*In the Matter of HARWOOD, an Imprisoned Debtor.

ALBANY, August, 1818.

OVERSEERS OF PITTSTOWN

V.

OVERSEERS
OF PLATTS-

BURGH.

oned more than

THE prisoner being brought up on a habeas corpus, Hosford moved for his discharge under the "act for the recovery of debts to the value of twenty-five dollars," passed April 5, 1813, (sess. A person who 36. ch. 53. sect. 12. 1 N. R. L. 387.) on the usual affidavit. has been imprisIt appeared that he had been imprisoned for more than 60 days, 30 or 60 days, on an execution issued on a judgment recovered against him as the case may under the late act, extending the jurisdiction of justices of the issued peace to demands over twenty-five dollars, and not exceeding judgment fifty dollars, passed April 10, 1818, (sess. 41. ch. 94.) which a justice of the provides, that a transcript of the judgment of the justice of the peace, and repeace may be filed in the office of the clerk of the county, and clerk of the recorded by him, who is directed to issue execution on such county, judgment, to the sheriff of the county, &c.

I. Hamilton, contra, contended, that the judgment against the prisoner having been recorded in the office of the clerk of the county, and an execution issued to the sheriff, the justice had no further power or authority in the case, and that the provisions of the act of the 5th of April, 1813, were not applicable to this case.

on a

re

covered before

corded with the

under the act extending the jurisdic tion of justices of the peace,

(sess.

41. ch. 94.) is entitled

to his discharge, on the usual affi

davit, as to his according to the imprisonment,

provisions of the act for the recovery of debts to the value of 25 dollars, pass ed the 5th of April, 1813, all the provisions of which act are

to

Per Curiam. The 12th section of the last act (sess. 41. ch. 94.) declares, that the form of proceedings under the act shall be, in all respects, the same as under the aforesaid "act for the recovery of debts to the value of 25 dollars;" and all the provisions of the said act, and the amendments thereto, are de- applicable clared to apply to this act, except as therein otherwise di- mentioned, rected. This clause gives effect to the provisions of the act of (sess. 41. ch. 94.) except so April, 1813; and we are of opinion, therefore, that the prisoner far as it has is entitled to his discharge.

Prisoner discharged.

(a) Vide Brooks v. French, 5 Wendell's Rep. 568.

the act above

otherwise directed. (a)

*The Overseers of the Poor of PITTSTOWN against The Överseers of the Poor of PLATTSBURGH.

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there

MOTION for judgment as in case of nonsuit, for not pro-, Where thin ceeding to trial, &c. There was an issue in fact, and an issue law, and an is

sue in fact, the

issue in law ought to be first determined; but the plaintiff has his election which shall be first tried; and the defendant is not entitled to judgment as in case of nonsuit, for not proceeding to the trial of the issue in fact, while the issue in law remains undetermined.

ALBANY,

August, 1818.

JENKS

V.

PAYNE.

in law, both of which were joined in the last January vacation. The venue was laid in Rensselaer county. The demurrer, it was stated, went to the whole merits of the case, and had not yet been brought on to argument.

It was contended, on the part of the plaintiff, that the motion ought not to be granted, nor ought he to be compelled to stip-. ulate to try the issue in fact until the issue at law was determined; and that the plaintiff had his election to try that issue first. (2 Tidd's Pr. 684.)

Mitchill, for the plaintiff.

Walworth, for the defendant.

Per Curiam. Whatever may have been the ancient practice on this subject, yet, according to the later authorities, where there is an issue at law, and an issue in fact, the plaintiff may elect which he will try first; and we think it most proper that the issue in law should be first determined. The defendant cannot, therefore, compel the plaintiff to stipulate to try the issue in fact, before the other issue is disposed of; nor is he entitled to judgment of nonsuit, because the plaintiff did not bring that issue to trial at the last Rensselaer circuit. It is as much in the power of the defendant, as in that of the plaintiff, under the rules of the Court. to bring the demurrer on to argument at the earliest term after joinder in demurrer. There is, therefore, no cause for the defendant to object delay on the part of the plaintiff, in not having the demurrer argued at the last term.

