyo,3 Hill, 52. Overseers of the Poor. * 1 Denio, 540. G R. S. 278, § 1. Action foe a Penalty Given by Statute. 165 It is provided by statute, that upon every process issued for the purpose of compelling the appearance of the defend- ant to any action for the recovery of any penalty or for- feiture, shall be endorsed a general reference to the statute by which such action is given. 1 In an action brought in a Justices' Court to recover pen- alties for a violation of the excise law, it is a sufficient indorsement of the process if it states that such process is issued "according to the provisions of title nine, part one, chapter twenty of the Statute of Excise and the Eegulation of Taverns and Groceries," or according to the provisions of section (or as the case may be,) of the "Act to Suppress Intemperance and to Eegulate the sale of Intoxi- cating Liquors," passed April 16, 1857. 2 These sections only require that a general reference to the statute in relation to actions for penalties and forfeitures, shall be indorsed on the process, and which is intended to give the defendant notice of the statute he is charged with having violated, and the penalty he has incurred thereby. 3 An indorsement as follows: "Issued according to the provisions of the statute concerning the incorporation of turnpike and plank road companies, and the collection of penalties for demanding and receiving more than lawful toll in passing through toll gates on such roads," was held to be a .sufficient compliance with the requirements of the statute. The section of the statute giving a penalty of five dollars against toll gatherers on turnpikes, for demanding and receiv- ing more toll than is legally collectable, applies also to all gatherers on plank roads. 4 It is proper to remark, in conclusion, that in these cases, if the Overseers of the Poor get defeated, and judgment be given against them, no execution can be issued against them to collect the costs, but the record of judgment must be presented to the Board of Supervisors of the county for payment. 5 It is provided by statute that whenever any recovery shall be had before any Justice of the Peace, for any penalty or 1 2 R. S. 305. § 1 ; 17 "Wend. 85. » If) Wend. 50. ' 22 Barb. 137; 19 Id. 343. * 21 Barb. 319. 6 19 Wend. 50. 166 Action foe a Penalty Given by Statute. forfeiture incurred by violating any provision contained in the 9th title, chap. 20. part 1, entitled, " of excise and the regulation of taverns and groceries, &c," execution shall issue immediately, and the Justice shall indorse thereon the cause for which judgment was rendered, -which may be as follows . -1 The cause for which the within mentioned judgment was rendered, was for selling strong and spirituous liquors in violation of the statute, title 9, chap. 20, part 1, section 15. Justice. Where a statute imposes a penalty or forfeiture for an act injurious to the rights of another, and the penalty is given . to the party aggrieved, it is in the nature of a satisfaction for the wrong done. Only one penalty can he recovered for removing goods from demised premises contrary to the statute, and all who assist in the commission of the offence, may be sued together. 3 In an action for the penalty given by 2 Eeviscd Statute 400, section 43, to the aggrieved party, against a witnesa for not attending court pursuant to a subpoena, it must appear to enable the plaintiff to recover, that the witness was mate rial, and that damages resulted from his non-attendance. 8 A party who causes a witness to be subpoenaed, who is known to him not to be material, for the purpose of annoy- ance, is guilty of a contempt of the court whose process he used.' 1 The omission to pay the witness his fees, is a reasonable excuse for non-attendance, which will protect him from lia- bility for the penalty. 5 Authorities relating to the various remedies against a defaulting witness referred to. 5 The provision of 1 Eeviscd Statute, 486, section 100, im- posing a penalty upon trustees of school districts for failing to render an account, or to pay over the public money in their hands, on the expiration of their offices, provides for a 1 2 R. S. 180, §110. 3 Courtney vs. Baker, 3 Denio, 27, 2 Couley vs. Palmer, 2 Coinst, 182; Beardsley J ; 4 Denio, 75. i Denio, 874. 4 Id. 6 U. Action for a Penalty Given by Statute. 167 several penalty upon each trustee who shall omit to perform his duty, and docs not authorize a joint suit or recovery against several, and where a recovery was had against three for a single penalty, the judgment was held to be erroneous. 1 A single action for the penalty may be sustained against several who join in selling liquors without license.' 3 Though several concur in the commission of an act for which a penalty is given, only one penalty can bo recovered either in one or several actions. 3 An officer who collects a district school tax by a sale of property, under a warrant issued by the trustees of the school district, is not subject to the provisions of the title of the Revised Statutes, relative to destraining cattle, &c, nor liable to the penalty of twenty-five dollars, imposed by the twenty-third section, for a neglect to file in the Town Clerk's office, the papers mentioned in the twenty-second section. 1 A statute ought to receive such a construction as will best answer the intention of the makers, and this intention may sometimes be ascertained by referring to the causes which led to the enactment of the statute. 5 The Code speaks of an action upon a liability created by statute other than a penalty or forfeiture. Such an action, it seems to me, is not within the jurisdiction of a Justices' Court, unless it comes within an action on contract, or of an action for injury to personal or real property. Under the Turnpike Act, (1 N. R. L. 234,) re-enacted in Eevised Statute 590, section 50, the toll gatherer is not liable to five dollars penalty for demanding toll to one exempt from its payment, but only where he demands more than is due, or hinders and delays travelers and passengers bound to pay toll. 7 This law was held to give a penalty to but one class of persons, viz : travelers or passengers liable to the payment 1 Marsh vs. Simla. 1 Denio,. 230. S Tonnqle vs. llall, i Comst. 110, 2 Ingersoll vs. Skinner, 1 Denio, Jewett, J. 540. 6 Code, § 91, sub. 2. 3 Id. 7 1 Cow. Tr. 3d cd. 51; 10 John. 73. 4 Fangburn vs. Smith, 4 Barb. 240, Gridley, J. 168 Action fob a Penalty Given Br Statute. of toll, and for but one offence, viz : hindering or delaying such persons. (2 J. E. 410 ; 16 J. E. 73.) In view of these decisions, thus construing the Ecviscd Laws, it was enacted by the Eeviscd Statutes that " every toll gatherer, who at any turnpike .gate, shall unreasonably hinder or delay any traveler or passenger liable to the pay- ment of toll, or shall demand and receive from any person more toll than by law he is authorized to collect, shall, for each offence, forfeit the sum of five dollars to the person aggrieved." 1 It is clear that by this law, persons liable to pay toll, can recover a penalty for being unreasonably delayed or hin- dered, and any person, whether liable to pay toll or not, can recover a penalty, if the toll gatherer exacts from him what, by law, he is not liable to pay. The Eevised Statutes incorporated in the plank road law, gives a penalty for either of two distinct offences : the one offence is to "unreasonably hinder or delay any traveler or passenger liable to the payment of lolls ;" the other is to " demand and receive from any person more toll than by law he is authorized to collect." 2 And where a turnpike act forbids a person, after having traveled upon it, to turn off with his team, cattle, &c, in order to pass the gate or gates, on ground adjacent thereto, and again enter upon the road, with the intention to defraud the company, by avoiding the payment of the toll and inflict a penalty, it is no excuse that ho turned off in good faith, and though he turned off more than half a mile from the gate, within the meaning of the act. 3 A one horse wagon, with spring scats and paneled bides, and which is not used for farming purposes, or carrying goods, is a pleasure carriage within the meaning of the act to establish the Seneca Turnpike lioad Company. The toll thereof is twelve and a half cents, and no penalty is conse- quently recoverable for taking that sum. 1 1 1 R. S. 587, § CO; 3R. S. 528, Note S 18 John. R 51 ; 18 John. W, and to 5 50. cases cited 2 I R. S. 587, § 50; 1G Julm. R. 73; 4 IS John. 128. Skinner vs. Anderson, VI Barb. CIS. Action for a Penalty Given bt Statute. 169 When a plank road company has erected its toll gates within the distances authorized by law, and has fixed the rates of toll at the several gates at an amount not exceeding the legal rates for the entire distance, and for the distances between the several gates, it may lawfully exact the full toll thus fixed at a particular gate, notwithstanding the traveler may not have traveled upon the road a distance, which, at the established rate per mile actually traveled, would amount to such toll. 1 It seems now to be settled that an action to recover a pen. alty imposed by the by-law of a municipal corporation, may be brought in a Justices' Caurt, although the statute author- izing the by-law contains no provision conferring jurisdic- tion upon Justices of the Peace.' 2 The statute imposing a penalty of twenty-five dollars upon every person who shall forcibly and fraudulently pass any gate on any turnpike or plank road, without having paid the legal toll, is penal, imposing a penalty or forfeiture for the benefit and protection of a private corporation, and in dero- gation of common right, and is not, therefore, to be extended by construction, to cases within the mischief intended to be remedied, but which are not within the words of the statute. The terms, "forcibly or fraudulently " in the statute, must be held to have been used in their ordinary sense, and to mean actual force or actual fraud, as distinguished from constructive force or fraud. Accordingly, where the defend- ant finding a gate upon a plank road open, passed through the same with his team, and on being requested to pay toll declined,, saying that ho ought not to pay toll as the road was bad, but would do so if P. said he must ; and on another occasion he again passed through the gate on finding it open, without paying toll, although informed that P. said he must pay toll, no effort being niado by word or deed, on either occasion, to stop him. It was held, (Allen J.) that this did not amount to a forcible or fraudulent passing the gate, so as to subject the defendant to the penalty. 1 1 Ifallory vs. Austin, 7 Barb. G2G, 2 Walker vs. Cruikshank, 2 Hill R. Gridley, J.; 23 Wonil. 193; 1 290. Cainc's R. 182. 170 FOEECLOSUEE OF LlENS. To constitute a forcible passage of a gate, the passage must be effected by actual force, or by at least offering some violence to overcome, remove or prevent the obstacle created by the gate. To make the passage fraudulent, some artifice must be employed, or some deception practiced on the toll gatherer. 2 The rule that a plaintiff is in any event entitled to recover the amount tendered and brought into court by the defend- ant, does not apply to an action brought to recover a penalty of a fixed amount, and that alone. In such an action, unles& the plaintiff recovers the amount of the penalty, he is not entitled to any judgment. 3 Where a penalty given by statute for the commission of a fraud, is by the terms of the statute, to be sued for in any court of competent jurisdiction, for the benefit of the pcrsou upon whom such fraud shall be committed, in the absence of any specification, in terms, by whom the action is to be brought, it must be in the names of the persons for whose benefit the suit is prosecuted, i. e., in the name of the real parties. 4 It is not necessary that a statute giving a pecuniary pen- ally or forfeiture, should in terms direct in whose name the action for its money shall be brought. The party injured, in the absence of any provision to the contrary, may bring the action in his own name. Foreclosure of Liens. In 18G9, the following statute was passed in relation to inn-keepers and boarding house keepers, viz : § 1. Any inn-kecper, boarding house keeper, mechanic, workman or bailee, who shall have a lien upon any chattel property, may commence an action in any court having jurisdiction, of the amount of such lien for an enforcement and foreclosure thereof. 1 Tho Bridgewater 8c Utica Plank 3 Canastota, &c. Plank Road Co. vs. Road Co. vs. Robbing, 22 Barb. Pavkill, 50 Barb. 001. 662; 5 "VVhoaton, 76; 2 Caino's R. & Thomson and others vs. Howe, 46 97; 17 "Wend. 257. Barb. 287; 2 Wait Law and Prac- . 13 How. Pr. K. 448; 21 Barb. 212. tioe, 284; 4 Dcnio, 374. Foreclosure of Liexs. 171 ^ 2. Such action shall proceed in all respects as civil actions in the court in which the same is commenced. ^ 3. The judgment in such action may he the same as in other civil actions in the same court, and in addition thereto, if in favor of the plaintiff, may fix the amount of such lien and adjudge the foreclosure of the same, and the sale of the chattel property affected thereby, and specify the officer who shall make such sale, and in such ease shall direct the dispo- sition of the proceeds thereof to the payment of the amount of such lien, with the costs of the action, and the costs and expenses of such sale ; and shall provide for the safe keep- ing of any surplus arising thereon, and the payment thereof to the owner of such chattel property, or his assigns or rep- resentatives. § 4. There shall be the same right to appeal from the judgment in such action as in other civil actions in the court in which the same shall be commenced. § 5. Nothing in this act contained shall be held or con- strued to affect or impair the right of any person to enforce or foreclose alien upon chattel property in any other manner than is herein provided. 1 By the terms of the foregoing statute, the proceedings are to be commenced and conducted as in any other civil action, except the complaint should show on what property he claims the lien, and its amount ; and in case the chattel property docs not bring enough to satisfy the judgment and costs of sale, on the coming in of the return of the officer appointed by the Justice to make the sale, the Justice may issue an execution in the usual form for the deficiency, reciting the judgment in the execution, and directing the constable to collect the balance, whatever it may be. I have, therefore, prepared a form for a Justice to insert in his docket, and in case of a sale, the safe course would be to give the officer a true copy of the judgment of foreclo- sure; duly certified, by him to the end he may be empowered to sell the property in pursuance of his directions. 1 Session Laws of 1800, Cli. 738, p. 409. 172 Foreclosure of Liens. In Justices' Court — Before Francis Butler, Justice. Thomas Snow ag'l James Barton. January 4, 1871, issued summons returnable January V2, 1871. January 12, 1871, summons returned, personally served January 5, 1871. January 12, parties appeared and answered. January 12, plaintiff complained that defendant was in- debted to him in the sum of $52.16, for money lent and advanced to defendant, for the security of which he holds a specific lien on a bay horse of defendant's, and he demands a judgment for said amount, besides the costs, and a fore- closure of said lien, and a sale of said property according to the statute in such case made and provided. The defendant denies the said complaint, and gives notice of set-off, {or as the case may be.) On motion of cause adjourned to January 25th inst., at 1 p. m. January 25th, parties appeared and proceeded to trial. A. B. and C. D. sworn for plaintiff, and II. E. for defendant, (or cause tried by jury.) Judgment entered for the plaintiff for damages, $55.80 Costs, ' 7.70 Judgment, $03.50 which amount is a lien upon the bay horse mentioned in the plaintiff's complaint, and it is ordered and adjudged that the said horse, {or name the chattel,) be sold at public sale, {giving notice as in other cases,) and A. B. {some constable, naming him,) is hereby appointed and authorized, to make such sale, and he is hereby authorized and directed out of the proceeds thereof to pay the plaintiff the amount of said judgment and interest, and take his receipt therefor, and also the costs and expenses of such sale, and make his return Foreclosure of Liens. 173 of the surplus monies arising from such sale, together with his vouchers thereof, to this court within sixty days from this date. Dated, New Hartford, January 25, 1871. F. Butler, Justice of the Peace. In the absence of any statutory provision as to the items of costs and expenses, the officer making the sale may charge and receive in such cases, I am of the opinion he may charge the usual fees, in analogous cases, which may he found under the head of "Fees in Special Proceedings." It will be observed, the provisions of the foregoing statute are new, and proceedings conducted under it in a proper and legal manner, will save parties much embarrassment and trouble in enforcing liens of various kinds which they may hold upon property. Under the head of judgments will be found a proper form for a judgment of foreclosure in such cases, and an execu- tion which may be issued upon the same. 174 CoMliENCEMENt OP AcTlOttS. CHAPTER III. Of the Commencement of Actions. Actions may bo commenced before Justices of the Peace either by the voluntary appearance and agreement of the parties, or by process. When by process, it shall be either a summons, a warrant or an attachment. "When the name of a defendant is not known to the plaintiff he may be sued by summons or warrant by a fictitious name, and when subsequently in the progress of the suit his true name appears, the Justice should amend the proceedings according to the truth of the matter, and continue them as if the defendant had been sued by his right name. 1 Care should be taken to see that the action is cognizable by the Justice, that his jurisdiction extends to the persons of the plaintiff and defendant, and that the proper place for bringing the action is selected. Every action must be brought before the Justice of the town wherein either 1. The plaintiffs or one of them reside ; or 2. Where the defendants or one of them reside ; 3. Before some Justice of another town in the same county next adjoining the residence of the plaintiff or defendant. Except in the case of a defendant who has absconded, when it may be brought before a Justice of the town where he or his property is, and where all the plaintiffs are non- residents of the county, or the defendant bo a non-resident, in either of which cases it may bo brought before a Justice of the town in which the plaintiff or defendant may be. 2 Actions shall be considered as commenced, — 1. Upon process by warrant, at the time of the arrest of the defendant. 2. Upon process by attachment, or summons, on the day 1 2 R. S. 4th ed. 429, § 9; Id. 450, § SR.S. 4th od. 450, § 9. 282 ; Code of Procedure, §. Gl, sub. 11. COMMENCEMENT OF ACTIONS. 175 when the process shall be delivered to Hie constable. Bat if two or more suits be commenced by summons, or attachment; on the same day, the suit in which the process was jfirst served, shall bo deemed to have been first commenced. And 3. Where the action is instituted without process, at the time of the parties joining issue. 1 I will treat of each process under its appropriate head, so that the reader may readily perceive the law applicable to each case. All process issued by any Justice of the Peace, shall be signed by him, and may be under seal, or without seal. 3 No civil process can be issued on Sunday. This includes not only the making it out by the Justice, but also the deliv- ering it to the officer, neither of which can be legally done on that day. Process thus issued would be void. (12 John. E. 178 ; 2 R. S. 175, § 7.) It should be remarked here, that a Justice should, in no case, allow any process to go out of his hands without being ■entirely filled up ; neither can he authorize airy person to alter the process in date or otherwise, except under his im- mediate notice, as will readily be perceived by the following section : Every summons, warrant, attachment and execution, issued by a Justice of the Peace, shall be entirely filled up, and shall have no blank, cither in date or otherwise, at the time of its delivery to an officer to be executed. Every such process which shall be issued and delivered to an officer to he executed, contrary to the foregoing provision, shall be void. 3 By section 236, 2 Revised Statutes, 195, a Justice offend- ing against the 233d section, is guilty of a misdemeanor, and subject to fine, or imprisonment, or both, and a forfeit- ure of his office. Where in an action brought before a Justice against a Sheriff for an escape, it becomes material to inquire at the trial at what time the summons, by which the suit was com- 1 2 R. S. 4th ed. 429, sec. 10. 3 R. S..191, sec. 233, Laws of 1820 a 2 E. S. 194, sec. 232. 141, sec. 1, 2, 3. 17t) COMMENCEMENT OF ACTIONS. menced, was issued, and there is evidence tending to show that the summons was illegal and void, by reason of its not having been issued by the Justice in person, but- by his clerk in pursuance of his directions ; the defendant has a right to have submitted to the jury the questions,, what were the instructions given by the Justice to his clerk, and whether they were complete, so as to enable the clerk to issue the summons without the exercise of any discretion on his part, or directions from any other person. If the Court take those questions from the jury and decide that the summons was lawfully issued, the judgment will be reversed and a new trial granted. A Justice of the Peace cannot delegate any part of his official power or authority to another. Yet it seems that lie may depute another to do a specific act without vesting in him any discretion. 1 Under a similar provision in a former fifty dollar act, passed April 7, 1820, the Supreme Court decided in the People vs. Smith, (20 Johns, liep. 63,) that where a Justice signed a blank summons, and delivered it to the plaintiff, to be "filled up in his presence and under his control, it Avas not a violation of the statute ; but that if it was filled up out of his presence and beyond his control, it would be. a The same rule would seem to be applicable to the above 233d section. A general authority by a Justice to a constable to alter process would be void, but an authority to alter a particu- lar process would be valid. It is presumed that a Justice would not authorize a third person to alter a particular pro- cess unless it was done in /its presence and under his con- trol. 3 The practice of authorizing a constable to alter a process in any particular is neither prudent or discreet in a magis- trate, and ought to be discountenanced., The law having undergone many material alterations within a few years past, in respect to the issuing of process by a Justice, and it being, at the present time, often diffi- 1 Borrodaile vs. Leek, 9 Barbour It. 2 pierce vs. Hubbard, 10 Jobns. 405. 611, Welles P. J.; 20 John. 03. 3 2 R. S. 160, sec 13. Loxg Summons. 17? cult to determine what process to issue, I have deemed it proper to treat of each process separately. Of the Long Summons. The summons authorized by the Beviscd Statutes, -which from the interval between its date and return, is usually called a " long summons." By a long summons, so called, is understood a summons issued by a Justice, returnable not less than six nor more than twelve days from its date. The process against freeholders, and against inhabitants having families, except as otherwise hereinafter directed, shall be a summons. 1 "Where both parties arc residents of the county, the long summons is the proper process ; so where the plaintiff is a non-resident of the county, and does not make the proof before the Justice, of his non-residence, &c, and give the security required by law, the long summons must issue. A railroad company may properly be sued in a Justices' Court by long summons, as no provision is made by statute for process by warrant, attachment or short summons against it. 8 So also joint debtors may be sued in a Justices' Court, by long summons, though one of them be a non-resident of the count)'. 2 "Where, however, a suit was commenced by long sum- mons in the Marine Court of the city of New York, against the maker and endorser of a note, one of whom resided in the city, and the other in an adjacent county, and the plain- tiff took judgment against the latter only, he having been served with the summons more than six days before its re- turn, but not appearing to defend, held that the judgment was void, and that the party at whose suit it was obtained, could not justify a seizure of goods under the execution issued upon it. But in such case the judgment will protect the justice who issued the summons. 1 2 R. S. 160, sec. 13. 2 \\ Barb. 621 ; 15 Id. 650. K 178 Long SumjIoks. A summons is the ordinary process of the Court, and issues on the mere suggestion of the plaintiff. 1 The process of warrant or attachment in a Justices' Court is extraordinary, and can issue only on special application, and upon the proof required by law. The mere request of the plaintiff for a summons is equivalent to a plaint levied which, according to the old law, was all that was required to give jurisdiction of the person of the defendant. The authority, therefore, of a Justice of the Peace to issue a long summons, on the request of the plaintiff, is as ample as to issue a warrant or attachment upon a special application and proof required by law. In declaring upon a judgment rendered by a Justice in a suit commenced by a long sum- mons, it is not necessary to allege that the defendant was a resident of the count}'. The summons having been duly issued and served by a constable of the county, the defend- ant \b prima facie amenable to the jurisdiction. If in point of fact, the defendant is not a resident of the county, and therefore not amenable to that process, it seems that, ho should appear and take the objection. A person having no legal residence any where, it seems may be sued by long summons. The process is appropriate, unless the defendant is a non-resident of the county. 2 The case above cited contains much important informa- tion, and may be regarded as good law, having been adjudi- cated in the Court of Appeals, which is the Court of last resort in this State. It is a general rule, that the time for the appearance of the defendant, served with a summons, issued by a Justice of the Peace, shall be not less than six nor more than twelve days, and the summons shall be served at least six days before the time of appearance mentioned therein. This rule is prima facie applicable to all cases, unless the party can show to the Justice such facts as will authorize a summons of a different kind to bo issued. Where the return of the Justice to a certiorari, shows no fact authorizing him to issue 1 Barnes vs. Harris, 4 Comstock, 2 4 Comstock, 371. 874, in Court of Appeals, Gardi- ner J. Lono SuaiJtoJis. 179 a summons returnable in two days, it will be held prima facie that a summons thus issued was without authority. It cannot be inferred that the defendant was a non-resident of the county, where there is no fact stated in the return to warrant that supposition. Where the defendant is a non- resident of the county, and the plaintiff is also a non-resi- dent, he is not entitled to a short summons, without proof of that fact, and giving security for the payment of any sum which may be recovered against him. 1 The Revised Statutes provide' 3 that, (§ 112.) If process shall have issued against two or more persons jointly indebt- ed, and shall have been personally served upon either of the defendants, the defendant who may have been served with process, shall answer to the plaintiff; and the judgment in such case, if rendered in favor of the plaintiff, shall be against all the defendants, in the same manner as if all had been served with process ; but execution shall issue only in the manner hereinafter directed. ^ 123. Such judgment shall be conclusive evidence of the liability of the defendant who was personally served with process in the suit, or who appeared therein ; but against every other defendant it shall be evidence only of the extent of the plaintiff's demand, after the liability of such defendant shall have been established by other evidence. § 141. When a judgment shall be obtained against joint debtors, upon process which was not served upon all the defendants, execution may be issued in form against all ; but the Justice shall endorse thereon the names of such of the defendants who did not appear in the suit, as were not served with process of warrant, summons or attachment. § 142. Such execution shall not be served upon the per- sons of the defendants whose names are so endorsed thereon, nor shall it be levied ou the sole property of any such defendant ; but it may be collected of the personal property of any such defendant, owned by him as a partner of the 1 Allen vs. Stone, 9 Barbour, CO, 2 2 R. S. 247, sees. 122, 123. [4th CadyJ. ed. p. 444] Id. 251, sees. 141, 142. [4th ed. p. 447.] 180 Long Summons. other defendants appearing or served with process, or with any of them. It will be seen that the effect of this provision is to per- mit a plaintiff to proceed to judgment upon a joint or part- nership demand, on a service upon but one of the defendants, and to render an execution thereon available against the individual property of the defendant served with the process, and the partnership property held by all the defend- ants. The judgment is also evidence of the amount of the plaintiff's demand as against the defendants not served, when in another action he shall have established the demand against them by other evidence. Thus, if one commence an action against A. and B., and upon service of the process upon A., obtain a judgment pursuant to the statute, for fifty dollars, and he is unable to collect that upon his execution, in an action brought upon the judgment against A. and B., and when B. is served with process, the plaintiff must first prove the former judgment and its amount, then that A. and B. were partners, and thirdly, that they were liable to him upon the claim which was recovered upon in the former action, and this would entitle him to recover the amount of the first judgment and interest. The defendant B. might in this action contest the questioii of joint liability for the orig- inal claim, but that is the extent to which he could £ro. He could not be permitted to give evidence to reduce the amount claimed. The provisions of the statute relate only to co-defendants, Avho are jointly indebted. They have no reference to per- sons jointly interested as wrong-doers. 1 Form of Long Summons. of , ) Oneida County, \ ss ' To any constable of said county, Greeting : The People of the State of New York command you to summon to appear before me, the undersigned Jus- tice of the Peace, at my office, in the of , in the 1 10 Wend. 630; 11 Id. 612. Short Summons. 181 said county, on the day of 18 , at o'clock in the noon, to answer in a civil action, to damage two hundred dollars or under. And have you then and there this precept, with your return thereupon, as by law required. Witness my hand, the day of 18 . F. Butler, Justice of the Peace. Since the adoption of the Code, the summons issued by a Justices' Court need not express the plea, as was required by 2 Eevised Statutes 228, § 14. 1 The summons must be served at least six days before the time of appearance mentioned therein. It must be served, if the defendant be found, by reading it to him, and (if re- quired) delivering a copy ; and if the defendant be not found by leaving a copy at his last place of abode, in the presence of some one of the family of suitable age and discretion, who must be informed of its contents. 2 In computing the time which may intervene between the date and return of the summons, the day of the date should be excluded, and the return day included. The same rule pre- vails in relation to the time between its service and return. Thus, if it be returnable on Friday, it should be issued and served as early as the Saturday before. But parts of a day are regarded as Avhole days in the computation. So a short summons may be dated the first, and issued the after- noon of that day, and returnable the third, at 9 o'clock, a. m., providing it is duly served on the first. This summons being the usual process issued by a Justice, and the rules applicable to it being plain, nothing farther upon this branch need be added. Short Summons. The short summons differs from the long summons only in the interval between its date and return. It is required to be returnable not less than two nor more than four days from the date thereof, and to be served at least two days 1 12 Barb. 21 ; 11 Id. 657; 16 Id. 96. 2 2 R. S. 160, sec. 15; 10 Wend. 422; 2 Hill, 517. 182 Short Summons. from the time of appearance mentioned therein. 1 It is pro- vided by the act to abolish imprisonment for debt, as a sub- stitute for a warrant in cases where, before the act, a warrant might be issued in favor of a non-resident plaintiff, or against •a non-resident defendant in an action upon contract, whether (he defendant reside in another county or out of the state, and the same proof is required to authorize it as was requir- ed to authorize the issue of a warrant in a similar case ; and where security was required to entitle the plaintiff to a war- rant, it must now be tendered to entitle him to a short summons. 2 The section of the act authorizing the short summons to issue, is as follows: Whenever by the provisions of the thirtieth section of this act, no warrant can issue, and the defendant shall reside out of the county, he shall be proceeded against by sum- mons or attachment, returnable not less than- tico nor more than four days from the date thereof, which shall be served at least two days before the time of appearance mentioned therein ; and if such defendant be proceeded against other- wise, the Justice shall have no jurisdiction of the cause. 3 A short summons cannot go in any case against a defend- ant who is a non-resident of the county, except when the plaintiff's demand arises /upon contract express or implied, and then not when it arises on contract in the class of cases, (excepted by the act to abolish imprisonment for debt. 4 ) In case the applicant is a non-resident, then within the case of Allen vs. Stone, (9 Barbour, 60, and 4 Comstock, 374,) and many others, he must make the proof and give the necessary security ; and it is absolutely necessary, in all cases of short summons being issued, to require the proof by affidavit of the facts entitling the party to that process. "Where the plaintiff is a non-resident, and has a demand against a resident defendant, arising upon contract, to obtain a short summons, ho must make the proper proof by affida- vit before the Justice, and give the requisite security. Such 1 Sess. Laws 1831, p. 403, see. ">. 3 Ri-ss. Laws 1831, p. 4U3, sec. 33; 2 'J 2 R. S. 4lh erl. 460, m'C, '210; I K. S. 202, sec. 292. Coinst. 254, &92. * 22 Barb. 593; 13 Id. G34. SnoRT Summoxs. 183 was the evident intention of the Legislature, and such is the construction of the Courts. 1 A short summons in favor of a non-resident plaintiff, may be issued by any Justice of the county, though he and the defendant do not reside in the same town, or in adjoining towns. 2 The statutory provisions for acquiring jurisdiction over absent defendants from the county, it seems to me, must bo strictly complied with, to give the Justice jurisdiction. 3 It appears by the 33d section of the Act of 1831, that the short summons or attachment cannot issue against a non- resident defendant, only in cases arising on contract, where, by its provisions, no warrant can issue. The court say, a short summons cannot be issued in any case where a warrant could go under the 30th section of the Act of 1831 ; hence the short summons or attachment cannot go in any case against a defendant who is a non-resident of the county, except when the plaintiff's demand arises on contract in the class of cases where the warrant cannot be issu- ed, and if that be the case, the affidavit to procure either process should show to what class of cases the demand belongs. 4 The affidavit should show in what manner the demand arose upon contract, so the Justice could judge whether a warrant could issue or not. 5 The following form of affidavit may be used on applica- tion for a short summons, by a non-resident plaintiff. It should .not be entitled in the suit : Oneida County, ss. — A. B. being duly sworn, saith, that he has, as he believes, a good cause of action arising on contract against C. D., who resides within the county of Oneida, {being for goods sold and delivered, amounting to $ , or for money lent and advanced to him, as the case may he, staling the facts,) upon which, according to the pro- visions of the Act to abolish imprisonment for debt, and to punish fraudulent debtors, no warrant can issue against him and that this deponent is not a resident of said county of 15 Wend. 6S2; 5 Hill, 323. * Waters vs. Whittemore, 22 Barb. 2 3 Hill, 323. 60S, 695. 3 34 Barb. 95. 6 Stevens vs. Barton, 39 How. 13 ; 28 How. 320, 184 Short Summons. Oneida. This deponent prays a short summons may issue against the said C. D., according to the statute in such case made and provided. A. B. Subscribed and sworn this day ) of January, 1871, before me, $ F. Butler, Justice of the Peace. Against a Non-resident Defendant. Oneida County, ss. — A. B. being duly sworn, says, that he has, as ho believes, a good cause of action arising on contract against C. D., being for goods sold, &c, (the same as foregoing form,) from which, according to the provisions of the Act to abolish imprisonment for debt, and to punish fraudulent debtors, no warrant can issue against him ; and that the said C. D. is not a resident of the county of Oneida ; and this deponent prays that a short summons may issue against the said C. D. A. B. Subscribed and sworn this day of January, 1871, before me, F. Butler, Justice of the Peace. The Justice should then take security from the plaintiff for the payment of any sum that may be adjudged against him. Security for costs merely, "is not sufficient. 1 The form of the security to be given by a non-resident plaintiff is as follows : Oneida County, ss. — Application having been made to , Esq. , one of the Justices of the Peace of the said county of Oneida, by a non resident of the said county, for a short summons iii his favor, against C. D., upon contract. Now, therefore, for value received, and according to the form of the statute in such case made and provided, I do hereby agree with, and become bound to the said C. D. that he, the said shall pay to the said any sum which may be adjudged against him, in the said action so commenced, by the said short summons. A. B. Signed, taken and acknowledged, ) the day of 1871, before me, \ Y. Butler, Justice of the Peace. l 8 Hill. 323, Nelson Ch. J. Short Summons. 185 Form of Short Summons. of I Oneida County, $ ss ' To any constable of the said county, Greeting : The People of the State of New York command you to summon to appear before me, the undersigned Justice of the Peace, at my office, in the of in the said county, on the day of 18 , at o'clock in the noon, to answer in a civil action, to damage two hundred dollars or under. And have you then and there this precept, with your return thereupon as by law required. Witness my hand, the day of 1871. Justice of the Peace. If the plaintiff sues, or the defendant is sued in a partic- ular character, it should be so expressed in the process, whether by summons, warrant or attachment. Thus, if the action be in favor of the plaintiffs as executors, say — To answer A. B. and C. D., executors of the last will and testament of E. F. deceased. Of a Surviving Executor ; — to answer A. B., surviving executor of the last will and testament of C. D. deceased. Of Administrators ; — to answer A. B. and C. D., admin- istrators of all and singular the goods and chattels, rights and credits, which were of E. F., deceased. Of a Surviving Partner ; — to answer A. B., survivor of A. B. and C. D. Of Husband and Wife;— to answer A. B. and C. D. his wife. Of the Assignees of an Insolvent Debtor; — to answer A. B. and C. L>., assignees of E. F, an insolvent debtor. Of the Assignee of a Jail Bond ;— to answer A. B., iissignce of C. I)., Esq., sheriff of the county of Oneida. Of Overseers of the Poor; — to answer A. B. and C. D., Overseers of the Poor of the town of Trenton. In an action brought for a Penally, a part of which is given to the person prosecuting-, and a part to the State, County or Town, or some officer; to answer A. B., who 186 Process by Warrant. sues as well for himself as for the overseers of the poor of the town of "Whitestown. In favor of a Supervisor ; — to answer A. B., supervisor of the town of Kemscn. In favor of the Board of Supervisors ; — to answer the board of Supervisors of the county of Oneida. In favor of a Sheriff ; — to answer A. B., sheriff of the county of Oneida. In favor of a Corporation ; — to answer, [here insert the precise name given to the corporation — as, The mayor, aldermen and commonalty of the city of Albany — The pres- ident, directors and company of the Bank of Utica, 5 of August, 18 , before me, J usticc. The foregoing forms will be sufficient to enable the Jus- tice to draw an affidavit according to the facts, and one that will answer the requirements of the law. It will be observed that in the foregoing forms of affidavits, the nature of the cause of action is stated. This should be done in all cases, in order to show that the demand does not arise upon contract ; or if upon con- tract, that a warrant is the proper process, being against public officers, &c, as heretofore stated. The facts to be established by the affidavit, are to be spe- 190 PfiOCESS feY WaHRANT. cifically stated, and the Justice should not be satisfied (as is sometimes the case) with the simple expression of the belief, or fear, that the defendant is about to depart the country, or that he will be in danger of losing his debt, &c. Facts should be disclosed in the affidavit sufficient to enable the Justice to draw his own conclusion. 1 In a case where the application was for a warrant, the plaintiff, in his affidavit, alleged as the ground of his appli- cation, that he believed there would be clanger of losing his demand, unless a warrant should issue forthwith, without stating any facts or circumstances whatever. The Supremo Court held the affidavit insufficient. Sutherland J. remarks, the Justice has no right to be satisfied with an affidavit in the general terms employed in this case. It states no facts and circumstances whereby he could judge of the necessity or propriety of issuing the warrant. Without such specifi- cation, he had no right or jurisdiction to issue the process. 2 The cases cited are sufficient to show with what care parties should proceed, in resorting to the process by warrant. "Where a non-resident plaintiff obtains a warrant, he should give security ; and the following form is deemed sufficient : Form of Security to be Signed by the Surely. Oneida County,, ss. — Application having been made by to , Esq., one of the Justices of the Peace of the county of Oneida, for a warrant in his favor, against in a plea of trespass ; Now, therefore, for value received, and according to the statute in such case made and provided, I do hereby agree with, and become bound to the said , that he, the said , shall pay to the said any sum which may be adjudged against him, the said in the said suit commenced, or to be commenced by said warrant. 3 John Doe. Signed, taken and acknowledged the day of 187 . Justice. 1 20 Wend. 77; 1 Cowen's Tr. 463. 3 o K. S. 100, sec. 17, sub. 2. 2 18 Wend. 46, Sutherland J.-, 6 Wend. 438; 6 Cow. 234. PliOCfiSS BY WABfcAttf. 191 Form of Warrant. Oxeida County, ss. The People of the State of New York, to any constable of said county, Greeting : We command you to take Richard Roe, and bring him forthwith before me, the undernamed Justice of the Peace, at my office in the town of Whitestown, to .answer John Jones, in an action of trespass, to his damage of one hun- dred dollars, and after you shall have arrested the defendant, do you notify the plaintiff thereof. And have you then there this precept. Hereof fail not at your peril. Witness my hand at Whitestown aforesaid, in said county, the first day of August, 18 . Justice. The constable is directed by his warrant to notify the plaintiff of the arrest of the defendant, and the return as we have seen must set forth whether he has or has not noti- fied the plaintiff. The constable should give this notice without unnecessary delay, and in the meantime retain tho defendant in his custody. In some cases it would be im- possible for the notice to be given, as if the plaintiff should be absent from the county, or the constable should be una- ble to find him. In such cases the constable ought not to detain the defendant an unreasonable time, but should take him to the Justice and there make his return, setting forth the fact that he has not notified the plaintiff and the reason why. If the circumstances of the case render it proper, the Justice may then, under tho provisions of the statute refer- red to in the next section, require the defendant to remain in custody for twelve hours, during which a further effort may be made to notify the plaintiff. The notice may be in writing sent by a messenger. The statute further provides that : " When a defendant shall be brought .before a Justice on a warrant, he shall be detained in the custody of the constable, until the Justice shall direct his release. But in no case shall the defendant be detained longer than twelve hours from the time he shall be brought before the Justice, unless within that time the 192 Process by "Warrant. • trial of the cause shall be commenced ;. or unless it shall be delayed at the instance of the defendant." 1 It is within the discretion of the Justice to discharge the defendant during the twelve hours. The power, however, ought not to be exercised, except in extreme cases. If the plaintiff is duly notified of the arrest, and fails to appear within a reasona- ble time, without assigning a good excuse for hi3 absence, and especially if, in addition to this, the Justice is satisfied that the plaintiff is actuated by improper motives and a desire to harrass the defendant, it would be perfectly justi- fiable for the Justice to direct the release of the defendant. The period of twelve hours fixed as the time the defend- ant may be detained after he is brought before the Justice, forms no part of the reasonable time during which the con- stable may retain him in custody while making a bona fide attempt to notify the plaintiff or to find the Justice. If, however, the defendant should be detained an unreasonable time before being carried before the Justice, or while the constable is endeavoring to find the Justice, or if he should be kept in custody longer than twelve hours after being brought before the Justice, in either case, the constable, and all others engaged in the illegal detention, would be liable in an action for false imprisonment. 2 The return is to be endorsed on the process as in other cases, and may be in the following form : " The defendant is arrested, and before the court in custo- dy ; plaintiff notified. May 1st, 1871. Const." ok, " The defendant is arrested, and before the court in custody ; plaintiff not notified. May 1st, 1871. Const." If there be several defendants, some of whom are not found, add that fact accordingly, thus : " A. B. and C. D., the other defendants not found." The manner of making an arrest, and what constitutes one, has been treated of in a former part of this treatise. 1 2 R. S. 229, sec. 25. [4lli cd. p. 2 io -Wend. 514. 431, sec. 23.] . I'mvilege from ArresI'. 193 Certain persons arc privileged from arrest in civil actions. An enumeration of the several classes of persons to -which this privilege extends will often be found of importance to a Justice, as it is his duty when he fiifds that a party is enti- tled to the privilege to dismiss the proceedings upon which a warrant has been issued. And where a warrant is issued against two defendants, one of whom is entitled to exemp- tion from arrest, the latter may be discharged. 1 In the following cases the privilege is personal : 1. "Members of Congress" "shall in all cases except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respec- tive houses, and in going to andreturning from the same." 2 2. "Every member of the Legislature" shall be privi- leged from arrest on civil process, during his attendance at the session of the house to which he shall belong, except on process issued in any suit brought against him for any for- feiture, misdemeanor, or breach of trust, in any office or place of public trust held by him. Each member shall enjoy the like privilege for the space of fourteen days pre- vious to any such session, and also while going to or return- ing from such session, provided the time of such going or returning do not exceed fourteen days. Each member shall enjoy the like privilege after an adjournment of the Legis- lature, until its next meeting, when such adjournment shall not exceed fourteen days. Each member shall enjoy the like privilege while absent with leave of the house to which he shall belong. No officer of either house, whilst in actual attendance upon the house, shall be liable to arrest on civil process." 3 3. "Ambassadors and public ministers" of a foreign State, or any of their domestics or domestic servants are privileged from arrest, but the privilege does not extend to a citizen or inhabitant of the United States who enters their service, if the debt were contracted before the employment.'' 1 21 Wend. 457. 3 2 R. S. 154, sec. 6 to 10. [4th ed. p. 'i Cons. U. S. art. 1, sec. 0. 369.] * Burr. 2016. Act of Congress, Ap. 30, 1790. 1*14 I'iUVltEdfc FtioM Arkes*. The act of Congress imposes a penalty for arresting the ser- vant of a foreign minister, if his name has been registered pursuant to its provisions, but the servant's liability to or exemption from arrest, depends upon the fact of his service and not uppn the registry. The protection extends to all persons in the minister's actual service, as his secretary or chorister, and whether they lodge in or out of his house. But a person pursuing a trade or other business on his own account, cannot be considered as a servant. 1 Consuls are not considered ministers, nor within the exemption. 4. " Officers of courts " during the actual sitting of then- courts. The statutory provision is as follows : " All officers of the several courts of record shall be liable to arrest, on any process against the body, and may be held tojbail, in the same manner as other persons, except during the actual sitting of any court of which they are officers ; and when sued with any other person, such officers shall be liable to arrest, and may be held to bail as other persons, during the sitting of the court of which they are officers ; but no attor- ney, or counselor, or solicitor, shall be exempt from arrest during the sitting of the court of which ho is an officer, unless he shall be employed in some cause pending and then to be heard in such court." 2 5. "A woman" cannot be arrested in an action on con- tract. The provision is as follows: "No female shall be imprisoned on any process in any civil action founded upon contract." 3 6. "A voter" at an election or town meeting on the day in which it is held. 7. " Militia men," from the rising of the sun to its setting, on the day of a parade. 4 ,8. "Non-commissioned officers, musicians and privates of the army of the United States," for any debt under twenty dollars, contracted before enlistment, or for any debt what- ever, contracted after enlistment, "non-commissioned officers, musicians, seamen and marines," enlisted in the service of 1 3 Term, 79. s Id. 428, sec. 9. [4th ed. p. 072.] 2 2R. S. 290, sec. 86. [4th od. p. * 1 R. S. 303, sec. 27. [4th ed. p. 476, sec. 74.] 610, sec. 23.] l'fitVlLfcGJE FkOAl AlttttlS'r. 195 the United States, during their term of service, for any debt or contract. 1 This provision has been held not to extend to midshipmen in the navy, as they are not enlisted. 9. " Parties to a suit, jurors, &c," in going to, attending upon, and returning from court;' 2 bail attending court to justify, and all other persons having any relation to a cause which calls for their attendance at court, whether their presence be compulsory or not, to the same extent, going, remaining, and returning/ 5 And upon the same principle, a next friend or guardian, admitted to prosecute or defend for an infant, going, returning, &c, would be privileged from arrest. Where a suitor, during a bona fide attendance at the sittings in which his cause was to be tried, was arrested before the actual day of trial, in a coffee house adjacent to the court, the arrest was held unlawful. 1 So, where a suitor attending a cause which was postponed early in the clay, continued in court until five o'clock in the afternoon, and retired to a tavern, where he was arrested during dinner, he was held entitled to his privilege. 5 A party is not bound to go the nearest way home in order to avail himself of his privilege, if he do not abuse it for the purpose of going about other business of his own, the burthen of showing which is upon the plaintiff. Thus, when a party returning from attendance in a court of justice, left the court at five o'clock, arrived at his office of business at twenty minutes after five, left it at seven, and in going along the street towards his house, went into a shop, where he was immedi- ately arrested, it was held that he was privileged. And a party coming from another place than that in which the court sits, is protected while at his lodgings, as well as when going to or returning from court. This privilege extends to a party to an action which has been referred to the deci- sion of the court upon a case stated, while going to, attend- ing, or returning from court : or while attending an appeal from another county to the Supreme Court; or while attending before an arbitrator under a rule of court ; or 1 3 Rev. Laws TJ. S. 97, July 11, 3 i n. Bl. 636. 1798, ch. 89, sec. 5. * 11 East, 439. 2 Gr. Pr. 129. 6 2 Bl. 1113. 196 l'lUVlLEGE FROM Arres*. before inferior courts ; or for the purpose of opposing an insolvent's discharge ; or under a recognizance to attend the Court of General Sessions ; or before arbitrators under the statute ; or before referees, although in the latter case it extends only during the hearing, and a reasonable time after, to enable the party to return to his residence, and docs not embrace the time in which the party is occupied in prepar- ing papers to move to set aside the report. 10. "Witnesses " subpoenaed to attend any court or officer. As the exemption in these cases is now regulated by statute, all of its provisions are here given. 1 "Every person duly, and in good faith, subpoenaed as a witness to attend any court, officer, commissioner, or referee, or summoned to attend any judge, officer or commissioner, in any case where the attendance of such witness made by law be enforced by attachment, or by commitment, shall be exonerated from arrest in any civil suit, while going to the place where he shall bo required by such subpoena to attend, Avhilc remaining at such place, and while returning there- from. § 52. The court or officer before whom any person shall have been, in good faith, subpoenaed to attend as a witness, shall discharge such witness from any arrest made in viola- tion of the last section ; and if such court shall have ad- journed before such arrest was made, or before application for such discharge be made, any judge of such court shall have the same power to discharge such witness. ^ 53. Every officer authorized to perform the duties of Supreme Court Commissioner, and the Judges of County Courts, shall have the like authority to discharge any wit- ness arrested contrary to the foregoing provisions. § 54. Every arrest of a witness made contrary to the fore- going provisions, shall be absolutely void, and shall be deemed a contempt of the court issuing the subpoena ; and every person making such arrest shall be responsible to the witness arrested, for three times the amount of the damages which shall be found by the jury, and shall also be liable to an action at the suit of the party who subpoenaed such wit- 1 2R. S. 401. [4th ed. p. 617.] Process by Attachment. 197 ncss, for the loss, hindrance and damages sustained by him in consequence of such arrest. § 55. But no sheriff or other officer or person shall he so liable, unless the person claiming an exemption from arrest, shall, if required by such sheriff or officer, make an affida- vit stating : 1. That he has been legally subpoenaed as a witness to attend before some court or officer, specifying such court or officer, the place of attendance, and the cause in which he shall have been subpoenaed ; and, 2. That he has not been subpoenaed by his own procurement, with the intent of avoiding the service of any process ; which affida- vit may bo taken by such officer, and when so taken, shall exonerate such officer from all liability for not making such arrest." 11. " Canal officers." The provision is as follows : "No acting commissioner, superintendent of repairs, collector or lock-keeper, on any canal shall be held to bail, or taken by warrant in any civil suit for any act clone, or omitted to bo done by him, in the exercise of his official duties." 1 In the following cases the privilege is temporary. Xo person can be arrested on civil process on Sunday. An ar- rest on that day would be absolutely void, and render the officer and all concerned in it liable for false imprisonment. 2 If a person be detained against his will on Sunday, to be served with process on Monday, the service will be void ; 3 so if he be brought into the State on criminal process as a mere pretext and detained over Sunday to be arrested. 4 But if a defendant escape from an officer, he may. retake him on Sunday. 5 The non-residence of one of two plaintiffs is not enough to authorize the issuing of a warrant. 8 Process by Attachment. The process by attachment was given in certain cases by the Revised Statutes, and was extended to other cases in UE.S. 224, § 43. [4th ed. p. 480, » Anstr. 85. § 61.] * 10 Wend. 63G. 2 1 R S. 675, sec. 09. 4th ed. vol. » 7 John. 155. 2 p. 83.] 6 1 Cow. Tr. 70. 198 Long Attachment. 1831. Since that time the several statutes have undergone some alterations, which I shall notice particularly in this work. Much difficulty has been experienced, and many errors have been committed by Justices of the Peace, before whom causes commenced by attachment have been brought, in consequence of not having before them these different statutes, so as to ascertain what these particular alterations and amendments were, and thus be enabled to act undcr- standingly and according to law. Perhaps no portion of the practice applicable to Justices' Courts, is more difficult to be understood, or more compli- cated than that portion relating to the issuing, service and return of attachments. When application for this process is made to a Justice, great care should bo taken to distinguish and discriminate between the different cases embraced within these respective statutes to which I have referred ; for although the proceed- ings relative to the issuing service, return, &c, of these attachments, are, in many particulars, alike, yet there are many points of difference which will be pointed out in this work, worthy of attention and strict observance, in conduct- ing to final judgment causes commenced by this kind of process. 1. There are two kinds of attachments which a Justice may issue, viz : a long attachment, and a short one. The long attachment must be made returnable, not less than six nor more than twelve days from its date ; while the short attachment must be made returnable not less than two, nor more than four days from its date. Long Attachment. The Eoviscd Statutes of 1830, authorized an attachment to be issued "whenever it was made to appear to the satis- faction of the Justice to whom the application was made, that the debtor had departed, or was about to depart from the county where he last resided, with intent to defraud his creditors, or to avoid the service of civil process, or that lie kept himself concealed with the like intent. 1 1 2 R. S. 102. sec. 20. Loxo Attachment. 199 By that statute, the proof to be made to the Justiee, had to be made by two disinterested witnesses, before the attach- ment could be issued. The Legislature in 1831, passed an act dispensing with the necessity of producing two witnesses to state the facts and circumstances, &c, and allowed the plaintiff, or any per- son who made application for him, to make the necessary proof by his own affidavit, and that is the only alteration in relation to the Ecvised Statutes of 1830 ; so that attach- ments may now be issued under that statute, in the same manner as in 1830, with only this variation — the applicant does not have to produce two witnesses, his own affidavit being sufficient. 1 The section of the statute under which the forcjroiiui can jssuc, is as follows, viz : 2 "An attachment against the property of any debtor may be issued on the application of a creditor, in the manner hereinafter prescribed, whenever it shall satisfactorily appear to the Justice, that such debtor has departed, or is about to depart from the county where ho last resided, with intent to defraud his creditors, or to avoid the service of any civil process, or that such debtor keeps himself concealed with the like intent." The demand must arise upon contract, express or implied, or upon a judgment for one hundred dollars, or any less sum. 3 In 1831, the Legislature passed an act authorizing an attachment to issue in certain cases, in addition to the cases of which I have already spoken. This act was amended in 1842, and now reads as follows : l " In addition to the cases in which suits may now be com- menced before Justices of the Peace by attachment, (the cases above mentioned,) any suit for the recovery of any debt, or damages arising upon any contract, express or im- plied, or upon any judgment for one hundred dollars or less, may be so commenced, whenever it shall satisfactorily appear to said Justice, that the defendant is about to remove 1 Sess. Laws 1831, cliap. 300, sec* 35. 3 2R.S. 102, sec. 27. e 2 R, S. 162, sec* 20. * Sess. Laws 1812, p. 74. 200 Preliminary Affidavit. from the county any of his property with intent to defraud his creditors, or has assigned, disposed of, or secreted any of his property with the like intent, whether such defendant be a resident of this State or not." 1 It will readily bo perceived by these two statutes, which are the only ones authorizing the long attachment to issue, in what cases they can legally issue, viz : If an attachment is applied for, on the ground that the defendant has departed the county, or is about to depart, with the intention of defrauding, &c, then the attachment is to be issued in pursuance of the llcvised Statutes of 1830. If for fraudulently assigning, disposing of, or secreting, &c, then it is to be issued in pursuance of the statute of 1831, as amended by the act of 1842. I will next consider what kind of proof is required to authorize an attachment under cither of the sections above cited, for the nature of the proof is the same in both cases. Great care should be taken in the preparation of the affida vit. An attachment is an extraordinary and summary pro- cess given only in extreme cases, and fortius reason it is necessary that every requisite to warrant its issue should be strictly complied with. The creditor or his agent should inquire into, and ascertain fully the facts, cither from per- sonal observation or the information of those who know them. He will then be able either to state the facts in his own affidavit, or to give the Justice the names of witnesses by whom to prove them, and obtain from him a subpoena to compel them to come before him and make affidavit if they should refuse voluntarily to do so. The Justice is bound, upon request, to issue a subpoena to compel their attendance forthwith. 2 When all the affidavits arc ready, the Justice should then examine them, and if they contain only infor- mation at second hand, or general rumor, or the belief of the parties making them, and not a statement of facts and circumstances within their knowledge, from which he can, irrespective of their opinions, or his own personal knowledge, form a belief that the nets of the debtor come within the 1 Id. chap. 107, p. 71, sec. 31. "- 2 R. S. 230, sec. 28. [1th cd. p. 131.] Preliminary Affidavit. 201 provisions of the Revised Statutes, or the act to abolish imprisonment for debt, us the ease may bo, he should refuse to issue an attachment. The rule laid down iu the foregoing sections is well illus- trated in the opinion of Chief Justice Savage in the case of Smith v. Luce. 1 Tlio case arose under the act to abolish imprisonment for debt. The affidavit upon which the attach- ment was issued, stated that the defendant was indebted to the plaintiff in a specified sum over and above all discounts, and that " deponent believes that said J. S. is about to remove, or lias removed from, said county his property with intent to defraud his creditors, or has assigned, disposed of, secreted, or is about to assign, dispose of, or secret his prop- erly with the like intent." The court say, " the plaintiff was bound to prove to the satisfaction of the Justice the facts and circumstances which entitled him to the attach- ment. These facts and circumstances arc, 1st. That the plaintiff has such a demand as the statute describes ; and 2d. That the defendant is about to remove his property, or has assigned, disposed of, or secreted it, or is about to do so, with intent to defraud his creditors. The affidavit is defec- tive as to the origin of the demand ; it should state that it was upon contract or upon judgment. It is also defective in omitting to state the facts and circumstances from which the plaintiff draws the conclusion that the defendant is about to do the acts which he specifics. The plaintiff's own belief is neither a fact or circumstance upon which the Justice can exercise his judgment. It is not sufficent that the plaintiff is satisfied of the unlawful acts or intentions of the defend- ant. The Justice must be satisfied, and he must be so satis- fied from proof of facts and circumstances ; not the belief of any one. Facts must be shown to the Justice which shall leave no reasonable doubt on his mind that the defendant has committed, or is about to commit the fraudulent acts mentioned in the statute. For instance, had the affidavit statod positively that the defendant had declared his inten- tion to remove his property to avoid the payment of his debts, or that he had assigned or secreted his property, being 1 1 1 Wend. 237 202 Preliminary Affidavit. indebted at the time, and setting forth the circumstances, such as want of consideration for an assignment, or any other circumstances which usually indicate fraud, such an affidavit would be proof upon which the Justice could act judicially, and draw his own conclusion whether the defend- ant had done the acts, or was about to do them, which would authorize the issuing an attachment. It is argued that it is enough if the Justice is satisfied. I answer he must be sat- isfied judicially, and he has no right to be satisfied unless upon legal proof of facts and circumstances, not belief alone." In another case where the application for an attachment Avas made under the same act, an affidavit stating that the defendant had executed a mortgage of a part of his property . and refused to confess a judgment or give security for the demand, and declared a determination to manage his prop- erty himself, was held not sufficient proof, although there bcin" 1 " some evidence" upon which the Justice acted, the judgment was upheld as valid until reversed. 1 The subpoena to compel the attendance of witnesses to appear before the Justice and make affidavit of the facts within their knowledge upon the application may be in the following form : Oneida County, ss. To John Smith and Thomas Smith, greeting : In the name of the people of the State of New York, you arc hereby commanded forthwith personally to appear before the subscriber, a Justice of the Peace of said county, at my office in the city of Utica, to make affidavit of the facts and circumstances within your knowledge touching an applica- tion made to me by James Jackson, for an attachment against the property of Richard Roe, Given under my hand, May 1, 1871. M. M. Jones, Justice of the Peace. " The Magistrate " should be able to decide judicially, that is, from facts laid before him by the "affidavit," whether the attachment should issue. 1 20 Wend. 77 i 15 Wend. 401. Preliminary Affidavit. 203 This is required by the statutes, and should be strictly complied with. 1 If the affidavits do contain facts and circumstances tend- ing to establish a cas_> provided for, and the Justice decides it is sufficient, although an Appellate Court might deem them insufficient, the decision will protect the Justice and those acting under it until it is reversed. 2 The insufficiency of the proof contained in the affidavits may be taken advantage of before the Justice, on a motion to quash the attachment, or if there be no appearance of the defendant before the Justice, and consequently no waiver, the defendant might avail himself of it upon appeal. Where the affidavit contains fads tending to establish a case for attachment, but not sufficient, the objection should be taken before the Justice, for by pleading without objection the insufficiency might be waived. In the case of Tollman v. Bigelow, the plaintiff, in his affidavit for an attachment, stated that he "believed" that the defendant had departed from the county with intent to avoid his creditors, or to avoid the service of any process, and from "reports and information, he believed," that he kept out of the county to avoid paying his debts. 3 " The affidavits of two witnesses," (this was under Revised Statutes,) were produced, who testified that they had been informed that the defendant had departed from the county, and " as his creditors said," for the purpose of defrauding his creditors, and that he remained out of the county, as they believed, for the same purpose. Upon this an attach- ment was issued, and "judgment was obtained." The court held 'the affidavits insufficient, and "reversed" the judg- ment. 1 Where an application is made to a Justice of the Peace for an attachment on the ground that the defendant " has left the county " Avhere he last resided with intent to defraud J Si'.ss. Laws 1842, p. "4. 4 Tin's proceeding was under the Re- 2 10 Wend. 420. vised Statutes, and before the re- 3 10 Wend. 420; 20 Wend. 77. peal of that part of the 28th sec. 2. R. S 162, which required tho oath of two witnesses, as before stated. 204 Bond on Issuing Attachment. his creditors, the plaintiff must state the grounds of the application in his own affidavit, and then he must prove "the facts and circumstances" to establish such grounds, either by his own affidavit, or that of some other person or persons. Where an attachment is issued under the Eevised Statutes it is not necessary or proper to issue a summons upon the return of the attachment, but should enter judgment upon the attachment. 1 An affidavit on an application for an attachment in a Jus- tices' Court, in which the facts are slated upon the belief only of the deponent, is fatally defective, and such defect, if objected to by the defendant before pleading, may be taken advantage of "on certiorari," though the defendant pleaded to the action after the objection was overruled. 2 If the defendant had pleaded without taking the objec- tion, the defect would have been waived. 3 The affidavit required by the statute, (Laws 1831, p. 404, ^ 35,) to authorize a Justice of the Peace to issue an attach- ment, need not be signed by the deponent. If the witness be sworn, and the Justice takes down and certify the testi- mony, it is sufficient affidavit. 4 Where the bond executed upon an application for an at- tachment, professed to be the bond of the creditor who applied and of two sureties, and was executed thus : " W. 15., agent for J. S., principal," the sureties executing in proper form, held sufficient, although the principal was not bound. 5 The provision requiring a bond to be executed as one of the conditions to the issuing of an attachment, (Laws of 1831, 404, § 35,) is not satisfied by the execution of a cov- enant to pay $100, or to pay all damages and costs, &c, and where only such a covenant is executed, the Justice does not acquire any jurisdiction to issue an attachment." 1 16 Barb. 367; 11 Id. 520. 3 3 Hill, 180, 499 ; 5 Id. 428; 5 Id. 2 Dewey vs. Green, 4 Demo, 63; 1 181; 14 John. 481. Barbour, S. C. Bo]>. 552, Beards- 4 Millius vs. Shafer, 4 Denio, 60. ley, J. 6 Id. 6 1 Denio. 184. i'oitJt of Affidavit for Attachment. 205 The application for attachment may be in the following form : To M. M. Jones, Esq., one of the Justices of the Peace of the city of Utica, in the county of Oneida : I, James Kay, hereby make application to you to issue an attachment in my favor, [or, in favor of John Doe,] against the property of Richard Roe, according to the pro- visions of article second, title fourth, chapter second, part third of the Revised Statutes, [or, according to the provis- ions of the act to abolish imprisonment for debt, and to punish fraudulent debtors.] Dated May 1, 1871. James Ray. [or James Jackson, agent (or att'y) for John Doc. It is desirable that the application in this manner specify the provision under which the application is made. The affidavits to accompany the application, if made under the Revised Statutes, must be, 1st. An affidavit of the cred- itor or his agent, in which shall be specified, as near as may be, the sum in which the debtor is indebted over and above all discounts, to the person in whose behalf application is made, and the grounds upon which such application is founded ; and 2d. An affidavit of the plaintiff, or of some other person or persons, of the facts and circumstances to entitle him to the attachment. 1 In case the facts and circumstances are within the know- ledge of the plaintiff, all the statements required under each head may be embodied in his affidavit, or that of his agent. If, however, they arc not within his knowledge, they must be proved by the affidavits of other persons, but in this case the plaintiff or his agent must make the affidavit, specifying the sum in which the debtor is indebted, and the grounds of the application. This cannot be dispensed with in any case. The following is the form for the affidavit required to be made by the creditor or his agent " under the Revised Statutes." Oneida County, ss. — James Jackson being duly sworn, 1 2 E.S. 230, sec. 28; Laws of 1831, chap. 300. sec. 35; [4th ed. R. S. p. 431, sec 26. p. 461, sec. 212.] 20(5 Form of Affidavit for Attachment. saith that [he is the agent of John Doe, and that] Richard Roe is justly indebted to this deponent [or, to the said John Doe] on a demand arising upon contract amounting, as near as this deponent can estimate, the same over and above all discounts, to $ — ; and that the grounds upon which the application for an attachment against the property of the said Richard Roe, which accompanied this affidavit is founded, are that the said Richard Roe has departed [or, is about to depart] from the said county of Oneida, where he last re- sided, with intent to defraud his creditors, or to avoid the service of any civil process, [or, that the said Richard Roe keeps himself concealed with the intent to defraud his cred- itors, or to avoid the service of any civil process.] If the facts and circumstances furnishing the grounds of the application are known to James Jackson, they can be detailed as follows : And this deponent further saith, that about nine o'clock last evening deponent met the said Richard Roe, and held a conversation with him, in which the said Richard spoke of his being in embarrassed circumstances and unable to pay his debts, and in substance said the only way he knew of to save what property he had was to run away or leave the county ; that this morning said Richard's house was empty, he and his family having, during the night, left Avith most of his furniture. Or — that said Richard is in embarrassed circumstances ; that he has recently been sued by several of his creditors ; that within a few days past he has been selling such articles of property as he had which would be difficult of removal ; that deponent this day called upon him and requested him to pay his said demand, or to turn out to him property for it, both of which he refused to do, and declared that he would soon be in a place where his creditors could not find or annoy him, or words to that effect. Or — that said Richard is in embarrassed circumstances ; that his family reside in a dwelling house in Oneida, in which the said Richard has a large amount of personal prop- erty liable to be levied upon by execution ; that three or four days since deponent requested him to pay the demand Commencement of Actions by Attachment. 20? which he refused to do, and since then deponent has several times called at his house for the purpose of finding him, but has been unable to get a sight of him. James Jackson, [or, James Jackson, agent for John Doe.J Sworn before me the 1st day / of May, 1871. \ M. M. Jones, Justice of the Peace. Where the application is made pursuant to the provisions of the " Act to abolish imprisonment for debt," the affidavit may be in the following form : Oneida County, ss. — James Jackson being duly sworn, says that Richard Roe is justly indebted to this deponent [ok, to John Doe] upon a demand arising upon contract [or, upon a judgment] in the sum of ninety-nine dollars, over and above all discounts which said Richard Roe may have against him, as nearly as deponent is able to estimate the same, and that the application for an attachment against said Richard Roe, which accompanies this affidavit is made on the ground that the said Richard Roe is about to remove his property from the said county of Oneida with intent to defraud his creditors ; Or — on the ground that the said Richard Roe has assign- ed, disposed of, or secreted his property with intent to defraud his creditors ; Or — on the ground that the said Richard Roe is about to assign, dispose of, or secrete his property with intent to defraud his creditors. And this deponent further saith, [here set forth the facts and circumstances bringing the case within cither of the foregoing grounds, and which prove a fraudu- lent intent, if within the knowledge of the person making the affidavit, in the manner they are stated in the affidavit in the previous form, and conclude in the same manner.] James Jackson. Before the attachment issues, the applicant must execute to the defendant, and deliver to the Justice a bond with suf- ficient surety to be approved by such Justice (in writing upon the bond,) in the penalty of two hundred dollars, con- ditioned to pay the defendant " all damages and costs" which 208 FoKJt OF BoNt) FOE ATTACHMENT. he may sustain by reason of issuing such attachment, if the plaintiff fails to recover judgment thereon; and if such judgment be recovered, that such plaintiff will pay the defendant all moneys which shall be received by him from any property levied on by such attachment, over and above the amount of such judgment, and interest and costs there- on. 1 The bond may be executed by the plaintiff, or some one in his behalf, with surety. A deposit of money with the Justice to the amount of the penalty of the bond, or indeed to any amount, would not be sufficient. As the statute prescribes the form of the secu- rity, a regular bond in the terms of the statute must bo given. 2 Its form may be as follows : Form of a Bond for Attachment. Know all men by these presents, that we, John Doe, of Whitestown, and Eichard Eoe, of the same place, are held and firmly bound unto Peter Hoc. in the sum of two hun- dred dollars, to be paid to the said Peter Hoe, or to his cer- tain attorney, executors, administrators or assigns ; to which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Scaled with our seals, and dated the 1st day of August, 18 . "Whereas, application has been made by the above bounden John Doe, to , Esq., a Justice of the Peace of the town of , in the county of Oneida, for an attach- ment against the property of the said Peter Eoe, in favor of the said John Doe, in pursuance of the provisions of the act to abolish imprisonment for debt (or as the case may be) : now, therefore, the condition of this obligation is such, that if the said John Doe shall pay the said Peter Eoe all dam- ages and costs, which he may sustain by reason of the issu- ing of said attachment, if the said John Doe shall fail to recover judgment thereon ; and if such judgment shall be recovered, and the said John Doe shall pay the said Peter 1 2 K. S. 102, sec. 29 2 13 John. 481.. Form of Attachment. 209 Hoc all moneys -which sh:ill bo received by him from any property levied on by such attachment, over and above the amount of such judgment, and interest and costs thereon ; then this obligation to be void — otherwise of force. John Doe, [l. s.] Richard Roe, |i, s.J Scaled and delivered \ in presence of J W. S. I approve of Richard Roc as surely in the foregoing bond. August 1, 18 . Justice. Gn receiving the necessary proof and security, the attach- ment is to be issued, which must state the amount sworn to by the applicant, and must also be made returnable not less than six, nor more than twelve days from its date. 1 It may be iu the following form, which will answer uudcr either statute. Form of Attachment. Oneida County, ss. The People of the Slate of New York, to any Constable of said county, Greeting : Whereas, John Doe has made application to me, , Esq., one of the Justices of the Peace of said county, for an attachment in his favor, against the property of Peter Roc, for a debt of sixty dollars and ten cents, being the amount sworn to by the applicant, which debt arose upon contract ; and the requisite proof by affidavit, and a boud with suffi- cient surety having been made and executed ; you are there- fore commanded to attach so much of the goods and chattels of the said Peter Roe as will be sufficient to satisfy such debt, and safely keep the same, in order to satisfy any judg- ment that may be recovered on this attachment ; and do you make return of your proceedings hereon to me, the said Justice, at my office, in the town of Whitestown, on the 1st day of August, instant, at two o'clock in the afternoon, and have you then there th is precept. 1 2 E. S. 163, sec. 30. M 210 Siiokt Attachment. Given under my hand at the place aforesaid, the first day of August, 18 . The attachment may bo amended by the Justice, even after service and return, by inserting the amount of the debt sworn to by the applicant. 1 Short Attachment. This process is authorized by the act to abolish imprison- ment for debt, passed in 1831, "and can be" legally issued only against, a non-resident of the county where it issues. It may, therefore, issue in any county of this State, except the county where the defendant resides. This process is authorized by the following section of the act : "Whenever, by the provisions of the thirtieth section of this act, no warrant can issue, and the defendant shall reside out of the count}', he shall be proceeded against by sum- mons or attachment, returnable not less than two nor more than four days from the date thereof ; which shall be served at least two days before the time of appearance mentioned therein ; and if such defendant be proceeded against other- wise, the Justice shall have no jurisdiction of the cause." 2 In several of the earlier cases, the Supreme Court have, in several instances, decided that a short attachment under the foregoing section of the statute might be issued without any affidavit or bond being made. (See 15 Wend. 479 ; 23 Wend. 33G ; 5 Hill, 2G4 ; 6 Hill, 311.) The Court of Ap- peals, however, has overruled those decisions, and decided that in all cases where a short attachment is issued, it is ne- cessary to make the requisite proof by affidavit, and give security by bond, and it may now be regarded as settled that no attachment can regularly issue without the preliminary proofs, &c., being made. The applicant is, however, entitled to a short attachment in all cases where he has a demand arising upon contract, liquidated or subject to liquidation, and the defendant is a non-resident of the county where the same is issued. The 1 14 Wentl. 280. 2 Scss. Laws 1831, p. 403, sec. 33. .FoitM of Affidavit for Attachment. 211 decision of the Court of Appeals establishes the following, that- Ia order to procure an attachment from a Justice of the Peace against a non-resident of the county, under the 33d section of the act to abolish imprisonment for debt, a bond with security must be given by the applicant. The case of Clark vs. Luce, (15 Wend. 480.) holding a contrary doctrine, overruled. 1 To authorize the issuing of an attachment by a Justice of the Peace, against a non-resident, pursuant to the 33d sec- tion of the act to abolish imprisonment for debt, the party applying for the process must make an affidavit of the fact of non-residence, and execute the bond required by the Revised Statutes, on application for an attachment before a Justice of the Peace. 2 It has been decided in a recent case that an affidavit show- ing the non-residence of the defendant, and that the plaintiff has a demand against him arising on contract, not for the recovery of money collected by a public officer, for official misconduct or neglect of duty, nor for damages for mis- conduct or neglect in • any professional employment, is necessary in order to entitle the applicant to a short sum- mons. 3 The same rule, from the nature of the case, must apply to a short attachment. Such an affidavit should, therefore, be made. It may be in the following form : Oneida County, ss. — James Jackson being duly sworn, saith that Richard Roe is indebted to deponent [or, to John Doe, whose agent deponent is,] in the sum of dollars, above all discounts in his favor, as nearly as deponent can estimate the same ; that the indebtedness arises upon con- tract [or, upon a judgment founded on contract] and that it was not for the recovery of money collected by any public officer, nor for official misconduct or neglect of duty, nor for damages for misconduct or neglect in any professional employment ; and that the said Richard Roe resides out of the county of Oneida. James Jackson. 1 Bennett vs. Brown, 4 Comstock, - Taylor vs. Heath, 4 Denio, 592, 254, Gardner J. Beardsley J. 3 13 Barb. 034. 2,12 Service of Process. Sworn and subscribed before rac, ) May 1, 1871. $ M. M. Jo> t es, Justice of the Peace. It will be prudent in all cases for the affidavit to be accom- panied with an application in writing for the attachment, which may bo in the form given in the usual form. The short attachment is in all respects similar to the long attachment, excepting in the length of the time between its date and its return. This must be not less than two nor more than four days. A Justice should be very careful to see that each of the requirements of the statute as a condition for issuing partic- ular process, should be strictly complied with, not only with a view to render valid the proceedings thereupon for the benefit of the parties, but for his own protection. If he fails to follow the directions of the statute in any particular necessary to give him jurisdiction, he renders himself liable as a trespasser for any act done under his process ; as if he should issue an attachment without the oath or bond re- quired. The forms heretofore given, for the issuing of attachments and the giving of a bond, may be used in these cases. The service and return of the process should bo made as in other cases, of which I shall treat hereafter. It is proper here to remark, that when a demand arises from a trespass, or tort, or for a penalty or forfeiture, an .attachment cannot issue, nor can it be issued in any case where the suit must necessarily be brought against the de- fendant in a representative character, as executor, &c. Of the Service of Process. A long summons shall, in all cases, be served at least sto days before the time of appearance mentioned therein. If the defendant shall bo found, it shall bo served by reading the same to him, and (if required by him) delivering a copy thereof. If the defendant shall not be found, it shall be served by leaving a copy thereof at the defendant's last place of abode, in the presence of some one of the family, of suit- Service of Process. 213 able age and discretion, who shall be informed of its con- tents. 1 A constable's return to a summons issued by a Justice, must state the time as well as the manner of service. 2 A constable's return as follows : " Personally served May 14th, 1822," was held to be a sufficient return within the statute. 3 " In case of a short summons," it must bo served at least two days before the time of appearance mentioned therein, and served in the same manner as a long summons. 4 " In case of a warrant," it is enacted that — " Every constable serving a warrant, shall return there- upon, in writing, the manner in which he executed the same, and the fact whether he has or has not notified the plaintiff."' The constable serving a summons shall return thereupon, in writing, the time and manner in which he executed tho same, and sign his name thereto." If a summons is personally served, and a copy is required by, and left with the defendant, it Avonld bo well that the return be as follows : " Personally served, and a copy left with defendant at his request. August 1, 18 . Const." If the service be by leaving a copy at the defendant's last place of abode, a return of service, by copy being left witli defendant's wife, would be sufficient, thus : '■ Served by 'leaving a copy at defendant's house, with his wife. August 1, 18 . Const." The statute requires when the summons is served by copy, that the copy shall bo left at the last place of abode of the defendant in the presence of some one of the family of suit- able age, who shall be informed of its contents. 7 Mr. Cowen, in his valuable Treatise, has given forms for the return of a constable, leaving a copy, whore no person can be found at the last place of abode of the defendant, with whom to leave the copy. It strikes me, however, that 1 2 R. S. 160, sec..15; 10 Wend. 422. •* Scss. Laws, 1831, p. 403, sec. 33. 2 Bromley vs. Smith, 2 Hill, 517; » 2 R. S. 101, sec. 22. 17 Wend. 517. ,0 2 R. S. 160, sec. 10. S 2 Cow. R. 418. V 2 R. S. 160, sec. 15. 