|
Reports of Cases in Law and
Equity in the Supreme Court of the State of New York.
Vol. XXVII. By Oliver Lorenzo
Barbour; Albany: W. C. Little & Co. 1859. |
Hall vs.
Thomas (pgs. 55-58)
Where the land of M. bad been sold under a judgment and execution
in favor of B., and been bid
off by H. ; and T. as the assignee and owner of a subsequent judgment against M., for the
purpose of redeeming the premises from the said sale, presented to, and
left with, the sheriff, as evidence of his title to the junior judgment, his
own affidavit that he was owner and assignee thereof, and a paper purporting
to be an assignment of the judgment, from the plaintiffs therein, to
him, which paper was not verified by the affidavit of any one ; and
there was nothing in T.'s affidavit by which the paper was identified as the
instrument under which he claimed to own, and hold, the judgment ;
Held that this was not the evidence required by the statute, from a creditor
coming to redeem ; and that the sheriff had no power to convey the title to the
premises, upon it, to T.
THIS was an action of ejectment
brought co recover possession of certain lands situate in Steuben county.
The cause was referred to a
referee, who found the following facts : On the 8th of August, 1850, one
Flavel W. Morrow was owner
of the premises in question, and on that day a judgment was docketed in Steuben county in
favor of one George A. Bush,
against said Morrow and others, for $379.69. On the 12th of August, 1850, an
execution was issued on said judgment to the sheriff of
Steuben county, by virtue of which the sheriff sold the
premises to the plaintiff on the 28th of February, 1851. On the
23d of November, 1850, Thomas J. Boyd and Stephen Paul
recovered a judgment against
said Morrow for $99.25, which was docketed in said county on the 27th of November,
1850, which thereby became and was a lien upon said
premises. The defendant being the owner of said judgment by
assignment, at the proper time paid to the sheriff of said
county, the sum necessary to redeem said premises and acquire
the rights of the purchaser, and at the same time presented
to, and left with said sheriff, a copy of the docket of said last
mentioned judgment, duly certified, with the original
assignment of said judgment to him, with the affidavits
attached, a copy of which affidavit was set out in the report of the
referee, and was as follows :
[Title of cause.]
"Judgment rendered against the defendant and in favor of the plaintiffs in the above
entitled action, in the city and county of New York, for $99.25,
and docketed there and perfected November 23. 1850, and
docketed here in Steuben county, November 27, 1850.
State of New York, Steuben county, ss. Charles D. Thomas being duly sworn, says
that he is the owner and holder of the above mentioned
judgment, being sold and assigned to him on the 21st day of May,
1852, by Thomas J. Boyd and
Stephen Paul, the above named plaintiffs in the above mentioned action and
judgment, creditors of Flavel W. Morrow, the above named
defendant, and named in the copy of the judgment hereunto annexed
; and that the true sum due
on said judgment at the time of claiming the right to acquire the title of Samuel Hall,
the original purchaser at the sheriff's sale of the real
estate of Flavel W. Morrow, is ninety-nine dollars and
twenty-five cents, with interest from the 23d day of November,
1850. CHARLES D. THOMAS."
Sworn to, May 26, 1852.
Afterwards, and on the 1st of June, 1852, the said sheriff executed and delivered to the
defendant a deed of said premises pursuant to said sale and
redemption, which deed was duly recorded, December 28, 1852, and
under which the defendant claimed title to said premises.
On the 29th of July, 1853, the said sheriff executed and delivered to the
plaintiff a deed of the same
premises, upon ttie same sale, under which last mentioned deed the
plaintiff claimed title to said premises. Upon these facts, the
referee found and held as a
conclusion of law, that the
said affidavit of the defendant was defective in not verifying
the assignment as required by law, and that his redemption was
irregular, and he therefore got no title by the sheriff's
deed to him, and for that reason the sheriff's deed subsequently
given to the plaintiff conveyed the title. He therefore reported
that the plaintiff was entitled to recover the possession of the
premises, and damages for the withholding of such possession. From the judgment entered upon that report, the
defendant appealed.
Geo. B. Bradley, for the appellant.
Joseph Herron, for the respondent.
By the Court, JOHNSON, J. The only evidence which the defendant presented to, and left
with, the sheriff, of his title to the judgment under which he
claimed the right to redeem, was his own affidavit that he was
owner, and assignee, and a paper purporting to be an
assignment thereof from the plaintiffs therein to him. This paper was
not verified by the affidavit of any one, and there is nothing
in the defendant's affidavit
by which it is identified as the instrument under which he claims to own, and hold,
the judgment. This, clearly was not sufficient. It is not the
evidence required by the statute, from a creditor coming
to redeem ; and the sheriff had no power to convey the title to
the premises upon it, to the defendant. The statute requires a
true copy of all the assignments necessary to establish the claim,
verified by the affidavit of
the party claiming, or some witness to the assignment. The referee has found, from the
evidence before him on the trial, that the paper purporting
to be an assignment, left with the sheriff, was the original
assignment, by the plaintiffs in the judgment, to the defendant.
But there was no such evidence before the sheriff. The statute
contemplates the exhibition of the evidence of the claimant's
right, under the sanction of
his oath, or the oath of some subscribing witness, so that the purchaser or officer may see
from the papers presented and verified, that the right and
claim are well founded. Had the paper purporting to be an
assignment been verified by the
defendant's affidavit, or
identified as the assignment executed to him, under which he claimed,
it would doubtless have been
equivalent to a verified
copy, and have fulfilled the statutory requisition. The original is the
best evidence, and includes a copy. But the sheriff could not dispense with the verification required by statute. It is an
essential part of the evidence of right, and nothing else can be
substituted for it, by the redeeming creditor. ( Waller
v. Harris, 7 Paige, 167 ; S. C. in error, 20 Wend. 555. The
People v. Covell, 18 id. 598. Butterfteld v. Howe, 19 id. 86.
Ex parte Bank of Monroe, 7
Hill, 177. Silliman v. Wing, Id. 159. The People v. Fleming, 2 Comst. 484.) As
the defendant was not entitled to redeem, upon his papers, he
took nothing by his deed. The deed executed by the sheriff
afterwards, to the plaintiff, vested the title in the latter, and the
action is well brought. The defendant's deed, having been
executed by the sheriff, without any power' or authority to
execute it, was void, as against the plaintiff's deed, and it was not
necessary to have it set aside,
or canceled, by action,
before bringing an action to recover possession of the land. The
judgment must therefore be affirmed.
[MONROE GENERAL TERM, March 1, 1858.
Welles, Smith and Johnson, Justices.]
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The
People vs. Jayne. (pgs.
59-64)
THIS is an action
brought upon a bond executed by the defendant Jayne as principal, and by
the other defendants as
sureties, and was given on the adjournment of an examination in a case of bastardy. The
defendant Jayne was arrested
on a warrant issued by E. P. Mulford, Esq., a justice of the peace of Steuben
county, on a complaint before him, charging said Jayne
with being the father of a child likely to be born a
bastard, of which one Eliza Yost was then pregnant. On the
defendant Jayne's being brought before him, the magistrate
issuing the warrant called to his aid Stephen Aldrich, Esq.,
another magistrate of the same county, and was about to proceed
with the examination, when the defendant applied for an
adjournment. The application was granted by the magistrates,
upon the execution by the defendant of. a bond in the
penalty of six hundred dollars with sufficient surety. The bond
in question was then executed by Jayne as principal, and the
other defendants as sureties. The examination was
thereupon adjourned until
the 5th of May thereafter. On
the adjourned day the parties appeared; the superintendent and
overseer of the poor, by their counsel, and the defendant
Jayne in person and by counsel. The examination was proceeded
with, the witnesses were examined, and the testimony closed. The
counsel on both sides summed
up, and the case was submitted to the justices. The justices took a recess for
tea. During the recess the defendant Jayne, without the leave of the
court, left. After tea, and
in the course of half an hour, the justices came together, and after deliberating
upon the matter, made an order of filiation against the
defendant Jayne, he having been adjudged to be the father of
the child in question. He was called several times by the
justices, after the recess, and before and after the
adjudication, but failed to appear. The justices remained together until
10 o'clock, and then dissolved the court. The next morning the
defendant Jayne, with his sureties, offered to the justices
to surrender Jayne to them. The justices declined doing any
thing in the premises, on the ground that the court organized for the examination had been dissolved, and that they had no
further jurisdiction in the matter. This action was brought
on the bond. It came on to
be tried at the Steuben county circuit in June, 1857. After hearing the testimony his
honor, the judge, ordered a judgment in favor of the
plaintiffs, subject to the opinion of the court, on a case and
exceptions.
John Maynard, for the plaintiffs.
L. B. Van Valkenburgh, for the
defendants.
By the Court, JOHNSON, J. There is no force in the point first raised by the defendants'
counsel, that the complaint does not state facts sufficient to
constitute a cause of .action, if the bond was valid, and all its
conditions binding upon the defendants. But it is also insisted on behalf
of the defendants, that the
justices before whom the defendant Jayne was brought could only take a bond
for his appearance, at the adjourned day, and had no power
or authority to require, or take, as a further condition of
such bond, that he should not depart without leave. This
position cannot be maintained. It would require a construction of
the statute so strict and literal as to defeat its whole object and
intent. The statute, (1 R. S. 644, § 11,) requires the examination
touching the paternity of
the child, and on which an order of filiation can alone be founded, to be made in
the presence of the person so charged or apprehended. The
justices have no authority to make such examination in his
absence, and if they should they clearly could found no valid
order of filiation upon it. Whenever the examination is made,
whether at the time the person charged is first brought
before the magistrate issuing the warrant, or at the adjourned
day, it is to be made in the same manner. And the statute, in
either case, contemplates that such person shall be present
until the final determination of the proceedings. In case there
is no adjournment he is to remain in the custody of the officer during the examination and until he shall be discharged.
