train was in motion. 56 N. Y., 302; 16 Gray, 501; 6 id., 64; Penn. R. R. Co. v. Kilgore, 32 Penn. St. 292; and Filer v. N. Y. C. R. R. Co., distinguished and explained.

Judgment and order of General Term, denying defendant's motion for a new trial, reversed, and new trial ordered.

Opinion by Rapallo, J.

want of the county seal upon the warrants, and that inasmuch as they did not bear the seal, (the fact having been decided in the suit against the county,) the guaranty was broken and the defendant was liable.

In error to the Circuit Court of the United States for the District of Iowa.

The plaintiff was a resident of Maryland, the defendant of Iowa.



Charles C. Smeltzer, plff. in error, v.
Miles White, deft. in error.

Decided January, 1876.

The claim now is that a guaranty that the warrants were 66 'genuine and regularly issued," meant only that they were not forgeries, that they were not issued without consideration, and that they were ordered by the proper officers; that the plaintiff was bound to know, or must be presumed to have known, that the law required county warA guaranty that certain county warrants to be sealed with the county seal, rants are "genuine and regularly and that, as the defect was apparent on issued," means that they are valid, the face of the instruments sold and guarlegal claims against the county. Such a guaranty covers the defect in the warrants of the want of a proper seal, without which they would be invalid. Evidence that the warrants were is sued for legal claims against the county, is inadmissible so long as the bonds were invalid for want of

a seal.

To recover upon a guaranty it is not necessary to return, or offer to return, the property purchased upon its faith.

antied, the guaranties must be construed as not covering a patent defect; that the Circuit Court erred in holding defendant estopped by the judgments rendered in the plaintiff's suits against the county; that the court erred in overruling the defendant's offer to show that the warrants were regularly issued for legal claims against the county; that the court erred in refusing to charge, as requested, that there could be no recovery without a return of the warrants, and in charging as follows: "It is not necessary thus to recover, that the plaintiff should, before suit was brought, have tendered back the warrants mentioned in said written guaranties. It is enough that they are in court at the trial, and the court can order them to be retained, and on payment of the judgment rendered herein, to be delivered to the defendants.

The suit was founded upon express guaranties of the genuineness and regularity of issue of county warrants; guaranties which the plaintiff alleged had been broken. He had sued the county to recover the amount of the warrants, and had been defeated, for the general reasons that the seal of the county had not been Held, 1, That in construing a guaranty attached to the warrants, and that under it is proper to look at all the surrounding the laws of Iowa, as held by the court, circumstances; that plaintiff residing in the warrants were invalid unless they Maryland, and purchasing Iowa warrants bore the impress of the county seal. In from a citizen of Iowa, he may be prethe present suit against the guarantor, sumed to have required the guaranty for the circuit judge instructed the jury that the very purpose of assuring himself that the guarantees covered the defect of the the warrants were valid and legal claims

against the county, which might be en- recovered without a return or tender of
forced by law.
the property.

Judgment affirmed.
Opinion by Strong, J.

2. That the absence of a seal was not a patent defect, equally within the knowledge of defendant and plaintiff; whether or not they required a seal depended upon the laws of Iowa, of which it may be presumed plaintiff had no actual knowledge, and it was for that reason he desired a guaranty, and that the guaranty covered the defect. Otherwise, the only guaranty which would protect him would be one co-extensive with the defenses to which such instruments were subject in suits against the county, founded upon a non-compliance with the state law on the part of the county officers.

3. That if the court charged that defendant was estopped by the judgments against plaintiff, such charge was harmless. The warrants were in evidence, and

they exhibited the fact, not contradicted, that they were not sealed as the law required. They were, therefore, not genuine county warrants regularly issued, and it was the duty of the court so to declare

them. The defendant's contract was broken as soon as it was made, and the

plaintiff was entitled to a verdict, no matter whether the judgments in the suits. against the county were conclusive or not.

4. That the court properly overruled defendant's offer to show that the warrants were regularly issued for legal claims against the county. The evidence proposed had no relevancy to the issue in the case. That the warrants were issued for debts due by the county was of no importance if they were not genuine, and in the form that the law required, to enable the holder to set them up as legitimate claims against the county.

5. That plaintiff was not bound to return the warrants before suit. He did not seek to rescind the sale, but relied upon an express warranty, in which case it is a universal rule that damages may be


N. Y. COURT OF APPEALS. Chipman et al., v. Montgomery. Decided February 1, 1876. Where, by section 306 of the Code, the court has discretion as to costs, it may exercise that discretion at every stage of the action.

The rule governing costs of cross appeals, applied to a peculiar case.

