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Appeal from a judgment rendered on a verdict at the Oneida Circuit.

The action was brought against the defendant, as sheriff, for the escape of one John Tillinghast, whom he had arrested.

when on the witness stand, testified
was his official office.

C. D. Adams, for applt.
S. M. Lindsley, for respt.

Held, The escape being without defendant's consent, it would have been a defense if he had the prisoner within the limits, either by

Said Tillinghast had been administrator, with the will annexed, of voluntary return or recapture, when one Ross Taylor, deceased, and was the action was begun. Code of Civil removed by the surrogate of Oneida Procedure, § 171. Thus it was imCounty for failure to give new sure- portant, assuming the sheriff had a ties, when cited to do so in March, right to admit the prisoner to the 1875. limits, for plaintiff to prove that One Boyle, a creditor of the es- the action was begun during the tate, applied for an accounting by prisoner's absence. Defendant obsaid Tillinghast, as late administra- jects that there was no evidence tor, and Tillinghast himself petition- that the room where the summons ed for a general accounting. Upon was delivered to his clerk, was his such accounting, the decree charg-"designated" office, within subdivised Tillinghast with certain monies ion 3 of section 426 of the Code, as shown to be in his hands. Pre- amended in 1879. We think the cepts were issued, thereupon, in sheriff's own evidence sufficient to favor of four creditors of the estate, establish this prima facie. for the sums found due to them. But, in addition, plaintiff on this These precepts recited the decree, appeal produced a certified copy of and personal demands made upon the certificate filed in the county Tillinghast and his refusal to pay; clerk's office, designating the same and were endorsed with the several locality as his office. If such a amounts found to be due. They proof was necessary, it might, if directed the sheriff to take said Tillinghast and detain him till he should pay the several sums named, with interest and costs.

omitted on the trial, be proven on the appeal to sustain the judgment. The question was left to the jury whether Tillinghast was off the limTillinghast was arrested on these its at the time when the summons precepts and admitted to bail for was served, and they must be deemthe jail limits. On the 23d of Au-ed to have found in the affirmative. gust, 1879, he went beyond the lim- Defendant objected to proof of its, and while he was so absent, a the several precepts, claiming that suit was begun against the sheriff plaintiff must show the proceedings for an escape, by plaintiff, as as- upon which they were issued. The signee of the several claims. decree upon which they were issued The action was begun by delivery was put in evidence, and fully reof the summons to the sheriff's cited all necessary jurisdictional clerk, at a place which the sheriff, facts, and the order removing Til

Vol. 10-No. 14.*

linghast from his position was also reduced to one by our Code of Prointroduced. By art. 3 of title 3. cedure. Section 158 of the Code chap. 6 of the 2d part of the Revis- was evidently intended to provide ed Statutes, §§ 63, 64; 3 Revised that in all cases where the prisoner Statutes, 6th ed., pp. 99, 100, an ad- was committed on final process and ministrator may render his final ac- escaped, the sheriff should be ancount voluntarily or upon citation. swerable for the sum for which he Laws 1837, chap. 460, as amended was committed, and it restricts eviby laws 1862, chap. 229, confers on dence in mitigation of damages to the surrogate the same jurisdiction cases where the prisoner was comto take the account of an adminis-mitted on mesne process. The protrator who has been removed from vision for this class of cases being his office. Laws 1865, chap. 773, that "the sheriff shall be answerprovide that an administrator who able for the debt, damages or sum has been removed may be com- of money," &c., it makes him liable pelled to account to, and pay over for interest on the debt when, as in funds to his successor in office; but the present case, he was directed to this did not repeal the previous collect interest. statutes, and such administrators may still be cited to account by any person interested. 28 How., 324; Redfield's Surrogate Practice, 364. In this case it does not appear that any successor was appointed.

As to whether the sheriff had any right in this case to admit Tillinghast to the jail liberties, the question seems to be undetermined and is not necessary to be decided here. See 69 N. Y., 536; 7 Abb. N. C., 380. Judgment affirmed.

Opinion by Talcott, P. J.; Smith and Hardin, JJ., concur.

The surrogate having jurisdiction of the matter of accounting, and of the person of the administrator, the judgment was not void, however erroneous in particular points. But TOWN BONDING ACT OF 1871. the sheriff cannot avail himself of

TERM. FOURTH DEPT.

