People v. Holmes, 5 Wend. 191

People v. Holmes

5 Wend. 191 | N.Y. Sup. Ct. | 1830

By the Court,

Marcy, J.

A question of considerable importance in relation to suits against constables who have not done their duty on executions delivered to them for collection was raised on the argument.

A constable, before he enters upon the duties of his office, is required to execute an instrument in writing by which he and his sureties shall jointly and severally agree to pay to each and every person such sum of money as the constable shall become liable to pay on account of any execution that shall be delivered to him for collection. 2 R. L. 126. The statute prescribes what shall be the substance of the instrument, but is silent as to its form. This court decided as early as 1822, that a penal bond to the people would be a compliance with the statute. It has, however, been since decided, 2 Wendell, 281, that this is not the only form of the security. It may be, and perhaps it would be best that it should be, a simple agreement without any penally, to pay to any person who might be aggrieved by the constable’s neglect of duty. But the instrument on which this action is brought is in a form which has been approved by this court.

Although it is a bond given expressly to the people, yet it is contended that a suit on it cannot be maintained in the name of the people, but that the action should be covenant on the condition in the name of the party aggrieved. Covenant might undoubtedly be maintained on the bond ; but it does not follow that an action in the present form cannot be sustained. It is certainly a novel objection that a suit cannot be maintained in the name of the parly to whom a bond is given. The general principle is, that no other person than the obligee in the bond can be the nominal plaintiff. The *198difficulties that have been suggested to this form of action, it is confessed, do not exist in relation to this suit. It is not pretended that the objects to be accomplished by this prosecution cannot be as well attained by the present form of action as by any other; but the rights that others may have under this bond, it is supposed, may be impaired by sustaining this action. When the apprehended difficulties arise, it will be time enough for us to consider how far they are well founded, and by what means they may be obviated. They cannot be alleged to defeat this action.

We are now to look into the case for the purpose of seeing what judgment is to be rendered. The verdict is subject to the opinion of this court on certain questions reserved in the course of the trial. The defendants offered to prove the insolvency of the constable Holmes, with a view, as the case states, to exonerate the bail, who, as was contended, had been lulled into security by the neglect of the plaintiffs in interest, and by their conduct as to the agency of Rnthbone. This was objected to. I do not understand the objection to have been as narrow as is supposed by the counsel for the defendants. He seems to regard it as an objection only to the proof of the simple fact of the constable’s insolvency; but the grounds of the objection contained in the case shew that it was to the kind of defence which was about to be entered on. These grounds were, first, that no notice of such matter was given, the plea of non esl factum putting in issue nothing but the execution of the bond, and the special notice alleging no such matter as was offered to be proved, and that therefore the evidence was inadmissible ; secondly, the agency of Rathbone not having been proved, but, on the contrary, disproved, that fact, being the basis of the defence, no other matter of defence was admissible; and thirdly, the bail, not having severed from their principal in the plea and notice, could not avail themselves of a separate defence.

The two first grounds of objection are clearly not confined to the proof offered of the insolvency of the officer, but to the kind of defence which that evidence was intended to support. The matter mentioned by the plaintiff’s counsel is by fair intendment to be considered the particular defence offer-*199eel to be proved; that is, the alleged neglect of Williams and Merrill, and their conduct as to the agency of Rathbone. If the objection extended to the kind of defence which the insolvency was introduced to support, and not to the proof of the bare fact of insolvency, and that objection was overruled, the judge must be understood as deciding that such defence was available to the defendants under the pleadings. That such were his views is evident from his charge; for he left it to the jury to say whether such defence had not in fact been made out by the defendants. Nothing but the execution of the bond, and the purchase by Williams and Merrill through their agent Rathbone of the goods of Gilson sold on the execution in their favor was put in issue, and the judge should have confined the parties to such issue. This he did not do, as I understand his decision, but erred in overruling the objection made by the plaintiffs’ counsel to any other defence, and in submitting to the jury a defence not embraced in the issue. Perhaps the fact of the constable’s insolvency was not legitimate proof to show that the conduct of Williams and Merrill had been such as to exonerate the bail ; and if the only ground of complaint was the improper introduction of that single fact, we might probably give effect to the verdict as found.

It is said that Williams and Merrill cannot now object to the charge of the judge, because they took no exception to it on the trial. If they had stood by in perfect silence and heard the judge submit to the jury a matter of defence which was excluded by the pleadings, the court might not listen to them on a motion for a new trial for that cause. Such however is not the predicament of these plaintiffs. Their counsel having objected to the defence, which was not embraced in the issue when it was offered to be proved, and the judge having admitted it, an objection to the charge when the judge submitted such defence to the jury was not required to give to the party the right to object to the charge on this motion. To have complained of the charge on the trial, would have been but a repetition of an objection once overruled ; and to have urged it again, might not have been considered perfectly respectful to the judge.

*200The verdict is not, as I conceive, wholly subject to the opinion of this court; it is so only on the several questions raised at the trial. If we decide any or all of those questions *n ^avoy plaintiffs, still we are not authorized to give judgment in their favor. Our decision on these exceptions may do away the verdict for the defendants t but, as I apprehend, we are without authority to substitue a verdict for the plaintiffs. I think, therefore, we can only grant a new trial.

The defendants ask for leave to amend their pleadings, so as to let in a defence, which, in the present state of the record, is inadmissible. I see no objection to permitting this to be done; but it must be on the condition that they pay all the plaintiffs’ costs since the plea and notice were put in.

New trial granted, with leave to the defendants to amend on payment of costs.