Campbell v. Jones

4 Wend. 306 | N.Y. Sup. Ct. | 1830

By the Court,

Marcy, J.

At a very early age in England, when the state of society was very different from what it is now there, or ever has been here, many acts were adjudged to be maintenance which have long since ceased to be regarded as morally or legally censurable. A less rigorous eonstruetion is now given to the statute prohibiting this of-fence than formerly. This subject received a full discussion in the case of Thallhimer v. Brinckerhoff, (3 Cowen, 623,) and the opinion delivered by Chancellor. Sandford met with the approbation of every member of the court of the last resort in this state. He lays down the propositions, that “ to maintain the suit of another is unlawful, unless the person maintaining has some interest in the subject of the suit, or unless he is connected with the suitor in some social relation.” (id. 647.) The object of the law in relation to this matter is, as explained by the chancellor, to prevent the interference of strangers having no pretence of right in tire matter of the suit and standing in no relation of duty to the suitor. Though the contract in this case, which is alleged to be void for maintenance, was made with the plaintiff between whom •and the defendant no social relation exists, it appears that the defendant is the step-son of Hageman, the other lessor of the plaintiff in the suits, which it is now said the defendant has ¡maintained against the statute.

It is quite evident from the facts proved, that there are other facts behind which, if diclosed, would give us a clearer understanding of this matter. Campbell the plaintiff, and Hageman the step-father of the defendant, were the lessors of the plaintiff in the ejectment suits, and it is highly probable that Campbell was not much if at all interested in the result of them ; for it appears from the declarations of the defendant, that Campbell was unwilling to have his name used as a lessor, without a bond from the defendant to indemnity him against the costs. I think it is a fair presumption, that though the legal title to the land attempted to be set up was in part or wholly in Campbell, the suits were prosecuted for the benefit of Hagerman, and that Campbell required security against the payment of costs, before he would allow the use of his name. It is the constant practice for the parties in interest in ejectment suits, to use the names of persons as lessors of the plaintiff who claim no" benefit in the result of the litigation. I do not think a contract entered into with such persons to secure them against the payment of costs, can be regarded as a violation of the statute against maintenance. If a stranger joins in the security, or gives it alone, such fact of itself would not, I am inclined to believe, make him guilty of maintenance, unless it should appear that he did it pursuant to a contract to participate in the result; but it is not necessary to settle this question, because the defendant here was not a stranger, he was the son of the wife of one of the lessors of the plaintiff.

The covenanht being considered binding, the next inquiry is to ascertain if it has been broken. The defendant became obligated thereby, to save harmless and indemnify the plaintiff from all costs and charges, by reason of his name having been used as one of the lessors of the plaintiff in the ejectment suits. The defendants in those suits succeeded, and were allowed upwards of three hundred dollars for their costs. All necessary measures preparatory to a motion for an attachment against the lessors for the non-payment of these costs were taken. The plaintiff then gave a bond for the amount of the costs, accompanied with a warrant of attorney, by virtue of which a judgment was entered, and the bills were receipted.

The plaintiff, under the pleadings which I shall soon more particularly advert to, is entitled to recover ; but what damages did he prove 1 Not the full amount of the cósts, I apprebend. He has not been, and never may be damnified ter ^iai extent. The giving of the bond, with the warrant of attorney, is not equivalent to actual payment. It appears to me the very point was decided in the case of Taylor v. Higgins, (3 East, 169;) and the principle of that case was approved and adopted in Cumming v. Hackley, (8 Johns. R. 202.) If it should so happen that Campbell should become insolvent, and be discharged before he paid the judgment he has' confessed, his assignees would have a demand against Jones, on the principle that the bond is tantamount to payment, for 343 dollars, while the distributive share of the property of the insolvent going to the owner of the bond might be nothing like that sum. The plaintiff is damnified to the amount he has actually paid, but not to the amount he has become obligated to pay.

But it is said the pleadings admitted the fact of the payment of the costs, and it was therefore a matter not to be controverted on the trial. The defendant pleaded non est factum and several special pleas, which were all found against him. These issues being found for the plaintiff, he is entitled to' recover; but the amount of the recovery depends upon the proof of damages. The pleadings did not admit the specific payment of the costs in the ejectment suits.

• If there had been a demurrer to these or any other pleas which the defendant might have put in, and they had been adjudged bad, the plaintiff could not have entered judgment for the costs which he alleged in his declaration to have been paid, without proving the payment on a writ of inquiry.

I have not considered myself called on by this motion to examine the pleadings for any other purpose than to see what was the issue.

Motion for new trial granted.