214 Commencement of Actions by Attachment. it would be no service to leave a copy, without some person could be "found with whom to leave it," as it would be a clear evasion of the statute. Personal service upon the managing agent of a corpora- tion is personal service upon the corporation — and if the constable's return shows such a service, the jurisdiction of the Justice is established, and his judgment will be regular upon its face. 1 The constable should bo careful to state in what manner he served the process, that the Justice may see whether there has been a good service ; as an appearance before the Jus- tice, for the purpose of making an objection to the sufficiency of a return, is not a waiver of the defect.' 2 A constable is required to execute the attachment, if a long one, at least six days before the return day ; if a short one, at least two days before the time mentioned therein for the appearance of the defendant, by seizing the property, making an inventory thereof, and leaving a copy of the attachment, and inventory certified by him with the defend- ant, if he can be found in the county. If not so found, it may be left at the last place of residence of the defendant ; but if he have no place of residence in the county where the goods and chattels are attached, such copy and inventory are to be left with the person in whose possession the goods and chattels arc found.' Form of Bond to Prevent the Removal of Goods Attached. Know all men by these presents, that we, John Doc and Richard Roc, of the town of Whitestown, in the county of Oneida, are held and firmly bound unto , in the sum of [double the sum stated in the attachment,] to be paid to said . Scaled with our seals, and dated the first day of August, 18 . The condition of this obligation is such, that if certain goods and chattels, to wit : [here enumerate them,] which have been seized by the above named , by virtue of 1 [8 Barb. 574; 15 Id. 47. 3 Sess. Laws 1831, 404, sec. 37. 2 14 John. 434. Commencement of Actions by Attachment. 215 an attachment issued by , Esq., in favor of John Jones, against the above bovuulen John Doe, shall be pro- duced to satisfy any execution that may be issued upon any judgment which shall bo obtained by the plaintiff upon the said attachments, within six months after the elate hereof, then this obligation to be void — otherwise of force. Scaled and delivered ? John Doe, [l. S.J in presence of $ Richard Roe, [l. s.J The surety in this bond is to be approved by the consta- ble, by an endorsement thereon as follows : "I approve of Richard Roe as surety in the within bond. Const." Form of Bond by Claimant of Property Attached. Know all men by these presents, that we, John Smith, James Brown and Joseph Taylor, of the town of , in the county of Oneida, are held and firmly bound unto John Jones in the sum of dollars, (double the value of the property attached,) to be paid to the said John Jones. Sealed with our seals, and dated the first day of August, 18 . Whereas, certain goods, to wit : [here state the articles,] were on the first day of August, 18 , seized by , constable, by virtue of an attachment issued by a Justice of the Peace of the said county of Oneida, in favor of the above named John Jones against Richard Roe ; and whereas the above bounden John Smith, claims the said goods as his property : — Now, therefore, the condition of this obligation is such,. that if in a suit to be brought on this obligation within three months from the date hereof, the said John Smith shall establish that he was the 1 owner of the said goods at the time of the said seizure, and in case of his failure to do so, if the said John Smith shall pay the value of said goods and chattels, with interest, then this obligation to bo void — otherwise of force. Sealed and delivered 1 JonN Smith, [l. s. in presence of ) James Brown, l. s. John Doe, Joseph Taylor, [l. s. 216 Form or Inventory. The approval of this bond is to be either by the constable or the Justice. It may be in the same form as the next preceding one. Notwithstanding the provision of the statute, authorizing a bond to prevent the removal of goods attached, the con- stable may, if no such bond be tendered, take a receipt for the future delivery of the goods, in the same manner as under a levy by virtue of an execution. When a receipt is taken, the property is still in the custody of the constable, and he is responsible for it, in like manner, and to the same extent, as though he had it in his actual possession. 1 The property is protected against other attachments, exe- cutions, &c, whether it be removed by the constable, or left with a receiptor, or with the defendant, upon taking a bond as security for its future delivery. 2 The copy of inventory, to bo returned with the attach- ment, should be in something like the following form : " Copy of an inventory of property this clay seized by me in virtue of the annexed attachment, to wit : One feather bed, One axe, One coverlet, . One spade, One bureau, One pitchfork, &c. August 1, 18 . Const." This-copy of the attachment and inventory should not be left at a storehouse, or store, or the like, where the defend- ant has just stopped on his travels, &c. It should be left at his usual residence or place of abode.' 1 Having executed the attachment as above provided, the constable is to make a return of the attachment, at the day therein named for that purpose, with all its proceedings thereon, subscribed by him, &c. And in addition to this, he must state specifically whether the attachment was or was not personally served upon the defendant. Form of Return on Attachment. "By virtue of the within attachment, I did, on (he first 1 12 Wend. 503, Nelson ,1. • 20 2 10 John. 131; 1*2 Wend. 003; Id. Wend. 238. 505; 20 Wend. 238. 3 15 John. 197. Delivering Goods ox Return of Bond. 217 day of August, 18 , attach, and take into my custody, the goods and chattels of the defendant, mentioned in the annex- ed inventory, and immediately, on the same day, I made an inventory of the property seized, and served a copy of the within attachment, and of the said inventory, duly certified by me, on the defendant personally. Dated August 1, 18 . Const." If a copy of the attachment be not personally served, the following should bo substituted, in place of the latter clause or the foregoing form : "And immediately on the same day, I made an inventory of the property seized, and because the defendant could not be found in the said county of Oneida, I left a copy of the within attachment and of the said inventory, duly certified by me, at the last place of residence of the said defendant, (or, if the defendant have no place of residence,) with John Brown, in whose possession I found the said goods and chat- tels, the said defendant having no place of residence in the county of Oneida. August 1, 18 . Const." If the defendant, or claimant give a bond as above pro- vided, then the constable should add to his return the fol- lowing : "But the said goods and chattels were delivered up to Richard Roe, the defendant, (or John Smith,) upon receiv- ing the bond herewith returned. Const." If the service of copy, attachment and inventory was personal on the defendant, then the Justice can go on and hear the cause on the return day thereof. But in case the service was by leaving them at the last place of residence of the defendant, or in any other manner than a personal service, and the attachment was issued under any of the provisions of the non-imprisonment act, a sum- mons. is to be issued, upon the return of which, personally served, or that after diligent inquiry, the defendant cannot be found, the Justice is to proceed and hear the cause. 1 The statute prescribes no form for this summons, neither does it direct what time may intervene between the date and 1 Suss. Laws 1831, 401. sec. 38. 218 Service of Process. return ; and the Supreme Court have not as yet, to my knowledge, passed upon that question. In the absence of any provision or decision on the subject, the ordinary form of u summons should bo used ; that is, if a long attachment, use a long summons ; if a short attach- ment, use a short summons, and have it served in the same manner as hi other cases. In case the defendant cannot be found in the county, after diligent search, the constable should make return of the fact on the summons, to the Justice, who is then authorized to hear the cause on the return day of said summons. The constable's return on the summons may be in the fol- lowing form : " I hereby certify that I have made diligent search, and the within defendant cannot be fouud in the county, upon whom I can serve the within summons. Dated August 5, 18 . Const." A constable to whom process is delivered, must execute the same in person, and cannot act by deputy in any case. He may, however, command as many male inhabitants of his county to assist him, as he may' think proper, when he is resisted in the execution of process, or has reason to appre- hend such resistance. 1 A Justice may, on the request of a party, empower any person, being of lawful age, and not a party in interest in the suit, to execute any process in a civil suit, except a venire, which he may issue. 3 The return of the constable indorsed by his direction, and in his presence upon the summons by the Justice who issued it, is sufficient evidence of its service to support the juris- diction of the Justice. 3 The authority must be in writing, and endorsed on the process. The person thus empowered will possess all the powers, and be subject to all the obligations of a constable, in rela- tion to the execution of process, but can receive no fee or reward for his services.' 1 1 2 R. S. 199, sec. 273. 3 20 N. Y. 298, and cases cited. 2 Id. sec. 271. * 2 R. S. 199, sec. 272. Sebvice or Process. 219 Form-. At the request of the plaintiff, I hereby empower William Brown to execute the within process. Dated August 1, 18 . W. II. Pratt, Justice. A person deputized by a Justice of the Peace to serve a summons, must execute it in the same manner as the statute requires a constable to execute such process. He must therefore serve the summons and make the return in. writing, in the same manner as a constable, in order to confer jurisdiction upon a Justice. The summons must be returned to the Justice with a written return thereon by the officer making the service, to confer jurisdiction upon the Justice to proceed in the action. 1 Where an execution is delivered to a constable for service, it is an entire thing ; and after it is commenced by one con- stable, it cannot be continued and completed by another. 3 If a constable execute a process in an unreasonable ami oppressive manner, and with the avowed and malicious design to vex and oppress the party, an action will lie against him.' 1 A constable must act within his territorial jurisdicton, which is the county where he is chosen, or ho will be a tres- passer. In order to execute civil process, an officer may break open a store, warehouse or barn not annexed to a dwelling house, nor forming any part of it. (1G Johns. Rep. 287.) It is not lawful to break open the outer door or window of a dwelling house to execute civil process ; but if the officer find the outer door open, or it be opened to him from within, and he enters peaceably, he may break open an inner door to execute the process, after having demanded admis- sion and stated his object, and admission has been refused. (2 Selwyn's Nisi Prius, 1247 ; 5 Johns. R. 352 ; 17 Johns. If. 127.) But a man's house is a protection only to himself and his family, and will not protect any other person who flies to it, l Jackson vs. Sherwood, 50 B:irb. "- 7 Wend. 220. (So of a Sheriff.) 356; 24 Barb. 423; 20 N. Y. 298. » Rogers vs. Brewster, 5 John. 125. 220 Service of Process. and an outer door may, in such cases, be broken open to arrest the fugitive, after a request to open the door, and a refusal. The above rules as to the execution of civil process, would seem to be applicable to all processes issued by a Justice under the Justices' Act, as a summons, warrant, attachment and execution. Thus, if a constable has a summons and the defendant shuts himself up in his house and refuses admit- tance to the constable, he cannot break the outer door in order to make the service, and in such case it would seem no service could be made. A service by reading the sum- mons at the door would hardly be sufficient. Such a con- cealment of the defendant would be a sufficient ground for an attachment, and is one of the grounds particularly men- tioned in 2 Eev. Stat. 230, § 2G. ' Civil process cannot, by statute, be executed on Sunday, and a service of such process on Sunday is utterly void, and subjects the officer to damages. (1 Eev. Stat. 675, ^ 69.) But if a person arrested on civil process, escape from the officer, he may be retaken on Sunday, and in such case the officer may break open an outer door in order to retake him after a demand and refusal. (7 Johns. Ecp. 155-6.) It is provided by statute that no court shall be opened or transact any business on Sunday, unless it be for the pur- pose of receiving a verdict or discharging a jury. 1 This prohibits the issuing of any process upon that day, and would render any process so issued void. It is also provided that no writ, process, warrant, order, judgment or decree, or other proceeding of any court, or officer of justice shall be served or executed upon the first day of the week called Sunday, (except criminal eases, or where the service is spe- cially authorized by law,) and that the service of any such process or proceeding shall be utterly void, and subject the party offending to damages at the suit of any person ag- grieved. 2 A similar provision prohibiting the service of process on Saturday, or of process returnable on Saturday upon persons observing that day as the Sabbath, has been 1 2 E. S. 275, sec. 7. [4th cd. p. 4GI, 29 j h n . iso. sec. 15.] 12 Jolm. 178. Service of Process. 221 already referred to. 1 If, however, a judgment is rendered on Saturday against such person it is not void. 3 The time which is included in the prohibition is under- stood to be a natural day, commencing at midnight and con- tinuing to the next midnight. In Connecticut, under a similar provision, the courts have held that the term Sunday or Lord's day included only the solar clay. A Justice of the Peace is authorized to amend the date and return of a summons after it has been served. 3 A Justice of the Pence has authority to allow a constable to amend his return to a summons. And the refusal of the defendant to appear will not deprive the Justice of this right. The power of amendment does not depend upon the appearance of the defendant in the suit. 4 And where a summons issued on the third day of Janu- ary, 1846, and made returnable on the tenth day of January instant, was by mistake dated January 3d, 1845, and having been personally served on the day it was issued, the plaintiff obtained judgment without an appearance on the part of the defendant. Held, that the defect having been overlooked by the Justice, should be disregarded by the Common Pleas and by this Court. 5 The delivery of process to the constable is no part of the official duty of a Justice of the Peace, and although the Justice stated in his return to a certiorari that the summons was delivered to the constable the same day it Avas dated to be served, such statement cannot be regarded by this court as evidence of the fact ; some third person should have been called and proved the fact." Where a summons in a Justices' Court is returned as hav- ing been served by copy, and the Justice issues another sum- mons, the suit is legally continued, and in respect to the defence of the statute of limitations is deemed to have been commenced when the first summons was delivered to the constable for service. 7 1 2 R. S. p. 275, seca. 8, 9. [4th cd. ?• 4 Dnnio, 498, Jcwett J. p. 464, sees. 16, 17.] * 22 Barb. 137. 2 2 R. S. 267, sec. 233. [.4th cd. p. 5 4 Denio, 498, Jewett J. 453, sec. 154.] ° 3 Denio, 12, Jewett J. 7 Id. 222 Substitution of New Paeties. A Justice of the Peace Las no power to compel the sub- stitution of new parties in a suit before him, the provision in 2 E. S. 474, § 100, not being applicable to Justices' Courts. If new parties voluntarily consent, they may be substituted by the Justice. 1 Where new trustees do not apply to be substituted, the suit against the old ones should proceed, and if a recovery is had, they are entitled to be allowed the amount in their official accounts. "Where a short summons has been issued by a Justice in behalf of a non-resident, without the necessary security having been given, the Justice should non-suit the plaintiff the moment that fact is made known to him. 2 A person having no legal residence any where, it seems, may be sued by long summons. That process is appropri- ate unless the defendant is a nonresident of the county. 3 1 Colgrove vs. Breed. 2 Denio, 125, 2 9 Barbour, CO. Beardslcy J.; 11 How. Pr. 140. 8 4. Comstock, 301. Commencement of ActIon. 222a Commencement of Action. § 2876. An action is commenced before a justice of the peace, either by the voluntary appearance and joinder of issue by the parties, or by the service of a summons. § 2877. The summons must be directed, generally, to any constable of the county where the justice resides ; and it must command him to summon the defendant to appear before the justice, at a place specified therein, to answer the complaint of the plaintiff in a civil action. Where the summons is accompanied with an order to arrest the defendant, it must be made returnable immediately upon the arrest of the defendant, within twelve days after the day when it was issued ; in every other case, it must be returnable at a time therein specified, riot less than six nor more than twelve days after the day when it was issued. § 2878. Personal service of the summons must be made by delivering a copy thereof to the defendant ; except where it is specially prescribed in this chapter that personal service may be made by delivering a copy to another per- son. Where service of a summons is personal, it must be made at least six days before the time of appearance speci- fied therein ; except where it is accompanied with an order of arrest. § 2879. Where the defendant to be served is a corpora, tion, the summons may be personally served upon it, by delivering a copy thereof to an officer or person, to whom a copy of the summons in an action, brought against the corporation in the supreme court, might be delivered, as prescribed in sections 431 and 432 of this act ; or, to any director or trustee of the corporation, by whatever official title he is called. § 2880. Where the defendant to be served is a domestic railroad corporation, and no officer thereof resides in the county, to whom a copy of the summons may be delivered 222b Commencement of Action. as prescribed in tbe last section, it may be personally served, by delivering a copy thereof to a local superintend- ent of repairs, freight agent, agent to sell tickets, or sta- tion-keeper of the corporation, residing in the county; unless, at least thirty days before it was issued, the cor- poration had filed, in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against it, may be served ; in which case, the summons may be personally served by delivering a copy to the person so designated. § 2881. Where the defendant to be served is a corpora- tion, association, partnership, or person, doing business in the State as an express company, and no person resides in the county to whom a copy of the summons may be deliv- ered, as prescribed in the foregoing sections of this article, it may be personally served, by delivering a copy thereof to any local or general agent, agent to receive freight or parcels, route ageut, or messenger of the defendant, resid- ing in the county; unless, at least thirty days before it was issued, the defendant had filed, in the office of the clerk of the county, a written instrument, designating a person residing in the county, upon whom process to be issued by a justice of the peace against the defendant, may be served ; in which case, the summons may be personally served by delivering a copy thereof to the person so desig- nated. § 2882. Where a person has been designated, as pre- scribed in either of the last two sections, and the designa- tion has been revoked, or it appears, by affidavit or the return of the constable, to whom a summons has been duly delivered for service, that the person designated is dead, or has ceased to reside within the couuty; or that he cannot, after due diligence, be found within the county, so as to deliver a copy of the summons to, him; the ori- ginal summons, or the second or third summons, issued CoMMKN CEMENT OF Af'TTON. 22'2c as prescribed in the next section, may be served as if the designation had not been made. Such a designation may be revoked by a writing, executed and filed in like manner as required for the purpose of making the designation. § 2883. Where it appears, by the return of the con- stable, to whom a summons has been duly delivered for service, that it was not served, for any cause, a second summons may be issued by the same justice, in the same action, within twenty days after the first summons was issued ; and, upon the like return thereof, a third sum- mons may be issued, within twenty days after the second was issued. The second or the third summons, as the case may be, relates back to the time when the first sum- mons was issued ; and, with respect to all proceedings before actual service, the service thereof has the same effect, as if the fir6t summons had been seasonably served. For the purpose ot issuing a new summons, as prescribed in this section, a previous summons may be returned upon the sixth, or any subsequent day, before the return day thereof. § 2884. Where the plaintiff is ignoraut of the name, or part of the name of a defendant, that defendant may be designated in the summons, and in any other process or proceeding in the action, by a fictitious name, or by so much of his name as is known, adding a description, iden- tifying the person intended. The person so designated must thereupon be regarded as a defendant in the action, and as sufficiently described therein for all purposes. When his name, or the remainder of his name, becomes known, the justice, before whom the action is pending, must amend the proceedings already taken, by the inser- tion of the true or full name, in place of the fictitious name, or part of a name ; and all subsequent proceedings must be taken under the name so inserted. § 2885. A constable, who serves a summons, must, at or before the time when the same is returnable, make and 222d Obdeb of Abeest. deliver to the justice a written return thereof, under his hand, stating the time when, and the manner in which, he serveiit. A constable who fails seasonably to serve a summons, delivered to him for service, must make a written return thereof under his hand, stating that it was not served, and the reason why he failed to serve it. Order of Arrest. § 2894. At the time when the summons is issued, in an action specified in the next section, the justice who issues the summons must, upon the application of the plaintiff, and upon compliance by him with the provisions of this article, grant an order for the arrest of the defendant, in either of the following cases : 1. Where the defendant to be arrested is not a resident of the county. 2. Where the plaintiff is not a resident of the county; or, if there are two or more plaintiffs, where all are non- residents thereof. 3. Where it appears to the satisfaction of the justice, by the affidavit of the plaintiff or another person, that the defendant is about to depart from the county, with intent not to return thereto. But such an order canuot be granted, where the defend- ant, against whom it is applied for, is a female. § 2895. An order of arrest shall not be granted, except where the action is brought for one or more of the follow- ing causes : 1. To recover a fine or penalty. 2. To recover damages for a personal injury, of which a justice of the peace has jurisdiction; an injury to property* including the wrongful taking, detention, or conversion of personal property; misconduct or neglect in office, or in a professional employment; fraud, or deceit. But this subdivision does not apply to a claim for damages in an action to recover a chattel. Ordbe of Abbest. 222e 3. To recover for money received, or to recover a chat- tel ; where it appears that, the money was received, or that the chattel -was embezzled or fraudulently misapplied, by a public officer, or by an attorney, solicitor, or coun- sellor, or by an officer or agent of a corporation or banking association, in the course of his employment; or by a factor, agent, broker, or other person in a fiduciary capacity. § 2896. Where it appears to the justice, by the affidavit of the plaintiff or another person, that a sufficient cause of action exists, against the defendant, and that the case is within the provisions of the last two sections, he must grant the order of arrest. But before granting it, he must require a written undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the defendant recovers judgment, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must bo at least one hundred dollars. § 2897. The order must be subscribed by the justice and indorsed upon or attached to the summons. It must briefly recite the ground of arrest; and it must direct the constable, who serves the summons, to arrest the defend- ant; to bring him forthwith before the justice ; and to notify the plaintiff of the arrest, if he can do so with reasonable diligence. § 2898. The constable must, at the time of serving the summons, execute the order of arrest, by arresting the defendant, and taking him forthwith before the justice. If the justice is absent, or unable to try the action, the constable must forthwith take the defendant before another justice of the same town or city ; who must take cognizance of the action, and proceed therein, as if the 222f Ordee of Aebest. summons had been issued, and the order of arrest had been granted, by him. § 2899. The constable, executing the order of arrest, must forthwith deliver to the justice the order, and a written return thereto, under his hand, stating the manner in which he has executed it, and either that he has notified the plaintiff, or that he could not do so, with reasonable diligence. If he returns that he has notified the plaintiff, the latter must appear within one hour after the defend- ant is brought before the justice; otherwise judgment of nonsuit must be rendered against him. § 2900. The constable executing the order, or another constable, by direction of the justice, must keep the defendant in custody, until he is discharged by the order of the justice, or judgment is rendered in his favor; but the detention shall not, in anj 7 case, exceed twelve hours from the time when the defendant is brought before the justice ; unless, within that time, a venire is issued, or the trial of the action is commenced, or unless either is delayed with the express assent of the defendant. § LtoOl. A defendant, arrested as prescribed in this article, may, without notice, upon the appearance of the plaintiff before the justice, or at any time afterwards before judg- ment, upon two days' notice given personally to the plain- tiff, or to his agent or attorney who appeared for him before the justice, apply to the justice for an order, dis- charging him from the arrest. The application may be founded upon the papers upon which the order of arrest was granted, and upon the complaint, if it has been made. The justice must grant the application, where it appears that the case is not within the provisions of sections 2894 and 2895 of this act. The justice must also, upon the de- fendant's application, grant an order discharging him from arrest, if the plaintiff fails to take out, from the justice, an execution upon a judgment in his favor, before the expira- tion of one hour after he is entitled thereto. Attachment or Pboperty. 222g § 2902. The discharge of the defendant from arrest, before judgment, as prescribed in the last section, or in section 2963 of this act, does not affect the jurisdiction of the justice over the action, which must proceed, as if it had been commenced in the ordinary manner. His dis- charge from arrest, after judgment, as prescribed in the last section, doesnot affect the execution. § 2903. Where an order of arrest has been granted and executed, in a case specified in subdivision third of section 2895 of this act, the plaintiff cannot recover upon a default, and the defendant is entitled to judgment upon a trial, unless the plaintiff establishes all the matters of fact, which are required, by that subdivision, to entitle him to an order of arrest. § 2904. This article does not abridge or otherwise affect a privilege from arrest given by law, or a right of action for the breach thereof. A privileged person is entitled to be discharged from arrest, by the order of the justice before whom he is brought, upon proof, by affidavit, of the facts entitling him to a discharge ; or he may apply for and obtain an order for his discharge, as prescribed in section 564 of this act. Attachment of Properly. § 2905. In an action brought before a justice of the peace a warrant of attachment against the property of one or more defendants must be granted, upon the application of the plaintiff, as prescribed in this article, where the ac- tion is brought upon a judgment, or to recover for one or more of the following causes: 1. Breach of a contract, express or implied. 2. "Wrongful conversion of personal property. 3. Any other injury to personal property, in conse- quence of negligence, fraud, or other misconduct. 1 § 2906. To entitle the plaintiff to such a warrant, he 222h Attachment 6f Peopeett. must show, by affidavit, to the satisfaction of the justice as follows : 1. That a sufficient cause of action exists against the defendant, to recover damages for one or more of the causes specified in the last section. If the action is upon a judgment, or to recover for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counterclaims known to him. 2. That the defendant is either a foreign corporation ; or not a resident of the State ; or, if the defendant is a natural person, and a resident of the State, that he has de- parted, or is about to depart, from the county where he last resided, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself con- cealed, with a like intent; or, if the defendant is a natu- ral person, or a domestic corporation, that he or it has re- moved, or is about to remove, property from the county where the defendant being a natural person last resided, or, being a corporation, last kept its principal office, or, from the county in which the action is brought, with in- tent to defraud his or its creditors, or has assigned, dis- posed of, or secreted, or is about to assign, dispose of, or secrete, property, with the like intent ; or that the defend- ant, being a natural person of full age, and a resident of the State, has been continuously without the United States for the space of six months or more, immediately before the application, and either that he has not made a designation of a person, upon whom to serve a summons in his behalf, as prescribed in section 430 of this act, or that service upon the person so designated cannot be made, with due diligence, in the county where the person mak- ing the designation resides. The affidavit must be filed with the justice, when the warrant is granted. § 2907. The warrant must be granted by the justice who Attachment oy Property. • 222i issues the summons, at the time when the summons is is- sued; and it must be indorsed thereupon or .annexed thereto. It must be subscribed by the justice, and must briefly recite the ground of the attachment. It must re- quire the constable, to whom the summons is delivered, to attach, on or before a day specified therein, which must be at least six days before the return day of the summons and safely to keep as much of the defendant's goods and chattels, witiiin his county, as will satisfy the plaintiff's demand, with the costs and expenses, and to make return of his proceedings thereon to the justice, at the time when the summons is returnable. The amount of the plaintiff's demand must be specified in the warrant, as stated in the affidavit. § 2908. Before granting the warrant, the justice must require a written undertaking to the defendant, on the part of the plaintiff, with one or more sureties, approved by the justice, to the effect that, if the defendant recovers judgment, or the warrant of attachment is vacated, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by rea- son of the attachment, not exceeding the sum specified in the undertaking, which must be at least two hundred dol. lars; and that if the plaintiff recovers judgment, he will pay to the defendant all money received by him from property taken by virtue of the warrant of attachment, or upon any bond given therefor, over and above the amount of the judgment, and interest thereupon. § 2909. The constable, to whom the warrant of attach- ment is delivered, must execute it at least six days. before the return day of the summons, by levying upon and tak- ing into his custody so much of the goods and chattels of the defendant, not exempt from levy and sale by virtue of an execution, including money and bank-notes, which he finds within his county, as will satisfy the plaintiff's de- mand, with the costs and expenses. He must safely keep 222j Attachment of Property. the property attached, to be disposed of as prescribed in this article, and must immediately make an inventory thereof, stating therein the estimated value of each item or article. §2910. The constable must, immediately after making the inventory, and at least six days before the return day of the summons, serve the summons, together with the warrant of attachment and iuventory, upon the defendant, by delivering to him personally a copy of each, if he can, with reasonable diligence, be found within the county ; or, if he cannot be so found, by leaving a copy of each, certified by the constable, at the last place of residence of the defendant in the county, with a person of suitable age and discretion ; or, if such a person cannot be found there, by posting it on the outer door, and also depositing an- other copy in the nearest post office, inclosed in a sealed, post-paid wrapper, directed to the defendant at his resi- dence; or, if the defendant has no place of residence in the county, by delivering it to the person in whose pos- session the property actached is found. § 2911. The defeudaut, or his attorney, or agent in his behalf, may, at any time before judgment is rendered in the action, execute and deliver to the constable an under- taking, to the plaintiff, in a sum specified therein, at least twice the value of the property attached, as stated in the inventory ; with one or more sureties, approved by the constable, or by the justice who issued the warrant ; and to the effect that, if judgment is rendered against the de- fendant, and an execution is issued thereupon, withiu six months after the giving of the undertaking, the property attached shall be produced to satisfy the execution. Thereupon the constable must re-deliver the property to the defendant. § 2912. If a person, not a party to the action, claims any property attached, which is not reclaimed by the defend, ant, as prescribed in the last section, he may, at any time Attachment or Property. 222k after the seizure, and before execution is issued upon a judgment rendered in the action, execute and file with the justice a bond to the plaintift, with one or more sureties, approved by the constable or by the justice ; in a penalty at least twice the value of the property claimed ; and con- ditioned that, in an action upon the bond, to be com- menced within three months thereafter, the claimant will establish that he was the general owner of the property claimed, at the time of the seizure ; or, if he fails so to do, that he will pay to the plaintiff the value thereof, with in- terest. The constable must thereupon deliver the prop- erty claimed to the claimant. §2913. A judgment for the plaintiff, in an action upon a bond, given as prescribed in the last section, must award to him the value of the property seized and delivered to the claimant, with interest thereupon from the time of the delivery, if the amount so recovered exceeds the amount which the plaintiff recovers, in the action in which the warraut of attachment was issued, he is liable to the de- fendant in that action for the excess. § 2914. If the warrant of attachment is vacated or an- nulled, the defendant may maintain an action, upon the bond specified in the last two sections, in his own name, in the same manner and with the like effect, as the plain- tiff might have done, if the warrant had remained in full force. § 2915. The constable executing the warrant of attach- ment must, at the time when and place where it is return- able, make a return thereto, under his hand, stating all his proceedings thereupon. He must deliver to the jus- tice, with the return, each bond or undertaking delivered to him, pursuant to any of the foregoing provisions of this article, and a certified copy of the inventory of the prop- erty attached. The return must state the manner in which the warraut and inventory were served, and, if they were served otherwise than by delivering a copy thereof to the 2221 Attachment of Peopbktt defendant personally, the reason therefor, and the name of the person to whom the copy was delivered, unless his name is unknown to the constable ; in which case, the return must describe him so as to identify him, as nearly as may be. § 2916. A defendaut, whose property has been attached, may, upon the return of the summons, apply to the jus- tice, who issued the warrant of attachment, to vacate or modify it, or to increase the plaintiff's security. Such an application may be founded upon the papers upon which the warrant was granted ; or upon proof, by affidavit, on the part of the defendant; or upon both. If it is founded upon proof on the part of the defendant, it may be op- posed by new proof, by affidavit, upon the part of the plaintiff, tending to sustain any ground for the attach- ment recited in the warrant, but no other. The justice may, upon the return of the summons, or at any other time to which the action is adjourned, vacate the warrant of attachment upon his own motion, if he deems the pa- pers, upon which it was granted, insufficient to authorize it. § 2917. Vacating the warrant of attachment does not affect the jurisdiction of the justice to hear and determine the action, where the defendant has appeared generally in the action ; or where the summons was personally served upon him ; or where judgment may be taken against him, as being indebted jointly with another defendant, who has been thus summoned or has thus appeared. In every other case, the justice who vacates a warrant of attach- ment against the property of a defendant, must dismiss the action as to him. §2918. Where the defendant has not appeared, and the Replevin 222m summons has not been personally served upon him, and property of the defendant has been duly attached by vir- tue of a warrant, which has not been vacated, the justice must proceed to hear and determine the action ; but, in an action subsequently brought, the judgment is only pre- sumpiive evidence of indebtedness, and the defendant is not barred from any counterclaim against the plaintiff. The execution, issued upon a judgment so rendered, must require the constable to satisfy it out of the property bo attached, without containing a direction to satisfy it out of any other property. Replevin. § 2919. An action to recover a chattel, with or without damages for the wrongful taking, withholding or deten- tion thereof, can be brought before a j ustice of the peace of the county in which the chattel is found in a case, and subject to the qualifications, specified in sections 1689, 1690, 1691 and 1692, and subdivision seventh of section 2862 of this act. § 2920. The plaintiff may, at the time when the sum- mons is issued, but not afterwards, require the chattel to be replevied, as prescribed in this article. For that pur- pose, he must deliver to the justice an affidavit and an un- dertaking, similar, in all respects, to the affidavit and un- dertaking required to be delivered to a sheriff, as pre- scribed in sections 1695, 1697, 1699 and 1712 of this act; except that the sureties in the undertaking must be ap- proved by the justice. 222n Replevin § 2921. Upon receiving the affidavit and undertaking, ■ the justice must indorse upon or attach to the affidavit a written requisition, subscribed by him, requiring the con- stable, to whom the summons is delivered, to replevy the property described in the affidavit, on or before a day specified in the requisition, which must be at least six days before the return day of the summons. The affidavit and requisition must be delivered to the constable, with the summons. § 2922. The constable must execute the requisition, as a sheriff is required to execute a requisition, in an action brought to recover a chattel, as prescribed in sections 1700, 1701 and 1702 of this act; except that he must serve the summons, affidavit, and requisition, within the time and in the manner prescribed, by section 2910 of this act, for the service of a summons, warrant of attachment, and in- ventory. § 2923. The constable must, on or before the return day of the summons, make a return to the requisition, un- der his hand, stating all his proceedings thereupon ; and file it, with the affidavit and requisition, with the jus- tice. The return must state the manner in which the summons, affidavit and requisition were served ; and, if they were served otherwise than by delivering the requi- site copies to the defendant personally, the reason there- for, and the name of the person to whom the copies were delivered, unless his name is unknown to the constable; in which case, the return must describe him so as to iden- tify him, as nearly as may be. §2924. At any time after the chattel has been reple- vied, and at least two days before the return day of the Replevin 222o summons, the defendant, unless he requires a return of the chattel, may serve upon ths plaintiff, or upon the con- stable, a written notice that he excepts to the plaintiff's sureties ; otherwise he is deemed to have waived all ob- jections to them. If such a notice is served, the sureties must justify upon the return of the summons ; or the plaintiff must then give a new undertaking to the same effect as the original undertaking, with other sureties, who must then appear and justify before the justice. § 2925. At any time before the return day of the sum- mons, the defendant may, if he does not except to the plaintiff's sureties, serve upon the justice a notice that he requires a return of the chattel replevied. With the no- tice he must deliver to the justice an affidavit and an un- dertaking, similar, in all respects, to those required to be given by a defendant upon requiring a return of a chattel, as prescribed in sections 1704 and 1712 of this act, omit- ting the provision in the undertaking, " or if the action abates in consequence of the defendant's death." The sureties in the undertaking must justify before the justice upon the return of the summons. If the plaintiff has stated separately in his affidavit the value of one or more chattels or classes of chattels, as prescribed in section 1697 of the act, the defendant may require a delivery of part of this property replevied, as prescribed in that section. § 2926. Except as otherwise expressly prescribed in this article, the examination and qualifications of the sureties, and the allowance of the undertaking, upon a justification pursuant to either of the last two sections, must be the same as upon a justification of bail, as prescribed in sec- tions 679, 580 and 581 of this act, substituting the justice for the judge; but after such allowance, the undertaking 22 2p Replevin must be filed with the justice. The constable is there- upon exonerated from liability. § 2927. If the defendant neither excepts to the plain- tiff's sureties, nor requires the return of the chattel, within the time prescribed for that purpose ; or it he'fails to procure the allowance of his undertaking.; or if the plaintiff, after the defendant has excepted to his sureties, duly procures the allowance of his undertaking, the con- stable must, except in the case specified in the next sec- tion but one, immediately deliver the chattel to the plain- tiff. If the plaintiff, after the defendant has excepted to his sureties, fails to procure the allowance of his undertak- ing ; or if the defendant, after he has required the return of the chattel, procures the allowance of his undertaking, the constable must immediately deliver the chattel to the defendant. § 2928. A constable who delivers to either party, with- out the consent of the other, a chattel replevied by him, except as prescribed in the last section, or, by virtue of an execution issued upon a judgment in the action, forfeits to the party aggrieved'the sum of one hundred dollars ; and is also liable to him for all damages which he sustains thereby. § 2929. The provisions regulating the proceedings, where a person, not a party, claims property which has been replevied, and the rights of such a person, and of the sheriff, as prescribed in sections 1709, 1710, 1711 and 1712 of this act, apply to a like case in an action, brought as prescribed in this article, substituting the constable for the sheriff; except that service of a notice and of a copy of the claimant's affidavit, upon the plaintiff's attorney, as Replevin 222q prescribed in section 1709, must be made, either upon the plaintiff personally, or upon the attorney who appears for him before the justice; and that the sum specified in the undertaking, given by the plaintiff to the constable, need not exceed, in any case, three hundred dollars. § 2930. Where a chattel has been replevied, and the de- fendant has not required the return thereof, pending the action, as prescribed in the foregoing sections of this arti- cle, he may, in his answer, demand judgment for the re- turn thereof, either with or without damages for the tak- ing, withholding, or detention. § 2931. Section 1373, section 1731, excluding subdivi- sion first thereof, and sections 1722, 1726, 1730, 1732, 1733, 1734 and 1735 of this act, substituting the constable for the sheriff, apply to the proceedings in an action in a justice's court to recover a chattel, and to an action against the sureties in an undertaking given therein, ex- cept as otherwise specially prescribed in this chapter. § 2932. Where the defendant does not appear, and the summons has not been personally served upon him, and a chattel, or part of a chattel, to recover which the action is brought, has been replevied, and the proceedings there- upon have been duly taken, as prescribed in this article; the justice must proceed to hear and determine the action, with respect to that chattel or part of a chattel ; or, if the action is brought to recover two or more chattels, with re- spect to those which have been replevied ; in like manner, and with like effect, as if the summons had been person- ally served. § 2933. Where the summons has been personally served upon the defendant, or where he appears, the justice must 222r Replevin proceed to hear and determine the action, although the plaintiff has not required the chattel to be replevied, or the constable has not been able to replevy it. CHAPTER IV. Of Appearance of the Parties. In relation to the appearance of the parties in a Justices' Court, the provisions are embraced in the Code of Procedure, and will be found by reference to the sections cited in the margin. Any plaintiff in a suit before a Justice, except persons under twenty-one years of age, may appear and conduct his suit, either in person or by attorney. 1 No process shall be issued for an infant plaintiff, nor shall any issue joined by such plaintiff without process, be heard, until a next friend for such plaintiff shall have been appoint- ed. Whenever requested, the Justice shall appoint some suitable person, who will consent thereto in writing, to be named by such plaintiff, to act as his next friend in such suit who shall be responsible for the costs therein. 2 This appointment of a next friend must be made before process is issued, or where issue is joined without process, before the issue is heard. The Justice may appoint any suitable person the infant may name. It is proper to remark, that this statute applies to all process issued by a Justice, by which a suit is commenced. When an infant is a party, he must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a Judge thereof, or a County Judge. 3 The guardian shall be appointed as follows : 1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one ; 1 2 R. S. 164,3 39. 3 Code, § 115. 2 Id. § 40. 224 Abearance of Parties. if he has none, then to the person with whom such infant resides. 1 2. When the infant is the defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one within this State ; if he has none, then to the infant himself if over fourteen years of age, and within the State, or if under that age, aud within the State, to the person with whom such infant resides. By the 115th section of the Code, when an infant is a party, he must appear by guardian instead of a next friend as here- tofore, who may be appointed by the court in which the action is commenced ; and if he be fourteen years of age or over, the appointment must be made upon his petition, if under fourteen years of age, upon the petition of some other party to the suit, or of some relative or friend of the infant. The petition may be in the following form : Form of Petition for Guardian. To D. Gillhore, Esq., Justice of the Peace : The petition of A. B., who is an infant of the age of years, respectfully showeth that he is about to commence a suit before you against C. D., for [here state the subject matter,] and prays that E. F. may be appointed his guardian in said suit. A. B. Dated April 30, 18 . If any other person than the infant signs the petition, then say : The petition of O. S., a relative ov friend, as the case may be. I suppose the Justice may insist on a clause being inserted in the consent, that the next friend will pay the costs. 2 " Oneida County, ss. — I hereby consent to be the guar- I Code, § 115. a 2 R.S. 164. § 40, Doe vs. Alton ; 1 T. R. 401, Buller J. ArrEAttANfcfi or Parties. 225 dian of A. B., an infant, in a suit against C. D., and hereby, for value received, promise and agree with the said C. D. to pay him such costs as he shall recover against the said A. B. by judgment in the said suit. August 1, 18 . John Brown, Guardian. T hereby appoint the said J. B. as a guardian for the said A. B.. an infant plaintiff, (or defendant, as the case may be.) D. Gillmore, Justice of the Peace. Utica, July 30, 18 . Where costs are adjudged against an infant plaintiff, the guardian by whom he appeared in the action shall be Respon- sible therefor, and payment thereof may bo enforced by at- tachment. 1 Under the above section, although the guardian for the plaintiff is liable for costs, a Justice of the Peace has no power to issue an attachment for the costs, but the same may be recovered of the guardian by. action against him for the amount. After service and return of process against an infant de- fendant, the suit shall not be any further prosecuted, until a guardian for such defendant shall be appointed. Upon the request of such defendant, the Justice shall appoint some person who will consent thereto in writing, to be the guar- dian of the defendant in the defenco of the suit. And if the defendant shall not appear on the return day of such process, or if he neglect or refuse to nominate such guardian, the Justice may, on the motion of the plaintiff, appoint any discreet person as such guardian. 2 The consent of such next friend or guardian shall be filed with the Justice. The guardian for the defendant shall not be liable for any costs in the suit. 3 If the defendant select a guardian, he appears before the Justice on the return day of the process, mentions his choice to the Justice, and his nominee is then to sign an agreement in the following form : 1 Code, sec. 316. 3 Id. sec 43. 2 2E.S. 164, sec. 42. 226 Appearance of Parties. Form of Consent to be Guardian for an Infant Defendant. In Justices' Court, before D. Gillmorc, Justice : A. B. ) agt \ C. D. J I hereby consent to be the guardian of C. D., the defend- ant in this action, who is under the age of twenty-one years. August 1, 18 . J- B. I hereby appoint the said J. B. guardian for C. D. in the above action. D. Giixmore, Justice. August 1, 18 . The next friend or guardian is not authorized to release a witness in order to render him competent. 1 Au executor or administrator, a trustee of an express trust, or a person expressly authorized by statute may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the benefit of another. 2 Under the 114th section of the Code, as it stood formerly, it was in many cases difficult to determine when the husband of a married woman should be joined with her in an action affecting her separate estate ; but the Legislature, at its recent session, have amended the section so as to leave no doubt in what cases the husband should be joined with her. 3 As amended, it reads as follows : § 2. Section one hundred and fourteen of the Code of Procedure is hereby amended so as to read as follows : \ 114. When a married woman is a party her husband must be joined with her, except that — 1. When the action concerns her separate property, she may sue alone. 2. When the action is between herself and her husband, she may sue or be sued alone, and in no case need she pros- ecute or defend by a guardian or next friend. 1 2 Starkio R. p. 41. 3 Sess. Laws 1807. 2 Code. sec. 113; 2 Sandford, 7C6. AlTEAEANCE OF PARTIES. 227 It seems (from the foregoing section as amended) to be necessary in all cases to join the husband in all actions affecting the wife, except in actions relating to her separate estate, in which case she may sue in her own name. A next friend is not necessary when the infant wife is not sole plaintiff. 1 In Willis vs. Underbill, (G How. 396,) it was held that the plaintiff, although married, was competent to take a gift .or assignment of a debt, as well as of any other personal property, and to hold the same, to her sole and separate use, &c, in like manner and with the like effect as if she were unmarried. That as the action concerned her separate property, she was not bound to join her husband, but by the express terms of the Code, (§ 114,) was authorized, at her option to sue alone. A party authorized to appear by attorucj r , may appoint any person to act as such attorney ; but the constable who served either the original or jury process in the case, shall not appear and advocate for either party at the trial, but may act as attorney in any other stage or proceeding in the cause. 2 A constable appearing on the trial of a cause as the attor- ney of a plaintiff, and proving the demand declared on, is a violation of the statute prohibiting a constable from appear- ing and advocating for either party at the trial, although at the time there was no appearance by the defendant, nor any one in his behalf. 3 The authority to appear by attorney may be either written or verbal, and shall, in all cases be proved, either by the attorney himself or other competent testimony, unless ad- mitted by the opposite party ; and the Justice shall not per- mit any person to appear for another without such proof or admission. 4 Upon the return of a summons personally served, or on 1 Hulbert and wife vs. Newell, 4 3 Ford vs. Smith, 11 Wend. 74; 2 Howard, 93; 6 How. 233. John. 385; 9 John. 352. 2 2 R S. 164, sec. 44. 4 H- sec. 45; 2 Cow. 421; 14 John. 369. 228 Appearance of Parties. the return of an attachment duly served, the Justice shall wait one hour after the time specified for the return of such process, unless the parties sooner appear. 1 If the plaintiff fail to appear within the hour thus limited, either personally or by some one in his behalf, the Justice is required to enter judgment of non-suit against him. 2 A defendant in a Justices' Court is entitled to judgment of non-suit if the plaintiff do not appear within one hour after the time for appearance mentioned in the summons, and where the Justice required him to wait jfee minutes longer, which he refused to do, and the plaintiff appeared within that time, and after the defendant had left, and the Justice proceeded with the cause, held erroneous. If the plaintiff had appeared before the defendant had gone away, though after the hour, or if he wore in sight and approaching, or if the Justice Avere engaged in other official business during the hour, it would have been regular to proceed in the cause after the hour had expired. 3 It may be remarked that no precise rule can be laid down as to the sufficiency of the reason which may be urged for delaying to call the cause beyond the hour given by statute, or for permitting the defendant to come in and plead after the cause is called, or the trial has commenced. Cases will and do arise, presenting circumstances so various as to pre- clude the possibility of establishing a uniform regulation by which Justices should be governed. Each case will have its own peculiarities, and the magistrate should endeavor to consult the convenience of parties, at the same time that he avoids doing anything which may tend to the prejudice of cither. Where the action is commenced by warrant, the plaintiff should either be ready at some place where the constable may find him to notify him of the arrest of the defendant, or have an attorney employed to appear for him. As the defendant cannot be detained in custody for more than twelve hours after he is brought before the Justice, the plaintiff 1 2R. S. 1C4, sec. 40; 20 John. 300. 3 Wilcox vs. Clement, 4 Denio, 160 2 2R. S. 179, sec. 119. Bronson Ch. J.; 15 John. 496; 11 Wend. 51. ArrEARAxcE of Farties. 229 should. be prepared to try the cause immediately upon notice of the arrest, or within an hour or two. He should have his witnesses ready to appear at once. If he does not appear cither in person or by attorney within a reasonable time, the Justice should discharge the defendant. What is a reasonable time must be determined by the facts of each particular case. It will depend upon a variety of qualifying circumstances ; as whether the arrest and notice thereof be in the day or night time, whether the plaintiff's witnesses be at hand or several miles off, &c, &c; and the Justice must necessarily, in these cases, possess a large and liberal discretion. The warrant in general, presupposes an intention in the defendant to escape, or danger of the plain- tiff's losing his demand in some other way, and its object would be entirely defeated, in many instances, by denying a reasonable time for the plaintiff to procure proof to main- tain his action. On the other hand, the defendant ought not to be oppressed by one moment's unnecessary delay by the plaintiff. If, after an adjournment, he fail to appear within one hour after the time to which the adjournment shall have been made, the Justice must render judgment of non-suit against him. 1 The authority to appear by attorney in Justices' Courts, when not admitted by the opposite party, must in all cases be proved cither by the attorney himself or by other competent testimony. A Justice cannot act upon information which he has received out of court in relation to the appointment of an attorney, even though the information come from the party for whom the attorney appears. 2 On the return of a summons before a Justice, A., as attor- ney for the plaintiff, but without having proved his author- ity as such, declared upon a note payable to the latter, which he produced. There was no appearance on the part of the defendant, and the cause immediately proceeded. A., being sworn generally in the cause, testified, among other things, 1 n Wend . si. 2 2 Cow. 429i 5 Hill, 428; t Id. 501. 230 AlTEAKANCE OF PARTIES. that the note was left with him for collection. Held, suffi- cient. 1 A general authority to collect, implies an authority thus to appear. 2 It appears from the statute and the cases cited, that in case there is no appearance on the part of the defendant, and any, person appearing as attorney for the plaintiff, he must prove his authority, either at the commencement of, or on the trial, so to appear. When a summons is issued by a Justice of the Peace against several defendants, a valid service upon one, and a proper return of the service by the constable, is sufficient to authorize the Justice to proceed and render judgment in form against all the defendants. The requirements of the statute are complied with by a return showing proper service upon one defendant, without negative additions explaining how the summons was served upon the others. 3 It is irregular for the same person to appear as attor- ney for both parties on the return of a summons. 4 Notwithstanding the defendant in a suit before a Justice of the Peace fails to appear at the trial, the plaintiff must establish his cause of action by legal evidence. 5 1 M'Minn vs. Rightmycr, 3 IIU1, 236, ± 15 Barb. 650. CowenJ. 5 Perkins vs. Stcbbins, 29 Barb. 523; 2 Id.; 19 Barb. 34 1. 44 Barb. 120. 3 13 Barb. 240., Appeabance of Parties. 230a Appearance of Parties. § 2886. A party to an action before a justice of the peace, who is of full age, may appear and prosecute or defend the same, in person or by attorney, at his election , unless he has been judicially declared to be incompetent to manage his affairs. § 2887. Before a summons is issued in behalf of, or an issue is joined without summons by, an infant plaintiff, the justice must appoint a competent and responsible person, nominated by the plaintiff or his general guardian, to appear as his guardian for the purpose of the action. The written consent of the person so appointed must be filed with the justice, before his appointment. The guar- dian so appointed is responsible for the costs. § 2888. After the service and return of a summons against an infant defendant, no other proceeding shall be taken in the action, until a person has been appointed to appear as his guardian for the purpose of the action. Upon the nomination of the defendant, the justice must appoint a proper person for that purpose. If the defendant does not appear upon the return of the summons, or if he neg- lects or refuses to nominate, the justice may, on the appli- cation of the plaintiff, appoint any proper person as his guardian. The written consent of the person, so appointed must be filed with the justice before his appointment. The guardian so appointed is not responsible for any costs. § 2889. Subject to the provisions of sections 63 and 64 of this act, any person, other than the constable who served the summons or the venire, or the law partner or olerk of the justice, may be the attorney for a party to an action before a justice, of the peace. § 2890. The attorney's authority may be conferred orally or in writing; but the justice shall not suffer a person to appear as an attorney, unless his authority is admitted 230b Appearance of Parties. by the adverse party or proved by the affidavit or oral tes- timony of himself or another § 2891. If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case. § 2892. Except in an action to recover a chattel, the defendant may, upon the return of the summons and before auswering, file with the justice a written offer to allow judgment to be taken against him for a sum therein specified, with costs. If there are two or more defend- ants, and the action can be severed, a like offer may be made by one or more of the defendants, against whom a separate judgment may be taken. If the plaintiff there- upon, before taking any other proceeding in the action, files with the justice a written acceptance of the offer, the justice must render judgment accordingly. If an accept- ance is not filed, the offer cannot be given in evidence upon the trial ; but, if the plaintiff fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time. § 2893. Upon the return of a summons duly served, the justice must wait one hour, after the time specified therein for its return, unless the parties sooner appear, CHAPTER V. OF THE PLEADINGS. By the riaintiff. The Koviscd Statutes us amended provide, that "At the time of the first appearance of the parties before the Justice, cither upon the return of process, or their voluntary appear- ance to join issue, the pleadings of the parties shall be made and issue joined ; and when both parties have appeared on the return of process, an issue shall be joined before any adjournment shall be had, except when the defendant shall refuse or neglect to plead." By pleading is not meant the arguing or advocating the cause before the Court, but the allegations of the parties briefly setting forth the cause of action on the part of the plaintiff and the defence on the part of the defendant. In Courts of Eecord under the former system of pleading these were required to conform to a variety of artificial rules, which rendered it necessary to prepare them with great care and skill. In Justices' Courts less strictness is required, but still it is necessary to observe the general rules, if objections are made to any. want of form or substance in the pleading. Complaint. The first step to be taken in pleading before the Justice is the complaint of the plaintiff, which is a statement on his part, either in writing or oral, in a plain and direct manner, the facts constituting his cause of action ; and he may unite in one suit several causes of action. It is now provided by the Code of Procedure that the following rules shall be observed in the Courts of Justices of the Peace : I. The pleadings of these Courts arc — 1. The complaint by the plaintiff. 2. The answer by the defendant. 232 Pleadings by the Plaintiff. II. The pleadings may bo oral or in writing — if oral, thy substance of them shall bo entered by the Justice in his docket ; if in writing, they shall be filed by him, and a reference to them shall be made in the docket. III. The complaint shall state, in a plain and direct man- ner, the facts constituting the cause of action. The complaint should set forth a cause of action againsl the same parties who are named as defendants in the process. If issued against a defendant under a fictitious name, as soon us his true name is discovered, the proceedings should bo amended so as to make them conform to the fact. So if a defendant be brought into Court under a mistaken christian or sirnamc, the plaintiff should have the proceedings amended by the insertion of his true name in them. This the Justice has power to do. The Revised Statutes provided generally that all courts should have power to amend their process, pleadings or proceedings, in form or substance, for the furtherance of justice, at any time before judgment, and gave to Justices' Courts all the necessary powers which are possessed by Courts of Eecord in cases where no special provision was otherwise made by law. The eleventh subdi- vision of section sixty-four of the Code of Procedure has provided for amendments of the pleadings at any time dur- ing the trial, or upon appeal, when by the amendment, sub- stantial justice will be promoted, and gives a justice power to require the payment of costs as a condition of the amend- ment in cases where it may be proper. "Where the complaint is against partners it should appear who are intended. Thus, if the defendants make a promise as the firm of A. B. & Co., it should be alleged that they arc partners, and under such firm name made the promise. The provisions of the Code permit this to be done in any form, Avhich will be such as to enable a person of ordinary understanding to know what is intended. The damages claimed in the complaint should not exceed two hundred dollars, for the Justice has no jurisdiction of an action where more than that, sum is claimed. A claim of a gross sum. as two hundred dollars, is (sec amendment) sufficient, where the damages arc such as naturally arise Pleadings by the Plaintiff. 233 from the facts. There are eases, however, where the plain- tiff has sustained other damages than such as naturally arise from the defendant's failure to perform his contract or from a wrong which he has committed. Where time and place are mere matters of form, they need not be stated in the complaint, as no advantage can be taken of their omission. If, however, time and place are material, as they sometimes are, it is not only necessary to state them, but to state them truly. Thus, if the party complain of the breach of a special contract, he must state it as accurately as possible : but it is presumed he would be allowed to amend if he had by mistake stated it wrong, by giving a wrong date, or in any other particular which formed a material part of the contract. In the statement of a contract, however, if in writing, it is advisable to produce it and state the breaches; if it rests in parol, to state its substance, and if any material variance is shown on the trial, it can be corrected by amendment, upon such terms as shall appear just to the Court. The complaint need not correspond with the summons in every respect. Thus, where the summons described the action as a civil action for damage, and false representation in the sale of a horse, and the complaint was for a breach of warranty in the sale of a horse, the Court said, the com- plaint was in a civil action, and that was enough. (Dclancy vs. Nagle, 10 Barb. 97.) A complaint on a scaled instrument need not state the sealing, it is sufficient if the instrument is referred to. (Smith vs. Kerr, 3 Cow. 144.) Any mode which apprises the defendant of what is in- tended, is sufficient. (Hall vs. McKcchnie, 22 Barb. 244.) The following forms will indicate to the party how to proceed before the Justice in pleading : In Justices' Court— Before Esq., Justice. John Boyd ") agt \ Richard Row. J The plaintiff complains that the defendant is indebted to him for one cow he sold him about the month of last, for 234 Pleadings by the Plaintiff. twenty-five dollars. lie claims damages to twenty-five dollars. Ok— the plaintiff complains that the defendant is indebted to him for one horse, which he sold, and delivered to him about the day of ,18 ,, for fifty dollars. He claims damage to fifty dollars and interest on the same. Or— the plaintiff complains that the defendant owes him the amount of the annexed account. [Here deliver it to the Court.] He claims damages to said amount. Ok— the plaintiff complains of defendant for that on or about the day of , the defendant took and carried away one wagon for as the case may be,] belonging to plaiu- - tiff, to his damage of seventy-five dollars. On— the plaintiff complains of defendant for wrongfully entering upon the premises of the plaintiff, situate at , and cutting his grass [or as may be] to his damage of fifty dollars. The foregoing forms are sufficient to show the form and substance of a complaint, and it is here to be observed that no particular form need be used, only to state to the Court the facts as near as may be. The pleadings may be cither verbal or written, at the dis- cretion of the party making the same, except in the case of a plea of title to land. When written, they shall be filed and remain with the Justice ; when verbal, the Justice shall enter in his docket the substance thereof. 1 The pleadings in a Justices' Court should be liberally con- strued without regard to established forms, or to technical rules of pleading, and with a view to substantial justice between the parties ; that is, it shall be sufficient, if they answer the substantial purposes of pleading, and apprise the opposite party of the real grounds of action or defence, so that there shall bo no surprise or misapprehension as to what each party is to meet in evidence. 2 Whore a plaintiff in a suit before a Justice, declares both on contract and in tort, and no objection is taken to the 2 K. S. 233, sec. 47; [4th cd. p. - 13 Wend. 67, Savage Ch. J. ; 22 434.] • Wend. 309. PLEADINGS BY TIIK PLAINTIFF. 235 misjoinder, ho maybe permitted to recover in cither form of action, on making a proper case by proof. 1 If the declaration in a Justices' Court do not set forth a cause of action, the defendant should have judgment, though he took issue instead of demurring, and the facts Avore fully proved. 2 Accordingly, where the plaintiff declared that the defend- ant or Ids family, set his dog upon the plaintiff's swine, and upon the general issue pleaded that the defendant's daughter, in his absence, set the dog upon plaintiff's hog, which was killed, and judgment was given for the plaintiff. Held, erroneous, and the judgment was reversed. 3 Held, also, that the circumstance, that the defendant had moved for a non-suit upon grounds which could not be sus- tained, ovorlooking the real objection, afforded no ground for sustaining the judgment. 4 Defects, both in substance and form, in the pleadings in a Justices' Court, arc overlooked where a good cause of action is proved, and the merits have been fairly tried. 5 But if any material part of the plaintiff's case is wholly unsupported by evidence, a judgment in his favor will be reversed, whether the trial was with or without a jury. 6 In a Justices' Court the plaintiff's declaration in writing, stated the defendant on, &c, at, &c, with force and arms, seized, took and carried away certain personal property of the value of one hundred dollars. There was no allegation that the goods were the property of the plaintiff. The defendant did not appear. 7 The plaintiff proved the taking, and that the property was his. Held, that the declaration was sufficient to uphold (he judgment. Justice Bronson says: although the com- plaint would be bad on objection for not alleging that the plaintiff owned the property, it was quite as formal as plcad- 1 Willard vs. Bridge, 4 Barb. 341, 5 Id., Bronson Ch. J.; Ely vs. Van Allen J.; 14.Jolm.383; I Hill, 61; Bouron, 3 Caine's R. 218; 1 John. 10 Wend. 254; 22 Id. 3G9. K. 276; 9 John. R 386. 2 Tifift vs. Tiffts, 4 Denio, 175 ; Id. 6 4 Hill, 179: 1 John. 339; 2 Hill, 12 5. 125; 18 Wend. 141 ; 6 Wend. 326. 3 id. 7 2 Comstock, 115, in Court of Ap- 4 Id. P"^ 8 - 236 Pleadings in Justices' Courts. jngs usually are in Justices' Courts ; and as no objection was made before the Justice, and the plaintiff proved a good cause of action of the kind mentioned in his complaint, it was regular ; that it was not important the defendant did not appear. There is no particular mode by which counts or causes of action are to be separated and distinguished from each other in a complaint in a Justices' Court. Any mode which ap- prises the defendant of what is intended is sufficient. Where a complaint in a Justices' Court purported to con- tain four several causes of actions separately, it being averred in the first count that the defendant was indebted to the plaintiffs as Overseers of the Poor in the sum of twenty-five dollars, whereby an action had accrued to them, according to the statute, specifying the section, &c, which section im- posed a penalty of twenty-five dollars for selling strong and spirituous liquors or wines in small quantities without a license, to be recovered in an action in the name of the Overseers of the Poor, and each of the subsequent counts stated a further cause, in form similar to the first. Held, that the complaint was sufficient in substance ; and it being proved that the defendants were proprietors of a store, doing business together, and present in the store daily, that sules by small measure of spirituous liquors were made there by a clerk of the defendants, some of which occurred in their presence. Held, that this proof warranted the conclusion that tho sales were made by their authority, and that they thereby incurred the penalty in like manner as if they had sold per- sonally. Held further, that the penalty for each offence was single, and that the defendants having united in committing the offences, were jointly liable for the penalty incurred. If a defendant in a Justices' Court designs to raise the objection that tho complaint is not sufficiently explicit, or that it does not contain a cause of action, he should raise them by demurrer. The objection of indefiniteness and uncertainty will be waived by not thus making it. And so Pleadings in Jutices' Courts. 237 it seerus in respect to the objection that a cause of action is not stated. Where the parties go to trial upon a complaint however defective, without objection on account of the defects, if the plaintiff proves a good cause of action, a judgment in his favor will be good.' If a complaint in a Justices' Court is insufficient, the defendant should demur to it. If he takes issue upon it he cannot upon appeal object to it in point of form. 1 If a defendant join issue on the merits after demurrer is overruled he thereby waives the demurrer. 3 It is not necessary that the complaint in a Justice Court should correspond with the summous in respect to the cause of action. A Justice of the Peace has the power, and may amend a complaint at any time before trial by substituting one form of action for another. This power, under the former as well as the present system, has been possessed in common with other courts for a long time. 4 The particular plea need not be stated in the summons. If the complaint is in a civil action it is enough.* 1 22 Barb. 244; 18 Barb. 484. * Blgelow vs. Dunn, 36 How. 120 ' 22 Barb. 466. and cases cited. 3 10 How. Pr. 276. 6 16 Barb. 96. 237a Pleadings. Pleadings ; including counterclaims, and proceedings upon answer of title. § 2934. At the place, and within one hour after the time, specified in the summons for the return thereof; or, where an order of arrest is granted and executed, within twelve hours after the defendant is brought before the justice ; or, where no summons is issued, at the time when the parties voluntarily appear to join issue, the pleadings of the parties must be made, and issue must be joined. Where both parties appear upon the return of the sum- mons, an issue musfbe joined before an adjournment is had, except when the defendant refuses or neglects to plead. § 2935. The pleadings in a justice's court are : 1. The plaintiff's complaint. 2. The defendant's answer. 3. The defendant's demurrer to the complaint, or to one or more distinct causes of action, separately stated therein. 4. The plaintiff's demurrer to one or more counter- claims stated in the answer. § 2936. The complaint must state, in a plain and direct manner, the facts constituting the cause of action. § 2937. The plaintiff may unite, in the same complaint, two or more causes of action, where they all arise out of 1. The same transaction, or transactions connected with the same subject of action ; or 2. Contract, express or implied ; or 3. Personal injuries, and injuries to property, or either. Pleadings. 2371) But it must appear, upon the face of the complaint, that all the causes of action so united belong to one of the foregoing subdivisions of this section ; that they are con- sistent with each other; that they require the same judg- ment ; and, except as otherwise prescribed by law, that they affect all the parties. Where a cause of action, for which a defendant might be arrested, is united with a cause of action, for which he cannot be arrested, an exe- cution against the person of the defendant cannot be issued upon the judgment. '§ 2938. The answer may contain a general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth, in a plain and direct manner, new matter, consti- tuting one or more defences or counterclaims. § 2939. In a case specfied in subdivision third or fourth of section 2935 of this act, a party may demur to the plead- ing of the adverse party, or, if it is a complaint, to one or more distinct and separate causes of action, where it is not sufficiently explicit to be understood ; or where it does not state facts sufficient to constitute a cause of action, or counterclaim as the case may be. If the court deems the demurrer well founded, it must permit the pleading to be amended ; and if the party fails so to amend, the de- fective pleading, or part of a pleading demurred to, must be disregarded. If the court deems the demurrer not well founded, it must permit the party making it to plead over, at his election. § 2940. A pleading, except as otherwise prescribed in section 2951 of this act, may be oral or written. If it is oral, the substance thereof must be entered by the justice 23 1c Pleadings. in his docket-book ; if it is written, it must be filed by him, andareference to itmade in his docket-book. Aplead- ing is not required to be in any particular form ; but it must be so expressed, as to enable a person of common un- derstanding to know what is intended. § 2941. For the purpose of setting forth a cause of ac- tion, defence, or counterclaim, founded upon an account, or upon an instrument for the payment of money only, it is sufficient for the party to deliver the instrument, or a copy of the account to the court, and to state that there is due to him thereupon, from the adverse party, a specified sum, which he claims to recover or to set off. § 2942. The court may, upon the request of either party, made when issue is joined, require the adverse party to exhibit his account or demand, or to state the na- ture thereof, as far as it is in his power so to do, at that or another specified time ; and in case of his default, it may preclude him from giving evidence of such parts thereof, as have not been so exhibited or stated. § 2943. A variance, between an allegation in a pleading and the proof, must be disregarded as immaterial, unless the court is satisfied that the adverse party has betn mis- led thereby, to his prejudice. § 2944. The court must, upon application, allow a plead- ing to be amended, at any time before the trial, or during the trial, or upon appeal, if substantial justice will be pro- moted thereby. Where a party amends his pleading after joinder of issue, or pleads over upon the decision of a de- murrer, and it is made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party, in consequence of the amendment or plead- Pleadings 23 1A ing over, an adjournment must be granted. The court may also, in its discretion, require, as a condition of allow- ing an amendment, the payment of costs to the adverse party. § 2945. Sections 501 and 502 of this act apply to a coun terclaim in an action brought in a justice's court; excep that such a counterclaim cannot be interposed, unless it is of such a nature, that a justice's court has jurisdiction of a cause of action founded thereon. § 2946. Sections 505 and 506 of this act apply to a coun- terclaim in an action against a person sued in a represent- ative capacity, or in favor of an executor or administrator, except that the defendant cannot take judgment against the plaintiff upon a counterclaim, for a sum exceeding two hundred dollars. § 2947. Where the defendant, in an action to recover damages upon or for a breach of a contract, neglects to in- terpose a counterclaim, consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, be, and every person deriving title thereto through or from him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof. § 2948. But the prohibition contained in the last section does not extend to either of the following cases : 1. \Vhere the amount of the counterclaim is two hun- dred dollars more than the judgment which the plaintift recovers. 2. Where the counterclaim consists of a judgment, ren- 237e Pleadings dered before fhe commencement of the action, in which it, might have been interposed. 3. Where the counterclaim consists of a claim for un- liquidated damages. 4. Where the counterclaim consists of a claim, upon which another action was pending, at the time when the action was commenced. 5. Where judgment is taken against the defendant, without personal service of the summons upon him, or an appearance by him. § 2949. Where a counterclaim is established, which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plain- tiff's demand, the plaintiff must have judgment for the residue ouly. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaiutiff, unless it is more than the sum of two hundred dollars. If it is more than two hundred dollars, or if no part of it is due from the plaintiff, the justice must, at the election of the defendant, either : 1. Set off so much of the counterclaim as is sufficient to satisfy the plaintiff's demand, and render judgment for the defendant for his costs ; in which case, the defendant may maintain an action for the residue; or, 2. Render a judgment of discontinuance with costs; in flEADINGS 237f which case, the defendant may thereafter maintain an ac- tion for the whole. \ Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judg- ment does not cancel. CHAPTER VI. Proceedings where the Justice is a material witness. It occasionally happens that a defendant desires the testi- mony of the Justice before whom the action is pending, and it is to be observed that — A Justice can never be a witness in his own court, neither can he act upon facts within his own knowledge as evidence in the cause. Whenever, therefore, the defendant wishes to avail himself of the testimony of the Justice, a course of proceeding is pointed out by the statute for that purpose; and if he make out a proper case, in the opinion of the Justice, a judgment of discontinue' ance should be entered, as directed in the section of the statute cited below. It should be remarked that the pro- visions of the statute apply only to the defendant. If the plaintiff require the testimony of the Justice, it is his own fault if he commence his suit before him; he should have proceeded before another Justice. The provision of the statute is in these words : '• If, previous to joining issue in any cause,(except where the defendant shall have been arrested by warrant,) the defendant shall make affidavit that the Justice before whom the same is pending, is a material witness for such defendant, without whose testimony he cannot safely pro- ceed to trial, and shall set forth therein the particular facts and circumstances which he expects to prove by the Justice, judgment of discontinuance shall be entered, if the Justice shall be satisfied that he is a material witness for the defendant, and that without his testimony the defendant cannot safely proceed to trial, and not otherwise, but without costs against either party." 1 The affidavit is to be made previous to the joining of issue, that is before the defendant answers the complaint. In strictness the defendant cannot, until the complaint is made, know what the plaintiff has brought his action for. ■ Laws 1838. Ch. 248. [4th ed. R. 8. vol. 2, p. 444, sec. 109.] "Where Justice is Material Witness. 23 ( J Form of Affidavit that Justice is a Material Witness. In Justices' Court — Before , Justice. Stephen Stow ) A r S. J. James Hansford, j Oneida County, ss.— , defendant in the above entitled cause, being duly sworn, says that • Esq., the Justice of the Peace before whom this cause is pending, is a material witness for this deponent in the said cause, and that he cannot safely proceed to the trial thereof without the testimony of the said Justice. And this deponent further says, that he expects to prove by the said Justice, the following facts and circumstances, to wit : [here state the facts and circumstances which he expects to establish by the testimony of said Justice.] And this deponent further says that he is not able, to his knowledge or belief, to prove said facts and circumstances above mentioned, by any other person than the said Justice. Sworn before me, this h'rst } day of May, 18 . ] Justice. The affidavit must contain "the particular facts and cir- cumstances which he expects to prove by the Justice," so as to enable the Justice to determine therefrom whether he is a material and necessary witness. These facts and cir- cumstances will of course vary with each particular case. They should be stated w T ith accuracy, particularity and pre- cision. If the Justice should improperly refuse upon the affidavit to enter ajudgment of discontinuance, his error would be a good ground for the reversal of his judgment upon appeal. And the fact that after he refused to enter such judgment of discontinuance, the defendant answered the complaint arid went to trial, would not waive the error. If the Justice enters a judgment of discontinuance, he should make an entry of the facts in his docket, as follows : " May 1, 1857, the parties appear. Plaintiff makes his complaint as follows, &c: The defendant makes an affidavit of my materiality as a witness according to the statute. Bein" 1 satisfied that I am a material witness as stated in the 240 Where Justice is Material Witness. affidavit on file, I render judgment of discontinuance with- out costs to either party." In this case each party is liable to the Justice for the costs which he has made, but no execution can bo issued to enforce their collection. Upon the presentation of the affidavit to the Justice he should immediately determine from the facts and circum- stances stated in it whether he is a material witness. He is not permitted to act upon his own knowledge or recollection of them. His duty is as a judge to determine from the affidavit, assuming that it is true, whether the facts which the defendant expects to prove by him are pertinent and material, and such as he can satisfactorily prove by no one else. If they are, he must enter judgment of discontinu- ance. The case of Hopkins v. Cabrey, 1 illustrates the duties of the Justice. Hopkins sued Cabrey, who was a school district collector, for the surplus moneys remaining in his hands on sale of property for a school tax. Cabrey made an affidavit that the Justice was a material witness for him, and stated the facts which he expected to prove by him as fol- lows : " The particular facts which the defendant expects to prove by the Justice, are, that previous to and before the com- mencement of this suit, the plaintiff sued the defendant before the Justice for the identical property for which he now claims the surplus money, and judgment was passed on the same and entered in favor of this defendant against the said plaintiff for costs. And also, this said defendant ex- peots to prove by the said Justice, that said plaintiff acknow- ledged in the presence of the said Justice that the defendant had tendered to him (said plaintiff) the overplus money, before the commencement of the former suit ; and that he had no claim for overplus moneys. And this defendant docs not know of any other person by whom. he can prove the declaration last named in this affidavit." Upon this affidavit the Justice ruled as follows : " I am not satisfied that I am or can be a material witness in behalf of the defendant in this cause, for I know nothing material between the said pai-ties, except what is contained in the record of the former 1 21 Wend. 201. W'hewe Justice is Material Witness. 