(§ 17.) If the examination is adjourned, the justices are to
take a bond for his appearance
at the adjourned day, (§ 12,)
the penalty of which, must be in such a sum as shall be deemed
a full indemnity for the expense of supporting such bastard and
its mother. (§ 16.) The
object ot this plainly was, that in case the person so charged should defeat an
examination, and final order, by
reason of his non-appearance,
or non-attendance at the adjourned day, the public might be fully
indemnified and secured against the support of the child.
The policy of the statute
looks, not so much to finding out who is the father of the child, as it does to
providing for its support, and relieving
the public from the burthen.
And it inquires into and
determines the former, only for the purpose, and as the means, of securing the
latter.
The
bond is intended to secure the appearance and presence of the person charged, at the
adjourned day, as fully as it is secured by the warrant and
arrest, upon an examination without adjournment. It is preposterous,
as it seems to me, to suppose that the object and
intent of the statute would be fulfilled by the momentary
appearance of such person on the adjourned day, even though he
might at once disappear, and remain away, or abscond, as he
should see fit. The statute must receive such construction as
will fulfill its plain object and intention. The obvious
meaning and intention are as much a part of the statute as
though expressed in ever so plain and explicit terms. The
appearance, therefore, before the justices at the adjourned
day, provided for by statute, must be held to mean, not his
temporary appearance merely, but his continued appearance, and
attendance, until the examination and subsequent proceedings are
finally closed. This does no
violence to the language, and gives full effect to the manifest will, of the
legislature. (The People v. Stowell, 2 Denio, 127.) This part of the condition
was, therefore, an essential part of the obligation, and was
binding upon all the defendants. It is entirely clear, from the evidence, that
Jayne departed from the
place where the examination was held, without leave, and went to his home,
which was from a mile and a
half to two miles distant, through the woods, and twice that distance by the highway ; and
that he was not at the place of the examination, and did not
answer, when the justices closed their proceedings, although
repeatedly called by them. It also appears clearly and without
any contradiction, that when the evidence upon the examination
was closed, the justices took a recess for tea, and that
Jayne was then informed, by one of them, that he must not
depart, as they intended to return soon, and finish the proceedings
that evening. The justices, on reassembling after tea,
determined from the evidence that Jayne was the putative
father, and made the order of filiation, and Jayne not
appearing, adjourned finally, and without day. They remained in
session awaiting Jayne's return, and deliberating what coarse they
ought to take in the premises, until ten o'clock in
the evening, before finally adjourning. This departure and continued
absence of Jayne, without
leave, was, I think, a clear breach of the condition of the bond. It is perfectly
immaterial, in my judgment, for what purpose, or with what
intent, he left. It is enough that he departed voluntarily, and was
not present to answer, and receive notice of the order when
it was made. It is no answer to say that he intended to return
and did return the next morning. He could not, to suit
his own convenience, compel the magistrates to remain in
session, or to adjourn over until another day. And there is nothing
in the evidence to justify the supposition that the justices
designed to take any advantage of Jayne's temporary absence. It
is quite evident from the
whole testimony that the justices did not know, or suppose, that he intended to return in the
morning or at any other
time. But, however this may be, it does not, as I conceive, affect the question of the
breach, under the circumstances of the absence in this case. It
is clear that he was
not
present, and did not appear, when his bond required him te be there. He was not present, either actually or
constructively; as there can
be no pretense that he intended returning, even if he intended to return at
all, until the next day. The justices had the right to adjourn
as, and when, they did. He had absented himself at his
peril, and could not require the justices to follow him, or to
remain in session until it might suit his convenience to return,
for the purpose of giving him notice of the order they had
made. This breach was in no respect healed or cured by the
return of Jayne, the next morning, to the place, and his offer to
the justices to submit himself to imprisonment in the county
jail upon their warrant, as for a refusal or neglect to
give the bond required by statute, upon notice of an order of
filiation. The justices supposed that, having completed the
examination, and made out the
order, and adjourned without
further day, their power in the premises was at an end; and they
had no right to get together again, either for the purpose of
taking the bond authorized by § 14 of the act, or of issuing
their warrant for a neglect or refusal to give such bond. I am
inclined to the opinion,
however, that they still had
the power to take such bond, or to issue such warrant, if they
had seen fit to exercise it. In performing this duty they did not
act strictly aad technically as a court, but as justices, and
their powers were not spent until they had done all that the
statute authorized them to
do in the case. This
necessarily includes the power on their part to waive a breach of the
bond taken on the adjournment, on behalf of the people. And this
power, I think, they possess, and may exercise, in furtherance
of justice, and of the ultimate remedy contemplated by
the statute. But whether
this be so or not, it is
clear, I think, that they were in no respect bound to exercise it in favor of
the defendants. The latter
had no right to require the magistrates to assume what they regarded as spent, or
doubtful powers, to relieve them from the consequences of the
default of Jayne.
There is more doubt, I think, whether the justices could proceed and determine who was the
father of the child, and make a valid order of filiation, after Jayne had absented
himself. But as this was
after the evidence on the examination was through with, I think the
order was valid. This, however,
is not material, as I view
the case. If it was valid, Jayne was in default in not being there
to receive it, or notice of it, when it was made ; and if it was
invalid it worked no injury to the defendants. The proof that
the order was made, was called out by the defendants.
There was no error in refusing
to receive the evidence of what Jayne's
counsel had told him, in
respect to his right to leave and go home. The advice could not affect the question of
his right to absent himself, nor could his intention to
return, if he entertained it. The evidence allowed from the
justice, Mulford, that he told Jayne
not to leave, as they should
finish the matter that evening, was material upon the issue on
which the case turned. It went clearly to show that Jayne
had departed without leave. But if not material, in no
possible view could it have injured the defendants, as the verdict
was ordered subject to the opinion
of the court, wholly
irrespective of the question of Jayne's intention in departing. And it is
now apparent that Jayne's intention neither aided nor
prevented a breach. On the undisputed facts, therefore, the plaintiffs
are entitled to judgment. There was no disputed question of
fact which was at
all
material, to submit to a jury. The bond being for the appearance of the defendant Jayne, the
judgment must be for the
whole penalty of the bond. (The People v. Tilton, 13 Wend.
597.)
Judgment ordered accordingly.
[MONROE GENERAL TERM, March 1, 1858. Johnson, T, R. Strong
and Smith,
Justices.] |
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McKay vs. Harrower, late
sheriff of Steuben county. (pgs.
463-473)
Where property is
seized by a sheriff by virtue of an attachment, under the code, he must
retain it in his possession until the determination
of the action in
which the attachment was issued; and, if the plaintiff recovers
judgment, until the property
is sold, under an execution issued thereon; unless the judgment is otherwise satisfied,
or unless, in case of perishable goods, &c. he is ordered by the officer who
issued the attachment, to sell the same.
If
he has the goods when a proper execution is presented to him, and
proceeds to sell thereon, it
is all the plaintiff has a right to require of him.
Where the person who was the sheriff when the attachment was issued,
and who executed it, ceases
to be sheriff, by the expiration of his term of office before the plaintiff' obtains his
judgment and issues his execution, the execution should be directed, and
delivered, to the former sheriff, and not to his successor.
The
execution issued, in such a case, should be a special one, directed
to the former sheriff as
such, reciting the issuing of the attachment, and the
taking of the property
thereon, and requiring a sale of that property, by bim. After which it should direct
him to sell the property of the defendant,
generally.
Until a proper execution has been put in his hands, directing a sale of
the property seized, such
former sheriff cannot be placed in default in respect to such property. He is not bound to
deliver the property to his successor in office, to be sold on an execution
directed, and delivered, to the latter ; and cannot be made liable, for a refusal so
to deliver it.
APPEAL from a judgment of nonsuit entered at the Steuben circuit in June,
1857. The complaint stated that on the 26th day of May, 1855, the
plaintiff commenced an action by summons against one
James M. Minier, to recover money due on contract. That on
the same day he caused an
attachment to be issued
against the property of Minier, which was, on the same day, delivered
to the defendant who was then sheriff of the county of
Steuben. That on the same 26th day of May, 1855, the
defendant by L. A. Jones 2d, one of his deputies, did by
virtue of said attachment attach and
take into his custody, of the
property of said Minier, certain articles of personal property,
enumerating them, and alleged in the complaint to be of the
value of $500. That the plaintiff obtained judgment in his action
against Minier, on the 27th
day of May, 1856, for $213.33 damages, and $104.02 costs. That an execution on said judgment, against the property of Minier, was on the
26th May, 1856, duly issued to the sheriff of the county of
Steuben. That said execution was offered to said L. A. Jones
2d, the deputy of said defendant, with a request that he should
satisfy the same out
of
said attached property, which the said deputy refused to do. That said execution was
delivered to Lewis D. Fay, on the 28th day of May, 1856, who
was then sheriff of the county of Steuhen ; that he
received the same, and by virtue of said execution did, by
direction of the plaintiff, demand of the defendant and also of the
said L. A. Jones 2d, the property attached as aforesaid,
for the purpose of satisfying out of the same, the judgment
aforesaid, and the defendant and the said Jones refused to
deliver the said property, or any part thereof, to the said sheriff
Fay. That the said defendant neglected and refused to keep the
property attached as aforesaid to satisfy said
judgment, but suffered the same to be lost or destroyed, so that no
part of said judgment could be made out of the same; that Minier
was at the time of the rendition of the said judgment
and the issuing of said execution, wholly insolvent, and had no
property out of which said
judgment or any part thereof could be satisfied; and said sheriff Fay, on the 25th of July,
1856, returned the execution wholly unsatisfied. The complaint
also alleged that at the
time the attachment was issued, Minier was the owner
of, or had an interest in,
certain real estate in Steuben county, subject to be attached, of the
value of five hundred dollars, which the, defendant and Jones,
his deputy, neglected and refused to attach, by reason of
which the plaintiff has lost the collection of his judgment
against Minier, &c.
The
defendant put in his answer to the complaint, the contents of which it is not
necessary to state, as no question arose upon it, at the trial.