Motion denied.

[ * 399 ]

If a defend

*JENKS and others against J. PAYNE.

MOTION, on the part of the defendant, to set aside the ant, living with verdict, and all subsequent proceedings in the cause. The venue the place of was laid in the county of Cortlandt, where the defendant was trial, changes arrested. He, afterwards, and before the declaration was depermanently, to livered, removed with his family to Whitestown, in the county a place beyond of Oneida, a distance of more than fifty miles from his former before issue is residence, and where he has since continued to live.

his residence,

that distance,

joined in the

The cause cause, he will was noticed for trial at the last June circuit in Cortlandt county, be entitled to at which an inquest was taken by default; but the notice being fourteen days' for less than fourteen days, a motion was now made to set aside but if he change the inquest for irregularity.

notice of trial;

his residence

after issue joined, he is entitled Anly to eight -ys' notice.

Donnelly, for the plaintiffs.

A. Payne, for the defendant.

ALBANY,

KENT

V.

M'DONALD

Per Curiam. The defendant, when he was arrested, resided within 40 miles of the place of trial; but before issue was joined August, 1818. in the cause, he removed from Cortlandt county, to a greater distance, and has since permanently resided at Whitestown. It does not appear that the defendant absconded from his former place of abode. He was, therefore, entitled to 14 days' notice of trial. If, however, he had removed beyond the distance of 40 miles, after issue joined in the cause, he would have been entitled only to eight days' notice. And such is the practice of the Court of K. B. in England. (2 Tidd's Pr. 595. Spencer v. Hall, 1 East, Rep. 688.)

Motion granted. (a)

(a) Vide Lloyd v. Hooper, 7 East, 624. Douglas v. Ray, 4 Term Rep. 552.

*KENT against M'DONALD.

[* 400]

Where the after

interlocutory

an

N. WILLIAMS, for the defendant, moved for judgment as plaintiff, in case of nonsuit. It appeared that an interlocutory judgment obtaining had been entered, for want of a plea, in August, 1817, since which judgment, negthe plaintiff had not proceeded to have his damages assessed, lected to pronor taken any steps in the cause. The defendant had been ceed further, for surrendered by his bail, and had been in custody for more than terms, a rule

two terms.

Marcy, contra, read an affidavit, stating, that the plaintiff resided in the province of Maine, and he did not know by whom he could prove his demand; that the defendant was insolvent, and unable to pay even the costs of suit.

Per Curiam. Take your rule, that the plaintiff proceed to execute his writ of inquiry of damages in thirty days, or that he be non prossed.

more than two

was granted, on. motion of the defendant, that the plaintiff exe

cute his writ of inquiry in 30 days, or be non prossed.

Motion granted.

313

CASES

ARGUED AND DETERMINED

IN THE

Supreme Court of Judicature

OF THE

STATE OF NEW-YORK,

IN OCTOBER TERM, 1818, in THE FORTY-THIRD YEAR OF OUR

INDEPENdence.

Replevin will

an officer who,

upon, and taken

goods in exe

from the defend

ecution, and

GARDNER against CAMPBELL.