241 trial between these parties before me, which this defendant can at all times avail himself of upon the trial of this cause ; and further, I have no recollection of ever having heard the plaintiff admit that the defendant had tendered him the overplus money, as mentioned in the affidavit." The defend- ant then pleaded, and upon a trial the Justice gave judg- ment for the plaintiff. Upon the case coming before the Supreme Court, the following opinion was given by Justice Cowen : "The affidavit Avas clearly sufficient within the statute. The Justice had no right to interpose his private knowledge or recollection as an answer to the affidavit. Such a power would enable a Justice to defeat the application, and at the same time to put the point beyond the reach of review, even on the facts which he may assume to know, or to have forgotten. Here, it is true, he states them, but not under his oath as a witness : that the defendant has a right to require. Again, his specification was not satisfactory. lie had no right to assume that the docket and other written proceedings would have been proof as full to the purpose as if accompanied with his oath. Oral proof is often neces- sary to show what was in fact heard and submitted under an issue which has been tried, in order to give it the desired effect upon a subsequent trial of the same matter. His want of recollection might also have been remedied by a recur- rence to circumstances in the course of his examination as a witness." Though the defendant in a suit pending before a Justice, make affidavit pursuant to the act of 1838, that the Justice is a material witness, &c, a discontinuance should not be granted, unless the facts and circumstances are such that the Justice can judicially pronounce them relevant. Accordingly, where the affidavit stated that the defendant expected to prove by the Justice a submission of the demand ,in controversy to three arbitrators, of whom the Justice was one, that the agreement to submit was made between the defendant and one C, "who then claimed the demand, and that C. afterward revoked the submission before any award was made :" Held, not sufficient to warrant a discontinuance, though the affidavit added that the defendant settled the 242 Demukrer. demand with C, who was either owner thereof or agent foi the plaintiff, it not appearing that he expected to prove the latter by the Justice. The affidavit, moreover, should contain enough to show that the Justice is a necessary as well as a material witness, especially when on its face it imports that there are others who know the same matters. Whether a discontinuance can be properly ordered on an affidavit made before the plaintiff has declared, quere. 1 The statute above referred to does not provide for the case of a Justice being a material witness in a suit com- menced by warrant. In such case if it be made to appear to the Justice issuing the process, by the affidavit of the defendant, that such Justice is a material witness in the cause, instead of the Justice entering a judgment of discon- tinuance, the constable is required to take the defendant before the next Justice of the city or town, who shall take cognizance of the cause, and proceed thereon, as if the war- rant had been issued by him. 5 Demurrer. By the sixth subdivision of the sixty-fourth section of the Code, either party may demur to a pleading of his adver- sary, or any part thereof, when it is not sufficiently explicit to enable him to understand it, or it contains no cause of action or defence, although it be taken as true. 1th Subdivision. If the Court deem the objection well founded it shall order the pleading to be amended, and if the party refuse to amend, the defective pleading shall be disregarded. This provision of the Code contemplates the right of a party to continue to demur to the pleading of his adversary until he shall state in a plain and direct manner the facts which constitutes his cause of action or defence. Each party has a right to insist that the pleading of his opponent shall conform to this rule. I Young vs. Scott. 8 Hill. 32. 2 2 K. S. 229, sec. 21. [4th ed. p. 430, sec. 19.] Demueree. 243 And when the complaint has been made to conform with the requirements of the Code of Procedure, the defendant must answer. It should be here observed that the Courts do not requiie any precise form for a pleading. They only require a plain and concise statement of the demand or defence, and every person of common sense can make such a statement when called upon by the Court. If the defendant desires to raise the question to the Court as to the sufficiency of the complaint by demurrer, he should do so before he makes his answer upon the merits. So if the plaintiff desires to object to the sufficiency of ihe defendant's answer, he should do so by a demurrer before he proceeds to trial upon the merits, for then he will bo regarded as waiving his right to do so, and the Court should hear the case on the merits. 1 No particular form of words need be used to raise the objection by a demurrer ; it is enough to say : " The defendant demurs to the complaint (or, to the second cause of action) as not explicit enough to enable him to un- derstand it, and as containing no cause of action," (or as the case may be.) If the defendant demur to the complaint, and the Justice decide that the demurrer is not well taken, and overrule it, the defendant may answer, setting up any defence he may have. If he does not then answer, the Justice will proceed to hear the plaintiff's proofs under the complaint, and give judgment thereon. If the Justice decide that the demur- rer is well taken, and the plaintiff refuse to amend his com- plaint, the Justice must disregard it, and he can of course hear none of the plaintiff's proofs, for the absence of a com- plaint, and will non-suit the plaintiff. So if the plaintiff demur to the answer, and the Justice decide that the demurrer is not well taken, and overrule it, the cause will be at issue, and the Justice will proceed to hear the proofs of the parties. If, however, he decide that the demurrer is well taken, then, unless the defendant answer anew, the Justice must disregard his answer, and upon the 1 12 Barb. 48G; 8 Barb. 210; 13 "Wend. 403. 244 Demuukkr. plaintiff proving his case, the Justice will give judgment, as the defendant can introduce no proof, for the want of an answer. Where there is no dispute between the plaintiff and defend- ant as to the facts, but the question is simply as to the rights of the parties, the facts being conceded, it is called an issue of law. Thus, where a plainti ff complained that the defend- ant's cow attacked and injured him, and the defendant demurred, for the reason that the complaint contained no cause of action, an issue of law would be formed for the Justice to decide. In such a case, the want of the allega- tion in the complaint, that the cow had been previously accustomed to attack mankind, and that the defendant had notice thereof, would avoid the cause of action. But if the complaint contained the latter allegation, and the defendant in his answer admitted that the plaintiff received the injury from the cow, but denied that she was accustomed to attack mankind, or that he had knowledge that she was, an issue of fact would be formed. And in all cases where a fact is affirmed by one party, which is denied by the other, the issue is one of fact, and a proper one to be tried. It is held that where a defendant in a Justices' Court, on the decision of a demurrer against him, puts in an answer, he thereby waives the demurrer, and the Supreme Court on an appeal cannot review the decision of (he Justice in over- ruling the demurrer. 1 In another case, after issue had been joined before a Jus tice of the Peace, and the parties had met for the trial of the cause, the defendant then insisted that the Justice should decide a motion which had been 'previously made, that the complaint be dismissed on the ground that it did not con- tain facts enough to constitute a cause of action. The Justice granted the motion without giving the plaintiff the right to amend. Held, that in this decision the Justice erred. The Court say, (Gridley J.) "the issue in the cause had been joined, and the parties had met for the trial of the cause, on tho day to which it stood adjourned. At this stage of the suit 1 11 Bavb. 587 i 1 Denio, 222; 10 Howard, 27G. Demurrer. 245 the defendant insisted on having a motion decided which he had previously made. The motion was that the complaint bo dismissed on the ground that it did not contain facts enough to constitute a cause of action. The Justice granted the motion without giving the plaintiff the right to amend. In this decision we think the Justice erred. 1st. The ground on which the motion was made was an objection to the complaint, Avhich under the former practice, as well as the present, was properly taken by demurrer. It was a question arising on the merits and not on any irregu- larity. It depended on the general principles of law and of pleading, and not on the rides of practice that prevailed in the Courts of Justices of the Peace. If, however, we could overlook this error, in our desire to do substantial justice between the parties, yet the motion should not have been granted, without also giving; the right to amend. D ' COO "The plaintiff should have all the rights awarded to him which he would have been entitled to, if the objection had been takeu by demurrer. The sixty-fourth section of the Code, subdivision sixth, prescribes a demurrer as the appro- priate remedy for such defect, and subdivision seventh pro- vides as follows : ' If the Court deem the objection well founded it shall order the pleading to be amended, and if the party refuse to amend, the defective pleading shall be disregarded.' The language of the Code is imperative, and must apply to and control every case in which the defective pleading is susceptible of amendment, (13 Barb. 533.) The right to amend is to be incorporated in the order, inasmuch as the parties who appear in Justices' Courts are not alwavs acquainted with their rights, and might be ignorant of the necessity of asking for an amendment. The right to amend is peremptory, and not discretionary. " 2d. The time of granting the dismissal was also errone- ous. The parties had met to try the cause, and had the Justice given the right to amend as he should have done, the order would have resulted in a new issue, and the prep- aration for trial would have been lost. This would entail o-reat inconvenience on parties, and it would be far more conducive to the ends of justice that the rule should be in- 246 The Answer. flexible, that no motion be entertained which is a substitute for a demurrer after the issue upon the merits has been joined, and the parties arc ready with their witnesses for trial." 1 The foregoing reasoning of the learned Justice who gave (he opinion, will, as a general thing, be a safe guide for Justices of the Peace to follow in their decisions upon anal- ogous cases. The Answer. By the provisions of the Code, the defendant's answer may contain a denial of the plaintiff's complaint, or any part thereof, and he must $iue notice of any defence he has against the plaintiff's claim, such as set-off, payment, recoupement of damages, statute of limitations, bankrupt discharge, and in fact any defence upon which he relies for a defence, or lie will be precluded of giving evidence of it on the trial. These pleadings are not required to be in any particular form, but must be stated in such manner as to enable a per- son of common understanding to know what is intended by the pleader.' 2 I think it may safely be laid down as the true rule in these courts, that if the party states to the Justice, in a plain man- ner, the substance of his claim, either as a cause of action, or as a defence, it is all that is required of him, and if bo should make a mistake in his statement the Justice should allow him to correct it by amendment, at any time before final judgment upon such terms as to him appears just and proper. 8th Subdivision. In case a defendant does not appear and answer, the plain- tiff cannot recover without proving his case. Slh Subdivision. In an action or defence, founded upon an account, or an instrument for the payment of money only, it shall be sufii- l Milliard vs. Austin, 17 Barb. 111. '- Codo, sec. 161, sub. 4 and 5. Or tiie Pleadings. 247 cicnt for a party to deliver the account or instrument to the Court, and to state that there is due to him thereon from the adverse party a specified sum, which lie claims to recover or set-ofi". lOlh Subdivision. A variance between the proof on the trial, and the alle- gations in a pleading, shall be disregarded as immaterial, unless the Court shall be satisfied that the adverse party has been misled to his prejudice thereby. 1 lth Subdivision. The pleadings may be amended at any time before tho trial, or during the trial, or upon appeal, when, by such amendment, substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the Court, by oath, that an adjournment is necessary to tho adverse party in consequence of such amendment, an adjournment shall bo granted. The Court may also, in its discretion, require as a condition of an amendment, the payment of costs to the adverse party. 1 An application to amend a pleading is addressed to tho discretion of the Court in which the suit is pending. 2 And though a Justices' Court has power to allow amend- ments, error will not lie from a decision refusing an appli- cation to amend a pleading. 3 Justices are required to allow amendments liberally in all cases where the rights and interests of the adverse parties will not thereby be put in jeopardy. 4 12lh Subdivision. Execution may be issued on a judgment heretofore or hereafter rendered in Justices' Court, at any time within 1 Code, sec. 04. 3 Fulton vs. Ileaton, 1 Barb. 55G; 2 White.vs. Stevenson, 4 Dcnio, 103; 12 Wend. 150; 15 Wend. 557. 1 Dcnio, 139. * New Code, 21, sub. 10 and 11; 1 Barb. S. C. R. 552. 248 Of the Pleadings. five years after the rendition thereof, and shall be returnable sixty days from the date of the same. 13th Subdivision. If the judgment be docketed with the county clerk, the execution shall be issued by him to the sheriff of the county, and have the same effect, and be executed in the same man- ner as other executions and judgments of the County Court, except as provided in section 63. lAlh Subdivision. The Court may, at the joining of issue, require either party, at the request of the other, at that or some other specified time, to exhibit his J account on demand, or state the nature thereof as far forth as may be in his power ; and in case of his default preclude him from giving evidence of such parts thereof as shall not have been so exhibited or stated. loth Subdivision. The provisions of this act, respecting forms of action, parties to actions, the rules of evidence, the times of com- mencing actions, and the service of process upon corpora- tions, shall apply to these Courts. It appears by the subdivisions of the foregoing section (hat the rules of pleading in Justices' Courts arc governed by the various subdivisions as therein specified. The direc- tions are plain and specific, and parties will have no difficulty in framing their pleadings so as to answer the requirements of the law as laid down therein. Justices of the Peace have jurisdiction in suits against corporations, and may issue a summons as in other cases, which may be served on the president, or other head of the corporation, secretary, cashier, treasurer, a director, or man- aging agent thereof. They are also now authorized to take and enter judgment upon the confession of (he defendant, where the amount confessed shall not exceed two hundred and fifty dollars ; The Astswer. 249 the confession to be taken as formerly in conformity with the Revised Statutes, and in pursuance of the following lorm. 1 The following forms may aid the party in answering, varying, of course, according to the facts in each case : Form of Answer. The defendant says ho denies the complaint, and gives notice that the said cow sold to him was warranted to be good for milk, when in fact she is not, and he claims dama- ges to $20. Or — That he has paid for the said cow. Or— That the plaintiff is indebted to him for 30 bushels of potatoes at $1 per bushel, and on book account to $50. Or — That he cut the said trees by plaintiff's consent, (or as the fact is.) Or — That the said note was given upon the sale of a horse which the plaintiff sold to defendant, and warranted hint sound, &c, when in fact he was not sound, and the defendant claims damages in this action by way of counterclaim against the said note. Or — That there has been a former suit between the parties before A. B., Esq., of , on this same demand, and a verdict and judgment rendered in favor of , and ho claims that suit a bar to this. Ou — That the plaintiff agreed to build a house for defend- ant, [here state substance of agreement,] and he failed to perform, and defendant claims damages for said non-per- formance to $50, which he will rccoupe in this action against (ho plaintiff's claim, and have a verdict for the balance. The Justice has power to require either party at the join- ing of issue, to give the opposite party a bill of particulars on his account or demand, forthwith, or at such time as he shall designate, and in case of a neglect or refusal so to do, to preclude him of giving evidence of his claim or defence, which said bill should contain if given. There are no other pleadings allowed in Justices' Court 1 New Code, aoc. 134. 250 The Answer. but the complaint on the part of the plaintiff, and the an- swer by the defendant as above stated, except either party may demur to the pleading of his adversary as specified above, in order to test the sufficiency of the pleading de- murred to, and which is to be disposed of as therein stated. Since the adoption of the Code of Procedure there is no longer any such plea as the general issue, and there cannot be an answer iu that form. It is one of the principal objects of the Code to abrogate the old forms of pleading, and bring the parties to a plain, concise and direct statement of the facts which constitute the cause of action, or the defence, in place of the general statement formerly in use. 1 The form of allegation and counter allegation was adopted with a view to compel the adverse party to disclose to each other the facts upon which they respectively rely, to uphold the claim upon the one side, and to maintain the defence upon the other by the proofs on the trial. 2 It is proper to remark, that the plaintiff may demur to the notice of the defendant, as the facts stated therein should constitute a partial or complete defence, the sufficiency of which cannot be tested in any other way. "The defendant may answer that the Justice has not juris- diction." As for example, that the Justice has, since his election, become a tavern-keeper in fact ; or that he has an interest in the matters to be tried ; or, that he is so nearly related to the plaintiff, that he ought not to take cognizance of the suit ; or, that the suit is for assault and battery, mali- cious prosecution, or the like. 3 "The defendant may answer that the process issued ille- gally." As, that a warrant issued without oath ; or, in favor of a non-resident plaintiff, without security ; or, that a long attachment issued without the requisite proof, or bond. 4 "The defendant may answer that the process is not, in substance, conformable to the statute." Although, as before 1 Fay vs. Grimsteod, 10 Barbour, 3 13 John. 218; 13 John. 191; 21 321; 7 Id. 80. Wend. 63; 7 John. 356. 2 I*. * 12 John. 422; 1 Wend. 213;3 Cow. 206. Set-Off. 251 observed, proceedings before a Justice are generally re- garded with liberality, yet he must comply with the re- quirements of the statute. As, therefore, the substance of the several kinds of process is prescribed, the process must conform thereto, or the defendant may take advan- tage of the defect, if the objection be urged in time. "The defendant may answer a defect in the service of process." It is a valid objection to the return of a sum- mons, that it does not state the timf and manner of service. So, also, of an attachment, that the return does not state that a copy was left with the defendant, or at the last place of abode of the defendant, &c, as the case may be. 1 " The defeudant may answer any matter relating to the plaintiff personally, which furnishes a legal objection to the commencement or continuance of the suit." As, that the plaintiff is an infant, and has declared by attorney; or, is a married woman, and her husband should have joined with her as plaintiff; or, that the plaintiff, being a corporation, is wrongly named; or, that the plaintiffs, suing as husband and wife, are not married; or, that the plaintiff is misnamed, either in cltristian or surname. The law, however, knows of bit one christian name, and the omission of a middle letter is immaterial. It is also a good plea that the plaintiff is a fictitious person. 2 " Some matters relating to the defendant personally may be pleaded." Thus, the defendant being a married woman and sued alone, may plead that her husband ought to have been joined with her. 1 14 John. 481; 17 Wend. 517 ; 2 "1 Chitty, 436; 5 John, 54; 4 Cow, Hill, 517 ; 16 John. 121. 148; 19 John. 308. 251a Anbwee of Title. Answer of Title. § 2950. Where, upon the trial of an action, the sum total of the accounts of both parties, proved to the satis- faction of the justice, exceeds four hundred dollars, judg- ment of discontinuance must he rendered against the plaintiff, with costs. § 2951. The defendant may, either with or. without other matter of defense, set forth in his answer facts, showing that the title to real property will come in ques- tion. Such an answer must be in writing; and it must be signed by the defendant, or his attorney or agent, and de- livered to the justice. The justice must, thereupon, coun- tersign the answer, and deliver it to the plaintiff. § 2952. In the case specified in the last section, the de- fendant must also deliver to the justice, with the answer, a written undertaking, executed by one or more sureties, approved by the justice; to the effect that, if the plaintiff within twenty days thereafter, deposit with the justice a summons and complaint in a new action, for the same cause, to be brought in a proper court, as prescribed in the next section, the defendant will, within twenty days after the deposit, give a written admission of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking must further provide, Answer of Title. 251b that he will, at all times, render himself amenable to any mandate, which may be issued to enforce a final judgment in the action so to be brought. If the defendant fails to comply with the undertaking, the sureties are liabl&there- upon, to an amount not exceeding two hundred dollars. § 2953. The court in which a new action is to be brought as prescribed in the last section, is the Supreme Court, or the County Court of the justice's county, at the plaintiff's election; except that, where the justice is a justice of the peace of the city of Buffalo, it is the Superior Court of Buffalo. § 2954. Upon the delivery of the undertaking to the justice, the action before him is discontinued, and each party must pay his own costs. The costs so paid by either party must be allowed to him, if he recovers costs in the new action, to be brought as prescribed in the last two sections. If the plaintiff fails to deposit with the justice a summons and complaint in the new action, before the ex- piration of twenty days after the delivery of the undertak- ing, the defendant may maintain an action against the plaintiff to recover his costs before the justice. § 2955. If the undertaking is not delivered to the justice he has jurisdiction of the action, and must proceed therein ; and the defendant is precluded, in his defense, from drawing the title in question. 251c Answer of Title. § 2956. If, however, it appears upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the juetice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly. §2957. In a new action, to be brought after an action before a justice is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six sections of this act, the plaintiff must complain for the same cause of action only, upon which he elied before the justice; and the defendant's auswer must set up the same defense only, which he made before the justice. If the action is to recover a chattel, which was replevied in the justice's court, each undertaking, given in the justice's court, continues to be valid in, and is applicable to, the new action. § 2958. Where, in an action before a justice, the plain- tiff has two or more causes of action, and the defeuse, that the title to real property will come in question, is inter- posed as to one or more, but not as to all of them ; the de- fendant may deliver an answer and undertaking as pre- scribed in sections 2951 and 2952 of this act, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the justice must discon- tinue the action as to those causes of action only; the Akswj!r of Title 25ld plaintiff may commence a new action therefor in the proper court ; and the original action must proceed as to the other causes. Set-off, In the followiug cases, and under the following circum- stances, a defendant may** off demands which he has again st the plaintiff. 3 1. It must be a demand arising upon judgment, or upon contract, express or implied, whether such contract be writ- ten or unwritten, sealed or without seal, and if it be founded upon a bond, or other contract having a penalty, the sum equitably due by virtue of its condition only should be set off. 2. It must be due to him in his own right, either as be- ing the original creditor, or payee, or as being the as- signee, or owner of the demand. 3. It must be a demand for real estate sold, or tor per- sonal property sold, or for money paid, or services done ; or if it be not such a demand, the amount must be liqui- dated or be capable of being ascertained by calculation. 4. It must have existed at the time of the commence- 8 2 R. 8. 165, sec. 50. 252 Set-OJt. ment of the suit, and must then have belonged to the de- fendant. 5. If there be several defendants, the demand set off must be due to all of them jointly. 6. It must be a demand existing against the plaintiff in the action, unless the suit be brought in the name of a plaintiff who has no real interest in the contract, upon which the suit is founded ; in which case, no set-off of a demand against the plaintiff shall be allowed, unless as hereinafter specified. 7. If the action be founded upon a contract (other than a negotiable promissory note or bill of exchange) which has been assigned by the plaintiff, a demand existing against such plaintiff, or any assignee of such contract, at the time of the assignment thereof, and belonging to the defendant in good faith, before notice of such assignment, may be set off to the amount of the plaintiff's debt, if the demand be such as might have been set off against, such plaintiff, or such assignee, while the contract belonged to him. 8. If the action be upon a negotiable promissory note, or bill of exchange, which has been assigned to the plain- tiff after it became due, a set-off to the amount of the plaintiff's debt may be made of a demand existing against any person or persons, who shall have assigned, or trans- ferred such note or bill after it became due, if the demand be such as might have been set off against the assignor, while the note or bill belonged to him. 1 Briggs vs. Rockwell, 11 "Wend. 504; 12 Wend. 356 (with some excep- tions. Set-Off. 253 9. If the plaintiff be a trustee for any other person, or if the suit be in the name of a plaintiff, who has no real in- terest in the contract upon which the suit is founded, so much of a demand existing against those whom the plaintiff represents, or for whose benefit the action is brought, may be setoff, as will satisfy the plaintiff's debt, if the same might have been set off in an action by those beneficially interested. 10. But if such action is brought by the assignee of au insolvent, imprisoned, absent, concealed or absconding debtor, no set-off shall be allowed of any debt, unless in the cases provided in 1st vol. R. S. 778, \ 7. To entitle a defendant to a set-off, he must plead or give notice of the same, specifying the nature of his claim, with reasonable certainty at the time of joining issue, on a ques- tion of fact, upon the merits of the case. 1 If a defendant neglect to plead, or give notice of any set-off, which, according to the preceding provisions, might have been allowed to him on the trial ol the cause, he shall be forever thereafter precluded from maintaining any action to recover the same or any part thereof. 2 And if the demand which might have been set off, con- sisted of a negotiable note, or bill of exchange, no action shall be maintained thereon by any person who may derive title thereto from or through the defendant. But the last preceding section shall not extend to the following cases : 3 1. When the set-off shall be one hundred dollars more than the judgment which the plaintiff shall have recovered. 4 2. "Where a set-off consisted of a judgment in favor of the defendant, or belonging to him, rendered before the com- mencement of the suit in which the same might have been set off. 3. "When a set-off shall have been claimed by him, and a balance exceeding one hundred dollars shall have been found in his favor, the defendant may maintain an action for such part of his demand as was not allowed to him as a set-off. 1 2 E. S. 165. sec. 51. 3 Id. sec. 58. 2 2 K. S. 167, sec. 57. i Sess. Laws, 1840. 254 Sjet-Cw. 4. Where the suit was commenced against the defendant by attachment, and he did not personally appear in such suit. 5. Claims in suit in any other Court, at the time of the commencement of the suit before the Justice. A set-off is allowable, where the action is on an award, or on a bond for the non-performance or non-payment of an award. 1 And the sum due on a bond may be set off against any demand recoverable under the common counts. 3 A tavern bill against any person other than a lodger, or traveler, for more than one dollar and twenty-iive cents, is not the subject of set-off. 3 A debt due to the defendant as a surviving joint creditor, may be set off against a demand on him in his own right. 4 And on the other hand, a debt due from the plaintiff as a surviving debtor, to the defendant, may be set off against a debt due from the defendant to the plaintiff, in his own right. 5 Where the note is transferred by the payee, for a valuable consideration, before maturity, and an action is brought thereon in the name/of the holder, for his own benefit, the defendant cannot set off a demand against the payee. Such a case is not within the statute. A demand assigned to the defendant before the commence-, ment of the suit may be set off, though he has not actually paid for it, but only agreed to pay. 7 A declaration was filed on the 2d day of June, and served on the 8th ; on the 7th the defendant purchased a note against the plaintiff. Held, that the note belonged to the defendant when the suit was commenced, and therefore might be a set-off. 8 Where the goods belonged to the vendee, without pay- 1 5 John. 105. o 1G Wend. 059, Bronson J. a 15 Wend. 51. 7 Everett vs. Strong, 6 Hill, 1G3. 3 1E.S. 678, sec. 11 ; 7 Wend. 326. Cowon J. * 5 T. R. 493; 1 Esp. R. 47 S. C. 8 Johnson vs. Comstock 6 Hill, 10. B 6 T. R. 682; 1 John. 34; 5 Serg. Branson Ch. J. andRawle, 8G; Gra. Pr. 90. > Set-Off. 255 ment, whether they be sold on credit or not, and though the vendee agree to pay for them in ready money, yet, in an action brought, the vendee may set off a debt or claim due to him from the vendor against the price of the goods. 1 So where goods belonging to his principal, were sold by a factor, without knowledge of the ownership, on the part of the purchaser, the latter, in an action on the contract by the principal, for the price of the goods, was held entitled to set off a demand against the factor, although the sale was a cash sale, and the purchaser when he obtained the goods, did not intend to abide by his contract, but purposed to set off his demand against the factor.' 2 The defendant may set off a debt due him from the plain- tiff, although he agrees to pay the plaintiff's demand in ready money. 3 So, although he has positively agreed to account or pay over to the plaintiff, moneys which the plaintiff has author- ized him to receive as his agent. 4 A party holding a joint and several note against two makers, is not bound to set off the same in an action against him by one. 5 A debt barred by the statute of limitations, cannot be set off; and the plaintiff may make the objection at the trial, when the set-off is introduced by way of notice, but the defendant may answer the objection, by showing an acknow- ledgment of the debt, or a promise to pay it within six years, the same as in an original action, even though nothing be said of such acknowledgment or new promise in his notice. 6 It is a general rule that debts or demands between persons who are not parties to the suit cannot be set off, but there are several exceptions to this rule, (13 John. 9.) Thus the defendant may set off a bond executed by the plaintiff and signed by the obligee to the defendant, or any other debt assigned to the defendant, previously to the commencement of the action, although he could not have maintained an action upon it in his own name. 7 1 i jw 375 6 ii Wend. 101. 2 24 Wend 458 « Buller's N. P. 180; 17 John. 330. 3 1 East 375 7 12 John. 276; 8 John. 152; 17 John/ * 15 Wend. 51. 330; 19 John. 342. 25 G Set-Off. But a judgment purchased by a defendant with a view tc set it off, and with a condition that if he fails to obtain the set-off, the assignment shall be void, cannot be set off; to warrant this, the defendant must purchase absolutely. 1 A joint debt cannot be set off against a separate demand, nor a separate debt against a joint one, unless it be so agreed by the parties. But a debt due to a defendant as a survi- ving partner, may be set off against a demand, on him in his own right, and vice versa? The assignment of a chose in action need not bo in writ- ing, a delivery of it for a good consideration is sufficient even in the case of a specialty, or a judgment, or mortgage, &c. 3 In case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defence existing at the time of or before notice of the assignment ; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due. 1 A court of equity will, it seems, enforce a set-off of cross demands where the defendant is insolvent. Where a defend- ant presents a demand as a set-off to the plaintiff's claim, which demand is legal and proper to be allowed if proved, and the court or jury pass upon it and disallow it, such de- mand cannot be set off in another suit between the same parties. The former verdict or judgment is conclusive, unless it is shown that the rejected claim was of such a nature that it could, not have been legally allowed in the previous suit. If it appears affirmatively that the court or jury conld not legally have allowed the claim as a set-off, the case will be taken out of the operation of the rule. 5 Where a debtor has a set-off equally applicable to two demands against him, it is not for him to elect which of the demands ho will satisfy by his set-off, but the court will direct the application according to the equities of the case. 15 1 7 Cow. 460, 480. 5 3 Comst. 475 j sec. 150 of Code; C 2 Barbour's Law of Sct-0(T, GO. Barb. 28. 3 Id. p. 58. « i Barb. 382. * Code, sec. 112. Modifications in Relation to Set-Oits. 257 Where a suit is brought upon an account by the assignee thereof, a promissory note of the assignor, held by the de- fendant at the time of the assignment of the account, but not then due, cannot be set off against such account. 1 Where, at the time of an assignment of a chose in action, :in equitable right of set-off exists against the assignor, the assignee will take the chose in action, subject to such rMit of set-off. 2 Judgment may be rendered in favor of the defendant in a Justices' Court for a set-off, proved on the trial, though no demand was established in favor of the plaintiff. 3 .Where a suit is brought on a contract by an assignee, and the defendant has a larger demand against the assignor, such set-off can only bo made to the amount of the plaintiff's debt, and no judgment for a balance can be rendered against the plaintiff'. 4 J\lodi/icalions in relation to Sel-Offs, and Counter Claims under the Code. The provisions of the Revised Statutes, (2 R. S. 154, § 12,) respecting set-offs, are so 'far modified by the Code as to admit of a set-off or counter claim on behalf of one or more of several defendants, where a several judgment may be had in the action between the plaintiff and any one or more of the defendants, as upon a joint and several promissory note. Therefore in an action upon a promissory note, signed by two persons, one as principal and the other as surety, a set-off of an indebtedness from the plaintiff to the principal may be allowed. The Court say, that under the Code, the statute in rela- tion to set-off is so far modified as to admit of a set-off or counter claim on behalf of one or more of several defend- ants, where a several judgment may be had in the action between the plaintiff and any one or more of the defendants, as upon a joint and several promissory note ; (see 8 Howard Pr. 454,) where two out of the three defendants had signed 1 3 Barb. 40. s Greenleaf vs. Low, 4 Dcnio, 168. 2 2 Barb. 258. i 3 Denio, 344. 258 Modifications in Relation to Set-Offs. the note as sureties for the third ; the Court allowed a set-off of it judgment in favor of the principal defendant alone against the plaintiff, and judgment was rendered for the defendants. That was a decision at a special term, it is true, but the Supreme Court in the Sixth Judicial District at a general term, recognized and affirmed it as good law, in the case of Briggs vs. Briggs, (20 Barb. 477.) The Court say, the only restriction under the Code is, that the set-oif must be one existing in favor of a defendant against a plaintiff, between whom a several judgment might be had in the action. The present action is one of that kind, as was held in the case of The People vs. Crane, (8 Howard, 16 1.) 1 The right of set-off, when a chose in action is assigned, as it existed against the assignor at the time of the assignment or transfer, cannot bo set up as a counter claim, (which is limited to the parties to the record,) is not embraced within its terms, and is excluded by the statute. It remains a sub- sisting right and must be set up as a defence. The Court say, that the counter claim of the Code is a new invention, its precise force and meaning is to be fixed by judicial decisions. It obviously includes rccoupcmcnt and a set-off, as between the parties to the record, and something more. It is the set-off of the Revised Statutes, together with the set-off of Courts of Equity, and yet something more. It embraces all sorts of claims which a defendant may have against a plaintiff, in the nature of a cross action or demand, or for which a cross or separate action would lie within the limitations and restrictions coutainod in section one hundred and fifty. Counter claim is the opposite of claim. The plaintiff makes a claim in his complaint against the defendant. The defendant, besides his defence, makes a counterclaim against the plaintiff. The claims are of cross demands, as said by Judge Harris in 12 Howard, 310, and must, from the force of the terms, be limited to the parties to the record aside from the restriction of section one hundred and fifty of the Code. The right of set-off, therefore, where a chose in action 1 22 Uarb. 647, and cases cited; 20 Id. 477. Former Recovery. 250 is assigned, as it existed against the assignor, at the time of the assignment or transfer, cannot be set up as a counter 'claim; it remains as a subsisting right, and must be setup as a defence. 1 The Code in prohibiting the bringing of an action in the «mic county upon a Justices' judgment within five years after its rendition, docs not prevent the use of such a judg- ment as a defence, set-off, or counter claim by an assignee thereof. 2 Former Recovery. Where- the defendant relies upon showing, in his defence, a former recovery for the same subject matter, or that it has been passed upon by some court having cognizance of it, ho must at the joining of issue, before the Justice, give notice of it in his answer. 3 Before the Code of Procedure was passed, it was held, (in 2 Hill, 478, and 6 Hill, 114,) by the Court, that evidence of a former suit for the same cause of action, might be given in evidence under the general issue and without notice, but that rule is abrogated by the Code, and notice must be given with the answer, if the defendant desires to avail himself of the privilege of giving evidence of it on the trial. The Justice, however, would allow the defendant to amend his notice, by giving notice afterwards as in other cases, and upon the same terms. If there be several causes of action set up in the complaint, some one or more of which arc for the former cause of action, and some not, the defendant's notice may be made to meet that cause of action. The form of the notice may be simple and plain, stating simply that such a cause of action has been adjudicated by such a court, (naming the court,) and the parties. When a verdict shall have been rendered in any action, the plaintiff shall not thereafter be nonsuited, but judgment shall be rendered upon the matter found by such verdict. 4 1 13 Howard Pr. 84. 3 12 John. 455. 2 Clark vs. Story, 29 Barb. 295. * 2 R. S- 282, sec. 1. 260 Former Recovery. The plaintiff may elect to become non-suited, after a trial by jury, and before their verdict is rendered ; but when a demand has been once finally submitted to a jury, their verdict is a bar to any other suit for the same cause, not- withstanding the jury may have rejected such demand, for want of proof, or disregarded it for any other cause, and notwithstanding the Justice may have neglected to render judgment upon the verdict. 1 If a Justice, to whom a cause is finally submitted, neglect to render any judgment within the four days allowed him by statute, it is no bar to a second suit for the same cause of action. 2 A Justice of the Peace must enter judgment upon the verdict of a jury immediatcby upon its being rendered, and if he omit to do so until the next daj r , no judgment can be given by him. 3 Determining the amount of costs to be paid by the losing party, is parcel of the act of rendering judgment. Accordingly where a Justice upon a verdict being given, immediately entered it in his docket, but omitted to set down the items of costs until a subsequent day, and did not foot up the amount until eight days afterwards, held erroneous, and the judgment was reversed. 4 A former suit between the same parties is no bar to a second action for the same demand, where the validity of the plaintiff's claim was not passed upon in the former suit, the referees in that suit reporting against the plaintiff, ex- pressly upon the ground that his action was prematurely brought. 5 A. party setting up a former recovery in bar of a second suit, must show that the subject matter of the second suit was directly in issue in the former suit, and that the verdict and judgment in that suit were directly upon the points attempted to be litigated in the second suit, and necessarily involved their consideration and determination by the jury. 1 C John. 340; 2 R. S. 176, sec. 119; 3 Sibley vs. IToward, 3 Denio, 72, 6 ,Tohn.ir>8ilOJohn.3G5;9 Wend. Bronson Ch. J.j 2 Denio, 26, 287 ; 12 Wend. 50-1; 2 John. 181. Bronson Ch. J.; 6 Hill. 38. 1 5 Hill, CO, Nelson Ch. J. 4 Id. 6 5 Barb. 4C9. Former Recovery. 261 A former recovery in an action by the vendor, against the vendee for the price of a part of the property delivered under the contract, is a bar to a suit by the vendee against the vendor for damages for the non-fulfilment of the con- tract. 1 . A former recovery in -which the same matter was tried upon the merits, may be given in evidence without being specially pleaded, wherever the party, plaintiff or defend- ant, had no opportunity to plead the recovery, though received in evidence under the general pleadings, is as con- clusive as in cases where the matter is specially pleaded. 2 The judgment of a court of competent jurisdiction upon a question directly involved in the suit, is conclusive in a second suit between the same parties, depending on the same question, although the subject matter of the second action be different. Thus, where A. took from B. a bill of sale of certain personal property, and C. afterwards levied upon tho property bj' virtue of attachments in favor of B.'s creditors, and A. subsequently took and converted to his own use a part of the "property for which C. sued him and recovered judgment in a Justices' Court, on the ground that the bill of sale was fraudulent and void as against creditors. Held, that the judgment was conclusive upon, the question of fraud in an action of replevin afterwards brought by A. against C. in the Supreme Court to recover the residue of the property ; Held, further, that parol evidence was admissible in the second suit, for the purpose of showing what questions were controverted in the first action, and the grounds upon which it was determined. In the first suit the complaint went for all the property, but it appearing on the trial that the defend- ant had converted only certain specified articles, the plain- tiff withdrew his claim as to the residue, and recovered judgment only for the value of the articles converted. Held, that this was not splitting up a single cause of action, and therefore that the plaintiff in that suit might, in a second action, brought against him for the residue of the property, insist upon his title thereto under the levy. 3 1 4 Barb. 36. 3 Doty vs. Brown, 4 Comstock, 71. 2 4 Barbour, 457. 262 Former Kecovery. The judgment of a court of competent jurisdiction is final and conclusive upon the parties, not only as to the matter actually determined, but as to every other matter which the parties might have litigated in the cause, and might have had determined. A fact put in issue by the record, and found by the judgment of a court possessing the requisite jurisdiction, cannot be again litigated by the parties or their privies. 1 It is a fundamental rule, that the judgment of a Court of competent jurisdiction between the same parties or privies, upon the same matter or subject, coming in question in another suit, is final and conclusive on all points, directly involved and necessarily determined. 3 A judgment in Justices' Court in favor of a surgeon un- professional services, is a bar to any action by the defendant against him for malpractice in performing such service. 3 Where a' Justice of the Peace decided a cause before him, and made upon the papers in the suit a memorandum of his judgment within four days after the final submission to him. Held, that the judgment was regular and valid, although no entry thereof was made in his docket until after the lapse of four days. 4 In the case of Dexter vs. Broat, (1C Barb. 337,) Gridley J. says : "A recovery in a former suit, brought against another "person for the same cause of action involved in the second suit, and the payment and satisfaction of the judg- ment, is a bar to a second suit ; and if the amount of the judgment previously recovered is tendered to the plaintiif, he has no right to refuse to receive the money, and to bring an action for the same cause of action against another per- son, on the ground that he has the right to elect of whom ho will collect the damages. "Payment of the judgment to the Justice before whom the same was recovered in good faith, and without any dis- sent or directions to the contrary by the plaintiff, is a satis- faction of the judgment." 1 3 Comstock, 512, Jowott ,T. 3 Gutus vs. Preston, 41 N. Y. 113; 3 S Williams vs. Fit/.hugli, 41 Barb. Sold. 352. 321, and cases cited. * YValrad vs. Slmlcr, 2 Comst. 131. Plea of Title. 2G3 Again, in Staples vs. Goodrich, (21 Barb. 317,) Bockes J. says: "It has long been well settled that an entire and indivisible demand cannot be split up by a party, so as to form a basis of two actions ; that if a plaintiff bring an action for a part only of an entire and indivisible demand, the judgment in that action is a conclusive bar to a subse- quent suit for another part of the same demand. (Bcnder- nagle vs. Cocks, 19 Wend. 207 ; Colvin vs. Corwiu, 15 Id. 557 ; Guernsey vs. Carver, 8 Id. 492 ; Stevens vs. Lock- wood, 13 Id. G44 ; Waterbury vs. Graham, 4 Sandf. 215 ; Davis vs. Talcott, 14 Barb. Gil, and many other cases cited.) riea of Title. § 55. In every action brought in a Court of Justice of the Peace, where the title to real property shall come in question, the defendant may, either with or without other matter of defence, set forth in his answer, any matter showing that such title will come in question. Such answer shall be in writing, signed by the defendant or his attorney, and deliv- ered to the Justice. The Justice shall thereupon coimfcr- sign the same, and deliver it to the plaintiff. 1 ^ 5G. At the time of answering, the defendant shall de- liver to the Justice a written undertaking, executed by at least one sufficient surety, and approved by the Justice, to the effect that if the plaintiff shall, within twenty clays there- after, deposit with the Justice a summons and conrplaint in an action in the Supreme Court, for the same cause, the defendant will, within 20 days after such deposit, give an admission in writing of the service thereof. Where the defendant was arrested in the action before the Justice, the undertaking shall further provide that he will, at all times, render himself amenable to the process of the Court, during the pendancy of the action, and to such as may be issued to enforce the judgment therein. In case of failure to comply with the undertaking, the surety shall be liable, not exceed- ing one hundred dollars. If the defendant omits within the prescribed time, . to 1 Code of Procedure, sec. 52. 264 Plea of Titte. admit service of the summons and complaint, the Court cannot grant leave to admit service thereof. ^ 57. Upon the delivery of the undertaking to the Jus- tice, the action before him shall bo discontinued, and each party shall pay his own costs. The costs so paid by cither party shall be allowed to him, if he recover costs in the action to be brought for the same cause in the Supreme Court. If no such action be brought within thirty days after the dcliv- . ery of the undertaking, the defendant's costs before the Justice may be recovered of the plaintiff. 1 § 58. If the undertaking be not delivered to the Justice, he shall have jurisdiction of the cause, and shall proceed therein ; and the defendant shall be precluded in his defence from drawing the title in question. § 59. If, however, it appear on the trial, from the plain- tiff's own showing, that the title to real property is in ques- tion, and such title shall be disputed by the defendant, the Justice shall dismiss the action, and render judgment against the plaintiff for the costs. § GO. When a suit before a Justice shall be discontinued. by the delivery of an answer and undertaking, as provided in sections 55, 56 and 57, the plaintiff may prosecute an action for the same cause, in the Supreme Court, and shall complain for the same cause of action only, on which ho relied before the Justice ; and the answer of the defendant shall set up the same defence only which he made before the Justice. § 61. If the judgment in the Supreme Court be for the plaintiff, he shall recover costs. If it be for the defendant, he shall recover costs ; except that upon a verdict, he shall pay costs to the plaintiff unless the Judge certify that the title to real property came iu question on the trial. § 62. If, in an action before a Justice, the plaintiff have several causes of action, to one of which the defence of title to real property shall bo interposed, and as to such cause, the defendant shall answer and deliver an undertaking, as provided in sections 55 and 56, the Justice shall discontinue the proceedings as 1o that cause, and the plaintiff may com- 1 Davis vs. Jones, 4 Hownnl, 840; 3 Code It. 03. Plea of Title. 2C5 mencc another action therefor in the Supreme Court. As to the other causes of action, the Justice may continue his proceedings. Whenever the defendant desires to put in a plea of title, instead of pleading the general issue and giving notice as heretofore required, he may set forth in his answer any mat- ter, showing that such title will come in question, which must be signed by the defendant or his attorney [the person who appears for him meaning,] and delivered to the Justice, who must countersign it, and deliver it to the plaintiff. He must also deliver to the Justice a written undertaking, so called, with one or more surety, as required by the 50th section of the act. The answer may be as follows : I.v Justices' Court — Before F. Butler, Justice. John Bell, ^ Clfft J- Peter Stow. J The defendant for answer, says he denies the allegations in the complaint, and he further says that the land where the alleged trespass was committed is the land of the defendant, and he claims title to the same. Peter Stow. Countersigned, May 30, 18 . F. Butler, Justice of the Peace. Any other short form will answer, varying, of- course, according to facts in each particular case. Or This. (Same as before to the word, says,) that the shingles foi which the plaintiff claims damages were manufactured from timber taken from the defendant's land, and he claims title to the same. Peter Stow. Countersigned, May 20, 18 . F. Butler, Justice of the Peace. If there should be any claim made in the complaint, other than the one where the defence of title is set up, the defend- ant can put out in his answer to that part of it, and the Jus- tice has jurisdiction to go on and try that issue in pursuance of the 55th section of the Code. 266 Plea of Title. Form of an Undertaking. Whereas, in a suit before , Esq., one of the Jus- tices of the Peace of the county of Oneida, wherein John Bell is plaintiff, and the said Peter Stow is defendant, the said Peter Stow has set forth in his answer matter, showing that the title to kind will come in question on said trial. Now, therefore, we Peter Stow and Richard Eoe, hereby undertake and promise to, and with the said John Bell in the sum of one hundred dollars, that if the said Peter Stow shall, within twenty days from tkis date, deposit with the above named Justice, a summons and complaint in an action in the Supreme Court for the same cause, the said Peter Stow will, within twenty days after such deposit, give an admission in writing of the service thereof. Petee Stow, Eiciiaed Roe. Dated May 20, 18 . If the defendant is under an arrest, by virtue of a war- rant, then, immediately after the word "thereof," add, and that he will at all times render himself amenable to the pro- cess of the said court, during the pendancy of the action, and to such as may be issued to enforce the judgment therein. John Bell, Richard Roe. . Dated May 20, 18 . § 5C. The undertaking must be approved by the Justice. The Justice's approval may be indorsed upon the under- taking, as follows : " I approve the within undertaking and the surety therein named. , Justice." May 20, 18 . The subsequent proceedings are plainly pointed out in the subsequent sections of the act. An oral plea or notice of title in Justices' Courts, unac- oompanied by an undertaking pursuant to the statute, is a nullity, and the defendant cannot avail himself of the notice at the trial, though it was received at the time, without objection on the part of the plaintiff. 1 1 Hill, 342, Branson J, Plea or Title. 267 In the case of Weeks vs. Stroblc, decided in the Ulster County Court, found in 30 How. 123, it was decided that h defendant in pleading title to land in a Justices' Court is not restricted to interposing it at the time of joining issue as required by the Revised Statutes, hut may under the Code, put in his answer of title and undertaking afterwards. Under the Code of Procedure a defendant in a Justices' Court, who would interpose a plea of title is not absolutely required to do so at the time of joining issue, as under the Revised Statutes, but this, like any other defence, may be interposed by way of amendment at any time before trial, whoso substantial Justice shall be promoted thereby. In an action in a Justices' Court to recover expenses of making a line or division fence on the boundary between the lands of the parties, an answer alleging that the fence in question was not built on the true line, but on the defendant's land, sufficiently involves the question of title to oust the juris- diction of the Justice. 1 The plaintiff in a Justices' Court cannot litigate any other question of title, except the question of actual possession at the time of the alleged injury ; and although that question may be litigated in a Justices' Court, yet it does not de- prive the Justice of jurisdiction on the ground that the title to land comes in question. 2 " The Legislature have provided," that if it appear on the trial, from the plaintiff's own showing, that the title to land is in question, which titlo shall be disputed by the defendant, the Justice shall dismiss the cause, and the plain- tiff shall pay the costs. 3 "The Supreme Court have decided," that though the plaintiff in a Justices' Court give evidence of title to lauds the Justice is not bound to dismiss the cause unless such title be disputed by the defendant. 1 Though it appear in a Justices' Court from the plaintiff's own showing that the title to lands is in question, and the Justice improperly refuse to dismiss the cause, hisjudg- 1 Hinds vs. Paige, Abb. N. S. 08. 3 Code, soc. 59. 2 6 Hill. 537- * Adams vs. Beach. 6 Hill, 271. 268 Plea of Title. nient will not be void for want of jurisdiction, but only voidable for error. 1 The Justice may properly proceed and render judgment, notwithstanding evidence of title to lands be given by the plaintiff, if the defendant do not expressly dispute such title, nor move to have the cause dismissed. 2 Where, in an action of trespass quaure clausum f regit, prosecuted in a Justices' Court, the defendant justifies him- self on the ground that the locus in quo is a public highway, the Justice is deprived of jurisdiction, and it is his duty to dismiss the cause ; and if he proceed to try the question of the existence of a highway, and render judgment, such judgment will be reversed. It appears from the authorities cited, that the Justice may try the question of actual possession of lands in all cases ; and unless the defendant dispute the plaintiff's title by rais- ing the specific objection on the trial, the plaintiff may in- troduce his paper titles for the purpose df showing his pos- session. '• A mere license docs not draw the title to land in question within the statute in relation to the jurisdiction of Justices. 4 Where the question is, whether the defendant has ob- structed a certain river which the plaintiff insists is a public highway, is such a question as a Justice may lawfully try, to entitle a defendant to a dismissal of a cause pending before a Justice, on the ground that the title to land comes in question, ho must call the Justice's attention specially to the objection, by at least disputing the title of the plaintiff. 5 But where the issue in a Justices' Court is fraud, and the title to land only collateral, a fact from which the main issue may be inferred, evidence of a title in another, instead of the defendant, may be received. 6 So where in a suit in a Justices' Court the title of neither party is disputed, nor denied, though evidence be given concerning title, it does not oust the Justice of jurisdiction. 7 I 5 Id. 44. « 8 Barb. 239, and cases cited. - 19 Wend. 373. « 54 Barb. 34. 3 6 Hill, 33. 7 2 Keyes, G18, Boyor vs. Schoficld. i 7Ba,rb.74;18Wend.Glfi; 10 Wend. 505. Plea of Title. 269 The case of Ehle and Sart vs. Quackenboss, (6 Hill, 537,) is of so much importance to Justices of the Peace, in show- ing them what kind of evidence it is proper for them to receive in relation to land, without involving the question of title, that I have deemed it proper to insert the case at length. It is as follows : Ehle and Sart vs. Quackenboss. The question of actual possession of lands is not one of title within the meaning of 2 R. S. 22G § 4, and a Justice of the Peace may therefore try and determine it. Accordingly where the plaintiff in an action of trespass quaure clausum fregit, brought in a Justices' Court gave evidence tending to show that he was in the actual possession of the locus in quo at the time of the alleged trespass was committed. Held, that the defendant had a right to give counter evidence and prove possession in himself. Error to the Montgomery Common Pleas. Ehle and Sart sued Quackenboss in a Justices' Court, and declared in trespass for that the defendant on the 1st of June, 1841, and on divers other days, &c, by his cattle, horses, &c, broke and entered the plaintiff's close, &c. The defendant pleaded the general issue, and gave notice that he would prove in defence of the action that he was the occu- pant of the locus in quo under license from the owner, and that his cattle, &c, were lawfully depasturing thereon. On the trial it appeared that the locus in quo was a farm in Can- ajoharie, and the plaintiffs, to establish their possession, proved various acts done by them on the farm during the season of 1841, such as sowing grain, mowing grass, making fences, &c. The defendant, to rebut this evidence, offered to show that he himself lived upon the farm, and had done so for a long time, and that he was in possession when the acts complained of were committed. This evidence was objected to on the ground that it would raise a question of title, and the Justice excluded it. He rendered judgment against the defendant, which was reversed by the Common Pleas on certiorari, whereupon the plaintiffs brought error. Br the Court — Bcardslev J. On the trial of this cause o 270 Plea of Title. i the plaintiffs gave no evidence of title in themselves, nor did they attempt to prove their possession to bo rightful. They relied, as they had a right to do, on their actual possession of the land, for that is enough against any one but the right- ful owner. As the defendant had not interposed a plea or notice of title, he was precluded from all evidence drawing that in question. But as the plaintiffs sought to recover on the ground of a naked possession of the land, that was a fact which the defendant had a right to contest and disprove if he could. Evidence of this character does not draw the title to land in question, and the fact of possession is one which a Justice has an unquestionable right to try. The statement of what testimony was offered by the defendant at the trial, is not very clear, but the ground on which it was rejected suffi- ciently shows the nature of it. I understand the offer was to show that the defendant, and not the plaintiffs, was in the actual possession of the premises at the time of the alleged trespass, and that the defendant had been in possession, for a long time, and the testimony was excluded as I read the return, because it would draw the title in question. But in this the Justice was mistaken. The proposed testimony related to the fact of possession, irrespective of title, and should have been received. If the defendant was in actual possession, as he offered to show, that was of course fatal to the plaintiff's action. (See Camp- bell vs. Arnold, 1 John. 11. 511, 512; TVickham vs. Free- man, 12 Id. 183 ; Van Rensselaer vs. Radcliffe, 10 Wend. G39, Cow. Tr. 370.) The Revised Statutes declare that a Justice of the Peace shall have no cognizance of any action, where the title to land shall in any wise come in question, as hereinafter pro- vided, (2 E. S. 22G, ^ 4) and they afterwards point out the manner in which title may come in question so as to exclude the jurisdiction of the Justice. (Id. 237-8, § 59 to ^ 63.) But in my opinion, the term title as used in the statute, does not embrace the fact of possession, nor any right founded on possession alone. Undoubtedly possession is a necessary ingredient in a complete title to land, for such title has sev- I'jlea of Title. 271 eral stages or degrees, viz : 1st. Mere possession or actual occupation without pretence of right. 2d. The right of possession which one man may have, while another has the possession in fact, and 3d. The mere right of property which may exist without possession or right of possession. (2 Blackstone Com. 195 to 199.) These being united consti- tute what Blackstone calls a complete legal title. But the term title, as used in the statute under considera- tion does not embrace these different degrees or stages of right. It is limited to (he right of possession, for where that is the question before a Justice he has no jurisdiction of the case. The defendant is precluded from all evidence on that point and can only raise the question by plea or notice, in which case the action must be discontinued, and if the plaintiff's case requires such evidence on their part, it cannot be re- ceived, but the case must be dismissed. . In short, I understand the word title, as used in the statute, to mean precisely what it means in reference to the common law action of ejectment. It is synonymous with the right of possession. That is the title which is tried in the com- mon law action of ejectment, and that is the right which may be pleaded to oust the jurisdiction of a Justice. It does not embrace the idea of possession in fact, nor that of the mere right of property. The latter cannot be material in the action of trespass, nor in that of ejectment at common lav,-. It is a right to be tried only in a real action, at least it was so until the Revised Statutes extended the remedy by ejectment to such c:ises. (Adams on Ejectm. 10.) If the question of actual possession is to bo regarded as a question of title, within the meaning of the statute under consideration, let us see to what it must lead. The plaintiffs here attempted to recover on the ground of possession in fact, and they went into testimony for that purpose. If this brought the title in question, the case should have been dis- missed on their own showing, (2 It. S. 237, ^ 03,) and there- fore the judgment in their favor was erroneous. A question of mere possession, however, is not one of title. Judgment affirmed. 272 Plea of Title. Where it appears in an action before a Justice of the Peace that the title to land is in question, and that such title is disputed by the defendant, the Justice is prohibited from taking cognizance of the action, and lie is bound to dismiss it. 1 If he proceeds in the action, his proceedings are without authority, and his judgment void for want of jurisdiction. 2 An action by an assignee of the lessor against the assignee of the lessee for arrears of a perpetual rent reserved by a lease in fee, brings in question the titles to real estate, and if upon the trial the plaintiff's claim is disputed, a Justice of the Peace is ousted of jurisdiction. Where, upon a trial in a Justices' Court, a deed of real estate is offered in evidence, not to establish a title to land, but to show the performance of a condition precedent to the defendant's liability upon the instrument sued on, the justice should receive the deed the same as other evidence, and retain jurisdiction of the cause. 3 Under the former statute, the language of whose restric- tion was, " where the title to land shall in any wise come in question, ,n it was held that where either a public or private right of way was in question in the action, the suit must be dismissed, as involving a question of title. 5 If the plaintiff seeks to recover on the ground of a naked possession of land, the defendant may disprove his possession. Such evidence does not draw the title in question, and the fact of posses- sion is one which the Justice may try. 6 The defendant contracted to sell land to the plaintiff, and gave him posses- sion, reserving a right to re-enter for non-payment of the purchase money ; upon a failure to pay he re-entered, and the plaintiff brought his action for an unlawful entry. Upon these facts appearing, it was held, the right of possession given the plaintiff by the contract was a mere license, and the only question turning upon its revocation, there was no title in question, and the Justice might entertain jurisdiction of the case. 7 1 Gale vs. Hill, 43 Barb. 44. 6 f, Wend. 4G5-, 15 Id. 338; 19 Id. 2 Main vs. Cooper, 25 N. Y. 180. 373 ; G Hill, 342. 3 Nichols vs. Bain, 42 Barb. 353. « 6 Hill, 537. * 2 R. S. 226, sec. 4, sub. 2. 7 7 Barb. 7(1. Pleadings in a Suit. 273 The Justice cannot dismiss the action under section fifty- nine of the Code, merely because the plaintiff gives in evi- dence a conveyance of the land, but only where the title is disputed. The giving such evidence need not necessarily show that the title of real property is in question, as where a lease is shown in order to maintain an action to recover rent. It is only where it appears from the plaintiff's show- ing that the title is in question, that the Justice is bound to dismiss it. And though it be material for the plaintiff to show his title, yet if the defendant neither objects to the evidence, disputes its effect, nor moves for a dismissal of the cause, the title is not disputed within the meaning of the statute, and a judgment rendered for the plaintiff is valid. Under the provision of the 60th section of the Code, that the plaintiff in the action in the Supreme Court shall com- plain for the same cause of action on which he relied before the Justice, and the answer shall set up the same defence which the defendant made before the Justice, it is held that the exact form of words which were used in pleading before the Justice need not be used, and that the parties are only confined to the same substantial cause of action or defence ; and where the defendant before the Justice pleaded two distinct matters of defence, he may abandon one of them, but he cannot substitute a new one which was not pleaded before the Justice. 1 1 7 How. Pr. R. 400. CHAPTER VII. ADJOUENMENTS. /. On Motion of the Justice. At the time of the return of either a summons or attach- ment, or of joining issue without process, a Justice may, iii his discretion, and with or without the consent of parties, adjourn the cause not exceeding eight days. 1 A Justice can in no case, adjourn a cause commenced by a warrant, on his own motion ; nor can he exercise that right in a suit commenced by a summons or attachment, at any other time than on the return of the process. 2 The discretion allowed to a Justice in adjourning, in the case above stated, is not wholly an arbitraiy discretion ; it must be souudly and judiciously exercised. 3 While on the one hand he ought not to adjourn the cause on his own motion, when satisfied it will injuriously affect the rights of either party ; on the other, he should not refuse an adjournment where it is evident the situation of either party really demands it. In one case, where the defendant appeared before the Justice on the morning of the return day of the summons and applied in writing for an adjourn- ment, on account of his child being dangerously sick, which was denied by the Justice, the Supreme Court held that the situation of the defendant's child was such as ought to have induced the Justice to put off the trial. The Justice has also the right to adjourn the trial of a cause to a place different from the one mentioned in the summons, without the consent of parties, both parties hav- ing appeared at the return day. 1 Where the defendant was summoned to appear before the Justice on a certain day and at a certain place, and the 3 8 John. 426) H John. 311. i 1 Cowen R. 112 1 2 R. S. 109, sec. 67; 10 Wend. 497. 2 Id. 169, Cowen, sec. 234. G8; 2 John. 192; 1 Adjournments. 275 parlies appeared, but the Justice did not attend, and sent a written notice to the parties that he had adjourned the causo to a future day, (stating the day,) on which day he attendetl with the plaintiff, and the defendant not appearing, the cause was heard on the part of the plaintiff, and judgment rendered against the defendant, it was held that the adjourn- ment was irregular and the subsequent proceedings by the Justice were null and void. 1 It appears clear that in all cases of an adjournment, the Justice must be present in proper person and can never do this by sending a note to the parties, informing them that he has adjourned the cause to some other time. " An agreement before the Justice" that the cause shall be adjourned three days, and that then if S. do not attend as a witness, the Justice may adjourn for such reasonable time as he may deem necessary to procure his attendance, is a valid and binding agreement and cannot be revoked with- out the consent of both parties. 2 If such agreement does not provide for security to be given, the Justice may adjourn without security, this being waived by the silence of the. parties. 3 Where a cause in a Justices' Court stands adjourned to a particular day, the Justice cannot, before the day arrives, (upon information that both parties have consented) adjourn the cause to a later day. Therefore where a cause stood adjourned to the 15th day of October, and on the 10th day of that month a person went before the Justice and made oath that both parties had authorized him to appear and ad- journ the suit to some day beyond the 1st day of January then next, and the Justice accordingly adjourned it to the 9th day of January, on which clay the plaintiff only appeared and obtained judgment. Held, that the adjournment was extra judicial, and that the cause was out of Court. The Court say the oath administered to W. Sweet on the 10th of October was unauthorized, not being in Court. 4 1 West vs. Cntsinger. 4 John. R. » Id. j yj 4 Dcland vs. Eichardson, 4 Denio, 95. 2 1 Cowon, 255. 27G Adjournment on Motion of Plaintiff. II. On Motion of the Plaintiff'. At the time of the return of a summons or attachment, or the joining of issue without process, the plaintiff will be entitled to an adjournment, to a time to be fixed by the Justice, not exceeding eight days' thereafter ; if he, or his attorney shall, if required by the defendant, make oath that he cannot, for want of some material testimony or witness, safely proceed to trial. 1 A cause commenced by warrant, at the suit of a non- resident plaintiff, may be adjourned on the application of such plaintiff, supported by his oath, that on account of the absence of some material testimony or witness, he cannot then safely proceed, to trial.' 2 Ill this case, the adjournment must be to a day, not less than three, nor more than twelve days thereafter, unless the parties and Justice shall otherwise agree. 3 Upon such adjournment, the Justice must discharge the defendant from custody ; but the cause will not be discon- tinued by such discharge, and .at the adjourned day, the same proceedings must be had, as on the return of a summons personally served. 4 When an adjournment becomes necessary, in consequence of the refusal to testify, and commitment of a witness, the Justice is required to adjourn, at the request of the party, in whose favor the witness attended, from time to time, until such witness shall testify, or be dead, or insane. 5 Whenever a short summons is issued in favor of a non- resident plaintiff, no longer adjournment shall be allowed than in case of a warrant, at the instance of a non-resident plaintiff, unless the parties otherwise agree. 6 When a commission shall be applied for and granted, on the part of the plaintiff, pursuant to the provisions of an act entitled, " An act to amend articles 8 and 13, title 4, chap. 2, part 3 of the Revised Statutes, relating to Courts held by Justices of the Peace," passed April 18, 1838, the plaintiff 1 2 R. S. 169. sec. C9. * Id. sec. 72. 2 Id. sec. 70, sub. 3. & Id. 200, sees. 279, 280. 8 Id. sec. 73. 8 Sess. Laws 1831, p. 402, sec. 32. Adjournments. 277 shall bo allowed the same time and privileges of adjourn ment to which the defendant is now entitled by law. 1 The same rule governs cases of adjournments when the defendant is a non-resident, and is sued with a short sum- mons, as in cases of non-resident plaintiffs. Although a Justice may adjourn a cause where the defend- ant does not appear and there is no issue joined, he cannot hold the cause open for any number of days from the return of the summons ; and where a cause was held open for four days and then tried, the defendant not appearing, held erro- neous. The Court say, on an adjournment to a day certain, the defendant would know when to appear, but if the cause can be kept open for an indefinite period, the defendant coidd only be sure of being present at the right time, by taking up his quarters with the Justice until a new move- ment should be made. 3 An adjournment of a cause in a Justices' Court cannot bo claimed as matter of right after a jury has been impannelcd. 3 III. On Motion of Defendant. In a case commenced by warrant, at the suit of a non- resident plaintiff, an adjournment may be allowed upon the application of the defendant, supported by his oath that he has a good defence to the action, and is not ready to proceed to trial. And in such case it shall not be granted, unless the defendant will consent that any witness on the part of the plaintiff, who shall be then attending, may be then examined on oath by such Justice, his testimony reduced to writing, certified by the Justice, and left with him to be read on the trial of the cause. 1 On an application by a party for an adjournment in a Jus- tices' Court, the Justice has the right to allow the opposite party to introduce evidence showing that the application is not made in good faith and is groundless. An appellate Court will not interfere with the discretion of a Justice of 1 Sess. Laws 1811, p. 112, sec. 1. 3 7 Hill, 77. 2 4 Demo, 160, and cases cited. * 2 R. S. 1G9, sec. 70, sub. 2. 278 Adjournments. the Peace in determining a question of adjournment, except in a clear case of an abuse of discretion. 1 During the time of the adjournment, the defendant must remain in the custody of the constable, unless he shall give security by bond, as follows :• Form of Bond for Adjournment in Actions Arising from Tort. Know all Men by these Presents, That we, are held and firmly bound unto , in the penal sum of two hundred dollars — to bo paid to the said or to certain attorney, executors, administrators, or assigns ;. to which payment, well and truly to be made, we bind ourselves, our heirs, ex- ecutors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of 187 . The condition of this obligation is such, that whereas, a suit is now pending before , one of the Justices of the Peace of , in the county of wherein the said , plaintiff, and the said .defendant, for ; and now upon the appearance of said parties before the said Justice, in said suit, the said defendant makes application to the said Justice for an adjournment of said cause, which is granted until the day of at o'clock in the noon, at the office of said Justice in aforesaid. And this bond is executed as the security re- quired for such adjournment, in pursuance of the statute, Ac. Now, therefore, if judgment shall bo given against tlit said , at the said adjourned day, or at any time thereafter, and execution be issued against person,- and shall render upon such execution, before the return thereof; or, in default thereof, if cither the said or the said , surety, shall pay the judgment so re- covered, with interest ; then this obligation is to be void — otherwise of force. 1 Weed vs. Lee, 50 B:ub. 304. 2 Id. sec. 71. Adjournments. 279 Sealed and delivered in the presence of, \ \u. S .J and the surety approved by \ [t. S M Justice. When a suit is commenced either by summons or attach- ment, or by joining issue without process, in all cases arising upon contract, the defendant will be entitled to an adjoun° ment, upon complying with the following requisitions : l 1. The application must be made at the time of ioinin«- ssue. 2. If required by the plaintiff, or the Justice, he must make oath that he cannot safely proceed to trial, for the want of some material testimony or witness, to be specified by him. This oath need not necessarily be made by the defendant in person, for lie may not be acquainted with the facts required to be shown, in order to entitle him to an adjourn- ment. And it is said in one case, that the defendant's agent or attorney may make the requisite oath, unless some special cause be shown against it. 3 But in a subsequent case it is decided that this rests in the sound discretion of the Justice ; and that unless it appear that the defendant cannot attend, the oath of an attorney or third person may be refused. 3 It is hardly to be supposed that the inability of the defendant to attend must, in all cases be shown, to authorize a Justice to grant an adjournment upon the oath of a third person. Cases frequently arise in which a defendant is totally igno- rant of the facts which go to establish his defence; for instance, where the suit is against him, as principal, for some act of his agent committed in his absence and without his knowledge. And this right of the Justice to adjourn, should, in most cases, be liberally exercised ; and he would hardly be considered as abusing the discretion vested in him, should he grant an adjournment upon the oath of an attor- ney, to whom the defendant had intrusted the management of his cause, and to whom also he had communicated the facts going to make out his defence, with the names of the 1 2 R. S. 170, sec. 74. 3 1? Id. 228 2 1 John. 514. 280 Adjournments. witnesses ; and this, although the defendant might be able to attend in person. An adjournment, after joining issue, is so much a matter of course in litigated causes, that a strict compliance with the letter of the statute in this respect should not, except in extraordinary cases, be exacted. The parties, in nine cases out of ten, make no preparation for trial until after issue joined ; for until that time, neither of them can legally know what will be the claim or defence of his antagonist ; and hence, the statute docs not require that either party, in order to obtain an adjournment, in the first instance, should show that he has used any effort to procure his witnesses. 1 The absent testimony or witness must be specified by the defendant, if he is required to do so by the plaintiff or Jus- tice. He is not bound to detail all the testimony or the names of all the witnesses ; it is sufficient to give the namo of one absent material witness, without whose testimony he cannot safely proceed to trial. By doing this, he makes out a case for an adjournment, and that is all that can be required of him. Any other rule would impose a great hardship upon the defendant. If he refuses to name his witness, or to state where he resides, the adjournment may be denied. 2 3. If required by the plaintiff, he shall give security, as hereinafter directed. Such adjournment shall bo for such reasonable time as will enable the defendant to procure his testimony, or witness, not exceeding ninety days. Form of Bond for Adjournment in Cases Arising vjion Contract. Know all Men by these Pkesents, That wo arc held and firmly bound to in the penal sum of two hundred dollars, to be paid to the said obligee, his rep- resentatives and assigns, to the which payment well and truly to be made, we bind ourselves, our heirs and personal representatives. Sealed with our seals, and daled this day of , 187 . 1 9 John. 204. 2 3 Hill, 323. Adjouknmexts. 281 Whereas, the said hath commenced an action against the said before , Esq., a Justice of the Peace of the county of , for the recovery of a demand of two hundred dollars or less, as alleged by him, in which action the said de- fendant has desired an adjournment of the said cause : Now, therefore, the condition of this obligation is such, that if no part of the property of the said defendant, liable to be taken on execution, shall be removed, secreted, as- signed, or in any way disposed of, (except for the necessary support of himself and family,) until the said demand of the said plaintiff shall be satisfied, or until the expiration of ten days after the said plaintiff' shall be entitled to have an execution issued on the judgment in the said cause, then this obligation to be void and of no effect ; otherwise to remain in full force and virtue. Sealed and delivered in the presence of [l. s.] [L. S.j Pleading on Adjourned Day. ]t sometimes happens the defendant neglects to appear and plead on the return day of the process, and afterwards appears and asks to plead on the adjourned day. It appears by the authorities cited, that it is left to the sound discretion of the Justice whether he will allow him (hen to answer ; jet, as a general thing it would be more safe to allow the defendant to answer upon such terms as ho shall deem proper, which usually would be about the samo as upon allowing amendments, when he can discover good faith on his part and merits in his application, than to shut him out of making his defence, and thus do him an essential injury. Some excuse, however, should be shown for his neglect to appear on the return day. Though a Justice has a right to permit a defendant who has omitted to appear on the return day of the summons, to plead on a day to which the cause has been adjourned, upon a proper excuse for the default being shown ; still it being a matter of discretion, error will not lie where the application has been refused, though the County Court should 282 Adjournments. be of opinion that the application ought to have been granted. 1 Second Adjournment. In all cases a defendant shall also be entitled to a further adjournment, upon giving security, if required, as is directed in the next succeeding section, and upon proving, by his own oath or otherwise, to the satisfaction of the Justice, that he cannot safely proceed to trial for want of some ma- terial testimony or witness, and that ho has used duo dili- gence to obtain such testimony or witness. 2 But if any bond shall have been given upon a prior adjournment, it shall not be necessary to execute a new bond upon a subsequent adjournment, unless such bondbe required by the Justice, or by the bail of such defendant in such prior bond. 3 No adjournment shall be allowed, without the agreement of the parties, to a time beyond ninety days from the join- ing of issue in the suit. 4 The Justice must be satisfied with the proof, and therefore while he should be cautious not to compel the defendant to go to trial until he has had a fair opportunity for prepara- tion, he should reject an application, where he is satisfied from the f.icts disclosed, the defendant has not used ordinary diligence to procure his witnesses, or that his object is delay. It is not enough, on this application for a further adjourn- ment, that the defendant's testimony or witness is absent. He must also prove that he has used clue diligence to obtain ihe absent testimony or witness, and has been unable to do so. And even though ihe first adjournment was granted on the application of the plaintiff, or on the Justices' own mo- tion, still, unless the defendant shows clue diligence, the Justice may refuse a second adjournment on his application. 5 The reasoning of the Court in Powers vs. Lockwood, 6 seems to apply as well to the case of an adjournment at the plain- 1 4Dcnio, 57G;12Wend.i]50; 21 Id. 3 Id. sec. 70. 454. 4 Id. sec. 78. 2 2 R. S. 170, sec. 75. 5 9 John. 361 6 id, 133 Adjournments. 283 tifl"'s as the defendant's request, though that was a case where the defendant had applied for the first adjournment. " There must," says the Court, " ho some reasonable limitation to the time of the application, and of which the Court is to judge. After one adjournment, at the request of the defend- ant, to enable him to prepare for trial, it would be vexatious to allow him another on the usual affidavit, and without showing any diligence in the meantime. The first adjourn- ment applied for by the defendant; was for time to prepare for trial, and was a substitute for an adjournment on affida- vit and security. Both the witnesses, whose names were given by the defendant, lived within four miles of the Court. The defendant is always entitled, as of right, to one adjourn- ment, to procure testimony on making the requisite oath ; but if he neglect to take out subpoenas, or make any effort to procure his witnesses after issue joined, and after an ad- journment on his own motion, he ought not, in reason and justice, to be entitled to a farther adjournment, without sonic special cause shown for the non-attendance of his witnesses, or for the adjournment. On the adjourned day after issue joined, the plaintiff is supposed to appear with his proof, and the jury to appear on the ventre, and it would be an abuse for a defendant to be entitled, as of course, to another adjournment to procure his testimony, without having taken any one step towards it in the meantime, or shown any one reason why he has omitted to do it. The statute could not have intended to help a party in his wilful negligence." On the other hand, where the defendant shows that he has sub- poenaed a material witness, who does not attend, and that without such testimony he cannot safely proceed to trial, or any other reasonable excuse for not being ready, the Justice is bound to grant the adjournment, and if refused, it is an error for which the judgment will be reversed. 1 The Supreme Court have recently decided, that when a defendant's conduct, on applying for a second adjournment before a Justice, is such as to cast suspicion upon the bona fides of the application, and ho refuses to state cither on oath 1 11 John. 41?; 9 1(1. 3G4 ; 13 Id. 4G2. 284 Adjoubnments. or otherwise, what he expects to prove by his absent witnesses, the Justice may refuse the adjournment. 1 Justices have a discretion to exercise, in granting and refusing adjournments, and nothing short of a clear abuse of that discretion will be regarded as ground for interfering on certiorari. 2 On application for a second adjournment, the defendant should show that he expects to procure the witness on the adjourned day. 3 An adjournment may always be granted, without restric- tions as to time, by the agreement of the parties ; and in such case, if the suit bo commenced by warrant, the defend- ant must be discharged from custody. 4 An agreement between the parties to adjourn a given time, and that then, if a certain witness do not attend, tho Justice may adjourn a reasonable time to procure the attend- ance of a witness, is a binding agreement, which neither of the parties can revoke without the consent of the other. 5 If such an agreement does not provide that security shall be given, the Justice may adjourn without security, this being waived by the silence of the parties. 6 The Justice should, in all these cases, make a minute of the agreement in his minutes of the cause. In Smith vs. Fcnton, (2 Cowen's Eep. 425,) on certiorari to a Justices' Court, it appeared that Fenton sued Smith in the court below, and after issue joined, the cause was twice adjourned by consent. The second adjournment was under a stipulation of the defendant, that ho would not delay the trial further, but would absolutely come to trial on the 17th January, 1823, the last adjourned clay. On that day the parties appeared, and the defendant requested a further ad- journment, offered security, and to make oath of the abseme of two material witnesses who had been subpoenaed by him, but had not attended ; that without their testimony he could not proceed to trial, as he was advised by counsel ; that one of them had gone a journey ; and that he expected to pro- 1 3 Hill, 323, Nelson Oh. 3. *2E. S. 170, sec. 72. 