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Robbins agt. Alexander.

ever.

That defendant never heard, from any source, or in any way at any time, until the affidavit was made by said Bowley, in December, 1854, that said Bowley made any such claim. That the plaintiffs, at the time of the compromise, told defendant, if he would pay them $100 they would release him; that defendant paid them $100 in gold, and one of them signed the release, in the presence of the other, for both. Defendant requested them to fill up the amount opposite their names, and one of the plaintiffs then, for the first time, mentioned the word lawyer or attorney; and said their lawyer was absent from the city, and had all the papers, and he could not tell the amount, but as soon as he returned he would give the defendant up the notes sued on. Defendant positively denied that, at that time, the plaintiffs, or either of them, said or intimated that they could not settle with him as to said costs, or any costs in said judgments. That the plaintiffs expressly affirmed, before signing their names to the compromise, that, on payment of the $100, they would release him from all demands.

The affidavit of H. H. Hunter, a clerk in the office of the defendant's attorney, stated that, in April, 1854, he called on the plaintiffs to get satisfaction pieces of said judgments. One of the plaintiffs said, if he would call the next day (being then very busy) he would sign said satisfaction pieces; and said plaintiff expressed himself satisfied with the compromise with defendant, and said he would sign the satisfaction pieces with pleasure—that they had gotten much more than they ever expected to. On again calling for the execution of said satisfaction pieces, the plaintiffs declined until their attorney should see them, and say they were correct.

The plaintiffs denied the statement made by Hunter, that they ever expressed themselves satisfied with the compromise, and would execute the satisfaction pieces with pleasure, &c.

The affidavits on the motion were very conflicting.

ALBERT Mathews, for motion, said, First. The release is valid on its face, as a discharge of the judgments.

Robbins agt. Alexander.

1. Covenant not to sue (under seal) operates as a release, to avoid circuity of action. (Cuyler agt. Cuyler, 2 Johns. 186.)

It is fraud on other creditors to sue. (Crowley agt. Hillery, Maule & S., 120.)

So a covenant to indemnify against debt. (Clark agt. Bush, 3 Cow. 151; Phelps agt. Johnson, 8 Johns. 43.)

2. An agreement by a creditor, under an arrangement with other creditors, to compromise a debt for part payment, is good not under seal--the agreement of the other creditors being a good consideration. (Alchin agt. Hopkins, 1 Bing. N. C. 99, 102; Good agt. Cheeseman, 2 B. & A. 328.)

3. It is not necessary to set opposite the name of a creditor the amount of his debts, although the agreement says, “their debts set opposite their names,” &c. (Harridy agt. Wall, 1 B. & Ald. 103; 2 Stark. 198; King agt. Smith, 4 Car. & P. 108.)

4. A debt of record, as a judgment, may be released by sealed instrument. (Parke Baron, Barber agt. St. Jurntain, 12 Mees. & Wels. 452; recognized, 4 Denio, 416; West agt. Blakeman, 2 Scott's New Rep. 199.) .

5. A release by one of two or more joint debtors, though upon nominal consideration, and intended only to discharge the one, releases all. (The Bank of Poughkeepsie agt. Ibbotson, 5 Hill, 460; Hoffman agt. Dunlop, 1 Barb. S. C. R. 186; Stitt agt. Cass, 4 id. 92.)

6. So by one member of a firm, &c., under seal. (Pierson agt. Hooker, 3 John. R. 68; 19 John. R. 143; King agt. Smith, 4 Car. & Paine, 108.)

Second. Parol evidence is inadmissable to vary the legal effect of either the release or the record. (Van Brunt agt. Van Brunt, 3 Edw. V. C. R. 14; Russell agt. Rogers, 10 Wend. 479; Holmes agt. Viner, 1 Esp. R. 131; Pierson & Hooker, 3 Johns. R. 68.)

Third. The alleged sub-contract of the attorney with his client, did not sever the obligation of the judgment against the defendant. So far as he was concerned, the plaintiffs were his sole creditors, and the defendant might so treat them, and their release was valid to discharge the whole judgment. (Aus

Robbins agt. Alexander.

tin agt. Hall, 13 Johns. R. 286; Bronson agt. Fitzhugh, 1 Hill, 185; Decke agt. Livingstone, 15 Johns. 479; Gibson agt. Winter, 5 B. & Ald. 96.)

Fourth. The affidavits of the parties being conflicting, the plaintiff should be left to the remedy by action, or an issue awarded to a jury. (Dresser agt. Shufelt, 7 How. P. R. 85; Timon agt. Leland, 6 Hill, 237.)

