5 Denio 345 | N.Y. Sup. Ct. | 1848
It is not very easy tc collect, from this bill of exceptions, the several points of law intended to be made by counsel, and which were determined by the court below. Some of these points, however, may be understood, and as I see no way in which the judgment can be upheld, I shall examine but one or two of the questions made, leaving others, which seem to have been glanced at if not distinctly presented, to be raised in a more intelligible form, both as to law and fact, on a future trial.
1. Jeremiah Krum was drawn as a juror, and was challenged by the defendant’s counsel for principal cause, as was said, although no ground for the challenge was stated. Had the plaintiff made this objection to the challenge it should have been overruled without hesitation. But no such objection was taken, both parties appearing to have regarded the challenge as sufficient in form and substance. It seems to have been understood and disposed of as a challenge on the ground that the juror had formed and expressed an opinion that no such right existed as that set up by the defendants to justify what they had done, and which right would be directly in question on the trial of the cause. As the parties chose so to understand the objection in the court below, it should be so regarded in disposing of it here. Understood in this sense, the challenge was well taken, if in fact such an opinion had been formed and expressed by the juror, and this was a matter to be tried and determined by the court. On this point the juror was examined, and that without oath, when he ought to have oeen sworn. This was irregular unless the parties consented to an examination without oath, which, as no dissent appears to have been expressed, we must assume was given. What was stated in the course of this examination must therefore be regarded as competent evidence on the question, and it was thus clearly shown that such an opinion had been formed and expressed by the party challenged. His opinion was that the landlord, under and for whom the defendants acted, had no right or title to the rent for which the distress had been made. If this opinion was correct, the defendants had no pretence of a justification, and
2. I think Jacob Livingston was an incompetent witness foi the defendants, on the ground that he was directly interested in the event of the suit. The defendants, although one was sheriff and the other under-sheriff of the county, were not acting, in what they did as such officers, but as the servants and bailiffs of the landlord. At common law a landlord might dis-train in person, or by such agent as he thought proper to appoint for that purpose. But this rule was changed by the revised statutes, which provide that every distress for rent shall “ be made by the sheriff of the county, or one of his deputies, or by a constable or marshal of the city or town where the goods are, who shall conduct the proceedings throughout.” (2 R. 8. 500, § 3.) Still, although the distress was required to be made by an officer, it was not strictly speaking an official act. It was not done under the authority of legal process, but in virtue of a mere private power of attorney, and the act could only be justified by showing the right of the principal to collect his rent by distress and sale. As was said in the case of Webber v. Shearman, “ the only effect of the statute is to narrow the circle of selection,” so that the landlord must act by an agent who is an officer. But “ the remedy is still by the act of the party interested, not by process of law;” “ and, however regular the papers on their face, no one would pretend that they will operate as a protection” to the agent “unless his principal has a right to distrain. In making cognizance he must, therefore, go back to the right of his principal, and show it as fully as the latter is bound to do in his avowry.” (6 Hill, 29, 30.) The defendants, in the present case, having been employed by the landlord, (Jacob Livingston,) to let as his agents in making this distress, the law implies from such employment, a
In order to justify the alleged trespass of which the plaintiff complained, these defendants were bound to prove, substantially, every thing required to be stated in a common law cognizance in replevin for goods taken by way of distress for rent. (Wilk. on Repl. 51, et seq.; 1 Ch. Pl. ed. of 1837, pp. 537, 8 ; 3 id. 1049 and notes ; 2 Sound. 284, (3).) It is certainly highly probable, looking to the long period of time during which rent was paid, without question, by the plaintiff to Jacob Livingston, that the right of the latter as set up by the defendants, was really too plain to admit of serious controversy. Still, I am not prepared to say that any such right was shown by the evidence as stated in this bill of exceptions. The lease under which the. plaintiff held his farm was given by John Livingston; it was therefore necessary to prove that his right and title had passed in some manner to Jacob Livingston. Of this it can hardly be said any thing like evidence was furnished. Nor, in strictness,
Ordered accordingly