The
cause was tried at the Steuben circuit in June, 1857, before Justice JOHNSON and a
jury, when the plaintiff gave the following evidence, to wit: a
judgment roll, by which it appeared that the plaintiff in this action recovered a
judgment against the said
Minier for $317.34 damages and costs, on the 27th day of May, 1856.
Also a warrant of attachment in due form, issued by a justice
of the supreme court against
the property of said Minier, as an absconding debtor, dated May 25, 1855, in the action
wherein this plaintiff was the plaintiff, and the said
Minier was the defendant, reciting that the application therefor was
accompanied by the affidavit of the plaintiff verifying the
facts and circumstances to entitle the plaintiff to said attachment
according to the provisions of chapter 4, title 7 of the code
of procedure, and showing that the sum of $200.02 was due
from Minier to the plaintiff.
The attachment was directed
to the sheriff of the county of Steuben, and was in the usual
form. Upon the back of said attachment was the following
indorsement, to wit : " I have seized the personal property and
real estate of James M. Minier, the absconding debtor
within named, and have had
the same appraised as by the
annexed schedule and inventory appear. Gr. T. Harrower, by L. A.
Jones deputy." The signature
of said Jones to said indorsement was admitted to be genuine, and that said Jones
was a deputy of the defendant. There was a schedule annexed to
the return to the attachment, containing an inventory of the
property attached, which was
all personal property, and which was appraised by the appraisers therein named,
under oath, at $466.50. Also an execution issued upon the
judgment against Minier, in favor of the plaintiff, dated May
28th, 1856, directed, "To the sheriff of the county of
Steuben," reciting the recovery of the judgment. The mandatory
part of the execution was as
follows : "You are therefore required to satisfy the said judgment out of the personal
property of the defendant, James M. Minier, or, if
sufficient cannot be found, then out of the real property in your
county belonging to the said defendant, James M. Minier, on the 27th day
of May, 1856, or at any time
thereafter, and to return this execution with your proceedings thereon, to the clerk
of the said county where said judgment was filed as aforesaid, within sixty days after the
receipt thereof by you." The
execution was indorsed generally, with a direction to levy the
amount of the judgment, with
interest, fees and poundage. The following indorsements appeared on the execution :
"Received May 28th, 1856, at
9 o'clock A. M. L. D. Fay, sheriff, by E. H. Ames, deputy. Filed July 26th,
1856."
"No property found to satisfy the
within execution, or any
part thereof. L. D. Fay sheriff, by E. H. Ames, deputy. July 26th, 1856."
The
plaintiff also gave evidence showing that the deputy sheriff, Jones, was informed on
behalf of the plaintiff on the same day or the day after the
judgment was entered, that the judgment was perfected, and that
the plaintiff wanted him to take an execution and satisfy the
judgment out of the property attached. That Jones said it was
of no use for him to take an
execution, as the property was all gone ; that none of the attached property was
left, and he could not therefore make any thing on an execution,
and it was useless for him to take it. Soon after, and on
the same or the next day, Jones was again asked to take the
execution and satisfy it out of the property attached, and he
made the same reply as before, refusing to take the execution.
The execution was then delivered to Ames, the deputy
sheriff of Fay, who was the sheriff of Steuben county when
the execution was issued.
Ames was told to call on the
then late sheriff for the attached property. Fay became sheriff on
the 1st of January, 1856.
That after Ames received the execution he called on the present defendant, and his
deputy, Jones, and Minier for property to satisfy it, and did
not get any. Ames told Jones and this defendant he was
directed to call on them for the property attached. Jones replied
that he had none of the property attached ; that it was
all gone. The defendant Harrower said he had none of the
property, and knew nothing about it. That Minier was in
possession of a piece of land of 110 acres, about 40 acres
under cultivation, and had been in possession of the premises four or five years before the attachment was issued, and
had built a house and barn, on them. The plaintiff's counsel then
offered to prove that the
plaintiff requested the deputy Jones to attach the interest of Minier in
the real estate occupied by him, and that he refused, saying he had already
attached and taken personal property more than sufficient to pay the
plaintiff's demand. This was
objected to by the defendant's counsel, on the ground that it was
immaterial, and the objection was sustained, to which the plaintiff's
counsel excepted.
The
plaintiff's counsel then offered to prove that the property attached by
Jones was gone, and was beyond his reach, and that the same had been taken
away with his knowledge and consent; to which the defendant's counsel
objected, which objection was sustained, and the plaintiff's counsel
excepted. The objection to the last evidence was on the ground that
it was immaterial, and
showed no right of action against the defendant.
The
plaintiff then rested his cause. The counsel for the defendant moved for a nonsuit
upon the grounds, among others, that the complaint did not state facts
sufficient to institute a
cause of action, it not appearing therein that a proper execution had been
issued to the proper person, or that any default had been made by
the defendant to the injury of the plaintiff; also that no cause of action
had been made out by the
evidence. That no action could be sustained by the plaintiff without
showing a special execution directed to the late sheriff commanding
him to satisfy the judgment out of the property attached. The court
sustained the motion and nonsuited the plaintiff. To which decision the
plaintiff's counsel excepted.
J.
W. Dimny, for the
plaintiff.
William Irvine, for the defendant.
By the Court, WELLES, J. The
attachment against Minier was issued in pursuance of the
code of procedure, and the property taken by the sheriff
thereon was required to be held by him as security for the
satisfaction of such judgment as the plaintiff might recover in the
action which he had commenced against Minier. (Code, §§ 227,
231.) The mode of executing such attachment is prescribed by
§ 232; which directs the sheriff, to whom the attachment
is directed and delivered, among other things to keep the
property seized by him to answer any judgment which may be
obtained in such action, &c. Section 237 provides that in case
judgment be entered for the plaintiff in the action, the
sheriff shall satisfy the same out of the property attached by him,
if sufficient for that purpose; 1. By paying over to such
plaintiff the proceeds of all sales of perishable property &c.,
or so much as shall be necessary to satisfy such judgment; 2. If
any balance remain due and an execution shall have been
issued on such judgment, he shall proceed to sell under such
execution so much of the attached property, except &c., as may
be necessary to satisfy the balance, if enough for that purpose remain
in his hands, &c.
It
is quite clear that with respect to property seized by the sheriff by virtue of an
attachment under the code, he must retain it in his possession until
the determination of the action in which the attachment was
issued; and if the plaintiff recover judgment, until the property is sold
under an execution
issued thereon; unless the
judgment be otherwise satisfied, or unless, in case of perishable
goods &c., he is ordered by the officer who issued the attachment
to sell the same, in pursuance of those provisions of the
revised statutes, which by sections 232 and 233 of the code, are made
applicable. If he has the
goods when a proper execution is presented to him, and proceeds to sell thereon, it is
all the plaintiff has a right to require of him. The 3d
subdivision of § 237 gives the sheriff ample powers and remedies where
the property attached shall have passed out of his hands
before execution on the judgment without being sold or converted
into money. Where the same person who was the sheriff when the attachment was issued, and who executed it,
continues to be the sheriff of the same county when the
execution upon the judgment is issued, the proceedings are
sufficiently plain and simple. But in this case, the defendant had
ceased to be sheriff, by the expiration of his term of office, before the
plaintiff obtained his judgment against Minier, and
consequently before any execution in an ordinary case could be
properly delivered to him to be executed. And the question
arises — to whom should the execution have been directed and
delivered; whether to the defendant or his successor in
office; and also, what kind of an execution was proper. The code
has made no express provision for such a case. But it has
declared that "until otherwise provided by the legislature, the
existing provisions of law,
not in conflict with this chapter, relating to executions and their incidents, the property
liable to sale on execution, the sale and redemption thereof,
the powers and rights of officers, their duties thereon, and the
proceedings to enforce those duties, and the liability of
their sureties, shall apply to the executions prescribed by this
chapter." (§ 291.)
An
attachment issued in pursuance of chapter 4 of title 7 of the 2d part of the code is more
in the nature of the former writ of fieri facias, as
to its object and effect, than of any other common law writ. It is in
effect an initiatory execution against the defendant's property
before judgment, and issued
in anticipation thereof. But
the sheriff cannot do any thing by virtue of it in regard to the
defendant's property, except to take the property into his
possession and keep it until an execution comes. He cannot sell property by
virtue of the attachment. He
can only sell under an order of the judge who issued it. When the execution comes he does
not levy, for that has already been done by authority of the
attachment. So that the attachment and execution,
together, contain the same and no more authority or force than a
common writ of fieri facias. It is contended by the
plaintiff's counsel that the new sheriff could sell, by virtue of the
execution delivered to him, the attached property in the hands of the defendant, and that it was the duty of the latter to
deliver up the property to the former for that purpose. But to
this, it seems to me, there are insuperable objections. In
the first place, the execution was a general one, issued
according to the provisions of the code, and authorized the new
sheriff to make the money out of the defendant's property
generally. It should have required, even in case there had been no
change in the incumbent of the office of sheriff, that the money
be made, in the first place, of the attached property, and to
have provided for the collecting of only the balance due upon the
judgment, agreeably to the
2d subdivision of § 237, in
case any thing should be, or should have been, paid as provided by
subdivision one of the same section. In the next place, if it
was properly directed to the new sheriff, it should have
recited the attachment and proceedings under it, and required the money
to be made out of
the
attached property, if that property could be found. It could not, I apprehend, go
against the defendant's property generally until the attached
property, or its proceeds, had in some way been all applied on the
judgment, or accounted for. But it seems to me the execution
should have been a special one directed to the defendant as
late or former sheriff, reciting the attachment, the taking of the
property thereon, and requiring a sale of that
property. If the property attached, or any part of it, had passed out
of the defendant's hands after he had seized it under the
attachment, he would probably be accountable for its value upon
similar principles to those
on which a sheriff would be accountable for property taken upon an ordinary execution.
The plaintiff, as before remarked, would have no right to
go against the property of Minier generally until the
attached property had all been applied. By the common law, if the sheriff
returned to a fieri facias, that he had taken
goods, which remained in his hands for want of buyers, the plaintiff
might sue out a writ of venditioni exponas, reciting the former
writ and return, and commanding the sheriff to expose the goods
for sale and have the money in court at the return of it. (2 Tidd's Pr. 934.)
