Sidebilder
PDF
ePub

of the works proposed to be conveyed to the State, on the 25th of February last. From this certificate, it appears that some expense will have to be incurred to put the works in repair. The Commissioners suggest, that if the State take these works, it should be upon condition that they are put in good repair by the proprietors, and that they construct a towing-path by the side of the canal.

All which is respectfully submitted.

JONAS EARLL JUN.
WM. C. BOUCK.

March 11, 1833.

IN SENATE,

March 13, 1833.

REPORT

Of the select committee, on the petition of Daniel

Avery.

Mr. Seward, from the committee to whom was referred the petition of Daniel Avery, a commissioner of loans for the county of Cayuga, submitted the following

REPORT:

The petitioner states that he has held the office of commissioner, of loans, for the county of Cayuga, from the year 1808, until the present time; that on the first day of May, 1817, one Samuel Seward, since deceased, executed to the petitioner and William Satterlee, then being commissioners of loans for the said county, a mortgage for the payment of sixty-four dollars, with interest, upon two and a half acres of land in the town of Scipio; that the said Seward, at the time of the execution of the said mortgage, complied with the provisions of the act of April 11th, 1808, by producing to the commissioners a certificate of the clerk of the county of Cayuga, stating that the title of the mortgaged premises was unencumbered, and by making oath of the same fact; that default was made in the payment of the moneys secured by said mortgage, and on the 19th of September, 1826, the commissioners, in pursuance of law, sold the mortgaged premises at public auction; that William Culver became the purchaser of the premises at the price of eighty dollars, paid the purchase money, and received a deed; that in 1829, the said Culver prosecuted an action against the petitioner, for alleged fraudulent and deceitful representations made by the petitioner at the loan-office sale, concerning the title of the premises, whereby he, Culver, was induced to buy the premises, in the belief that he [Senate, No. 75.]

1

should obtain a perfect title for the same, when in fact he obtained no title by his purchase, the premises having, before the loan-office sale, been sold by virtue of a judgment which was a valid and existing lien at the time of the execution of the mortgage by Seward to the commissioners; that the petitioner pleaded the general issue in the said action, and that at the trial thereof, Culver recovered a verdict of seventy-five dollars, for which amount, with costs of suit, judgment was rendered by the supreme court, and the petitioner has paid the same.

The petitioner contends that inasmuch as the consideration upon which the verdict was rendered, was substantially the failure of the title, and the right of Culver to recover back, therefore, the purchase money he had paid; and as the petitioner has accounted, or is liable to account to the State for such purchase money, the State ought to indemnify him against the recovery.

The petitioner appears to be aware that a strong presumption against him arises from the peculiar force of the action; the verdict of the jury being properly regarded as a conviction of fraud, and the sum awarded sounding as damages for such fraud. Nevertheless, he furnishes a copy of a case which was made on the trial, and which contains the proceedings and evidence on the trial, and confidently asks the Legislature so far to review the proceedings, as may be necessary to decide whether the verdict was not manifestly erroneous and unjust.

The petitioner states as considerations which may operate upon the Legislature to grant him a hearing, that long illness prevented his attendance at the trial of the cause, and that although the amount of damages and costs recovered against him is not inconsiderable, he prays this investigation less for the purpose of being relieved from pecuniary loss, than from a desire to remove from an otherwise unsullied reputation, the imputation of fraud in the discharge of an important public trust.

Whatever may be the action of the Legislature on the subject, the committee think these considerations furnish justifiable motives for this application, and the committee take pleasure in saying, that with the exception of this verdict, the reputation of the petitioner, as a private citizen, and one who has held many highly honorable and responsible public trusts, is without reproach.

Submitting as a preliminary remark, that there is no law of this State by which the Comptroller is authorized to give relief to the petitioner, the committee proceed to consider whether the case presented is one proper for legislative interference, and if so, what is the proper mode and measure of relief? The grievance complained of, is the erroneous decision of a jury convicting the petitioner of fraud. Offences of that nature are so odious, that the committee believe juries seldom convict where the evidence is not full and conclusive. Nevertheless, it is not to be denied that in such cases, as well as others, juries, as well as all other human tribunals, may err, and if the error be palpable, and the consequences be oppressive and ruinous, relief ought to be given, unless it be inconsistent with some important principle of public policy. Undoubtedly, in such cases, application should be made to the court. Such an application was made by the petitioner. A case was made and settled, and a motion was made in the supreme court for a new trial, grounded as well upon the alleged error of the jury, in point of fact, as some supposed errors of the judge in matters of law. The court sustained the legal principles laid down by the judge, and as to the question of fact, the court, in delivering the opinion, said: "The finding of the jury disposes of the question of fraud. They have pronounced the defendant guilty of the false and fraudulent representations alleged in the declaration, and that they were made with the fraudulent intent to deceive and injure the plaintiff. A verdict must be most clearly and manifestly against the evidence, to justify the court in an action like this, in setting it aside. This is not a case of that description. Whatever may be the opinion of the court upon the strict weight of evidence, as it appears on the case, the jury, whose province it was to weigh and pass upon it, who saw and heard the witnesses, have thought the preponderance against the defendant. We should have been inclined to a different conclusion, but the jury not only had the right, but were more competent fairly and discreetly to decide the question than we are. Their decision cannot be disturbed." Thus the court, although they virtually admit that the verdict of the jury is erroneous and unjust, decide that they cannot legally review the evidence upon which it was grounded.

The committee are not aware of any principle of public policy which forbids Legislative interference. The case is one so anomalous (that of a public officer practising a fraud on another person, not for the purposes of gain or advantage to himself, but of

« ForrigeFortsett »