2 3 Hill, 323, Nelson Ch. J. ' 1 Cow. K. 265. S Id o Id. Adjournments. 285 cure their attendance in two or three weeks. The Justice denied the adjournment. Judgment for the plaintiff before the Justice. By the Court.— The spirit of the $25 act, and the adju- dications of this Court upon it, appear to be, that the Justice has a discretion in granting adjournments after the first. One adjournment the defendant may claim as a matter of right, on giving security and making oath of the absence of a material witness. Others he may be entitled to on showing sufficient cause ; provided the three months have not expired. In this case the first two adjournments were by consent ; and though the defendant may have been guilty of a violation of good faith, yet he offered to comply with the requisitions of the act. There had been no laches on his part ; for he had subpoenaed his witnesses, and they did not attend. We think the Justice ought to have granted the adjournment, though he seems to have acted under the impression that the defendant's object was delay and vexa- tion. Judgment reversed. (See also 9 Johns. Rep. 133, 364 ; 11 Johns. Rep. 442 ; 12 Johns. Rep. 418 ; 13 Johns. Rep. 4G2 ; 15 Johns. Rep. 432.) Where a cause before a Justice of the Peace is held open to a particular hour on a subsequent day, the Justice should, in analogy. to the time given on adjournments, wait an hour after the time specified for the parties to appear. And it is etroneous for him to call the cause in the absence of one of the parties, and proceed to the hearing thereof, before the expiration of that time. 1 Adjournments may also be made, from necessity, in cer- tain cases not provided for in the above sections. As when an attachment is issued against a witness pursuant to section 83, or a new venire is issued pursuant to sections 102 and 111, the Justice may, without doubt, adjourn the cause to such time as will be reasonable for the return of the venire or attachment ; or he may continue the cause open until the attachment or venire is returnable, even until the next day. A Justice may continue his court from one day to the next, 1 Clark vs. Garrison. 3 Barbour, 372, Hand, J.; 20 John. 309. 286 Adjournments. when the exigencies of the case require it. (2 Caines' Eep. 137, Day vs. Wilber.) And the above arc cases in which it may be proper so to continue it. A provision is also con- tained in section 281 of the Justices' Act for adjourning a cause where a material witness refuses to testify, writing, which examination is hereto annexed, signed by him, and returned as required by said commission. Dated September 1, 18 . Amos Coe, Commissioner. Justices of the Peace who conduct the proceedings in relation to the issuing and return of commissions under these statutes, should be very careful and see that they comply strictly with the statutes, or the depositions cannot be read in evidence. A Justice of the Peace, on issuing a commission to exam- ine a witness, must direct the manner in which it shall be returned; and if he omit to do so, the depositions cannot be read in evideuce. Statutes which innovate upon the common law rules of evidence, must be strictly pursued. In the case of Smith vs. Randall, (3 Hill E. 495,) Justice Bronson, in delivering the opinion of the Court, says: "The act of 1838 gives the Justice authority to issue a commis- sion to one or more competent persons, to take and certify the depositions of witnesses, and to return the same, accord- ing to the direction given with such commission." (Statute, 1838.) The commission shall be executed and returned as is prescribed by statute where a commission issues out of a Court of Record, and the deposition and testimony taken in pursuance thereof shall be received on the trial. (§ 4.) The interrogatories are to be settled by the Justice, and certified by his approbation endorsed thereon. (§ 2.) The authority to issue the commission is substantially the same as that which is given to Courts of Record. (2 R. S. 393, § 11.) When a commission issues out of a Court of Record, the officer who settles the interrogatories directs upon the com- mission, the manner iu which it shall be returned, which may be by an agent, or through the post office, and the com- missioner must return it in such manner as shall have been s 306 Proceedings after Issue Joined. directed on the commission. (§ 15, 1G.) In this case the Justice settled the interrogatories, but he gave no direction as to the mode of returning the commission. This is a fatal objection. Statutes which innovate upon the common law rules of evidence, must be strictly pursued. The mode of returning the commission is highly important for the pur- pose of guarding against frauds, and no substantial require- ment of the statute can be dispensed with. The case of Jackson vs. Hobby, (20 John. 357,) is decisive upon this point. In Williams vs. Eldridge, (1 Hill, 249,) the inter- rogatories were not settled by a Judge, and the manner of returning the commission was agreed upon by stipulation of the parties. In the case of Fleming vs. Hollenback, (7 Barbour Eep. 271,) Justice Mason, who delivered the opinion of the Court at page 274, says : There is -however another perfect answer to this branch of the case. The defendant's counsel ob- jected to the admission of these depositions, for the reason that the statute had not been complied with in their execu- tion, aud I am satisfied that this objection was well taken, and that these depositions should have been excluded. The statute requires that the commissioners shall annex all the depositions aud exhibits to the commission upon which their return shall be indorsed. (2 E. S. 394, § 24, sub. 4.) This the commissioners have not done in this case. Statutes which innovate upon the common law rules of evi- dence, must be strictly complied with. (Jackson vs. Hobby, 2 John. 357 ; Chappel vs. Brockway, 21 Wend. 157 ; Smith vs. Eandall, 3 Hill E. 495.) The mode of executing a com- mission is highly important, and all the safeguards against imposition and fraud which the Legislature has imposed, must be substantially complied with. It is not the province of the courts to disregard them, or dispense with them and substitute others in their stead. This doctrine is well en- forced and defended in the cases above cited, and was affirm- ed in its broadest sense, in this court, in the recent case of Atherton vs. Thomas, in MS., which was a case where the rule allowing the commission to issue, contained a command that the same be returned by mail, addressed to John B. 1'koceedings after Issue Joined. 807 Moore, Clerk of the county of Broome, Binghampton, N. Y., and a copy of this rule was annexed to the commission and returned with it. The commission was otherwise, in all respects, properly executed and returned, and it was ad- judged by this court, that the commission and deposition were properly excluded for the reason that the twenty-third section of the statute, (2 E. S. 394,) requires the officer set- tling the interrogatories to direct the manner in which the commission shall be returned, and adopting the rule that statutes which innovate upon the common law rules of evi- dence, must be strictly complied with, we held that the court could not waive this want of compliance with the statute, although we might be of opinion that the substitute was equally well calculated to guard against fraud. Apply- ing this principle to the case uuder consideration, I do not hesitate to say that this commission should have been excluded. The statute requires the commissioners to indorse upon the commission their return. Is it a substantial compliance with the statute for them to make their return upon a distinct and independent paper, and then annex it to the commission or depositions ? I do not hesitate to say, it is not, and that the sanctioning of such a practice in making the return, would be but ill calculated to guard against fraud and im- position in the execution of the commission. The fact that such return may be attached or detached from the commis- sion, if made upon a separate and independent piece of paper, is a sufficient reason for not allowing these returns to be made in that way, were there no statute providing for the case. It is sufficient, however, for our purpose that the Legis- lature, for wise reasons, have required the return to be in- dorsed upon the commission, and that the courts, therefore, < have no right to depart from the requirements of the statute. For the reasons already stated, it is unnccessaiy to consider the other objections taken to this commission. The com- mission not having been properly executed, the depositions should have been excluded. Parties should be exceedingly careful in the issuing of commissions, that they comply strictly with the require- 308 Proceedings afteb Issue Joined. merits of the statute, as it appears by the authorities cited above, tbat the courts are very careful to observe the statu- tory provisions laid down for our guide. It appears by the subsequent sections of the Revised Stat- utes, that after the commission is returned to the clerk of the court, he is to open it and file it in his oflice, and in analogy to that provision of the statute, it is the duty of 4he Justice upon receiving the commission back from the commissioner, to open the same and file it in his oflice for the benefit of the parties thereto. 1 A motion at the trial to suppress the whole deposition on the ground that some of the interrogatories and parts of the deposition are improper, should be denied. If any part of the deposition is competent, the objection should be con- fined to that which is not so. When pertinent evidence is given in answer to the general interrogatory, to which the attention of the opposite party was not called by the others, if he desire to cross-examine the witness as to such evidence he should apply to the court for relief before the trial. It is not ground for suppressing the whole deposition on the trial. If any part of the evidence so givau is incompetent or impertinent, such part may be excluded. Witnesses may be examined on commission as to an original paper by an- nexing a copy to the interrogatories for the purpose of reference, description and identification, and producing the original on the examination of the witness. It is not indis- pensable that the original be annexed to the interrogatories. 2 Where depositions taken under a commission are offered in evidence, and to be read on the trial of a cause, and the other party objects to them on the ground that the interrog- atories are leading, the question whether the interrogatories and the answers thereto are admissible, is one addressed to the discretion of the Court, and the same rule is to be ap- plied to the case, which prevails where a witness is on the rtand in court undergoing a personal examination at the trial. i 2 B. S. 316, J§ 25, 20, 27 and 28. 2 1 Kornan R. 203, per Allen J.j 19 Bavb. S92. Proceedings after Issue Joined. 309 The decision of the Court in "Williams vs.'JEldridge, (1 Hill E. 249,) upon this question disapproved of such ques- tions are of necessity left very much to the discretion of the Judge at the trial, and unless it appears that he has abused the discretion, so that injustice has been done, his decision will not be disturbod. 1 1 12 Barb. 521. 309a Compelling the Attendance of a "Witness. Compelling the Attendance of a Witness. § 2969. A justice of the peace may issue a subpoena, to compel a witness to attend, in the county where the jus- tice resides, or in an adjoining county, but not otherwise, for the purpose of testifying upon the trial of an action, pending before himself, or before another justice. The subpoena may require the witness, except as otherwise ex- pressly prescribed by law, to bring with him any book or paper, relating to the merits of the action. But a justice shall not issue a subpoena to compel the attendance of a witness before another justice, unless the person applying therefor proves, by his own oath, or the oath of another person, that an action is actually pending before the other justice. § 2970. A subpoena may be served by a constable, or by any other person. It must be served by reading it, or stating its contents, to the witness, and by paying or ten- dering to him his lawful fee for one day's attendance as a witness. Where it is served by a constable, his return thereto, stating the manner of service and the sum paid, is presumptive evidence of the facts therein stated. § 2971. Where it is made to appear, to the satisfaction of the justice, by affidavit or other proof, that a person, duly subpoenaed to attend before him in an action, has refused or neglected to attend as a witness in obedience to the subpoena; and no just cause for the neglect or re- fusal is shown to exist ; and the party, in whose behalt the witness was subpoenaed, or his attorney, makes oath that the testimony of the witness is material; the justice must issue a warrant of attachment, directed generally to any constable of the county, for the purpose of compelling the attendance of the witness. COMPfiliUNG THE ATTENDANCE OP A "WITNESS. 309b § 2972. Such a warrant of attachment must be executed in the same manner as an order of arrest. The fees of the justice and constable for issuing and serving it, must be paid by the person against whom it is issued, unless he shows a reasonable excuse, to the satisfaction of the jus- tice, for his omission to attend ; in which case, the party procuring the warrant must pay them, and, if he recovers costs* the amount thereof must be allowed to him as a part of his costs. § 2973. Where the delinquent witness is within an ad- joining county, the constable, to whom the warrant of at- tachment is directed, may arrest the witness in that county and bring him before the justice. The constable, while he is within the adjoining county for that purpose, has all the powers of a constable of that county, with respect to the warrant so issued to him. § 2974. A person, duly subpoenaed as a witness, who, without a reasonable excuse, proved by his oath or the oath of another person, fails to attend ; or, attending, re- fuses to testify ; must be fined, by the justice before whom the action is pending, for each non-attendance or refusal, such a sum, not less than one dollar nor more than ten dollars, as the justice thinks it reasonable to impose upon him, as a fine therefor. § 2975. The fine may be summarily imposed by the jus- tice, upon the application of the party in whose behalf the witness was subpoenaed, at any time during the trial, when the defaulting witness is present, and has an opportunity to be heard. If it is not imposed during the trial, the justice, at any time within five days after judgment is rendered, must, upon the application of the party, issue a warrant, directed generally to any constable of the county, 809c Compelling the Attendance of a Witness. commanding him to arrest the defaulting witness, and to bring him before the justice, at a time and place therein specified, the time to be not more than twelve days after issuing the warrant, to show cause why a fine should not be imposed upon him. § 2976. The justice imposing the fine must enter in his docket-book a minute of the conviction, of the cause thereof, of the amount of the fine, and of the costs. The minute is deemed a judgment against the delinquent, in favor of the officer to whom fines are directed to be paid, by section 2875 of this act. § 2977. If the whole amount of the fine and costs is not forthwith paid to the justice, he must issue an execution, directed generally to any constable of the county, com- manding the constable to collect the sum remaining un- paid, of the goods and chattels of the delinquent, within the county, and, for want thereof, to take him, and convey him to the jail of the county, there to remain until he pays that sum, not exceeding thirty days. Upon the delinquent being committed to jail, the keeper thereof must keep him in close custody therein, until he is entitled to a discharge, as specified in the execution. § 2978. The money collected by virtue of the execution must be forthwith paid by the constable to the justice. The justice must, within ten days after he receives a fine, or any part thereof, from the constable or the delinquent, pay the money to the ofiicer, to whom the fines are directed to be paid, by section 2875 of this act, for the use of the poor. § 2979. A person, subpoenaed as prescribed in this arti* Commission to take Testimony. 80 9d cle, who neglects or refuses to obey the subpoena, or to testify, is also liable to the party, in whose behalf he was subpoenaed, for all damages which the party sustains by reason of his neglect or refusal. Commission to Take Testimony. § 2980. Where the defendant has neglected to appear upon the return of a summons, or has failed to answer the complaint, or where an issue of fact has been joined in an action ; and it appears, by affidavit, upon the application of either party, that a witness, not within the county where the action is pending, or an adjoining county, is material in the prosecution or defense of the action, the justice may award a commission to one or morecompetent persons, authorizing them, or either of them, to examine the witness under oath, upon interrogatories to be settled by the justice, or by the written agreement of the parties, and indorsed upon or annexed to the commission ; to take and certify the deposition of the witness ; and to return the same by mail, addressed to the justice. § 2981. If both parties expressly consent, a commission granted as prescribed in this article may issue without wiitten interrogatories, and the deposition may be taken upon oral questions. In that case, section 900 of this act applies to the execution of the commission ; and a copy of that section must be annexed thereto. Notice of the time or place of the examination of a witness, by virtue thereof, need not be given. § 2982. The commission may be granted by the justice without notice, upon the application of the plaintiff, made at the return of the summons, or upon the application of either party, made at the time of the joinder of issue. It may also be granted at any time after the joinder of issue, S09e Commission to take Testimony. upon the application of either party, accompanied with proof, by affidavit, that six days' written notice of the ap- plication has been served upon the adverse party, either personally or by service upon the attorney, who appeared for him before the justice. § 2983. Where a commission is granted upon the appli- cation of the plaintiff, he is entitled to one or more ad- journments of the trial, as may be necessary to procure the commission to be executed and returned ; not exceed- ing the length of time for which the trial might be ad- journed upon the application of the defendant. § 2984. The commission must be executed and returned, as prescribed in section 901 of this act ; and a copy of that section must be anuexed thereto, except that subdivi- sion sixth thereof may be omitted. § 2985. The justice, to whom the package containing the commission is transmitted by mail, must receive it from the post-office, and open it and file it, indorsing thereupon the date of his so doing. It must remain on file with him, until the trial ; but either party is entitled to inspect it on file. § 2986. Sections 902 and 903 of this act apply to a com- mission, issued as prescribed in this article ; and to the execution thereof. A deposition taken thereunder may be read in evidence upon the trial by either party, and has the effect specified in section 911 of this act § 2987. Where the commission is executed within the the State, the commissioner, or, if there are two or more, a majority of them, have the same power to issue a sub- poena, to swear a witness, and to compel his attendance that a justice of the peace has, in an action pending be- fore him. TIBIAL AND ITS INCIDENTS. 309f Trial and Us Incidents. § 2988. Where the defendant makes default in appear- ing or pleading, upon the return of a summons, which has been duly served as prescribed in this chapter, the justice must hear the allegations and proofs of the plaintiff, and render judgment according to law and equity, as the very right of the case appears. § 2989. Where an issue of fact has been joined, if neither party demands a trial by jury, the justice must try the issue, hear the allegations and proofs of the parties, and render judgment as prescribed in the last section. § 2990. After an issue of fact has been joiued, and at any time before the justice proceeds to an investigation of the merits of the action, by swearing a witness, or receiv- ing evidence, either party, or his attorney, may demand a trial by jury. § 2991. Where a trial by jury is duly demanded, the justice musti8sue a venire, directed generally to any con- stable of the county wherein the action is to be tried, commanding him to notify twelve men of the town or city where the justice resides, qualified to serve, and not ex- empt from serving, as trial jurors in courts of record ; not of kin to the plaintiff or defendant; and not interested in the action ; to attend before the justice, at a time and place specified therein, to form a jury for the trial of the action. But if the parties agree upon a number of jurors, less than six, to try the action, the venire must direct the constable to notify twice the number so agreed upon. § 2992. Where the action is between two towns or cities, or between a town and a city, the venire must direct the constable to notify twelve men of the county, who are qualified and not exempt, as prescribed in the last section, and who are not interested in the matter at issue, to form a jury for the trial of the action. 309g Tbial and its Incidents. § 2993. The justice must deliver the venire, or cause it to be delivered, to a constable of the county, disinterested between the parties, who has not acted, or been employed to act, as the attorney or agent of either party, with re- spect to any claim or matter in controversy in the action, and to whom neither party offers any other reasonable ob- jection. The constable shall not notify any person, whom he has reason to believe to be biassed or prejudiced, in favor of or against either party; and he must, in all other respects, execute the venire fairly and impartially. He must notify the jurors personally, and indorse upon or annex to the venire, and deliver to the justice, a return under his hand, containing a list of the persons notified. § 2994. For the purpose of procuring a jury to try the action, the justice mast prepare, or cause to be prepared, ballots, uniform, as nearly as may be, in appearance, by writing the name of each person returned, who attends, upon a separate piece of paper, The constable, in the presence of the justice, must roll up or fold each ballot in the same manner, as nearly as may be, so as to resemble the others, and so that the name is not visible. The bal- lots must be deposited in a box, or other convenient re- ceptacle. § 2995. The justice must then openly draw out, one after another, six of the ballots, or such smaller number thereof as the parties have agreed upon. If a person, whose name is drawn, is challenged and set aside, or is ex- cused, another ballot must be drawn ; and so on, succes- sively, until the required number of persons is obtained. Those persons constitute the jury to try the action. § 2996. If a sufficient number of competent jurors is not drawn, the justice may, in his discretion, either issue a new venire, or direct the constable to require the attend- ance of such a number of talesmen from the bystanders, Trial and its Incidents. 309h or others, duly qualified, and against whom no cause of challenge appears, as the justice deems sufficient for the purpose. § 2997. If the constable, to whom the venire is deliv- ered, does not return it as required thereby ; or if a full jury is not obtained in the manner prescribed in the fore- going sections of this title, the justice mu^ issue a new venire. § 2998. The justice must administer an oath or affirm- ation to each juror, well and truly to try the matter in difference between , plaintiff', and , defendant, and, unless discharged by the justice, a true verdict to give, according to the evidence. § 2999. After the jurors have been duly sworn, they must sit together, and hear the allegations and proofs of the parties, which must be made publicly, in their pres- ence. § 3000. A person offered as a witness, must, before any testimony is given by him, be duly sworn or affirmed, to the effect that the evidence which he shall give, relating to the matter in difference between , plaintiff, and , defendant, shall be the truth, the whole truth, and nothing but the truth. § 3001. Where a witness, attending before a justice in an action, refuses to be sworn or affirmed in the form pre- scribed by law; or to answer a pertinent and proper ques- tion ; or neglects or refuses to produce a book or paper which he has been duly subpoenaed to produce, as pre- scribed in section 2969 of this act, or duly required to produce by an order, made as prescribed in section 867 of this act; and the party, at whose instance he attended, makes oath that the testimony of the witness, or that the book or paper, is so far material, that without it he cannot safely proceed with the trial of the action, the justice may, 309i Tblax and its Incidents. by warrant, commit the witness to the jailof the county. § 3002. The warrant must specify the cause for which it is issued. If it is issued for refusing to answer a ques- tion, the question must be specified therein; if for neg- lecting or refusing to produce a book or paper, the same must be described with convenient certainty. The recus- ant witness must be closely confined, by virtue of the warrant, until he submits to be sworn of affirmed, or to produce the book or paper required, as the case may be ; or is otherwise discharged according to law. § 3003. The justice must thereupon, from time to time, at the request of the party in whose behalf the witness at- tended, adjourn the trial, until the witness testifies, or produces the book or paper required, or dies, or becomes a lunatic, or is discharged according to law. § 3004. An ex parte affidavit shall not be received in evidence upon a trial, without the consent of both parties, except in a case where it is specially allowed by law. § 3005. An objection to the competency of a witness must be tried and determined by the justice. Where the ground of the objection depends upon a matter of fact, evidence may be given thereupon, as upon any other question of fact ; except that, if the witness is examined thereupon by the party objecting, no other testimony shall be received from either party as to his competency. § 3006. After hearing the allegations and proofs, the jury must be kept together in a private and convenient place, under the charge of a coustable, until they all agree upon their verdict; and, for that purpose, the justice shall administer to the constable the following oath: "You swear in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors upon this trial together, in a private and convenient place, Tbial and its Incidents. 300j without any meat or drink, except such as shall be ordered by me; that you will not suffer any communication to be made to them, orally or otherwise; that you will not communicate with them yourself, orally or otherwise, un- less by my order, or to ask them whether they have agreed upon their verdict, until they are discharged; and that you will not, before they render their verdict, com- municate to any person the state of their deliberations, or the verdict they have agreed upon." § 3007. When the jurors have agreed upon their verdict they must publicly deliver it to the justice, who must enter it in his docket-book. It is not necessary to call the plain- tiff before receiving the verdict; and the plaintiff cannot submit to a nonsuit or withdraw the action, after the cause has been committed to the jury. § 3008. Where the justice is satisfied that the jurors cannot agree upon a verdict, after having been out a rea- sonable time, he may discharge them, and issue a new venire, returnable within forty-eight hours; unless the parties consent, and their consent is entered in the justice's docket-book, that the justice may render judgment upon the evidence already before bim ; which he may do, in that case. § 3009. A person duly notified to attend as a juror, who fails to attend, or, attending, refuses to serve, without a reasonable excuse, proved by his oath, or the oath of an- other person, is liable to the same fine, to be imposed and collected, with costs, in like manner, and applied to the same use, as is prescribed in article second of title fourth of this chapter, with respect to a person subpoenaed as a witness, and not attending, or attending and refusing to testify. CHAPTER IX. Of the Trial and its Incidents. Whenever issue shall have been joined in a suit before a Justice, if no jury shall have been demanded by either party, the Justice shall proceed to try such issue, to hear the proofs and allegations of the parties, and to determine the same according to law and equity, as the very right of the case may appear. 1 In doing this, the Justice ought to keep in mind, that he is acting in a two fold capacity — as a Judge directing and controlling the proceedings, according to the estab- lished rules of law; and as a juror trying the facts. The first thing which it is the duty of the Justice to turn his mind to, and in doing which he will find advantage, is the issue between the litigant parties ; that is, what they have affirmed on one side, and denied on the other. Persons unaccustomed to legal investigation, are very apt to drag into their altercations, on trial, abundance of extraneous irrelevant matter. To keep them to the true points, requires an attentive distinguishing mind ; great convenience will result from observing rules and pursuing a correct system. This cannot be attained without very considerable attention to the doctrine of pleadings and evidence. There is no such thing as a judgment by default in a Justices' Court, and it is therefore provided by statute, that whenever a defendant who has been personally served with a summons, or who shall have procured an adjournment without having joined issue, shall neglect to appear and join issue, the Justice shall proceed to hear the proofs and alle- gations of the plantiff, and determine the same in the same manner as though au issue were joined. 2 The defendant's omission to appear and plead, is not considered as an admission of fheplantiff's demand, but he must establish it i 2 R. 8. 242, § 91 ; 4th ed. p. 441.] * Id. § 92. Of the Trial and its Incidents. 311 by testimony, in the same manner as though an issue had Leon joined. 1 And so, though the defendant appear and refuse to plead ; for such refusal would not amount to an admission of the plaintiff's demand. In an action against several defendants for a tort, Avhcn the trial is before the Justice without a jury, he may, when the plaintiff has closed his proof, discharge -any of the de- fendants against whom no evidence has been given. The judgment, however, in such a case should not be entered until the final disposition of the cause. 2 A cause cannot, without consent of parties, be tried at a place different from the one appointed by the Justice for the trial thereof; and where the trial was at a place different from the one mentioned in the summons, the judgment was reversed. 3 The Justice should be careful not to mislead the party as to any fact material to influence his conduct in preparing for trial ; for where a Justice stated to the defendant that the cause was discontinued, and yet proceeded to trial and gave judgment, it was reversed for that reason. 4 The Justice may, where the exigency of the case requires it, continue his Court open from one day to another ; as where there is a delay in summoning a jury. 5 And he may even hold his Court open a reasonable time, to enable a party to procure a material witness — two hours was held not un- reasonable in one case ; but twenty hours was holden an abuse of discretion, where the witness was twelve miles dis- tant. 6 The statute in relation to Justices' Courts contains the fol- lowing provisions : § 124. In cases where a plaintiff shall be non-suited, dis- continue or withdraw his action, and where judgment shall be confessed, and in all cases where a verdict shall be rendered, or the defendant shall be in custody at the time of hearing the cause, the Justice shall forthwith render judgment and 1 10 John. IOC; Code § 64, sub. 8 ; * 3 Id. 378. 3 E. P. Smith, 155; 29 Barb, 523 ; 5 2 Caines, 134; Id. 137. per Kent, 44 Bmi-1) 128. CI). J. 2 3 Hill, 104. 3 12 John. 417. 6 13 John. 469. 312 Justices' Docket. enter the same in his docket. In all other cases he shall render judgment and enter the same in his docket within four clays after the cause shall have been submitted to him for his final decision. 1 $ 125. When a balance shall be found in favor of a party, either by the verdict of a jury, or upon a hearing before the Justice, exceeding the sum for which the Justice is author- ized to give judgment, such party may remit and release the excess, and may take judgment for the residue. § 2. "Whenever a judgment shall be rendered in a Court of Justice of the Peace, in civil actions, it shall be with costs of the suit ; but the whole amount of the items of such costs to be included in the entry of judgment, except charges for the attendance of witnesses from another couuty, shall not in any case exceed the sum of five dollars, unless such suit shall be adjourned more than once, at the request, and on motion of the party against whom judgment shall be finally rendered ; and in such case the costs of such addi- tional adjournment may be included in the entry of judg- ment. And in all cases in which an issue is joined and trial had, and the damages recovered, shall exceed fifty dollars, or the plaintiff shall claim in his complaint a sum exceeding fifty dollars, and the defendant shall recover judgment, the pre- vailing party shall be entitled to costs not exceeding the sum of ten dollars, exclusive of witnesses' fees. 2 Justices' Docket. Every Justice of the Peace is required by statute to keep a book, in which he shall enter, — 1. The titles of all causes commenced before him : 2. The lime when the first process was issued against the defendant, and the particular process issued : 3. The time when the parties appeared before him, either without process, or upon the return of process : 4. Where the pleadings arc made orally, a concise state- ment of the complaint of (he plaintiff, the answer of the * 2 Comst. 181: (i Hill. SS. 2 g cgs . Laws 1800, chap.. 692. Justices' Docket. 313 defendant, the further pleadings of the parties, if any, and the issue joined : 5. Every adjournment, stating on whose motion, and at what time and place : 6 The issuing of a venire, stating at whose request, and the time and place of its return : 7. The time when a trial was had, the names of the jurors returned summoned, who did not appear, and the fines im- posed on them, if any : 8. The names of the jurors who appeared, and of the jurors who were sworn ; the names of the witnesses sworn at the request of either party, stating at whose request ; the objections, if any, made to the competency of a witness, and the decision thereon : 9. The verdict of the jury, and when received : 10. The judgment rendered by the Justice, and the time of rendering the same : 11. The time of issuing execution, and the name of the officer to whom delivered ; and if issued upon the applica- tion of any party, before the time when the same should regularly issue, such fact shall be noted, and the nature of the proof given : 12. The return of every execution, and when made ; and every renewal of an execution made by him, with the date of such renewal : 13. The fact of his having given a transcript of the judg- ment, to be filed in the clerk's office, Mid the time when the same was given : 14. The fact of an appeal having been made from any judgment rendered by him, and the time when made. Each of these items must be entered under the title of each cause to which they respectively relate ; and in addi- tion thereto, the Justice may enter any other proceeding had before him in such cause, which he shall think it useful to enter in such book. He is also required carefully to file and preserve all affidavits and papers delivered to him, to be filed in any cause. 1 1 2 R. S. 208, §§ 243 to 245; [4th ed. p. 455.] 314 Justices' Docket — When Evidence. Justices* Docket — WJien Evidence. The following provisions of the Eevised Statutes relating to the evidence of the proceedings before Justices of the Peace, are of great practical importance, and are as follows : § 245. Whenever it shall become necessary, in an action before a Justice of the Peace, to give evidence of a judg- ment or other proceeding had before him, the docket of such judgment or other proceeding, or a transcript thereof certified by him, shall be good evidence thereof before such Justice. 1 % 24G. A transcript from the docket of any Justice of the Peace of any judgment had before him ; of the proceedings in the cause previous to judgment ; of the execution issued thereon, if any ; and of the return to such execution, if • any, Avhen subscribed by such Justice, and verified in the manner prescribed in the next succeeding section, shall be evidence to prove the facts stated in such transcript. § 247. To entitle such transcript to be read in evidence, except before the same Justice, there shall be attached there- to or endorsed thereon, a certificate of the clerk of the county in which such Justice resides, under the seal of the County Court of such county, specifying that the person subscrib- ing such transcript was at the date of the judgment therein mentioned, a Justice of the Peace of such county. §• 248. The proceedings in any cause had before a Justice may also be proved by the oath of the Justice. In case of his death or absence, they may be proved by producing the original minutes of such proceedings, entered in a book kept by such Justice, accompanied by proof of his hand- writing ; or they may be proved by. producing copies of such minutes, sworn to by a competent witness, as having been compared by him with the original entries, with proof that such entries were in the hand writing of the Justice. § 251. Every Justice shall keep an alphabetical index of all judgments entered in his docket-book, in the course of any judicial proceedings had before him. In such index shall be inserted the names of the parties to each judgment, i- _ 1 2R. S. 269 i [4th ed. p. 453.1 Justices' Docket— When Evidence. 315 and the page of his docket-book where such judgment is entered. § 252. In case any Justice shall remove out of the town iu which he was elected, before or after his term of office expires, he shall deposit with the town clerk of such town, all the books aud papers in the custody of such Justice, re- lating to any cause or matter which shall have been heard by him, or relating to any proceeding or cause which shall have been commenced before him. ^ 253. Whenever any Justice shall bo removed from office by the County Court, he shall, within ten days after receiving notice of such removal, and upon the demand of the town clerk, deliver to such clerk all the books and papers in the custody of such Justice, relating to any cause or matter which shall have been heard by him, or relating to any proceeding or cause which shall have been commenced before him. § 254. Iu every book of minutes delivered by any Justice to the town clerk, pursuant to the foregoing provisions, in which he shall have kept the docket of any judgments ; ho thall enter a certificate to be subscribed by him stating that the judgments entered in such book, were duly rendered as therein stated, and that the amounts appearing by such book to be due on such judgments respectively, have not been paid to his knowledge. § 255. In case any Justice shall die, or his office shall in any way become vacant, and any books or papers belonging to such Justice in his official capacity, shall come to the hands of any person, the town clerk may demand and re- ceive such books and papers from the person having the same in his possession. § 257. The entries contained in the book of minutes kept by any Justice, and by him delivered to the clerk, shall in all cases be presumptive evidence of the facts stated in such entries, but may be repelled by contrary proof. § 2G7. If in any action upon the judgment of the Justice, it is established that the docket of a Justice has been lost or destroyed, or that it cannot be produced after reasonable efforts to obtain the same, other proof of the fact of a judg- 316 Of Tbial by Jukt. ment having been rendered may be given, and may be repelled as other facts. Of Trial by Jury. It is provided by the statute as follows : $ 93. After issue joined, and before the Justice shall pro- ceed to an investigation of the merits of the cause by an examination of a witness, or the hearing of any other testi- mony, either of the parties or the attorney of either of them may demand of the Justice that the cause be tried by a jury. 1 This demand cannot be made until issue be joined, and the issue must be one of fact, for an issue of law can bo decided only by the Justice. 2 The mere inspection by the Justice of a note in question in the cause, is not such an in- vestigation into its merits, or hearing of testimony as will preclude the demand of a jury ; 3 and in one case where the Justice told the plaintiff to go on to trial, after both parties had avowed themselves ready, and on being asked, the de- fendant admitted part of the plaintiff's account, and a wit- ness for the plaintiff was partly sworn ; it was held too late to call for a venire. 4 A venire cannot be issued when the defendant does not appear and plead. An issue of fact must be joined. (3 Gaines' E.219.) So if an issue in law be joined, this is to be decided by the Justice without a jury. A trial by jury may be demanded, either at the time of joining issue, or at any other time before the trial has com- menced by an examination of a witness, or the hearing of any other testimony, but must be demanded in open Court. Upon the demand of a trial by jury, the Justice shall issue a venire directed to any constable of the county wherein the cause is to be tried, commanding him to summon twelve good and lawful men, in the town where such Justice resides, qualified to serve as jurors, and not exempt from serving on juries in Courts of Record, who shall be in no wise of kin l 2 E.S. 242, § 93; [4th cd. p. 441.] 3 l John. 142. * 3 Caincs, 219. * 1 Covren, 235. Of Trial by Jour. 317 to the plaintiff or defendant, nor interested in such suit, to appear before such Justice, at a time and place to be therein named, to make a jury for the trial of the action between the parties named in such venire. 1 Form of the Venire. State of New York, ) Oneida County-, \ SS- To any constable of said county, Greeting : You are hereby commanded in the name of the people of the State of New York, to summon twelve good and lawful men of the town of , qualified to serve as jurors, and not exempt from serving on juries in Courts of Record, who shall be in no wise of kin to , plaintiff, or defendant , nor interested in the suit to be tried, to appear before me, one of the Justices of the Peace of said county, at my office in the town of , on the day of 187 , at o'clock, in the noon, to make a jury for the trial of an action now depending before the said Justice, and then and there to be tried between the said parties; and have tneu there a list of the jurors you shall summon, and tins precept. Given under my hand, the day of , 187 . , Justice of the Peace. The Justice is required to deliver, or cause to be deliv- ered, the venire to some constable of the county, who is disinterested between the patties, and against whom no ob- jection shall have been made by cither party. § 98. The constable to whom any venire shall be delivered, shall execute the same fairly and impartially ; and shall not summon any person whom he has reason to believe biased or prejudiced for or against either of the parties. He shall summon the jurors personally, and shall make a list of the persons summoned, which he shall certify and annex to the venire, and return to the Justice. As the 97th section of the statute requires the Justice to deliver the venire to a constable who is disinterested, and tc whom no reasonable objection shall be made by either party, it is frequently necessaiy for a Justice to decide whether tht 1 -2 R. S. 172, § 91. 318 Cf Tkial by Jury. constable is disinterested and what is a reasonable objection. Strictly speaking, he can inquire into the existence of the cause of an objection only upon the oath of a party or third person. It is, however, common upon the simple objection of a party to having the venire delivered to a particular constable, for the Justice to deliver it to another who is free from objection. This course is a proper one where it will not produce unnecessary delay to find an unexceptionable constable. Any objection which would be a sufficient one to sustain a challenge to the array, if the jury had beeu sum- moned by him, is a sufficient objection to his receiving the venire. It would also be a reasonable objection that there was a hostility between the constable and the party objecting, or relationship, or a peculiar intimacy between him and the other party, so as to lead the Justice to believe he might exercise partiality in the selection of the jury. If it becomes necessary for the Justice to inquire into the cause of the objections, he should administer an oath to the party object- ing, or the witness to prove it, which may bo in the follow- ing form : "You do swear that you will true answers make to such questions as shall be put to you touching the reasons why David Hess should not execute the venire in this cause." The 98th section of the statute directs how the constable is to execute and return the venire. The manner of service may be, (as is the usual practice,) by reading or stating the substance of the venire to each person summoned, care being had to state the name of the Justice issuing the venire, together with the time and place of trial. The jurors should have a reasonable time to attend after notice, as in the case of witnesses. The officer's return with the panel will be prima facie evidence of the venire being duly served on a proceeding against ajurorforhis non-attendance; 1 for it is a general rule, that an officer's return, made officially, is prima facie evidence, even between third persons. 2 The return must be in the following form : "I certify that by virtue of the within precept, I have t 1 14 John. 482. 2 7 Cow. 310; 6 Hill, 553; 5 Denio. 580 Of Trial by Jury. 319 personally summoned as jurors, the several persons named in the annexed list. Dated the day of ,187 . Const." Where a venire has once been issued, unless it is waived, the Justice cannot try the cause without a juiy. 1 The rule is, that a party demanding a venire may waive it, either expressly or by his conduct. Thus, where the party object- ing had himself suppressed the venire, as if the Justice should deliver the venire to the party to be delivered by him to a constable, and he should neglect to do so, and at the return of the venire fail to appear, the Justice would have a right to consider it as a waiver of the trial by jury, and although he might issue another venire, he would not be bound to do so. 3 And so where the venire demanded by the party is not returned, and no further venire is demanded by him, but he contents himself with moving for a non-suit on that ground, which motion the Justice overrules, and holds the parties to a trial, this has been held right. 3 Although the party demanding a trial by jury, has a right to waive such trial after a venire has been issued, yet if it has been served and returned, the other party would have a right to insist that the cause be tried by the jury thus re- turned, notwithstanding the party demanding the venire should waive it, and if a jury should not be obtained on that venire, he might require that a new venire should be issued at his instance. 4 Every person duly summoned as a juror, who does not appear, nor render a reasonable excuse for his default, is liable to the same fiue, and to be collected in the same man- ner as a defaulting witness. 6 The parties may agree upon any number of jurors less than six to try the cause, and the Justice shall direct in the venire the summoning of so many jurors as shall be double the number so agreed upon. 6 An agreement by the parties in a Justices' Court, for the trial of°a cause by jury of less than six jurors, is good, 1 8 John 460 * See Edw - Treat - 3d ed - 89 - 9 19 John. 381 6 2 R- S. 175, § 112. 3 7 Id. 198. 6 M- § 95. 320 Qualifications of Jukoks. though not made until after the return of the venire, and when the jury is drawn. 1 The following are the qualifications of jurors. They are to be males, of the age of twenty-one years or upwards, and under sixty years old ; and except in the counties of Niagara, Erie, Chautauque, Cattaraugus, Allegany, Genesee, Orleans, Monroe, Livingston, Jefferson, Lewis, St. Lawrence, and upon the New Stockbridge tract in the counties of Oneida and Madison, and the city of New York, possessed of per- sonal property in their own right, to the amount of two hun- dred and fifty dollars ; or having a freehold estate in real property in the county, belonging to them in their own right or in the right of their wives, to the value of one hundred and fifty dollars ; in the possession of their natural faculties, and not infirm or decrepit ; free from all legal exceptions, (that is, not being aliens, and not having been convicted of an infamous crime,) of fair character, of approved integrity, of sound judgment and well informed. 2 In the several counties mentioned in the above exception, persons qualified in other respects, who shall have been assessed on the last assessment roll of the town," for land in his possession, which is held under contract for the purchase thereof, upon which improvements shall have been made to the value of one hundred and fifty dollars, and who shall own such improve- ments, shall be deemed qualified to serve as jurors. In the city of New York, no property qualification is necessary. 3 In addition to the above qualifications, jurors injustices' Courts must be inhabitants of the town in which the Justice resides, except in actions between two towns, in which cases, as pro- vided by statute, the jury is to bo formed of inhabitants of the county at large, without reference to the town of their residence. 4 The statute directs the Court to discharge from serving on a jury the following persons, who should not, therefore, be summoned : 1 Carman vs. Newell, 1 Denio E. 25. 5 Id. 2 2 R. S. 411, §§ 13, 14; [4th ed. p. *2R. S. 243, § 96, 4tli ed. p. 441.] 656, § 6, and p. 657, § 14.] Qualifications of Jurors. 32] 1. Those who have not the property qualification, or are not qualified in respect to age, as above mentioned. 2. A non-commissioned officer, musician, or private of any uniformed company or troop, who is duly equipped and uniformed according to law, and who shall claim such ex- emption.' The evidence of this exemption can only be given by the certificate of the commanding ofiicer of the troop, dated within three months of the time of presenting the same, and the signature must be verified by oath. 1 3. A member of any company of firemen, duly organized according to law. 4. Any person in the actual employment of any glass, cotton, linen, woolen, or iron manufacturing company, by the year, month or season. 5. A superintendent, engineer, or collector of any canal, authorized by the laws of this State, any portion of which shall be actually constructed and navigated. G. A minister of the gospel, or teacher "in any college or academy ; or, any person who is or shall be specially ex- empted by law from serving on juries. The Court is also required to discharge a juror against whom there is any legal exception. In addition to the above exemptions specially pointed out by statute, it is further provided, that the court to which any person shall be returned as a juror, shall excuse such juror from serving at such court, whenever it shall appear : 1. That he is practicing physician, and has patients re- quiring his attention. 2. That he is a Surrogate or Justice of the Peace, or exe- cutes any other civil office, the duties of which are, at the time, inconsistent with his attendance as a juror. 3. That he is a teacher in any school, actually employed and serving as such. 4. When, for any other reason, the interests of the public or the individual juror will be materially injured by such attendance, or his own health, or that of any member of his family requires his absence from such court. 2 12R.S. 336, § 31. 2 2 K. S. 336 « 35. T 322 Qualifications of Jurors. The party demanding a trial by jury has, undoubtedly, a right to waive such venire after it is issued, but if the venire has been served and returned, the other party may insist that the cause be tried by such jury. Before proceeding to draw the jury, the Justice should call over the list of jurors returned by the constable ; this being done the names of the persons so returned by the con- stable, and who appear, are to be respectively written on several and distinct pieces of paper, as nearly of one size as may be, and the constable, in the presence of the Justice, is to roll up or fold up such pieces of paper as nearly as may be, in the same manner, and put them together in a box or some convenient thing. 1 The Justice is then to- draw out six (or such number as may have been agreed upon) of such papers one after another, and if any of the persons whose names shall lie so drawn, shall be challenged and set aside, then 'such further number shall be drawn as will make up the number required, after all legal causes of challenge are allowed by the Justice. The persons so drawn, appearing and approved as indif- ferent, are to compose the jury to try the cause. 2 If a sufficient number of competent jurors are not drawn the Justice may supply the deficiency by directing the con- stable to summon any of the bystanders or others who may be competent and against whom no cause of challenge shall appear to act as jurors in the cause. 3 If the constable does not return the venire, or if a full jury be not obtained in the manner above directed, the Justice is to issue a new venire, keeping his Court open, holding the parties, jurors, &c., present in attendance until the constable shall summon from the town the number of jurors wanted. 4 Before the jury are sworn, if a party have any objection, either of interest or favor, or for other cause, against the constable summoning them, or any of the jurors, whether 12E.S. 173, § 90. 3 2 R. S. 174, § 101. 2 2 John. 380. * 2 Caincs, 134. Challenge to the Jury. 323 originally summoned as such, or called as talesmen, he must state his objection to the Justice, which is called a challenge. After the venire has been issued, the Justice cannot, as a general rule, try the cause without a jury. If, however, a venire be improperly suppressed by the party demanding it, Ihe Justice has a right to consider him as waiving the trial by jury. 1 Challenge to the Jury. Challenges are of two kinds — "to the array," aud "to the polls ;" and each of these is subdivided into principal chal- lenges, and "challenges to the favor." 2 A challenge to the array is an objection to the whole panel of jurors returned collectively ; not for any defect in the jurors themselves, but for some partiality or default in the officer who arrayed the panel. This is either a principal challenge, or challenge to the favor. Some of the causes of " principal challenge to the array" are the following : That the officer who makes the array is of kindred to either party within the ninth degree ; that one or more of the jurors is returned at the nomination of either party ; that an action of assault aud battery, or other action implying malice, is depending between the officer and one of the parties ; that a civil action is pending at the suit of the party against the officer, but not if by the officer against the party : that the officer is under distress of either party ; that the officer is counsel, attorney, officer or servant of either party, or is an arbitrator in the same matter, and has treated thereof; that the constable who served the venire, appears as the attorney of the party demanding a jury against the consent of the other party ; that the constable serving the venire docs not reside in the county where the cause is tried. In penal actions for the recovery of any sum it is not good cause of challenge to the jurors summoned, or officers summoning them, that such juror or officer is liable to pay taxes in any town which may be benefited by l 8 John. 460; Id. 384 2 1 Cowen, 436. 3.24 Challenge to the Jury. the recovery. (^ 58, art. 4, title 4, chap. 7 of part 3, E. s.y The causes of challenge " to the array for favor," are such as imply, at least, a probability of bias or partiality in the officer, but do not amount to a principal challenge. Thus, that the plaintiff or defendant is the tenant of the officer ; or, that the son of the officer has married the daughter of the plaintiff or defendant, or the like. 2 A challenge to the polls, is an exception to one or more of the jurors individually ; and this is either a principal challenge, or challenge to the favor. Some of the causes of principal challenge to the polls are the following : That the juror has not the legal qualification as to resi- dence, age, property, &c, but a matter which merely ex- empts a man from serving on a jury, is not cause of challenge, the juror can only avail himself of the exemption ; that the juror is of kin to either party within the ninth degree ; that there is an affinity by marriage between the juror and one of the parties, if such affinity continue, or there be issue of the marriage alive ; that the juror has before given a verdict in.tlie same cause, or upon the same matter, although between different parties ; that he has been arbitrator, and entered upon the examination of the same matter, having been se- lected by one of the parties ; that an action implying malice or displeasure is pending between the juror and one of the parties? That the juror has been convicted of felony, perjury, conspiracy, forgery, &c, or has received judgment for an infamous crime ; that the juror has an interest in the suit, direct or collateral. When the county sues before a Jus- tice, the electors and inhabitants of such county may be jurors. (§ 4, title 3, chap. 12 of part 1, R. S.) When a town sues, or is interested in a suit, the electoi's or inhabit- ants of such town may be jurors. (§ 4, title 5, chap. 11 of part 1, E. S.) It is good ground of principal challenge to a juror, that ho has declared his opinion of the case before- 1 10 John. 107, § 91 i 13 Id. 227, vol. 2 1 Cowen, 43G. 2, p. 830, § 51. Challenge to the Jury. 325 hand; but where a juror said "he had no personal know- ledge of the matter in dispute, but that, if the reports of the neighbors were correct, the defendant was Wrong and the plaintiff right," this was held no objection to the juror. 1 Causes of challenge "to the polls for favor," are where there is only probability from circumstances that the juror may be biased, as— that the juror is the fellow servant of one of the parties ; that one of the parties has been lately entertained at the juror's house. Jurors must be above all exception, as a general rule, and the application of this rule to each particular case, where the partiality is not apparent, must be left to the sound discretion of the triers. 3 A 'Justice cannot, on his own motion, challenge and set aside the whole panel, and issue a new venire. lie may, however, refuse to permit a drunken man to serve on a jury, and if neither party object, the fact of the intoxication will be conceded. 3 Principal challenges, either to the array or to the polls, should be tried by the coilrt. If, therefore, cither party make a principal challenge, and the facts alleged as the grounds of the challenge be conceded, the Justice must either admit or reject the juror, or quash or sustain the array. If the facts alleged be denied, witnesses must be called and sworn ; and in cases where the cause of challenge does not go to his dishonor, the challenged juror may himself be a witness. The rule is, that the challenged juror may bo asked such questions as do not tend to his infamy or disgrace. 4 Form of Oath to Witness. "You do swear that you will true answer make to such questions as may be put to you, touching the challenge de- pending." In addition to the usual mode of challenges to jurors, the Legislature has provided that each party may have two 1 11 John. 168; 6 John. 332; People 2 18 John. 121. vs. Bodine, 1 Denio, 281; a lead- 3 16 John, 469; 2 Cowen, 430. ing case on this subject, vol. 1, p. * 1 Cowen, 433; 16 John. 18; 19 376. 350; 1 Cow. 432; 1 John. 314; John. 121 8 Id. 445. 326 Challenge to the Juey. peremptory challenges in civil cases ; and also in criminal cases before Courts of special sessions, as appears by the following act : Chap. 134. An act to provide for additional challenges to Jurors, passed April 27, 1847. The People of the State of New York, represented in Senate and Assembly, do enact as follows : \ 1. Upon the trials of any issue or issues of fact, joined in a civil action, each party shall be entitled peremptorily to challenge two of the persons drawn as jurors for such trials. \ 2. Every person arraigned and put on trial for any offense not punishable with death, or with imprisonment in a State Prison ten years, or for a longer time, shall be enti- tled peremptorily to challenge five of the persons drawn as jurors for such trial, and no more; except that in cases tried in any Court of Special Sessions, said right of peremp- tory challenge shall extend to only two of said persons so drawn. § 3. Nothing in this act contained shall be deemed to prevent any challenges heretofore allowed, cither to the array of jurors or to individual jurors. When there is a challenge either to the array or polls, for favor, the mode of trying the question is this : The Justice must select two indifferent persons for triers ; and, in case the challenge be to the polls, and two persons shall have been sworn, they must be the triers, but jurors should not be selected when the challenge is to the array. lie should then administer to the triers an oath. Form of Oath on Challenge to the Array for Favor. " You shall Avell and truly try the issue of challenge to the array of jurors, in the suit wherein James Jackson is plaintiff, and John Stiles, defendant, and a true finding make, according to evidence ; so help you God." Oath on Challenge to the Polls for Favor. " You shall well and truly try whether John Doe, the Challenge to the Jury. 327 juror, challenged, stands indifferent, between James Jack- son, plaintiff, and John Stiles, defendant, and a true finding make according to evidence ; so help you God." Witnesses are then to be sworn before the triers, to whom an oath may be administered in this form : " You do swear in the presence of Almighty God, that you will true answers make to such questions as shall be put to you touching the challenge now in question." The triers shall then sit and hear the evidence, the wit- nesses being sworn, according to the form before given. They ought conscientiously to determine ; and if from the evidence given, they think there is reasonable ground of suspicion that the juror challenged does not stand wholly indifferent between the parties, they ought, without doubt or hesitation, to find the challenge true ; and on the other hand, if they think from the evidence that the juror stands entirely free from any reasonable suspicion of bias, they will find the challenge not true} Where a juror is challenged for favor, the triers must find that he stands impartial and indifferent, or they should reject him. It is the province of C-.v? C. irt to say what evidence is admissible, on the question vi indifference, but its strength and influence in establishing the allegation of favor or bias, are for th:* triers ai.me to determine. 2 According to the report of the triers, finding the matters alleged in the chall :gc true or untrue, the Justice must decide, and as the c.uso may be, quash or affirm the panel, or reject "n- retain the juror. § 101. If a sufficient number of competent jurors shall not be drawn, the Justice may supply the deficiency by direct- ing the constable to summon any of the bystanders, or others who may be competent, and against whom no cause of challenge shall appear, to act as jurors in the cause. § 102. If the constable to whom the venire shall have been delivered do not return the same as thereby required, or if a full jury shall not be obtained in the manner declared 1 Pennington on Small Causes, 174 2 18 Barb. 52? 328 Challenge to the Juky. in the preceding sections, the Justice shall issue a new venire. The proceedings by which a jury is to be obtained in a Justices' Court are purely statutory and should be strictly complied with, otherwise the judgment rendered cannot be sustained. The provisions of the statute providing for the manner in which a jury shall be procured in a Justices' Court, make it the duty of the constable to whom the venire is delivered to summon twelve good and lawful men to appear before the court at the time and place specified in the process. The names of the persons who shall . appear, are written, &C. 1 The lansmase of the statute is such that it would be im- possible to comply with its directions, unless at least six jurors names are in the box. In this case, he should continue his Court open, holding the parties, jurors, Ac, present in attendance, until the con- stable shall summon from the town the number of jurors wanted. 2 The new venire is to be like the former one, with this difference, that instead of the full number of jurors originally wanted, it commands the constable to summon " three good andlawful men, <&c." [or other number wanted," " to make so many of a jury, &c." The Justice may, if necessary, issue this process from time to time, till there be a full jury. On the jurors' appearing upon the new venire, they are called and sworn without being balloted for, though subject to the same challenges as regular jurors. If no jurors appear, or none are found competent, or if the venire is quashed, or. not returned, or the array challenged for good cause, &c, a new venire must be issued from time to time, until a jury is obtained qualified to try the cause. In such case, the second venire will be deemed the process of the party demanding the first, who consequently will have no right to object to any error therein. 2 A defendant is not entitled to a nonsuit, because the venire is not returned at the time appointed for trial ; another venire may be issued; 1 Brisbane vs. McComber, 50 Barb. 3 2 Caines, 134. 375. Of Sweamnq a Jury. 329 and if the defendant does not demand it, but goes to trial before the Justice, it is a waiver of the trial by jury. 1 The party demanding the jury process cannot object to the form of it. 2 It should preserve the characters of the parties, but, in a proceeding against joint debtors it need only mention the names of those who are duly and personally served with process, and who appear in court. 3 Every defect in a venire is cured, if the party go to trial upon it without objection. The venire being deemed the process of the party calling for it, he is bound in the 'first instance to pay the costs of exe- cuting it, and the jurors' fees at the time they bring in their verdict. They, however, are part of the costs of the suit and abide its event. 4 Of Swearing a Jury. After a full jury shall have been obtained, and not before, they arc to be sworn. They may be sworn separately or any number of them at a time. It is usual to swear three at a time. § 103. To each juror the Justice shall administer an oath or affirmation. Form of Oath to the Jury. " You do swear well and truly to try the matter in differ- ence between James Jackson, plaintiff, and Richard Roe, defendant, and unless discharged by the Justice, a true ver- dict give according to evidence." After the jury are sworn, the Justice shall call over their names, and as the jurors answer, the constable should count, them for the purpose of ascertaining that the jury contains the requisite number; and the Justice should then askthem if they have all been sworn. §104. After the jury shall be duly sworn, they shall sit together and hear the proofs and allegations of the parties, which shall be delivered publicly in their presence. i 7 John. 108. 3 4 John. 222. 2 Oaincs. 134. * 18 John. 131. 330 Proceedings Against a Jueor Of Proceedings Against a Juror for Not Appearing on a Venire. It is provided by statute as follows : ^ 112. Every person who shall be duly summoned as a juror, and shall not appear, nor render a reasonable excuse for his default ; or appearing, shall refuse to serve ; shall be subject to the same fine, to be prosecuted for and collected with costs, in the same manner, and applied to the same use, as herein before provided, in respect to a person subpoenaed as a witness, and not appearing, or appearing and refusing to testify : l A summons is first to be issued against the juror, which may be in the following form : Oneida County, ss. The people of the State of New York, to any constable of said county, greeting : We command you to summon John Doe, to appear before the undersigned, a Justice of the Peace, in and for said county, at his oflice in the town of Whitestown, in said county, on the 19th day of June inst., at one o'clock in the. afternoon, to show cause why he should not be fined, accord- ing to law, for his non-attendance as a juror before the said Justice, for before , Esq., a Justice of the Peace in and for the said county,] at his dwelling house in the said town, on the 12th day of June inst., in a ceitain cause then depending before the said Justice, [or before the said , Esq., such Justice as aforesaid,] in which James Jackson was plaintiff and Richard Roe defendant, and have you then there this precept. Given under the hand of the said Justice, this 16th day of June, 18 . Justice. The summons is to be served and a return made in the same manner as when against a defaulting witness. The return of the constable is, prima facie, sufficient evidence of the juror being summoned. The cause or excuse shown, may be by the juror's own oath, the rule being the same in this case as in that of a witness. If the Justice convict the juror of a default, he should make an entry thereof in his docket as follows : 1 2R. S. 245; [4th ed. p. 443.] Fon Not Appearing. 331 Oneida County, ss. Bo it remembered, that 011 the 19th day of June, 18 . John Doe is convicted before me, and fined the sum of ten dollars, besides two dollars costs, for non-attendance as a juror before me, [ or before , Esq., one of the Justices of the Peace of said county,] at my [or his] dwelling house, in the town of Whitestown, on the 12th day of June inst., in a certain cause then and there depend- ing before me, [or before the said Justice,] in which James Jackson was plaintiff, and Richard Eoe, defendant. Justice. An execution against the juror for the fine, may be in the following form : Oneida County, ss. The People of the State of New York : To any any constable of the said county, Greeting : Whereas John Doe was, on the 19th day of June, 18 , convicted and fined by the undersigned, a Justice of the Peace in and for the said county, the sum of ten dollars, besides two dollars costs, for non-attendance as a juror before the said Justice, [or before , Esq., one of the Justices of the Peace of the said county,] at his dwelling house, in •{he town of "Whitestown, in said county, on the 12th day of June inst, in a certain cause then and there depending, before the said Justice, [or before the said , Esq., such Justice as aforesaid,] in which James Jackson was plaintiff, and Richard Eoe, defendant; a record of which conviction, and of the cause thereof, has been duly made up and entered in the docket of the undersigned. And whereas the said John Doe has neglected to pay the said fiue and costs : You arc hereby commanded to levy the said fine and costs of the goods and chattels of the said John Doe ; and for want thereof, to take and convey the said John Doe to the jail of the said county, there to remain until he shall pay such fine and costs. And the keeper thereof is required to keep the said John Doe in close custody in said jail, until the fine and costs aforesaid be paid, or until thirty days after the commencement of his imprisonment. Given under the hand of our said Justice, at the town of Whitestown, on the 19th day of June, 18 . Justice. The mode of levyjng this warrant or execution, the power 332 Of the Proceedings on the Teial. of the Justice to convict, and his protection against a prose- cution for the same, are in all respects similar to those in regard to proceedings against a defaulting witness. Of the Proceedings on the Trial. When the cause is ready for trial before the Justice with- out a jury, or if to be tried by a jury, after the jury have been sworn, it is the right of the party holding the affirma- tive of the matter to be tried, to open and state his case, and call his witnesses to prove it. This right usually belongs to the plaintiff ; but it may, in certain cases, belong to the defendant. As if the defendant, without denying the com- plaint, should merely plead payment of the plaintiff's demand on which issue is joined, this plea admits the matters stated in the complaint, and it will be incumbent on the defendant, in the first place, to prove the payment ; he therefore will hold the affirmative, and will have the right to open the case, and call and examine his witnesses. 1 The party who opens the case to the Court or jury, briefly states the nature of the action, the names of the parties, the nature and substance of the complaint of the plaintiff, what kind of defence the defendant has interposed, and the sub- stance of the evidence which he expects will be given on the trial. After opening the case, the party who holds the affirma- tive of the issue (and I will suppose the plaintiff,) proceeds to offer his evidence either by producing documentary evi- dence, such as various kinds of records or writings, or by calling his witnesses. The opposite party may and should object to the evidence when thus offered, (providing he desires to do so,) in order to get the decision of the Court upon the admissibility or relevancy of the testimony thus offered, and should the Justice in such case when the ques- tion is thus raised before him, make an erroneous decision upon the admissibility thereof, and which materially affected the rights of either party, the error would be corrected on appeal. 1 Edw. Tr. 91. Of the Pkoceedixgs on the Trial. 333 The plaintiff, after having his witness sworn, which may he as follows : Form of an Oath lo he Administered to a Witness. " The evidence you shall give relating to the matter in difference between James Jackson, plaintiff, and John Stiles, defendant, shall be the truth, the whole truth and nothing but the truth ;" Proceeds to examine upon all the matters within his know- ledge bearing upon, or material to the case, after which he may be cross-examined by the defendant upon any or all the matters of which he was inquired by the plaintiff, or to a new matter pertinent to the case which the defendant desires to prove by him. Should any new facts arise out of the - cross-examination, or should the plaintiff desire to prove any other fact, he may re-examine him, and so on till both sides are through with him. After the plaintiff has gone through with his evidence, by examining all his witnesses, and producing all his evi- dence which he has or deems necessary to maintain the action on his part, and rested his case, the defendant, if he be of opinion that the plaintiff has not produced sufficient to entitle him to maintain the action, may move the court for a non-suit, and state his l'easons in support of such mo- tion, and the plaintiff should have an opportunity to state his reasons in opposition to the motion. If the Justice be of the opinion that the plaintiff lias entirely failed to make out a case, it is his duty to nonsuit the plaintiff and render a judgment against him for the defendant's costs : but if he has doubts about it, and desires time to examine the evi- dence, it is more safe to deny the motion, and hear the whole case before disposing of it finally. If there be no occasion for the motion to non-suit, or the same is denied, the defendant proceeds to open the case on his part and state the nature of his defence, the evidence, if any, which he will introduce in support of it. He then pro- duces his witnesses and such other evidence which may be in his power to give, the admissibility of which may be ob- 334 Of the Evidence. jected to by the plaintiff in bis turn, and thus take tbe decision of the Court upon it, which decision may be re- viewed if necessary and expedient, in the same way as before given. After the examination of the witness by the defend- ant, he may be cross-examined by the plaintiff, and re-exam- ined by the defendant, and so on until closed. The Court, however, should not allow the parties to compel the witnesses to repeat over their testimony which they have already given upon their own examination, unless it be to correct mistakes or to get out the testimony more full and plain. The examination of witnesses is in open court, and in the presence of the parties or their attorneys, who liave the right to be present and hear the testimony, and before the Justice or the Justice and jury, who have thus an opportunity of observing the appearance, understanding, demeanor, bias and inclination of the witnesses, and are thus enabled to weigb their testimony and give such weight and credibility to it as their good judgments and understanding may dictate. Of the Evidence. The subject of evidence, as an incident of a trial will next receive our attention. The subject is too extensive and com- plicated to admit of a full, or sufficient explanation, within the limits prescribed for this work. I shall attempt to give such rides only as are applicable to eases most frequently occurring before Justices. The word evidence, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of Avhicb is submitted to investigation, is established or dis- proved. This term and the word proof are often used as synonymous with each other, but the latter is applied by the most accurate logicians, to the effect of evidence, and not to the medium by which truth is established. By competent evidence, is meant that by which the Very uature of the thing to be proved, requires as the fit and ap propriate proof in the particular case, such as the produc- tion of writings, where their contents are subjects of inquiry. By satisfactory evidence, which is sometimes called sufficient evidence, is intended that amount of proof which ordinarily General, Rules of Evidence. 335 satisfies an unprejudiced mind, beyond reasonable doubt. The circumstances which will amount to this degree of proof, cau never be previously defined. The only legal test of which they are susceptible, is their sufficiency to satisfy the mind and conscience of a common man, and so to convince him, that he would venture to act upon that conviction in matters of the highest concern and importance to his own interests. Questions respecting the competency and admis- sibility of evidence are entirely distinct from those which respect its sufficiency or effect, the former being exclusively within the province of the Court, the latter belonging exclu- sively to the jury. Cumulative evidence,, is evidence of the same kind to the same point. Thus, if a fact is attempted to be proved by the verbal admission of the party evidence of another ver- bal admission of the same fact, is cumulative, but evidence of other circumstances tending to establish the fact, is not. 1 The General Rules of Evidence. 1. Whichever side hath the affirmative of the question, that side hath also the burthen of proof. The first thing, therefore, which it is the duty of the Jus- tice to turn his mind to, is the issue between the litigant parties ; that is, what they have affirmed on one side, and denied on the other. It is important, in the first place, to ascertain on which side the burthen of the proof lies ; for, in all issues, one party takes upon himself the proof of the fact in issue. This is usually, but not always, with the plaintiff.* Averments in a pleading, which are wholly impertinent, and might be struck out without affecting the cause of action or defence, need not be proved ; as if in a complaint on an express warranty of soundness, I state that the defendant knew of the unsoundness, if I prove the warranty and un- soundness as laid, I need not prove the defendant's know- ledge ; because the express warranty is enough, for the cause of action would be sufficiently stated and made out in proof 1 Greenleaf Ev. §§ 1 and 2. 2 Cow. Tr. by Tracy, 667. 336 General, Eules of Evidence. though the averment of knowledge were stricken out of the complaint. 1 And, so where I allege that the defendant ma- liciously dug under my house, and caused its fall, proof that in digging a cellar adjoining me, he negligently did the injury complained of, sustains the issue ; for the words maliciously, &c, may be stricken out and yet leave the complaint good.' 2 So in an averment that a note was as- signed, for value received, the words for value received arc immaterial, and need not be proved, and the complaint is proved, though the assignment do not contain these words ; but the averment that the defendant made his promissory note, setting it forth, and adding " being for value received," must be sustained by a note containing the words " for value received ;" for the averment is a description of the contract. 3 But in regard to records, writings or contracts, whioh make a part of the plaintiff's case, the ancient rules required that they must be proved as laid, although parts of them were stated which were altogether immaterial ; for the reason that such records, writings or contracts are entire, and a part only cannot be stricken out, so as to make them con- form to the evidence. The provision of the Code that a variance between the proof on the trial and the allegations in a pleading shall be disregarded as immaterial, unless the Court shall be satisfied that the adverse party has been misled thereby, will now, in most cases, cure any immaterial omis- sion or variance in the description of record or written in- strument. It is, however, prudent in all cases to set out barely so much of a record or written instrument as will, according to its legal effect, make out an action or defence. It is always sufficient to state the contract according to its true sense, or legal effect, without adopting its very words, and this, whether it be in writing or by parol, scaled or unsealed. When so stated, however, it must be proved substantially as laid. But if the Justice is satisfied that the variance has not misled the opposite party, he should disre- gard it ; and although the party has been misled, if he is 1 Cowen's Tr. 509. 3 10 John. 418; and see cases cited 2 IT John. 02. in Covven & Hill's Notes to Phil. Ev. p. 525. General Uules of Evidence. 337 satisfied that substantial justice will be promoted by permit- ling an amendment to the pleadings to enable them to con- form to the proof, he should allow it, giving an adjournment if necessary to enable the adverse party to bring evidence to meet it. Evidence is either positive or presumptive. It is positive when a witness speaks directly to a fact from his own imme- diate knowledge ; and presumptive, when the fact itself is not proved by direct testimony, but is to be inferred from circumstances, which either necessarily or usually attend such facts. It is obvious, therefore, that a presumption is more or less likely to be true, according as it is more or less probable that the circumstances would not have existed un- less the fact which is sought to be inferred from them had also existed ; and that a presumption is to be relied on no longer when the contrary is actually proved. In order to raise a presumption, it cannot be necessary to confine the evidence to such circumstances alone, as could not have hap- pened, unless they had been also attended by the alleged fact ; for that would, in effect, be to require in all cases evidence amounting to positive proof ; but it will be sufficient to prove those circumstances which usually attend the fact. If the circumstances be such as may afford a fair and rea- sonable presumption of the fact to be tried, they are to bo received and left to the consideration of the jury, (or of the Justice sitting as a jury,) to whom alone it belongs to deter- mine on the precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue. However, for the purpose of trying the weight and effect of such presumptive proofs, it will often be of the utmost consequence to consider, whether any other fact happened, which might have been attended by the same circumstances, and to determine with Avhich of the facts they are most con- sistent. A receipt for rent down to a certain day, is strong pre- sumptive evidence, that all rent previously accrued had been paid, until the contrary be proved. 1 So the giving of a 1 15 John. 479. TT 338 Proof of Writings and Records. promissory note is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker was indebted to the payee upon such settlement to ,the amount of the note. 1 Proof that the plaintiff and other workmen of mine, come every week to receive their pay, and that I was in the habit of paying weekly, and that the plaintiff has not been heard to complain of non-payment, is presumptive evidence of payment. An order to pay money in the hands of the drawee, is evidence of payment ; otherwise of an order to deliver goods. A cash account shown to the defendant and not objected to, is evidence for the consideration of the jury. Possession of land or a chat- tel is prima facie evidence of property. 3 Judgments of Courts of Record, and debts due on sealed instruments were formerly pi-csumed to be paid after the lapse of twenty years. But the presumption might have been repelled by showing payment of some part, or a written acknowledgment. 3 Sometimes the acts of a party arc conclusive, and super- cede all higher or other proof. The most important in- stances of which, for our purpose, are the case of a tenant, who cannot dispute the title of his landlord; 4 and a man Avho suffers a woman to pass in the world as his wife, cannot contradict the fact of her being so, against one who lias given credit on the faith of such appearance. 5 Proof of Writings and Records. Wherever a writing is a necessary part of the evidence in establishing the action or defence, it must be produced. Thus, a writ, "or a bond, lease, or other specialty under seal, or a bill of exchange, promissory note, or any other written instrument, must be produced before any evidence can be given of its contents. 7 If there be subscribing witnesses to such writing, they 1 2 Sclden, 401; 5 Dcnio, 304. * Cowen and Hill's Notes to Phil. Ev. 2 1 Phil. Ev. 159, 160; Cowen and 201. Hill's Notes, 314. 6 Id. 3 2 R. S. 301. §5 47, 48; [1th ed. p. « John. 19. 004.] 7 12 John. 221. Proof of Writings and Kecords. 339 alone arc competent to prove it, and at least one of them must bo produced on the trial. 1 But both these rules are subject to various exceptions. 1. If the writing be of a public nature, as if it be a State record on file with the Secretary of State, a record of Chan- cery, of the Supreme Court, or County Court ; in all these cases, though the writing be directly in issue upon an an- swer denying that there is such a record, 2 a copy exempli- fied, or certified in the mode pointed out by 2 E. S. 403, § 59, [4th ed. p. G42,] by the oflicer having the custody, under his official seal is sufficient, as well as the record itself. One or the other of these must, it seems, be produced when the record is directly in issue upon an answer denying its exist- ence, and which, when pleaded alone, is triable by the record only.-* "When the record is only inducement, or, in other words, not directly denied by the pleadings, it may be proved as in the following exception : 2. In cases where the record is not directly in issue, but the action or defense is grounded upon some other matter, and the record is mere inducement, but yet a necessary link in the chain of testimony, or comes collaterally or inciden- tally in question, either exemplified or sworn copies, made and compared as hereinafter mentioned, are admissible in evidence. 3. A rule of court under the hand of the proper officer, as a clerk of a Supreme or County Court, is original and good evidence itself, upon its mere production, without further proof, the same as an exemplification. 4 This is called an office copy. Copies of affidavits served on the opposite party, upon which to ground a motion, have also been held equivalent to office copies, and as such are admissible in evi- denced A verdict alone of a Court of Kecord, without the judgment or decree founded upon it, is not evidence. 6 But a verdict in a Justices' Courtis evidence, without the judg- 1 1 Phil. Ev. 4G4, G96; Cowen and 3 6 Wend. B12. Hill's Notes to Phil. Ev. 1201 to * 11 John. 434. 1263, 1349. 5 11 J hn. 434. - Com. Dig. Pleader, 2 TV., Record « Bull. N. P. 234; Willcs, 367. C; Strange, 1171. 340 Proof of Writings and Records. ment ; for a Justice cannot, like a Court of Record, either arrest a judgment or grant a new trial, but is bound to ren- der judgment thereon ; and should he omit to do this, the law will, itself, attach the proper judgment to the verdict. 1 4. A proceeding in a cause before a Justice of the Peace, though it is so far a record, is proveable in the manner pro- vided by the Revised Statutes. 3 Where the transcript is to be read before the same Justice it is sufficient that a certifi catc be annexed thereto in the following form : ' " A copy. , Justice of the Peace." The statute directs very minutely how a Justice shall make his docket entries. In preparing his transcript, therefore, he has only to copy the entries in his docket, and subscribe the same. To this copy may be attached, or endorsed, the ofHcial certificate of the Clerk, thus : State of New York, Oneida County Clerk's Office ' I, , Clerk of said county, do hereby certify that , Esquire, whose name is subscribed to the annexed certificate, was, on the date of the same, a Justice of the Peace in and for the said comity, and duly authorized by law to take the same. And further, that I am well acquainted with the hand writing of said Justice, and verily believe his signa- ture to the said certificate is genuine. In testimony whereof, I have hereunto subscribed my name, and affixed the seal of said county, the [l. s.J 16th day of June, 187 . , Clerk. The transcript thus authenticated is evidence in all courts, and may be used in favor of the Justice as well as others, and this though it be made out after he has ceased to be in office. But it seems the transcript cannot be received as evidence of any proceeding, if there bo no judgment, though before the Justice himself his docket may be read. The transcript cannot, of course, be received as evidence of any matters which the Justice is not authorized to enter on his docket, pursuant to the statute. Section two hundred and 1 2 John. 181. 