And it seems that a
venditioni exponas might be directed to the new sheriff where the old one had
returned that he had taken goods which remained in his hands
for want of buyers. (Id. Mildmay v. Smith, 2 Saund. R.
343, and notes.) But the more usual way of proceeding in such
case was by writ of distringas to the new sheriff, commanding
him to distrain the old one till he should sell the goods,
&c. (Id.)
There cannot be found among the common law writs, one which is perfectly adapted to the
present case ; for, while the writ of venditioni
exponas might go to the new sheriff in a case where the sheriff who made the
levy was out of office, yet it was always in a case where the
old sheriff had all needful authority to sell, &c.; and where a
distringas was awarded to the new sheriff it was in a case
where the old one was supposed to be in default, and its office
was to set him in motion, &c. (Tidd's App. ch. 41, §
67, p. 274, Caines' N. Y. ed. of 1808.)
In
the case before us the old sheriff, (the defendant,) has never had in his hands, or in any
way been vested with any authority to sell, the goods in
question. Although there is no express provision in our
statutes for this particular case, I think it is fairly to be implied
from § 237 of the code, in connection with the revised statutes, that
the execution, in a case like the present, should be
directed and delivered to the individual who was sheriff when the
attachment was issued, and who attached the property, and
that it should be directed to him as late sheriff, &c. By
the section last referred to it is provided that in case judgment be
entered for the plaintiff the sheriff shall satisfy the same
out of the property attached by him, &c. The section
then proceeds, in four subdivisions, to direct the manner in which the
satisfaction is to be made. By the first, he is required to pay
over moneys in his hands the proceeds of sales of perishable
property, &c. and of collections of debts, &c. By the second
he is directed, in case a balance remains due and ean execution
shall have been issued, to sell, under the execution, so much of
the attached property, &c. as may be necessary &c., if enough for that purpose shall
remain in his hands,
&c.
These provisions, it seems to me, contemplate a sale of the attached property, by the sheriff
who took it under the attachment, and by no one else.
The
revised statutes provide particularly for the case of an outgoing and incoming sheriff. (2
R. S. 438, 9, §§ 67 to 74 inclusive.) The old
sheriff shall deliver among other things to his successor, "all
executions, attachments and final process, then in his hands, except such as the said former sheriff
shall have executed, or shall
have begun to execute, by the collection of money thereon, or
by a levy on property in pursuance thereof." (§ 69,
subd. 5.)
There is no statute or other law, that I am aware of, authorizing or requiring an outgoing sheriff
to deliver to his successor property taken by the former by
virtue of any process whatever. And the law seems to contemplate
that whatever official acts
remain to be done or executed in relation to such property must be done and
completed by the same person who took it — whose official powers
for such purposes were intended to be preserved by § 71, on page
439 of the revised statutes, above referred to.
If
the foregoing views are correct, the plaintiff entirely failed in making out a cause of action
against the defendant. The execution offered to L. A. Jones,
who had been a deputy of the
defendant while his term of office of sheriff continued, was directed generally "to the
sheriff of the county of Steuben," and was in the common form of an
execution against the property of the defendant
generally, as upon an ordinary judgment in an action for money. In my
opinion neither the defendant nor Jones his deputy was bound to
receive it, or had any right
to execute it. The defendant could not be placed in default in relation to the
property seized by virtue of the attachment, until a proper execution was put
in his hands for that
purpose. He could not sell it until the proper execution was delivered to him. He was not
bound to deliver the property to the new sheriff to be sold on the execution delivered to him, and would not have been
bound to deliver it to the new sheriff on any execution or
process which could have been issued on the judgment against
Minier.
The
offer of the plaintiff, at the trial, to prove that the deputy of the defendant was requested to
attach the interest of Minier in the real estate
occupied by him, was properly overruled. The attachment recited a debt due
from Minier of $200.02, and
the return shows a levy on personal property to the value of $466.50. That would
seem to have been a reasonable amount, and to have gone beyond
it would have been prima
facie oppressive. Besides, the adequacy of the extent of the levy is to be ascertained
by the result of the sale. (Ransom v. Halcott, 18 Barb.
56, and authorities there cited.)
The
plaintiff offered to prove upon the trial that the property attached by Jones, the
defendant's deputy, was gone and was beyond his reach, and that
the same had been taken away with his knowledge and consent;
and that by the neglect of said Jones, the property was lost
to the plaintiff and could not be applied in satisfaction of
his claim. This evidence, on objection by the defendant's
counsel, was rejected by the court, and the plaintiff's counsel
excepted.
The
plaintiff was not in a condition to demand the production of the attached property. No
execution had been directed and delivered to the defendant,
nor any issued upon which the attached property could be sold.
The plaintiff was ahead of his time in demanding the
attached property before he had issued the proper execution upon
which it could be sold in satisfaction .of the judgment ;
and had no more right to meddle with it than a stranger. The
justice therefore properly overruled the offer.
For
the foregoing reasons we are of the opinion that the plaintiff was properly nonsuited,
and that the rulings at the trial were all
correct.
New
trial denied.
[CAYUGA GENERAL TERM, June 7, 1858. Welles,
Smith and Johnson, Justices.] |
|
Glann vs. Younglove. (pgs. 480-484)
Where a married woman purchases property
on her personal credit, the title becomes vested in her husband,
and the property is liable to be taken on execution for his debts.
Where a married woman purchased a horse, in her own name, giving her
individual notes for the
price, and the husband immediately took the horse into his possession and used him in
his own business for about a year ; Held that this was prima facie
evidence of a purchase by him; which would not be rebutted by evidence of the
purchase by the wife in her own name, upon her personal individual credit;
unless it was also made to appear that she
had separate property which,
upon the purchase, she charged with the payment of the purchase price; and that
the vendor gave her the credit upon
the faith of that
arrangement.
In
an action to recover the possession of personal property, where the
property has been delivered
to the plaintiff, and the defendant, in his answer, claims a return thereof, if the
verdict is for the defendant, the plaintiff has a right to return the
property instead of paying the value of it; which can only be required of him
in case a return cannot be had. And it is his right to have the damages
for the taking and withholding of the property
assessed. Tha judgment should
be accordingly.
The
defendant has not the right to a judgment for the value of the
property, or the return
thereof, as he shall elect. The jury should be instructed to
find for the defendant
generally, and to assess the value of the property, together with the damages for the taking
and withholding thereof.
THIS action was commenced October 13th, 1856, to recover the possession of a certain bay
horse which the complaint alleged belonged to the
plaintiff, and which the defendant wrongfully detained in his
possession. The defendant in his answer denied each and every
allegation of the complaint; and for a second defense set up a
judgment in the supreme court in favor of one Veley, against
John W. Lockwood, for $774.10, entered and docketed in the
office of the clerk of the county of Steuben, August 26, 1856, and
an execution issued thereon to the sheriff of the same
county, by virtue of which the said sheriff levied upon and sold the
horse in question; which at the time of the levy was the
property of said Lockwood. That at the sale of the horse by said
sheriff, the defendant was the purchaser, and that he is, and at
the time of the commencement of this action was, the lawful
owner of the said horse.
The cause was tried before JOHNSON,
justice, and a jury, at the
circuit court held in Steuben county in March, 1857. On the trial the plaintiff proved
that the horse in question was owned by Jonathan Lockwood, a
brother of John W. Lockwood, on and previous to October 7th, 1855. That
being
such owner, the
said Jonathan Lockwood sold the said horse on the day last mentioned, to
Nancy Lockwood, the wife of the said John W. Lockwood. That
on the purchase of said horse by said Nancy Lockwood, she
gave to the said Jonathan Lockwood her two promissory notes
as sole maker, one for $50 and one for $90 — the purchase
price being $140. That the horse was used by her husband,
the said John W. Lockwood, together with a gray horse of his
own, in a team, down to the time of the levy and sale
hereafter mentioned, in his ordinary business. That the said John W.
Lockwood and Nancy his wife
were married before the year 1848. That a day or two before the sale of the horse by
the sheriff, the said Nancy Lockwood sold the horse in question to the
plaintiff for $135, for which the plaintiff gave her his
promissory note. That at the time of the sale of the horse to
the plaintiff, the horse was in a barn occupied by the said John
W. Lockwood. The plaintiff is a brother of the said Nancy
Lockwood. The value of the
horse was admitted to be $150. The plaintiff, after having proved a demand of the horse of
the defendant, and his refusal to deliver him, rested.
The defendant then gave in evidence the judgment and
execution in favor of Veley against John W. Lockwood, as stated in
the answer ; and proved that by virtue of the execution a
deputy of the sheriff of Steuben county levied upon a span of
horses, and harness, and a lumber wagon, on the 25th day of
September, 1856. The bay horse in question was one of the
span. That he duly advertised the property levied upon, and
sold the same on the 13th
day of October, 1856, by
virtue of the said execution. That at the sale the defendant bid off
the horse in question and took him away. That the plaintiff
was present at and forbade the sale by the deputy sheriff, the defendant being
present at the same
time.
The
evidence being closed, the justice decided that the purchase of the horse by the wife of John
W. Lockwood on her personal
credit vested the title of the property in her husband, and it was therefore liable to be
taken on execution for his debt. That the defendant was
entitled to judgment for the value of the horse, or the return
thereof, as he should elect. The defendant thereupon elected
to take judgment for the value of the horse. The justice
then directed the jury to assess the value of the property, and
render a verdict for the defendant for the value thereof. To which
ruling and decision the plaintiff's counsel excepted. The
jury thereupon assessed the value of the property at $150,
and rendered their verdict, by which they found for the
defendant the sum of $150. The plaintiff now moved for a new
trial, on a bill of exceptions, which was ordered to be heard at
the general term, in the first instance.