The Syracuse Savings Bank, respt., v. The Town of Seneca Falls, applt.

any error in the judgment or in the N. Y. SUPREME COURT. GENERAL process upon which he made the arrest, to excuse an escape, unless the process was absolutely void. 15 Johns., 155; 1 Cowen, 309; 5 Johns., 89; 8 Cowen, 192; 1 Abb. Pr., 433. This is an answer to all objections to particular items allowed by the surrogate.

Defendant pleaded and offered to prove the insolvency of Tillinghast, which was rejected. It is settled that in an action of debt, for an escape, the officer is liable for the full amount, and all forms of action are

Decided June, 1880.

The Town Bonding Act of 1871 did not repeal

so much of the Act of 1869 as that it destroyed the force and effect of the judgment of the county judge, or the power of the commissioners thereby appointed to subscribe for stock and to issue bonds in pursuance of the latter act. Section 4 of the Act of 1869, as amended by the Act of 1871, empowered the commissioners to make bonds payable in thirty years from date, or at any time less than thirty

years, as they should elect; but, in the former case, the bonds were all to be payable at one time, in the latter, they were to be distributed so that not more than ten per cent.

of the entire amount should become due in

any one year.

Hiscock, Gifford & Doheny, for respt.

Held, That without adverting particularly to the changes wrought by the amendments referred to, so far as they bear upon the appellant's first claim above stated, it is enough

Appeal from order of Special Term, and judgment entered thereon, sustaining demurrer to answer. to say that that identical question Action to recover the amount due was decided adveresly to the views on interest coupons of bonds issued of appellant in Angel v. Town of by defendant in aid of construction Hume, 17 Hun, 374, which case is of the P. & S. B. R. R. Co. Pro- to be regarded as decisive of the ceedings to issue bonds were duly point. commenced under the Bonding Act of 1869, and judgment was entered therein 26th August, 1870, and on that day the commissioners to issue bonds were duly appointed. Bonds were issued July 1871, dated that the commissioners to make the day, and all made payable at one time, namely, thirty years from their date. The Act of 1871, amending the Act of 1869, was passed May 12, 1871, and took effect on that day, Laws 1871, ch. 925, prior to issuing the bonds in question.

Held also, That the Act of 1871 did not repeal section 4 of the Act of 1869, but the provisions of both acts, as incorporated in the Act of 1871, stand together, and empowered

bonds payable in thirty years from date, or at any time less than thirty years, as they should elect; but, in the former case, the bonds were all to be made payable at one time, and in the latter case, they were to be distributed in point of time of maturing, so that not more than ten per cent. of the entire principal would become due in any one year.

Appellant claimed (1st) that the Act of 1871 repealed so much of the Act of 1869 as that it destroyed the force and effect of the judgment of the county judge, and took away the power of the commissioners J., and Hardin, J. concurring.

thereby appointed to subscribe for

Order and judgment affirmed.
Opinion by Smith, J.; Talcott, P.

stock or to issue bonds in pursuance CONVEYANCE. MUTUAL MISof the Act of 1869, and that it did

not confer authority upon the com

TAKE.

missioners to do either of those N. Y. SUPREME COURT.

things, in pursuance of its own provisions; and (2d), that the provision of the Act of 1871, amending section 4 of the Act of 1869, as to the time when the bonds should be made due and payable, repealed the latter.

Comstock & Bennett, for applt.

GENERAL

TERM. FOURTH DEPT.
John Paine, applt., v. James H.
Upton et al., respts.

Decided June, 1580.

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Where, through a mutual mistake, the quantity of land conveyed is misstated in the deed, and belief in the correctness of the amount as stated formed the basis of negotiation and

agreement of the parties, the vendee is not ity in this state holding that in such foreclosed by acceptance of the deed from a case a court of equity will not give obtaining relief by recovering back so much relief. The cases relied upon by reof the price as was computed and paid by mistake. spondents, namely, Veeder v. Fonda, 3 Paige, 94; Marvin v. Bennett, 26 Wend., 169, and Belknap v. Sealey, 14 N.Y., 144, at the most contain mere dicta, and are not adjudications in point. Considering the question as an open one, there is no sound

Appeal from judgment dismissing complaint, entered on decision of Special Term on trial of the action. Action to recover back so much of the price per acre of land purchased by plaintiff from defendants reason for holding that the vendee is foreclosed by acceptance of the deed from obtaining the relief sought in this action.

as was computed and paid by mistake. The fact of a mutual mistake as to the quantity of land sold was found by the trial court. The land was believed by all parties to contain 220 acres and upwards, but in fact it contained only 206 acres and a fraction. The court also found that such belief was the basis of the negotiation and agreement of the parties. But the court below held that appellant was concluded by the fact that the agreement had been consummated by a conveyance.