THIS was an action of replevin, for taking certain goods and not lie against chattels of the plaintiff. The defendant pleaded to the dechaving levied laration, which was in the ordinary form, 1. Non Cepit; 2. An avowry, setting forth that the defendant, on the 31st cution, receives of December, 1817, was under sheriff of the county of Cortant the amount landt, on which day a fi. fa. directed to the sheriff of Cortlandt due on the ex- was issued out of this Court, against the plaintiff, at the suit of then refuses to Aaron Benedict, for 3,132 dollars, debt, and 14 dollars and 43 re-deliver the cents, damages and costs; that the writ was delivered to the goods. A person tak- defendant to be executed, who, thereupon, and before the return ing the goods of day thereof, levied upon the goods in question, continued in another, under lawful authori possession of them until the twelfth of January, 1818, and sold ty, does not be them, on the tenth of January, to satisfy the execution. er ab initio, by 3. An avowry, stating the execution and levy, and that the refusing to re- defendant continued in possession of the goods until the twelfth store them, after his authority to of January, 1818.

come atrespass

detain the goods 4. A cognizance, as bailiff of the sheriff of Cortlandt, setting is determined. forth the execution, levy, and sale.

(a)

[* 402]

fcasance will

*The plaintiff pleaded, 1. to the first avowry, that before the A mere non- taking of the goods and chattels mentioned in the declaration, not make a man and while the fi. fa. was in the defendant's hands, to wit, on a trespasser ab the seventh of January, 1818, he settled with the defendant as

initio.

(a) Vide Dunham v. Wyckoff, 3 Wendell's Rep. 280. Hall v. Tuttle, 2 Ibid. 475. Marshall v. Davis, 1 Ibid. 109. Judd v. Fox, 9 Cow. Rep. 259. Clarke v. Skinner, 20 Johns. Rep. 465. Mills v. Martin, 19 Johns. Rep. 32. Morris v. Dewitt, 5 Wendell, 71. Gates v. Lounsbury, 20 Johns. Rep. 427.

to the fi. fa., and found that there was due and owing thereon NEW-YORK, 734 dollars and 4 cents, including sheriff's fees, which the plain- Oct. 1818. tiff tendered to the defendant, and which the defendant accepted in satisfaction and discharge of the execution.

2. A similar plea to the second avowry.

3. To the first and second avowries, that on the seventh of January, 1818, one Barney, at the request of the plaintiff, tendered and paid to the defendant the sum of 734 dollars and 4 cents, being the amount then due and owing on the execution, including sheriff's fees, which sum the defendant accepted, and gave a discharge in full satisfaction of the execution.

4. and 5. To the cognizance, the plaintiff pleaded a settlement with, and payment to the defendant, by himself, and by Barney, at his request, as in his first and third pleas.

To the second plea the defendant replied, denying a settlement and payment of the amount due on the execution; and as to the first, third, fourth, and fifth pleas, there was a demurrer and joinder. The cause was submitted to the Court without argument.

SPENCER, J., delivered the opinion of the Court. The first objection to the pleas is, that they admit the original caption to be lawful, and that when that is the case, replevin does not lie.

In the case of Hopkins v. Hopkins, (10 Johns. Rep. 372.) this Court adopted the well-known and ancient principle, that when a person acts under an authority or license given by the law, and abuses it, he shall be deemed a trespasser ab initio ; but the action is grounded on a tortious taking; and The Six Carpenters' case (8 Co. 146.) recognizes a distinction between the actual and positive abuse of a thing taken originally by authority of the law, and a mere nonfeasance, such as a refusal to deliver an article distrained.

The conclusive objection to all the pleas is, that, confessedly, *the defendant took the plaintiff's goods, under and by virtue of an execution; and they are, in the language of this Court, in Thompson v. Button, (14 Johns. Rep. 86.) in the custody of the law, and it would be repugnant to sound principles to permit them to be taken out of such custody, when the officer has found them in the possession of the defendant in the execution, and taken them out of his possession.

The pretence set up here is, that the execution was paid and satisfied. Whether it was or not, makes no difference in the principle. If the fact be true, the plaintiff is not without his redress; he cannot be allowed to set up that fact to devest the sheriff's possession; the goods were lawfully taken by the defendant, and replevin is not the appropriate remedy. If it were allowed, the execution of the writ of fieri facias might, in all cases, be delayed or eluded.

Judgment for the defendants.

GARDNER

V.

CAMPBELL.

[* 403]