LORENZO B. SHEPHERD, opposed.

Mitchell, Justice. The affidavit of Mr. Bowley, the plaintiff's attorney, and of Henry A. Robbins, one of the plaintiffs, are positive, that by arrangement between the plaintiffs and their attorney, before the suits were commenced, the costs to be recovered were to belong to the attorney. Mr. Bowley also swears, that after judgment was obtained, and before he went abroad, he told the defendant, I. Alexander, that the costs belonged to him alone; and H. A. Robbins swears, that when the release was executed by him to the defendant, he stated to the defendant that the attorney was absent, and he did not know the amount of his costs, and could not settle with the defendant as to them.

The defendant denies that Mr. Bowley ever told him this, or that Mr. Robbins made such a statement; but the burden of proof is against him.

The release, as it is called, is under seal, and is a composition signed by the creditors of Alexander, and, among others, by the plaintiffs. The amounts are usually set opposite to the creditors' names; but no amount is set opposite to the plaintiffs' signatures, except one in lead-pencil, which, it was admitted, was placed there after the release was executed.

The judgments were for $380.66 and $379.12, including in the two $209.67 for costs.

The plaintiffs' attorney has issued executions, directing the sheriff to levy for his costs only, and the defendant moves to set aside the executions.

The release is, in fact, a covenant not to sue or molest the

Drake agt, Wakefield.

defendant, he agreeing to pay ten per cent., and is by each creditor, “for any debt, claim, or demand now due or owing to us, or any of us, his creditors.”

The agreement between the plaintiffs and their attorney, that he should have the costs in the suit, as his recompense for his labor, and the cominunication to the defendant, that the costs belonged to the attorney, and the refusal of the plaintiffs, when compromising, to settle as to those costs, were a severance of the costs from the rest of the debt recovered by the judgments, so that the plaintiffs’ attorney owned the costs, and the plaintiffs the rest of the debt only

The covenant of the plaintiffs, not to sue for any debt, claim, or demand due or owing to them, did not, under these circumstances, include the costs which thus belonged to their attorney, and not to them.

The motion to set aside the executions is denied without costs, and without prejudice to the defendants moving for a retaxation of the costs.

He says, the judgment was obtained by default without a trial. If by that is meant, without the cause being on the calendar for trial, and it be true, there must be a great error in the costs.

SUPREME COURT.

GEORGE W. DRAKE agt. EDWARD WAKEFIELD.

An action to recover possession of personal property can be maintained where

the defendant has divested himself of the possession and control of the property before suit brought; and that, too, as well where a wrongful taking, as where a wrongful detention only is complained of. (See Roberts agt. Randel, 5 How. Pr. R. 327, and 3 Sand S. C. R. 707; Brockway agt. Burnap, 12 Barb. 347; and Elwood agt. Smith, 9 How. Pr. R. 528, adverse; and 5 How. Pr. R. 148; Brockway agt. Burnap, 16 Barb. 309, in accordance with this case.)

Drake agt. Wakefield.

Erie Special Term, August, 1854.
Motion by defendant for a new trial on a case.

The complaint charges that the plaintiff, being the owner and in possession of a yoke of oxen, the defendant wrongfully took and retains them. That, although the plaintiff has demanded possession thereof, &c., the defendant has refused, and yet refuses, to deliver them to the plaintiff, and demands judgment for the delivery thereof to the plaintiff, and damages for the detention.

The answer denies generally the allegations of the complaint, and sets up property in the defendant.

The action was tried at the Chautauque circuit in June, 1854.

On the trial, the plaintiff gave evidence tending to show that he owned the oxen, and that they were wrongfully taken from his possession by the defendant. He also proved a demand and refusal after the alleged taking, and while the oxen were in the defendant's possession,

The defendant offered to prove that, at the time the action was commenced, he had sold and delivered the oxen to one Medley, and had not then the actual possession of, nor any right to or control over them, which was objected to by the plaintiff on the following grounds :—1st. The taking was wrongful, and either trespass or replevin would lie. 2d. No such matter was set up in the answer. 3d. It was immaterial to the issue.

The objection was sustained by the court, and the defendant excepted. The jury found for the plaintiff, assessing the value of the oxen and the damages for the detention. The defendant made a case, and now moves thereon for a new trial; and the only point made on the motion is as to the correctness of the ruling at the circuit, rejecting the evidence offered.

H. W. HARRINGTON, for defenaant.
Weeden & HENDERSON, for plaintiff.

Bowen, Justice. In Roberts agt. Randel, (reported 5 How. Pr. R. 327, and 3 Sandf. S. C. R. 707,) the superior court of

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