This was a motion to correct a remittitur as to costs.

struction of a will and for an adjudicaThe action was brought for the contion upon the rights of the parties thereunder. The court below refused to con

strue the will or adjudicate upon the rights of the parties, and dismissed the complaint. Plaintiffs appealed from that complaint. Plaintiffs appealed from that portion of the judgment dismissing the complaint, and both parties appealed from that part refusing to construe the will and The judgment below was affirmed by this adjudicate upon the rights of the parties.

court with costs.

J. W. Russell for motion. E. C. James contra.

Held, That the questions involved in the cross appeals could only have been considered on the reversal of the principal judgment dismissing the complaint; that plaintiffs failing in that the other appeals were unimportant, and defendants were successful in the litigation, and plaintiffs were properly chargable with costs; that this being an action wherein by Sec. 306 of the Code, costs are in the discretion of the court. The costs of all the appeals were in the discretion of this court; that that discretion exists and may be exercised in every stage of the action, and that the further provision that in certain specified cases the costs of an appeal shall

be in the discretion of the court, was intended to extend the discretion to cases in which, but for that provision, costs would have been recoverable by the prevailing party, under sections 304, 305.

and after notice of trial, five term fees, an issue of fact and of law, and motion for receiver, on the ground that by the stipulation the same costs were to be allowed as in the Dovey suit.

A retaxation was ordered at Special Term, allowing only such costs as were

Motion granted, and remittitur amended so as to give the defendants costs on the plaintiff's appeal from the judgment appropriate to this suit at the stage which it had reached when the stipulation was entered.

dismissing the complaint, and denying any other costs to either party as against the other upon the other appeals.

Per curiam opinion.

F. C. Bowman for respts.
Hatch & Beneville for applts.

On appeal, Held, That the terms of the stipulation providing that costs are to be entered on the result of the Dovey suit, "the same as if a trial had been had



Audenreid, et al., respts., v. Wilson, et therein," a fair interpretation would ential., applts.

tle the successful party to the costs that had accrued at the time it was made, and to the trial fee of an issue of fact, and nothing more.

Opinion by Brady, J.

Decided January 28, 1876. Under a stipulation to allow judgment in accordance with the determination of another suit, with costs, the same as if a trial had been had, it is proper to allow such costs as were appropriate up to the time of the stipulation and trial for issue of fact.

Appeal from an order directing a retaxation of costs.

This and another similar action, in which one Dovey and others were plaintiffs, were brought against these defendants, to set aside certain assignments as fraudulent. For convenience, it was stipulated that this suit be stayed, and wait the result of the Dovey suit, which result should be adopted as final in this and that "either party be at liberty to enter judgment, with costs, as the result of the Dovey suit will determine for plaintiffs or defendants, the same as if a trial had been had therein." No answer had been served in this suit, or any subsequent steps taken.

In the Dovey suit judgment was entered for defendant, the complaint being dismissed by default.

The plaintiff in error was convicted of perjury committed before the Fire Marshal of the City of New York, who was investigating the cause, origin and cirudgment for costs for proceedings before cumstances of a fire, pursuant to chapter

The defendant thereupon entered up




N. Y. COURT of Appeals.

Harris, plff. in error v. The People, defts. in error.

Decided February 8, 1876.

The Fire Marshal of the City of New York has power to administer an oath upon an inquiry into the cause or circumstances of a fire, without first having a complaint under oath made before him.

On the trial of an indictment for perjury,which charged the prisoner with having sworn falsely that he had lost 60,000 cigars by fire, and the proof showed that he swore to having lost 65,000, the variance is immaterial, and it cannot be raised on appeal. Inconsistency and repugnancy in a


563 of the laws of 1868, and the acts (§ 76) all the duties given and imposed by amendatory thereof, and supplementary the previous statutes.

Ira Shafer, for plff. in error. Benj. K. Phelps, for defts. in error. Held, That no complaint was necessary to call into action the powers of the Fire Marshal, that he had all the authority conferred upon the Superintendents of Police by chap. 332, laws of 1852, as amended by chap. 569, laws of 1857, and he thus had authority to subpoena witnesses and swear them; that there was no repeal of chap. 563, laws of 1868, by the subsequent statutes. Plaintiff in error claimed that there was a fatal variance between the indictment and the proof, in that the indictment alleged that the prisoner swore before the marshal, among other items, that there were 60,000 cigars in the building at the time of the fire, while the proof showed that he swore that there were 65,000 therein. The point was not raised upon the trial.