Clark Bell, for the plaintiff,
B. Bennett, for the defendant,
By the Court, WELLES, J. We think the ruling of the justice before whom the action
was tried was correct, that the purchase of the horse by the wife
of John W. Lockwood on her personal credit, vested the title
of the property in the husband, and that it was therefore liable
to be taken on execution
against him for his debt.
Upon the purchase by her, the horse went into the possession of her
husband, and was used by him in his ordinary business, down to
the time of the levy and sale under the execution against her
husband, and until it was purchased at the sheriff's sale
by the defendant, a period of about a year. There is nothing in the
case tending to show that
the wife of John W. Lockwood had, or owned, any separate estate, or, if she owned
any, that she ever agreed or intended to charge it with the purchase price of the horse. Her services, talents and
capacity for business, and credit, all belonged to her husband, and the
person from whom she purchased the horse, and to whom she gave
the notes, must be deemed to
have relied upon one or all of these for payment, or upon his legal claim against her
husband, as upon a sale to him of the horse. Possibly his
reliance was upon all these considerations together. Be that
as it may, all that he could by possibility, in any event,
expect in payment, must of necessity come from what belonged to the
husband. The wife, under the
circumstances of this case, is to be regarded as having purchased the horse as agent for
her husband; and although he
cannot be made liable, directly, upon the notes given by her, we entertain no
doubt of his liability to the vendor for the value of the
horse, as upon a sale thereof to himself. Immediately upon the
purchase, he took the horse into his possession and used him
in his own business until the horse was taken on the execution.
This would be prima facie evidence of a purchase by him,
which would not be rebutted by evidence of the purchase by
the wife in her own name upon her personal individual credit;
unless it was also made to appear that she had separate
property, which upon the purchase she charged with the payment of
the purchase price, and that
the vendor gave her the credit upon the faith of such arrangement. The case is not distinguishable
in principle, in this
respect, from Lovett v. Robinson and another, (7 How. Pr. Rep. 105,) which we
think presents a correct view of the law on the subject. And we can
discover nothing in any of the authorities cited by the
plaintiff's counsel at variance
with that case.
We
think, however, that the learned justice fell into an error in holding that the defendant was
entitled to a judgment for the value of the horse, or the
return thereof, at his election; and after the defendant had elected
to take judgment for the value of the horse, in directing the
jury to render a verdict for the defendant for the value of the property as they should assess such value.
The
code, § 277, provides that in an action to recover the possession of personal property, "if the
property have been delivered to the plaintiff, and the
defendant claim a return thereof, judgment for the defendant may be
for a return of the property, or the value, thereof in case a
return cannot be had, and damages for taking and
withholding the same." The answer of the defendant, to the
complaint, concludes with a prayer or demand of judgment against the
plaintiff, awarding the possession of the property to the defendant,
together with $100 damages
for the detention thereof by the plaintiff. The defendant had not the right of election, as
held by the justice. The
jury should have been instructed to find for the defendant generally, and to assess the
value of the property, together with the damages for the taking
and withholding thereof It was the right of the plaintiff to
return the property instead of paying the value of it, which
could only be required of him in case a return could not be
had. And it was the right of the plaintiff to have the damages
for the taking and withholding the property assessed; and the
judgment should be accordingly. If, however, the
defendant will waive the damages for the taking and withholding
the property, I see no objection to entering the
judgment for him for a return of the property if a return can be had,
and if a return cannot be had then that the defendant recover
the value of the property as assessed by the jury
If,
therefore, the defendant will stipulate to waive the damages as above, a new trial should be
denied, and judgment should
be entered as above suggested. Unless the defendant will so stipulate, there should
be a new trial, on the ground of the misdirection in respect to
the form of the verdict.
Ordered accordingly.
[CUYUGA GENERAL TERM, June 7, 1858. Welles,
Smith and Johnson, Justices.] |
|
Robinson vs. The New York and Erie Rail
Road Company. (pgs. 512-524)
A general exception to the entire charge
of a judge to the jury is unavailable for the purpose of raising any
distinct points of error in the charge. It can only be sufficient where the charge
consists of a single proposition; or where the whole scope of the charge asserts
and explains a single question or principle.
In
all cases, a rail road corporation, under the provisions of the general
rail road act, or of any
private charter, where it does not change or affect rights of property, or appropriate the
game and make compensation therefor, must cross, intersect or run along
streams and highways, &c., at its peril. If it alters, changes or affects the
stream or the road, it must restore the same to its former state, so that the
rights of third persons be in no way affected injuriously by such change; or
the corporation will be responsible in damages for any injury sustained by
reason of such omission.
Its
liability does not depend upon the question of negligence
or unskillfulness.
The
rule of the liability of private corporations is precisely the same as
that relating to
individuals.
An
act of the legislature, authorizing a company to construct a railway,
does not give to the
corporation any authority to invade private rights, without making just compensation. It
merely gives a franchise, and the title and rights of a private corporation.
It cannot confer upon the corporation any exemption for wrongs done to the
rights of private property.
Where, in an action against a rail road company, to recover damages
for injuries to the
plaintiff's land and buildings, arising from the overflowing of
a stream, caused by the acts
of the defendant, it appeared that the defendant had, in constructing its road,
excavated and removed the banks of
the natural stream, in order
to conform the ground to the grade of the rail road, it was held that it was
proper for the judge to charge the jury that if
they should find, from the
evidence, that the injury and damage to the plaintiff was occasioned by such
excavation and removal, and that but for
each excavation and removal
the injury and damage would not have occurred, the defendant was liable.
In
such a case an action lies, against the company.
APPEAL from a judgment entered at a special term, upon the verdict of a
jury. The action was commenced in July, 1855, for the recovery of
damages to the plaintiff's land and buildings, in the village of
Corning, arising from the overflow of a stream, known as Monkey run.
It was claimed
that this
overflow was occasioned by the obstructions placed in the stream by the defendant at
the point where it crosses Erie avenue in said village. The
cause was tried at the Steuben circuit, in June, 1857,
before Judge JOHNSON. It appeared on the trial, that the
defendant's rail road runs along
Erie avenue, and where it
crosses the stream in question, an excavation of the banks of the
creek was necessary to conform the ground to the grade of the
rail road. The defendant deepened the channel of the
creek, and constructed two sluices for the passage of the water, ten
feet wide each, and three feet deep. In June, 1855, there were
three extraordinary floods in the creek. The highest of
these floods occurred on the 30th of June, when a great quantity of
gravel and earth was washed down the stream, and filled up
the sluices, under the rail road, and covered the track of the road
itself, five or six feet deep. This obstruction turned the water
of the creek into Erie avenue, and from thence it ran into, and
filled, the cellars of the plaintiff's buildings, and did
other damage to his premises. Testimony was given by the
defendant, tending to show that the sluices constructed by the
defendant were sufficient to pass all the water of the stream in
the highest flood that had ever been known in the creek, and
testimony was also given, tending to prove that the flood of the 30th of June, and which did the damage to the plaintiff's
premises, was much the highest flood that had ever been known in
the stream. This evidence was not controverted by the
plaintiff. The plaintiff proved that the bank of the creek on the
side of the plaintiff's premises
was, in its natural state,
five or six feet above the bed of the creek; and that the defendant
had cut down this bank in grading its track. And it appeared by the same
evidence, that the defendant
had at the same time lowered the bed of the creek, but precisely to what
extent did not clearly appear.
The defendant proved that the
plaintiff derived title to the premises in question from Hiram
W. Bostwick, who was the owner of the premises at and
prior to the time the defendant's road was constructed; and that
the plaintiff erected the buildings which were claimed to have been
damaged by the flood,
after the construction of the
road. The defendant offered in evidence, a grant from Bostwick
and other owners to the defendant, of the right and privilege of
locating and constructing the defendant's road along Erie
avenue, and of lowering the
grade of the street, to conform to the survey and grade adopted by the defendant for the
track of its road. This grant appeared to have been
executed while Bostwick was the owner of the plaintiff's
premises. This evidence was excluded by the court, and the defendant
excepted. The judge charged the jury, amongst other things,
that the general course and flow of streams on the surface of
the earth, being governed and controlled by the formation
of the surface, no one had any right to make any change or
innovation upon the surface, so as to change the established
course and flow of any stream, to the prejudice of another. That
every person owning and occupying premises in the vicinity of a
stream of water was entitled to have the natural banks and
barriers remain unmolested,
so far as was necessary for
his protection against the, overflow and diversion of the
stream; and that any person digging down the bank, or
removing a natural barrier, by reason of which such stream
overflowed, or was diverted from its natural and established course, to the injury of another, was liable for the injury thus
occasioned. That the defendant, although it had by law the right
to cross streams in the construction of its road, was
liable, if in crossing any stream, it removed the banks to such an
extent as to occasion the overflow, or diversion of the
water of such stream, by which
individuals in the vicinity
sustained injury. And if the jury should find from the evidence,
that the injury and damage to the plaintiff was occasioned by
the excavation and removal of the banks of the stream by the
defendant, and but for such excavation and removal, the
injury and damage complained
of, would not have occurred,
the defendant was liable in this action. The defendants' counsel
requested the judge to charge, 1st. That if the jury were
satisfied from the evidence, that the defendant, in the construction of
its road, made provision for the passage of any flood that had
ever before been known in this stream, and had exercised
such caution and care, to provide against damage to others, as
prudent men would exercise, in like cases, for the protection
of their own property, then
the defendant was not liable for the damage resulting from this extraordinary flood.
And 2d. That the defendant, in the construction of its road,
was in the exercise of a lawful right, and was not responsible
when all reasonable provision and caution was observed to
protect others against injury. That if the jury believed from
the evidence, that the defendant in the construction of the road
over the water way in question exercised as much
caution as a prudent man would exercise in the protection of his
property, if he owned both the road and the property
affected, then the defendant ought not to be made liable to the
plaintiff. The judge refused to charge as thus requested; and to
the charge and refusal, the defendant's counsel excepted. The
jury found a verdict in favor of the plaintiff for $3735;
for which sum, with costs, judgment was entered, and the
defendant appealed.