2 2R. S. 269, [4th ed. p. 450;] 15 Wend. 287. Proof ov "Writings and Records. 341 forty-three points out the specific items of entry. Section two hundred and forty-four refers to the extent of the docket and consequent evidence derivable from it, in some measure to his discretion, so long as it is confined to matter which properly belongs to the cause pending before him. The Justice may doubtless state in his docket the matters which were actually tried before him, and what was submitted to or withdrawn from the consideration of the court or jury, where he shall deem cither to be material. His transcript then exhibits these facts. So items of evidence may some- times also become a material subject of entry, and be shown in the same manner. 1 The directions contained in the statute must be strictly followed in the frame and mode of authenticating this kind of evidence, or it will be inadmissible. If the certificate or transcript omit to state what evidence was given on the for- mer trial, or what was submitted or withdrawn from the consideration of the court or jury, this may be proved by parol evidence on the oath of the Justice, or counsel, or a bystander, &c. This is the rule even in a Court of Record.* And the minutes of the evidence made by the magistrate, or other person upon a trial, arc no higher in degree than their verbal evidence, and, therefore, need not be produced though they may be resorted to in order to refresh the mem- ory of the -witness, like all other memoranda made at the time of a transaction. If the minutes be original entries made at the time, they may, on this being proved by the person who made them, be themselves received as proof, though the witness may have forgotten the facts. 3 This transcript of the Justice, properly authenticated, is, like a record, conclusive evidence, and cannot be contradicted by parol testimony. 4 5. The right of proving papers by sworn copies is, by no means, confined to the cases mentioned in the second excep- tion. Wherever the writing to be proved is of a public 1 See 13 John. R. 184. 3 1 Phil. Ev. 221, and Notes by 8 16 John. 136; 2 Id. 227; Cowen Cowen & Hill, pp. 550, 750 to & Hill's Notes to Phil. 837 to 840, 759, 579 to 585. 052, 971, 2, and rases there cited. * 13 John. 184. 342 Proof of Writings and Kecords. nature, and therefore properly confined to a single place for the inspection of all whom it may concern, a sworn copy is "•ood evidence. Thus, not only the records, books, and other papers properly and officially on file, or belonging to the various offices of State, and of our courts of justice, are susceptible of proof in this manner, but a great variety of others of inferior importance or authority ; as those hi offi- cial custody of the clerk of the Board of Supervisors, town clerks, school district clerks, and the proper officers of othci municipal corporations; 1 It is, doubtless, within the same principle, that the sworn copy of a Justice's docket in evi- dence. It is necessary that these sworn copies should be received in evidence as well for the security of the instru- ment as for the convenience of the public. 3 Though it has been denied that the ride extends to the papers of a private corporation ; as a bank, insurance company, turnpike com- pany, church library, and the like. 3 Copies of all papers duly filed in the office of the town clerk, including those filed with him as clerk of the com- missioners of common schools, and transcripts from the book of records, certified by him, shall be evidence, in all courts in like manner as if the originals were produced. 4 The certificate may be as follows : Oneida County, Town of Deerfield, ss. I certify that the above is a copy of an instrument in writing, duly filed in the office of town clerk of the, said town. I have compared it with the original on file in my office, and the same is a correct transcript therefrom, and of the whole of said original. , Cleric of said Town. The Eevised Statutes provide that a great variety of offi- cial certificates may be read in evidence, and that the tran- script of original documents in the hands of a large num- ber of officers may be certified by them so as to be read in evidence. As a reference to the more important of them will be of frequent advantage to a Justice of the Peace, it is hero given. The certificates of the board of canvassers 1 1 Phil. Ev. 424, and notes 1105,0. 2 i p),M. Ev. 424. See also index to 4th cd. II. S. 3 Phil. Ev. 424. title Evidence. * 1 R. S. 300, § 10, [4th cd. p. 6591 Proof of Wettings and Records. 343 authorized to canvass the votes given for any elective office, is evidence of the election of the person therein declared elected. 1 The transcript of the record of a conveyance duly recorded, may be read with the like force as the original conveyance. 3 The discharge of an insolvent debtor, or" the record or a transcript thereof, is evidence of the proceedings and facts therein contained. 3 The record of the proof ofa will, exemplified by the Surrogate or clerk of the Supreme Court, is evidence in certain cases. 4 Copies of records and papers in the office of the Secretary of State, certified by him and authenticated by his seal of office, are in all cases, evidence in like manner as the originals y> copies of papers deposited or filed in the office of the Comptroller and State Engineer and Surveyor, certified by the officer in whose office they are deposited, are, in all cases, evidence equally and in like manner with the originals. Copies of all papers duly filed in the office of the County Clerk, and transcripts from the books of records kept therein, certified by such clerk, with the seal of his office affixed, shall be evidence in all courts in like manner as if the originals were produced. 7 The following provisions of the Revised Statutes prescribe the manner of authenticating copies of records to be used in evidence. 8 § 59. "Wherever a certified copy of any affidavit, record, document or other paper, is declared by law to be evidence, such copy shall be certified by the clerk or officer in whose custody the same is required by law to be, to have been compared by him with the original, and to be a correct tran- script therefrom, and of the whole of such original; and if such officer have any official seal by law, such certificate shall be attested by such seal ; and if such certificate be given by the clerk of any county, in his official character as such clerk, it shall be attested by the seal of the Court of 1 1 Id. 118. § 17, [4th ed. p. 323.] i 2 R. S. 59, § 18, [4th ed. R. S. vol 2 1 Id. 759, § 17. [4th td. vol. 2, p. 2, p. 242,] Laws 1837, ch. 460, § 38 167.] [4th ed. R. S. vol. 2, p. 243, § 17.] 3 2 Id. 38, §§ 19, and 20, [4th cd. M E. S. 166, § 4, [4th ed. p. 384.] p. 216 217.] « 1 R. S. 188, § 17, [4th ed. p. 408.] 7 1 R. S. 377, § 65; [4th ed. p. 689. 8 2 11. S. 403 ; [4th ed. p. 649.] 344 Proof of Writings and Records. Common Picas [County Court] of the county of which ho is clerk. § 60. But the last section shall not be construed to require the affixing of the seal of any Court to any certified copy of any rule or order made by such Court, or of any paper filed therein, when such copy is used in the same Court, or before any officer thereof ; nor to require the seal of the Supreme Court to be affixed to a certified copy of any rule or order of that Court, when used in any Circuit Court. By act of Congress passed May 26, 1790, the records and judicial proceedings of the Courts of any State in the United States, arc proved or entitled to be admitted in the Courts of any other State, upon being authenticated by the attes- tation of the clerk and the seal of the Court annexed, if there be a seal, together with the certificate of the Judge, Chief Justice or presiding magistrate, as the case may be, that the said attestation is in due form. Such records and judicial proceedings, authenticated as aforesaid, have the same faith and credit given to them in every Court of the State where they may be offered, as they have by law or usage in the Courts of the State from which such records are taken. §426. (Am'd, 1869.) Laws of other stales and govern- ments, how proved. Printed copies of statutes, code or other written laws, and of the proclamations, edicts, decrees and ordinances, by the executive power of any state or territory or foreign gov- ernment, when printed in books or publications purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the exist- ing law, in the courts and judicial tribunals of such state, territory or government, shall be admitted by the courts and officers of this state, on all occasions, as presumptive evidence of such laws, proclamations, edicts, decrees and or- dinances. The unwritten or common law of any other state or territory or foreign government, may be proved as (acts by parol evidence, and the books of reports of cases adjudged in these courts, may also lie admitted as presumptive evi- dence of such law. (Code of Procedure, § 426. ) Proof or Writings and Kecokds. 345 The Kevised Statutes contain the following provisions in relation to testimony taken in and evidence of the judicial proceedings of another State: 1 $ 25. In cases where by law the affidavit of any person residing in another State of the United States, or in any foreign country, is required or may be received in judicial proceedings iu this State, to entitle the same to be read, it must be authenticated as follows : 1. It must be certified by some Judge of a Court having a seal, to have been subscribed and taken before him, speci- fying the time and place where taken :, 2. The genuiness of the signature of such Judge, the ex- istence of the Court, and the fact that such Judge is a member thereof, must be certified by the Clerk of the Court, under the seal thereof. § 26. The records and judicial proceedings of any Court in a foreign country, shall be admitted in evidence in the Courts of this State, upon being authenticated as follows : 1. By the attestation of the clerk of such Court, with the seal of such court annexed, or of the officer in whose custody such records are legally kept, with the seal of his office an- nexed : 2. By a certificate of the Chief Justice or presiding magis- trate of such Court, that the person attesting such record is the clerk of the Court, or that he is the officer in whose cus- tody such record is required by law to be kept ; and in either case, that the signature of such person is genuine : and, 3. By the certificate of the Secretary of State, or other officer of the government under whose authority such Court is held, having the custody of the great or principal seal of such government, purporting that such court is duly consti- tuted, specifying generally the nature of its jurisdiction, and verifying the signature of the clerk or other officer having the custody of such record, and also verifying the signature of the Chief Justice or presiding magistrate. ^ 27. Copies of such records and proceedings, m the Courts 1 2 R. S- 390; [4(h ed. p. 641 J 346 Proof of Writings and Kecoeds. of a foreign country, may also be admitted in evidence, upon due proof, 1. That the copy offered has been compared by the witness with the original, and is an exact transcript of the whole of such original : 2. That such original was in the custody of the clerk of the Court, or other officer legally having charge of the same : and, 3. That such copy is duly attested by a seal, which shall be proved to be the seal of the Court in which such record or proceeding shall be. § 28. The preceding sections shall not prevent the proof of any record or judicial proceeding of the Courts of any foreign country, according to the rules of the common law, in any other manner than that herein directed, nor shall they be construed as declaring the effect of any record or judicial proceeding, authenticated as therein prescribed. It is provided by an act of the Legislature, passed May 5, 1869, chap. 589, that whenever in any action in any court of this State, it may be necessary for any parties to such action, to prove any acts or transactions of any foreign cor- porations created by the laws of any other State or country, the book or books of such corporation may be received and read as prima facit evidence for that purpose in such actions, whether the parties. thereto, or any of them, are of are not members of such corporation. 1 By chapter 270 of the Laws of 1850, authorizing the ap- pointment of Commissioners of Deeds to reside in other States or Territories of the United States, the proof or acknowledgments of deeds and affidavits taken before them, and properly certified under their hands and seals, are re- ceived in evidence if a certificate of the Secretary of this State under his hand and official seal be affixed thereto, cer- tifying that the Commissioner was at the time of taking the proof or acknowledgment, or of administering the oath or affirmation, duly authorized to take the same ; that the Sec- retary is acquainted with the hand writing of the Commis- 1 Scss. Laws of 1869, chap. 589. Proof of Writings and Records. 347 sioner, or has compared the signature to the certificate with the signature of the Commisioner deposited in his office. and has also compared the impression of the seal affixed to said certificate with the impression of the seal of such Com- missioner deposited in his office, and that he verily believes the signature, and the impression of the seal of said certifi- cate to be genuine. 1 When the production of -the original, or the copy of any paper is necessary as proof, even the confession of the party against whom it is intended to be used, unless made in court, will not dispense with the necessity of the regular proof. 2 Sworn copies are to he proved like other transcripts, by a witness who has himself made the copy, or compared it line for line with the original, or who has examined the copy while another person read the original. 3 He can generally determine whether the original paper be the true one bythe place where, the person Avith whom, or the book in which he finds it, and is to state under oath in court, the mode in which he examined it, the same as if he were brought to prove any other fact, being equally subject to cross-exami- nation. On the court being satisfied that the copy is a true one, it is received in evidence, if pertinent to the matter in issue. But no copy of a copy, examined as above, however authenticated, is admissible, provided the original be still in existence.' It is otherwise if that be lost, and the copy be therefore resorted to as secondary evidence. 5 6. The rule that the instrument itself must be produced, does not extend to mere written acknowledgment of facts, memoranda or notices. Thus, though a receipt be given, payment may be proved in any other way ; and so, though a memorandum be made by a witness, if he can remember the same facts without a memorandum, he is not bound to produce it •? and so of an account book or an original entry touching an account. 7 i 4th ed. R. S. vol. 2, p. 1G5. - r > Id. arid 1234, 1240. » 6 John. 9; 10 Id. 218. « Cowcn & Hill's Notes to Phil. Ev 3 1 Phil. Ev. 386; Notes by Cowcn 517, 550, 750. and Hill, 1065, 1240. 7 Id. 700. • Cowen and Hill's Notes to Phil. Ev. 1065-G. 348 Instruments Attested It is indispensable to the admissions in evidence of a memo- randum made by a witness at the time of the making of an alleged agreement that it be shown, the witness has no recol- lections of the matters stated therein, independent of the written paper. If he has such recollections the evidence is indispensable. Where a witness testifies fully to an inter- view between the parties, at which an agreement was entered into, a memorandum of the terms of such agreement made by him at the time, is not admissible to coroborate the wit- ness. 1 And a notice, though in writing, may always be proved by parol. 3 Though with the exception of notices, if you propose to prove the actual contents, you must produce the original, or account for its absence, as in other cases. 3 In relation to Instruments attested by Subscribing Witnesses. Any deed, or other private contract, or matter reduced to writing, and attested by a subscribing witness or witnesses, must be proved by the witness or witnesses, whose attesta- tion appears thereto. But where there are several subscrib- ing witnesses, the production of one is sufficient in all cases, if the witness produced can prove the regular execution of the instrument-* But the law goes no further, and it is not necessary to produce the supposed writer or signer of a con- tract, or other instrument, in order to prove or disprove its execution. This may be done by proof of the handwriting, through third persons, where there are no subscribing wit- nesses. Thus, you may prove the handwriting of a Justice, to show that he issued process ; or a constable, to show his return ; and so in a great variety of cases. 5 If a parly has admitted the execution of a written con- tract, not under seal, this dispenses with the production of the subscribing witness, 6 though it is otherwise of a sealed contract; 7 and, in the first case, the admission ought to be 1 Meacham vs. Pell, 51 Barb. 65; 15 * 1 Phil. E\r. 464, 5, ct. seq.; Cowcn N. T.485; 17 N. Y. 131; 22 N. Y. & Hill's Notes, 1261, 2. 462. 6 id. 223, and Notes, 553. S Id. 517. 700, 760. 6 2 John. 451. 3 Id. 547. 7 3 Id. 477; 16 Id. 201. By Subscribing Witnesses. 340 direct and explicit, for where A. demanded payment of a note of the defendant, but did not show it, nor state the amount nor date, and the defendant said he had given a note to H., which he would pay at a future day, this was held insufficient to dispense with the production of the subscrib- ing witness. 1 The exception is peculiar to this State ; and even here, it has* been doubted whether it extends beyond negotiable paper. 2 It is difficult to maintain it on principle ; and the authorities elsewhere demand the subscribing wit- ness, notwithstanding the party's acknowledgment, whether the instrument be scaled or unsealed. 3 If the subscribing witnesses are all incapable of being ex- amined, the course then is to prove their handwriting, or the handwriting of one of them, which latter is enough. This course may be taken, where the subscribing witnesses are dead, or blind, or insane, or infamous, where they have become interested after subscribing, or where they are out of the jurisdiction of the court, so as not to be the subjects of a subpoena. 4 It is so, in relation to a Justices' Court ; if the subscribing witness be neither in the county where the cause is tried, nor in the adjoining county, this lets in inferior proof. 5 And so in-all cases where the witness can- not be found after strict and diligent inquiry." When a deed on its face has anything to excite a suspi- cion of fraud, the mere proof of a handwriting of a sub- scribing witness who has died, is not sufficient evidence to entitle it to be read. The party offering it, must in such a case, in addition to the proof of the signature of the attest in"- witness, give evidence explaining the suspicious circum- stances, or prove the identity of the grantor. 7 A party in the suit, or one having an interest in the verdict, may be a witness to prove the death or absence, beyond the 1 Cowenfc Hill's Notes to Phil. Ev. * 12 John. 188; 12 Barbour, 377; 13 1263, 1265; 16 John. 201. Wend. 178; 5 Barb. 449. 2 Cowen & Hill's Notes to Phil. Ev. 6 1 Phil. Ev. 473; 12 John. 188; and 1263, 1265; also text to 1 Phil. Ev. Cowen & Hill's Notes to Phil. Ev. 465. 1294. 1 Phi Notes 7 25 Wend. 259. SI Phil. Ev. 473,4, Cow. & Hill's «1 Phil. Ev. 473; Cow. & Hill's Notes, 1263, 12G5. Notes, 1294. 350 Parol Evidence as to Writings. reach of a subpoena of the Justice, of a subscribing witness, or the loss of any instrument, which shall come in question on the trial, in order to introduce other proof of the execu- tion or contents of such instrument ; but in no other case, without the consent of the parties. 1 To this branch of the rule, there are, also, the following exceptions : All conveyances or writings concerning real estate proved and recorded, and all other instruments proved pursuant to the provisions of the statutes are evidence of themselves. And when writings concerning real estate are recorded, the record or a duly certified transcript is also evidence. Either the original or copy is, however, but presumptive evidence of the execution of the instrument, and may be rebutted. The proof or acknowledgment of a conveyance of real estate may be made before the following officers, viz :" If within the State, Justices of the Supremo Court in any part of the State ; and within their own county, city or town, Judges of County Courts, Mayors and Eecorders of cities ; Commissioners of Deeds in cities, Justices of the Peace in towns, and Notaries. (Notaries powers were enlarged in 1859.) If out of the State, the Chief Justice, and Associate Justices of the Supreme Court of the United States, District Judges of the United States' Courts, the Judges or Justices of the Supreme, Superior, or Circuit Courts of any State or Territory within the United States, the Chief Judge ' or any Associate Judge of the Circuit Court of the United States in the District of Columbia, within the place or territory to which the jurisdiction of the Court to which he belongs ex- tends ; the Mayor of any city in the United States, any Consul of the United States resident in any foreign port or country, a Judge of the highest court iu Upper or Lower 'Canada ; and when made by any person residing out of this State and within any other State or Territory of the United States, before any officer of such State or Territory author ized by the laws thereof to take the proof and acknowledg- ment of deeds, with a certificate under the name and official seal of the clerk or register of the county in which the officer 1 2 R. S. 174, § 106. 2 2 R. S. l.) Admissions and Declarations. 361 monial or meretricious ; but their declarations after the in- tercourse ceased would not be sufficient to repel the presump- tion of an actual marriage, or to establish the illegitimacy of their children. 1 In like manner, where the president of a bank requested the defendant to pay a note belonging to it, which he insisted had been paid, and they proceeded to ex- amine the books of the bank, when the president declared himself satisfied that is was paid, it was held that the decla- ration of the president was within the scope of his ordinary powers and part of the res gestae.*' And where, in an action by a bank, it became material to show for what purpose a note had been sent to it by a corresponding bank, the letter of the president of the latter inclosing it, it was deemed com- petent evidence as a part of the transaction. 3 The decease of a third person, who has made an entry of a fact in writing, with a view to perpetuate its memory, often renders the entry evidence. This rule extends to a large portion of very important testimony, which is received, after death, in some measure on the ground that it was part of the transaction. It extends to all entries made in the usual course of official and even private business, as entries by de- ceased notaries public, concerning protests and notices, which is the case usually put as an example of official entry. Among entries relating to private business, it has been ap- plied to those made by attorneys, clerks, surveyors, en- gineers, runners and messengers of banks, &c. But it does not extend to oral declarations. The entry must be pro- duced, or its absence accounted for. The witness must be shown to have died. His absence beyond the jurisdiction of the court is not enough. In general, the entry must have been made by the deceased person himself; not by another for him ; though if such were the usual course, and both be dead, the entry is admissible. It must be shown to have been made in the usual course of deceased's duty or business. 4 1 9 Paige, 611. < Con-en fc Hill's Notes to Phil. Ev 2 2 Hill, 445. 074 to 679. » 7 Id. 531. 362 Admissions and Declarations. A party -whose admissions or confessions are resorted to as evidence against kirn has, in general, a right to insist that the whole shall be taken together ; but the part called out by him should relate to the point or fact inquired into on the other side. 1 The confessions of a person who, if produced, would be a competent witness, arc not admissible. 3 Where the plaintiff, previous to the suit, assigns his in- terest in the demand, and the defendant has notice of the . assignment; the confessions of the plaintiff, made subsequent to the assignment, are inadmissible to defeat a recovery. 5 The rule is well settled in this State, thatthe declarations of the owner of a chose in action, are not admissible to affect the rights of one subsequently deriving title from him. 4 The declarations of the intestate, touching the title to personal property, are evidence against his administrator, but they are not competent evidence against other parties who claim title under the deceased. 5 The confessions of a party are not admissible to prove the execution of a scaled instrument to which there is a sub- scribing witness, nor matters of record. And, in a suit brought against a witness for non-attendance before a Justice, the acknowledgment of the witness, that he has been sub- poenaed, will not be sufficient ; the subpoena must be pro- duced. 6 An offer of compromise of a contested claim is no evi- dence of indebtedness, for a man may bo willing to buy his peace at a sacrifice ; and admissions or concessions made when a treaty of compromise is pending, with reasonable prospect that it will be carried into effect, are not admissible evidence against the party making them. 7 Where, at the time of delivering promissory notes to a third person, for the benefit of the payee, the maker declares 1 Kelsey vs. Bush, 2 11111,410; 21 * 21 Barb. 161; 7 Hilt, 361, and Wend. 351. cases cited; 18 Barb. 344; 2 Ker- 2 11 John. 185. nan, 118. 3 20 John. 142. 5 2 Kernan, 118; Denlo J. o 6 John 9; 10 Id. 248. 7 Phil. 78; 8Cowen,201 Cooks of Account in Evidence. 3G3 tho delivery to be unconditional, such declaration is a part of the res gestae, and makes the act of delivery absolute. 1 Books of Account in Evidence. The cause in which the admissibility of a party's books as evidence in his favor, was established and restricted, origi- nated in a Justices' Court, where this species of evidence is much oftener introduced than before any other tribunal. Thayer sued Vosburgh (12 John. 462,) before a Justice, for butcher's meat, furnished by him to Vosburgh's family. Thayer proved 1. That he had been in the daily practice of supplying Vosburgh and his family with meat during the period for which he claimed payment. 2. lie proved by some of those who had dealt with him, that he kept just and honest books of account. 3. That he had no clerk. He then offered his books of account in evidence, which were objected to by the defendant, Vosburgh, but admitted by the Justice, who gave judgment for the plaintiff, Thayer. Vos- burgh removed the cause by certiorari to the Supreme Court, where the judgment M-as affirmed, and the following restrictions laid, within which, all account books, without regard to the particular employment of the party keeping them, arc made evidence in his favor. I. The charges to be proved must be such as arc matter of book account. A book, therefore, would not be evidence of money lent, had and received, or paid, laid out, and ex- pended, for the use of the opposite party. II. They are not evidence of a single charge, because there exists, in such case, no regular dealings between the parties. III. They are not to be admitted, where there are several charges, unless a foundation is first laid for their admission, by proving : 1. That the parly had no clerk. 2. That some of the articles charged had been delivered. 3. That the books produced are the account books of the party. 1 4 Barbour, 304. 364 Books of Account in Evidence. 4. He must prove by those who have dealt and settled with him, that he keeps fair and honest accourtts. Under these restrictions, they are evidence to be left to the court or jury. Questions on this species of evidence have rarely come under review of the Supreme Court since the above decis- ion ; the instances in which they have, however, should hold a prominent place in a book designed to instruct Justices of the Peace. I shall therefore, refer to them in order to show in Avhat manner the Supreme Court view this species of evidence. In this State, this kind of evidence is not restricted to any particular sort of business or occupation. It is common to the merchant, mechanic or farmer. 1 It seems to be no objection that part of the entries are made by the party, and part by a clerk, though quere whether the book would then be evidence as such beyond the entries made by the party, and if the party have a clerk, the neces- sity which sanctions it even so far seems to be wanting. Vosburgh vs. Thayer holds that he must have no clerk, and we shall see that this sort of evidence is, in general, consid- ered as secondary, and not receivable when direct proof may be had through others. 2 Independent proof by a mechanic of two of the items charged in his book, was held to satisfy the second requisi- tion of Vosburgh vs. Thayer. 3 The oath of a clerk that he believes his entries to be true, though he has lost all personal recollection of having deliv- ered the goods charged, makes the books evidence as origi- nal entries. But this is common law evidence. The cases here cited, hold that to warrant books in evidence, as those of the party, they must be his general books of daily ac- count, not mere memoranda or check rolls, made up as mementos of other's labor in the work done by the party producing them for his adversary.* Also that the entries of work done, must be for such as is 1 6 Wend. 407, 9; 29 Id. 75. * 4 Wend. 30, Savage, C. J.; 20 Id. 2 4 Wend. 483; 20 Wend. 74, 6. 75; 1G Id. 595. 8 11 Wend. 5C8. Books of Account in Evidence. 365 done ia the ordinary course, and not of charges on a man- turn meruit, or for work done on a special contract, though the opposite party, by violating the contract, may have be come legally liable to be charged iu that form. 1 When the jurors are convinced that any one entry made by the party in the particular account is wilfully false the whole book should be rejected. Entries must be daily, and particularly made, as the work progresses, or the goods are delivered, not by lumping several days together, or charging a round sum, as for a job, or at so many days. 2 The entries must be made at or near the time of the trans- action ; they should be memoranda of transactions as they occur, but the proximity of time must depend on the course of business. The party may first enter his accounts on a slate, and afterwards transcribe them into his book ; if such be his ordinary course in making his entries, such accounts should in general be entered in his book daily. The entry must be in the book of the party, kept as his daily account book with those who deal with him, and charged promis- cuously along as they occur ; the book must contain the original entry made by the party himself and not by an- other, though this would be exciised if lie could not write himself. They may be kept in form of an ordinary journal, or day book, or ledger wise, i. e., where the account of each man dealing' with the party is kept by itself. Erasures and inter- lineations go much to discredit the book ; they are open, however, to explanation, and do not necessarily render the book incompetent evidence. If the day-book appear to be posted, the ledger must be . produced as that may show payments. Books are evidence of the items, sale and delivery of goods, services done, ma- terials found, and retained to do the service, together with the price carried out respectively ; the book, however, like a confession, is to be taken altogether, with its charges and credits ; and it is the peculiar province of a court or jury 1 10 "Wend. 594. 22 Cow. Tr. 422. 3G6 Books of Account in Evidence. to examine the books of a party carefully, and give them such weight and credit as they honestly believe from all the circumstances they are justly entitled to, always remember- ing that it is easy for a party keeping the books to make false charges against his opponent, and thus prejudice his rights. In the case of Larue vs. Eowland, (7 Barbour, 107,) Jus- tice Harris delivered the following able opinion on the sub- ject of receiving books of account as evidence. He says: Books of account are received in evidence only upon the presumption that no other proof exists. They are justly regarded as the weakest and most suspicious kind of evi- dence. The admission of them at all, is a violation of one of the first principles of the law of evidence, which is, that a party shall not himself make evidence in his own favor. The practice of admitting such evidence is, I believe, uni- versally adopted. It is said that it has its origin in a kind of "moral necessity," and that such is the general course of business, that no proof would be furnished of the frequent small transactions between men without resorting to the en- tries which they themselves have made in form of accounts. The practice can only be justified upon the ground that, without such evidence there would in many cases be a total failure Of proof. It may be added that it has been often doubted, by those, too, who have had the best opportunities for observing the facilities for frauds which this loose species of evidence affords, and the abuses which in inferior courts have been perpetrated under it, whether it would not have been more wise to have excluded such evidence altogether. At the very best it is but presumptive evidence, and that, too, of the lowest grade. It should always bo received with extreme caution, and be subjected to the strictest scru- tiny. The common law did reject it altogether. In countries where the civil law prevails, books of account are general^ received in evidence, in connection with the oath of the party. But to make them evidence at all, the books musthave been kept in a manner so cautious as in a great degree to furnish a guarantee against abuse. In many, perhaps most of the United States, what is called the suppletory oath of the party is required. In this State that practice has not obtained ; and I Books op Account in Evidence. 367 agree with Justice Cowen, that, frail as such proofs must be, the law can hardly be censured for thinking they would be but little fortified by the suppletory oath of an interested and excited party. (See Sickles vs. Mather, 20 Wend. 72, Cowen & Hill's Notes, 682.) Notwithstanding what I have said, I admit the necessity which receives this species of evidence. In a country like ours, where the artisan and tradesman are compelled by the usages which have obtained to give credits to their customers, and yet in very many instances cannot afford to keep clerks, the customary entries made in the usual course of business, must, to prevent greater in- justice, and when free from all suspicion of dishonesty and unfairness, be received as evidence of the transactions to which they relate. All I claim is, that the true character of the evidence should be appreciated. The general rules which experience has suggested as safeguards against dis- honest practices are, that the evidence should only be re- ceived upon preliminary proof that the books offered contain original entries made by the party himself; that they are fairly kept ; that the party had no clerk, and had dealings with the person charged. These are questions upon which evidence is to be addressed to the Court, to enable it to deter mine whether the books of account shall be received as evi- dence at all. So also fraudulent circumstances may be proved for the purpose of rendering the evidence incom- petent. Thus it may be shown that material and gross alterations have been made, or that entries have been made j>ost litem motam, and even that they were not made at or near the time of the transaction. In short, anything may bo proved which will show that the books are unworthy of credit, and if the proof sustains the objection it is the duty of the Court to reject the evidence as incompetent, and leave the party to his common law proof. (Coggswell vs. Dolli- ver, 2 Mass. Rep. 217; Eastman vs. Molton, 3 New Hamp- shire Eep. 156.) In the light of these principles, let us advert to the facts of the case under consideration. The de- fendant, to establish his set-off, offered his books of account 368 Books of Account in Evidence. as evidence. He gave what, in the first instance, should perhaps be considered sufficient preliminary proof. The books offered were a day-booh and a ledger, and upon inspection it appeared that the entries in the day-book were of a date several years anterior to the time of the trial, and that the defendant had another book containing entries of a later date, in which his account with the plaintiff was continued. The ledger showed one item posted from this second day- book to the plaintiff's account. The plaintiff alleged that the second day-book, if produced, would be found to contain credits varying the account in his favor. The defendant denied that ho had such second day-book, but, besides the evidence of the ledger itself, one of his own witnesses with whom he had settled an account from the very book was recalled and proved its existence beyond all question. Under these cir- cumstances the Justice was undoubtedly called upon to reject the books as incompetent. If the account* had been paid, or if the plaintiff was entitled to credits applicable to the account, they would have been most likely to have been found entered in the books at a later date than the charges. (In Prince vs. Swett, 2 Mass. It. 5C9,) a day-book was offered in evidence to prove an account for goods sold and delivered. When produced, it appeared from the postmarks upon it that the account had been posted to a ledger. The court held that it was necessary to produce the ledger as well as the day-book, that the other party might have the advantage of any items entered in it to his credit. The ex- istence of the second day-book in this case was proved. The defendant did not pretend that he was unable to produce % It is a just rule of evidence that where a demand is made upon a party to produce his books of original entries, and he refuses, without assigning a satisfactory reason for it, every- thing is to be presumed against him which the nature of the transaction will warrant. I cannot see what is to exempt the defendant from the operation of this rule. He was required to produce a book of original entries. He refused, and gave no excuse for it. The book might well have contained credits to the plaintiff sufficient to balance the account. There is some reason to .Hooks of Account in Evidence. 3G9 believe from what occurred upon the trial that it did in fact contain such credits. The Justice, therefore, erred in allow- ing the books to go to the jury as evidence to establish the defendant's account against the plaintiff. Besides, I think the evidence should have been excluded upon another prin- ciple. Books of account, to some extent, partake of the nature of documentary evidence, in respect to which it is a cardinal rule, that part of an instrument cannot bo received while a part is withheld. The whole must betaken together. So I think it is with regard to books of account. All tho books containing entries relating to the account, where relied upon as furnishing evidence to sustain the account, should be produced. A party should no more be allowed to with- hold a part of tho account while he avails himself of an- other part as evidence in his favor, than a part only of a deed or other document should be received in evidence. The fact that the account ran into two books cannot vary the principle. It is the same in legal effect as though the de- fendant had insisted upon sealing up one half of the day-book he offered in evidence in his favor. The only proper or safe rule to apply in such a case is that if a party, in derogation of the fundamental and salutary rule of evidence, that one shall not be permitted to make testimony for himself, seeks to introduce his own entries in his own books, as evidence of tho dealings to which they relate, he shall, at least, allow the party to be affected by such evidence, the benefit of all the entries he has made. Common fairness demands it. Upon this ground, also, the books should have been excluded. For these reasons, the judgment below should be reversed. A party who relies upon the account books of his adver- sary to prove items in his own favor, must also take the books as evidence of the charges against him. The account books of a party are not evidence, in his own favor to prove charges for cash lent to his adversary. 1 The books of account kept by a bank are not themselves 1 Low vs. Taine, 4 Comstock, 247. AV 370 Who are Competent Witnesses. evidence against its customers of the facts indicated by their entries. A check, drawn upon and paid by a bank, is not evidence of indebtedness of the drawer to the bank. The legal pre- sumption is that it was drawn against funds of the drawer. 1 The entries made by the officers of a bank in the pass-book, kept between the bank and its customer, are the customer's vouchers for payments, deposits and other transactions with the bank. They arc made by-the bank and delivered to the customer for his safety, and as written evidence of the facts appearing by the entries. When a customer, having deposits in a bank, credited on his pass-book, is charged with his note, the charge is an appropriation by the bank of so much of its customer's money in payment and satisfaction of the note. It extinguishes the debt, and the note is thenceforth func- tus officio. As against a subsequent holder of the note who acquires it after clue, it is equivalent to a receipt in full by the bank, indorsed on the note, subsequent holder being chargeable with notice of the entries existing between the bank and the previous parties. 2 If a defendant relies upon his credits in the plaintiff's account, he cannot object to cash charges and charges for due bill, charged in the account on the book. The rule is, that if a party makes the books of his adversary evidence in his favor to prove his credits, he is bound to take the whole account together, and to admit the whole of the debit side of the account ; and the rule is the same whether the books arc produced by the plaintiff or the defendant. 3 Who are Competent Witnesses. ■ The incompetency of witnesses arises, 1st, from want of understanding ; 2d, from defect of religious principle ; 3d, from infamy of character ; 4th, from interest ; 5th, from the relation of attorney, solicitor, or counsel and client ; also, that of physician, surgeon and patient, &c. This question of competency belongs exclusively to the Justice ; as the 1 4 Selden, 170. S 22 Barbour, 147, and cases «t<>d. •2 2 Selden, 276. Who aee Competent Witnesses. 371 o qucstiou of credibility does to the jury, (or Justice sitting in their stead,) after the witness is sworn. If the witness he incompetent, he cannot be sworn ; if he be incredible, he is not to be believed when sworn. Persons insane, idiots and lunatics, under the influence of their malady, are incompetent, though if they enjoy lucid intervals, they may testify during such intervals, if they appear to have sufficient reason. Even a person born deaf and dumb, may, if he appear to have sufficient understanding, give evidence through an interpreter by signs. Though, if he can write, this is the more certain mode. A person in a state of intoxication is incompetent, and the Justice may determine the question of his competency by inspection. 1 Children, who do not understand the moral obligation of an oath, cannot be examined. But if they do understand such obligation, they may be sworn at any age over four years. If capable of distinguishing between good and evil, they may generally be sworn ; and if the child appear to have good sense, but not to understand his duty when sworn, he may be instructed by the Justice, or some judicious per- son appointed by him. This may be done on the spot, and in the meantime, the trial may be suspended. 3 Though in one case, where the child manifested a total want of all reli- gious instruction, Patterson, J., held that mere instruction by a clergyman, for the purpose of rendering her competent, would not have that effect. 8 Witnesses may be examined as to the competency of a lunatic, &c, though the usual and most satisfactory mode is, by the inspection and examination of the witness himself. ' The latter is the true course in testing the capacity of infants. The party objecting may insist on this ; and it is no answer that the Justice has before examined the witness privately, and so is satisfied of his capacity. The Kevised Statutes provide that every person who be- lieves in the existence of a Supreme Being, who will punish 1 1 Phil. Ev. 18, 19, and Notes by '■> Cowen & Hill's Notes to Phil. E7. Cowen & Hill, 60, 61. 1502. 2 Id. 19, and Notes by Cowen & Hill, * 10 John. 3G2; 16 Id. 143. 61. 372 Who ake Competent Witnesses. • false swearing, may be sworn as a witness. Thus, a Jew, Mahometan, Gentoo, and infidel of any country, may be wit- nesses, and one who believes that moral punishment for sin is confined to this world, is clearly admissible. But atheists, and such infidels as profess not any religion, natural or re- vealed, that can bind their consciences to speak the truth, are excluded from being witnesses. 1 The statute provides that, [§ 88.] No person shall be re- quired to declare his belief in the existence of a Supreme Being, or that he will punish false swearing, or his belief or disbelief of any other matter, as a requisite to his admission to be sworn or to testify in any case. But the belief or un- belief of every person ofl'ered as a witness, may be proved by other and competent testimony. ^ 89. But the last section shall not be construed to pre- vent any court before whom an infant, or a person apparently of weak intellect, shall be produced as a witness, from ex- amining such person to ascertain his capacity, and the extent of his religious and other knowledge; nor shall it be con- strued to prevent a court from inquiring of any person what are the peculiar ceremonies observed by him in swearing, which he deems most obligatory. 2 But if an adult has recently and deliberately declared such defect in his belief as would exclude him, it may be shown by other witnesses ; though it is competent to show that he has conscientiously changed such belief, and thereby restore his competency. But he cannot be called upon at the trial to recant his former opinion, or deny the declara- tions proved against him. The statutes prescribes the method of administering oaths as follows :' ; § 82. The usual mode of administering oath now prac- ticed, by the person who swears, laying his hand upon and kissing the gospels, shall be observed in all cases in which an oath may bo administered according to law, except in the cases hereinafter otherwise provided. 1 17 Wend. 4G0. 3 2 R. S. 408, [4th ed. p. C53.] 2 2 R. S. 408, § 80, [4th cd. p. G54 j] 21 Wend. GOS. "Who are Competent "Witnesses. 373 § 83. Every person who shall desire it, shall be permitted to swear in the following form : " You do swear in the pre- sence of the ever living God ;" and while so swearing, such person may or may not hold up his hand, in his discretion. § 84. Every person who shall declare that he has con- scientious scruples against taking any oath, or swearing in any form, shall be permitted to make his solemn declaration or affirmation in the folloAvin" form: "You do solemnlv, sincerely and truly, declare and affirm." ^ 85. "Whenever the court before which any person shall be offered as a witness shall be satisfied that such person has any peculiar mode of swearing connected Avith or in addi- tion to the laying of his hand upon the gospels and kissing the same, which is more solemn and obligatory in the opin- ion of such person, the court may in its discretion, adopt such mode of swearing such person. § 8G. Every person believing in any other than the Christian religion, shall be sworn according to the peculiar ceremonies of his religion, if there be any such ceremonies, instead of any of the modes herein before prescribed. Any form elected by the witness is binding, whether it in fact accord with his conscience or not ; and if he swear false, he is indictable for perjury. 1 The mode in which the witness is sworn, is to be gathered from him on his own suggestion or on his examination before swearing him. When a man is sentenced for a felony, he is incompetent ; but not by reason of sentence for any other crime. 3 A par- don restores his competency, unless the conviction were for perjury or subornation of perjury.' The definition of felony is, any offence punishable by death, or by imprisonment in the state prison. 4 One convicted of and sentenced for the crime of burglary in the third degree, is thereby rendered incompetent as a witness in any cause, civil or criminal, although at the time 1 Cowen & Hill's Notes to Phil. Ev. 3 1,1. opd see 2 R. S. 681. § 1, sub. 3 705 and § 4, [4th ed. p. 865.] 2 2 R *S. 701, § 23, [4th ed. p. 885.] i Id. 702, § 31. [4th ed. p. 886.] 374 Who ake Competent Witnesses. he was under sixteen years of age and sent to the house of refuge and not to the state prison. 1 The definition of felony must be construed as relating to the punishment prescribed for the crime, without reference to any personal exemption. ]S r o sentence upon a conviction for any offence other than felony, shall disqualify or render any person incompetent to be sworn or to testify in any cause, matter or proceeding, civil or criminal. (^ 23 and 30, Title 7, Chap. 1 of Part 4, E. S.) When a witness is objected to on account of his having committed a crime, he is not to be inquired of as to his criminality ; the record of his conviction must be pro- duced. 2 At the common law, parties to an action were not compe- tent witnesses, and neither party could compel his opponent to testify, nor would one of the two plaintiffs or defendants . be permitted to testify either for or against his co-plaintiff or co-defendant without the consent of all the parties/ 1 The fol- lowing provisions of the Code of Procedure have superseded the ancient rules in relation to that subject : " § 300. A party to an action may be examined as a wit- ness at the instance of the adverse party or of any one of several adverse parties, and for that purpose may be com- pelled in the same manner, and subject to the same rules of examination as any other witness, to testify cither at the trial or conditionally, or upon commissiou. u \ 393. The examination of the party thus taken, may be rebutted by adverse testimony. " § 394. If a party refuse to attend and testify as in the last four sections provided, he may be punished as for a con- tempt, and his complaint, answer or reply may be stricken out. ■' ^ 395. A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf in respect to any matter pertinent to the issue. But if he tes- tify to any new matter not responsive to the inquiries put to 1 The People vs. Higgins, 41 N. Y. 2 2 R. S. 383; 13 John. 82; 14 III, 21 ; 23 N. T. 252. 182. 3 Cowen & Hill's Notes, 135, 136. 1G8. Wno are Competent Witnesses. 375 him by the .adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may oifer himself as a witness on his own behalf in respect to such new matter, subject to the same rides of examination as oilier witnesses and shall be so received. " ^ 396. A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined a witness in the same manner and subject to the same rules of examination as if he were named as a party. " <$ 397. A party may be examined on behalf of his co- plaintiff or of a co-defendant as to any matter in which he is not jointly interested or liable with such co-plaintiff or co- defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party, but the examination thus taken shall not be used in behalf of the party examined. And whenever, in the case mentioned in section three hundred and ninety and three hundred and ninety-one, one of several plaintiffs or defend- ants who arc joint contractors or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action or defence, and shall be so received." In order to compel the opposite party to appear and tes- tify in a cause, he must be served Avith a subpoena in the same manner as any other witness, and in addition to the same remedies against him for not appearing, he may be further punished by having his complaint or answer struck out, which will, if he be the plaintiff, have the effect tq non- suit him, and if he bo the defendant, prevent him from introducing any defence to the case the plaintiff makes against him. The provisions contained in ^ 393, 394 and 395, are in- tended to obviate the difficulties which otherwise might have arisen from the permission to call on an opponent to testify. In the first place, the party calling him is not con- cluded by his testimony. Ordinarily a party cannot contra- 376 Who are Competent Witnesses. diet his own witness as to any material fact, but when he. has called his opponent, he may give other evidence to rebut the testimony which the latter gives, even upon the points to which he has been examined. And indeed, if not contradicted, he is not absolutely concluded by it, for the court is not bound to give credit to it, and may disregard it. 1 Secondly, the party called as a witness may testify. on his own behalf to anything material to the issue, but if he does, and he testify to any new matter, he will thereby authorize the party call- ing him to be sworn as a witness on his own behalf in respect thereto. The rule will not permit the party calling him to testify generally on his own behalf, but only as to the new matter to which the party first called has testified in his behalf. And the examination on behalf of the plaintiff of a defendant not served with process, who testifies to new matter, will not authorize the plaintiff to offer himself as a witness. 2 Under the 397th section of the Code of Procedure, the Court of Appeals, in June term, 1854, held that in an action for tort against several defendants, each of them might be called by his co-defendants as a witness, overruling a former decision of the Supreme Court. 3 In an action upon a joint and several bond, each of the joint obligors is a competent witness for the other. 4 At the common law a husband cannot be a witness for or against his wife, nor a wife for or against her husband, ex- cept in criminal prosecutions, where personal violence haw been committed by one against the other ; and in all eases where the husband was incompetent by reason of interest to testify in an action his wife was. 5 This rule has been changed by statute as follows:" § 1. In any trial or inquiry in any suit, action, or pro- ceedings in any court, or before any person having, by law or consent of parties, authority to examine witnesses or heat 1 15 Barbour, 449. i 4 Sand. GIG. - 14 Barbour. 118. S Cowenfellill's Notes to I'hil. Ev.lliS 3 in Barb. 112 ; 1 Kmmn, 128, (as Sess. Laws, 1807, clian. 887. to what matters be may givo evi- dence discussed.) Who are Competent Witnesses. 377 evidence, the husband or wife of any party thereto, or of any person in whoso behalf any such suit, action, or pro- ceeding is brought, prosecuted, opposed, or defended, shall, except as hereinafter stated, bo competent and compellable to give evidence the same as any other witness on behalf of any party to such suit, action, or proceeding. § 2. Nothing herein contained shall render any husband or wife competent or compellable to give evidence for or against the other in any criminal action or proceeding, (ex- cept to prove the fact of marriage in case of bigamy,) or in any action or proceeding instituted in consequence of adul- tery, or in any action or proceeding for divorce on account of adultery, {except to prove the fact of marriage,) or in any action or proceeding for or on account of criminal conver- sation. ^ 3. No husband or wife shall be compellable to disclose any confidential communications made by one to the other during their marriage. By the 398th section of the Code, no interest disqualifies a witness. The section reads as follows : § 398. [351.J (Am'd, 18G9.) JVo witness to be excluded by reason of interest. No person offered as a witness in any action or proceeding in any court, or before any officer acting judicial]}', shall be excluded by reason of his interest in the event of the action or proceeding, or because he is a party thereto, except as is provided in the next following section of this act. Nothing contained in the eighth section of this act shall be held or construed to affect or limit the operation of this or the next following section. § 399.'" [352.] (Am'd, 1851. 1857, 1858, 1859, 18G0, 18G2, •1863, 18G5, 1866. 18G7, 18G9.) Examination of co-plaintiff or co-defendant. No party to an action or proceeding, nor any person inter- ested in the event thereof, nor any person from, through or under whom airy such party or interested person derives any interest or title, by assignment or otherwise, shall be exam- ined as a witness in regard to any personal transaction or communication between such witness and a person at the 378 Who are Competent Witnesses. time of such examination deceased, insane or lunatic, agaiust the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such deceased person, or the assignee or committee of such insane person or lunatic. But this prohibition shall not extend to any transaction or com- munication as to which any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor or committee shall be examined in his own behalf, or as to which the testimony of such deceased person or lunatic shall be given in evidence. The following sections of the Code apply to Justices' Court, viz : Entitling Affidavits. Section 406. Affidavits defectively entitled, valid. ^ 406. [367.] Affidavits defectively entitled. It shall not bo necessary to entitle an affidavit in the ac- tion ; but an affidavit made without a title, or with a defective title, shall be as valid and effectual, for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made. CHAPTER X. Computation of Time. Section 407. Time how computed. ^ 407. [368. J Time, how computed. The time within which an act is to be clone, as herein pro- vided, shall be computed by excluding the first day and in- cluding the last. If the last day be Sunday, it shall be excluded. Our courts have long been desirous of arriving to the period of time when all the technical objections raised to the admission of witnesses in courts of Justice, on account of interest, should be done away, and every person, whether ■a party, or in any way interested, should be permitted to give evidence of any matter pertinent to the issue, and have his testimony, with all his interest, bias and prejudice Aveighcd Who are Competent "Witnesses. 379 in the scales of justice, with the other testimony given in the action. That period has now arrived, and an opportu- nity given to parties to come before the court and jury, make their own statements in relation to the subject matter of difference between them, their appearance, their apparent sincerity, the probability of the truth of their statements, and the confidence they are entitled to, being proper and legitimate subjects of consideration in passing upon and arriving at a conclusion upon their testimony, and it would seem as probable that a court or jury could arrive at as safe a conclusion in this way as any one that could be de- vised. As a fair illustration of the rule in weighing testimony I will adopt the language of Chief Justice Pennington, where he says : " The circumstances of the case, the probable or impro- bable nature of the facts detailed, the character of the witness, the manner of his giving testimony, must all be taken into consideration, and ought, after being duly weighed, to carry conviction to the mind of the jury, before they give it an effect by their verdict. It is common for jurymen to say, in excuse for giving a wrong verdict, that they believed it was wrong, but how could they do otherwise. The facts were sworn to, it was the fault of the witness not theirs. This practice of jurors' loading on the witness their own sins, and making him a scape goat for the whole, is grossly improper. It is true that jurors cannot, nor ought they to substitute, in the place of proof, their own fancies, conjectures, or pre- possessions, much less to suffer their passions, inclinations or biases, to come in aid of proof, but are to govern themselves by the testimony given in the cause. But should a witness relate a fact, which from its improbable nature, or from the badness of the character of the witness, taken together with other circumstances in the cause, on due consideration, doth not carry a belief of the fact home to the minds of the jury, but on the other hand, they believe that what the witness hath related is false ; in that case, what he hath said is no evidence to them, and they are not bound to give any weight to it ; but on the contrary, if they act upon it, or rather 380 Who are Competent Witness>j». make up their verdict on it, such conduct is a departure from their duty, and little short of a violation of their oaths. "After all the evidence is given in a cause, it frequently happens that the mind is in doubt. If the testimony is con- tradictory, it should tfe reconciled if possible ; if it is not susceptible of reconciliation it must be weighed by a sound discretion, and determined as one or the other preponderates. If, after all, the mind is balanced, I think it a reasonable rule, (though I do not recollect any where seeing it laid down,) that it must be determined against the party that hath the affimative side of the question, as having failed to make out what he has undertaken to do." (Vid. Pennington on Small Causes, 162, 3.) The foregoing remarks in relation to witnesses will apply with much greater force, if possible, to parties, who must always feci a deep interest in the event of the action. The objection to a witness for incompetency is made either before he is sworn in chief, or after he is so sworn ; or it may be made both before and after he is so sworn. It must, in each case, be proved by the party who raises it, for the presump- tion is in favor of the witness' competency until the contrary appear, cither by the statement of the party offering him, or in some other way. And being once shown, it must be clearly removed, in order to render him admissible. 1 The question, like all others, as to the admissibility of evidence, must bo decided by the court, and the evidence on the point cannot be submitted to the jury. The court is the trier ; nor will his decision be reversed merely because he happens to decide against the weight of evidence. 2 The more direct, clear, and safe mode of raising the point in a Justices' Court is by objecting to the witness before he is sworn in chief. This makes a distinct collateral issue, determinable by the Justice alone, whether there be a jury or not, on evidence receivable under a peculiar form of oath, called the voir dire, and under rules peculiar to itself. Upon this issue the state of the pleadings, and the evidence and statements of the opposite parly in court, so far as they have already appeared 1 Cowon &c mil's Notes. 1543. 2 Id. 58, 1501. "VVno are Competent Witnesses. 381 in the cause, and are rclcvcnt to the question, may be con- sidered. A party against -whom a person is offered as a witness has a right to have the preliminary oath, called voir dire, admin- istered to him, and to examine him touching his competency before he is sworn in chief. It is not within the discretion of the court to decline to administer the preliminary oath to the proposed witness in the tirst instance, or to refuse to permit the adverse party to show his incompetency until after he is sworn and examined in chief. Although he. is sworn in chief without objection, if during his examination it ap- pear that he is incompetent, the objection is m season. 1 If the party making the objection elect to examine the witness on the voir dire, the oath maybe administered thus: " You do swear, in the presence of Almighty God, that you will true answers make to such questions as may be put lo you, touching any interest you may have in the event of the present suit." If the party elect to call other witnesses to prove the in- terest they may be sworn thus : "You do swear, in presence of Almighty God, that you will true answers make to such questions as may be put to you, touching the interest of John Doe, (the witness offered and objected to,) in the event of the present suit." If a witness, on being produced, shall be objected to as incompetent, such objection shall bo tried and determined by the Justice. Evidence may be given in support of, or against such objection, as in other cases; or the proposed witness may be examined on oath, by the party objecting, and if so examined no other testimony shall be received from either party as to the competency of such witness. 3 The books and cases arc clear that you may, in your elec- tion, omit the preliminary objection, and stake the exclusion of the witness on such testimony as you can obtain under the ordinary rules, on general examinations in the course of the trial. In such case, too, it is held that you may object at any time before the testimony is closed ; and this course 1 Seely vs. Engell, 3 Kernan, 5-12. « K S. 174, § 107 382 Privileged Communications. is even recommended by Mr. Phillips, inasmuch as the pre- liminary examination must generally be to the same effect as that in chief. Here all the rules as to primary and secondary evidence apply, and it is said that if the interest of the wit- ness be shown independently of his testimony, he cannot be examined to remove it, though other witnesses may be. However, if his interest appears from his own examination, he-may, be cross-examined to facts, to show that it has been removed. 1 If a plaintiff join several defendants in an action for a wrong against any part of whom he gives no evidence, the Justice may acquit them, or the jury, if there be one, may do so, under his direction at any stage of the cause, after the plaintiff shall have closed his evidence. 2 Of Privileged Communications. The communications of a client to his attorney, solicitor, or counsel, are held inviolable in courts of justice, and can never be disclosed in evidence, either in the cause in which they are made, or in any other cause, even between third persons, though after the relation of attorney, &c, and client has ceased to exist. In a Avord, the mouth of the attorney, solicitor or counsel is shut forever on this head, nor can they be compelled to produce papers which have been committed to them as professional men. But communications thus sacred, are those only which are made during the relation of Avhich Ave are speaking, and not those made to a professional man who is not retained in the business to which they relate, however confidential they may be. This is the privilege of the party or the client, and he alone can Avaive it. At common laAV, it Avas confined to persons of the legal profession, and did not extend to medical men, clergymen and others, who are compelled to testify to whatever they learned in the course of their professions, with Avhatever obligations of confidence and secrecy their information might have been attended. The rule Avhich protects professional communications of 1 7 Wend. 180; 1 Covven R. 513. 2 Cow. & Hill, 142; 18 Wend. 142, 3; 3 Hill. 104. Privileged Communications. 383 clients to their attorneys or counsel from disclosure should only be held to extend to such communications as have re- lation to some suit or other judicial proceeding, either exist- ing or anticipated. 1 By the Revised Statutes, physicians, surgeons and clergy- men are put on the same footing with counsellors and attor- neys. 2 They are as follows : " ^ 72. No minister of the gospel, or priest of any denom- ination whatever, shall he allowed to disclose any confes- sions made to him in his professional character in the course of discipline enjoined by the rules or practice of such denomination. " ^ 73. No person duly authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in a profes- sional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon." These are bound to testify as to facts which they learned before being addressed in their professional character, or after their duties as such have ceased ; as if an attorney had been a subscribing witness, or was knowing to an erasure in a deed, which comes in question in a cause in which he is afterwards retained ; or the client voluntarily communicate facts after the attorney is through with the business, and his functions have ceased. An attorney has also been examined as to the question whether a note put into his hands was endorsed or not ; and he may be compelled to swear to the existence of a paper, and that it is in his hands, so as to let in inferior proof of its contents, if it he not produced on notice from the opposite party ; or to show that it is in court, to let in such inferior proof, upon a short notice, given upon the trial, to produce it. The rule also prohibits a clerk or student at law from being a witness to facts which he learned while in the office of the attorney with whom he is pursuing his professional studies. It also extends to the a^ent of an attorney, and an interpreter between him and 1 Whiting vs. Barney, 30 N. Y. 330, « R. S. 400, §§ 72, 73; [4th ed. p. 652.] and numerous cases cited. 384 The Examination or Witnesses. bis client. The whole current of decisions appears to con- fine this privilege strictly to the relation between men of the legal profession and their clients ; and it would seem clear that a man employed in conducting a suit before a jus- tice or elsewhere, Avho has no regular license to practice in any of our Courts of Eecord, and not acting as a regular clerk or student of one having such a license, is bound to disclose, under oath, the communication of his employer. 1 A physician consulted as to the means of doing an unlaw- ful act, as of procuring an abortion, is not excused by the statute from answering. 2 It appears now to be the settled doctrine of the courts of this state, that words spoken or written in a judicial pro- ceeding by any person (attorney or party) having a duty to discharge, or an interest to protect in respect to such pi'o- ceedings, are absolutely privileged, and no action will lie for such speaking or writing, however false, defamatory or malicious may be the words, providing the matter was mate- rial to the issue or inquiry before the court. 3 When the facts are disclosed it is for the court and not the witness to decide whether he is privileged or not. 4 Of the Examination of Witnesses. The form of the general oath has been heretofore given by the statute. 5 When a witness is ignorant of the English language, he must be sworn and examined through an inter- preter, who must be sworn as follows : " You do swear' that you will truly interpret between the court, the jury, and the witness, A. B. in this cause, between C. plaintiff, and D. defendant." If the Justice sit alone, omit the words " the jury." The oath is then administered, and interpreted by the sworn interpreter, and the questions put, and answers received, are also interpreted in the same way. This course is also neccs- 1 Phil. Ev. 140 to 147, and Oowen & 3 Marsh v. Ehvorth, et al. 36 How. Hill's Notes, 275 to 283, 1571 to 532, and cases cited. 1574. 4 1 Hill, 33. 2 21 Wend. 79. D 2 R. S. 407, § 82 ; [4lh ed. p. 653.] The Examination or Witnesses. 385 sary whore a deaf and dumb person is to testify by signs ; and where a witness can understand what is said, but talks so very indistinctly as not to be understood, except by some familiar acquaintance, an interpreter must also bo sworn in the same form, in order to expound the answers. 1 ■ Witnesses may, in the discretion of the Justice, be exam- ined separately, those not on examination being directed to withdraw. This is sometimes advisable ; and if a witness ordered to withdraw wilfully disobey, or return without proper cause, he may be rejected as incompetent. Thisrulc ought not, however, to be applied where the witness is an agent or advocate engaged in conducting the suit. Indeed, the rejection or not, is mere matter of discretion ; and unless 1he return of the witness present a gross case of wilful dis- obedience, he should be received. 2 When the witness has been regularly sworn, he is first to be examined by the party calling him, which is called an examination in chief, after which the other party is at liberty to cross-examine him, when the party who called may re-examine, and so alternately until the questions are exhausted. The examination is in open court, in presence of the parties and their counsel, the justice and jury, (if there be one,) who have thus an opportunity of observing the understanding, demeanor and inclination of the wit- nesses. 3 Leading questions, that is, such as instruct a witness how to answer on material points, are not allowed, in general, on an examination in chief; for to direct witnesses in their evi- dence would only serve to strengthen the bias, which they are usually too much disposed to feel in favor of the party who calls them. Thus : Did you see the defendant driving away the plaintiff's cow 9 Was this on the 5th of Hay ? Is that cow worth $25 9 Did the defendant say he owed the plaintiff $25? Did the defendant say he owed the plaintiff fifty dollars, or how much did he say 9 And other ques- tions containing in themselves, theplace, quantity, time, kind, ICow. & IliU's Notes to PMLEv. 2 Phil. Ev. 208, and Cowen & Hill's 706, 718. Notes, 720, et seq. 3 1 Phil. Et. 268. 386 The Examination op Witnesses. price, or other thing sought for in proof, are leading ques- tions which ought never, without substantial reason, to be put to a witness. If, however, the Justice finds, on pursuing the examination, that the Avitness is backward or reluctant in the answers he gives, and is, in a word, what is called an unwilling witness, he may then suffer the party to change his ground, and put leading questions, and, indeed, allow all the latitude of a cross-examination. And in examining a witness to contradict directly some particular stated by the witness on the other side, a leading question may be put on examination in chief. 1 A witness cannot be compelled, (though he may do this if he pleases.) to answer any question which will expose or tend to expose him to any charge of crime or misdemeanor, or to any penalty or forfeiture.'- And if the court see that, by any possibility, the answer may form the least link in the chain of proof to convict a witness of a criminal offence, it will not compel him to answer. This, however, is the privilege of the witness only, and he. may waive it and answer the ques- tion. A very striking illustration of this rule is given in an action by the indorsee against the drawer of a bill of ex- change, in which the defence was usury. One Taylor, who appeared to be wholly disconnected with the bill was intro- duced to prove the defence, and was a.vked by the defend- ant's counsel if the bill had ever been in his possession before ? He replied, he thought the question would have a tendency to convict him of usury, and he was excused from answering upon the ground that the questions went to connect the witness with the bill, and they might form links in a chain of evidence to convict him. When a question is pro- pounded, it belongs to the court to consider and decide, whether any direct answer to it can implicate the witness. If this be decided in the negative then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer Avould be. The Id. 2G8, 0, 271. 2 2 R. S. 405, § 71-, (4th ed. p. 652;) 3 Hill, 895. The Examination of Witnesses. 387 court cannot participate with him in this judgment, because they cannot decide on the effect of his answer, without knowing what it would be; and a disclosure of that fact to the court would strip him of the privilege which the law allows, and which he claims. 1 The exemption docs not extend to a question, the answer to which may degrade the witness' moral character merely, and not subject him to any legal penalty. Questions of the latter description, therefore, he is bound to answer, provided thcy.be relevant to the matter in issue, and not merely affect- ing his credit or competency. 3 Nor can the witness decline answering, merely because the answer may subject him to a civil suit. ;J A witness can depose to such facts only as are within his own recollection ; but to assist his memory he may use a written entry or memorandum, or the copy of a memoran- dum. And if the paper bring the fact to his recollection, such evidence will be sufficent. But if he cannot, from recollection, speak to the fact, except from finding it on the paper, his testimony goes for nothing. There is no need that the fact should be noted at the precise time it happened, for the witness must swear to his recollection, and it is not very material how it was brought to his mind. However, the entry must either have been made by the witness, or by another, and examined by him while he remembered the fact noted. Any paper whatever maybe shown to him to enable him to correct a mistake. These remarks must be taken with the qualification that, if the paper be an original entry or memorandum, made by the witness, at or about the time, for the purpose of preserving the memory of the transaction, and the witness will testify that he believes it to be correct, though he has forgotten the transaction itself, the paper may then be read in evidence. 1 When a witness has once been sworn, and given some evi- dence, the opposite party may cross-examine him. And if i Per Marshall, C. J. in 1 Burr's 3 Cowen & Hill's Notes to Phil. Ev Trial, 214; 1 Phil. Ev. 276; Cowen 739, 740, 741; 2 R. S. 405, § 71 & Hill's Notes, 734 to 738, 747. [4th ed. p. 652.] 2 1 Corns. 83, 260. * Sand. 512; 4 Id. 120; 2 Hill, 531. 388 The Examination of Witnesses. a witness have once been examined by the party, the privilege of cross-examination continues in every stage of the cause ; so that the other party may call the same wit- ness to prove his case, and in examining him may ask lead- ing questions. In the case, however, which proves the last position, the witness might possibly have shown a strong bias in favor of the party that called him, and on that account, perhaps, a greater scope was granted to the adverse party than is usually allowed. It may happen, on the other hand, that the party calls a witness unwillingly, and from mere necessity, knowing him to be favorable to the opposite side ; in such a case, to allow the opposite party, on calling him up aftei'wards, as his own witness, to put leading questions would be giving him an unreasonable advantage. On the contrary, it might, perhaps, be proper to invest the party first calling him with some of the powers of cross-examina- tion, and at the same time to oblige the other party to treat such witness as strictly his own, and confine him within the limits of an examination in chief. And, on a cross-examina- tion, the party always makes the witness so far his own that he cannot examine as to any Avritten evidence which comes out on such cross-examination in any other manner than as if the witness had been his own. 1 Ch. J. Tilgham, in 5 Bin- ney, 488, makes the following excellent remarks on the sub- ject of examination: "The party who calls the witness examines him first ; he is then cross-examined by the oppo- site party, after which, if necessary, the party who produced him may examine him again. The mouth of the witness is not to be closed because the counsel omitted to ask a material question at first. It may be necessary, iu order to come to the truth of the case, to examine him as to new matter, and after that there may be a second cross-examination. The court, in their discretion, may permit a witness to be exam- ined over and over again at any time during the trial. But they will take care to exercise this discretion so as not to suffer any advantage to bo gained by trick or artifice. If the plaintiff should declare that he had finished his testimony, 1 1 Phil. Ev.273,4; Cowen & Hill's Notes, 730; Seidell, 345. The Examination of Witnesses. 380 m consequence of which the defendant should dismiss some of his -witnesses, and then the plaintiff should offer to pro- duce new testimony, which might, perhaps, have been con- tradicted by the witnesses who were dismissed, the court would not suffer him to avail himself of such disingenuous conduct." And where the plaintiff's witness is in part ex- amined, and the cause is then adjourned to another day, on account of the sickness of the witness, it is the duty of the plaintiff to produce him at the adjourned day, or show good cause for not doing so ; otherwise, the Justice may reject the evidence ; for, if admitted, the defendant would lose the right of cross-examination. 1 The right of cross-examination is highly prized by the law, and, as we have seen, courts of justice should be liberal and indulgent in its allowance. A very just latitude, in this re- spect, is suggested by Mr. Evans, in his annotations upon Pothier, vol. 2, p. 2G9 : " In the case of Hunter vs. Kehoe, before the court of King's Bench in Ireland, Mic. 1794, Lord Clonmell observed that cross-examination had gone to an unreasonable length, but he had, in general, permitted gen- tlemen to go as far as they pleased, because if there was an honest case on one side it would do them no good." "The benefits of cross-examination," snj's the same author, " are sometimes defeated by the interposition of the court, to re- quire an explanation of the motive and object of the question proposed, or to pronounce a judgment upon them immedi- ately ; whereas, experience frequently shows that it is only by an indirect and apparently irrelevant inquiry that a wit- ness can be brought to divulge the truth which he had pre- pared himself to conceal ; the explanation of the motives and tendency of the question furnishes the witness with a caution that may Avholly defeat the object of it, which might have been successfully attained if the gradual progress from immateriality to materiality was withheld from his observa- tion. The importance of an inquiry may sometimes bo strongly felt by an advocate, and upon very reasonable "•rounds from his own instructions, with respect, to thebear- 1 12 John. 299. 390 Of iMrEAcniNG the Ckedit of a Witness. ing and circumstances of the cause, which the Judge, acting only upon the impressions of what has already been disclosed, cannot, by any possibility, anticipate. The full exposition of the motives can only be attained by a premature exposi- tion of the case that is to be brought forward, and even when that can be done without prejudice to the party, the endeavor to satisfy the court would have the common effect of an interruption of the regular course of inquiry, and in- stead of assisting the accurate discussion of the question would, in all probability, terminate in confused and desultory altercation. N A party is not entitled to the benefit of the testimony of a witness who dies after he has been examined, and before the opposite party has had an opportunity to avail himself of a cross-exmination. Of Impeaching the Credit of a Witness. For the purpose of impeaching the credit of a witness the opposite party may disprove the facts stated by him, or ma}' examine other witnesses as to his general character, but they will not be allowed to speak to particular facts, or parts of his conduct ; for, though every man is supposed capable of supporting the former, it is not likely that he should be pre- pared to answer the latter without notice. The regular mode is to inquire whether they have the means of knowing the witness' general character, and whether from such know- ledge they would believe him on his oath. In answer to such evidence against character, the other party may cross- examine the witnesses, as to their means of knowledge, or may attack their general character, and by fresh evidence support the character of his own witness. The impeaching question may be general, as above stated, or it may be nar- rowed to the general character for truth and veracity. 1 In commenting upon the above rule, Mr. Evans makes the following remarks: "It is an established rule, that wit- nesses examined with a view to discredit the testimony of others, canuot be permitted to depose to particular facts of 1 19 Wend. 5G9, 579 ; 3 Hill, 178. Of Impeaching the Credit of a "Witness. 391 criminality, but can only express their general opinion, whether the party is or is not entitled to he believed on his oath ; but the other side, to support the testimony, may inquire what arc the reasons of disbelief, which sometimes, as in the case 1 above adverted to, arc ridiculous enough. If it is declined to inquire into these reasons, there is consider- able ground to presume a consciousness that the opinion is founded upon adequate motives. I have heard witnesses asked whether they had ever known the persons against whose veracity they depose, give false evidence in a Court of. Justice : and upon their answering in the negative, it was intimated to the jury that the testimony to the discredit was absolutely frivolous ; whereas, if the question had been, what were the reasons upon which the discredit was founded, a fraudulent conduct might have been shown, which indi- cated the want of moral and religious principle, and conse- quently affected the strongest ground of reliance upon tes- timony. "When witnesses speak to the character of others, not only their own character, but their ability and opportu- nity to form an adequate judgment arc circumstances very proper to be taken into consideration." On this head of evidence, Ch. Justice Pennington says :'- "It is bottomed on the plainest principle that can be imag- ined ; that is, that one man is not entitled to the same credit with another. Witnesses, therefore, may be sworn to give the character of a witness examined in a cause : it is held, however, that only the general character of a witness shall be inquired into ; and some hold that only the general char- acter of the witness in respect pf his veracity when under oath, is to be inquired of. I never could perceive any sub- stantial reason for this opinion, nor is it adhered to in prac- tice. Suppose a witness is a notorious cheat, sharper and swindler ; although nothing has been particularly alleged against him on the ground of his veracity under oath, is he 1 The case stated in 1'othier, vo.. 2, asked his reason, said that he had 250, is as follows : " A witness never made a good fence since lie swore that a person examined on came on his farm." the other side was not fit to be be- "- Pennington on Sir.:i!l Causes, 158, 9. lieved upon his oath j and being 392 Of Impeaching the Credit of a Witness. to stand in point of credit, on equal ground with a man of unblemished character and good standing in society ? Reason revolts at the idea. I take it that the general char- acter of the witness, so far as it goes to show turpitude of mind, is in issue, less credit being due to a corrupt mind than a pure one : but you cannot examine as to particular facts which go to show this corruptnessof mind." This doc- trine was approved by the Supreme Court in 1842, where a witness called to impeach another, testified that he was acquainted with his general character, but he had never heard his character for truth and veracity spoken of. It was held that he might testify whether from his knowledge of the general character of the witness to be impeached he would believe him under oath. 1 But it is not enough to prove general bad character of a witness, unless it is followed up by the question whether the impeaching witness would believe him under oath. 2 The credit of a witness may be impeached by showing that he has made statements out of court, either by parol, by letter, or by deposition, on the same subject, contrary to what he swears on the trial. But he must himself be first interrogated particularly concerning the alleged statement. Then, if effectually impeached, he may be again called to explain why he made it. 3 His former consistent statements cannot, in general, be proved, in order to corroborate his testimony. If the alleged contradiction were in writing, as a letter, the witness cannot be interrogated concerninc: it unless it be produced, or its absence excused. And the same rule as to the degree of evidence applies of course to its positive introduction as impeaching evidence. The con- tradiction is considered as a general impeachment of credit ; and besides any proper explanations by the witness himself in reply, you may add evidence of his good moral character. And if an attesting witness to a deed impeach its validity on the ground of fraud, it may be supported by showing the good character of another subscribing witness, who is since dead ; though where two witnesses merely contradict each 1 2 Hill, 178. 3 :> Sold. 345. 2 IS Barb. 023. Opinion of Witnesses. 393 other as to facts, and no fraud is imputed, evidence of general character is not admissible in support of either. 1 A party will not be allowed to discredit his own witness, by showing his general character or any other facts directly impeaching him. But he may contradict him, and show the fact by other witnesses to differ from what he states it, and thus do away the effect of his testimony. 3 And where the party calls an attesting witness who denies his attesta- tion, or a witness who has inveigled the party by making favorable statements to him, or to his attorney or counsel, in consequence of which he is called, but contradicts on oath what he stated before, he may be impeached by show- ing such former statement, or his general bad character, or other matter going to reduce his credibility, the same as if he had been called by the adverse party. :i But if a witness on cross-examination denies a particular fact which would go to impeach his general character, the cross-examining party cannot call witnesses to contradict him in respect to ii . l On the other hand, as a general rule, a party will not be permitted to give evidence of the good character of his wit- ness, unless it has been attacked by witnesses on the other side. "Where, however, the party against whom a witness is called, draws from him upon cross-examination extrinsic facts impeaching his general character, evidence of good character may be given in reply. 