train was in motion. 56 N. Y., 302; 16 want of the county seal upon the warGray, 501; 6 id., 64; Penn. R. R. Co v. rants, and that inasmuch as they did not Kilgore, 32 Penn. St. 292 ; and Filer v. bear the seal, (the fact having been deN. Y. C. R. R. Co., distinguished and excided in the suit against the county,) the plained.

guaranty was broken and the defendant Judgment and order of General Term, was liable. denying defendant's motion for a new The plaintiff was a resident of Marytrial, reversed, and new trial ordered.

land, the defendant of Iowa. Opinion by Rapallo, J.

The claim now is that a guaranty that the warrants were “genuine and

regularly issued,” meant only that they GUARANTY. EVIDENCE. were not forgeries, that they were not U. S. SUPREME COURT.

issued without consideration, and that Charles C. Smeltzer, piff. in error, v. they were ordered by the proper offiMiles White, dejt. in error.

cers; that the plaintiff was bound to

know, or must be presumed to have Decided January, 1876.

known, that the law required county warA guaranty that certain county war. rants 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 guar

legal claims against the county. Such a guaranty covers the defect in antied, the guaranties must be construed

the warrants of the want of a proper as not covering a patent defect; that the seal, without which they would be Circuit Court erred in holding defendant invalid.

estopped by the judgments rendered in Evidence that the warrants were is the plaintiff's suits against the county; sued for legal claims against the that the court erred in overruling the decounty, is inadmissible 80 long as fendant's offer to show that the warrants

the bonds were invalid for want of were regularly issued for legal claims To recover upon a guaranty it is not against the county; that the court erred

necessary to return, or offer to return, in refusing to charge, as requested, that the property purchased upon its there could be no recovery without a refaith.

turn of the warrants, and in charging as In error to the Circnit Court of the follows: “It is not necessary thus to reUnited States for the District of Iowa. cover, that the plaintiff should, before

The suit was founded upon express suit was brought, have tendered back the guaranties of the genuiveness and regu- warrants mentioned in said written guarlarity of issue of county warrants ; guar- anties. It is enough that they are in anties which the plaintiff alleged had court at the trial, and the court can order been broken. He had sued the county to them to be retained, and on payment of recover the amount of the warrants, and the judgment rendered herein, to be dehad been defeated, for the general reasons livered to the defendants. 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

a seal.

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

the property. 2. That the absence of a seal was not a

Judgment affirmed. patent defect, equally within the knowl

Opinion by Strong, J. edge of defendant and plaintiff; whether or not they required a seal depended upon

COSTS. the laws of Iowa, of which it may be pre

N. Y. COURT OF APPEALS. sumed plaintiff had no actual knowledge, and it was for that reason he desired

Chipman et al., v. Montgomery. a guaranty, and that the guaranty cov

Decided February 1, 1876. ered the defect. Otherwise, the only Where, by section 306 of the Code, the guaranty which would protect him would

court has discretion as to costs, it be one co-extensive with the defenses to

may exercise that discretion at every which such instruments were subject in

stage of the action. suits against the county, founded upon a

The rule governing costs of cross-apnon-compliance with the state law on the

peals, applied to a peculiar case. part of the county officers.

This was a motion to correct a remitti.

tur as to costs. 3. That if the court charged that defendant was estopped by the judgments struction of a will and for an adjudica

The action was brought for the conagainst plaintiff, such charge was harm

tion upon the rights of the parties thereless. The warrants were in evidence, and they exhibited the fact, not contradicted, strue the will or adjudicate upon the

under. The court below refused to conthat they were not sealed as the law re- rights of the parties, and dismissed the quired. They were, therefore, not genuine county warrants regularly issued, and complaint. Plaintiffs appealed from that it was the duty of the court so to declare portion of the judgment dismissing the

The defendant's contract was them.

complaint, and both parties appealed from

that part refusing to construe the will and broken as soon as it was made, and the plaintiff was entitled to a verdict