Held, That the point could not be raised there; as, if it had been raised the testimony might have been excluded, or the jury directed to disregard it, and the

thereto. It was claimed upon the trial, on behalf of the prisoner, that it did not appear that the Fire Marshal had power, or authority to administer an oath to him, as no evidence was given of a complaint under oath having been made. Section 1, chapter 332 of the laws of 1852, as amended by § 36, chapter 569, laws of 1857, authorized and required the General Superintendent of Police of New York City to investigate the origin of every fire occurring in said city, and invested him with the same powers, and jurisdiction as the police justices possessed. The police justices had jurisdiction upon complaint made to them, to subpœna and swear witnesses for the purpose of ascertaining whether any crime had been committed. The act of 1868 created the office of Metropolitan Fire Marshal, and made it his duty to examine into the cause, circumstances and origin of fires, and take the testimony on oath, and cause the same to be reduced to writing, and (§ 3) gave him power to issue subpoenas for witnesses, and to administer and verify proof of false swearing as to the other oaths and affirmations to witnesses ap-items would sustain the verdict but, that pearing before him, and that false swear- if properly raised this variance was not maing in any matter or proceedings before terial and could be disregarded; that the him, should be deemed perjury and should perjury was not so much in swearing to be punishable as such. By section 44 of the precise number destroyed, but in swearchapter 338, laws of 1870, the Board of ing to a much larger number than he had Police were given power to appoint a Fire lost 5 Wend., 271. When an indictMarshal, who was to have the same pow- ment charges that the prisoner has stolen ers and duties conferred by chapter 563, a number of articles, or inflicted a numlaws of 1868. By § 4, chap. 584, laws of ber of blows, or has obtained goods by a 1871, it was provided that all provisions number of false pretences, or has sworn of the act of 1868 should remain in force, falsely in an affidavit as to several facts, and, for investigating fires and bringing to it is not necessary to prove all that is punishment parties guilty of arson, in- charged. It is sufficient to prove enough vested the Fire Marshal with the same to make out the offence charged. 3 Russ powers and jurisdiction as were conferred on Cr. 4th Lond. Ed. 105; 2 Ld., Ray upon the Superintendent of Police by the 886; 4 C. H., Rec. 125; Ros. Cr. Ev. 6th act of 1852, as amended by the act of Am. ed., 763. There were two counts in 1857. The charter of 1873 gave the ap- the indictment, the first charging perjury pointment of Fire Marshal to the Fire in the oral testimony given before the Commissioners, but conferred upon him Fire Marshal, and the second charging

perjury in swearing to an affidavit before such testimony was thereafter received the same officer, containing in substance subject to objection. the same matter testified to orally. The jury found the prisoner guilty under the second count only. It appeared that the marshal was not present when all the oral evidence was given.

The plaintiff claimed to recover the possession of only a strip of land, part of the demanded premises, one inch wide in front on Windsor street, and four inches wide in the rear, running back forty-four Held, That the jury may have found feet. Of this strip the defendant had disthat as to the oral evidence the false seized the plaintiff. The report of the swearing charged did not take place be- committee described this strip, and found fore the marshal, and hence that the that it was worth at the rate of $100 per prisoner was not guilty as to that; that foot on Windsor street, and that the value there is no repugnancy or inconsistency in of the whole of the demanded premises the verdict. was between $3,000 and $4,000, and that

the plaintiff had suffered damage by the disseizing the sum of five dollars.

Judgment of General Term, affirming judgment of conviction, affirmed. Opinion by Earl, J.


Sullivan v. Vail.

Decided February Term, 1875. In ejectment, the value of the land is immaterial.

A court will not be deprived of jurisdiction unless it appears affirmatively in the declaration that the "matter in demand" is beyond its jurisdiction.

Ejectment: brought to the Court of Common Pleas of Hartford County. The writ claimed $300 damages. The following facts were found by a committee:

The report being accepted by the court the defendant moved that the cause be erased from the docket on the ground that the court had no jurisdiction.

The second section of the act of 1869, (Acts of 1869, p. 313), which created the Court of Common Pleas, provides that it should have "exclusive original jurisdiction over all civil causes which shall be brought before it according to law, and in which the debt, damages, or matter in demand, exceeds the jurisdiction of a justice of the peace, and does not exceed the sum of $500.”

The revision of 1875, p. 413, sec. 2, provides that "all causes at law, wherein the matter in demand exceeds $100, but does not exceed $500, in amount or value, shall be brought to the Court of Common Pleas," &c.

Held, The "matter in demand" is determined by the demand in the declaration, unless the declaration, on its face, fails to support the demand.

The declaration contains no allegation as to the value of the land, or the value of the plaintiff's right to the possession of the same; certainly no mere presumption of value, for the purpose of ousting the court of its jurisdiction can, or ought to be made.

We doubt whether the value of the land

The plaintiff has been the owner in fee and in possession of the demanded premises from the 17th day of June, 1956, until the present time, except that portion of the same of which he has been disseized by the defendant. On the trial the plaintiff testified that the demanded premises were worth the sum of $4,000, without including the house, whereupon the defendant objected to the admission of any further testimony on the part of the plaintiff, on the ground that the court had no jurisdiction of the case, and all is necessarily a part of the matter in de

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