5 AVhere an equal number of witnesses have been sworn on each side for the purpose of impeaching or sustaining a wit- ness, it is in the discretion of the court whether to prevent an additional number of witnesses to be examined to the same point. R Opinion of Witnesses. In general, the opinion of a witness is not evidence; he speaks to facts. But in questions of science or trade, or 1 19 Wend. 509 ; 1 Phil. Ev. 293 to 3 Cowen & Hill's Notes, 779, 782. 308; Cowen & Hill's Notes, 771 4 15 Ba.rb. 352; 2 Sold. 315. to 779. 5 3 Hill, 309. 2 1 Phil. Ev. 308 to 311; Cowen 8c 6 21 Wend. 35-1. Hill's Notes, 779 to 782. 394 Opinion of Witnesses. which relate to any profession or calling, persons of skill may give their opinions in evidence. Thus, physicians, surgeons, ship-builders, carpenters and engineers have been allowed to give their opinions on sub- jects connected with their professions or callings, and the value of property is every day determined in this manner. But the opinions of witnesses, based upon a state of facts - sworn to by others, are not proper evidence except in mat- ters lying peculiarly within the knowledge of experts. Thus, in an action for negligently injuring and sinking a canal boat, the plaintiff, after proving the cause of action as alleged, called upon a witness, who testified that he was a boatman, and knew the boat in question previous to her being injured ; that he had raised sunken boats and caused them to be repaired. lie was then asked the following ques- tion : From the description of the situation of the boat as given by the witnesses, what would the damage be ? The question was held improper and the witness' answer was inadmissible. The rule that a witness cannot in general speak to matters of opinion, does not apply where the value of the property is in question. And in an action for a breach of warranty, a witness may be asked what the article would have been worth if it had been of the quality which it was warranted to be. The Court say in this case, There was no error in allowing the witness to state what the cow would have been worth if good and young. The difference between the present value and what it Avould have been if as represented, is the true measure of damages. (2 Hill, 228 ; 4 id. 625.) The rule that a witness must state facts and not opinions, does not apply to cases like the present. How else than by the opinion of witnesses could the differ- ence between an article delivered and the sample by which it was sold be determined. The value of personal property is constantly established by the opinion of witnesses, and so of facts in relation to many other matters. (Lincoln vs. Saratoga E. R. 23 Wend. 433 ; Norman vs. Wells, 17 Wend. 136 ; McKce vs. Nelson, 4 Cow. 355.) So also it was correct to allow the question put to the witness as to Orixiosr or Witnesses. 395 what the animal would be worth if it gave but four quarts of milk per day. 1 The question was, what that cow which the witness had seen and knew, was worth, giving four quarts, and not what an imaginary animal giving that quantity would be worth. J udgment affirmed. 3 Evidence of general character is also founded in opinion. And when a witness cannot recollect a precise conversation of which he is testifying, he may give his impression as to its substance. 3 It is not competent for a medical witness who has not heard all the testimony tending to show the mental condition of a person, to give an opinion founded on the portion heard by him as to his sanity. Upon principle it may be doubted whether strictly medi- cal witnesses should ever give an opinion upon the general question of the sanity or insanity of a prisoner, as that is a question for the jury. It is in a sense testifying to the very point the jury must decide, the general merits of the cause, especially upon a preliminary inquest to toy the part of in- sanity. 4 Upon a question as to the mental capacity of the grantor in a deed, the opinion of a witness founded upon parts within his personal knowledge and disclosed by him on the trial, is competent evidence. 5 Witnesses acquainted with the value of personal property are allowed to testify to their opinion of its value. ' The rule that witnesses must state facts and not opinions has no application to such cases. 8 But the opinion of a witness in respect to the value of property which he has never seen, is not admissible in evi- dence. 7 The opinion of a witness upon the qucslion whether pay- 1 rai°-e vs. Hazard, 5 Hill, 003, 4 The People vs. Lake, 2 Kornan, Co ° ven) j. 358 ; 17 Wend. 161 ; 21 Wend. 2 .Tov vs. Hopkins. 5 Denio, 81. 668; 4 Demo, 311. 3 Co"wen & Hill. 749, 759, 60. 5 13 Barb. 550; 7 Id. 314. 6 22 Barb. 134; 5 Denio, 84. 7 1 i Barb. 206. 396 Opinion of "Witnesses. ments made to a minor were proper for a young man in his situation is not admissible. 1 Where an action to recover damages for wheat lost and wasted, by the defendant, while threshing the same for the plaintiff with a machine, in consequence of the work not being properly clone, a witness had testified that he had examined the chaff and straw and found wheat among them, it was held, that he could not be asked how much wheat was wasted by the defendant, in threshing C48 bushels of wheat, on the ground that it was mere matter of opinion. 2 The value of services may be proved by the opinion of witnesses who are acquainted with the value of labor in that vicinity but a defendant cannot prove by witnesses what the plaintiff's services were worth over and above his board, clothing, &c. furnished by the defendant without proving that the witness knew the quantity or value of either item assumed by the question to have been furnished. 3 After a witness has testified that he is a brick and tile maker, and that he has made tile two seasons and brick nineteen years, he should be held qualified to answer the questions, " What is the proper way to put the tile in the kiln for burning? "and " What would be the effect of these tile lying flat-wise instead of on the end upon the burn?" 1 A person engaged in the business of insurance, and in the habit of examining all kinds of hazards, and aflixing the rates which they should pay for insurance, may be allowed to give his opinion upon the questions, whether a livery stable is more exposed to conflagration and a more hazardous risk than a tavern barn, and whether according to the usage and custom of insurance companies, it is worth more to insure a livery stable than a tavern barn. 5 In an action to recover damages for killing a dog, the opinions of witnesses as to his value, are not admissible in evidence. Brill vs. Flagler, 23 Wend. 354, deciding the contrary, overruled, the jury being the judges of the value 1 2 Selden, 168. * 19 Barb. 338, and case cited. 2 21 Barb. 331. B 17 Barb. 111. 8 20 Barb. 387. Demand — When Necessary Before 397 of such property, after hearing the evidence as to the par- ticular qualities and properties of the animal. Proof of the Avorthlessncss of the animal is proper in in- vestigation of damages, although that defence was not set up in the answer. 1 Demand — Wlien Necessary before bringing an Action. "Where any one comes lawfully into the possession of prop- erty, there is no conversion of it until some wrongful act is shown, or there is a refusal or neglect without excuse to deliver it to the owner upon demand. And until such con- version the owner may sell the property in the defendant's possession, and then the purchaser upon demand and refusal may bi'ing an action for the recovery of the value of the property. 2 It appears not only to be a well established, but a wise and just rule, that when personal property, the subject of the action, has come to the possession of the defendant, by the delivery of the icrong-doer, it is necessary when the defend- ant merely detains it, to prove that he has refused to deliver it up upon demand by the plaintiff, (see Ely vs. Ehle, 3 Corns. 508 ; Barrett vs. Warren, 3 Hill, 350,) and it matters not what was the nature or character of the fraud by which the property was originally obtained from the plaintiff, or in what character or in what manner it was delivered to the defendant if no fraud or complicity in the transaction can be imputed to him. And although the defendant is an assignee of an original wrong-doer, in trust for creditors, ho is as well entitled to have an opportunity of considering and determining whether he should restore the property to the plaintiff as any other innocent transferee of the prop- erty." A sale procured by fraud on the part of the purchaser js not absolutely void. The party defrauded may or may not avoid the sale at his option. But if he designs to rescind the contract he must do what- 1 17 Barb. 561, and cases cited. 3 Fuller vs. Lewis, 13 How. 219. 2 2Comstock, 293; 5 Denio, 527. 398 Bringing an Action. ever may be necessary to restore the parties to the condition in which they were tit the time of the sale, in respect to the thing sold and the consideration paid, and where the notes of the purchaser have been received in part payment of the purchase money, it is not sufficient to produce them at the trial, and offer to cancel them. 1 A demand of, and refusal to, deliver property, do not of themselves constitute a conversion, but only furnishes evi- dence of it, which may be repelled by proof, showing a good excuse for not complying with it. Thus, if the compliance with the demand was impossible, or impossible at the time, as when the demand was made at a different place from the one where the property was deposited, and the defendant re- plied that he was willing to deliver it at the proper place, or if he refused to deliver a stick of timber lying on his land, but . at the time declared he had no claim to it, and did not inter- meddle with it, or to deliver goods that he had found until it should be shown him that the person demanding them was the owner, or if a servant refused to deliver goods in- trusted to him by his master, on a demand made by a stran- ger, the refusal Avas no evidence of conversion. In order to make refusal prima facie evidence, it should appear that the property was present at the time the demand was made, or under the undisputed control of the defendant, and that he refused to deliver it. And then the defendant may show the excuse for not complying with the demand. And where one who had come lawfully iuto possession of the property refused to deliver it, but afterwards, before the commence- ment of the action tendered it to the plaintiff, the action was defeated. Where property was in possession of partners, a demand of it from one of them and the refusal, was sufficient to maintain an action against all the partners. But where it was in the hands of co-tenants not partners, a refusal by one to deliver it, was not evidence of conversion by both. And the refusal of a servant to deliver goods intrusted to him by his master because he has no authority from his mas- 1 13 Barb. 64; 1 Douio, 60; 2 Denio, 139; 1 Hill, 302; 2 Hill, 288. Bona Fidk Purchaser. 399 ter, will not furnish evidence of conversion by Lis master, although it appear that his master subsequently approved -his conduct. 1 Bona Fide Purchaser. It is a well settled rule of law that if the owner of prop- erty stands by and allows another to sell it as his own to a bona fide purchaser, without objection and without giving notice of his claim thereto, he will be held to have consented to and sanctioned the sale, and will not afterwards be per- mitted to claim such property of the purchaser. This is a sound principle, founded upon the plainest dictates of fair dealing aud common honesty. And the same rule prevails when the owner is informed of a sale of his property by another upon credit, and docs not object to it, but lies by and permits the purchaser to pay the purchase money to the vendor as it becomes due.' 2 To constitute a person a bona fide purchaser, he must have advanced the consideration for the purchase in good faith. 3 A purchase with intent not to pay for the goods, is fraudu- lent and renders the sale void as against the vendor, and he may reclaim them. 4 But if he delivered them with intent to pass the properly as well as the possession, a bona fide purchaser from the fraudulent vendee, that is, one who pays the price without notice of the fraud, acquires title as against the owner, although the latter might have reclaimed them from his vendee. 5 It is not sufficient to constitute a bona fide purchaser in such cases, that he took the goods from the fraudulent vendee in payment or security for a previous debt, lie must have given some value for it, or incurred some new responsibility upon the credit of the property without notice of the fraud ; and the owner can repudiate the sale and reclaim them from 1 5 Hill, 455; 24 Wend. 109, 178; 1 * 1 nil), 302; 23 Wend. Oil. Cowen,322;4Hill,13. 5 8 Cowen, 238; 14 Wend. 31; 13 Id. 2 18 Barb. 434; 16 Id. 613. 570; 20 Id. 207. 3 10 Barb. 97, 107. and cases cited. 400 Bona Fide Pukciiaseh. an officer who has levied upon them as the property of the fraudulent vendee. 1 As there are frequently questions arising in relation to tho validity and priority of lien upon property by virtue of exe- cutions, a reference to the rules in relation to the subject will be useful under this title. At common law, executions issued from Courts of Record were regarded as issued only during terms of the Court. If issued in vacation they were deemed to have been issued on a clay of the preceding term named in the teste of the writ, and title to the personal prop- erty which tho defendant in the execution had at the day of teste was bound by it upon a levy made by the sheriff at any time before its return, and this notwithstanding they had been sold to purchasers ignorant of the execution and who paid full value. 3 The Revised Statutes have changed the rule by providing that " goods situated within the jurisdic- tion of the officer to whom an execution shall be delivered shall be bound only from the time of the delivery of the same to be executed ;" J and that "the title of the purchaser in good faith of any goods or chattels acquired prior to the actual levy of any execution without notice of such execu- tion being issued, shall not be divested by the fact that such execution had been delivered to an officer to be executed before such purchase was made.'" It will be seen that this provision is intended for the protection of bona fide pur- chasers only, and is not in conflict with the one that goods shall be bound only from the delivery of the execution. One has reference to the rights of the party and all persons ex- cept bona fide purchasers, and the others to those of pur- chasers in good faith. From the moment an execution is delivered to a sheriff, the goods of the defendant are liable in his hands or the hands of all persons except purchasers in good faith, to be levied upon until its return day. But if one without notice of the execution should purchase them, paying value for them, the provision of the Revised Statutes would render the title of the purchaser valid and free from 13 Wend. 570; 23 Id. 611. 3 2 R. S. 365, § 13; [4th ed. p. 613 ] 12 John. 406; 11 Wend. 550. * Id. § 17; 6 Denio, 619. Bona Fide Purchaser. 401 (he lien. If, however, the purchaser should have notice of llic execution, the goods would be bound and his title would be divested by a levy. And if he should purchase after a levy, whether with or without notice of it, his title would be subject to it and be divested by a sale by the sheriff. 1 Although a bill of exchange or promissory note of itself, imports a consideration which need not be pleaded or proved, and that the holder took it in the usual course of business, in good faith and for value, yet, as between immediate parties to it, as the drawer and acceptor, drawer and payee, maker and payee, payee and his endorsee, any total or partial want of consideration, or failure or illegality of consideration, maybe shown as a defence. 2 And in like manner, when the defendant shows that the holder of the bill or note was not a purchaser of it in good faith, or for value paid at the time, or that he received it on account of a previous indebtedness, or purchased it after it had become payable, he may then interpose the defence. The policy of the law is, to protect the purchaser of commercial paper, who in good faith pur- chases it before its maturity, parting with value for it, from any defence existing between the original parties to it, ex- cept in cases where the statutes make notes given absolutely void, as in violation of the usury laws, or the acts in rela- tion to betting and gaming. 3 But he must appear with per- fectly clean hands in order to avail himself of the character of a bona fide holder, and if it appear that he gave nothing, or but a trifle consideration for the paper, so as to make the purchase merely colorable, or that he bought it under suspicious circumstances which should have put him on his o-uard, it will be sufficient to let in any defence which existed between the immediate parties. 1 "Within the rules laid down in the preceding paragraph, one who is without any knowledge of the transaction out of which the bill or note originated, may, upon his estimate of the responsibility of the parties to it, purchase it before 1 ix "Wend. 551. 3 l John - 319 5 8 Wend. 600. 3 17 John. 301; 7 Cowen, 322; 2 * 4 Hill, 442, 424; Chitty on Bills, Wend. 431; 12 Id. 246; 13 Id. 605. 83, 4. y 402 Bona Fide Purchaser. it is payable, and recover the amount for which it is given, notwithstanding it was given without consideration, or for an illegal consideration, as to compound a felony, or was tor any other cause uncollectable by the original payee against the acceptor or maker, or although there was some vicious feature in the consideration passing between the endorsers. While at the same time, the defence would be a perfect one between the original parties, and would also be available against the present holder, if the defendant should first show that he purchased the note with notice of the defence, or after it had become payable, or that he took it for a prece- dent, debt, or paid no value at the time for it. The defend- ant, however, must rebut the legal presumptions in the plain- tiff's favor before he can introduce the particular facts con- stituting his defence. 1 It is not enough, in order to admit the defence against a holder of a bill or note who has purchased it before its ma- turity, and paid full value for it, that he was informed that there had passed no consideration between the drawer and acceptor, or the maker and payee, unless he had notice also that the person from whom he received it, acted fraudu- lently in negotiating it. Nothing is more usual than to draw, or endorse, or accept a bill, or to make or endorse a note, merely for the accommodation of a friend, and as a loan of one's credit, aud in such cases, the purchaser of the bill or note who pays value for it, is protected.' 2 If, however, an accommodation paper was made or endorsed for a par- ticular purpose, of which the purchaser has knowledge, and it be used for any other purpose, it will be invalid in his hands ; and if when made for such purpose any circum- stances have arisen which would render it unjust to the accom- modation party to use it, no person aware of the fact, car. by obtaining it, render it available against him. 3 It will not be deemed a diversion of the purpose of the bill or note made to raise money for the accommodation of ICMass. 334; 3 Day, 311; 1 John. 3 Cliitty on Bills, 91; 10 John. 231; 319; 8 Wend. 81. 15 Id. 270; 1 Den. 583. 2 Chitty on Bills, 91; 7 John. 3t32j 7 Wend. I'll. Kegoupement and Counterclaim. 403 the payee, or drawer, if it perform substantially the purpose intended. Thus if it be made for discount at one bank, aud be there rejected, and discounted at another, 1 or if it be in- tended to raise money for E., and it was applied by him to pay up a judgment or other debt against him, 2 it will bo valid in the hands of the person to whom it is negotiated, although he knew all the facts in relation to it. In a few cases, where the statute has declared all contracts and securities given in violation of its provisions void, as in the acts restraining usury, 3 betting and gaming, 4 lotteries, 5 and the like, bills and notes are void in the hands of bona fide purchasers and under all circumstances. Under the usury laws, a bill or note issued for the purpose of raising money and transferred at a discount greater than at the legal rate of interest, is usurious and void. But if it were valid in its inception, so that it might be collected by the payee against the acceptor and maker, it may be sold by the holder at any discount agreed upon between him and the purchaser, and will be valid in the hands of the latter against the other parties to it. And where A. and B., for the purpose of raising money, exchanged their promissory notes, and then A. sold the note he received of B. at a discount greater than at the legal rate of interest, it was held that the transaction "was not usurious. For the note of A. was a good considera- tion to B. for the note he gave for it, and the latter was therefore a valid note in the hands of A., which he might dispose of in the same manner as if he had given a different consideration for it. Recoujpement and Counter-Claim. The doctrine of recoupemcut was established in the case of Eeab vs. M'Alister, (8 Wend. 109,) which contains much useful information applicable to this branch of the law, now 1 4 Cowen, 567. * 1 R. S. 062, §§ 8, 16; [4th ed. vol. 2 5 Wend. 66 ; 1 Hill, 513, 589; 2 2, p. 72;] 1 R. S. 665, § 24; [4tli Sand. 115; 5 Den. 329; S- C. 3 ed. vol. 2, p. 76, § 31.] Corns. 442. 5 I 5 J° hn - 41 > 7 Wend. 256. 3 Laws 1837, ch. 430; [4th ed. R. S- e 3 Wend. 62. v. 2, p. 182. § 5.] 404 EECOUrEMENT AND OOUNTEECLAIM. under consideration. It establishes the rule that a defendant may not only give evidence of fraud, but of a breach of warranty in dimunition of the plaintiff's claim in an action for the price of an article sold. It was there held, that such a defence is admitted to avoid circuity of action, that a second litigation on the same matter should not be tolerated where a fair opportunity can be afforded, by the first, to do filial and complete justice to the parties. The Legislature has so amended the Code of Procedure, as to extend this doctrine to damages arising out of other and different contracts than the one upon which the plaintiff claims. The sections read as follows : § 149. The answer of the defendant must contain : 1. A general or a specific denial of each material allega- tion of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief: 2. A statement of any new matter constituting a defence or counterclaim, in ordinary and concise language without repetition. § 150. The counterclaim mentioned in the last section must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action : 1. A cause of action arising out of the contract or transac- tion set forth in the complaint, as the foundation of the plaintiff's claim, or connected with the subject of the action : 2. In an action arising on contract, any other cause of action arising also on contract, and existing at the com- mencement of the action. The defendant may set forth by answer as many defences and counterclaims as he may have, whether they be such as have been heretofore, denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished. It appears by the above sections that the defendant may, upon a proper notice, give evidence of damages arising upon Eecoupejient axd Counterclaim. 405 the breach of any contract existing between the parties in diminution of the plaintiff's claim, and if the amount exceed the plaintiff's demand, he may have judgment for the bal- ance in his favor. In Vassear vs. Livingston, (3 Kernan, 248,) the court say : "The counterclaim of the Code is undoubtedly broader and more comprehensive than set-off and recoupe- ment. It authorizes a resort by the defendant to causes of action by way of defence, other than set-off or recoupement. It has attempted, however, to limit and define the defend- ant's rights. It clearly authorizes set-off and recoupement. It is clear they are authorized by the amendments of the Code of 1852, and something more. By the second sub- division of § 150, iu an action arising on contract, the defendant may avail himself by way of defence, of any other cause of action, also on contract and existing at the com- mencement of the action. 1 Counterclaims under the Code of 1852, § 150, embrace both set-offs and recoupements as they were understood prior to that Code. (Pattison vs. Eichards, 22 Barb. 143, 326.) A counterclaim, to be valid under the Code, must ■ be a claim against the plaintiff on the record. The right to set up a counterclaim against the assignee after the assign- ment of a thing in action is not reserved or given in any part of the Code. 2 Where a promissory note, dated January 24, .1853, was made by P., payable to E. or bearer, with use, no time of payment being specified, and the same was, within three days after its date, sold by E. to M., by whom it was trans- ferred to the plaintiff. Held, that although the note was payable on demand,, it could not be considered as overdue at the time of its transfer by B., so as to render claims against E., then owned and held by the maker, available as a set-off. 3 In an action against several defendants who are jointly and severally/ liable, either of them may set off promissory 1 3 Kernan, 248. 8 Weeks vs. Pryor, 27 Barb. 79; 3 « 22 Barb. 326. Hill, 582; 16 Wend. 659. 406 Recotjpement and Countercl^m. notes executed by the plaintiff, or may avail himself thereof by way of counterclaim. A counterclaim is defined to be one existing in favor of a defendant and against a plaintiff, between whom a several judgment may be had in the, action and arising out of one of the specified causes of action; and the 2d subdivision provides that in an action upon contract, any other cause of action, arising also on contract and exist- ing at the commencement of the action, shall be n counter- claim, (Code § 150.) The only restriction is, that it must be one existing in favor of a defendant, and against a plain- tiff, between whom a several judgment might be had in the action. 1 The term counterclaim being new to the law, as well as the dictionary, judges have sometimes exercised themselves with the duty of framing a definition. The term itself has always seemed to me, simple and significant, and: its mean- ing obvious. I understand that when the defendant has against the plaintiff a cause of action upon which he might have main- tained a suit, such cause of action is a counterclaim. The parties have cross demands. When such a cross demand is interposed by the defendant, there are. in effect, two causes of action before the Court for trial in the same suit. Both parties are, in some seuse, plaintiffs, and both defendants. The answer containing the cross demand, called a counter- claim, is, in pleading, treated like a complaint by the defendant against the plaintiff, and the reply to such an answer like the answer to a complaint. Each party claims affirmative relief against the other. 2 Under the Eevised Statutes, a claim existing against the assignor in favor of the maker of a promissory note assigned before it became due, caunot be set off against the note in the hands of the assignee, and this although he had notice of the set-off before the transfer, such notice not being notice of any legal defence. Section 112 of the Code, which pro- vides in case of an assignment of a thing in action, that the l 20 Barb. 477; 8 Howard, 157, 451, - Davidson vs. Remington, 12 How- ard's Pr. 310. Harris .1. Eecoupemext and Counterclaim. 407 action by the assignee shall be without prejudice to any set- off or other defence existing at the time, or before notice of the assignment, docs not apply ; for, by the second clause of that section negotiable promissory notes and bills of exchange, transferred in good faith and upon good consider- ation before due, are expressly excepted. 1 I think it well settled that when the defendant has a cause of action against the plaintiff, upon which he might have maintained a suit, such a cause of action is a counterclaim. The parties then have cross demands, and affirmative relief may now be granted, and claims either legal or equitable, or both, arc now pleadable in the nature of set-off, without regard to the form of the action. A counterclaim is also a set-off, as called under the previous practice. Counter- claims must, however, exist at the commencement of the action, which must be one arising from contract, and it may (under the first subdivision of § 150) exist in the cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or con- nected with the subject of the action. 2 In the case of the assignment of a thing in action, the action of the assignee shall be without prejudice to anyset- off or other defence existing at the time of, or before notice of the assignment ; but this section shall not apply to a nego- tiable promissory note or bill of exchange, transferred in good faith and upon good consideration before due. 3 In an action to recover compensation for services ren- dered, the employer is entitled to show, by way ot recoupe- ment of damages, loss sustained by him through the negli- gence of the employee.^ Where an action is brought for breach of a contract, whether the same be sealed or not, and the defendant can show that the plaintiff has not performed the contract on his part, according to its terms or spirit, so as to entitle him to a cross action, he may, at his election, instead, of bring- 1 Williams v. Brown, 2 Keyes, 486. 3 § 112 of Code. 2 Lemon vs. Trull, 13 How. 248, 458; * Still vs. Hall, 20 Wend. 57; Cow- 12 Id. 310; 9 Id. 2(i3; 6 Id. 43a; en, J. 4Sandf.l47; 20 Barb. 477; 2Duer, 639; 8 How. 122; Id. 146; Id. 234. 408 Recoupement and Counterclaim. ing an action in his turn, recoupe bis damages arising. from the breach committed by the plaintiff, whether they bo liquidated or not. 1 In an action brought upon promissory notes, the consid- eration of Avhich Avas work and labor done by the plaintiff for the defendants, the defence -was that while the plaintiff was in the employ of the defendants as their servant, they were possessed of drawings, plans, models, and patterns of steam engines, &c, which had names, numbers and marks inscribed on them, so as to identify them, and the plaintiff, contrary to his duty as such servant, destroyed the drawings and plans, and obliterated the names, numbers, and marks of the plans, models and patterns. Held, that the defend- ants might give evidence of such wrongful acts of the plain tiff for the purpose of reducing the amount of the recovery, it not appearing that the damages sustained by the defend ants by means of such 'acts, were known to them, or were taken into the account, on liquidating the amount due to the plaintiff and giving the notes therefor. 3 The damages to be allowed in such n case by way of rccoupement, being only such as arise from breach of tin plaintiff's contract, the deduction must be limited to such damages, and nothing can be allowed on account of tho malice with which the wrongful acts were done. Recoupement is in the nature of a cross action, and should not be pleaded in bar, but a notice given of the defence, and it is necessary to aA'er that the defendant claims his damages in the action. 3 This doctrine is so Avell understood at the present time to extend to all actions arising on contract, as Avell as fraud growing out of the purchase and sale of property, that it is deemed inexpedient to pursue the subject further than to remark that this kind of defences ought to be. encouraged whenever they can be interposed legally, and the- party has a good defence of this kind, as it saves much unnecessary lives vs. Van Eps, 23 Wend. 155; 2 The Allaire Works vs. Guioii, 10 Cowen, J Barb. 55; 3 Hill, 258; 13 John. 302; 1 Comstock,305. » 2 Comstock. 283. Infancy. 40t» expense aud litigation by cross actions to obtain precisely what may be adjusted and forever settled in one. Infancy. In relation to personal chattels the rule seems to be, that if an infant give or sell his goods and deliver them with his own hand, the act is voidable only ; but if he give or sell goods, the donee or vendee take them by force of the gift or sale, the act is void, and the infant may bring trespass. This distinction M'as recognized in Eoof vs. Stafford, (7 Cowen, 179.) The infant brought trover for a horse which he had sold to the defendant, and the Court held that the sale was not absolutely void, on the ground that he had made manuel delivery of the goods, and being voidable only, that he could not avoid the sale until he came of age. 1 Nearly all of the contracts of an infant (except for neces- saries) are voidable at his election. Aud the better opinion seems to bo that his executory contracts, and contracts of sale of personal property, may be avoided during his minority.' 2 Though that has been doubted, where he sells chattels and delivers them with his own hand.' 5 (Sec above case, 15 Wend. C31.) The question in relation to the setting up of a new pro- mise made by an infant after he comes of age is very fully discussed in the case of Watkins vs. Stevens, (4 Barb. 168.) In that case it was held that the contract of an infant, unless for necessaries, could not become obligatory upon him, except by virtue of a new promise or ratification made by him after he became of age ; that such new promise or rati- fication must be equivalent to a new contract ; and that the suit against the infant could be sustained only on the con- tract created by the new promise or ratification, but that the rules of pleading admitted of the anomaly of allowing the plaintiff to declare on the original contract, which was not 1 Fonda vs. Van llomr, 15 Wend. - 9 Cowen, G2G; 17 Wend. 132, 419; C31. 19 Id. 301. 3 17Bavb. 428. 410 Infancy. binding on the infant, and to reply specially the new promise made by him after he became of age, which was the only contract that could be enforced. It results from the fact of the original contract not being binding on the infant, that the new promise must possess all the ingredients of a complete agreement, to enable the plaintiff to recover against the infant. Hence as no agreement is complete until the minds of the contracting parties meet the new promise, to be binding on the infant must be made to the creditor in person or to his agent. The new promise creates a new contract, and the old debt supplies the consideration. (See 4 Barb. 174, 175,178; 11 Wend. 86; 2 Hill, 120.) Although most of the contracts of infants are now held to be voidable and not absolutely void, yet as they are not binding on the infant, a new pro- mise does not impart to them any legal validity so as to enable the creditor to enforce them ; but the new promise creates a new contract founded upon and deriving its aliment from the old demand, upon which the creditor may sustain a suit against the infant. 1 In Goodsell vs. Myers, (3 Wend. 479,) it was held that a negotiable promissory note made by an infant was voidable only, and not void, and might be affirmed after he came of age. In Everson vs. Carpenter, (17 Wend. 419,) the same doctrine was held, except that it did not appear in that case that the note was in its terms negotiable. Delano vs. Blake, (11 Wend. 85,) was decided upon the same principle, which was also recognized in Bay vs. Gunn, (1 Denio, 108.) There are some authorities which hold that a promissory note made by an infant is absolutely void, and not merely voidable, but I think the tendency of modern decisions is to consider the acts of infants generally as voidable merely, and to leave them when they come of age to affirm or disaffirm their contracts as their own views of interest may lead them to elect. 2 1 22 Barb. 151 ; 2 Kent's Com. 234; 2 18 Barb. 321. 1 Mete. 589: 17 Wend. 129; 11 Wend. 85. Infancy. 411 When an infant makes a contract with a person of full age, the contract, although voidable as to the infant, is still bind- ing upon the adult. 1 There is, however, one important exception to the general rule, viz : A fair contract for necessaries is binding upon an infant, unless he lives with, and is supported by his. father. 2 Infancy is a personal privilege, which no one but the infant can take advantage of. 3 When, therefore, an infant is sued with a person of full age, the latter cannot take advantage of the infancy of the former.* When in an action on a note against an infant, the defend- ant plead his infancy, and the plaintiff replied a new promise after the defendant came of age, held, that a promi.se to a stranger would not authorize a recovery? An action of ejectment may bo maintained against an infant." The admissions of an infant are competent evidence against him, both in civil and criminal cases. 7 An infant, who fraudulently obtains goods upon credit, with -m intention not to pay for them, is liable in tort to the party injured. 8 Where an infant enters into a contract for the purchase of property, and performs work in part payment of the price, but avoids the contract on arriving at full age, without hav- ing recovered anything under it, he may recover for the work on a quantum meruit, that is, what his services were reasonably worth/' In an action by an infant to recover for work and labor, it is neither a defence nor a ground for reducing the amount of the recovery, that the .work was done under a contract by the infant, to labor lor the defendant for a fixed period of time, which he violated by leaving the defendant's employ with cause before the time had expired. 10 1 7Cowen 23 8 Wallace vs. Morse, 5 Hill, 391, 2 John. 141 ;' 2 Cmv. Tr. 704. Cowen, J. :'• 2 John. 279; 5 John. 130. ° Medbury vs. Watrons, i Hill, 110, * 2 Cowen, 181. Beardsley, J. s -j jjui 120. Whitemarsh and others vs. Hall, 3 6 3 'Hill,' W, Com en, J. Demo, 375, JeweU, J. 7 Id. 1M 412 Tender. An infant feme covert cannot bind herself by deed so as to bar her right of dower. A contract of an infant, not for necessaries, cannot become _ obligatory, except by new promise or ratification after he becomes of age, and this new promise or ratification must be replied specially to a plea of infancy. 1 There is no legal obligation on a parent to maintain his child independent of the statutes. Hence a third person who supplies an infant with necessaries cannot maintain an action against the parent therefor, unless the latter has ex- pressly or impliedly contracted to pay the amount. 2 And no promise by the parent can be implied where the infant left his parent's house in disobedience of her express commands and went to live with the plaintiff under a con- tract that he should remain with the plaintiff until he should be twenty-one years of age. A step-father is not entitled by law to the custody or ser- vices of the children of his wife by a former husband, nor is he bound to maintain them. 3 The contracts of an infant arc voidable only, and not void. They are subsisting liabilities, requiring, however, ratifica- tion after the infant becomes twenty-one, in order to be en- forced. 4 If an infant insist on a right of action he must show a compliance with the conditions on which his right of action is to arise irrespective of his age. 5 A justice of the peace has no jurisdiction to proceed in an action against an infant defendant after servico and return of the process until a guardian has beenappointed. Until this has been done he has no right to receive the complaint of the plaintiff or the answer of the. infant defendant. 6 Tender. It is provided by statute as follows : "When an action at law is commenced for the recovery 1 1 Barb. 399; 4 Barb. 1G8. Note.— 5 3 Comstock, 312. No replication necessary by the * 54 Barb. 650; 36IIo\v.£89. new Code; see § 168. 8 1 Keyes, 570. 2 Kaymond vs. Lloyd, 10 Barb, 438, « Harvey vs. Large, 51 Barb. 222 and cases cited, Uand, J. Tender. 413 of a sum certain, or which may be reduced to a certainty by calculation, or for a casual and involuntary trespass, or in- jury, the defendant may, before trial, or before the assess- ment of damages, or before judgment in an action of debt, tender to the plaintiff or his attorney, what he shall deem sufficient to pay the debt or damages, and costs incurred to that time. 1 "If it shall appear upon the trial of the cause, or upon the assessment of damages, that the amount so tendered was sufficient to pay the plaintiff's demand, and the costs of the suit or proceeding up to the time of such tender, the plaintiff shall not be entitled to recover or collect any interest on such demand, from the time of such tender, or any costs incurred subsequent to that time, but shall be liable to the defendant for any costs incurred by him subsequent to such time. 2 " If the action be to recover damages, aud it shall appear that the sum tendered was a sufficient amends for the injury done, and for the costs as before mentioned, the plaintiff shall not be entitled to recover any costs in any such action or proceeding, incurred after such tender, but shall be liable to the defendant for his costs incurred after that time. 3 "If any such tender be acceptedby the plaintiff, and he shall thereafter proceed in the action, the sum so accepted shall be deducted from the whole amount of the recovery, and judgment shall be only rendered for the residue ; and an entry of such tender and acceptance shall be made on the record. The plaintiff's right to recover costs, and his liability to pay costs to the defendant, shall be determined by the amount of such residue." 4 It appears by the foregoing provisions of the statute that the plaintiff is at liberty to accept or decline the sum ten- dered ; but if he goes on with his suit, and does not recover a greater amount than the sum tendered he must pay the costs to the defendant. 5 When money is brought into court the plaintiff is entitled 1 2 E. S. 457, § 20. * Id. § 23. 2 2 R. S. 457, § 21. 5 13 Wend. 305, Nelson, J. 8 Id. § 22. 414 Tender. to it at all events, for the defendant admits the cause of ac- tion to the amount tendered, and in the manner charged in the declaration. 1 Where the tender is made in the case of a casual or invol- untary trespass, the court or jury, as the case may he, must find whether the sum tendered is sufficient, and such finding will regulate the costs subsequent to such tender ; or, whether such trespass was casual or voluntary, for if it was not the tender will be of no avail. 2 A tender of bank ' bills, for a money payment, is in any case good, if not objected to on that account. 3 A tender of money to an attorney, with whom the debt is left for collection, is good. 4 So a tender to a clerk, agent, or servant, authorized to receive money for the principal, is good. 5 In the case of cumbrous articles you are not bound to carry them with you, to seek the person who is to receive them ; but first seek him, and inquire where he will have them de- livered, and deliver them accordingly. If a merchant give a due bill for goods, and no time or place of payment is designated, the store of the merchant is the place of payment ; and no action can be maintained on the due bill, until it is presented at the store, and the mer- chant shall refuse to deliver such goods as the owner of the due bill may select. 7 If a cabinet maker give a due bill, payable in cabinet work, and no time or place of payment is mentioned, the shop of the cabinet maker is the place to make the demand ; and the payee may select any article not engaged, or require of the maker to furnish an article such as he usually manufac- tures, in a reasonable time. 8 So of a blacksmith or any other manufacturer, who should give a due bill payable in his work. 9 1 1 Sannd. 33; 2 Archbold Pr. 203. 6 4 Cowen, 452; 8 John. 477. 2 13 Wend. 395, Nelson, J. 7 2 Cow. Tr. 803. 3 7 John. 43G; 12 Barb 137. »2 Cow. Tr. 804. 4 18 John. 110. SChitty on Con. p. 28,29.30; 5 Cow 6 20 Wend. 436, and cases cited; 20 516. Wend. 435, Chancellor. Tendee. 415 For further remarks on this subject, the reader is referred to 2 Kent's Com. 3d ed. 504 to 509 ; 20 "Wend. E. 197, and cases cited. There is frequently some difficulty in determining when an actual demand is necessary before tender. On a due bill to pay money on demand, no demand is necessary, but the bringing the suit is sufficient demand in law ; but it is other- wise on a promise to pay goods, &c, on demand. 1 "Whenever a tender is made and is insisted on, in the plead- ings the creditor is at least entitled to the amount tendered.' 2 "Where the debtor admits a certain amount to be due by making a tender thereof, it is not a point of issue between the parties so far as he is concerned, and the creditor is not required to establish the amount by proof. 3 A tender of the amount clue on a judgment, if the same is not accepted, does not operate as the extinguishment of the lien of the judgment. Although as a general rule, money payable at no particular place must be tendered per- sonally to the person to whom it is payable, yet where, on the day previous to the time when a payment upon a con- tract became due, the debtor made an ineffectual attempt to find the creditor, but his house was closed and nobody at home. Held, that a tender made at the house of the credi- tor on the day, to his family, he being absent from homo and out of the county, was valid, the creditor being charge- able with notice that the money would be tendered at the day, and it appearing from the circumstances, that the credi- tor, by his voluntary absence, &c.', intended to render it impossible for the debtor to make a valid payment on the day it became due. 4 The cases in which a legal tender is indispensable notwith- standing a refusal to receive the money, and a general refusal to perform the contract on other grounds, are very few. The general rule is that a strictly legal tender maybe waived, by an absolute refusal to receive the money on the principle 1 2 Cow. Tr. S07i 17 John. 248; 3 3 Id. Wend. 13, 20. * The People vs. Beetle, 1 Barb. 379; 2 Wood vs. Perry, 1 Barb. 114. Judd vs. Ensign, 6 Barb. 258. 41G Tender. that no man is bound to perform a nugatory act. Where there is a mutual obligation on a purchaser to pay or secure the purchase price, and on the vendor to convey the property purchased, an offer and readiness to perform on the part of the purchaser is enough, especially where the vendor refuses to convey at all. 1 A tender by an endorser of the amount due upon a pro- missory note, before suit brought, is not rendered invalid by being; connected with a condition that the note shall be de- livered to him. And a tender of the amount due upon the note before suit brought, is not rendered invalid by being connected with such a condition. As a general rule a ten- der must be unconditional. But negotiable paper is an exception. A defendant docs not by bringing money into court, waive a tender made before suit brought, which he has pleaded. In case of a tender before suit, the defendant must plead tender and refusal, and bring the money into court, and plaintiff is entitled to it at all events. 2 A tender of performance may be accompanied with such conditions as were, bj r the terms of the contract between the parties, conditions precedent to be performed by the party to whom the tender is made. :i Where a payment was to bo made by the delivery of wagons, and the wagons were ready for delivery at the time and place stipulated, and were not actually delivered, because the party was not then ready to receive them, and were kept by his request until he was ready, &c. Held, that a further tender of the wagons was unnecessary, and that from and after the time when the wagons were ready to be delivered according to the terms of the contract, no further interest could be charged on the debt to be thus paid. (Id.) In order to constitute a valid tender, it must be proved that there was a production of the money and an actual offer of it to the creditor, unless it be shown that the latter dispensed with it by some positive act or declaration ; it is not enough that the debtor had the money in his pocket, and informed the 1 Bellinger vs. Kitts, 6 Barb. 273. 3 TVheelock vs. Tanner, 39 N. T. 481 . 2 8 Barb. 408; 7 Hill, 80; 12 Barb. 137. Time of Commencing Actions. 417 creditor that he was ready to pay, without offering to do so, nor that he retained it in an envelope, which was shown to or shaken at the creditor. There must be an actual offer or presentation of the money, so that the creditor can take it. To render a tender valid, the money tendered should be hrought into court. 1 A tender of United States Treasury notes in payment of a debt is sufficient. A tender should be made irrespective of any other act. If a receipt or satisfaction piece is asked for it vitiates the tender. 2 A plea of tender is an unequivocal admission of the jus- tice of the plaintiff's claim to the extent of the sum ten- dered. 3 A vendor who wishes to rescind the contract of sale or to hold the purchaser to a performance, on the day appointed should have his deed prepared and executed ready to be de- livered on the payment of the purchase money. When the time for the payment of the purchase money is not an essen- tial ingredient in, or inducement to, the execution of a con- tract of sale and purchase, the payment or tender may be made within a reasonable time after the day named. 4 CHAPTER III. The time for commencing actions other than for the recovery of real property. Section 89. Periods of limitation prescribed. 90. Within twenty years. 91. 'Within six years. 92. Within three years. 93. Within two years. 91. Within one year. 95. When cause of action accrued, in an action upon a current account. 9G. Actions for penalties, etc., by any person who will sue; when to be brought. 97. Actions for relief, not before provided for. 98. Actions by the people subject to the same limitation. 1 Strong vs. Blake, 46 Barb. 227; 15 a 20 Wend. 47; 23 Id. 310; 45 Barb. Wend. 637. 554. 2 45 Barb. 554; 2 Denio, 196; 2 Hill, l McWilliams vs. Long, et al. 32Barb. 538; 45 Barb. 579. 194. Z 418 Time of Commencing Actions. § 89. [G9.] (Am'd, 1849.) Periods of limitation pre scribed. The periods prescribed in section 74 for the commence- ment of actions other than for the recovery of real property shall be as follows : § 90. [70.] (Am'd, 1849.) Within twenty years. Within twenty years : 1. An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States. 2. An action upon a scaled instrument. §91. [71.] Within six years. Within six years : 1. An action upon a contract, obligation or liability, ex- press or implied ; excepting those mentioned in section 90. 2. An action upon a liability created by statute, other than a penalty or forfeiture. 3. An action for trespass upon real property. 4. An action for taking, detaining or injuring any goods or chattels, including actions for the specific recovery of personal property. 5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated. 6. An action for relief, on the ground of fraud, in cases which heretofore were solely cognizable by the court of chancery ; the cause of action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud. \ 92. [72.] (Am'd, 1849.) Within three years. Within three years : 1. An action against a sheriff, coroner or constable, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty ; including the non-payment of money collected upon an execution. But this section shall not apply to an action for an escape. 2. An action upon a statute, for a penalty or forfeiture, Time of Commencing Actions. . 419 where the action is given to the party aggrieved, or to such party and the people of this state, except where the statute imposing it prescribes a different limitatiou. § 93. [73. J Within two years. Within two years : 1. An action for libel, slander, assault, battery, or false imprisonment. 2. An action upon a statute, for a forfeiture or penalty to the people of this state. ^ 94. [74.J Wilkin one year. Within one year : 1. An action against a sheriff or other officer, for the escape of a prisoner arrested or imprisoned on civil process. $ 95. [75] (Am'd, 1849.) When cause of action accrues in an action on a current account. In an action brought to recover a balance due upon a mutual, open and current account, where there have been reciprocal demands between the parties, the cause of action shall be deemed to have accrued from the time of the last item proved in the account on either side. § 9(5. [76.J Actions for penalties, etc., by any person ivho will sue ; when to be brought. An action upon a statute for a penalty or forfeiture, given m whole or in part to any person who will prosecute for the same, must be commenced within one year after the commis- sion of the offence ; and if the action be not commenced within the year by a private party, it may be commenced within two years thereafter, in behalf of the people of this State, by the Attorney General, or the District Attorney of the county where the offence was committed. \ 97. [77.] Actions for relief, not before provided for. An action for relief, not hereinbefore provided for, must be commenced within ten years after the cause of action shall have accrued. \ 98. [78.] (Am'd, 1849.) Actions by the people subject to the same limitation. The limitations prescribed in this chapter shall apply to actions brought in the name of the people of this State, or 420 • General Provisions v for their benefit, in the same manner as to actions by private parties. CHAPTER IV. General Provisions as to the Time of Commencing Actions. Section 99. When action deemed to have been commenced. 100. Exception, when defendant is out of the State. 101. Exception, as to persons under disabilities. 102. Provision, where person entitled dies before the limitation ex- expires. 103. In suits by aliens, time of war to bo dedncted. 104. Provision, where judgment has been reversed. 105. Time of stay of action by injunction or statutory prohibition to be deducted.' 10G. Disability must exist when right of action accrued. 107. Where two or more disabilities, limitation does not attach till all removed. 108. This title not applicable to bills, etc., of corporations or to bank notes. 109. Nor to actions against directors or stockholders of moneyed corporations or banking associations ; limitations in such cases prescribed. 110. Acknowledgment of new promise must be in writing. § 99. [79.] (Am'd, 1849, 1851, 1867.) When action deemed to have been commenced. An action is commenced as to each defendant -when the summons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him. An attempt to commence an action is deemed equivalent to the commencement thereof within the meaning of this title, when the summons is delivered, with the intent that ^ shall be actually served, to the sheriff or other officer of the county in which the defendants or one of them usually or last resided ; or, if a corporation be defendant, to the sheriff or other officer of the county in Avhich such corporation was established by law, or where its general business was trans- acted, or where it kept an office for the transaction of business. \ 100. [80.] (Am'd, 1849, 1851, 1867.) Exception, when the defendant is out of the State. If, when the cause of action shall accrue against any person, he shall be out of the State, such action may be commenced As to Time of Commencing Actions. 421 within the terms herein respectively limited, after the return of such person into this State ; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this State, or remain continuously absent there- from for the space of one year or more, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action. § 101. [81.] (Am'd, 1849,1851,1852, 1870.) Exceptions, as to persons under disabilities. If a person entitled to bring an action mentioned in tho last chapter, except for a penalty or forfeiture, or against a sheriff or other officer for an escape, be at the time the cause of the action accrued, either : 1. Within the age of twenty-one years ; or, 2. Insane ; or, 3. Imprisoned on a criminal charge, or in execution under- the sentence of a criminal court, for a term less than his natural life. The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought, cannot be extended more than five years by any such disa- bility, except infancy, nor can it be so extended in any caso longer than one year after the disability ceases. § 102. [82.] Am'd, 1849.) Provision where person entitled dies before the limitation expires. If a person entitled to bring an action die before the expi- ration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced by his representatives, after the expiration of that time, and Avithin one year from his death. If a person against whom an action may be brought die before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his executors or administrator, after the expiration of that time, and within one year after the issuing of letters testamentaiy, or of administration. § 103. [83.] In suits by aliens, time of war to be deducted. When a person shall be an alien subject or citizen of a 422 General Provisions country at war with the United States, the time of the con- tinuance of the war shall not be part of the period limited for the commencement of the action. ^ 104. [84.] Provision, where judgment has been reversed. If an action shall be commenced within the time prescribed therefor, and a judgment therein be reversed on appeal, the plaintiff, or if he die and the cause of action survive, his heirs or representatives, may commence a new action within one year after the reversal. § 105. [85.J (Am'd, 1849.) Time of stay of action by injunction or statutory prohibition to be deducted. When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continu- ance of the injunction or prohibition shall not be part of the time limited for the commencement of the action. § 106. [8G.] Disability must exist when right of action accrued. No person shall avail himself of a disability, unless it ex- isted when his right of action accrued. § 107. [87. J (Am'd, 1849.) Where two or more disabilities,, limitation does not attach till all removed. When two or more disabilities shall co-exist at the time the jight of action accrues, the limitation shall not attach until they all be removed. § 108. [88.] This title not applicable to bills, etc., of cor- porations, or to bank notes. This title shall not affect actions to enforce the payment of bills, notes or other evidences of debt issued by moneyed corporations, or issued or put in circulation as money. § 109. [89.] (Am'd, 1849.) Nor to actions against direc- tors or stockholders of moneyed corporations or banking asso- ciations ; limitations in such cases prescribed. This title shall not affect actions against directors or stock- holders, of moneyed corporations or banking association,*, to recover a penalty or forfeiture imposed, or to enforce a liability created by law ; but such actions must be brought within six years after the discovery, by the aggrieved. party. As to Time of Commencing Actions. 423 of the facts upon which the penally or forfeiture attached, or the liability -was created. $110. [90.] (Ara'd, 1849.) Acknowledgment or new promise must be in writing. No acknowledgment or promise shall be sufficient evi- dence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same bo contained in some writing signed by the party to be charged thereby ; but this section shall not alter the effect of any payment of principal or interest. The statute begins to run against a note payable on demand, from the date thereof ; but is otherwise as to one payable one day after demand, for in the latter case it com- mences running only from the time of demand. 1 An action against an attorney must be brought within six years after the money is received by him, and the fact that demand was not made within six years before suit brought, will not save the statute. 2 The statute limiting the actions against sheriffs and coro- ners to three years, does not extend to acts done by color of their office. 3 In an action brought to recover a balance due upon a mutual current and open account, where there have been reciprocal demands between the parties, the cause of action is deemed to have accrued from the time of the last item proved in the account on either side. This class of accounts are such as exist where each party makes charges against the other in his books, for property sold, services rendered, or money advanced. A payment by one party upon an account against him, and for which he has received a receipt, does not render the account a mutual one.* Items in an account furnished within six years, will not draw after them items before that time, so as to save the account from the statute, unless it appear that there were dealings by both the parties. 8 But if there be mutual accounts, any one item on X 13 'Wend. 267, Nelson, J. 4 15 Wend. 554. 2 15 Wend. 302. 6 i Sandf. 220; 2 Id. 318. 319 Wend. 283. 424 Statute of Limitation. cither side having accrued within six years before the action, will draw after it both accounts and take the case out of the statute, 1 unless there appears a period of six years between any tioo of the consecutive items. If there is such a lapse between two consecutive charges, the account ceases to be an open one, as respects the prior items. 3 The one hundredth section of the Code of Procedure above given, is similar in its language to a provision of the Revised Statutes. That has been interpreted by the courts to provide : 1. That where at the time an action accrues, the defendant shall reside out of the state, and he at any time thereafter comes into it in an open and public manner so that the plaintiff with ordinary diligence might have served him with process, the term of the limitation commences, and will continue to run, although the defendant return to his residence without the state, and that the clause declaring that " the time of his absence shall not be deemed or taken as any part of the time limited," related only to cases of departure from the state after the cause of action has accrued. 3 2. That where an action accrues against a resi- dent, if he depart from and reside out of the state, the run- ning of the limitation is suspended, and docs not recom- mence running until he returns to reside within the state, notwithstanding he continues during his foreign residence to have a regular place of business within the state, to Avhich he frequently resorted, and that his visits to the state during his residence without it are not to be computed as part of the statutory term. 4 It has, however, been held by the Superior Court of the city of New York, and the late Court of Chancery, that all the absences of the defendant from the state after the cause of action accrued, whether he was or was not at-the time a resident of it, are to be deducted from the statutory time. 5 The departing and absence of one of several joint debtors does not stop the running of the statute. To have that effect all the joint debtors must go without the state. 15 1 20 Wend. 72. i 5 Id. 532. 2 9 Id. 120. 8 2 Sand. 518; 2 Barb. Ch. 477. 3 4 Dcnio. 077 <* 1 Denio, 445. Statute of Limitation. 425 Neither does a judgment against joint debtors stop the run- ning of the statute against one not served with process, nor prevent him from taking advantage of the fact that the demand was barred before the first suit brought, or before the action against him upon the judgment. 1 After the dissolution of a partnership an acknowledg- ment and promise to pay, made by one of the partners, will not revive a debt against the firm, which is barred by the statute of limitations. The leading cases on this question reviewed, and those of Patterson vs. Chote, (7 Wend. 441,) and Johnson vs. Beardsley, (15 John. 3,) holding a contrary doctrine overruled? It seems that the statute of limitations above referred to, is intended only to embrace penalties and forfeitures, prop- erly so called, and other causes of action penal in their na- ture, and where both the cause of action and the remedy are given by statute, but does not extend to cases where the action is partly given by the common law and partly by the statute. One of the two makers of a joint and several promissory note cannot after the debt is barred by the statute of limita- tions, revive the debt against the other maker, by making a payment on the note, so as to enable the holder to sue the latter upon the note as survivor after the death of the former. Partial payments made upon a joint and several promissory note by one of the makers, before the statute of limitations has barred an action upon it, will not revive the debt against the other parties to the note. 3 The statute of limitations is a bar to an action on a promis- sory note, brought by the payee against the maker, although the former, after the expiration of six years from the time the note became payable, paid the amount of it to his indorsee, and thus became repossessed of the note. 4 A promise made since the Code of 1848 took effect, to pay a debt which was barred by the statute of limitations, before the Code went into operation, will not revive the cause of . 4 Deni0j 5G. 3 10 Barb. 32 ; Id. 566, and cases i 2 Comstock, 523 cited ; Allen, J. * Woodruff vs. Moore, 8 Barb. 1/1. 426 Statute of Limitation. action unless such promise be in writing subscribed by the party to be charged thereby. 1 The statute of limitations begins to run against an action of trover from the time of conversion.' Where A. received property belonging to B., after B.'s death, and C. took out letters of administration, and brought his action against the executor of A., who pleaded the stat- ute of limitation, Held, that the statute only commenced running from the granting of letters of administration, and not from the receipt of the property, and that it was sufficient if the action was brought within six years after the granting of letters of administration. 3 The section of the Revised Statutes which provides that the term of eighteen months after the death of any testator or intestate, shall not be deemed any part of the time limited by law for the commencement of an action against his execu- tors or administrators, (2 11. S., 448, 558,) is not repealed by <$ 102 of the Code of Procedure, by which it is declared that if any person entitled to bring an action shall die before the time limited for the commencement thereof, and the cause survives, it may be commenced by his representatives within one year after his death. 4 One having a claim against a person deceased has eighteen months after the death of the latter, during which, the run- ning of the statute is suspended, and if personal representa- tives are appointed, he has, in addition, one year from the time of their appointment. Hence, an action upon a promis- sory note brought against administrators more than a year after issuing letters of administration, but within six years after the note became due, if eighteen months are excluded in the computation of time, is not barred by the statute of limitations. When a note is made payable on demand simply, it is to be deemed due at its date and may be prosecuted immedi- ately, although an actual demand must be made in order to entitle the holder to draw interest upon the principal sum. But when the note is payable on demand with interest, or 1 Wadsworth vs. Thomaa, 7 Barb. 445. 3 5 Barb. 393. 2 6 Barb. 430. 4 Scovill vs. Scovill. 45 Barb. 517. Statute of Limitation. 427 with annual interest, the statute of limitations does not begin to run until payment is actually xlemauded. 1 A defendant in a personal action who is a resident abroad cannot avail himself of the statute of limitations of this state until he has returned to, and actually been a resident of this state, and subject to process of its courts for a period of six years. 2 The statute of limitations may be interposed in a surro- gate's court as well as any other, and in a case where courts of law have a concurrent jurisdiction with the surrogates court, the six years limitation will constitute a bar to the proceeding in a surrogates court. 3 The statute of limitations begins to run against a premium note given to an insurance company under the act of 1849 from its date, and at the expiration of six years from that time will constitute a good defense. 4 The rule as to partial payments remains the same as it was before the Code, viz : that in order to take a case out of the statute of limitations, they must be made under cir- cumstances to warrant a finding, as a question of fact, that the debtor intended to recognize as subsisting the debt in question, and that he was willing to pay it. 5 When joint debtors are sued, some of whom are not served with the process or complaint, and judgment is obtained against all pursuant to the statute, such judgment does not prevent the running of the statute of limitations, in respect to the defendants on whom process was not served. 6 Therefore, in debt on a judment against a defendant not served with process in a former suit, he may plead that it was recovered without the service of process on him, and that the cause of action did not accrue within six years next before the commencement of the suit on the judgment. A debt which was barred by the statute of limitations when the Code took effect, (1848,) is not revived by any 1 23 N. T. 28; 39 Bnrb. 63-1. I Colgate vs. Buckingham, 39 Barb. 2 Power vs. Hathaway, 43 Barb. 2 W ; 177: 20 N. Y. 224. 5 Pnket vs. King, 31 Barb. 193 3 Smith vs. Remington, 42 Barb. 75, 8 4 Dcnio. 56. and cases cited. 428 Warranty on Sale of Property. verbal promise to pay it, made after that time. The provis- ion of the Code is wholly prospective. It reaches every case of acknowledgment made after that time. This was the conclusion reached in the Supreme Court, in Wadsworth vs. Thomas, (7 Barb. 445,) and may hoav be regarded as settled. 1 Warranty or Fraud on the Sale of Property. A warranty of goods must be upon the sale, and not after, for then it is without consideration, so when upon a treaty for a sale and warranty made all is broken off, such a war- ranty will not extend to a subsequent sale, though it would be otherwise if I warrant a horse before sale, and another buys him immediately, for such sale is upon the strength of the warranty. 2 And if when I am first in a treaty with the purchaser, respecting the sale 2" offer to warrant the article, the war- ranty will be binding although the sale does not take place till some days afterwards. And a warranty that an article is sound and shall continue so for a year is binding. 3 There can be no doubt of the principle that where a vendor of a chattel is guilty of a fraudulent concealment of material facts in relation to the sale, to the injury of the vendee, an action at law is maintainable to recover damages. (18 John. 403 ; 6 Cow. 346 ; 14 Barb. 66.) In this last case the Court say, the law presumes that the purchaser reposes confidence in the vendor, as to all such defects as are not within the reach of ordinary observation, and therefore it imposes upon the vendor the duty to disclose fully and fairly his knowledge of all defects. Merely saying the horse had balked once and that he had made him go, was calculated to mislead and probably did mislead him into the belief that this defect did not really exist, as there had only been this one slight evidence of it. The defendant told the truth as far as he went, but he did not tell the whole truth. This he should have done fully and fairly. 4 1 2 Kernan, G35, and cases cited, by 3 11 Wend. 584. Gardiner, J. * 22 Barb. 652; 14 Bavb. 66. 2 3 Bl. Com. 166; 1 Strange, 414. "Warranty on Salk of Property. 429 And where an article is warranted sound, and there is any fraud in the sale, on discovering the defect the buyer may, at his option, return it and sue for the consideration paid, in an action, or he may keep it, in which case his action is alone on the warranty or for the fraud as the case may be. 1 If there is fraud in a sale on the part of a vendor, the vendee may rescind and recover back the consideration paid in an action for money had and received ; but in such a case the vendee must restore or offer to restore all he has received under the contract, and he cannot rescind in part and affirm as to the residue even where the sale is of several articles at distinct prices for each. 2 No particular form of words is necessary to constitute a warranty, but an assertion or affirmation concerning the thing sold to be evidence of a warranty, should be positive and unequivocal, one which the buyer relies on, which is understood by the parties as an absolute assertion, and not the mere expression of an opinion. 3 And an affirmation that a horse is not lame, accompanied by a declaration of the seller, that he would not be afraid to warrant him, is enough to establish a warranty. 4 And the word warrant need not be used ; any words of an import equivalent to warrant arc sufficient, and whether what was said amounts to a representation of soundness, or a mere expr-ession of opinion, belongs to a jury, or a Justice sitting in their stead, to determine. 5 If a man should say on the sale of a horse, I promise you the horse is sound, it is difficult to conceive that this is not an express warranty ; so if a seller say to the buyer of a horse in the course of dealing : " You may depend upon it the horse is perfectly quiet and free from vice," this represen- tation amounts to a warranty. If a person at the time of selling a horse say, " I never warrant, but he is sound as far as I know," this is a qualified warrant}', and the purchaser 1 8 Esp. R. 82 ; 23 "Wend. 350. * 13 Wend. 277. 2 2 Hill E. 288; 21 Barb. 82. 610 Wend. 411; 8 Cow. 290; 2 3 4 Cow. 440 ; 19 J. R. 290 ; 20 J.R. Cow. 138. 203. 430 Warranty on Sale of Property. may maintain an action upon it, if he can show that tno horse was unsound to the knowledge of the seller. 1 In a contract for the sale and delivery of an article of merchandise at a future day, when there is no selection or setting apart at the time, of particular articles of property, so as to pass the property in presenti to the purchaser, merchantable quality, such as will at least bring the average market price, is always intended. 2 If I engage a mechanic to manufacture an article in his line of business, without any stipulation, the law implies an obligation to make it in a skillful and workman-like manner. So if I contract with a merchant to furnish me with a quantity of wheat at a future clay for a certain price, without any other stipulation, the law implies that it shall be of a good and merchantable quality and condition ; com- mon honesty is exacted in all, in their dealings with one another, without any stipulation for it. 3 The above cases, however, must be received with this qualification, that wherever there is wilful or known misrep- resentation, concealment or fraud by the vendor, either as to the kind, the soundness, quality, goodness, or any other particular, of the article sold, an action for the deceit lies under all conceivable circumstances, though the contract be in writing, though it be sealed and contain covenants of warranty, or any other covenants calculated in the most extensive manner to guard and protect the plaintiff's rights, if the defendant have been dishonest in the transaction, the plaintiff may disregard all these, and sue him directly for the fraud. 4 Fraud is a crime, and whenever a court or jury are con- vinced of its existence, to the injury of another, they may and should give damages, as in other actions, for a wrong involving moral guilt, with a liberal and unsparing hand, both to compensate the plaintiff for his extraordinary trouble in vindicating himself against the injury, and to furnish a 1 19 John. 290, Spencer, Ch. J. ; 4 3 9 Wend. 20, 28 ; 18 Wend. 439, in Car. & Payne, 45. error. 2 23 Wend. 350. 4 1 Cow. Tr 359; 4 Hall Law Term, 618. Warranty on Sale of Property. 431 moral lesson to their country for the punishment of the defendant. 1 In contracts for the sale of provisions, a warranty on the part of the seller is implied, that they are sound and whole- some, especially if the provisions be intended for domestic use. 2 In a late case in the Supreme Court of this State, it was decided that if a horse be sold with a warranty of sound- ness, the vendee has no right to return him and recover back the price paid, although he turns out to have been unsound at the time of sale, unless there be either an agreement to that effect, or fraud on the part of the vendor. 3 On an executed present sale of an article, with warranty as to quality, it is neither necessary nor allowable to rescind the sale, and return or offer to return the property sold on account of a breach of the warranty, and the buyer's omis- sion to do so, in no way impairs his right of action for damages for such breach. It is otherwise where the sale is executory of goods to be of a particular quality. 4 To sustain an action upon a warranty, it is not necessary that all the representations made by the defendant should be false or all actionable. If any part of the representations are actionable it will suffice. 5 Where a partner upon selling promissory notes belonging to the firm and for their benefit, stated to the purchaser that he would warrant them to be good notes and they would be paid, that they were given for a valuable consideration, and were regular business paper, &c, which representations were false. Held, that the firm was bound by the representations made by the partner on selling the notes, and that an action Would lie against all the members of the firm npon the warranty. A positive affirmation of a fact is a sufficient warranty. An affirmation in regard to an existing fact, distinctly and 1 1 Cow. Tr. 359, and cases cited. * Rust vs. Eckler, 41 N. T. 488 ; 14 « 17 Wend. 268, Covven, J.; 12 John- N. Y. 697; 25 N. Y. 306. son, 468; 18 Wend. 449. 6 Sweet vs. Bradley, 24 Barb. 549 ; 3 4 Hill, 625; 2 Hill, 288; 14 N. Y. 10 Wend. 41; 6 Barb. 537. 597. 432 Warranty on Sale of Peoperty. positively made, in negotiation for trade, should be regarded as a contract and enforced as a warranty. The rule is well settled that no particular form of words is essential to con- stitute a warranty of quality, and any assertion of the ven- dor concerning the articles sold, if it be relied upon by the vendee and understood by the parties as an absolute opera- tion, and not merely an expression of opinion, will amount to a warranty. 1 In case of an express or an implied warranty of the quality of the chattels, the purchaser may, without offering to return the property, sustain an action to recover for the breach of the warranty, or recoupe the damages in an action against him for the purchase price. Such action or recoupe- ment is not barred by the' omission of the purchaser to notify the vendor of the breach, and by his retaining and disposing of the articles warranted. 2 The purchaser may recover for the breach, although he has sold the goods, and no claim has been made upon him, and he is liable to none on account of the alleged defect. 3 Upon the breach of a warranty of a horse, if the horse be returned the measure of damages is the price paid for him ; if the horse be not returned, the measure of damages is the difference between his real value and the price given. The actual value at the time of sale, and not the price paid is the criterion. That is to say, the measure of damages, is the difference between the value of the horse at the time of the sale, considering him as sound, and his value with all the defects complained of. The price paid is, however, strong evidence of what the horse would have been worth if sound, and should always control, unless it be clear that the actual value was either greater or less. 4 (Cowen, J.) In an action for the breach of a warranty of soundness on the sale of a horse, the proper measure of damages is the difference between the value of the horse at the time of sale, 1 Wilbur vs. Cartrigljt, 44 Barb. 530; 8 Id. 24 Barb. 549. and cases cited. * 4 Hill, 625 ; 2 Hill, 288 ; 14 N. Y. 2 Muller vs. Eno and others, 14 N.Y. 597. 597; 25 N. Y. 306; 2 Hill, 288; 4 Hill, 625. Warranty on Sale of Property. 433 considering him sound, and the value with the defect com- plained of. 1 The law does uot, iu ordinary cases, impose upon a pur- chaser of property the duty to disclose to the seller, at or before the sale, the state of his pecuniary circumstances, however desperate they may be and be known by him to be. Although the knowledge may be of the highest importance to the seller, for the protection of his interests, the duty of communicating it is only a moral duty belonging to a large class of similar duties denominated by Chancellor Kent, "imperfect obligations which are binding in conscience, but which human laws do not and cannot undertake directly to enforce." (2 Kent's Com. 4th ed. 490.) Parties to contracts must themselves exercise reasonable care to guard against loss, and in general that degree of care requires the party giving credit to make inquiries of the party to whom it is given, at least in regard to his ability to pay. For a fraudulent misrepresentation, by the purchaser, of important facts in respect to his circumstances, accom- panied with damage, the law affords a remedy, the sale may be avoided, and an action for the fraud to recover tbe dam- ages will lie. The general principle above stated, that the purchaser is under no obligation to disclose to the seller his insolvency although known to him, is, I think, equally appli- cable, notwithstanding there has been a long course of dealing between the parties, in the course of which credit has been given to the purchaser, and he has punctually performed his engagements, his insolvency having occurred during their dealings. No relation of trust or confidence is thereby created, which should entitle the seller to expect of the purchaser, or require of the purchaser, as a legal duty, to communicate to the seller, information of his inability to pay all his debts, while he continues his business and the management of his affairs. If there is any such obligation to disclose in such a case, where does it commence ? At insolvency, or on the way to insolvency, and at what point, and what proof of knowledge 1 10 Barb. Rep. 211. Aa 434 "Warkanty on Sale of Property. is required ? An attempt to extend the protection of the law to purchasers, so fax as to impose such an obligation, would work much more injustice than it would remedy. 1 The rule in regard to the duty of disclosure on the part of persons dealing with each other, is substantially the same both in law and equity. It confines the obligation to disclose material facts, to a party who is under some special obliga- tion, by confidence reposed or otherwise, to communicate them truly and fairly. In the case of the sale of property, the law presumes that the purchaser reposes confidence hi the vendor as to all such defects as are not within the reach of ordinary observation ; and, therefore, it imposes the duty upon the vendor to disclose fully and fairly his knowledge of all such defects. But in ordinary cases the vendor reposes no such confidence in the purchaser, hence it has been held that a purchaser may use any information he may have, in regard to property, for his own advantage, without disclos- ing it, provided he does nothing to mislead or deceive. While a party in whom no trust or confidence is reposed, and between whom and the other party no legal relation in regard to the subject of the purchase exists, med not dis- close material facts, within his knowledge, which he knows such other party to be ignorant of, he must do nothing what- ever to deceive or mislead, or he will not be protected. The plaintiff having lost a flock of sheep, made search and inquiry for them without effect. Subsequently the sheep were taken up in the highway by one D., who informed one of the defendants thereof. The other defendant then went to the plaintiff, and concealing from him his knowledge of the sheep having been found, inquired whether ho had found them. Being informed that he had not, the defendant said he supposed he never would find them, and offered the plain- tiff ten dollars for the sheep, which the plaintiff accepted, and gave him a bill of sale thereof. The defendants then went to D. and claimed the sheep and their fleeces, and the same were delivered to them. In an action by the plaintiff to recover the value of the sheep and X Mitchell vs. W"orden, 20 Barb. 253, Strong, J. Negligence. 435 wool, on the ground that the sale had been procured by fraud, Held, that the action could not be maintained on the ground of the defendants neglect to disclose the facts within their knowledge, but that the defendants were made liable by the expression of a belief that the plaintiff would never find his sheep, by means of which he was deceived and mis- led. 1 Hegligence. Negligence is a violation of the obligation which enjoins care and caution in what we do. But this duty is relative, and where it has no existence between particular parties there can be no such thing as negligence, in the legal sense of the term. A man is under no obligation to be cautious and circumspect towards a wrong-doer. A horse straying in a field falls into a pit left open aiid unguarded ; the owner of the animal cannot complain, for as to all trespassers the owner of the field had a right to leave the pit open or as he pleased, and they cannot impute negligence to him. But injuries inflicted by design are not thus to be excused. A Avrong-doer is not necessarily an outlaw, but may justly com- plain of wanton and malicious mischief. Negligence, how- ever, even when gross, is but an omission of duty. It is not designed and intentional mischief, although it may be cogent evidence of such an act. (Story on Bail'm, (j§ 19, 22 ; Gardner vs. Heartt, 3 Denio, 23G.) Of the latter a trespasser may complain, although he cannot be allowed to do so in regard to the former. One who complains of another's negligence should himself be without fault. (Brownell vs. Flagler, 5 Hill, 282 ; Cook vs. The Champlain Trans. Co., 1 Denio, 99.) Where the plaintiff at the time of the alleged injury was trespassing on the defendant, or otherwise wrong in the particular act com- plained of, such delinquency alone, with very limited excep- tions, is a decisive answer to any claim for damages founded on the defendant's negligence. It is a well settled rule of law that an action cannot be 1 14 Barb. 60, Johnson, J. 436 Negligence. sustained -against a defendant for his wrongful and negligent acts, if the wrongful or negligent act of the plaintiff co- operated with the misconduct of the defendant, or his ser- vants, to produce the damage sustained. Not that the co- operating act of the plaintiff must be wrong in intention, to call for the application of this principle, for such is not the law. The act may be one of mere negligence on his part, still, he cannot recover. Or his' beast, while trespassing on the land of another person, and that without the consent or knowledge of its owner, may have been damnified through some careless act of the owner of the land, yet the fact of such trespass constitutes a decisive obstacle to any recovery of damages for such injury. 1 Let us now see what a man may do in the enjoyment of his, own property without being answerable to others for con- sequential damages, always assuming that he acts with proper care and skill. He may set fire to his fallow ground, and though the fire run into and burn the woodland of his neighbor, no action will lie. (Clarke vs. Foot, 8 John. 421 ; Stuart vs. Hawlcy, 22 Barb. 619.) He may open and work a coal mine in his own land, though it injure the house which another has built at the extremity of his land. (Pat- ridge vs. Scott, 3 Mces. & Welsh. 220.) And he may do the same thing, though it cut off an underground stream of water which before supplied his neighbor's well, and leave the well dry. (Actor vs. Blundell, ~12 Id. 324.) He may build on his own land, though it stop the light of his neigh- bor ; (Parker vs. Foot, 19 Wend. 309 ;) and even though he build for the purpose of stopping the lights. (Mahan vs. Brown, 13 Id. 261.) He may pull down his own house, though the adjoining one fall for the want of the support which it before had ; and he may do it without'shoring up the adjoining house, that being the business of the owner. (Peyton vs. Mayor and Commonalty of London, 9 B. & C. 725.) He may pull down his own wall, though the vaults of his neighbor bo thereby destroyed. (Chadwick vs. Trower, 1 5 Denio, 255, and many cases cited by Bcardslev, J.; 21 "Wend. 015; 5 Barb. 837. Negligence. 437 •* 6 Bing. N. C. 1.) Ho may build a house and make cellars upon his soil, whereby a house in the adjoining soil falls down. (Com. Dig., action on the case for nuisance, C.) He may dig in his own land, though the house which his neigh- bor had previously erected at the extremity of his land'be thereby undermined and tall into the pit. (2 Rolle's Ab. Trespass, 1 pi. 1 ; Wyatt vs. Harrison, 3 B. & Ad. 871.) In Panton vs. Holland, (17 John. 92,) the defendant for the purpose of laying the foundation of a house on his own land, dug some distance below the foundation of the plaintiff 's house in the contiguous lot, whereby the walls of the plain- tiff's house were cracked and the house was otherwise injured, and it was held no action would lie. In Lasala vs. Holbrook, (4 Paige, 109,) the plaintiffs wero the owners of a church, built within six feet of the line of their lot, and the defendant, for the purpose of building in his adjoining lot, Avas sinking the foundation for his building sixteen feet below the natural surface of the ground, and ten feet below the foundation of the church, whereby the founda- tion of the church was greatly endangered ; and yet an in- junction to restrain the excavation, had been granted by a master, was dissolved by the Chancellor, on the ground that the defendant was exercising a lawful right. 1 If ordinaiy diligence by the plaintiff will not prevent the injury, he is not considered in any degree the author of the wrong. This seems to be the equitable rule, and it accords, too, with the principle that one is not to be indifferent and reckless because another has done him an injury, but must exercise reasonable diligence to prevent damage. (Sedgwick on Damages, 98.) Ordinary care, however, means that due and reasonable diligence is to be exercised according to the circumstances of each particular case, to prevent an injury. 2 The degree of precaution, care and skill required of a carrier of passengers by stage coaches, in the preparation and management of the means of conveyance, is not a test of that which is required of those engaged in transporting 1 4 Comstock, 105, Bronson, J. 2 17 Barb. 95; 6 Hill, 592; 5 Hill, 282; 19 Wend. 399; -1 Comst. 349; 21 Wend. 615. 438 Negligence. persons at a high rate of speed, by means of steam power, and it is immaterial whether a railroad company manufactures the cars and engines used in transporting passengers, or pro- cures them from others, it is responsible that the utmost pre- caution, care and skill have been exercised in their construc- tion to render them sufficient and safe. 1 Where a railroad company neglects to maintain fences and cattle guards along its road as required by the general railroad act, (Laws of 1 850, p. 233, § 44,) and cattle get upon the track and are injured by its engines or cars, the coi'poration is liable to the owner in damages, although he is not an adjoin-, ing proprietor, and it does not appear how or where the cattle came upon the road. 2 A railroad company which omits to comply with the statute as to erecting and maintaining fences and cattle guards, is liable to the owner of cattle which stray upon the track from an adjoining close or the highway crossing it, and are there injured by the engines of the company, although they were not lawfully in such close or highway. In such a case, the mere negligence of the owner in permit- ting his cattle to stray upon the land of another adjoining the railroad,, or to run at large in the highway which crosses it is not a defence to the corporation. 