, no mat- adjudicate upon the rights of the parties. plaintiff was entitled to a verdict, no mat. The judgment below was affirmed by this ter whether the judgments in the suits

court with costs. against the county were · conclusive or

J. W. Russell for motion. not.

E. C. James contra. 4. That the court properly overruled

Held, That the questions involved in defendant's offer to show that the war- the cross appeals could only have been rants were regularly issued for legal claims considered on the reversal of the principal against the county. The evidence pro- judgment dismissing the complaint; that posed had no relevancy to the issue in plaintiffs failing in that the other appeals the case. That the warrants were issued

were unimportant, and defendants were for debts due by the county was of no im- successful in the litigation, and plaintiffs portance if they were not genuine, and in were properly chargable with costs; that the form that the law required, to enable this being an action wherein by Sec. 306 the holder to set them up as legitimate of the Code, costs are in the discretion of claims against the county.

the court. The costs of all the appeals 5. That plaintiff was not bound to re- were in the discretion of this court; that turn the warrants before suit. He did that discretion exists and may be exernot seek to rescind the sale, but relied cised in every stage of the action, and upon an express warranty, in which case that the further provision that in certain it is a universal rule that damages may be specified cases the costs of an appeal shall

be in the discretion of the court, was in and after notice of trial, five term fees, an tended to extend the discretion to cases issue of fact and of law, and motion for in which, but for that provision, costs receiver, on the ground that by the stipuwould have been recoverable by thc pre- lation the same costs were to be allowed as vailing party, under sections 304, 305. in the Dovey suit.

Motion granted, and remittitur amend A retaxation was ordered at Special ed so as to give the defendants costs on Term, allowing only such costs as were the plaintiff's appeal from the judgment appropriate to this suit at the stage which dismissing the complaint, and denying any it had reached when the stipulation was other costs to either party as against the entered. other upon the other appeals.

F. C. Bowman for respts. Per curiam opinion.

Halch & Beneville for applts.

On appeal, Held, That the terms of the TAXATION OF COSTS. stipulation providing that costs are to be N. Y. SUPREME COURT, GEN. TERM,

entered on the result of the Dovey suit, FIRST DEPT.

“ 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 Decided January 28, 1876.

had accrued at the time it was made, and Under a stipulation to allow judgment nothing more.

to the trial fee of an issue of fact, and in accordance with the determination

. of another suit, with costs, the same

Opinion by Brady, J. as if a trial had been had, it is proper to allow such costs as were appropriate up to the time of the VARIANCE. PERJURY. INCONstipulation and trial for issue of


N. Y. COURT OF APPEALS. Appeal from an order directing a re

Harris, plff. in error v. The People, taxation of costs.

defts. in error. This and another similar action, in which one Dovey and others were plain

Decided February 8, 1876. tiffs, were brought against these defend- The Fire Marshal of the City of New ants, to set aside certain assignments as

York has power to administer an fraudulent. For convenience, it was

oath upon an inquiry into the cause

or circumstances of a fire, without stipulated that this suit be stayed, and

first having a complaint under oath wait the result of the Duvey suit, which made before him. result should be adopted as final in this on the trial of an indictment for perand that “either party be at liberty to jury,which charged the prisoner with enter judgment, with costs, as the result having sworn falsely that he had lost of the Dovey suit will determine lor plain

60,000 cigars by fire, and the proof tiffs or defendants, the same as if a trial had

showed that he were to having lost

65,000, the variance is immaterial, been had therein." No answer had been

and it cannot be raised on appeal. served in this suit, or any subsequent Inconsistency and repugnancy in a steps taken.

verdict. In the Dovey suit judgment was en The plaintiff in error was convicted of tered for defendant, the complaint being perjury committed before the Fire Mardismissed by default.

shal of the City of New York, who was The defendant thereupon entered up investigating the cause, origin and cirudgment for costs for proceedings before 'cumstances of a fire, pursuant to chapter

