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Houghton agt. Kenyon.

were, or that either of them was, a proper defense to the cause of action set out in the complaint.

This court can on this motion, only look to the return of the justice for the purpose of ascertaining what the issue was, that was joined in the court below.

The complaint is clearly one sounding in tort; hence no set-off could be pleaded or allowed, and no evidence could have been legally given under the second defense, if it had been offered in the court below, (if the same had been objected to.) It follows as a matter of course, that the second defense is sham because no such defense could be legally interposed.

In regard to the third defense, it clearly is both false and sham. The defendant was under no obligation to recieve the case of boots; and, on the trial, he testified he did not recieve them; and if he recieved the same under mistake, all he had to do was to notify the plaintiff to take the property away. He certainly could not be injured if the plaintiff was negligent and careless in effecting the delivery, because the property was not his, and the answer does not claim, in any manner, to set up a defense that the property had been injured at any time by the plaintiff. The defendant was liable only for the value of the property at and after the time it came into his possession. The defendant cannot say after recieving and converting the property of a stranger, he has been damaged by his own unauthorized


The legislative power has several times amended the law relating to appeals from justice's courts. It is now provided that a party can have a new trial in the county court, "when the amount of the claim or claims for which judgment was demanded by either party in his pleadings in the court below shall exceed fifty dollars. This court is not compelled to try a case over because a defendant or a plaintiff, may, at the joining of the issue, see fit to put in a pleading which is entirely foreign to the case, and under

Houghton agt. Kenyon,

which no evidence could be given. To hold that such a course of practice is regular, would substantially amount to the giving either of the parties a new trial in the county court in all cases where it was desired by either partiy; while it clearly is the intention of the law not to allow either party a new trial in the county court, unless judgment for a sum exceeding fifty dollars is demanded, in a proper case, in good faith

In the case of Fuller agt. Brierly, 36 How. 47, the pleadings were correct in substance. The answer of the de: fendant was in all respects regular, and such an answer as was proper in the case; but on the trial the defendant did not go into his defense, on account of a want of confidence in the impartiality of the justice. The defendant appealed, and a motion was made to strike out the fifth count of the defendant's answer. Affidavits of its truth and falsity were submitted on each side, and the court properly held, that the fact that the defendant gave no evidence under it was insufficient to strike it out; and that the court would not determine the truth or falsity of the answer by affidavits.

If the second and third defenses in the answer in this case are allowed to stand the case must be retried, when it is apparent that no evidence could be given in support of either of the said defenses; and the effect would be simply to allow the defendant to litigate over the claim of the plaintiff for the sum of $33 damages.

The second and third defenses must be stricken out; but I think that the appeal cannot be dismissed on this motion. The case is regularily in this court, and I direct that an order be entered directing that it is not a case for a new trial, and that the appeal therein be heard by argument, upon the justice's return, if the defendant desires to have the case reviewed.

The sum of $7 costs of this motion is allowed to the plaintiff.

Matter of Bogert & Evans.



A register has power to pass upon the satisfactory or unsatisfactory proof of debts but where a question of law or fact is raised in respect thereon, the same must be certified for the decision of the judge under section 4.

Southern District of New York, February, 1869.

Before JOHN FITCH, Register.

In this case now pending before me at Chambers of this Court, the petitioners have been adjudicated bankrupts. There are some thirty creditors, nearly half of whom have proved their claims. Silas C. Evans, of New York City, a brother of one of the petitioners (previous to the first meeting of creditors), proved his claim in due form, according to law, amounting to $22,000. George Evans & Son, also proved a claim amounting to about $9,000. The Columbia Paper Company, of Springfield, Mass., proved their claim amounting to $6,500. Some sixteen other creditors also proved their claims, thus placing them in a majority in numbers, but not in interest. Horatio F. Averill, attorney for creditors, filed an affidavit virtually alleging that the Silas C. Evans claim was against Robert D. Evans, and not against the estate of petitioners.

It was also alleged that the creditors, Endus Evans & Son, were respectively father and brother of the petitioner, Evans. The creditors, by their several attorneys, objected to the claim of Silas C. Evans, and objected to his voting on said claim, and all the parties in interest then present consented to my making an order allowing the creditor Evans to give further pertinent evidence to substantiate his

Matter of Bogert & Evans.

claim, the creditors being at liberty to contradict, controvert, disprove, or reduce the amount of said Evans' claim; that I was to pass upon the cause and certify the same to the district court, and also to adjourn the first meeting of creditors for one week. I considered it but justice, both to the creditor Evans, as well as to the remaining creditors, that there should be no question as to the amount or validity of the claim of said Evans, but that the amount should be definitely settled, and under section 22, received additional evidence. The attorney for the creditor Evans desired me to pass upon the claim without certifying the same to the district court. I hold, as a matter of law, that by section 22, the register, if he shall see fit, may receive evidence either for or against the admission of any claim, that it is his duty to do so, as he "has ample authority in the premises, and should exercise it to prevent unnecessary and unreasonable delay." (In re Louis Hyman, 36 How. Pr. R., p. 282). As the register has the same power as the district judge, "except that he is not empowered to commit for contempt, or to hear a disputed adjudication on any question of the allowance of suspension of an order of discharge," (In re Gettleston, 1 Bank. Reg., 170), I consider that any other practice would place a great amount of additional labor upon the district judge, to require him to read and pass upon the question of the validity of the proof of claims, would occupy much of his time, and that congress evidently intended that all questions, except those above excepted, should be decided by the register, and upon the proof taken under the order made by me, February 5, 1869, I allowed the claim of the said Evans at the amount proven, there being no contradicting evidence. I also hold that it is the better practice, in cases where there are a large number of creditors having small claims, and a small number of creditors having large claims, that if any of the claims are disputed, and there are assets, that the amount of any claim when disputed should

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Matter of Bogert & Evans.

be definitely fixed upon by receiving additional proof, or otherwise, before the election of the assignee.

In order that they may give a decision at special term on the question whether the register may pass upon the validity of the proofs, or certify them to the court, I make this certificate, not that it is a case where a certificate should be made, but that the practice may be definitely settled.

BLATCHFORD, J.-There is no doubt that the register has power, under section 22, to pass upon the satisfactory or unsatisfactory character of a proof of debt, but in respect to this, as to all other matters, the duties and powers of the register are to be exercised in subordination to the provision of section 4 of the act, which requires that in all matters where an issue of fact or of law is raised and contested by any party to the proceedings before the register, it shall be the duty of the register to cause the question or issue to be stated by the opposing parties in writing, and he shall adjourn the same into court for decision by the judge. I do not perceive from the certificate that any issue was raised and contested as to the matter certified to The certificate would seem to be made rather under the first paragraph of section 6 than under section 4.


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