3 A city corporation is not liable for injuries to third per- sons occasioned by the negligence of workmen engaged in grading a street, under the direction of a person who has entered into a contract with the corporation to perform the work in conformity to a plan referred to in the contract for a specified sum to be paid by the corporation. A recovery for such injury can be had only against the person actually guilty of the wrongful act, or against one to whom he stands in relation of servant or agent. The contractor in such case is not the servant or agent of the corporation. 4 A contractor who has undertaken to construct for a munici- pal corporation a sewer in a public street is not responsible 1 3 Kcrnan, 9. S3 Kernan, 42; 2 Id. 2-15. 1 Corwin vs. N. Y. & Erie Railroad 1 Pack vs. The Miyor, &c, of New- Company. 3 Kernan. 42. York. 4 Seld, 222; 1 Kernan, 432. Chattel Mortgages. 439 to it for damages to which it has been subjected in conse- quence of his leaving the sewer during its construction ex- posed, by means whereof one passing along the street fell in and was injured, unless the contract provided that he should by lights, barriers, or other precautionary measures, protect the public against accidents ; and where the contract simply provides for the construction of a sewer, the duty of the contractor to his employer is limited to constructing it with reasonable skill. There is no implied agreement that he shall take measures to prevent persons falling into it while in process of construction. It is the duty of a municipal corporation in the construc- tion of its public works to cause precautionary measures to prevent accidents to passengers during their construction, and it may do this by express contract for the purpose, either with the contractor for the work, or with other persons. 1 Where persons having a license or grant to construct at their own expense a sewer in a public street, engage another person to construct it at a stipulated price for the whole work they are not liable to a third person for any injuiy re- sulting from the negligent manner in which the sewer may be left at night by the workmen employed in its construction. The immediate employer of the agent or servant, through whose negligence an injury occurs, is the person responsible for the negligence of such agent or servant. 2 A defendant is liable in damages to the plaintiff for negli- gence in leaving post holes open and unprotected which he had dug for a fence along the line of, and contiguous to the street opposite his premises, whereby the plaintiff, in the night time, in passing along the street, stepped into one of the holes and was seriously injured. 3 Chattel Mortgages. The following is a proper form for a chattel mortgage : 1 City of Buffalo vs. Holloway, 3 2 Blake vs. Ferris and others, 1 Sol- Selden, 493; 2 Denio, 433, and den, 48. cases cited; 1 Hill, 645 » Wright vs. Saunders, 39 Ho*. 138. 440 Chattel Mortgages. Schedule. — [Here name the property to be mortgaged.] Whereas, I, , am indebted to , in the sum of dollars and cents, for [here state the cause of the indebtedness.] Now, for securing the payment of the said debt to' the said I do hereby sell, transfer and assign to the said the property mentioned in the foregoing schedule : Provided, that if the said shall pay to the said the said sum of dollars and cents, with the inte- rest, on or before the day of next, then this transfer to be void and of no effect. But in case of non-payment at the time above mentioned, the'said shall have full power to take possession of said property, to sell the same, and the avails to apply in payment of the above debt. And in case the said shall at any time deem himself insecure, it shall be lawful for him to take possession of said property, and sell the same at public or private sale, previous to tho time before mentioned, for the payment of the said debt, applying the proceeds as aforesaid, after deducting o'l expenses of the sale and of the keeping of said property. Witness my hand, at this day of 187 witness present :* What shall constitute fraud in the assignment of personal property, has been much agitated in the English courts as well as our own, and a detailed review of the cases on that subject would be neither profitable nor instructive. They all appear to have settled down in the doctrine, which has been since recognized and declared by statutory enactment, which declares that every sale made by a vendor of goods and chattels in his possession, or under his control, and every assignment of goods and chattels by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such * Notk — A Seal is unnecessary. Chattel Mortgages. 441 assignment, or subsequent purchasers in good faith, and shall be conclusive evidence of fraud, unless it shall be made to appear on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or pur- chasers. 1 I consider it well settled, that chattels which have been mortgaged may, notwithstanding, be seized upon execution against the mortgagor, where he is in possession, and at the time of the seizure is entitled to the possession for a definite period against the mortgagee. This was assumed to be the law in Mattison vs. Barnes, in the Court of Appeals, (1 Comst. 295,) and the principle has been repeatedly rccoo-- nized by the former and the present Supreme Court, and the late Court for the Correction of Errors, and has never, so far as I know, been denied by any court in this state. 2 A chattel mortgage is something more than a mere secu- rity. It is a conditional sale of the thing mortgaged, and operates to transfer the legal title to the mortgagee, to be defeated only by a full performance of the condition. Nothing short of actual payment, in case of a breach of the condition before foreclosure or sale, or voluntary waiver or burrender, can re-vest the legal title in the mortgagor. After forfeiture in the terms of payment, the legal title becomes absolute in the mortgagee, and the mortgagor has no inte- rest therein, except a mere equity of redemption, (12 "VVend. 61; 2 Denio, 170; 1 Comst. 496; 3 Kernan, 556; 3 Demo, 33,) and a tender of the money for the whole debt, docs not re-vest the title in the mortjras'or. 3 Nor does the omission to refile a copy of a chattel mort- gage, as prescribed by the statute. (Laws of 1833, p. 402, § 3,) affect its validity as against subsequent mortgagees, who have notice of it.* The question of fraud in a personal mortgage should 1 2 R. S. 70. § 5. 3 20 AVend. 1" j 1 Comst. 295 ; 3 2 1 Kernan, 505, Denio, J.; 3 AVend. Wend. 408. 498 ; 7 Id. 135 ; 8 Id. 339 ; 10 LI. * Hill vs. Beebc, 3 Kernan, 556. S18; 17 Jd. 53; 1 Barb. 542. 442 Chattel Mortgages. always be submitted to the jury, although no change of pos- session accompanies the mortgage, and the verdict of the jury in favor of the bona fides of the transaction, will be as conclusive as upon any other question of fact. A judgment confessed by the mortgagor to the mortgagee, for the same debt secured in the mortgage, does not merge or extinguish the mortgage, where by the agreement, the judgment is taken as collateral merely ; and even where there is no agreement it is exceedingly doubtful whether it will have that effect. The case of Butler vs. Miller, (1 Deuio, 407,) reviewed and questioned. 1 A creditor who takes a mortgage of personal property from his debtor, to secure his debt, in good faith and with- out any notice of an improper design on the part of the mortgagor, will be protected, although the object and design of the mortgagor in executing the same was to delay, hinder and defraud his other creditors. 2 A., a manufacturer, purchased wool to be paid for by his note, indorsed by B. The note was made accordingly and indorsed by B. for A.'s accommodation. At the same time A. executed to B. a writing, reciting that B. had indorsed the note to be used in purchasing the wool, and declar- ing that the wool and the cloth to be manufactured there- from, should belong to B. until the note was paid. Held, that the writing was a mere mortgage, and not having been filed as such iu the proper town clerk's office, that it was void as against a subsequent purchaser in good faith from A. 3 A mortgage of goods may be valid between the parties without writing. A personal mortgage must be tiled, and consequently in writing only where the rights of creditors and purchasers in good faith are concerned. 4 Where there was a provision in a chattel mortgage that the mortgagor should remain in possession until default in payment, unless he or some other person should attempt to sell, assign, remove or otherwise dispose of the property. 1 23 Wend. 659; 4 Hill, 271; Butler 2 H a l c vs. Arnold, 15 Barb. 599. vs. Miller, 1 Comst. 490; 1 Hill, 3 Thompson vs. Blancliard, 4 Comst. 438, and many cases cited by 303; 17 Wend. 492. Johnson, J. 4 4 Comst. R. 497. Chattel Mortgages. 443 Held, that the seizure before default, of the property on a distress warrant, for rent due from the mortgagor, entitled the mortgagee to the immediate possession, and that after demand and refusal, replevin would be against the bailiff from the wrongful detention. 1 Where a chattel mortgage contains no agreement to pay the sum secured thereby, and no recital or declaration of indebtedness from the mortgagor to the mortgagee, no action will lie by the mortgagee upon the mortgage to recover the debt secured. A covenant in a chattel mortgage that the mortgagor will warrant and defend, the property, is merely a warranty of title, not that the mortgagor will forever keep the property or protect it. 3 If a chattel mortgage is filed in the clerk's office of tie town in which the mortgagor resided at the time of its exe- cution, that is sufficient, whether the mortgagor be a resi- dent of that town, at the time of filing the mortgage or not. The statute contains no direction as to the time within which a chattel mortgage shall be filed, and in the absence of any such provision, the courts have no power to supply the defi- ciency or to declare a mortgage void, because of its not having been filed at the time it was executed. Yet if credi- tors, or bona fide purchasers should acquire rights in the property mortgaged, before the filing of the mortgage, the lien of the mortgagee would be postponed to such rights. 3 Parol proof of extrinsic circumstances may be given, to apply a description to its subject matter, and if it appears that the description is in some respects erroneous, those parts may be rejected, and what is left, if sufficient of itself, alone be regarded. A chattel mortgage recited an indebtedness of the mortgagor to the mortgagee, in the sum of |2, 809, the amount of two promissory notes, made by the mort- gagor and indorsed by the mortgagee, which the latter had taken up and paid, and for the indorsement of another note to K. for $1,000. Held, that parol evidence might be re- ceived to show that another note for $600, made by the 1 4 Kernan, 21. 3 17 Barb. 523. 2 14 Barb. 242; 3 Comst. 264. 444. Chattel Mortgages. mortgagor was one of the notes referred to in, and secured by the mortgage, although such note was not indorsed by the mortgagee ; it appearing that the note was payable to the order of B., who indorsed the same and it was discounted by the mortgagee. Held also, that a paper upon which a computation of the amount of the three notes was made, at the time of executing the mortgage, was one of the extrinsic circumstances admissible upon the question of identity. The filing of a chattel mortgage by a clerk in the store of the town clerk, having charge of the town clerk's office, in the absence of that officer, is valid. Where a chattel mortgage described, among other prop- erty mortgaged, one four horse post coach, called " Steuben," and another called " Mayday," at H. employed in staging, it appearing that the mortgagor, at the .time the mortgage was executed; owned and possessed only two four horse post coaches, one called " Conhocton," and the other called " Mayday," and that there was no coach called " Steuben," at H. or employed in staging there. Held, that parol evi- dence was admissible to show that the coach named " Con- hocton" was intended to be included in the mortgage, instead of the " Steuben." 1 In order to prove the contents of a chattel mortgage, on the trial the original mortgage must be produced. A cer- tified copy made by the clerk or register when the mortgage is filed is evidence only of the fact of its filing. 3 The mortgage, in good faith, of chattels is the absolute owner at law of the property mortgaged, and the interest of the mortgagor therein is merely the right to pay off the mortgaged debt : his possession is that of a bailee only. He has no interest subject to sale on execution. 3 When a chattel mortgage is not filed until after the deli- very of an execution to the sheriff it is void as against the latter, although actually filed before a levy has been made. 4 A chattel mortgage upon the merchandise and stock in 1 Dodge vs. Totter, 18 Barb. 193; 2 George vs. Toll, 39 How. 497. Cow. & Hill's notes, 1423, 4; 4 3 Baltes vs. Rapp, 3 Kcyes, 210; 38 Mete. 80; 21 Wend. 651) 12 Pick. How. 296. 567} 9 Barb. 800. * Hale vs. Sweet, 40 N. T. 97. Of Pledges. ^ 445 trade of the mortgagor expressed to include the increase and decrease thereof is wholly void. 1 Before a chattel mortgage can be properly and legally upheld as a valid security, where there has been no actual and continued change of possession of the property mort- gaged, the party asserting its validity must establish affirma- tively two propositions; first, that the transaction was bona fide; second, that there was no intention to defraud creditors or purchasers, and it is not enough to show the mortgage was given for a good consideration. It is equally necessary to prove the absence of a fraudulent intent. It has been well settled, that these are distinct and independent facts, and that the proof of the one in no degree alters or lessens the obligation of proving the other, but the same kind of evi- dence given to establish the one is also pertinent to establish the other, and these questions are proper for the considera- tion of the jury, whose decision will be as final and conclusive as upon any other question of fact, as we have before seen. 2 Of Pledges. A Pledge is where goods are delivered by a debtor to his creditor, to be retained until his debt be discharged. It differs from a mortgage. In a mortgage, the title of the property mortgaged passes from the mortgagor to the mort- gagee, subject to be defeated if the condition is performed. In a pledge, the title remains in the bailor, and the bailee has only a special property. An actual delivery is necessary to render a pledge valid. 3 Possession of the property is essential to the existence of a pledge, but the possession may be according to the nature of the subject. Where the property is not capable of manual delivery, and possession, e. g., shares of stock in an incorporated company, a pledge may be created by a written transfer thereof, and the transaction may be a pledge instead of a 1 5 Abb. U. S. 442. 3 Story on Bail, 197. s Groat vs. Bees, 20 Barb. 26, Har- ris, J.j 3 Sandf. S. C. E. 69. 446 Of Pledges. mortgage, although the legal title pass to the creditor. The transfer of the legal title is not in any case inconsistent with a pledge if the debtor has a right to the restoration of the property on payment of the debt at any time, although after it falls due. A creditor, having personal property pledged to him by his debtor as security for the debt cannot sell the same until he has first demanded payment of the debtor. And the rule is the same, although the debt is payable presently and without demand, and although by the terms of the pledge the creditor may sell at public or private sale without giving notice to the debtor. Where the pledgee has wrongfully sold the pledge so that he cannot restore it, the pledgor is not bound to tender the debt in order to entitle himself to maintain the action for the wrongful sale. 1 When goods or chattels shall be pledged for the payment of money, or the performance of any contractor agreement, the right and interest in such goods of the person making such pledge may be sold on execution against him, and the purchasers shall acquire all the right and interest of the de- fendant, and shall be entitled to the possession of such goods and chattels, on complying with the terms and conditions of. the pledge. 2 A sheriff, holding an execution against a pledgor, may, by virtue thereof, take the property pledged out of the hands of the pledgee into his own possession, and sell the right and interest of the pledgor therein. After the sale by the officer in such a case, the pledgee is entitled to the pos- session of the property until the purchaser redeems it from the pledgee. Whenever a power is given by the statute, everything necessary to make it effectual or requisite to attain the end in view is implied. So when the law commands a thing to be done, it impliedly authorizes the performance of all acts necessary to the execution of the command. (Stief vs. Hart, 1 Comst. 20.) A pawnee of goods does not acquire an absolute title 1 Wilson vs. Little, 2 Comst. 443. 2 2 R. S. 366, § 20. Of Pledges. 447 simply by a failure of the pawnee to pay a debt or redeem the property at the time specified. His interest is a special property to retain the goods for his security. There is no forfeiture until the pawnor's rights arc foreclosed, (Cor- telyon vs. Lansing, 2 Caine's Cases in Error, 200 ; 8 John. R. 97 ; Id. 472 ; 12 Id. 146 : 1 Powell on Mort. 3 ; 2 Kent's Com. 577,) and after a foreclosure and sale the surplus money, after paying the pledgee's claim, belongs to the pledgor. 1 The mere pledging a note does not pass the title as a sale or mortgage does. (12 John. 140; 5 Id. 258.) In the case of a pledge the title remains with the pledgor. In case of a mortgage the title passes at law, although in equity it is considered as a mere lieu. 2 At common law a pledge is defined to be a bailment of personal property as a security for some debt or engage- ment. (Story on Bailment, § 286.) It is said that the law makes a distinction between the case of a pledge for a debt payable immediately, and one where the debt does not become payable until a future day, and that in the latter case the creditor is not bound to call for a redemption or to give notice of sale, though in the former it is conceded that there must be such demaud, and that notice must be given. Non-payment of the debt at the stipulated time did not work a forfeiture of the pledge either by the civil or at com- mon law. It simply clothed the pledgee with authority to sell the pledge and reimburse himself for his debt, interest and expenses, and the residue of the proceeds of the sale then belonged to the pledgor. The law now is, that the pledgee may file his bill for a foreclosure and proceed to a judicial sale, or he may sell without judicial process, upon giving reasonable notice to the pledgor to redeem and of the intended sale. 3 If the pledgor, in consequence of any default of th# pledgee, or of his conversion of the pledge, has by anj action recovered the value of the pledge, the debt in tha/ 1 Brownell vs. Hawkins, 4 Barb. 401. 8 Stearns vs. Marsh. 4 Denio, 230. 2 lBarb.E.9.' 448 Of Fixtures. case remains and is recoverable unless in such prior action it has been deducted. By ihe common law the pledgee in such an action brought for the tort has a right to have the amount of his debt recouped in the damages. 1 The right and interest of a pledgor cannot be sold on exe- cution unless the goods be present and within the view of those attending the sale. Where the right and interest of a pledgor is levied on, the sheriff may take actual possession of the goods, and hold them until he sells. After the sale, however, the pledgee is entitled to the possession of the goods until the purchaser redeems them. 2 It is now well settled that an action can be maintained for the conversion of a chose in action which has been pledged as security for a debt. 3 An action to redeem is not the only remedy, and where the pledgee has Avrongfully disposed of the pledged prop- erty, it is a conversion for which an action will lie to lay the foundation of au action against the pledgee for conversion of the thing pledged as security for a note payable on a fixed day, the debtor's offer and demand must be made on the day of maturity, though it would be otherwise of an action to redeem. 4 Pledges may now be foreclosed. See statute in another part of this work before Justices of the Peace. Of Fixtures. The authorities upon this branch of the law are very numerous. It has employed the minds and pens of many men of acknowledged learning and ability. Yet, whoever essays to study and make himself master of the subject, will not be surprised to find that neither the elementary writers, nor the reported cases, furnish any precise or certain rule to determine what a fixture is. Where so much has already been written, I do not hope to contribute anything to the store of useful learning. 1 Id. 232 ; 15 Mass. R. 389 j Story 3 Luckey vs. Gannon, 87 How. 134, on Bailment, § 315, 349. and cases cited. ' l Bakewell vs. Ellsworth, 6 Hill, 484. * Butts vs. Burnett, 6 Abb. N. S. 802. Of Fixtures. 449 I shall do no more than barely allude to a few of the lead- ing cases as authority for my present opinion. In Walker vs. Sherman, (20 Wend. 636,) where most of the English cases are collected and commented upon, this court decided between tenants in common, that carding, spinning, and shearing machines, and looms in a woolen factory, which had passed with the estate from one owner to another, for the space of eleven years, Avere no part of the realty. (Swift vs. Thompson, (9 Conn. R. 63,) was a controversy in respect to cotton machinery, fastened to the floor by wooden screws, and there the court held the same opinion. Gale vs. Ward, (14 Mass. E. 352,) involved the right of certain carding machines in a woolen factory, moved by leather bands, over pulleys, in connection with the water power ; and the court held the machines to be personal prop- erty. The unfriendly comments and unfeigned doubts to which Gale vs. Ward has been subjected in some of the sub- sequent cases, tend more to expose the uncertain and unset- tled state of the law of fixtures, than to impugn the sound- ness of its conclusions. In Winslow and others vs. The Merchants' Insurance Co., (4 Mete. 306,) a decision upon which the plaintiff places much dependence, the same court decided that the engines and boilers, and the machinery. for working iron which they operate, considering the manner in which they were fitted and adapted to the mill, were fixtures. Chief Justice Shaw, who delivered the opinion, deems it necessary, however, to disclaim all design to overturn or impair the force of the decision in Gale vs. Ward, in the following words : "The case of Gale vs. Ward, (14 Mass. Eep. 352,) is not, wo think, an authority opposed to this opinion, because it is manifest that the court in that case regarded the carding machines, although ponderous and bulky, as essentially per- sonal property, which might have been attached, and removed as the personal property of the owner, even though there had been no mortgage, and they had been erected by the owner in his own mill and for his own use. From the description given of the manner in which the engine and boiler in Winslow and others vs. The Merchants' Insurance 450 Of Fixtukes. Co. were fastened to the building in which they were erected, there can hardly be a doubt, that they were fixtures within the principles of the reported cases. And in respect to the machines for working iron which they operated, it is evi- dent the question was determined upon the way in which they were fitted and accepted to the mill. The words, ' fitted and adapted to the mill,' are frequent expressions. They mean something more, I apprehend, than simply being set down upon one of the floors of the building ; or such fitness and adaptation as they would have had upon being removed and set down upon the floor of any other building. And if they mean more than that, the decision in no wise conflicts with those to which I have referred. The general rale extracted from all the cases laid down in Walker vs. Sherman, is this : In order to come within the operation of a deed conveying the freehold, whether by metes or bounds of a plantation farm, lot, &c, or in terms denoting a mill or factory, &c, nothing of a nature personal in itself, will pass unless it be brought within the denomination of a fixture, by being some way permanently, or at least habitu- ally attached to the land, or some building upon it. I do not think that leather bands or belts, connecting the machines for the mere purpose of motion, with the permanent mill gearing, would have converted the chattels into real property." 1 The policy which has created exceptions to the general rule, that whatever is affixed to the freehold cannot be re- moved, without the consent of the owner of the inheritance, applies as well to erections for agricultural and other pur- poses as to erections for the purposes of trade. To consti- tute a fixture there must be such an annexation as to render removal impossible without injury to the freehold. Any general rule as to what constitutes a fixture is liable to ex- ception. But the first question must be, whether the erec- tion be a part of the freehold. If it be not united to the freehold, it cannot be said that it is a part of it, and in that case, therefore, it is not a fixture. 1 10 Barbour, 157; Brown, J. Of Fixtures. 451 And the annexation which will convert personal into real estate, is not affected by placing the chattel upon, or even by affixing it to the laud. It must be affixed to the free- hold. The law of fixtures is in derogation of the original rule of common law, which subjected everything affixed to the freehold to the law governing the freehold, and it has grown up into a system of judicial legislation, so as to almost ren- der the right of removal of fixtures a general rule instead of being an exception. 1 A tenant making improvements, which by the agreement he has the right to remove, may make such removal after his term expires, while he stilLremains in possession of the premises. And the right of removal not having been in such case abandoned by the tenant, the landlord cannot maintain an action for the removal. The rule, that if a fixture is not removed during the term, and the tenant quits the premises, and the landlord subsequently takes possession, the fixtures becomes a part of the freehold, and the party who was tenant cannot legally take it away afterwards, seems to have its foundation in the presumption of abandonment, arising from the conduct of the tenant where he quits the premises, leaving his fixtures behind him. This presumption can never arise while the tenant remains in possession. 2 Buildings aud fixtures erected by a tenant for the pur- poses of trade, belong to him and arc removable without the consent of the landlord. 3 Poles, used necessarily in cultivating hops, which were taken clown for the purpose of gathering the crop, and piled in the yard with the intention of being replaced in the sea- son of hop raising, are a part of the real estate. 4 Looms, placed upon the floor of a woolen factory, and fastened to such floor by means of screws in each loom, are a permanent and essential part of the woolen factory, and the mortgagee of such factory and machinery will hold 1 10 Barb. 496, Harris, J. * Bishop vs. Bishop, 1 Kernan, ]33j 2 id. 2 Hill, 142. SiComst. R. 570; 20 John. 80; 6 Cow. 665, and cases cited. 452 Of Fixtures. such looms, by virtue of his mortgage, in preference to a creditor of the mortgagor who has levied upon the same by virtue of an execution against the mortgagor. 1 Fencing material on a farm, which have been used as a part of the fences, but are temporarily detached, without any intent of diverting them from their use as such, are a part of the freehold, and pass by a conveyance of the farm to a purchaser. So, as to manure lying in a barnyard on the farm at the time of the conveyance, and this, though it may be laid up in heaps. 2 » It seems that rails built into a fence by a tenant under an agreement that he may remove them from the land, are as between such tenant and owner of the soil personal prop- erty. Where machinery is actually annexed to the land it will be presumed to have been so attached with a view to the permanent improvement or beneficial enjoyment of the free- hold, and will be deemed a fixture and part of the realty in the absence of proof that the attachment was merely for the purpose of steadying and adjusting the machine, or that the intention at the time existed, not afterwards abandoned, that the annexation should not be permanent in its character, or that there is some agreement or relation of parties incon- sistent with the supposition that a permanent annexation was intended. In determining the question whether a particular article is a fixture or not, the intention of the party who at- tached it to the realty is an important element to be con- sidered. 8 The more sensible rule in regard to what are to be deemed fixtures seems to be that if the articles are essential to the use of the realty, and have been applied exclusively to use in connection with it are necessary for that purpose, and without such or similar articles the realty would cease to be of value, then they may properly be considered as fixtures, and should pass with it. 4 1 2Denio,174; 6 Barb. 370; 10 Barb. 8 Potter vs. Cromwell, 40 N. Y. 287. 157, 457; 20 Barb. 407, Johnson, * Hoyle vs. Plattsbarg R. R. Co., 51 J.; 19 Barb. 317; 12 Barb. 143. Barb. 45, anil cases cited. * 2 Hill, 142; 15 Wend. 169; 21 Pick. 367. Of Estoppels. 453 Of Estoppels. Where the owner of goods stands by and without objec- tion allows another to treat them as his own, and a third person is thereby led to purchase them in good faith, the owner cannot recover such goods or their value from the purchaser. And the same doctrine, it seems, applies, although the party who allows another to assume the credit of own- ership is not actually present when the act is done, by which the third party is deceived. 1 A judgment of a court of competent jurisdiction upon a question directly involved in the suit is conclusive in a second suit between the same parties, depending on the same question, although the subject matter of the action be different. 3 Where an assignee takes a chose in action by assignment, made with the debtor's assent, and on the faith of what is said by him at the time, the debtor is estopped from im- peaching it by any defence inconsistent with his declaration. 3 Acting under bad advice, in the adoption of an erroneous proceeding, will not estop a party. 4 An estoppel to be binding must be reciprocal and binding on both parties, and the acts relied on as an estoppel must have been intended to have actually had an influence on the conduct of him who asserts the estoppel. 5 Where a party with knowledge of all the facts expressly reaffirms a contract, he is estopped from afterwards disaffirm- ing it by the principle of estoppel in pais. 6 Admissions* and conduct operate as estoppels only when they are designed to influence the conduct of another and actually have that effect. 1 It is a familiar- principle in all courts that if a person maintains silence where in conscience he ought to speak, equity and good conscience will debar him from speaking wliere conscience requires him to be silent.. 14 1 4 Comstock, K. 303. 6 Id. 406. 2 4 Comstock, 71. 7 Id - 432 - 3 2 Comstock, 27S. 8 9 Barb. 17, 32; 2 John. R. 5S0j 14 i 10 Barbrur, 97. John. 43. s Id. 454 Of Estoppels. A person entering upon premises under the title of another is estopped from controverting his landlord's title at the time he entered; but not from showing that the title afterwards passed from his landlord to another person. 1 Estoppels in pais generally consist of acts, declarations, or admissions, which have been acted upon* by others? and are conclusive against the party making the declarations, &c. , in all cases between him and the person whose conduct he has thus influenced. 2 It is of the essence of this species of estoppel that the representation or act should have influenced the conduct of the individual setting up or alleging it. 3 To create an estoppel in pais a party must do an act or make an admission inconsistent with the claim he proposes to set up, and the other party must have acted upon the ad- mission and will be injuredby allowing the truth of the admis- sion to be disproved. The act or admission must have been expressly designed to influence the conduct of another, and must in fact have influenced such conduct. 4 The doctrine of estoppels, legal as well as equitable, has been so frequently and fully discussed in the recent cases in this country and in England that a review of the cases, or an elaborate discussion of the principle, would be out of place. The doctrine of equitable estoppels to the extent to which it is now carried is comparatively of modern origin, or in other words, by the recent decisions it has been extended to cases in which it would not have been applied- at an earlier day. As there is no pretence of a technical or legal estoppel, which must be by deed or matter of recdrd, it is with this equitable estoppel or e'stoppel in pais, growing out of the acts and declaration of the party sought to be estopped, that we have to do in this case. Such estoppels are applied for the prevention of fraud, and only exist to prevent injury where equity and good conscience require that the party 1 9 Barbour, 615. i Otis vs. Sill, 8 Barbour Rep., 102 2 Id S id. Paige, J. Of Assignments. 455 should not be Lean] to gainsay his acts or declarations by which another person has been influenced in his conduct. 1 To create an estoppel which shall preclude the party from alleging the truth, it must appear, 1st. That he has made some declaration, or done some act inconsistent with the truth, with a design to influence the con- duct of another. 2d. That the party alleging the estoppel was ignorant of the truth, and relied upon and acted upon the faith of such acts or declarations ; and 3d. That an injury will result to him if the other party shall be allowed to gainsay them. (Robinson vs. Nathan, 1 Camp. 245 ; Greenl. Ev. $ 27 ; Parker vs. Barker, 2 Met. 423, 431 ; Wellaud Canal Co. vs. Hathaway, 8 Wend. 483 ; Tufts vs. Hays, 5 N. Hamp. R. 458; Stevens vs. Baird, 9 Cowen, R. 274.) I think these cases establish the true rule. (Martin vs. Angel, 7 Barb. 417.) The judgment of a court of competent jurisdiction upon a point litigated between the parties is conclusive in all sub- sequent controversies where the same point comes again in question between the same parties. (White vs. Coatsworth, 2 Selden, 137.)* Before a party is concluded it must appear, 1. That he has made an admission which is clearly incon- sistent with the evidence he proposes to give, or the title or claim which he proposes to set up. 2. That the other party has acted upon the admission ; and 3. That he will be injured by allowing the truth of the admission to be disproved. 2 Of Assignments. A general assignment by a debtor of his property, in tr.ust for the benefit of a particular class of his creditors, 1 Greenl. Ev. § 207. 2 12 Barb. 128; 3 Hill, 221. * Note. — So is the verdict of a jury in summary proceedings by a landlord to remove a tenant for non-payment of rent. 456 Of Assignments. reserving the surplus to himself, is fraudulent and void, and it makes no difference whether the surplus be large or small, or whether there be none at all. And where the assignor is insolvent the assignment, it seems, will be deemed fraudulent and void, although the trust embraces only a part of his property. Such cases, it seems, are within the statute, (2 K. S. 135, § 1,) declaring all conveyances, transfers, &c, in trust for the use of the person making the same, to be void as to creditors. But neithei the principle nor the statute applies where the assignment is to creditors themselves, for the purpose of securing their par- ticular demands. Such a transfer, whatever may be its form, is in legal effect only a mortgage, and creates but a specific lien in the property assigned. The residuary interest of the assignor may be reached by legal process, or bill in equity, according to the nature of the interest or of the property. Accordingly, where an insolvent debtor assigned a chose in action to certain of his creditors, for the purpose of securing their demands, reserving the surplus to himself, there being no extrinsic evidence of an intention to defraud other credit- ors, Held, that the assignment was valid. (Leitch vs. Hol- lister, 4 Comst. 211, Gardiner, J.) An assignment of property in trust, for the payment of the debts of 'the assignor, directed the assignees to take pos- session of the premises forthwith, and within a convenient lime as to them should seem meet,, by public or private sale, for the best price that could be procured, to convert the property into money, ive them further credit on the faith of the continuance of the partnership." The parties to a copartnership may give it any name they please, and all contracts, obligations, or notes made with, or given to such firm, may be prosecuted in the individual names of its members. 7 Where a note is made by one partner, in the name of the firm, for his own use, the firm are liable upon the note to one who discounts it, where usury is not established, unless 1 2 Kenan, 442, Hand. J. ; 5 Paige, '•> Gaudolpho vs. Appleton, 40 N. Y. 30; 3 Sandf. 284, 293; 7 Paige. 26. 533. 2 Butler vs. Stocking, 4 Sclden, 408. 8 Buffalo City Bank vs. Howard, 35 3 Davis vs. Keyes, 38 N. Y. 94. M. Y. 500 * M'Clelland vs. Reinsen, 5 Abb. N. 1 Crawford and others vs. Collina g_ 250. an( i others, 45 Barb. 269. 480 Parent and Child. the holder had notice that the proceeds were not to be used for the benefit of the firm. 1 A participation in the profits of a business by a party, us a compensation for his labor or services, without having an interest in the stock or in the profits as such, does not make him a partner. 2 Parent and Child. A step-father is not entitled by the law to the custody or services of the children of his wife by a former husband, nor is he bound to maintain them. 3 When a minor makes a contract for his services on his own account, and the father knows of it and makes no objec- tion, it seems there is an implied assent that the son shall have his earnings. 4 As against the mother of a bastard child, the putative father has no legal right to its custody. The mother, as its natural guardian, is bound to maintain it, and is entitled to the control of it. 5 A father has no authority, arising from his paternal rela- tion alone, to commence a suit in behalf of his daughter, for an assault and battery committed on her. And he can neither release nor compromise her right of action for per- sonal injury. fi Although a father is entitled to the services of his child, during the minority of the latter, yet he may waive that right by emancipating the child. Or the child may, by his father's consent, become entitled to receive the fruits of his labor for his own use. The intention of the father to emancipate his minor child is a question of lact, and, in the absence of direct proof, may be inferred from circumstances. In determining that ques- tion in a suit brought by a person to recover for work and labor done by him while a minor, the circumstances that he 1 Mechanics' Bank vs. Foster, 41 t 10 Barb. 300. Barb. 87. 6 6 Barb. 366. 2 Conkl'm vs. Barton, 43 Barb. 435 6 4 Barb. 453. 3 3 Comst. 312; 5 Barb. 122. Parent and Child. 481 has been in the habit of working for others and receiving pay for his labor himself, and that another infant child of the same parent has done the same without objection by the parent, may properly be taken into consideration. Where a father was absent for several years, leaving his infant son to manage for himself, the father contributing nothing to his education or support, and not interfering in his engagements, held, that the emancipation of the infanjt might be presumed, and that he was entitled to recover in his own name for work and labor done by him during his minority. 1 A father is not liable for the wilful act of his minor child, e. g., for setting her father's dog upon the plaintiff's hog, which was thereby bitten and killed. But the daughter is herself answerable for the injury. Nor is the father liable as owner of the dog, without proof that he knew it was ac- customed to do mischief. 3 Our law recognizes no general authority in a father to dis- pose of his children, except for some specific and temporary purpose, such as apprenticeship during the father's life, or guardianship after his death. 3 Parents are under an obligation to support their children and are entitled to their services during their minority. But, says Chief Justice Savage, in McCoy vs. Huffman, (SCowen R. 85,) although the father is entitled to the services of his children till the age of twenty-one, yet he may waive that right. (Burlingame vs. Burlingame, 7 Co wen, 92.) He may emancipate his child, or the child may, by his father's consent, be entitled to his services. So also it was remarked by Sutherland, J., in Shute vs. Dorr, (5 Wend. Rep. 20G,) that such intention of a parent may be inferred from circumstances, and when circumstances of any particular case warrant the conclusion, that it was understood that the child might receive his earnings, payment to him will be good. We subscribe fully to these sentiments as being just and reasonable. The reason why parents are entitled to the 1 3 Barb. 115. 8 3 Hill, 399 2 Tifft vs. Tifft, 4 Denio, 175. Dd 482 Alteration of Instruments. services of their minor children, usually given, is that which I have already mentioned, the liability to support them. But in my opinion a much stronger reason, and one more consonant with the feelings and obligations of parent and child, is that it gives the parent the control over the actions of his children, when they are incapable of judging for themselves, and thus has a tendency to save them from the effects of idleness or imprudence. But when a parent from confidence in his minor child, or as is sometimes the case. {although I hope not often,) from indifference as to his wel- fare, allows the child to manage for himself and to obtain his support from his own industry, the reasons for the rule fail, and the rule falls with them. The liability of a father to furnish necessaries for his minor and invalid children, who are members of his family and unable to support themselves by their labor, depends upon principles analogous to those which govern the. relation of husband and wife. 1 The Legislature has provided that it shall be necessary for the parents or guardians of such minor children to notify the person employing them, that they claim their wages, or payment to the minor, is valid. The statute is as follows : § 1. It shall bo necessary for the parents or guardians of such minor children as may be in service, to notify the party employing such minor, -within thirty days after the com- mencement of such service, that said parent or guardian claim the wages of said minor, and in default of such notice payment to such minor shall be valid. 2 Alteration of Instruments. An alteration, apparent on the face of a note, is not pre- sumed by the law to have been made after its execution. It is, however, for the jury to decide ; 1 Halstead It. 215; 24 Wend. 374; 2 John, cases 198, 200,) and where there are strong circumstances to induce a suspicion that a note has been fraudulently altered, general corroborating circum- stances may be admitted in evidence to strengthen the sus- 1 Cromwell vs. Benjamin, 41 Barb. 558. 2 Sess. Laws, 1850, chap. 266, § 1. Alteration of Instruments. 483 pi< ion, as that often notes drawn and endorsed by the same par- ties, to take tip one of which the notein question was made, had lieen altered. And either party may show the circumstances attending the alteration of a note, for words may be added to it after its deliveiy, or by a stranger, or under such cir- cumstances as not to constitute a part of the contract, 1 The insertions of the words "or order" in a promissory note after execution, is a material alteration and destroys its validity. 3 But in 3 Esp. R. 2-15, where there was a mistaken omis- sion of the words " or order" in a bill indorsed by the de- fendant, Le Blanc, J., put it to the jury on very slight cir- cumstances to infer the assent of the defendant, Avho was indorser, that the omitted words should be inserted. Where a material alteration appears to have been made in a. deed of which no note was made at the time of the execu- tion thereof, it is incumbent upon the party, claiming under such deed, to show that the alteration was made before the deed was executed. But the question as to the time when the altei'ation was made, is one of fact to be decided by the jury. 8 It seems, however, that where there is a mere inter- lineation in a deed, without anything to excite suspicion, that it was not made at the time that the deed was drawn and executed, the reasonable presumption is, that it was made before the deed was executed.' 1 It has long been a disputed point whether the burden of explaining an alteration, apparent upon a paper, devolved upon the party seeking to enforce it, or the party sought to be charged. It would seem that in some of the States an alteration not peculiarly suspicious, must be presumed to have made before execution. (11 Conn. Bep. 531 ; 1 Halstead, 215 ; Cowen & Hill's Notes, 298, 1317, &c.) But when the alteration is suspicious, and beneficial to the holder of the paper, the more sensible rule prevails, at least in this State and in England, that the presumption is against the party 1 10 Pickering, 228. 3 8 Barb. S14; 15 John. 293. 2 1 Cow. Tr. 187. * 22 Wend. 388; 24 Id. 37i. 484 Alteration of Instruments. who sets up the paper, and he is required to explain it before he can recover, (2 Wend. 555, Vide also note to Waring vs. Smith, 2 Barb. Ch. Rep. 119.) As I understand the rule, it is always a question for the court to decide, whether a paper is proper to be read in evidence to the jury. The reason of the rule is most emphatically applicable to the cases already cited. It is not unusual for the judge to reject the altered paper and direct a nonsuit. In the case of Penny vs. Corwithe, (18 John. 4*99,) a submission was offered in evidence, but it appearing that a black line had been drawn through the name of one of the parties, since its execution, the Judge refused to permit it to be read in evidence, unless the plaintiff showed that the erasure had been made by the consent of the parties. The plaintiff then offered to prove the fact, but the Judge rejected all evidence on that point, except that of the subscribing witness, and nonsuited the plaintiff, and for this last ruling a new trial was granted. So in the case of the administrators of Prino vs. Tallman. (1 Coxe, 447,) a bond was produced, and the subscribing wit- ness stated that there had been a writing at the foot of the bond which had been cut off. The court would not permit the bond to be read in evidence, although the plaintiff offered to prove the contents of the writing torn off, and to satisfy the jury that it was immaterial. The plaintiff was non- suited. In Knight vs. Clements, (8 A. & E. 215,) a bill of ex- change was offered by the plaintiff, but it appeared that the word " three " had been blotted, and "two " written upon it. The court held that the plaintiff was bound to explain it by evidence, and that the jury would not infer from the appear- ance of the bill that the alterations had been made when the bill was drawn, and a nonsuit was ordered. (See also 2 Starkie's Rep. 313 ; 5 Bingham, 183.) That it is a question for the court when objection is made to the admissibility of the evidence, is shown by the case of Ross vs. Gould, (5 Greenleaf, 204; 1 Greculeaf Ev. 599.) The order in which proof is to bo received at the trial, is within the discretion of the Judge, and an abuse of that discretion cannot well be corrected by bill of exceptions. Alteration of Instruments. 485 Whether the explanation or the deed should be first sjiven in evidence, belonged to the Judge at the Circuit to deter- mine. They could not both be given at once. It was formerly held that the alteration of a deed in a ma- tonal point, even if made by a stranger to the parties con- cerned, and without the knowledge of either of them, whether by an interlineation, addition, erasure or striking out a part with a pen, or by tearing off its seal, rendered it absolutely void. 1 The rule has, however, boon modified so as to confine its operation to cases where the alteration is by one of the parties to it ; 2 and when the act is done by a stranger and without the privity of either party, it does not avoid the instrument. 3 If the alteration is made by a party in a materia] part in one covenant, it avoids all the covenants in the deed ; but where the covenantors are bound severally, tearing off one seal does not discharge the other covenantors, for it is a distinct deed as to each. 4 The addition of the name of another person to a several note as maker, without the knowledge or consent of the original signer, is not such a material alteration as will avoid the note. 5 Thus where a note made by S., payable to W. or bearer, was delivered to W., who thereupon applied to the plaintiff to advance the money on it, and the plaintiff consented to do so if he (W.) would sign his name to it, or become respon- sible to pay the same, whereupon W. signed his name to the note under S., and delivered the same to the plaintiff, who let him have the money thereon. Held, that adding the name of W. to the note did not vitiate it. 6 Where a note, payable with interest generally, and exe- cuted by a surety, was, after the execution thereof, by agree- ment between the principal and the payee, but without the knowledge or assent of the surety, altered by an addition thereto, making the interest payable semi-annually. Held, 111 Coke, 28. 5 Brownell vs. Winnie, 29 N. T. 400; 2 8 Cowen, 73. 31 Barb. 441. 3 15 John. 297; 6 Cow. 746; 8 Id. 71. « 10 N. Y. 198; 27 N. Y. 29; over- * 5 Coke. 23. ruling, 23 Barb. 584; Chappell vs. Spencer. 486 Of Payment. that was a material alteration, which rendered the note void as to the surety. 1 Of Payment. It has been decided by our Supreme Court, and may uow be considered the settled law of the State, that whether a bill or note be given for precedent, or cotemporary debt, the question of payment is the same, and in cither case, unless the bill or note be received under an express agree- ment that it shall operate as payment, the law will not so adjudge it. And where an agent buys goods for his prin- cipal, and gives his own notes, they are considered, so far as the question of payment is concerned, as the notes of the principal.' 2 It has been decided in numerous cases, that when a bill or note is delivered on account of a precedent debt, that it is not a payment unless it is expressly agreed to be received as such by the creditor, and that he should run the risk of its collection and it now applies as well to colemporaneous as precedent debts. 3 - It is decided that the promissory note of a debtor given for a precedent simple contract demand will not operate as payment so as to preclude the creditor from sueiug on the original consideration, though givan under an express agree- ment that it was to be received in full satisfaction and dis- charge. Otherwise, if it is the note of a third person. 4 " So the giving of a promissory note by one of several part- ners or joint debtors, for a demand antecedently due from all, will not extinguish their liability, though the creditor expressly accept the note in satisfaction. The case of Cole vs. Sacket, (1 Hill, 516,) reconsidered and approved. 5 A draft or bill of exchange upon a third person, given by a debtor to a creditor who stipulates that it shall be in full satisfaction of the debt when paid, is prima facie evidence 1 Dewey vs. Reed, 40 Barb. 16; 19 3 5 John. 08; 7 Td. 311; JL1. 310; Jolin. 391; 24 Wcn.l. 374. 1 1 Id. 513; 5 Hill. 200. '■! Porter vs. Taloott, 1 Cow. R. Soil; + Colo vs. Saekett, 1 Hill, 51(5. 9 Id 23. 5 5 mil, 448, and eases cited. Of Payment. 487 of payment of the original debt. And to rebut such evi- dence the creditor is bound to show in an action for the re- covery of the original debt, diligence in obtaining payment of the bill, and, if not paid, notice of non-payment, or ho must excuse the non-prcscntmcnt and produce the bill, on the trial, to be cancelled. 1 A payment in counterfeit bank bills is a nullity, and will not discharge the debt, though both parties suppose them to be genuine ; so if payment in the genuine bills of a bank which has failed, neither party being aware of the fact ; but in these cases the party receiving the bills must return them within a reasonable time after discovering their worth- lessness, or he will be obliged to sustain the loss. The party should return them immediately after discovering they arc worthless.' 2 Taking the note of a third person for an existing debt, is not a satisfaction, unless the creditor agrees to take it in payment. (Vail vs. Foster, 4 Comst. 312.) The law is well established, that the acceptance by a creditor of the note of a third person, in full satisfaction of an existing debt, is an extinguishment of the original indebtedness, though the note so taken is for a less sum than the whole debt. Other- wise, where the note of the debtor himself is taken. Where the note of a third person is taken in full satisfac- tion of a debt, on condition that such note shall be paid at maturity, and not otherwise, if the note is not paid when due, the creditor may insist that the contract is broken and claim the whole debt or original amount. But if the creditor waives the forfeiture and retains the note, and finally receives the full amount of it from the maker, he cannot afterwards proceed against the debtor for the balance of the original demand. A forfeiture for non- payment at an appointed day is waived by subsequently ac- , cepting a payment upon the demand. (Conkling vs. King, 10 Barbour, 372.) A payment in current bank bills, if accepted by the sheriff without objection, is a good payment 1 23w"end. 315. z Thomas vs.Todd ; 6 Hill, 340, Bron- son, J. 488 Or Payment. for the purpose of redeeming real estate sold on execution. (9 Barb. 17.) Where upon an agreement for the sale of property no time of payment is specified, the legal inference is, that it is to be upon the delivery of the property, and the vendor is not bound to part with his property without receiv- ing his price. And if in lieu of payment on delivery, secu- rity on the part of the purchaser is stipulated for, the vendor is not obliged to deliver the property until the security is given. 1 Where a creditor accepts the individual obligations of one of several partners or of a third person, and thereupon gives up notes of the partnership, such obligations will not be considered as anything more than the conditional payment of an existing debt, unless it is proved that they were agreed to be taken absolutely as payment of such debt. The question always, in such cases, is whether the creditor agreed to and did accept the notes, either of the debtor or of a third person, as payment of the original debt. If he did not, the original debt is not discharged, and the remedy upon it is only suspended until the maturity of the notes received. 2 Payment of a judgment by one of the several defendants extinguishes it, though the party paying take an assignment of it to himself; and the judgment is extinguished, though it was against the maker and several endorsers of a promis- sory note, and the payment was made by the last endorser who endorsed the note for the accommodation of the maker. A court of law is not competent in such a ease to substitute the party making the payment for the plaintiff/ 5 A debtor paying money to a creditor to whom he owes several debts may appropriate it to which he pleases. In default of an appropriation by the debtor, the creditor has a right to make the application. If both omit to do it, and the demand consist of a running account, the presumption is, that the first items of the account were intended to be satis- fied. And where neither party makes the application, Hie 1 Cornwall vs. ilaiglit, 8 Barb. 3'2T. 3 ;; l) U j,ui, 181. '!■ 6 Barb. 241; 5 U. 308. Of Payment. 459 law will appropriate the payments according to the justice and equity of the case. Sureties for the debt arc concluded by the same rules, as to the appropriation of payments, which apply to their principal. Where a general payment is made the creditor is allowed a reasonable time to make the application. But if he inform the debtor of the entry, it is an appropriation of the payment to that amount. 1 The giving of a promissory note for a copartnership debt, by one of several partners individually, after the disso- lution of the copartnership, under an agreement by the creditor to accept it in payment of the debt, extinguishes the liability of the other copartners. 9 The acceptance by a creditor from his debtor of a bill or note made by a third person on account of the debt does not satisfy it, unless the parties agreed that it should bo received in payment, aud where the note or bill is received on a pre- cedent debt the presumption is that it was not taken as pay- ment and the onus of establishing that it was agreed to Liu so taken is upon the debtor. But where it is received cotemporancously with the con- tracting of the debt, the presumption is that it was agreed to be taken in payment, and the burden of proving the con- trary rests on the creditor. 3 Itecciving the debtor's promissory note for a debt does not merge or extinguish the demand. Nor is a chattel mortgage extinguished by a second mortgage on the same property to secure the debt mentioned in the first. And where the first mortgage was to secure a debt evidenced by a note of the mortgagor, and after, default the note was surrendered and a new note given for its amount and some additional indebt- edness, and a second mortgage on the same property exe- cuted to secure the amount, held, that the first mortgage was not extinguished. The giving of a new note by one of two joint and several makers, intended as a provision for the former note not agreed 1 3 Denio, 284; 2 Selrfen, 117. 3 jfool vs. Murray, 3 Kcrnan, 1G7. - 3 Denio, 410, in the Court of Errors. 490 Interest on Money. to be taken in payment, and not in fact paid, constitutes no defence to an action upon the original note is well settled. 1 The omission to refile a copy of a chattel mortgage, as prescribed by the statute, (Laws of 1833, p. 402, § 3,) does not affect its validity as against a subsequent mortgagee with notice. 2 , Interest on Money and Accounts. By the statute regulating the. interest on money it is pro- vided that the rate of interest upon the loan or forbearance of any money, goods, or things in action shall continue to be seven dollars upon one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time. 3 Where no rate of interest is fixed by the contract, the creditor may demand the rate fixed by statute, but the parites may stipulate for any lower rate, and the only way to turn interest into principal, is to settle the balance of in- terest when it becomes due and add it to the principal by a new agreement. 4 Merchants and others can by agreement prescribe the mode of charging interest upon the items in running accounts be- tween them, provided the mode adopted is not intended to be, and is not in fact, a cover for usury, and in the absence of any agreement the creditor receiving a partial payment of a debt has the right of applying it first, to the satisfaction of the interest then due before it is applied to the discharge of any part of the principal. 5 A note for the payment of a particular sum, with interest from a day anterior to the date of the note, in itself affords no evidence of usury, and a reservation of interest payable quarterly or half yearly is not usurious. Interest is not allowable on an unliquidated account for 1 Bates vs. Rosekrans, 37 N. Y.409; 3 R. S. 700. 5 Denio, 558; 1 Hill, 516. * Hall, 2l>4; 3 N. H. R. 40. 2 Hill vs. Beebe, 3 Kcrnan, 550; 19 2 Paige, Ch. R. 207. Wend. 515; IComst.DOOi 19 Barb. « 8 Wend. 533; 8 Cowen, GGd; 4 459. Wend. G52. Interest on Monet. 491 goods sold and work done, unless there be an agreement, express or implied, to allow interest. 1 It seems that if the custom of a merchant to charge inter- est after ninety days is known by those who deal with him, or if the length of credit is stated in an account rendered at the sale, an agreement to pay interest may be inferred. 2 A merchant or manufacturer whose uniform custom it is to charge interest after ninety days upon articles sold or manufactured by him, is allowed to charge interest accord- ingly, to those who are in the habit of dealing with him, they being presumed to know such custom and to act in reference thereto.* Interest is recoverable on cash advances though they are charged in the account between the parties. 4 Where the agreement was to pay for materials furnished, upon the performance of the contract on the part of the plaintiff, held, that the plaintiff was entitled to interest, at least from the commencement of the suit. 5 If a sheriff retains money after the return day of the exe- cution, he is liable for interest." Interest is recoverable on money due under a special con- tract, as where compensation for services is agreed upon, at a specific sum per mouth. 7 Although the law does not, in general, give interest upon an open account fjr goods sold, yet it may be recovered where there was a stipulated term of credit which has ex- pired, or where there is an agreement, express or implied, to pay interest. And an agreement to pay interest may be inferred from the course of dealing between the parties, as where it has been charged and allowed under like circumstances. So it may be inferred from a uniform practice of the creditor, to charge interest, known to the customer at the time of the dealing. So also where there is a general usage in any par- 1 4 Coweo, 496. 4 3 Cowcn. 393; 5 Wend. 5S7. 2 2 Wend. 501. 5 Feeter vs. Heath, 11 Wend. 477; » 4 Wend. 434; Jfarcy, J.; 8 Wend. Cow. G02. 109. " 4 Wend. 075. 7 20 Wend. 51. 492 Nuisance. ticular trade or branch of business, to charge and allow in- terest, parties having knowledge of the usage are deemed to contract with reference to it. And if the usage does not conflict with the terms of the contract it will be deemed to enter into and constitute a part of it. Knowledge of the usage may be established by presumptive ns well as by direct evidence. 1 "Where a debtor is in default for not paying money, de- livering property, or rendering services, in pursuance of his contract, he is chargeable with interest from the time of default, on the speciiicd amount of money, or the value of the property or services at the time they should have been paid or rendered. Accordingly iu an'aetion of covenant for rent, held, that interest was recoverable as matter of law from the time that the rent fell due, although it was payable in wheat, and services, the value of which was unliquidated by the contract. 2 Nuisance. A nuisance is defined to be anything that annoys, incom- modes, and offends ; anything that renders the enjoyment of life uncomfortable/ 1 A common nuisance is defined to be one that affects the public, being an annoyance to the whole community in gen- eral, as distinguished from a private nuisance, which is con- fined in its effects to particular individuals. 4 To constitute a nuisance it is not necessary that the noxious trade or business should endanger the health of the neigh- borhood. It is sufficient if it produces that which is offen- sive to the senses and which renders the enjoyment of life uncomfortable. 5 It seems that whenever any offensive trade becomes an injurious nuisance to any person, such person has a remedy by an action on the case for damages or by writ of nuisance 1 3Comst. 502. 5 Brady vs. Weeks, 3 Barb. 159; 9 2 Id. Paige, 576; 1 Burr. 337; 3 Black. 8 Burrill's Law Die. 760; Hill, 121. Com. 217. 4 Burrill's Law Die. 241; 1 Stoph. Com. 291. Nuisance. 493 to have the nuisance abated, upon the principle that every continuance of a nuisance is a new or fresh nuisance. 1 And whenever the erector of a nuisance owns the premises on which the nuisance stands, and lets the premises to another, an action on the case will lie against him, for the injury the nuisance occasions while the premises are in the occupation of his lessee. 2 The demise in such case affirms the continuance of the nuisance by the lessor. (Eosewell vs. Prior, Eay, 713 ; 2 Salk. 460; Cheetham vs. Hamson, 4 T. E. 320, per Buller, J. ; 15 Wend. 526.) The same principle was, in a recent case of "Waggoner vs. Jcrmaine, (3 Denio, 310,) held applicable to the creator of a nuisance who conveys the premises to a purchaser with warranty. (Plumer vs. Harper, 3 N. Hamp. 88 ; Brown vs. The Cayuga & Susquehanna E. E. Co., 2 Kernan, 486.) An action also lies against the lessee or grantee of the erector of the nuisance for the injury occasioned by the continuance of the nuisance by them. (Brent vs. Hadden, Cro. Jac. 555 ; Eosewell vs. Prior, Eay. 713; Penruddock's case, 5 Coke, 101 ; Staple vs. Spring, 10 Mass. R. 74 ; Alexander vs. Kerr, 2 Eawle, 83 ; 3 Barb. S. C. E. 1G1.) It is a nuisance to deposit dead animals, decayed vegeta- bles, fish, putrid meat, or any other offensive substance in or upon any public street, lane or alley, or above the sur- face of the ground on any lot, or in any canal or basin within the bounds of a city or village, and the corporation may abate the same. (12 Barb. 559.) Also Boards of Health. (15 Wend. 397.) Such Boards are clothed with largo dis- cretionary powers. (15 Wend. 399.) A bowling alley kept for gain or hire, is a public nuisance at common law, though gambling be expressly prohibited. 3 Among other offensive things that have been declared nuisances, it has been decided that a dwelling house cut up into small apartments, inhabited by a crowd of poor people, in a filthy condition, and calculated to breed disease, is a public nuisance and may be abated. 4 1 3 Barb. 160, and cases cited ; 2 3 5 Hill, 121. Kernan, 486, Denio, J. i 15 Wend. 397 2 15 Wend. 399. 494 Pews in a Church. It was held in the case of Drake vs. The Hudson Rivei Railroad Co., (17 Barb. 508,) that a road passing through the streets in the city of New York, and where the cars are drawn by steam power into a crowded part of the city, {al- though not to the terminus of the road,) was not a nuisance. Similar decisions were made in the cases of Hamilton vs. The New York & Harlem R. R. Co. (9 Paige, 171,) The Lexington & Ohio R. R. Co. vs. Applegate, (8 Dana, 289,) and Chapman vs. The Albany & Schenectady It. R. Co., (10 Barb. 360 ; 13 Barb. 046 ; 18 Barb. 222.) Owners of wet lands are not guilty of a public nuisance because they neglect to drain them. 1 Gas works are to be placed in the class of erections which are not within the ordinary and usual purposes to which real estate is applied, and that whenever they create a spe- cial injury, they are to be regarded as a private nuisance, for which an action will lie in respect to the special injury, like a swine sty, (9 Rep. 59,) a lime kiln, (2 Black. 141,) a dye house, (Hutt. 136,) a tallow chandler, a furnace, (Cro. Car. 570,) a brew house,. (R. Pal. 139 ; Hutt. 136,) a smelt- ing house, (1 Roll. 89,) a smith forge, (Lut. 70,) a livery stable, (Coke vs. Bergen, 2 Georgia R. 425,) or a tannery, 2 (17 Barb. 654.) That which is exclusively a common or public nuisance, cannot lawfully be abated by the private act of individuals. The remedy is an indictment, a criminal prosecution, unless some other remedy has been provided by statute. 3 A private nuisance may be abated by the party aggrieved. He may remove the nuisance, or he may have his action for private damages sustained by him ; but he cannot have both remedies. Peics in a Church. Chancellor Kent, in his valuable Commentaries, vol. 3, p. 402, says, that a freehold right ii: a pew in a church, may 1 Woodruff vs. Fisher, 17 Barb. 224. 3 Griffith vs. McC ilium, 46 Barb. 501. 2 Carhart vs. The Auburn Gas Light Co. 22 Barb. 297, 313. Pews in a Church. 495 be classed among incorporeal rights, for the right only ex- tends to the use of the pew, for the purpose of sitting therein during divine service. The owners of a pew cannot dig a vault under it, or erect any thing over it, without the con- sent of the Trustees or owners of the church. It is a right subject to that of the Trustees or owners of the church, who have the right to take it clown, or remove the church for the purpose of more convenient worship, without mak- ing any compensation to the pew-holders for the temporary interruption, though it has been held that if the church should be taken down unnecessarily, the pew-holder was entitled to be indemnified for the loss of his pew. Justice Woodvvorth says, in the case of Freligh vs. Piatt, (5 Cowen E. 494,) that the sales of a pew in a church is not the sale of real estate within the meaning of the act before mentioned. By the grant of a pew, the grantee acquires a limited usufructuary right only. He may use it as a pew in a house of religious worship, but has not an unlimited, abso- lute right. He cannot use it lawfully for purposes incompat- ible with its nature. The right, too, is limited as to time. If the house be burned or destroyed the right is gone. Chancellor Walworth held, in the case of the Baptist Church vs. Witherell, (2 Paige, 302,) that the grant of a pew in perpetuity does not give the owner an absolute right of property, as in a grant of land in fee. The grantee is only entitled to the use of the pew for the purpose of sitting therein during divine service. Vice Chancellor McCoun, in the case of Henry vs. St. Peter's Church, in New York, 1 says : The right to a pew gives no right to the soil ; it gives only a limited estate ; hence, in the present case, upon the pulling down and re- building, where the lapse of time has made it necessary, the pew-holder's right is gone. Justice Paige, in the case of Voorhecs vs. the Presbyterian Church, of Amsterdam, (8 Barb. K. 135, 152,) after citing the foregoing cases with approval, says : The pew-holder has no title to the soil on which the edifice stands, nor to the 1 7 N. T. Legal Obs. 361. 49 G Pews in a Church. edifice itself. The building and soil are the property of the corporation, and the seisin and possession of the same are in the trustees. Whenever it is necessary or proper, the trustees may take down the old edifice and rebuild on the same spot, or else- where, and may alter the form and shape of the building for the purpose of making it more convenient and adapting it to the increased wants of the society. And in doing this they can, for useful purposes, and to carry out the contemplated improvement, take down and remove the pews of the pew- holders. The property of the pew-holders in their pews is necessarily subject to the right of the trustees to alter and improve the internal arrangement of the church, as the good of the society may require. And if, in doing this, the pews are necessarily destroyed, the pew-holders cannot maintain an action against the trustees. The pew-holder has a remedy where his pew is destroyed for convenience only, or where the trustees have been guilty of a wanton and malicious abuse of their power in destroying his pew. In such cases, his remedy, and his only remedy, is an action to recover dam- ages by way of an indemnity for the loss of his pew. If, however, the church edifice is so far decayed as to be unfit for use, as a house for public worship, and it is for that reason taken down, the pew-holder's right is gone, and he is not entitled to any indemnity for its loss. lie also cites 9 John. 147 ; 3 Edw. Ch. E. COS ; 17 Mass. E. 434 ; 1 Pick. 102 ; 3 Id. 344 ; 2 Edw. Ch. E. 138 ; Bronson vs. St. Peter's Church, New York ; 7 N. Y. Legal Obs. 301. It is a general rule, and one that cannot be successfully controverted, that a corporation can only act in the mode prescribed by the law creating it, (2 John. 114 ; 7 Cow. E. 462 ; 8 John. 330 ;) and has no powers, except such as are specifically granted, and those which are necessary to carry into effect the powers expressly granted. 1 Justice Paige, then, says: The deduction from these principles is clear, that the trustees of a religious corpora- tion, incorporated under the General Act, have no power to 1 15 John. 382 Pjsws in a Ciiuhch. 497 make an absolute sale of a pew in perpetuity, without reserva- tion of rent. If the trustees are regarded as the donees of a power, or as invested with a statute authority, they, in either case, are bound to pursue the power or authority in the mode and form of alienation prescribed by the General Act for the incorporation of religious societies. If this is not done in their alienation of the real estate of the corpora- tion the deed will be void. 1 In Wentworth vs. The First Parish in Canton, (3 Pick. 344, Mass. Eep.) the court held, on the Common Law, that the plaintiff could not recover. Parker, C. Justice, says : It has been held in the case of Daniel vs. "Wood, (1 Pick. 102,) that the property of a pew in a meeting house is a qualified one, subject to the right of a majority of the parish to take down and destroy the house, wholly, or only in part, if necessary, for the purposes for which it was erected, that is, to repair, enlarge, or rebuild the same, where it shall become decayed or useless. It may become so far decayed as to be unfit for use as a place of public worship, and then it may be entirely demolished, and the materials may be worked into a new house, or may be sold, and the proceeds go into the treasury to aid in rebuilding ; and, in such case, no individual pew-holder can claim his share of the materials or proceeds thereof, for he did not own them, but only the right of using the pew for the purpose of attending public worship. It may be asked, what remedy is there for a minority of tlie pew-holders if the majority shall determine to demolish the building, and thus destroy the pew ? We answer none, if the act is necessary and proper. In the case of Fasset vs. The First Parish of Boylston, (19 Pickering, 362,) an action was brought to recover com- pensation for a pew alleged to have been rendered useless by the acts of the defendants. They had removed a stone wall which supported an embankment at the end of the meeting house, and had used the same for the foundation of a new meetino - house. They had built a new house and abandoned the old one. 1 1 Hill, 114; 2 Cow. R. 228; 4 Kent's Com. 344, 2d ed. Ee 498 Pews in a Church. Wilde, Judge, says : Iu no case can be found any inti- mation that a paiish or religious society would subject them- selves to any liability to the pew-holders in consequence of abandoning their meeting house as a place of public worship, although the pew may thereby be rendered useless. The law is the same, if public worship should be wholly discontinued, either in the meeting house or elsewhere, by reason of the inability of the parish to maintain public worship, &c. It is clear that the pew-holder would have no cause of com- plaint if the society or parish should abandon their meeting house and wholly cease to occupy it as a place of public worship. It was decided in the case of the People vs. Runkel, (9 John. Hep. 147,) that the trustees of a religious corporation have the possession of the temporalities of the church, whether the same consists of real or personal property, and though they hold it in trust for the church and congrega- tion still it is in their possession. In the case of the Dutch Church, in Garden street, N. Y. vs. Mott, (7 Paige, 81,) the Chancellor held that the 4th section of the act of March 27, 1801, transferred to the trustees of an incorporated religious society, without any conveyance, the legal title of any real estate or personal property, held in the name of others upon a mere naked trust, for the use of the church ; and the 4th section of the act of April 5th, 1813, under which corporations are now formed, is a copy of the 4th section of the act of March, 1801. And see, also, 4Denio, 442 ; 10 Paige, 567 ; which go to sustain the same doctrine. It was also held in the case of Greene vs. Cady, (9 Wend. 414,) that the trustees may maintain an action of trespass against any person for any injuries done to the meeting house of the society. The powers of religious corporations, incorporated under the General Act, are limited, by that act, to a demise, lease, or improvement of their real estate, and they have no power of sale without the order of the court. 1 I 2 Kent's Com. 281, 2d od.; 7 Paige, 83-, 8 Barb. 139, 149. Pews in a Church. 499 The words of conveyance, appropriate in a lease, are : demise, lease, and to farm, let, &c, (1 Hilliard, Abr. 130, $ G,) and it may be said, these words are technical words well understood, and arc the most proper that can be used in making a lease. 1 A lease is a contract for the possession and profits of hinds and tenements on the one side, and a recompense of rent or income on the other, or conveyance of lands, Ac, to one for life, for years, or at will, in consideration of rent or other recompense. 2 The technical meaning of demise is, a lease for a term of years. The meaning of the words demise and lease as used in the fourth sectioii of the act to provide for the incorpora- tion of religious societies is, very clearly, a lease for years in consideration of rent. 3 The deduction from these principles, therefore, is clear, that the trustees of a religious corporation have no power to make any other or different sale of pews in a church, than by a lease for a term therein mentioned, and, in all cases, with a reservation of rent reserved therein. A grantee of a pew takes a limited estate, a usufructuary interest, subject to the general right of the owners of the church. If the church edifice becomes useless by dilapidation, or destroyed by fire or casually, or has to be rebuilt, the right of the pew-holder is gone. 4 Though pews in a church bo held under an absolute con- veyance, the holders thereof have no legal interest in the church edifice. A church corporation has power to regulate and order the renting of the pews, but it can no more sell a pew abso- lutely, without an order of the court for that purpose, than it can sell the house itself without leave. Pew-holders have only the right to occupy their pews for the purposes of wor- ship. The title to the freehold still remains in the corpora- 1 2 Bouv. Law. Die. 18; 8 Barb. 148. * 3 Paige, 302; 5 Cow. 494; 2 Ed. Ch. 2 1 Hilliard, Abr. 129, §1; 8 Barb. R. 608; 17 Mass. 435; 17 Barb. 103; 148, and cases cited. 16 Wend. 32; 3 Hill, 26; 10 Mass. 3 8 Barb. 148. 16. ' 500 Usury. tion, and the pew-holder cannot compel it to maintain divine service, or even to open the house for that purpose. 1 The owner of a pew in a church is not liable in person in respect to an assessment thereon, unless there be some special ground from which to infer a contract and promise to pay. The interest in a pew, created by a, lease in perpetuity,, is an estate or interest in realty, and the lessees or pew-owners take the title of their pews as real property with all its inci- dents. Where a lease of a pew is executed to several per- sons, they are tenants in common of the pew, under their lease, having several distinct freeholds, and each being solely and severally seized of his share. Neither of them can bind the other by an agreement in respect to the common prop- erty, but anyone can charge his separate and several estate, or can convey it or mortgage it, or become personally liable upon undertaking respecting it. 2 Usury. The statute against usury, (1 E. S. 772, §§ 1 and 2,) pro- hibiting a greater rate of interest than seven per cent "for the loan, or forbearance, of any money, goods or things in action, is applicable only to those loans, which are in sub- stance and cflect loans of money." The statute of Henry VIII., enumerated and prohibited the various devices and expedients, adopted by moneylenders to evade the previous laws against usury. The statute of 12 Ann, from which our own is substantially taken, followed the earlier legislation upon this subject, by a partial enumera- tion of these devices; while the statute, like our own, con- tains a general prohibition against taking, or securing, more than the legal rate of interest directly or indirectly for the loan or forbearance of any money, which rendered such enu- meration unnecessary. The true construction of the two last statutes, as I appre- hend, is and has been, that no more than the prescribed rate 1 Matter of Dutch Keformcd Church 2 St. Paul's Church, Syracuse, vs. in Saugerties, 18 Barb. 237, and Ford, et al. 34 Barb. 16; 16 Wend. cases cited by Harris, J. 28-, 3 Hill, 26; 8 Barb. 130. Usury. 501 of intercut should be taken, on a loan or forbearance of money, directly or indirectly, by way of loan of goods or choses in action, or in any other manner. In a word the statute would have been as comprehensive without the speci- fication of " goods and things iu action," as it now is. The terms " interest " and " forbearance," cannot be predicated of any other than a loan of money, actual or presumed. Interest is defined to be a certain profit for the use of the loan, and " forbearance" the giving a further day when the time originally limited for the return of the loan has passed. (Orel. 30, 24.) Both imply that the thing loaned has an estab- lished value, so that the lender on its return with the com- pensation fixed by law for the use and risk may receive a certain profit. Now this is true only of monej', which is • legally supposed to have a fixed, unchangeable value in itself, and to be consequently the true measure of the value of all other property. A fair rate per cent on money, therefore, in contemplation of law is supposed to give to the lender a "certain profit," because the thing loaned is of the same value at the end of the term as at its commencement. This is not true in part, even of money. And the law does not affirm it to be true of anything else. Accordingly, a loan of goods is not within the statute, whatever may be reserved for their use. (Ortl. 26.) Nor a stock of grain to be returned in kind. (Steptoe vs. Harvey, 7 Leigh, 500.) Nor of stock converted into money, by arrangement to be replaced by other stock. (Tate vs. Welling, 3 T. E. 538 ; 8 East. 304.) Nor of choses in action. (3 T. R. supra.) It is unnecessary to multiply cases. They all proceed upon the doctrine that the value of every thing which can be the subject of a loan, except money, is subject to fluctuation ; and, consequently, that an individual who loans five bushels of wheat to receive ten after harvest ; or who to sustain the credit of a friend loans him a bond and mortgage for a month, may at the end of the term, from the depreciation of the com- modity or security, receive in value less than he parted with, interest included. If credit is the subject of loan, as a chose in action, it is not an exception to the general rule 502 Usury. above stated. Its value depends upon opinion and is in all other things, perhaps, the most capricious and fluctuating. But credit is the "capacity ot being trusted." It is no more a chose in action, or withiu the statute, to prevent usury, than a capacity for the fine arts. The statute by " choses in action," refers to a particular species of property, recognized by the law, and which, upon the death of the owner, would be inventoried as such by his legal represen- tatives. Credit may be a benefit to the possessor as a means of procuring property, but is not itself recognized as prop- erty by the law. It cannot be loaned, for a loan implies that the thing borrowed is to be leturned, after a temporary use, to the owner, in specie or in generc. (Ord. 37.) Where, however, A., for a consideration paid by B., exe- cutes a letter of credit, a promissory note, or a guaranty, and delivers them to the latter to be used for his benefit, neither of them are choses in action in the hands of B., and yet he has received precisely what he contracted for, namely, the privilege of availing himself of A.'s credit with third persons. When the credit is used and a trust obtained, its whole office is fulfiled ; it becomes functus officio, and in the nature of things can never be returned. The credit of one person may be rendered available to another by gift or sale, and in no other way. This may be done by a direct contract between the parties, as an exchange, of notes, (13 Barb. 45,) which is the sale of one promise for another, by an undertaking with third persons directly, or one to be used for the benefit and according to the discretion of the donee or vendee. When the responsibility is incurred gratuitously, it is, in popular language, called a loan, and when for a consideration, a sale of credit. In this sense, a sale of credit is no more within the prohibition against usury than a sale of machinery. According to Trotter vs. Curtiss, (19 John. 160,) and in Suydam vs. West, (4 Hill, 211,) it was held that a commission of two and one-half per cent for accepting, in addition to interest on the money advanced was not usurious. So Avhere a bond and mortgage were sold for $2, GOO, and the bond of the vendor given to the vendee, conditioned that Usury. 503 the mortgagor should pay $3,000, the amount of the mort- gage. (4 Hill, 472.) So the sale of an indorsement at three per cent on the amount of a note intended to be and which was discounted at the legal rate, was held valid. (Ketchum vs. Barber, 4 Hill, 225.) And in More vs. Ilowland, (4 Denio, 2G4,) it was decided that a guaranty was the subject of sale, and the price for it immaterial. The principle of these cases applies to every engagement direct or collateral, assumed in good faith by one man for another, for a stipu- lated consideration. , The exchange of notes for a premium greater than the legal rate of interest is no exception to the general rule. This was, in effect, determined in Dunham vs. Day, (13 John. 40.) In that case Dunham reserved two and one-half per cent on an exchange of notes, which was more than the legal rate of interest. If this was usury per se there was nothing for the jury to determine. But it was left to them upon the whole evidence, relating to the situation and conduct of the parties, and they found as a question of fact that the ex- change was a mere cover for an usurious loan, and the court sustained the verdict. In Ketchum vs. Barber, (Supra,) the referee found the other way, and the court pronounced the transaction lawful. It is sometimes asked, why should a man be permitted to receive ten per cent on an exchange of notes when, if he advanced money on the same security, he would get but seven ? The answer is, for the same reason that he is per- mitted to receive twenty dollars for six mouths' use of furni- ture valued at one hundred dollars. The one is prohibited, the other not. No man can exchange his promise to pay one hundred and ten dollars at the end of the year for one hundred dollars in cash. 1st, Because he would thereby agree to refund in hind precisely what he had received, and this is the definition of a loan, and the ten dollars must, therefore, be a compensation to the lender for the use of the money, whatever name maybe given to the transaction. This the statute forbids. The Legislature have fixed the interest of money at seven per cent. This includes a compensation for the use and the risk of its repayment. Nothing more can 504 Usurt. be received by or secured to the lender. The consequence is that a promise to pay one hundred and seven dollars in a year is in law an equivalent for one hundred dollars in money presently received, no matter whether the promise is made by a Eothschild or a pauper. This is legally true because the Legislature have so enacted. But they have not de- clared that a promise to pay money is money or its precise equivalent, in any case except that of a loan. Hence upon an exchange of promises, as in an exchange of property, parties are left to their own judgment as to their relative value. They are sales, subject to the same rules, and their validity tested in the same manner as other sales. Upon the sale of property on time, the purchase money becomes a debt, which is forborne for the period limited by the credit. Accordingly, where usury is disguised under a sale of merchandise, the property in the goods passes to the vendee, but the excess of price over the just value is considered as a premium for the forbearance of the debt, founded on a presumed loan of so much of the purchase money as is equivalent to the cash value of. the commodity sold. (See cases subsequently cited.) The same rule applies to the sale or exchange of choses in action, or of credit, when the real object is a loan of money, although no money is received by the borrower - . The law, looking at the substance of the transaction, converts the sub- stitute agreed upon by the parties into money, according to its cash value. This amount constitutes the loan to the bor- rower, and the real debt due from him to the lender. If the securities received by the former are depreciated, the differ- ence between the nominal and money value is so much inter- est for the forbearance of the debt. If they are equivalent to money, the usury is to be established by showing some direct collateral advantage to the lender, which would avoid a contract upon a loan of money. In a word, neither sales of credit, nor loans, or sales of property, other than money, are touched by the statute. It is not enough that the vendee wants money, and that this is known to the opposite party. Neither the necessities of the Usuey. 505 vendee, nor the use he contemplates makiug of his purchase, will deprive the vendee of his right to determine for himself the terms upon which he will part with bis property. (1 Bro. Ch. cases.) His conduct may be oppressive, but all extortion is not usury. Nor cau a penal statute, designed to correct a par- ticular evil, be made a remedy for the violation of all duties of imperfect obligation. It follows, that in every instance where the contract in form is one of sale or exchange, (and the principle applies to loans of chattels,) if the court, in looking at the whole transaction, can sec that the value secured to the vendor was in good faith, but the price of the thing sold or exchanged by him, there can be no usury, whatever the price may be, or the mode in which it may be reserved. (Beebevs. Blood- good, 4 B. & Cresswell, 453 ; Van Schaack vs. Edward, 2 John, cases 35G ; 9 Peters, 378 ; 1 Hill,. 