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Crittenden agt. Adams and Crittenden impleaded with Rooks.
and designedly conferred upon the courts the power which we are asked to exercise in this case. It has also been suggested that the 405th section of the Code of 1849 should be read in connection with the 173d section, and as limiting the power conferred by the latter section. I do not so regard it. The 405th section is as follows: “ The time within which any proceeding in an action must be had after its commencement except the time within which an appeal must be taken, may be enlarged upon an affidavit showing the grounds therefor by a judge of the court; or if the action be in the Supreme Court by a county judge.” It will be seen that this section is confined by its very language to chamber orders granted by a judge out of court, and was not intended to define or limit the powers of the court as conferred by the 173d section of the Code. I have not deemed it important to consider the questions raised on this motion in relation to the undertaking executed by the plaintiff on this appeal, as the 327th section of the Code provides that “where a party shall give in good faith notice of appeal from a judgment or order and shall omit through mistake to do any other act necessary to perfect the appeal, or to stay proceedings, the court may permit an amendment on such terms as may be just.” I think therefore, for the reasons above stated, that we are authorized in granting the relief sought. The papers before us show that this appeal was taken in good faith to review a judgment of the Circuit Court, and that there is a probability of a failure of justice if this motion be denied. I therefore direct an order to be entered with the clerk of Courtland county that the proceedings on said appeal be deemed good and valid, and as effectual as if they were taken and conducted in all respects in accordance with the requirements of the Code, with the exception that the second undertaking be deemed substituted in the place of the first, and that the defendants' attorneys have ten days after notice of this ordei in which to except to the sureties in said undertaking if they desire so to do. The plaintiff's fees on the execution in the sheriff's hands and also ten dollars costs of opposing this motion, to be paid within ten days after the receipt of this decision; and
The People ex rel. Griffin agt. the City of Brooklyn,
all proceedings on the execution in the sheriff's hands are to be stayed until the decision of the court on this appeal; and if the defendants' attorneys have not served their amendments to the bill of exceptions they are to have twenty days to prepare and serve them.
THE PEOPLE ex rel. GRIFFIN agt. The City of BROOKLYN Where a common law certiorari issued against a corporation, who neglected to
appear and make return thereto, Held, that a writ of sequestration ought not to issue until a distringas should be tried.
New York Special Term, July 1850. A. Crist, for plaintiffs, moved for a writ of sequestration against the defendants on an affidavit showing that they had omitted to appear or make return to a common law certiorari which had been served
them. H. MURPHY, Contra. EDMONDS, Justice.—The ordinary process in equity to compel a corporation to appear is by sequestration, but at common law the writ of sequestration does not issue until a distringas, an alias and pluries distringas are returned.
The writ of sequestration takes from defendants all their property, real and personal, and authorizes the sequestrators to receive the rents and profits. A strong remedy and which ought not to be resorted to, except in cases of necessity. But the distringas by increasing the issues, takes less than all the property and may be equally effectual in compelling an appearance.
In this case, the proceeding is by a common law certiorari, and therefore the writ of sequestration ought not to issue, until the distringas has been tried, and besides, I see no absolute necessity for more than a distringas.
The issues may, however, be increased, and a distringas may go commanding issues to the amount of $500, unless defendants appear and make return in twenty days.
The People agt. Townsend.
THE PEOPLE agt. TOWNSEND.
An indictment for perjury will not lie upon evidence given under an oath ad
ministered by arbitrators, where the submission is not according to the
statute, Upon a parol submission, or under a common law arbitration, the arbitrators
possess no power to administer a legal oath.