563 of the laws of 1868, and the acts ($ 76) all the duties given and imposed by amendatory thereof, and supplementary the previous statutes. thereto. It was claimed upon the trial, Ira Shafer, for plff. in error. on behalf of the prisoner, that it did not Benj. K. Phelps, for defts. in error. appear that the Fire Marshal had power, Held, That no complaint was necessary or authority to administer an oath to him, to call into action the powers of the Fire as no evidence was given of a complaint Marshal, that he had all the authority under oath having been made. Section conferred upon the Superintendents of 1, chapter 332 of the laws of 1852, as Police by chap. 332, laws of 1852, as amended by $ 36, chapter 569, laws of amended by chap. 569, laws of 1857, and 1857, authorized and required the Gen- he thus had authority to subpæna witeral Superintendent of Police of New nesses and swear them; that there was no York City to investigate the origin of repeal of chap. 563, laws of 1868, by the every fire occurring in said city, and in- subsequent statutes. Plaintiff in error vested him with the same powers, and claimed that there was a fatal variance jurisdiction as the police justices posses- between the indictment and the proof, in sed. The police justices had jurisdiction that the indictment alleged that the prisapon complaint made to them, to sub-oner swore before the marshal, among pæna and swear witnesses for the purpose other items, that there were 60,000 cigars of ascertaining whether any crime had in the building at the time of the fire, been committed. The act of 1868 created while the proof showed that he swore that the office of Metropolitan Fire Marshal, there were 65,000 therein. The point was and made it his duty to examine into the not raised upon the trial. cause, circumstances and origin of fires, Held, That the point could not be and take the testimony on oath, and cause raised there; as, if it had been raised the the same to be reduced to writing, and (s testimony might have been excluded, or 3) gave him power to issue subpænas for the jury directed to disregard it, and the 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 The plaintiff claimed to recover the jury found the prisoner guilty under the possession of only a strip of land, part of second count only. It appeared that the the demanded premises, one inch wide in marshal was not present when all the oral front on Windsor street, and four inches evidence was given.

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 Judgment of General Term, affirming the plaintiff had suffered damage by the judgment of conviction, affirmed.

disseizing the sum of five dollars. Opinion by Earl, J.

The report being accepted by the court the defendant moved that the cause be

erased from the docket on the ground that JURISDICTION. EJECTMENT.

the court had no jurisdiction. CONNECTICUT SUPREME COURT OF ER

The second section of the act of 1869, (Acts of 1869, p. 313), which created the

Court of Common Pleas, provides that it Sullivan v. Vail.

should have “exclusive original jurisdicDecided February Term, 1875.

tion over all civil causes which shall be In ejectment, the value of the land is brought before it according to law, and in immaterial.

which the debt, damages, or matter in deA court will not be deprived of juris- mand, exceeds the jurisdiction of a jus

diction unless it appears affirmative- tice of the peace, and does not exceed the ly in the declaration that the mat- sum of $500.ter in demandis beyond its juris The revision of 1875, p. 413, sec. 2, diction.

provides that all causes at law, wherein Ejectment: brought to the Court of the matter in demand exceeds $100, but Common Pleas of Hartford County. The does not exceed $500, in amount or value, writ claimed $300 damages. The follow- shall be brought to the Court of Common ing facts were found by a committee : Pleas,” &c.

The plaintiff has been the owner in fee Hell, The “matter in demand” is deand in possession of the demanded prem- termined by the demand in the declaraises from the 17th day of June, 1956, tion, unless the declaration, on its face, until the present time, except that por- fails to support the demand. tion of the same of which he has been The declaration contains no allegadisseized by the defendant. On the trial tion as to the value of the land, or the the plaintiff testified that the demanded value of the plaintiff's right to the pospremises were worth the sum of $4,000, session of the same ; certainly no mere without including the house, whereupon presumption of value, for the purpose of the defendant objected to the admission ousting the court of its jurisdiction can, of any further testimony on the part of the or ought to be made. plaintiff, on the ground that the court We doubt whether the value of the land had no jurisdiction of the case, and all'is necessarily a part of the matter in de

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