227 ; 3 Edw. 146 ; 1 B. & Pull. 151.) Where, lioioever, the object of the par Hex is a loa?i of money, and something else under the form of an exchange or sale is substituted for it, the principle of the loan, and consequently of the debt contracted by the nominal vendee, will be the value in money of the substitute received bv him ; and any consideration paid or secured to the vendor beyond that will, in general, be considered as interest for its forbearance. 1 A purchaser of land, encumbered'by an usurious mortgage, may set up the usury in defence to a bill of foreclosure, un- less, by the terms of the purchase, he took the equity of redemption merely, subject to the payment of the mortgage. 2 Where a borrower, on obtaining a loan of money at an ille"-al rate of interest, assigns to the lender bonds and other securities, in consi delation of such loan, the assignment is void, and trover may be immediately maintained for them by the vendor. 3 1 1 Bro. Ch. C. 150; Low vs. Wiillur, - Brooks vs. Avery, 4 Comst. 225, Oon»l. 786; 2 Camp. N. P. 375; cases cited; Post vs. Dart, 8 Paige, Holt's N. P. C. 295; Coinyn on 039; Shufult vs. Sliufelt, 9 Paige, Usury, 91, 95; See 3 Comst. 34-1, 137. and cases cited, Gardiner, J.; 4 3 2 Seklen, 10*. Comst. 114. 506 Usurt. There can be no usury in a loan of chattels, whatever may- be the per centage upon their value agreed to be paid for their use, unless such loan is intended as an indirect loan to money. 1 It is well settled, that, upon the discounting of commer- cial paper not having a longer time to run to maturity than the notes and bills which arc usually discounted by bankers, interest on the whole amount of principal agreed to be paid at maturity, not exceeding the legal rate, may be taken in advance. 2 The question was raised in the case of The Utica Insurance Co. vs. Bloodgood, (4 Wend. G52,) whether a person not having banking powers could discount commercial paper, and was decided that he could do so by taking interest in advance. To constitute a usurious contract there must be, 1st. A loan; and 2d. An agreement to pay illegal interest. And it is essential to the nature of a loan that the thing borrowed is at all events to be returned. When the principal is bona fide put in hazard, it is no loan, and it is no usury to take more than legal interest. It is also essential to the nature of usury that a certain gain, exceeding the legal rate of interest, is to accrue to the lender as a consideration for the loan. If the gain to the lender, beyond the legal rate of interest, is made dependent on the will of the borrower, as where he may discharge him- self from it by the punctual payment of the principal, the contract is not usurious. 3 An agreement made by a borrower with the agent of the lender, that the agent shall have a commission for making the loan, does not render the transaction usurious and the security void, if made without the knowledge of the lender, and it is in no respect for his benefit or advantage. In such a case, the agreement will be held to be that of the agent and the borrower only, or the private extortion of the agent, and he 1 Bull vs. Rice, 1 Selden, 315. 3 22 Barb. 118. 2 Marvine vs. Hyraers, 3 Kernan, 223; 15 John. 162; 2 Cowcn, 064; 3 Wend. 408. Agent and His Authority. 507 alone is answerable. The agent of the lender, whether his principal agrees to it or not, may lawfully take compensa- tion from the borrower, for any services actually rendered tor the latter at his request. 1 A note delivered by the maker, without consideration therefor, to a third person, to enable the latter to raise money thereon, for the maker or himself, has no legal in- ception in his hands. If he negotiate the note upon an usurious consideration it is void. 3 The taking of usury, or including it in new notes, by way of renewal of other valid notes free from such taint, does not prevent a recovery of the sum actually due upon the valid notes, although the original notes were surrendered when the new notes were given. 3 Where the plaintiff purchased an outstanding mortgage against the defendant, and paid for the same, a usurious contract to make further advances on said mortgage does not extend to vitiating the mortgage for any part of the money due thereon at the time of the assignment thereof to the plaintiff, but only to so much as might have been ad- vanced under the usurious agreement. The plaintiff's title to the mortgage is perfect under the assignment. ' Ar/enl and His Authority. An agent is one employed by any person competent to do any act for himself, to do it for him. The employer is called the principal, and the employment an agency. Any person who is not actually disabled by weakness of mind, or want of understanding, may be an agent. What weaild con- stitute a legal disability to contract for himself, will not in- capacitate him from becoming an agent. Thus, infants, slaves, or married women may act as agents. 5 The authority of an agent may be conferred verbally, and it may be implied from the acts of the parties. A general agency is an authority to do all acts connected 1 Condit vs. Baldwin, 21 Barb. 181, 3 Winsted Bank vs. Webb, 39 N. Y. Johnson, J. 325. , 2 Catlin vs. Gunter. 1 Kernan, -SOS, * Kellogg vs. Adams, 39 N. T.28. Johnson, J. 5 4 Term. 177; 6 Hill, 336. 508 Agent and His Authoeity. with a particular business or transaction. The principal is bound by all the acts of his general agent which are osten- sibly within the scope of his authority, notwithstanding they may be in violation of his private instructions. 1 Whenever an authority is conferred upon an agent, whether express or implied, it is construed to include all the necessary or usual modes of so executing it as to accomplish the object of the agency ; as where I authorize my servant to sell my horse, his representations at the time of the sale, as to his soundness, will bind me ; so where an agent is em- ployed to procure the discounting of a note or bill, he may, if necessary, endorse it in the name of his principal. 2 The representations, admissions, and concealments of an agent, made at the time, and constituting a part of the trans- action and being inducements to the contract, are binding upon the principal, though if made at another time, and without forming part of the transaction, they are not. 3 An agent cannot delegate his authority to another, for it is a maxim of law that delegated power cannot be trans- ferred by the delegate. He must transact the business en- trusted to him, in the name of his principal, or the contract will not bind the principal and will become binding upon himself. So, where "A., attorney of B.," contracts to con- vey the land of 13., the contract is not binding upon B. A factor is an agent or broker employed to sell goods or negotiate bills upon commission for his principal. His general duty is to pursue strictly the directions of his prin- cipal, unless absolute neocssity, or, in some instances, a press- ing emergency requires him to deviate from them. Thus, a factor directed not to sell his principal's goods at less than a particular price, if he finds them perishable, and an imme- diate sale is necessary to prevent a greater loss, may dispose of them at a less price. 4 Whore a quantity of butter was put into the hands of an agent, who Avas proceeding to tho city of New York to sell; 1 Story on Agency §126. 8 Story on Agency, § 135; 13 Wend. 2 Story on Agency, § 135; 13 Wend. 518. 618. 4 2 Cai. 310; Storv on Cont. §§ 1 11, 1-12. Agent and His Authority. 501) with directions to do the best he could with it ; to do as well with it as if it was his own ; and the agent, after endeavor- ing in vain to dispose of it in New York at a fair .price, sent it, together with his own, to a southern market, it was held that-the question whether this was or was not an excess of the agent's authority was a question for the jury to decide, upon evidence as to the usual course of business in relation to such matters. Ordinarily, an action of trover will not lie by a principal against his agent, unless it appear that the agent has converted the property of his principal to his own use, or disposed of it contrary to his instructions ; there must be some act of the agent ; a mere omission of duty is not enough, though the property be lost in consequence of the neglect. Nor will trover lie where the agent, though wanting in good faith, has acted within the general scope of his powers. 1 The principle is, that when a trust is confided to an agent, and he whose interest is intrusted is damnified by the neg- lect of one whom the agent employs in the discharge of the trust, the agent employed shall answer to the person dam- nified. 3 The rule, it is believed, is universal, that a known agent is not responsible to third persons for acts done by him, in pursuance of an authority rightfully conferred upon him. The very notion of an agency proceeds upon the supposition that what a man may lawfully do by a substitute, when per- formed, is done by himself, and the individuality of the agent so far is merged in that of the principal. It is also settled, if anything can be established by authority, that an agent is not liable to third persons for an omission or neglect of duty in the matter of his agency, but that the principal is alone responsible. 3 A subsequent ratification, by a principal, of the unauthor- ized act of a person professing to act as his agent, in order 1 21 Wend. GIG. a - Comsfc. 120; 2 Demo, 118, and 2 3 Selden,461, Jewett, J.; 20 Wend. cases cited. 321; 22 Id. 515; 2 Denio, 115; 20 John. 372; SCowen, 663 j o Denio, 639; 2 Comst. 12G. 510 Submitting Cause to the Jury. to be valid, must be made with a full knowledge of the facts affecting his rights. 1 "Where the mortgagor of chattels in possession thereof, after default in the payment of the mortgage debt, fraudu- lently delivered them to a third person for sale, representing that they were his property, and the third person as agent for the mortgagor sells the chattels, such third person is liable to the mortgagee for the value thereof, notwithstand- ing he acted in good faith, believing that the chattels were the property of the mortgagor, and paid the proceeds of the sale, which he made to the mortgagor, without reward for his services. 2 The agent in a fraudulent disposition of the property of another, not being money or negotiable paper, is liable there- for to the owner, although he acts in good faith, without interest or reward, and in the belief that his principal is the owner. Submitting Cause to the Jury. After the evidence is closed on both sides, and before the cause is submitted to the jury by the parties, it frequently becomes a question, whether either party may call further testimony in the cause. After the cause is finally submitted either to the Justice or jury, it is then clearly too late. At any time before this, or at any time before the counsel on both sides have closed their arguments, it is discretionary with the Justice, either to admit or reject such further tes- timony ; and if such discretion be exercised properly, either in receiving or refusing it, the judgment Avill not for that reason be reversed. It can never be claimed by cither party at the trial, as a matter of strict right, to open the cause to proof, after full opportunity has been given to each side to be heard, and the testimony has been regularly and by mu- tual consent closed. The subsequent admission of testimony l Nixon vs. Palmer, 4 Selden, 398, 2 Spraight vs. Dudley, 39 N. T. 411. Mason, J. ; Dunlap, Paley on agency, 171, note o; Story on agency, § 324, 243; 9 Peters, 608. Sub jutting Cause to the Jury. 511 must rest in the discretion of the court, duly exorcised ac- cording to the circumstances of the case. After the evidence is closed, the defendant has the privi- lege of moving for a nonsuit, if he desires to do so, and get the decision of the court upon his motion. If the Justice is of opinion that the action is not sus- tained, he is authorized to grant a nonsuit, although a jury is empannelled to try the cause, or if he is of opinion the proof on the part of the plaintiff is defective and a nonsuit should be granted, unless the defect is supplied by other evidence, he should, in that case, give the plaintiff an oppor- tunity to supply the defect by evidence, if he desires to do so, and thus make out his case. So it sometimes happens the defendant desires to raise the same question to the court upon the whole evidence on both sides, -which he may do at the close of the evidence and before the cause is finally submitted to the court or jury for their decision, and in the same manner as before stated. If no such motion is made, the defendant or the party holding the negative, first sums up the cause to the court or jury, and the other party follows and closes the summing up. And if the trial be by jury, the Justice may, if he think proper, charge the jury by a recapitulation of the facts proved and their different bearings upon the case, and ho may also charge them upon the law of the case, but should he charge wrong, the judgment would bo reversed for that error. x He may, however, decline to charge them at all, and should he do so, it is no error of which cither party could take advantage. After hearing the proofs and allegations of the parties as before stated, the jury must be kept together in some con- venient place, under the charge of a constable, duly sworn for that purpose, until they agree upon their verdict, and for that purpose the Justice must administer to the constable the following oath : 16 Hill, 320; 18 Barb. 32. 512 Submitting Cause to tiie Juky. Form of Oath to Constable. "You swear, in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial together, in some private and convenient place, without meat- or drink, except such as shall be ordered by me ; that you will not suffer any com- munication, orally or otherwise, to be made to them; that you will not communicate with them yourself, orally or other- wise, unless by my order, or to ask them whether they have agreed on their verdict, until they shall be discharged ; and, that you will not, before they render their verdict, commu- nicate to any person the state of their deliberations, or the verdict they have agreed on." No person but a constable can be sworn to attend the j my. But if the jury make up their verdict without retiring from the court, a constable need not be sworn. And, if the par- ties so agree, the jury may retire without a constable. 1 In suits before Justices of the Peace, the jury must always be put in charge of a constable sworn to attend them, unless they find a verdict on the spot without leaving their seats. And this whether the jury retire from the court or the court leaves them alone in the court room.' 2 After the jury have retired the Justice ought not to confer with them, unless done with the consent of the par-ties ; the practice is dangerous and improper. And it makes no dif- ference, although the Justice refuse to answer questions put to him by the jury. 3 When the jurors after retiring, separate, so as to raise the slightest suspicion of abuse, the verdict will be set aside. When, after a cause was committed to a jury, one of the jurors separated himself from the constable, and drank a third of a gill of brandy, the Supreme Court set the verdict aside. Where jurors, during the trial of a civil cause, were allowed to separate, and one of them drank spirituous liquors, held, not a ground for setting aside the verdict, it 1 2Caines, 221; 8 John. 437; 11 » 10 John. 239; 13 John. 487; 1 John. 134. Cow. 258. 2 14 Bart. 381. Submitting Cause tq the Jury. 513 not appearing that in doing so he violated any express direc- tion of the court, and there being no reason to suppose that lie drank to excess, or upon the invitation of cither party. (The case in 7 Cowen, 262, overruled on that point.) Cases ? elating to misconduct of jurors in civil and criminal trials, cited and reviewed. 1 When the jurors agree, each to mark down the sum he thinks proper, and to divide the total amount by the number of jurors, their verdict so found will be irregular. A ver- dict of no cause of action, and a verdict of six cents dam- ages and six cents for defendant, in a case where no set-oif is pleaded, are to be regarded as general verdicts for defend- ant. A verdict for more damages than the party claims is mere error in form for which a judgment will not be re- versed. 3 When the jury is cmjoanncllcd before Sunday commences, they may bring in their verdict on Sunday. No court can be opened, or transact any civil business on Sunday, except receiving a verdict or discharging a jury. \ 7, Title 1, Chap. 3, of Part 3, E. S. 3 When a Justice is satisfied that the j ury cannot agree, after they have been out a reasonable time, he may discharge them, and issue a new venire, returnable in forty-eight hours; . unless the parties agree that the Justice may decide the cause on the evidence already before him, which, in such case, he may do. 4 The provision of the statute prescribing the time within which a venire for a second jury, upon a discharge by a Justice of the first, for their failure to agree, shall be made returnable, (2 E. S. 245, ^ 111,) was designed for the con- venience of the parties, and compliance with it may be waived by their consenting that the process be returnable at a later period. (Embury vs. Conner, 3 Comst. E. 511, and cases there cited.)"' 5 Cow. 283; 7 Cow. 262; Wilson vs. 3 15 John. 119. Abrahams, 1 Hill R. 207. 4 2 R. S. 245, § 111. 16 John. 178; 1 Cowen, 237; 2 R. 5 20 Barb. 275. S. 175, §120; 2 John. 181; 3 John. 427; 3 John. 433. Ff 514 The Vekdict. . After a cause tried iff a Justices court has been submitted to the jury, and they have retired to consider of their verdict, it is not irregular in the Justice, at the request of the jury, to give them further instructions upon the law of the case, if the parties are, or have an opportunity of Deing present. 1 When the jury return into court, the Justice should call over their names, and if they all appear, the plaintiff should then be called ;' 2 and if the plaintiff or some one for him should not appear, the Justice cannot receive the verdiet, but must give judgment of non-suit against him. 3 But where the return of a Justice was silent as to whether the plain- tiff was called or present when the verdict in his favor was rendered, the court of review' refused for this cause to reverse the judgment. 1 If the plaintiff appear, the Justice should say, Gentlemen, have you agreed on your verdict 9 To which the foreman answers in the affirmative. The Justice should then say, Who do you find for ? To which the foreman answers, We find for the plaintiff or defendant, {so much.) The jury may, at any time before the verdict is recorded, correct cither in form or substance. They may do this of themselves, or on the suggestion and advice of the Justice. They may do it immediately on discovering or being apprised of a mistake, or may retire a second time and make the cor- rection, on more mature deliberation, at their room. They may also alter their verdict after having sealed it up and delivered it if they desire so to do, and for that purpose may retire to their room again/' "O The Verdict. The statute contains the following provision relative to the receiving and entering the verdict : "When the jurors have agreed on .the verdict, they shall deliver the same to the Justice, publicly, who shall enter it in his docket. 13 The jury may, at any time before their ver- 1 13 Wend. 274; 22 Wend. 3G9. * 3 Hill, 75. 2 2 K. S. 214, § 110; [4th ed. p. 443.] o G John. 08; 7 John. 32. 8 Id. 248. § 119; [4tli ed. p. 444;] 11 6 2 It. S. 2d od. p. 175, § 110. Barb. 381; 3 Denio, 77. The Judgment. 515 diet is recorded, correct it, either in form or substance. 1 hey may do this of themselves, or on the suggestion and advice of the Justice. They may do it immediately on discovering or being apprised of the mistake, or may retire a second time, and make the correction, on more mature d -liberation, at their room. To determine whether the jury are unanimous, (as they must be in their verdict,) either party has a right to have the jury polled, (unless he have expressly assented to waive the right,) in which case the Justice must call them over one by one, and ask if the ver- dict pronounced be their's thus : " Is this your verdict f" If it turn out that any one of the jurors disagree with his fellows, it is no verdict, and the jury may bo sent out again. If they are not polled, and the Justice think the verdict palpably incorrect, he may himself send the jury back to , reconsider it. And in one case, where they were thus sent back by the Justice, and altered a verdict, which was for the defendant, into a verdict of twenty-four dollars for the plaintifl', it was held well, and the judgment affirmed. 1 The jury may disagree to a verdict which they have written and sealed up, and may be polled in relation to such a ver- dict as well as any other; 2 and it makes no difference in this respect that the parties agreed that they might seal up their verdict, and deliver the same in this form ; 3 for a verdict is not final, until pronounced and recorded in open court. 4 The Judgment. A final judgment at once puts an end to the action by de- claring that the plaintiff has either entitled himself, or has not, to recover in the action. 5 It will be perceived, that in all cases of a final judgment, rendered by a Justice of the Peace, it is peremptory, and collectable of the proper goods and chattels of the party against whom it is recovered, and in many cases the execu- tion may be issued upon it against the body. It is provided 1 7 John. 32, and vid. Pennington on 3 6 Id. 68. Small Causes, 178: John. 08; 3 i Id.j 7 Id. 32. Id. 255; 2 Wend. 352, 019. 5 3 Black. Com. 390, 7. 2 3 John. 255. 516 The Judgment. by statute that whenever a set-off is established in a suit brought by executors or administrators, the judgment shall be against them in their representative capacity, and shall be evidence of a debt established, to be paid in the course of administration ; but execution shall not issue thereon, until directed by the surrogate, who granted letters testamentary or of administration. 1 Iu cases where the plaintiff is nonsuited, discontinues, or withdraws his action, and where judgment shall be confessed, and in all cases where a verdict is rendered, or the defendant is in custody at the time of hearing the cause, the Justice must forthwith render judgment, and enter the same in his docket. Iu all other cases he must render judgment, and enter the same in his docket, within four days after the cause shall have been submitted to him for his final decision. 2 And in no case can a Justice amend his judgment after he has en- tered and declared it, though he have committed a clerical error in the computation of the amount. 3 The four days in which a Justice shall render judgment are to be computed according to the rules heretofore laid down, excluding the day of trial ;. and if the fourth day thereafter is Sunday, judgment must be rendered the day preceding.' In relation to the foregoing section of the statute, the Supreme Court have made the following decisions, to wit : It is the duty of a Justice to render judgment, and enter the same in his docket, within four days after the cause is submitted to him for a final decision. A judgment rendered after four days is erroneous, aud will be reversed. 5 Though if a suit be tried on its merits before a Justice, and submitted for his decision, yet if he omit to render judgment therein, the proceeding will form no bar to a second action for the same cause. His neglect to render judgment within the four judicial days, works a discon- tinuance. 6 The limitation of time in the statute, directing that Jus- 1 2 R. S. 236, § 56, [4th ed. p. 43C] * 7 Cowen, 147. 2 Id. 247, § 124, [4thed. p. 415;] 10 6 Watson vs. Davis, 19 Wend. 871. Wend. 519; 19 Id. 371. « 5 Hill, 60, Nelson, Ch. J. 8 18 "Wend. 558. The Judgment. 517 tices of the Peace shall render judgment, and enter the same in their dockets, within four days after the submission of the cause, was intended for the convenience of the parties and the protection of their rights, and a compliance with the statute may be waived by them. When any act is deferred beyond the time limited by the Justices' Act, by the consent of the parties, it is no error that the act is done after the time specified in the act, if done within the agreed time. Where parties submit their cause to the Justice, and stipulate with each other that the Justice may take five days instead of four to render judgment, it seems they will be estopped from ever alleging in a Court of Justice,, as ground of error, that the judgment Avas rendered ou the fifth instead of the fourth clay. 1 Where a Justice of the Peace, after a jury had pro- nounced their verdict, rendered judgment immediately, and noted it in his minutes of the trial, but omitted to enter it upon his docket until two or three days after, Held, that the omission was not cause for reversal.' 2 Where a Justice of the Peace decided a cause before him, and made upon the papers in the suit a memorandum of his judgment within four days after the final submission to him, Held, that the judgment was regular and valid, although no entry thereof was made in his docket until after the lapse of four days. 3 A Justice of the Peace must enter judgment upon the verdict of a jury, immediately upon its being rendered, and if he omit to do so until the next day no judgment can be rendered by him. d The case of Watson vs. Davis, (19 Wend. 371,) com- mented on and explained. 5 Merely entering the verdict of the jury in his docket by the Justice, and putting down the items of costs and adding them up, with the verdict, and thus ascertaining the sum total, without doing anything further, is not rendering a 1 Barnes vs. Badger, 41 Barb. 98; 20 * Sixby vs. Howard, 3 Denio, 72, Barb. 275. Bronson, Ch. J.; 2 Denio, 26. Bion- 3 Hall vs. Tuttle, 6 Hill. 38. son, Ch.J.; 6 Hill, 38. 3 Walrad vs. Shuler, 2 Comst. 131. 5 Id. 518 Judgment of Discontinuance. judgment on such verdict. Judgment must be rendered and entered in some way as a judicial act. 1 The statute provides that, in all cases where a verdict shall be rendered in a justices Court, the Justice shall forth- with render judgment, and enter the same in his docket. (2 11. S. 247, § 124.) The decision must be evidenced by some official act, A decision in the mind of the Justice, unless it is entered in the docket or in the minutes of the trial, is of no avail whatever. It is not a legal rendering of judgment, and will not constitute a judgment in law. When a balance shall be found in favor of the part}', cither by the verdict of a jury or upon hearing before a Justice, exceeding the sum for which the Justice is authorized to give judgment, such party may rem Lt and release the excess, and may take judgment for the residue. 3 The plaintiff in a Justices' Court may, upon the coining in of a verdict in his favor for more than twenty -five dollars, remit the excess beyond that amount, or any other sum, and a judgment for the residue will not be erroneous. 15 Judgment of Discontinuance. Judgment of discontinuance, which is a mere suspension of the proceedings without affecting the merits of the ac- tion, is rendered in several cases specified by statute, as where a Justice is a material witness ; l or where the de- fendant's set-off exceeds the plaintiff's claim by more than fifty dollars, and he does not require it to be set-off; 5 or where it appears on the trial of a cause that the total amount of the plaintiff's demand and the defendant's set-off exceeds four hundred dollars f or where a question of title to land arises from the plaintiff's own showing. 7 In all these instances, except the first, the judgment is for the defendant 1 Stephens vs. Santee, 5L Barb. 532, * 2 R. S. 246, § 118; [4th ed. p. 444,] and cases cited B 2 R. S. 23fi, § 53, [4th ed. p. 436.] 2 2 R. S. 177, § 125. R Id. § 54,'[4thed. p. HI.] 3 Clark vs. Den lire, 3 Denio, 310, 1 Id. §03. Jewett, r.j 12 John. 435; 4 Hill, 70. Judgment of Nonsuit. 519 with costs. There arc other cases where the proceedings are discontinued, but where no judgment is rendered against either party for damages or costs, as where the defendant interposes a plea or title ; or the Justice, after the issuing of process, discovers his relationship to one of the parties; or where ho is absent on the clay of the trial ; and other in- stances which have been noticed under their several heads. Where the proper affidavit is made, showing that the Justice is a material witness, and that the facts the party relies on cannot be proved by any other witness, the suit must be dis- continued. The Justice has 110 discretion. 1 Judgment of Nonsuit. Judgment of nonsuit with costs shall be rendered against a plaintiff prosecuting a suit before a Justice of the Peaco in the following cases : 3 1. If he discontinue or withdraw his action. 2. If he fail to appear, on the return of any process, within one hour after the same was returnable. 3. If, after an adjournment, he fail to appear within one hour after the time to which the adjournment shall have been made. 4. If ho become nonsuited on the trial. 5. If he shall not appear on the coming in of the jury to hear their verdict. On the return of a jury in a Justices' Court to deliver their verdict, the Justice must sec that the plaintiff, or some person authorized by him, appear before he receives the verdict. Where, on the return of the jury, the Justice called the plaintiff, and some person not knoivn to Mm an- swered, upon which he received the verdict and rendered judgment, held erroneous. 3 The Justice's return must show affirmatively that the plaintiff appeared when the verdict was given. Judgment for the defendant, with costs, shall be rendered whenever a trial has been had and it be found by verdict, or 1 24 Wend. 261. 3 Shove vs. Raynor, 3 Denio, 77. 2 2R. S. 176, [2ded. §119.] 520 Judgment by Confession. by the decision of the Justice, that the plaintiff has no cause of action against the defendant. 1 After the testimony of a plaintiff on a trial is closed, the Justice may nonsuit the plaintiff, if, in his opinion, the tes- timony offered does not support the action. 3 A nonsuit may be granted at the trial of a cause, on the testimony adduced by the defendant. But after the cause has been submitted to the jury, the Justice has no wght to take the cause from the jury, and nonsuit the plaintiff. 3 Judgment by Confession. A Justice of the Peace may enter a judgment by confes- sion of the defendant, where the amount confessed shall not exceed five hundred dollars, in the manner prescribed by article eight, title four, chapter two, of part three of th-* Revised Statutes. 4 No confession shall be taken, or judgment rendered thereon unless the following requisites be complied with : r ' 1. The defendant must personally appear before the Jus tice. 2. The confession shall be in writing, signed by the de- fendant, and filed with the Justice. 3. If the judgment be confessed for a sum exceeding fifty dollars, the confession shall be accompanied by the affidavit of the defendant and plaintiff, stating that such defendant is honestly and justly indebted to the plaintiff in the sum named in such affidavit, over and above all just demands which he has against him, and that such confession is not made or taken with a view to defraud any creditor. The omission to annex an affidavit to a confession of judg- ment in a Justices' Court, as required by the statute, renders the judgment void as to creditors only. It is valid and bind- ing upon the defendant notwithstanding such omission." 1 2 R. S. 17G, § 120. 4 Code, § 53. 2 11 John. 290. 5 2 R. S. 175,5 !1J; Wend. 5fi0, 3 3 1 1 ill, 287; 23 Wend. 480; 3 John. § 115. 430; 2 R. S. 176, § 121. Stone vs. Williams.. 40 Barb. 322. Form of Confession of Judgment. 521 A Justice of the Peace has the same authority to receive a confession of judgment at the defendant's house in the town of the Justices' residence as he has to receive it at his own house. And if the defendant appears before the Jus- tice at the former place and signs the confession in his pre- sence, the presence or absence of the Justice's docket, at that time and place, will not affect the jurisdiction of the Justice. 1 Every judgment confessed without a compliance with the provisions of the last preceding section, shall be void as against all persons, except a purchaser in good faith of any goods or chattels, lands or tenements, under such judgment and except the defendant making such confession. 2 It is regular for a creditor having a demand exceeding fifty dollars, to take from his debtor several confessions, each for a sum less than fifty dollars to the full amount of his claim, and thus avoid the necessity of making the affidavit required by statute. 15 The confession should state whether the damages con- fessed arose upon contract or upon tort, in order that the Justice- may know whether the execution to be issued on the judgment should contain a clause authorizing an arrest of defendant. As every confession must be in writing, one form will serve as a precedent in all cases. Form of Confession of Judgment. "In Justices' Court. — Before Justice of the Peace. Stephen Stow ) vs. \ Alfred Hoc. J I hereby confess judgment in this cause, at the suit of the above named plaintiff, for dollars and cents, damages, {for the amount of a promissory note, or for taking personal property as the case may be,) this 10th day of 1 4 Cow. 385; 23 Barb. 313. 3 Cornell vs. Cook, 7 Cowen R. 310. 2 9 "Wend. 509 522 Judgment Obtained by a Domestic. , 18 , and consent that the said Justice enter judg- ment against me accordingly. Alfred Roe." As the affidavit must expressly refer to the confession, the most explicit and convenient mode of making the affidavit will be to subjoin or annex it to the confession. Form of Affidavit. "Town, of , ss. Wc, Alfred Roe and Stephen Stow, the parties named in the foregoing [or annexed] confession of judgment, being both duly sworn, do severally depose and say, that said Alfred Roe is honestly and justly indebted to the said Stephen Stow in the sum of sixty dollars, [on contract, or as the case may be, J over and above all just demands which the said Alfred Roe has against the said Stephen Stow ; and that the said confession of judgment is not made or taken with a view to defraud any creditor. Alfred Roe, Stephen Stow. Subscribed and sworn 18 , before me, Justice." In all judgments or decrees, rendered by any court of justice, for any debt, damages, or costs, and in all executions issued thereon, the amount shall be computed, as near as may be, in dollars and cents, rejecting lesser fractious ; and no judgment or other proceeding shall be considered errone- ous for such omissions. Judgment obtained by a Domestic. At the recent session of the Legislature, the following statute was passed, for the benefit of those who are employed in families as "domestics :" Chapter 303. — An Act to modify the Exemption Laws on judgments rendered for a claim accruing for work and labor performed in a family as domestic. Passed April 7, 1857. The People of the State of New York, represented in Senate and Assembly, do enact as follows: Judgment Obtained by a Domestic. 523 Section 1. No property shall be exempt from levy and sale by virtue of an execution, issued on a judgment rendered in any court in this State, for a demand accruing for -work and labor performed in a family as a domestic, to an amount not exceeding fifty dollars. The word " domestic," as used in this statute, is doubtless to be understood as referring to that class of laborers who are employed in the household, and doing the ordinary work of the family. It clearly refers to work and labor, (as the title of the act expresses it,) performed in the family, as a domestic, and not to a class of domestics who may bo employed at various kinds of labor on or about the farm, upon which the family may reside. This statute was passed evidently to remedy an evil pre- vailing in our cities and large villages, where a large class of domestics are employed in families, who ostensibly ap- pear in affluent circumstances, but when called upon for pay, have nothing to pay with, but empty flour and pork barrels, and a few yards of silk, mull and muslin, that hang about their backs, for which, perhaps, they are indebted to the merchant, and the poor laborer is turned away without pay, and frequently in a suffering condition. Whenever an action is brought to recover pay for labor performed iu a family as a domestic, the plaintiff should be careful and not put in the complaint auy other cause of action, as the judgment must bo for labor alone, performed in this way. The proper course will be for the Justice issuing the exe- cution to recite the fact in it, that the judgment was ren- dered for work and labor performed in the family of the defendant, as a domestic, which can always be inserted im- mediately after stating the amount, and striking out the words " except such goods and chattels as are by law ex- empted," and then the constable will be authorized to take any and all of the personal property of the defendant, even to his last bed, or any household furniture, or other property he may own. It. undoubtedly, would be the most prudent course for 524 Transcripts or Judgments. the plaintiff to state in her complaint, before the Justice, tL. true cause of action, as follows : "In Justices' Court. — Before , Justice. Ann Jones "j vs. \ David Eoe. J The plaintiff complains of defendant, and says that the* said defendant is indebted to her in the sum of $15, for ten, weeks' labor, performed for the defendant in his family, as a domestic, at twelve shillings per week, commencing about the 10th February, and ending about 16th April, 18 .| The plaintiff, therefore, demands judgment for $15, besides! her costs. "July 8, 18 ." Transcrijits of Judgments. § G3. A Justice of the Peace, on the demand of a party in whose favor he shall have rendered a judgment, shall give a transcript thereof, which maybe filed and docketed in the office of the clerk of the county where the judgment was rendered. The time of the receipt of the transcript by the clerk shall be noted thereon, and entered in the docket ; and, from that time, the judgment shall be a judgment of the county court. A certified transcript of such judgment may be filed and docketed in the clerk's office of any other county, and with the like effect, in every respect, as in the county where the judgment was rendered ; except that it shall be a lien, only from the time of filing and docketing the transcript. But no such judgment for a less sum than twenty-five dollars, exclusive of costs, hereafter docketed, shall be a lien upon, or enforced against real property. If the judgment be docketed with the county clerk, the execution shall bo issued by him to the sheriff of the county, and have the same effect, and be executed in the same man- ner as other executions and judgments of the county court, except as provided in section sixty-three. 1 ICode, 5 53, sub. 13. Form of Transcript. 525 When judgment shall have been rendered in a court of Justice of the Peace, or in a Justice's or other inferior court in a city, and docketed in the office of the clerk of the county, the application for leave to issue execution must be to the County Court of the county where the judgment was rendered ; or in the city and county of New York, to the Court of Common Pleas of that city and county. 1 Filing a transcript of, and docketing a judgment ren- dered by a Justice of the Peace, in the county clerk's office, pursuant to the Revised Statutes, (2 R. S., 247, § 128,) ren- dered it a lien on real estate, co-exteusive in time with judgments recovered in the Court of Common Pleas. The Statute of Limitations, (2 R. S. 295, §18,) which barred an action on such judgment after six years, did not extinguish it or destroy its lien, when it had been docketed. Accordingly, where a transcript of a judgment, recovered before a Justice on the 25th of July, 1837, was filed and the same docketed in the county clerk's office on the 27th day of the same month, and an execution was issued by the clerk, and delivered to the sheriff on the 10th of July, 1843, who, in July, 1844, sold thereon real estate, and afterwards executed a deed to the purchaser, Held, that he acquired thereby the title of the judgment debtor. 2 * The following form will give the Justice some idea of the manner in which his docket should be kept : Form of Transcript. " In Justices' Court. Stephen Stow \ vs. Alfred Roe. June 1st, 18 , summons issued, returnable the 10th inst., at 2 P. M., at my office. Returned, personally served, 2d June, by W. W. Long, const, fees cts. 3 1 i See Code, § 384. 3 2 R. S. 195, § 343. * 4 Kernan, 16. *NOTE. The Code of Procedure differs from the Revised Statutes on this subject. It declares that from the time of the docketing in the county clerk's office, the judgment shall be a judgment of the County Court. (Code, §63, see also § 90.) 526 Form of Transcript. " June 10th, parties appe ared and joined issue. Plaintiff complained against the defendant on promissory note, also for money lent, &c, and claimed damages to $200. De- fendant answered by denying the complaint and gave notice of a set off, and claimed a balance of $ . On motion of defendant, cause adjourned to the 17th inst., at 10 A. M., at my office. June 17th, parties appeared, and, on motion of plaintiff, issued a venire, returnable forthwith. The following persons returned, summoned on the venire : (Here state jurors.) The following persons were sworn as iurors to try the cause: 1 "A. B. and 0. D. were sworn as witnesses for plaintiff, and C. D. was sworn for defendant. " After hearing the testimony, the jury retired under the charge of , constable, duly sworn for that purpose, and after deliberating together returned into court, the plaintiff being present and answering, and delivered their verdict, whereby they found for the plaintiff $10 damages. Whereupon, I immediately, to wit, June 17th, rendered judgment for the plaintiff. Damages, $10 00 Costs, 4 75 $14 75 No execution has been issued. " Town of , ss. I hereby certify that the above is a transcript of a judgment rendered before me, in the above entitled cause ; that I have compared it with the original, and that it is a correct transcript therefrom, and of the whole of such original.* Justice." Dated August 10th, 18 Whenever a judgment shall be rendered by a Justice of the Peace, on default and in the absence of the party against whom the same is rendered, it shall be the duty of such Justice, on the demand of any person interested therein, to give to such person a transcript of such judg- ment, together with a copy of the process, pleadings, and proofs in the cause, when such pleadings and proofs are reduced to writing, or the substance thereof, when not reduced to writing, or such parts of such process, pleadings, and proofs as may be required on his being paid therefor, twenty-five cents for such transcript, six cents a folio for the residue thereof.* i 5 Wend. 292. 'SesB. Lawn 1841, p. 114. »2E. S. 324, §72. Judgment. 526a Judgment; and docketing the same. § 3010. A justice of the peace may enter a judgment upon the confession of the defendant, in any case, where the amount confessed does not exceed the sum of five hundred dollars, with such a stay of execution, if any, as is agreed upon by the parties to the judgment. § 3011. A judgment upon confession shall not be ren- dered, unless the following requisites are complied with : 1. The defendant must personally appear before the justice. 2. The confession must be in writing, signed by the de- fendant, and filed with the justice. 3. If the judgment is confessed for a sum exceeding fifty dollars, the confession must be accompanied with the affidavit of the defendant and of the plaintiff, stating that the defendant is honestly and justly indebted to the plain- tiffin the sum specified therein, over and above all just demands which the defendant has against the plaintiff; and that the confession is not made or taken with intent to defraud any creditor. § 3012. A judgment confessed, otherwise than as pre- scribed in the last section, is void, as against every person, except a purchaser in good faith of property, real or per- sonal, thereunder, and the defendant making the con- fession. § 3013. Judgment of nonsuit, with costs, must be ren- dered against a plaintiff prosecutiug an action before a justice of the peace, in either of the following cases : 1. If he discontinues or withdraws the action. 526b Judgment. 2. If he fails to appear within one hour after the* sum- mons is returnable, or within one hour after the time to which the trial has been adjourned. 3. If he is nonsuited upon the trial. § 3014. Where a verdict, or the decision of the justice upon a trial without a jury, is rendered in favor of either party, the justice must render judgment against the ad- verse party in' conformity thereto, with costs, except as is otherwise specially prescribed by law. § 3015. Where the plaintiff is nonsuited, or discontinues or withdraws the action; or where judgment is confessed, or a verdict is rendered ; or where, at the close of the trial, the defendant is in custody; the justice must forthwith render judgment, and enter it in his docket-book. In every other case, he must render judgment and enter it in his docket-book, within four days after the cause has been finally submitted to him. § 3016. Where a verdict, or the decision of the justice upon a trial without a jury, is rendered in favor of either party for a sum of money, the prevailing party may remit any portion thereof, and take judgment for the residue. § 3017. A justice of the peace who renders a judgment, except in an action to recover a chattel, must, upon the application of the party in whose favor the judgment was rendered, and payment of the fee therefor, deliver to him a transcript of the judgment. The county clerk of the county in which the judgment was rendered, must, upon the presentation of the transcript, and payment of the fees therefor, indorse thereupon the date of its receipt, file it in his office, and docket the judgment, as of the time of Judgment. 526c the receipt of the transcript, in the book kept by him for that purpose, as prescribed in article third of title first of chapter eleventh of this act. Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly ; except that an execu- tion can be issued thereupon only by the county clerk, as prescribed in section 3043 of this act, and that the judg- ment is not a lien upon, and 1 cannot be enforced against, real property, unless it is for twenty-five dollars or more, exclusive of costs. § 3018. If the action, in which the judgment is rendered, is one of the actions specified in subdivisions first or sec- ond, of section 2895 of this act, or if an order of arrest was granted, aniJ was executed, in a case specified in sub- division third of that section, and, in either case, if the defendant is a male person, the justice mustinsert, in each transcript given by him, as preseribed in the last section, the words, " defendant liable to execution against his per- son "; and a like note must also be made in the docket of the judgment made by the county clerk. § 8019. A justice of the peace, who renders judgment for a chattel, which has been delivered to the unsuccessful party, or for the value thereof, in case a return thereof cannot be had, must, where the value exceeds twenty-five dollars, upon the application of the party in whose favor the judgment was rendered, and payment of the fee there- for, deliver to him a transcript of the judgment, stating the particulars thereof. The county clerk of the county, in which the judgment was rendered, must, upon the pre- sentation of the transcript, and payment of the fees there- for, ihdorse thereupon the date of its receipt, file it in his 526d Judgment. office, and docket the judgment, as of the time of the re- ceipt of the transcript, in the book kept by him for that purpose, as prescribed in article third of title first of chap- ter eleventh of this act, and must also enter in the docket the particulars of the judgment, as stated in the transcript of the justice. Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly; except that an execution can be issued^ thereupon only by the county clerk, as prescribed in section 3043 of this act. § 3020. Where an action is brought against two or more persons, jointly indebted upon contract, and the summons is served upon one or more, but not upon all of them, if the plaintiff recovers judgment, it must be entered against all, in the mode prescribed in section 1932 of this act. Sections 1933, 1934 and 1935 of this act apply to such a judgment, and to each execution issued thereupon ; ex- cept that, where the justice or the county clerk issues the execution, he must make the indorsement prescribed in section 1934 of this act. §3021. The justice who gives a transcript of a judg- ment, taken as prescribed in the last section, must dis- tinctly designate, in the transcript, each defendant who was not summoned. Thereupon the clerk, who dockets the judgment, must make in the docket, under or oppo- site the name of each defendant not summoned, an entry, as prescribed in section 1936 of thiB act; and the provi- sions of that section apply to the judgment so docketed. An action, upon a judgment so docketed, can be main- Judgment. 526e tained in a justice's court against the defendant's sum- moned, only in a like case, and with like effect, as if they were the only defendants in the original action. An ac- tion may be maintained against the defendants not sum- moned, as prescribed in section 1937 of this act, in any court having jurisdiction thereof;- and the plaintiff is enti- tled to costs, upon recovering final judgment therein, where the sum remaining unpaid is twenty-five dollars or more. § 3022. The clerk, with whom a transcript is given by a justice is filed, as prescribed in either of the foregoing sections of this title, must furnish to any person applying therefor, and paying the fees allowed by law, one or more transcripts of the docket of the judgment, attested by his signature. A county clerk, to whom such a transcript is presented, must, upon payment of the fees therefor, im- mediately file it, and docket the judgment in the appro- priate docket-book kept in his office, in like manner as the judgment was docketed by the first county clerk. The judgment, when docketed as prescribed in this section, has the like effect, with respect to the enforcement there- of, or any proceedings thereunder, or by virtue thereof, in the county where it was so docketed, as if it was ren- dered by a justice of the peace o± that county, and dock- eted upon filing his transcript ; except that where an ap- plication for leave to issue an execution is necessary, it must be made to the county court of the county where the judgment was rendered. 526f Judgment. § 3023. A justice of the peace, whose term of office has expired, may make a transcript of a judgment rendered by him, as prescribed in either of the foregoing sections of this title. Costs. 526g Costs. § 3074. Except as otherwise specially prescribed by law a party who recovers judgment in an action in a justice's court, is entitled to costs ; which must be included in the judgment. Costs consist of the fees, allowed by law, for services necessarily rendered in the action, at the request of the party entitled to costs, or paid by him, as prescribed by law ; and of such other expenses, as a party is entitled to include in his costs, by express provision of law. § 3075. In either of the following cases, costs shall not be awarded to either party, but each party must pay his own costs : 1. Where the action is discontinued by the absence of the justice for more than one hour, after the summons is returnable, or after the time to which the trial has been adjourned. 2. "Where the justice is disqualified, for a reason speci- fied in section 46 of this act. 8. Where the action is discontinued, upon the ground that the defendant is an infant, for whom a guardian ad litem has not been appointed. 526h Costs. 4. In an action to recover one or more chattels, where the plaintiff recovers a chattel, or part of a chattel, or the value thereof, and the defendant also recovers a chattel, orpartof a chattel, which has been replevied and delivered to the plaintiff, or the value thereof. The plaintiff is en- titled to costs, where both parties recover, as specified in this subdivision, unless the chattel, for which the defend- ant recovers, has been replevied and delivered to the plaintiff. § 3076. The sum to be awarded, as costs, to the prevail- ing party, except where it is otherwise specially prescribed by law, is limited as follows : 1. It cannot exceed ten dollars, besides the fees of wit- nesses, where upon the trial of an issue of fact or of law, either party recovers damages to the amount of fifty dollars or more, or one or more chattels, the value of which, as fixed, together with the damages, if any, amounts to fifty dollars or more; or, where, if the defendant recovers judgment, the sum, for which the plantiff demanded judg- ment, was fifty dollars, or more, or the value of all the chattels, to recover which the action was brought, was stated in the complaint at fifty dollars or more. 2. In every other case, it cannot exceed five dollars, be- sides the fees of witnesses, attending from another county. But the prevailing party is entitled, in addition to the sums specified in this section, to' the fees and expenses allowed by law, for a commission issued to examine a witness, not residing in the county, or in an adjoining county; and for each adjournment, exceeding one, which Costs. 526i was' granted upon the application of the party, against whom the judgment is rendered. § 3077. Where judgment is rendered upon the trial of a demurrer, the costs of the trial must be included there- in ; otherwise costs are not allowed upon the trial of a demurrer. § 3078. Where a justice renders a judgment, he must specify, in his docket-book, the items of costs, which were allowed by him. Before any item of costs is thus allowed other than a fee to the justice, or to a juror or witness who attended, or to a constable who has certified the amouut of his fee, upon a paper filed with the justice, the party must show, by his oath, or that of his attorney, to the satisfaction of the justice, that the item was actually and legally paid or incurred. § 3079. Increased costs must be awarded in favor of the defendant, in an action in a justice's court, in a case, and increased at the rate, specified in section 3258 of this act. § 3080. In an action against two or more defendants, not united in interest, who make separate defences by separate answers, if the plaintiff fails to recover judgment against all, the justice must award costs to those who have judgment in their favor. § 3081. Where a justice includes in a judgment greater amount of costs than is allowed by law, or an i a an im- 526j Costs. proper item of costs or fees, and the same is collected ; the person from whom it was collected may, notwith- standing the judgment, recover from the justice who has received it the amount thereof, with interest. Or the Costs. 527 Of the Costs. The judgment having been determined en in the mind of the Justice, the next subject to be considered will be the costs of the suit. It is provided by a recent statute, (see Laws 1866,) that " whenever a judgment shall be rendered in a court of a Justice of the Peace, iu civil actions, it shall be with the costs of suit ; but the whole amount of the items of such costs to be included in the entry of judgment, except charges for the attendance of witnesses from another county, shall not in any case exceed the sum of five dollars, unless such suit shall be adjourned more than once at the re- quest and on the motion of the party against whom judgment shall be finally rendered, and in such case the costs of such additional adjournment may be included in the entry of judgment ; and in all cases in which an issue is joined, and trial had, and the damages recovered shall exceed fifty dol- lars, or the plaintiff shall claim, in his complaint, a sum exceedingfifty dollars, and the defendant shall recover judg- ment, the prevailing party shall be entitled to costs not ex- ceeding the sum of ten dollars, exclusive of witnesses fees. 1 It will be perceived by the foregoing section of the laws of 1866, that the costs which may be included in the judg- ment have been materially increased, especially when the damages recovered, or claimed in the complaint, exceed fifty dollars. Iu those cases the Justice may tax, in the judgment to the prevailing^ party, his costs, not exceeding ten dollars, exclusive of witnesses fees, whether residing iu the county or elsewhere. It has often been decided by the Supreme Court that the costs voluntarily made by the party against whom the judg- ment is rendered must not be included in the judgment. 1 Thus when a judgment is rendered in favor of the plain- tiff, the Justice should not include in the judgment the de- * Laws of 1866, Chap. 692, § %. 528 Justices' Fees in Civil Cases. fendant's costs, for subpoenas, swearing his (defendant's) witnesses, adjournments obtained on his motion, &c* And on the other hand, the Justice must not include in a judgment in favor of the defendant, the costs of the sum- mons, constable's fees, or any other costs which the plain- tiff has voluntarily made in the prosecution of the suit. 3 Although the costs of the successful party are always to be taxed in the judgment he obtains, yet if the Justice should, through mistake, or otherwise, erronously tax in items wl ich do not properly belong in the judgment, the judgment cannot, for that reason, be reversed, as will appear by the following section of the statute : " No judgment shall be reversed, merely for the omission or misrecital of an oath, nor on account of any/ees having been improperly allowed by a Justice." * Justices' Fees in Civil Cases. By an act of the Legislature passed April 20, 1866, chap. 692, Justices of the Peace in this State are allowed and en- titled to receive the fees hereinafter stated for the following named services in civil cases : $ cts. For a summons, ..:.,.. 25 For awarrant, attachment, or transcript of judgment, eaoh, 25 For adjournment, 25 For subpcena.includingallthenamesinsertedtherein, 25 For administering an oath, 10 For filing each paper necessary to be filed, . . 5 For swearing a jury, 25 For swearing a constable to attend a jury, . . 10 1 13 John. 350, 460. " 15 John. 195. ' 14 John. 369. '2E.S. 185, § 184, 19 Wend. 351. Justices' Fees in Civil Cases. 529 I cts. For trial of an issue of fact, in case of no appearance by the defendant, . . . . .25 And in case of appearance and answer, . . 75 For entering judgment 25 For taking affidavit, 10 For drawing any bond, 25 For receiving and entering verdict of jury, . . 25 For venire, ........ 25 For drawing affidavits, applications and notices in cases required by law, per folio 05 For execution 25 For renewal of execution, 25 For making return to an appeal, . . . 2 00 For warrant for the apprehension of any person charged with any violation of the laws concerning the in- ternal police of the State, ..... 25 For Avarrant for the apprehension of any person charged with being the father of a bastard, ... 50 For indorsing any warrant issued from another county, 25 For summons for any offence relating to the internal police of the State, or in any case of any special proceedings to recover the possession of lands or otherwise, . . . . . . . .25 For drawing a record of conviction for contempt, or other special cases, 50 For an execution upon any such conviction, . . 25 For warrant of commitment for any cause. . . 25 For a precept to summons a jury in special cases, . 50 For swearing such jury, 25 For hearing the matter concerning which such jury is summoned, ......•• 50 For receiving and entering the verdict of such jury, 25 For a view of premises alleged to be deserted, . . 50 For hearin" - an application for a commission to examine witnesses, ....-•■• 50 For every order for such commission and attending, settling and certifying interrogatories, ... 50 For taking deposition of witnesses upon an order or Gg 530 Justices' Fees in Criminal Cases. $ cts. commission issued by some court in this or a foreign state or territory, per folio, ..... 10 For making the necessary return and certificates thereto, 50 For indorsement on affidavit in an action to l-ecover pos- session of personal property, . . . .25 Justices' Fees in Criminal Cases. Justices of the Peace in the State shall hereafter be allowed and entitled to receive the fees hereinafter stated for the following named services in criminal cases, viz i 1 $ cts. For administering an oath, ..... 10 For a warrant, (but no Justice of the Peace shall be obliged to issue a warrant on any complaint for assault and battery unless the person making such complaint shall pay the fee therefor,) ... 25 For a bond or recognizance, .... 25 For a subpoena, including all the names inserted therein , 25 For a commitment for want of bail, .... 25 For an examination of the accused, when such examina- tion is required by law, for each day necessarily spent, 1 00 For every necessary adjournment of the hearing or ex- amination, ........ 25 Fees of Courts of Special Sessions." For a venire, 25 For swearing each witness on trial, . . . 10 For swearing a jury, ...... 25 For swearing a constable to attend a jury, . . 10 For subpoena, including all the names inserted therein, 25 For atrial fee, per day during the necessary and actual continuance of the trial, . . . . . 1 00 For receiving and entering verdict of jury, . - 25 For entering the sentence of the court, ... 25 1 Session Laws, 1866, chap. 692. 2 Session Laws, 1866, § 4. Constable's Fees in Civil Actions. 531 hov warrant of commitment on sentence, . 25 For record of conviction and filing the same, . ' . 75 But all such charges, in any one case, shall not exceed nve dollars, unless such court continue more than one day "■ such case the costs of each additional day may be added thereto. For return to any writ of certiorari, to be paid by the cou »ty- $2 00 h or services when associated with another Justice of the Peace, in cases of bastardy, for each day actu- ally and necessarily spent, . . . . 2 00 ^ § 5. Whenever a conviction shall be had in any court of Special Sessions for any criminal offence, a record thereof shall be made by such court, and filed in the office of the clerk of the county whore such conviction shall be had, within thirty days of the time of such conviction, and when any fine imposed by such court shall be paid to said court, the same shall be paid to the treasurer of the said county within thirty days after the receipt thereof, and any neglect or refusal to file such conviction or pay over said money within the period aforesaid shall be deemed a misdemeanor. Constable's Fees in Civil Actions. 1 Constables shall hereafter be allowed for services rendered in civil actions the following fees : lets. For serving a warrant or summons, .... 25 For a copy of summons on request of defendant, or left at defendant's dwelling in his absence, . . 15 For serving an attachment, 75 For copy of the attachment and inventory of the prop- erty seized, left at the last residence of the defend- ant, 75 For serving an execution, for every dollar collected to the amount of fifty dollars 05 1 Laws of 1869, chap. 820. 532 Constables Fees in Criminal Cases. $ cts. For every dollar collected over fifty dollars, . . 2£ For every mile traveled, (going and returning,) to serve a summons, warrant, attachment or execution, the distance to be computed from the place of the abode of the defendant, or where he shall be found, to the place where the precept is returnable, - 10 For notifying plaintiff of the service of a warrant, . 25 For going to plaintiff's residence, or where he shall be found, to serve such notice, for each mile traveled, going and returning, ..... 10 For subpoenaing witnesses, not exceeding four, . . 25 For summoning a jury, ..... 75 For summoning a jury to assess damages in proceed- ings relative to highways, . . . . 2 00 For serving affidavit, notice and summons in action to recover possession of personal property, . . 50 For a copy of such affidavit, notice and summons left with defendant, his agent, or at the last place of abode of the defendant 50 For every mile traveled, (going and returning,) to serve such affidavit, notice and summons, the dis- tance to be computed from the place where the pre- cept is returnable to the place of abode of the de- fendant, or where he shall be found, ... 10 For taking charge of a jury during their deliberations, 50 Constables' Fees in Special Proceedings. For serving a summons, ...... 25 For serving a warrant, ..... 50 For arresting and committing any person pursuant to process, . , . . . . . 1 00 For every mile traveled, (going and returning,) in each case. ........ 10 Constable's Fees in Criminal Cases. 1 Constables shall hereafter be allowed the fees hereinafter stated for the following services in criminal cases : 1 Laws of 1809, chap. 820, § 8. Form of Affidavit. 533 . t cts. * or serving a warrant, . 7* For every mile traveled, (going and returning,) . 10 For taking defendant into custody on a mittimus, . 25 For every mile traveled in taking the prisoner to jail, (going and returning,) 10 For taking charge of a jury during their deliberations, 50 For attending any court pursuant to a notice from the sheriff for that purpose, for each day, . . . 2 00 And for each mile traveled in going to and returning from such court 5 Which fees shall be chargeable to the county and shall be paid by the treasurer thereof on the production of the cer- tificate of the clerk, specifying the number of days and dis- tance traveled. To entitle any constable or other officer to the increased or additional travel fees, provided for in this act, such consta- ble or officer shall show by affidavit that such travel was necessary on the process on which it was charged, that no more miles are charged for than was actually and in good faith traveled on the execution of such process, and that such constable or officer at that time had no other official or private business on such traveled route, and that the charge for going and returning was made only upon one process, which process shall be attached to or described in such affi- davit, and such additional or increased travel fees shall not be allowed try any court or auditing board, unless such court or auditing board shall be satisfied that the miles charged were actually and necessarily traveled on the process named, and ou that process only. 1 Form of Affidavit. County, ss: being duly sworn, says that he traveled miles, going and returning, to serve the within process, the distance being computed from the place of the abode of the defendant , or where he I Laws of 1869, chap. 820, § 2. 534 Witnesses' Fees. w found to the place where the said process is return- able ; that such travel was necessary on such process ; that no more miles are charged for than were actually and in good faith traveled in the execution of such process, and that the deponent at the time had no other private or official business on such traveled route, and that the charge for going and returning was made only upon one (the within) process. Sworn to before me, this ) day of * 187 . J Justice of the Peace. Jurors' Fees, in Civil Cases. § 9. Jurors shall hereafter be allowed the fees hereinafter stated for the services rendered in Justices' Courts : lets. For attending to serve as Juror, although not sworn, 10 For attending and trying a cause, ... 25 Witnesses' Fees. § 10. Witnesses shall hereafter be allowed the fees herein- after stated for the following named services : For attend- ing before a Justice of the Peace in a Justices' Court, or before a Commissioner appointed by a Justice of the Peace, or before a Justice of the Peace taking depositions to be used in Courts in other States, twenty-five cents for each days actual attendance. §11. All acts or parts of acts inconsistent with this act are hereby repealed, except such as are locally applicable to any of the cities or incorporated villages of this State. § 229. The same fees, and no others, shall be allowed to sheriffs, for serving executions issued by the clerk of the court of Common Pleas, (now County Court,) upon the judg- ment of a Justice, as are herein allowed to constables in like cases. § 230. If judgment be rendered by any Justice for a greater amount of costs than is allowed by law, or for any Witnesses' Fees. 534a item of coBts or fees, improperly, and the same be collected , the person paying the same, may, notwithstanding such judg- ment, recover of the party who shall have received such cost or fees, the amount thereof, with interest. 535 Constable's Fees for Services. Constable's Fees for Services. In the foregoing Special Proceedings, not provided in the Bill of Fees relating to Proceedings in the Justices' Court. And for any services not herein provided for, which may be rendered by a constable, the same fees as are allowed by law to sheriffs for similar services ; among which are the fol- lowing : Putting any person entitled, into the possession of prem- ises, and removing the tenant, one dollar and twenty-five cents; (and the same traveling fees as upon an execution ;)' Summoning a jury, to try the titleto any personal prop- erty, attending such jury, &c, one dollar and fifty cents; Summoning a jury, pursuant to any preceptor summons of any officer in any special proceedings, one dollar; and for attending such jury, when required, fifty cents. A constable is not entitled to fees for traveling to serve a criminal warrant, unless the service is actually made, though the party sought to be arrested cannot be found. It seems the rnle is universal that an officer is not entitled to fees for traveling to serve process, unless the service is made. 2 1 2 R. S., 537. 2 Exparte Wyles, 1 Denio,685, Beards. ley, J. Amount of fees. 535a § 3322. A justice of the peace is entitled, for the services specified in this section, to the following fees : 1. In an action brought before a justice of the peace. For a summons, twenty-five cents. For an order of arrest twenty-five cents. For a warrant of attachment, twenty-five cents. For a requisition in an action for a chattel, twenty-five cents. For a subpoena, including all the names inserted therein, twenty-five cents. For the acknowledgment of a power of attorney, twenty- five cents. For taking an affidavit, or administering an oath, ten cents. For drawing an affidavit, application, or notice, required by statute, five cents for each folio. For drawing a bond or an undertaking, twenty-five cents. For hearing an application for a commission to examine one or more witnesses, fifty cents. For an order for such a commission, and attend, settling, and certifying interrogatories, fifty cents. For hearing an application to discharge a defendant from arrest, or to vacate or modify a warrant of attachment, or increase the plaintiff's security thereupon, fifty cents. For an adjournment, except where it is made by the justice upon his own motion, twenty-five cents. For a venire, twenty-five cents For empanelling and swearing a jury, twenty-five cents. For hearing the plaintiff's evidence, where the defendant does not appear, twenty -five cents. For the trial of a demurrer, twenty-five cents. For the trial of an issue of fact, where the defendant appears, seventy-five cents. 635b Amount of Fees. For receiving and entering the verdict of a jury, twenty- five cents. For entering judgment, twenty-five cents. For filing each paper required by statue to be filed, five cents. For a transcript oi a judgment, twenty-five cents. For a copy of any paper for which a fee is not expressly prescribed by law, six cents for each folio. For an execution, or the renewal of an execution, twenty-five cents. For making a return upon an appeal from a judgment, two dollars. For an order, directing an action or a special proceeding to be continued before another justice, twenty-five cents. For services when associated with another justice, in any case where a fee therefor is not expressly prescribed by law, for each day actually spent, two dollars. 2. In a special proceeding, or an action not brought before a justice of the peace. For a warrant, in a case where a fee therefor is not expressly prescribed by law, twenty-five cents. For a warrant for the apprehension of a person charged with being the father of a bastard, fifty cents ; for indorsing a warraut, issued from another county, twenty-five cents. For services when associated with another justice, in any case where a fee therefor is not expressly prescribed by law, for each day actually spent, two dollars. For a precept or other mandate, whereby a special pro- ceeding is commenced, in a case where a fee therefor is not specially prescribed by law, twenty-five cents. For aview of real property, in a case where it is required by law, fifty cents. For a warrant of attachment to arrest a delinquent juror or witness, twenty-five cents. For drawing, signing, and depositing with the clerk, a minute or record of conviction of such a juror or witness, Amount of Fees. 535c or of any person for contempt in any case where a fee therefor is not specially prescribed by law, fifty cents. For an execution upon such a conviction before him, twenty-five cents. For drawing, copying, and certifying a bond, an under- taking, a recognizance, or other written security, and filing the same with the county clerk, or other officer with whom it must be filed, twenty-five cents. For a warrant of commitment for any cause, twenty- five cents. For a subpoena, including all the names inserted therein, twenty-five cents. For a precept to notify a jury, fifty cents. • For empanelling and swearing a jury, twenty-five cents; except in proceedings to alter or lay out a highway, in which case he is entitled to two dollars For hearing the matter, couceriug which a jury is called, fifty cents. For receiving and entering the verdict of the jury, and the order, if any, thereupon, twenty-five cents. For any service for which a fee is not expressly allowed by this subdivision, and for which, if rendered in an action before a justice, a fee is allowed by the first subdivision of this section, the fee allowed in such an action for the same service. For taking the deposition of a witness, upon an order made, or commission issued, by a court of record of the state, or a court in another state or territory, or a foreign country, ten cents for each folio. For making the necessary return and certificate thereto, fifty cents. For taking an affidavit or administering an oath, ten cents. § 3823. A constable is entitled, for the services specified in this eectiou, to the following fees : 535d Amount op Fees. 1. In an action brought before a justice of the peace, or in a justices' court of a city. For serving a summons, twenty-five cents. For serving a summons and executing an order of arrest, one dollar. For serving a summons and levying a warrant of attach- ment, one dollar. For serving a summons and- affidavit, and executing a requisition, in an action for a chattel, one dollar. For serving an order, directing the action to be continued before a justice, other than the one before whom it is pend- ing, and for attending before the latter, fifty cents, and fifty cents in addition if he so attends with a person in his custody. For collecting money by virtue of an execution, for every dollar collected, to the amount of fifty dollars, five cents ; for every doller collected over fifty dollars, two and one- half cents. Where a judgment or an execution is settled after a levy, the constable is entitled to poundage upon the sum at which the settlement is made, not exceeding the value of the property levied upou. For each mile necessarily travelled, going and returning, to serve a summons or to serve or excute any other mandate, except a venire, the distance to be computed from the place of abode of the person served, or the place where it is served, to the place where it is returnable, ten cents ; but where two or more mandates in one action are served or executed upon one journey, or where a mandate is served upon or executed against two or more persons in one action, he is entitled, in all, to only ten cents for each mile necessarily travelled. For notifying the plaintiff of the execution of an order of arrest, twenty-five cents ; and for going to the plaintiff's residence, or, if he is found elsewhere, to the place where he is found, to serve such a notice, for each mile travelled, going and returning, ten cents. Amount of Fees. 535e For subpoenaing each witness, not exceeding four, twenty-five cents. For notifying the jurors to attend a trial, seventy-five cents. For taking charge of a jury during their deliberations, fifty cents. Where witnesses, not exceeding four, are subpoenaed by any person other than a constable, the fee therefor is ten cents each. 2. In a special proceeding : For notifying jurors to attend to assess damages, in pro- ceedings relating to highways, two dollars. For notifying jurors to attend in any other ease, unless a fee therefor \a specially prescribed by law, for each person notified, ten cents ; and for each mile actually and necess- arily travelled, going from and returning to his place of residence, ten cents. For serving a precept or other mandate, by which the special proceeding is commenced, twenty-five cents. For serving a warrant, in any case where fee therefor is not specially prescribed by law, fifty cents. For serving an order, directing the special proceeding to be continued before a justice other than the one before whom it is pending, and for attending before the latter, fifty cents, and fifty cents in addition if he so attends with a person in his custody. For arresting and commiting any person, pursuant to process, one dollar. For subpoenaing each witness, not exceeding four, twenty-five cents. 535f Amount of Fees. For each mile necessarily travelled, going and returning, to serve or execute it mandate, the distance to be computed from the place where it is served or executed, to the place where it is returnable, unless a different rate of travel fees upon the service or execution thereof is specially prescribed by statue, ten cents. Where two or more mandates are served or executed in one special proceeding, the limitation upon the amount of travel fees specified in the last preced- ing subdivision applies. § 3324. A constable, who charges any travelling fees, must show, by affidavit, that the travel was necessary to perform the service with respect to which it is charged ; that no more miles are charged for, than were actually and in good faith travelled for that purpose ; that he had at the time no other official or private buisuess upon the route so travelled ; and that the travelling fees are charged upon one mandate only, which must be attached to or described in the affidavit. The justice taxing the fees must be satisfied that the miles charged for were actually and necessarily travelled, as stated in the affidavit. § 3325. A party recovering costs in an action before a justice of the peace, in whose behalf a commission has been issued, and who introduces in evidence a deposition taken thereunder, is entitled to recover his actual disbursements thereupon, not exceeding the following- sums: commis- sioner's fees for taking and returning testimony, one dollar; each subpeena issued, or oath adminstered, by the commis- sioner, six cents ; expense of serving each subpoena, twenty- five cents ; each witness's fees for each day's attendance before the commissioner, twenty-five cents; postage for sending and returning the commission and papers annexed thereto, one dollar. § 3326. Except as otherwise specially prescribed by law, Amount of Fees. 535g a person, notified to attend as a juror, is entitled to twenty- five cents, for attending and serving, upon the trial of an action or the hearing of a special proceeding, before a justice of the peace; and to ten cents for attending to serve, where he is not sworn. § 3327. A witness is entitled to twenty-five cents, for each day's actual attendance, before a justice of the peace, in an action or a special proceeding, or before a commis- sioner appointed by a justice of the peace, or before a justice of the peace taking a deposition to be used in a court, not of record, of another state, or a territory of the United States. § 3328. A justice of the peace, or a constable, juror, or witness, before a justice of the peace, is not obliged to render any service specified in this title, without the previous payment or tender of his fee therefor. § 3329. In an action before a justice of the peace, if any services are rendered for a party, and he neglects to pay the fees allowed therefor by law, the other party may pay those fees, and the amount thereof must be taxed as part of his costs, if he recovers costs. § 3330. The allowance of a fee, by this title, does no apply to a case, where special provision is otherwise made by statute for compensation for a particular service. § 3331. "Where an officer has, when his title takes effect, commenced the performance of a service, for which a fee is allowed by the statutes heretofore inforce, he isentitled to the fee so allowed, for the completion of that service, and he is not entitled to the fee for the same, or a corresponding service, allowed by this title. § 3332. Except as otherwise expressly prescribed therein, 535h Amount of Fkes. this title does not apply to a service rendered in a criminal action or special proceeding, in a court, or before an officer. Executions. 535i Executions. § 3024. At any time within five years after entry of a judgment, the justice of the peace who rendered it, being in office, may issue an execution thereupon, unless it has been docketed in the county clerk's office. § 3025. An execution, issued by a justice, must be di- rected generally to any constable of the same county. It must intelligibly describe the judgment, stating the names of the parties in whose favor, and^against whom, the time when, and the name of the justice by whom, the judgment was rendered ; and it must be made returnable to the jus- tice, within sixty days after its date. § 3026. An execution, issued upon a judgment for a sum of money, must specify, in the body thereof, the sum recovered, and the sum actually due upon the judgmeut at the date of the execution ; and, except in a case where special provision is otherwise made by law, it must, sub- stantially, require the constable to satisfy the judgment, together with his fees, out of the personal property of the judgment debtor within the county, not exempt from levy and sale by virtue of an execution; and to bring the money before the justice, by the return day of the execu- tion, to be rendered by the justice, to the party who re- covered the judgment. If the judgment was recovered against a male person, in either of the actions specified in subdivision first or second of section 2895 of this act; or, if an order of arrest was granted, and was executed, in a case specified in subdivision third of that section, the exe- cution must also command the constable, if sufficient per- sonal property cannot be found to satisfy the judgment, to arrest the judgment debtor, and to convey him to the jail of the county, there to remain until he pays the judg- 535j Executions. ment, or is discharged according to law. If the judgment was rendered iu an action to recover a penalty or forfeit- ure given by a statute of the State, the justice must in- dorse upon the execution a reference to the statute, as pre- scribed in section 189-7 of this act, with respect to a copy , of the summons. § 3027. After the return, wholly or partly unsatisfied, of an execution, issued by a justice of the peace, he may, from time to time, within five years after the judgment was rendered, issued a new execution, or renew the former execution. An execution is renewed by a written in- dorsement thereupon to that effect, signed by the justice, and dated upon the day when it is made. If part of the execution has been satisfied, the indorsement must state the sum remaining due, Each indorsement renews the execution for sixty days from the date thereof. A juttice whose term of office has expired may thus issue or renew an execution. § 3028. The same personal property is exempt from levy and sale, by virtue of an execution issued by a justice of the peace, which is exempt from levy and sale, by vir- tue of an execution issued out of the supreme court, and in the like cases, and under the same circumstances, as prescribed in sections 1389. 1390, 1391, 1392, 1393 and 1394 of this act, and the other special provisions of law, relating to such an exemption. § 3029. A constable, who takes personal property into his custody, by virtue of an execution, must indorse upon the execution the time of levying upon it. He must im- mediately post conspicuously, in at least three public places of the city or town, in which the property was taken, written or printed notices, signed by him, describing the property, and specifying the place, within the same city or Executions. 535k town, where, and the time, not less than six days after the posting, when, it will be exposed for sale. § 3030. The provisions 01 sections 1384, 1385, 1386, 1387, 1405, 1409, 1410, 1411, 1412 and 1428 of this act, substituting the constable for the sheriff, apply to and govern the levy upon and sale of personal property, by virtue of an execution issued by a justice of the peace ; except where a different rule is prescribed in this act. § 3031. The constable must return the execution to the justice, and pay to him the amount of the judgment, with interest, or so much thereof, as he has collected ; return- ing the surplus, if any, to the person from whose property it was collected. § 3032. For want of sufficient personal property, whereon to levy, the constable must, if the execution requires it, arrest the judgment debtor, and convey him to the jail of the county. The keeper of the jail must there- upon keep the judgment debtor in custody, in all respects as if the execution was issued out of the supreme court, until the judgment and the fees of the constable are paid ; or until the judgment debtor is thence discharged, in due course of law ; except that if the execution has an indorse- ment, showing that the judgment was rendered in an action for a penalty or forfeiture, given by a statute of the State, the sheriff shall not admit the judgment debtor to the liberties of the jail. § 3033. If the person so committed to jail has a family within the State, for which he provides, he must be dis- charged, after remaining in custody either with or without being admitted to the jail liberties thirty days; otherwise he must be discharged after so remaining sixty days. § 3034. In order to procure a discharge, as prescribed in the last section, the prisoner must make, and deliver to the sheriff or jailer, an affidavit, stating the facts which 5351 Executions. entitle him thereto, according to the provisions of that sec- tion. Upon receiving such an affidavit, the sheriff or jailer must forthwith discharge the prisoner from his cus- tody. He must thereupon deliver the affidavit to the clerk of the county, who must file it in his office, without fee. § 3035. A sheriff or jailor, who refuses to discharge the prisoner, upon receiving such an affidavit, forfeits twenty- five dollars for each day, during which he detains the prisoner; to be recovered by the latter, in addition to any damages, which he sustains by reason of the false im- prisonment. § 3036. The receipt of such an affidavit is a defense, to an action brought against the sheriff or jailer, by reason of the prisoner's discharge. § 3037. Notwithstanding the discharge of a judgment debtor, as prescribed in the last four sections, the judg- ment remains valid as against his property; and a new execution may be issued accordingly, as if he had not been imprisoned. § 3038. In an action for a chattel, the possession ot which has not been delivered to the prevailing party, an execution, for the delivery of the possession thereof to him, as well as for any damages recovered by him, may be issued by the justice; unless the judgment has been docketed in the county clerk's office, as prescribed in title sixth of this chapter. It must be to the same effect, and executed in the same manner, as a like execution issued upon a judgment rendered in the supreme court; except that it must be directed generally to any constable of the county; and that the direction to satisfy a sum of money, out of the property of the judgment debtor, must be in the form prescribed in this title for a like direction, where an exe- Executions. 535m cution is issued by a justice of the peace, upon a judgment for a sum of money. § 3039. If a constable fails to return an execution within five days after the return day thereof, the party in whose favor it was issued, may recover, in an action against the constable, the amount of the execution, if it was issued upon a judgment for a sum of money ; or if it was for the delivery of the possession of a chattel, the value of the chattel, as specified in the judgment, together with the damages and costs awarded thereby; and, in either case, with interest from the time when the judgment was ren. dered. § 3040. A constable shall not levy upon or sell property, or arrest a defendant, or take possession of a chattel, by virtue of an execution, after the time limited therein for its return, unless the execution ' has been renewed ; nor shall he do any act under a renewed execution, after the expiration of the time for which it has been renewed. § 3041. Where money, collected by a constable upon an execution, is not paid over by him according to law, any person entitled thereto may maintain an action in his own name, upon the instrument of security given by the con- stable and his sureties ; and may recover therein the sum so collected, with interest from the time when it was col- lected. § 3042. A constable, to whom an execution is delivered, whose term of office expires on or before the return day thereof, must proceed thereupon in the same manner, as if his term of office had not expired ; and he and his sure- ties are liable for any neglect of duty, with respect to the execution ; or for money collected thereunder, or for dam- ages sustained by reason of any act done by the constable, touching the execution, in the same manner, and to the same extent, as if his term of office had not expired. 535a Executions. § 3043. Where a judgment, rendered by a justice of the peace, has been docketed with the county clerk, upon the filing either of a transcript from the justice's docket, or of a transcript from the clerk's docket of another county, the execution, to be issued thereupon by the county clerk, must be iD the same form, and executed in the same man- ner, as an execution issued upon a judgment of the county court ; except as otherwise prescibed in section 1367 of this act ; and except, also, that, where the judgment is for a sum less than twenty-five dollors, exclusive of costs, the direction to satisfy the judgment out of the real property of thejudgment debtor must be omitted. In that case the provisions of this act, relating to the satisfaction of an ex- ecution out of the judgment debtor's real property, are not applicable thereto. k