Ontario Oyer and Terminer, Nov. 1850. Before H. WELLES, Circuit Judge; Folger and CLEAVELAND, Justices of Sessions. Indictment for Perjury. In this case it appeared that Charles Godfrey and Reuben Lafever, on the 26th December 1848, entered into an agreement in writing, under seal, by which, among other things, the parties agreed to refer certain matters of account therein particularly mentioned to Hiram H. Seelye, John M. Bradford and James H. Wickes, who should decide on the allowance or rejection of such accounts, which decision should be final. The agreement further provided that the party who should be found owing the other should pay him the same by the first day of May 1849. The trial before the arbitrators came on at Geneva, commencing on the 8th or 9th day of May 1849, and was concluded about the 15th of the same month, when the arbitrators made their award. On such trial the defendant Townsend was introduced and sworn or affirmed by one of the arbitrators as a witness and gave evidence. Upon his testimony given on that occasion the indictment in this case was found. It
that the arbitrators were not sworn. The indictment counts upon perjury as committed on an arbitration holden, &c. in due form of law and pursuant to the statute in such case made and provided, by and before, &c., duly chosen and appointed by the free will and choice, &c. and in pursuance of an agreement in writing between, &c., to decide and settle certain matters then in dispute between, &c. There are four counts in the indictment, the two last of which omit to state that the submission was according to the form of the statute, &c.
The People agt. Townsend.
S. V. R. Mallory, Dist. Att'y, and A. WORDEN, for the People. T. R. STRONG, for the Defendant.
Welles, Ch. J.—Various legal objections are now taken to a conviction under these circumstances; but we will notice only two of them, as they appear to us decisive of the whole case.
1st. Had the arbitrators power to administer an oath to the defendant; because if they had not, the oath was extra judicial, and legal perjury could not be committed under it. This must depend upon the question whether the arbitration was under the statute or at common law, as they have not such power except in the case provided by the statute (2 R. S. 541; 3 ed. 628; § 1 to 5 inclusive). Under a common law arbitration, arbitrators do not possess such power. Was it then a submission under the statute? We think not. The agreement in writing clearly contemplated that the award should be made before the first day of May 1849. It does not so provide in terms, but it does provide that the party found indebted should pay such indebtedness by that time. This was a material part of the agreement, and effect must be given to it unless it should be found repugnant to some other provision, and effect can not be given to it unless it be implied that the award is to be made before that time. To suppose that such was contemplated by the parties, is doing no violence to any other part of the agreement. It seems, therefore, to follow that the powers of the arbitrators under the written agreement had expired before they entered upon their duties, and some further agreement of the parties would be necessary to enable them to act. It is not material to inquire whether such defect of power could be supplied by a parol agreement made afterwards, because if it could and was actually done in the present case, the submission would then have been by parol merely and therefore not in pursuance of the statute; and as before remarked in such case, the arbitrators would have no authority to administer an oath, and an oath administered by them would impose no more obligation upon the defendant than if administered by an overseer of highways.
It is also contended that there is a fatal variance between the
Fish agt. Forrance.
indictment and the proof, as the indictment counts upon a submission in pursuance of an agreement in writing between the parties, when the proof shows such submission must have been by parol if at all. It may be questionable whether a fair construction of the indictment will warrant this objection of variance; perhaps the clause in question may be referred to the mode of choosing the arbitrators; but still the question would remain whether in order to charge the defendant with perjury upon evidence given under an oath administered by one of the arbitrators, the prosecutor was not bound to show by the indictment that the submission was under the statute. It states that he was sworn by and before the arbitrators, which could not legally be done unless the submission was under the statute.
We think the defendant can not be legally convicted under this indictment.
Fish agt. FORRANCE.
Plaintiff claimed $300 on account, and recovered less than $100. Extra allowance denied,
Essex Special Term, March, 1851. R. S. Hale moved for extra allowance. He said it appeared by the papers that there had been a trial on a claim for a balance of accounts between the parties. He cited Dyckman vs. McDonald (5 How. Pr. R. 121); Niver vs. Rossman (Id. 153).
S. Ames, read affidavits showing that the plaintiff claimed about $300 balance due him on an account set forth in his complaint, and recovered less than $100. He insisted it would be gross injustice to allow extra costs for endeavoring to recover three times as much as was due to him. The legislature never intended that the defendant should be punished for resisting unfounded claims or compensate the plaintiff for litigating them.
HAND, Justice.--Denied the motion.