S. Mathews, for the appellant. I. The judge erred in
his charge to the jury. (1.)
The true rule in cases of this kind is, that where any alteration is
lawfully made in the natural course, or banks of a stream, the
person making such alterations is bound to provide for the
common and ordinary floods
in the stream, and against
such as from the experience of the past, might reasonably be
expected to occur in the future, but not against uncommon, unexpected,
and extraordinary freshets. The latter are regarded as
providential, and against which, men of ordinary prudence
and caution cannot be expected to provide. Damage resulting from
such extraordinary freshets, is "damnum dbsque
injuria." The judge, in his charge, seems to have lost sight of, or
ignored the distinction here suggested. (Bell v.
McClintock, 9 Watts, 119. Inhabitants of China v. Southwick, 12
Maine Rep. 238. Mayor of N. Y.
v. Bailey, 2
Denio, 433. Angell on Water Courses, §§ 335, 336, 348, 349.) (2.) The judge
erred, in charging the jury, that if they should find from the
evidence, the injury and damage to the plaintiff was
occasioned by the excavation and removal of the banks of the
stream by the defendant, and but
for such excavation and
removal, the injury and damage complained of would not have occurred, the
defendant was liable in this
action. The rule as laid down, would cast upon the defendant the whole risk of any
damage that might occur to the property of individuals,
however remote from the stream, and however prudent or cautious
the defendant might have been in constructing its bridge
in crossing the stream; no allowance is made for fortuitous or
providential causes. This is
contrary to the principle maintained in the cases cited.
II.
The judge erred in refusing to charge the jury as requested by the defendant's counsel. The
two propositions submitted
by the defendant's counsel are substantially alike, and contain the true principle
applicable to the case. If the defendant, in constructing its
bridge, used the same caution as a prudent man would exercise in
the protection of his own property, were he owner of both
the road and the property affected, and in the exercise of this caution, made provision for the passage of any flood that
had ever hefore been known in the stream, the defendant
could not, according to well settled principles of law, be made liable
for the injury sustained by
the plaintiff. (Mayor of N. Y. v. Bailey, 2 Denio,
433. Angell on Water
Courses, §§ 335, 336. Lapham v. Curtis, 5 Verm. Rep. 371.)
Wm. Irvine, for the respondent. I.
The question of law presented by this appeal, is
whether under the provisions of the act of April 2, 1850, a rail
road corporation in constructing its road, may cut down, dig away
and remove the natural barriers of a stream of water, by
means of which the water is
diverted from its natural
channel, thereby flooding and destroying the property of others, without
being responsible for such injuries; provided that in
constructing their road and in providing a water way under it, they use
ordinary skill, care and prudence. This is the question
which is in substance presented by the defendant's answer, and
the only one involved in the
exceptions to the charges and to the refusal of the court to charge on the trial And on the
part of the plaintiff it is insisted, (1.) That a corporation
is liable, and to be held responsible, to the same extent as an
individual owner of the bank
and stream would be held liable in case he caused a diversion of the water, to the injury of
others; and the legislature had no warrant or power to
absolve rail road corporations from such measure of
responsibility. (Crittenden v. Wilson, 5 Cowen, 165.
Bradley v. N. Y. and N. H. R. R. Co., 21 Conn. R. 305, 6.) (2.)
But the statute does not profess to exempt corporations from such
measure of responsibility, but simply to give them authority to
acquire a right, equal to the right of an individual proprietor
of the land and stream, so far as might be necessary in the due
exercise of his franchise. (Brown v. The Cayuga and SusqueTianna Rail
Road Co., 2 Kern. 487. Angell on
Water Courses, § 331, n. a. Fletcher v. Auburn and Syracuse R. R.
Co., 25 Wend. 462. Crittenden v. Wilson, supra. Malion v. Utica andSchen. B. B. Co.. Lalor's Sup. 156.
Presb. Society in Waterloo v. Auburn and
Rochester R. R. Co., 3
Hill, 567.)
II.
But if any doubt existed upon any supposed conflict of authority as to the construction
of this statute, the case of Brown v. The Cayuga and
Susquehanna R. R. Co. has settled the doctrine. (1.) The 10th
section of the act, incorporating the Ithaca and Oswego Rail Road
Company, is in substance the
same as the 5th subdivision of § 28 of the act of April 2d, 1850, notwithstanding
the remark of the court in the case of Corey v. The
Buffalo, Corning and New York R. R. Co, (23 Barb.
482,) to the contrary; the difference is simply in the terms used,
conferring the power to do the
same thing. In the one case
the language is, " the said corporation may construct the said rail road
across, or upon any road,
highway, stream of water or water course, if the same shall be necessary; but the said
corporation shall restore such road, highway, stream of water,
or water course, thus intersected, to its former state, or in a
sufficient manner not to have impaired its usefulness or
value to the owner." See the other. " Every corporation formed
under the provisions of the
act, shall have power to construct their road, across, along, or upon any stream of water,
water course, street, highway, plank road, turnpike, or canal,
which the route of its road shall intersect or touch ; but
the company shall restore the same to its former state, or to
such state as not unnecessarily to have impaired its usefulness.
(Sess. L. of 1828, ch. 21, § 10. Id of 1850, ch.
140, § 28, sub. 5.) (2.) This construction of the legislative grant is in
accordance with the doctrine of the earlier cases, and if as the
learned judge remarks in Corey's case, the case of Fletcher v.
The Auburn and Syracuse Rail Road Co. has been overruled,
we suggest with all deference that it is good law nevertheless;
and that the late case of Williams v. The N. Y. Central
R. R. Co., not yet reported, approves it well. (Bradley v.
N. Y. and N. N. R. R. Co., 21 Conn. R. 294
Nicholson v. Same, 22 id.
74)
By the Court, E. DARWIN SMITH, J. The case, upon this appeal, sets out the charge of
the judge at the trial considerably in extenso, and then
states that to such charge the defendants' counsel did then and there
except. Such a general exception is unavailable to raise
any distinct points of error in
the charge. It can only be
sufficient where the charge consists of a single proposition, or where
the whole scope of the charge asserts and explains a single
question or principle. At the conclusion of the charge, it also
appears that the defendants' counsel submitted to the circuit
judge two propositions, and requested him to charge in
accordance therewith, which the judge refused to do, and for this
refusal "the defendants' counsel did also then and there
except." If these propositions, thus submitted, contained the
true theory or principle upon which the defendants' liability
in this action depended, then the circuit judge erred in his
refusal to charge as requested; and his charge being in conflict
with such propositions taken in connection with such request,
was also erroneous in its general scope and meaning. It distinctly
appearing that the defendants had excavated and removed the
banks of the natural stream
whose overflow caused the damages for which the action was brought, the judge, as the
final proposition upon which he gave the case to the jury,
charged them that "if they shall find from the evidence that the
injury and damage to the plaintiff was occasioned by such
excavation and removal, and that but for such excavation and
removal the injury and damage complained of would not have
occurred, the defendants were liable in this action." In
the two propositions submitted by the defendants' counsel they
claimed, in substance, that the defendants were in the
exercise of a lawful right in constructing their rail road at the place in
question, and that in the
exercise of that right they were not responsible, when all
reasonable prudence and
caution was observed on their part to protect others from injury.
The charge treats the defendant — a rail road corporation— as the
private owner of property,
using and improving it for its own benefit, and like natural persons responsible for all direct or
consequential
injuries
resulting to others from such use or improvement. The defendants' counsel claimed,
in effect, that the defendants, as such corporation, were only
liable for injuries resulting from negligence or
unskiUfulness, like municipal corporations or public officers acting in the
discharge of a public duty. The rule of liability of private
corporations is precisely the same as that of individuals. (9
Wheat . 904. 12 id. 40. 4 id. 688. 4 Hammond, 500, 514. 3
Hill, 529.) It is true that the defendants, under the general
rail road act, were entitled to construct their road across,
along or upon any stream of water,
water course, street,
highway, plank road, turnpike road or canal which the route of its road
might touch or intersect, restoring the same to its former
state so as not unnecessarily to have impaired its usefulness.
(Sess. L. of 1850, ch. 140, § 28.) But I do not see that this
act relieves the defendants
from their liability in this
action. The right of the defendants to construct their rail road
across this creek is not denied, and is undeniable. But this act of
the legislature merely gave authority to the defendants to
cross this creek. It did not, and could not give any authority
to them to invade any private
right without just
compensation. The force of a legislative grant of this kind is well
declared in the case of Fletcher v. The Auburn and Syracuse Rail
Road Co., (25 Wend. 462,) recently reaffirmed in Brown
v. The, Cayuga and Susquehanna Rail Road Co., (2
Kern. 487.) The legislative grant authorized the defendants to enter upon,
take and appropriate to their own use, on making a just
compensation therefor, such lands as they might require for
the use of their said rail road, and to cross all intervening
waters and streams. But the legislative grant could go no further, so far
as it affected private rights. It exempted the
defendants from all liabilities, as respects the public, to
indictment for a nuisance or otherwise; but it left all rights of
property unaffected. It gave merely a franchise, and the title and
rights of a private corporation. It conferred and could confer no
exemption upon the defendants for wrongs to the rights of private property. (21 Conn.
Rep. 294. Williams
v. The Central Sail Road Co., 16 N. York Rep. 97. 3 Hill,
567.) Under the charge in this case the jury have found that the injuries
sustained by the plaintiff would not have occurred but for
the excavation and removal of the banks of the stream, made
by the defendants. Such removal and excavation were made
by the defendants for their own use and benefit, and
necessarily at their own risk, so far as the rights of others might be
affected thereby. No one has the right to change or interfere
with the flow, course, channel or banks of a natural stream, at
the risk of others or to their prejudice. The legislature
authorized the defendants to cross this stream, but it bound them,
if they in any way interfered with the flow of the water on the
banks of the stream, "to restore it to its former state,
so as not unnecessarily to have impaired its usefulness. The
defendants interfered with the banks and channel of the stream.
