Packard v. Hill

7 Cow. 434 | N.Y. Sup. Ct. | 1827

Curia, per Savage, Ch. J.

A preliminary objection is raised, to both the argument on the demurrer, and the motion to set aside the nonsuit; on the ground that the plaintiff is out of court, being nonsuited. The case of Snow v. Como, (1 Str. 407,) is relied on by the defendants’ counsel In that case, there was a demurrer to one count, and an issue on the other; and the venire was awarded, as well to try the issue, as to assess contingent damages upon the demurrer. The plaintiff was nonsuited upon the issue; and the chief justice, (Sir John Pratt,) would not go on to assess the damages; saying he had no power so to do, the plaintiff being out of court. The precedents also are relied on, showing that when the plaintiff is nonsuited, he is out of court; and hence it is argued he cannot be an actor. The case of Slowly v. Eveley, (Hob. 180,) is relied on by the plaintiffs’ counsel; where it is said, that when there is a demurrer and an issue, and the plaintiff is nonsuited, he may still proceed with the residue of his action. This case is not an authority for saying that the plaintiff may proceed in his cause at the same time that he is nonsuited. In that, there is certainly a seeming inconsistency. The venire is as well to try the issue, as to assess the damages. If there be no issue, ’-there can be no assessment of damages at the circuit; nor before the sheriff, till there is a judgment. Where, therefore, the issue is not in fact tried, there can be no assessment. The plaintiff surely could not, under such a venire, assess damages, if before the assessment he were to enter a nolle prosequi. The trial of the issue is the principal matter; and the assessment of contingent damages is only incidental. The cases cited, I think, when considered together, show that if the plaintiff becomes nonsuited on one issue, he cannot assess contingent damages upon other issues; but he is not out of court upon those issues ; and may proceed upon them in their regular course. Neither is the plaintiff so entirely out of court upon a nonsuit, that he cannot move to set it aside. Such- motions are made and acted on at every term of this court.

As to the demurrer. The first and third counts state that Growen was compelled to pay by a court of competent jurisdiction, without stating what court. This objection would undoubtedly be good upon a special demurrer. If a party plead a judgment, he must show in what court; for, to put the adverse party to search in every court, would be infinite. (2 Salk. 517.) To plead that a defendant was discharged out of custody by due course of law, without stating how he was discharged, is bad. (2 John. 437.)

To this, it is answered, that if these counts are thus defective, the defendants cannot avail themselves of the defect upon a general demurrer; and so I am inclined to think. The defect is matter of form. If it be true that a recovery was had in a court of competent jurisdiction, the plaintiffs are equally entitled to recover, as if it had been stated that the judgment was rendered in the court of Consulado, or the superior court of the island of Cuba. The general demurrer admits the recovery to have been had in a court of competent jurisdiction.

The same remark is applicable to the second count. It states that Gowen was compelled to pay; but does not gpec£fy k0Wi The count is undoubtedly bad on special demurrer. p,ut on general demurrer, the inference must be, that he was legally compelled to pay.

*The third objection is, that the action should have been brought in the name of Gowen. To this it is answered, that the contract is joint. The promise is to Packard & Gowen, to reimburse them, or their agent, the amount to be recovered against them, or their agent. My construction of the contract, as stated, is, that the action must be brought by Packard & Gowen; but the defendants might plead a satisfaction to Gowen, the plaintiffs’ agent, if such were the fact. A payment either by the plaintiffs, or their agent, gives a right to call on the defendants; but a payment by the defendants may be made either to the plaintiffs, or their agent.

My opinion, therefore, is, that upon general demurrer, the declaration is good; and that the plaintiffs are entitled to judgment upon the demurrers.

Upon the question of the assessment of damages, I have already shown that the assessment was irregular. But if I am mistaken in this, it may be proper to consider the points-arising upon the bill of exceptions.

1. It is objected, that the copy of the judgment at Havana was not duly authenticated. It was shown that the document, purporting to be a copy of the judgment, was signed by the clerk of the court, who was keeper of the records of that court; and that his signature validated all its proceedings; that the court has no seal; that the seal used to the certificate, is the seal of the royal college of notaries; and that the document is authenticated in the customary way in which records are authenticated, to be sent to foreign countries.

In Delafield v. Hand, (3 John. 310,) it was decided that n exemplification of the proceedings of a tribunal at Havre, was not evidence, of itself; but such proceedings should be established like other matters of fact, and subject to the same rules of evidence.

In Vandervoort v. Col. Ins. Co. (2 Caines, 168,) it was deeided, that the copy of proceedings of condemnation, under the seal of arms of the secretary of state, could not be received in evidence; there being no proof that the secretary of state had the custody of the records of that description.

*In the case of Gardere v. Col. Ins. Co., (7 John. 514,) the decree of the court of vice-admiralty at Antigua, certified by the actuary, in the absence of the deputy registrar in admiralty, was offered in evidence. Proof was given of the seal affixed to the sentence, and of the signature and official character of the person signing and certifying the decree. This was held sufficient. It was also decided, in this latter case, that the whole proceedings need not be produced; but so much only as states the fact material to be proved on the trial.

In the case under consideration, we have proof of the signature of the officer who has the custody of the records of the court, and whose duty it is to certify them. It is proved that the court has no seal; but that the seal to the certificate is the seal of the college of notaries; and the signatures of the notaries are genuine. This evidence is certainly sufficient.

But it is again objected, that the whole proceedings are not set forth; nor enough to show that the recovery related to the subject matter of the agreement. The whole proceedings are not given; but it appears that the recovery was in relation to a quantity of iron landed at Havana, and seems to be, primos facie, sufficient. That the proceedings are against Growen, individually, is no objection. Captain Ofczen probably did not know that Growen was the agent of his house, or that the house were agents for the defendants ; nor was it necessary that either of these facts should appear.

It is further objected, that the plaintiffs were not authorized to submit to arbitration; the engagement being to in demnify them for what they should be compelled to pay. The agreement, it will be seen, relates to suits then pending, as well as those which should be brought; and, by the document given in evidence, it appears these proceedings commenced in February, 1815, before the signing of the ag'reement. The presumption is, therefore, that the suit then pending, was known to the defendants; and is to be considered a compulsory proceeding within the terms of the agreement.

*It is also said, that the record is not competent proof of the payment of the money. That fact makes part of the proceedings of the court; and I see no reason why it is not as well proved as any other established by the record. It is not usual for records to contain the history of the execution ; but they may do so, with entry of satisfaction, which is high proof of payment. This judgment is satisfied of record; which, I think, is sufficient proof of payment.

The result of my opinion is, that the plaintiffs are entitled to judgment on the demurrers; that the assessment of damages is justified by the evidence; but the plaintiffs, having been nonsuited on the issue, could not assess contingent damages. The assessment should, therefore, be set aside.

Buie accordingly.

Sutherland, J., not having heard the argument, gave no opinion.