H. R. Selden and Theodore Bacon,

for applt.

D. C. Hyde and E Harris, for respts.

Held also, That the circumstance that the land is described by metes and bounds, and the term "more or less" are added after a statement of the quantity, does not affect the right to relief, if plaintiff is otherwise entitled to it. 14 N. Y., 144.

Judgment reversed and new trial ordered.

Opinion by Smith, J.; Talcott, P. J., and Hardin, J., concurring.

EJECTION OF PASSENGER.
CODE, SECTION 999.

Held, On the state of facts found N. Y. SUPREME COURT. GENERAL

by the court below, the case is not one of a sale in gross, so that the contract is satisfied by a conveyance of the land within the boundaries stated, whether it contained more or less than the specified number of

acres.

Held also, That as the mistake was not discovered until after the deed was delivered and the purchaser had gone into possession, the mistake entered into and affected the deed as well as the executory contract.

Held also, That there is no author

TERM. FOURTH DEPT.

William H. Robson, respt, v. The N. Y. C. & H. R. R.R. Co., applt.

Decided June, 1880.

When a passenger on a railroad fails to pro

duce his ticket on demand of conductor, not through willfulness or with intent to defraud, but through having forgotten where he had placed it, so that, for the time, he is unable to find it, the conductor has no right to eject him from the car until he has stated the amount of the fare to him and demanded payment thereof.

It is doubtful whether the provision of Section 999, Code of Civil Procedure, permitting a motion on minutes to set aside verdict be

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at the trial.

The conductor is to be held to assume the risk of the correctness of his determination that.

the passenger's failure to produce the ticket

was wilful.

The ticket having been once presented to the conductor and punched by him, he is bound to assume, when the passenger fails to pro

duce it on a subsequent demand, that the passenger has mislaid it, and intends to produce it when found, tlil the contrary ap pears, and is bound also to give the passenger a reasonable time for the purpose.

Appeal from judgment on verdict for plaintiff, and from order denying motion for new trial on minutes.

cause "contrary to law," was intended to The court charged the jury that authorize a motion to set aside verdict on if they should find the fact to be as ground of error in the charge, to which no above stated, the conductor had no exception was taken, and which, if the attention of the trial judge had been directed to it right to eject plaintiff from the car by an exception, might have been corrected until he had demanded payment of fare and had stated to plaintiff what the amount of fare was. It was insisted by appellant that the verdict was contrary to law, because the court charged that the conductor took the risk of the correctness of his determination that plaintiff's failure to produce the ticket was wilful. No exception was taken on the trial to this portion of the charge. The court further charged that the conductor should have given to plaintiff the benefit of the presumption that his failure to proAction for damages for ejection of duce the ticket was due to his havplaintiff from a car on defendant's ing misplaced it and being unable road, in which he was a passenger. to find it. Exception by defendant. It was undisputed on the trial In the same sentence the judge told that plaintiff purchased a ticket for the jury that the conductor should his passage on defendant's cars from have given plaintiff reasonable Newark to Port Byron, and that the time in which to produce the ticket, conductor saw and punched it soon and if not produced in a reasonable after the train left Newark. When time, it was the duty of the conducthe train was approaching Port tor to have required payment of Byron, the conductor again called fare; and in the next sentence, the on plaintiff for his ticket, and, on jury were instructed that the queshis failure to produce the same, put tion of what was reasonable time him off the train, without stating was for them to decide upon the the amount of fare due or demand- evidence, including that which reing payment thereof. The verdict lated to the state of mind and inestablished, on conflicting evidence, that when the conductor called for the ticket, on approaching Port Byron station, plaintiff's failure to produce it was not wilful or with intent to wrong the company, but was the result of his having forgot ten where he had placed it, so that he was, for the time, unable to find

it.

tention of plaintiff at the time the conductor asked him for the ticket. E. Harris, for applt.

H. V. Howland, for respt.

Held, (1st.), The instruction was correct. (2d), As no exception was taken to this part of charge, the point cannot be raised unless brought up by the appeal from the order denying new trial. Motion

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