Did they restore it to its
former state, so as not to
have impaired its usefulness? They were bound so to restore it as to
leave the rights of other persons in respect to the stream
precisely as before they interfered with it — precisely as they stood
in the former state of the stream and its banks. In all
cases a rail road corporation, under the provisions of the
general rail road act or of any private charter, where they do not change
or affect rights of property or appropriate the same and make
compensation therefor, must
cross, intersect or run along streams and highways, or other roads, at their peril. If
they alter, change or affect the stream or the road, they must
restore it to its former state, so that the rights of third persons
be in no way affected injuriously by such change, or they will be
responsible in damages for any injury sustained from such
omission. And this is practically the rule asserted by the judge at
the circuit, as the basis of the defendants' liability, in
this action. The defendants claim that they are not liable
unless they are guilty of negligence or unskillfulness in making the
erection or alteration involved in crossing a stream or
road. The riparian owner upon a stream, or the private owner of the lot situate upon a street or highway, except as
against the public authorities, is entitled to have such street or
highway remain in its former
state. He has nothing to do
with the question of negligence or unskillfulness in respect to a
change of its banks or channel. The question for him, in respect
to his rights, is simply and solely, is he damaged by the
change or alteration made? If so, he is entitled to be
compensated, to the extent of such damage. A man owning both sides
of a private stream has a right to erect a dam upon his own
land and use the water thereon, but he has no right to
flow his neighbor's land or do him any injury by the erection of
such dam. Such neighbor has
nothing to do with the question whether the dam is or is not negligently or unskillfully
constructed. He is not bound to submit to injury from a dam
skillfully constructed and in respect to which no allegation of
negligence could be maintained. The question for him is simply,
is he injured, or not, by the construction of such dam? (5
Cowcn, 165.) There is, it is
true, a large class of cases
where the rule of liability would be that claimed by the defendants in
this case, where no action can be sustained for injuries
received not resulting from negligence or unskillfulness or some
omission of duty. These cases rest upon the sic utere
tuum ut alienum non Icedas, and embrace a large class of injuries
to the relative rights of the citizen, redress for which can be
based upon no other rule than this broad principle of
equity and natural justice. But the plaintiff's right of action
does not rest upon this principle. It is based upon the fundamental
right of property, the right
in and to the soil and to the
things upon and pertaining to the earth's surface. The cardinal
maxim, agues, curret et debet currere, &c. implies
that no one has the right to change or divert the course, direction or
flow of a natural stream, to the injury of another. All men have a
right to base their claims
to property, so far as such
claims relate to the earth's surface, upon nature's law, upon the
assumption that the earth's surface is to remain substantially
unchanged. Every change or alteration of such surface, where such alteration involves an injury to others, is therefore a
violation of natural right. And it is upon this violation that
the plaintiff is entitled to maintain this action, independently of the
questions of negligence or
unskillfulness of the defendants. In the case of Bailey v. The Mayor of New York, 3
Hill, 531 ; 2 Denio, 433,) the action was sustained on the
ground of negligence; and the rule is there stated as claimed
by the defendants' counsel. The plaintiff in that case was a
riparian owner below the defendant's
dam, and the injury resulted
from the breaking away of
the dam. The construction of the dam was lawful, and the injury resulted from its
negligent construction. If in this case the injury had resulted from
the breaking away of the defendants' track-works, or artificial
water-way, then the case
would have been parallel with
this case of Bailey, and the action could only be sustained, as in
that case, on the ground of
negligence. But if in the case of Bailey the damages had been caused by the giving away of
the banks of the stream, or by an excess of water cast upon
Bailey's land, in consequence of the construction of the dam,
then the question of negligence or unskillfulness in the
construction of such dam would not have been in the case, and the
action would have been maintainable, as in this case, for an injury or
invasion of the primary right of property of the
plaintiff. It seems to me that there is a very obvious
distinction between the two cases. This action might have been
sustainable, perhaps, on the ground of the insufficiency of the
water-way provided by the defendants, or for their neglect to keep it
open and clear for the flow of the water. But the plaintiff
is not driven to these grounds. The excavation and removal of the
banks of the stream left the
water to flow out of the natural channel of the creek and
to overflow the plaintiff's
premises. And this overflow the jury have found would not have
happened but for such alteration and excavation of the natural
banks of the stream. For the
damages resulting from such alteration and excavation, I think this action clearly
maintainable.
Besides the question arising upon the charge of the circuit judge, the case presents an
exception to the refusal of the judge to allow the defendants to
introduce in evidence an agreement signed by quite a
number of citizens of Corning, consenting that the defendants
lower the grade of Erie street,
in which the defendants'
track is laid. I cannot see that this instrument, if admitted, could
have had any proper influence upon the merits in this case. It
would absolve the defendants from any liability to damage for
lowering the grade of that
street, and I cannot see that it can have any further operation
or effect. The plaintiff's
premises are not on that street, and he did not sign this
agreement, and it does not distinctly appear that it was so signed by
any grantor of his. But if
this had been otherwise, I do not think it could have had any proper influence upon the
questions in controversy in this
suit, and was therefore
rightly excluded. The case, upon the whole, I think, was rightly
disposed of at the circuit, and the judgment should therefore be
affirmed.
Judgment affirmed.
[CAYUGA GENERAL TERM, June 7,
1858. Johnson, Welles and Smith, Justices.] |
|
The Trustees of the First Society of the Methodist
Episcopal Church of the Town of Pultney vs. Bichard S. Stewart
and others. (pgs. 553-555)
No one can be both plaintiff and
defendant, in an action. A party cannot have a right of action against
himself either as debtor or tort-feasor.
A
trustee of a religious society cannot be sued by his co-trustees, as a
trespasser, in respect to
the property of the society, until he has been divested of his character and authority as
trustee. His possession is the possession of his co-trustees, and his right
equal to that of the others.
A
majority of the trustees cannot, by any rule or resolution which they
may adopt, exclude one of
their number, and so divest him of his rights as to
make his subsequent act of
obtaining possession of the trust property, a tort.
APPEAL from a judgment of the county court of Steuben county, affirming the judgment of
a justice of the peace. The
action was commenced in a justice's court, to recover the possession of a quantity of
Sunday School books, alleged to have
been wrongfully taken by the defendants, from the house of worship of the Methodist
Episcopal Church of the town of Pultney. such books being the
property of that society. It was proved on the trial, that at
the time of the taking of the property, the defendant Stewart was one of
the trustees of the society;
the other trustees being A. L. Parker, W. A. Parker, George Stewart. A.
Parker, H. H. McConnell and L. Parker. The taking of the books by the
defendants was proved. It was also proved that, previous to the
taking of the books in question, by the defendants, a majority of
the trustees had passed a
resolution, forbidding all persons, trustee or trustees, from opening the church for any
purpose whatever, without the consent of a majority of the
trustees. The justice denied a motion tor a nonsuit, and the
jury found a verdict in favor of the plaintiffs for $10 damages:
for which sum, with $5 costs, judgment was rendered by the
justice.
B. Bennett, for the appellants.
Clark Bell, for the plaintiffs.
By the Court, JOHNSON, J. It is a good answer to an action that a party is legally
interested on each side of the question. No party can be both
plaintiff and defendant in an action. (1 Chit. PI. 46.
Blaisdett v. Ladd, 14 N. Hamp. R. 129.) And this answer could
always be given under the general
issue. (Hammond v.
Teague, 6 Bing. 197.)
The
action here was in the name of the trustees, of which the defendant Stewart was one, as
was clearly proved on the part of the plaintiffs. He was
therefore a plaintiff as well as a defendant. Trustees, in law,
are but a single person. (Brinckerhoff v. Henkle, 1
Wend. 470.) And it was expressly
held in Blaisdell v.
Ladd, that an action at law cannot be maintained, where the same person
is one of the trustees, who are plaintiffs, and also sole
defendant, or one of several defendants. A party can have no right of
action against himself, either
as debtor or tort-feasor. It was claimed, upon the argument, that the action was in fact by
the corporation, against the
defendants. But it appears on the record to be in the name of the trustees.
Besides this, trustees of a religious society have possession and custody of the temporalities
of the church, whether real or personal estate, and are the
proper parties to bring an action for any injury to either.
(Green v. Cady, 9 Wend. 414. The People v. Bunkel, 8
John. 364. S. C. 9 id. 147.)
As a
general rule, a cestui que trust cannot sue, in courts of law, his trustee, (1 Chit.
PI. 69,) or, indeed, a third person, except a mere wrongdoer, and for
an injury to the actual possession of the cestui que trust.
The defendant Stewart, being one of the trustees, could not be
sued by the trustees, as a
trespasser, in regard to the trust property, until he had been divested of the character and
authority with which the law clothed him, in virtue of his
office. His possession was the possession of his co-trustees,
and his right equal to that of the others. It is impossible, in
the nature of things, that a
majority can, by any Mile or
resolution which they may adopt, exclude one of their number, and
so divest him of his rights as to make his subsequent act of
obtaining possession a tort. All are in possession, while any
are, as there can be no several possession amongst trustees. The
justice should have granted a nonsuit, as the defendant put
his motion distinctly upon the ground that being a trustee he
could not be sued by the trustees. It is clear enough from
the case, that the justice must have placed his decision upon the
legal ground that such an action could be maintained. In
this he was in error. It is unnecessary to notice any other
questions in the case. The judgment of the county court, and
of the justice, must be reversed.
[CAYUGA GENERAL
TERM, June 7, 1858. Welles, Smith and Johnson, Justices.] |
|
Robins and others,
appellants, vs. Coryell, respondent. (pgs.
556-562) The law, in regard to the execution of
wills, remains as it is in England and as it was in this state before
the revision of 1830; except that a subscription at the end of the will is
substituted for a signing, and provision made for acknowledging and publishing
the will, and the number of witnesses is reduced from three to two. No
other alteration was intended by the legislature, at the time of the revision.
Accordingly, where the testator had received an injury, which made it
difficult for him to hold a
pen — his fingers being partially paralyzed, and another person signed his (the
testator's) name to his will at the testator's request and in Ins presence ;
after which the testator acknowledged the
signature to be his, and
declared the instrument to be his last will and testament, and requested two persons to sign
it as witnesses; Held that this
waa a valid execution of the
will.
APPEAL from a decree of the surrogate of the county of Steuben, establishing the will of
John Robins deceased, as a
valid will of real and personal estate, and admitting the same to probate as such. The will
was contested by the children and heirs at law of the deceased,
on the ground that the
same was not properly
executed. The proof in regard to the execution was that the testator
had received an injury to the spinal marrow, a little below the
points of the shoulders, the effect of which was to paralyze
the parts below; that it, in a measure, paralyzed the arms and
the fingers, which made it
difficult, at least, to hold
a pen. That the doctor told him he had better not try to write;
he did not think he could use his fingers to do it. The
testator then requested Mr. Cobb, one of the attesting witnesses, (the
other attesting witness being also present,) to sign his (the
testator's) name, at the end of the will. Mr. Cobb did so in his presence ;
after which he took the paper and held it up to the testator,
and asked him if he could read it. He replied that he could. Mr.
Cobb then asked him if he acknowledged it as his signature. He said he
did, and at the same time
declared it to be his last will and testament, and requested the witnesses to sign it as such.
It had been previously read
over to him, and he appeared to understand it. Cobb then wrote the attestation
clause, and he, and another person, signed the same as witnesses, in the presence of the testator and in the presence of each
other.
Two
of the heirs at law of the testator appealed from the decree.
S. H. Hammond, for the appellants.
G. H. McMaster, for the
respondent.
By the Court, E. DARWIN SMITH, J. The only question presented upon this appeal is,
whether under our statute a will can be properly executed
without being attested by the actual sign manual of the
testator. The statute of frauds and perjuries, of the 29th of
Charles 2, ch. 3, declared that "all devises of lands and tenements should
not only be in writing but
signed by the testator or some other person in his presence and by his express
directions, and be subscribed in his presence by three or more
credible witnesses." This statute was re-enacted in this state
after the revolution, and remained the law until the revision of
1830. (1 Rev. Laws of 1813, .p. 364, §2.)
The
revisers proposed to re-enact this statute precisely as it stood, in substance, and
reported a section for that purpose, and also reported an additional
section which was enacted as reported, and was numbered 33 in
the first edition of the statute, and is now section 41 of the
fourth edition. Instead of enacting section 5 of the
revisers' report, the legislature substituted the present section, number 32,
in the first edition of the
statutes, which is as follows: Sec. 32. "Every last will and testament of real or personal
property, or both, shall be executed and attested in the
following manner : 1st. It shall be subscribed by the testator, at
the end of the will. 2d. Such subscription shall be made
by the testator in the presence of each of the attesting
witnesses, or shall be acknowledged by him to have been so made, to
each of the attesting witnesses. 3d. The testator, at
the time of making such subscription or at the time of acknowledging the same, shall
declare the instrument so
subscrihed to be his last will and testament. 4th. There shall be at least two
attesting witnesses, each of
whom shall sign his name as a witness at the end of the will, at the request of the
testator." It is not claimed by
the appellant, upon this
appeal, that all the provisions of this section have not been fully
complied with in respect to the execution and publishing of the,
will in question, except the provisions relative to the
subscription of the will by the testator. The name of the testator was put
to this will by a subscribing
witness, by the express
direction of the testator. The question is, whether such a
subscription is valid, under this statute. The provision in this
section, that the will shall be subscribed by the testator at
the end of the will, coupled with the omission of the provision in
the act of 29 Charles 2, and
in our statutes, before the
revision of 1830, and in the section as reported by the revisers, of
the words "or some other person in his presence, and by his
express direction," is supposed to imply a purpose on the part of
the legislature to alter the law upon this subject so as to
disallow such an attestation as was made in this case, and such
as was clearly allowable before the revision. By requiring a
subscription by the testator, and at the end of the will, the
legislature clearly intended to repudiate the preposterous
misconstruction which had been given by the English courts to
the statute of Charles 2, that a will might be signed any
where, at the beginning, upon the side or margin of any sheet, or
at the end. (3 Levins, 86. v. Stanley, 9
Ves. 248.) But in requiring a subscription instead of signing, as in the old
law, and at the end of the
will, I think the legislature intended no other alteration
of the law on that point. If
they had not enacted the next section (§ 33,) precisely as
reported by the revisers, or had stricken out of it the words
"and every person who shall sign the testator's name to any will,
by his directions, &c." then the inference would have been
legitimate and unavoidable that
they intended to alter the
law, and disallow such a subscripttion or signature. But it seems to me that the enactment of section 33, containing the words
just quoted, is a clear legislative declaration that such signature
or subscription to a will, that is, putting the testator's
name thereto by his direction,
is a proper and sufficient
subscription thereof by the testator. It certainly negatives the idea
that the legislature intended to change the law in that
particular. And such is the view of this section entertained by
Chancellor Walworth in 10 Paige, 91, 92. (And see 4
Comst. 146 ; Lewis v. Lewis, 13 Barb. 17.) The fact, also, that in
subdivision 2 of said section 32, it is provided that the testator may
acknowledge his subscription to the will to each of the
attesting witnesses, confirms the view that the legislature did not
intend to require an actual subscription in the presence of
such witnesses, as indispensable to the validity of the will. When
the witnesses do not see the
will signed, its execution is equally valid if it is then
acknowledged to them. And in
such case the question could not arise, or the objection
obviously could not be maintained, that the signature was not in the
actual handwriting of the testator. When the testator has
acknowledged the execution of the will, as prescribed in the
statute, it cannot be material that the signature was, or is,
his actual sign manual or handwriting, or was put thereto by another, by
his directions. If the
statute requires, as the counsel for the appellant contends, an actual manual
subscription by the testator, then it follows of course that no will can be
valid without such subscription. This construction of the statute
would preclude persons who were unable to write from
physical disability, or other cause, from making a will at all ; for
the subscription of the statute doubtless means and requires that
the name of the testator be written in fact at the end of the
will. Such construction would render entirely nugatory
the above section 33, except the provision that the witnesses
shall write opposite their names their places of residence.
But this objection is met by the argument that this section is
designed to apply to cases where the testator subscribed by
making his mark. It seems to me that this concession practically concedes the whole ground. It allows a species of
substituted subscription in the place of an actual one in the
hand writing of the testator, in person. If the legislature
intended to require the actual personal subscription of the testator to
prevent frauds and forgeries and perjuries, or any other
rational object, such purpose is as completely frustrated by
allowing a subscription by marks or signs
as by allowing such subscription to be made by another person in the
presence, and by the direction, of the testator. Marks are
merely arbitrary signs or symbols — mean nothing, identify nothing, and
constitute no material testimony in establishing a subscription in
fact by the testator. (12 Ves. 458. 1 .Rob. on
Wills, 94.) Such attestation, however, by the testator, was held valid
before the revision of our statute, (5 John. 144. 1
Jarman on Wills, 111,) and since such revision in 10
Paige, 86. And it was also held under the statute 29 Car. 2,
chap. 3, which requires that the will shall be subscribed by three
witnesses, &c.; that the making
of his mark by a witness was
a sufficient subscription by him. (Addy v. Grix, 8
Ves. 504. Harrison v. Harrison, Id. 185. Jackson v. Van Dusen, 5
John. 144.) But the attestation by the testator by his
mark being a sufficient signing by him, and the attestation by their
marks a sufficient subscription
for the witnesses, the
provision in the statute for a subscription of the testator's name in his
presence, and by his express directions, must have been intended for some
other mode of subscription than by marks or
signs. In none of the cases is the attestation by marks referred to,
or based upon that provision of the statute. Signatures by
marks are treated as original signatures, as a signing
or subscription by the testator and witnesses, the same as the
writing of their name in person; and so it is in respect to all
deeds or written instruments. (7 Sing. 457. 2 Ves. 454.
Atk. 177. 12 Peters, 150. Baker v. Deming, 8
Adolph. & Ellis, 94.) If, therefore, the subscription
of the testator's name in his presence and by his express
directions, to a will, was ever in any case a valid subscription, without any mark or sign of the testator thereto, then the will
in this case was properly executed. If not, this provision was
always, in the act of 29 Car. 2, and in our former statute, (1
R. L. 364, sec. 2,) as well as the above provision in section 33
to the same effect, utterly
unnecessary and
nugatory.
But
the counsel for the appellant also insists that a will must be personally signed by the
testator, and cannot be executed by an agent; that while all other
deeds and contracts or
instruments in writing may be executed by an agent, wills cannot be so executed. If this be
so, it is, I think, a mistake,
to regard a will to which the
testator's name is subscribed by another person in his presence
and by his express directions,
as executed by an agent. What
is done for a man in his presence and by his
express directions, is his act and deed. If a man tells his wife or his
son, or any other person, to put his name to a deed or promissory
note, and it is done in his presence and in pursuance of such
directions, it is well executed
by him. Such execution, not
being in his handwriting, would of course require proof of
such authority and directions and manner of execution. To meet
this necessity in respect to
wills, said section 33 requires that "every person who shall sign the testator's name to any
will, by his direction, shall
write his own name as a
witness to the will." Such an execution of a will is not done by an
agent. It is done by the testator himself.
Upon
the point in question, I think the law in regard to the execution of wills
remains as it is, in England, and as it was in this state before the
revision of 1830 ; except that a subscription at the end of
the will is substituted for a signing, and a provision made for
acknowledging and publishing the
will, and the number of
witnesses is reduced from three to two. That no other alteration was
intended by the legislature at the time of the revision; and
that the execution of the will in this case in the manner stated
in the case, as it would have been clearly valid before 1830,
is valid still, under the present statute. The decree of the surrogate admitting the said will to probate and establishing the
same as a valid will, should therefore be affirmed.
Decree affirmed.
[CAYUGA GENERAL TERM, June 7, 1858. Johnson,
Welles and Smith, Justices.] |
