Harris v. Schultz.

The case of Walter v. Bennett, (16 N. Y. Rep. 250,) is decisive of this case; there the plaintiff, in one count, claimed to recover the possession of a draft which he alleged belonged to him and had been wrongfully detained. At the trial he proved that the defendant, as his agent, had sold a quantity of pork, and received therefor the draft claimed, which he procured to be discounted and had the money put to his own credit in bank. After he had done so, the plaintiff demanded of him the draft, or the avails thereof, and the defendant refused to deliver the same. The plaintiff was nonsuited, and the nonsuit was sustained by the court of appeals; that court holding that trover would not lie for the draft, as the defendant had authority to procure the money upon it; nor for the money, as the defendant was only liable upon his contract of agency; and the action was not allowed to be retained as an action upon contract. His remedy was held to be ex contractu, upon a complaint properly framed.

In Ridder v. Whitlock this question was not considered by the learned judge. In that case there was an allegation of the conversion of property as well as money, and the question was as to the conformity of the complaint to the summons a question of regularity in the procedure, rather than as to the form of the remedy, or the rights of the parties. As an action of trover it cannot be sustained, and as an action ex contractu, which it must be held to be, as the complaint states facts upon which the defendant would be liable in assumpsit, it is defective for the non-joinder of Schneider; and the objection was properly taken by demurrer. (Code, § 144.)

The order must be reversed, and judgment given for the defendant, with leave to the plaintiff to amend on payment of costs.

[OSWEGO GENERAL TERM, July 14, 1863. Allen, Mullin, Morgan and Bacon, Justices.]

HOWLAND, receiver, &c. vs. CUYKENDALL.

Upon a premium note given to a mutual insurance company, payable "in such portions and at such time or times as the directors may agreeably to their charter and by-laws require," the liability of the maker is not absolute, but conditional, depending upon the necessities of the company and the demand of its officers.

The cause of action upon such a note is not perfect until an assessment has been made upon it, and notice thereof given to the maker; and an action thereon will not be barred by the statute of limitations, until six years from that time.

HE claim of the plaintiff as receiver of the New York Protection Insurance Company, against the defendants, was referred, upon the application of the receiver, to G. H. Lynch, in pursuance of "An act to facilitate the closing up of insolvent and dissolved mutual insurance companies," passed April 21, 1862. The claim was on a premium note dated August 3d, 1850, for $165, payable "in such portions and at such time or times as the directors of said company may agreeably to their charter and by-laws require." The defendant's policy, which was the consideration of the note, was for five years, expiring August 3, 1855. The company failed, and became insolvent in January, 1853. All the losses for which the company became liable occurred after August, 1850. In August, 1853, a receiver was appointed of the effects of the company, with the usual powers of receivers in such cases, who was superseded by the plaintiff, appointed in his place, September 18, 1855. In May, 1860, on the application of a creditor, the plaintiff was directed to assess all the notes in his hands to their full amount and to collect them. On the 12th of August, 1862, the assessment was made and notice given to the defendants. Upon these facts judgment was given for the plaintiff, from which the defendants appealed.

George Rathbun, for the appellants.

B. J. Beach, for the respondent.

Howland v. Cuykendall.

By the Court, ALLEN, J. The only objection to the recovery, taken upon this appeal, is founded upon the statute of limitations; and it is claimed that more than six years had elapsed after the accruing of the cause of action, before the commencement of these proceedings, November, 1862. The liability of the defendants, upon their note, was not absolute but was conditional, depending upon the necessities of the company, and the demand of its officers. They could only be called upon to pay on an assessment made to meet the exigencies of the company, and an assessment could only be made. when required to pay losses or the current expenses; and before an action could be brought, that is, before a cause of action could accrue upon the note, notice of the assessment was required to be given and demand of payment made. (2 R. S. 5th ed. 757, § 44.) The note was only payable upon actual demand after the happening of the contingency upon which it was authorized to be made, and upon performance of the conditions precedent by the holders of the note. By law the power and the duty of making the assessments was transferred, upon the insolvency and dissolution of the company, from the directors to the receiver; and neither could bring an action without first making the assessment and demand. (Savage v. Medbury, 19 N. Y. Rep. 32. Laws of 1852, ch. 71.) The cause of action does not accrue until suit may be brought without further act on the part of the plaintiff. The cause of action was only perfect August 12, 1862, and from that time the statute only commenced to run. Had the plaintiff brought suit on the note on the 11th of August, or even after the 12th of August, and before personal demand of the defendants, he would have failed. This answers the only objection taken to the judgment, upon the appeal, and judgment of affirmance with costs must be given.

[OSWEGO GENERAL TERM, July 14, 1863. Allen, Mullin, Morgan and Bacon, Justices.]

STONE US. WILLIAMS and others.

The omission to annex an affidavit to a confession of judgment, in a justice's court, as required by the statute, renders the judgment void as to creditors, only. It is valid and binding upon the defendant, notwithstanding such omission.

A justice of the peace has the same authority to receive a confession of judgment at the defendant's house, in the town of the justice's residence, as he has to receive it at his own house.

And if the defendant appears before the justice at the former place and signs the confession in his presence, the presence or absence of the justice's docket, at that time and place, will not affect the jurisdiction of the justice.

CTION of debt upon three judgments entered upon confession of the defendants, before a justice of the peace, for $243.58, $190.47 and $190.47, respectively. The confessions were in writing, signed in the presence of the justice, in the town of his residence, 3 or 4 miles from his dwelling house, and at the house of the defendants. They were signed on the same occasion, and the names of both defendants signed to two of the confessions by one of the defendants, in the absence of the other. The latter came in and ratified the signing of his name to the two confessions; and both defendants signed the third confession. There was no affidavit annexed to either of the confessions or made by the defendants. The justice returned home and entered the judgments in his docket, and gave the plaintiff transcripts, the same day, and on the next day, learning that affidavits were required by statute, returned and requested the defendants to make the necessary affidavits, and they refused. On the trial, before MORGAN, J. judgment was given against the plaintiff, on the ground that the judgments were a nullity. From this judgment the plaintiff appealed to the general term.

C. D. Adams, for the appellant.

A. J. Mereness, for the respondent.

Stone v. Williams.

By the Court, ALLEN, J. The docket of the justice did not show the facts necessary to his jurisdiction. It merely stated the names of the parties plaintiff and defendant, the fact of the rendition of the judgment, and its date, with the amount of damages and costs, severally, and the sum total of the judgments. But the statutory requirements in relation to the entries in the docket are merely directory, and a noncompliance with them does not vitiate the judgment; and the jurisdictional and other facts may be proved aliunde. (Barnes v. Harris, 4 Comst. 385, per Bronson, J. and cases cited. Humphrey v. Persons, 23 Barb. 313.)

The defendant does not claim any benefit from any supposed defect in the docket, but insists that the confessions were void for a non-compliance with the statute; and this is the only question made upon this appeal. It seems that before there were any statutory provisions for that purpose, a practice had grown up of taking judgments by confession before justices of the peace; and the regularity of the practice and the validity of the judgments were recognized. See the history of the practice and the cases cited by Savage, Ch. J. in Griffin v. Mitchell, (2 Cowen, 548.) In 1818 express authority was conferred upon justices of the peace to enter judgments by confession, and the practice was so far regulated by statute as to require the defendant to set forth the items of the demand, and make oath to the bona fides of the indebtedness, And the statute declared that any judgment entered by confession, where the defendant should not comply with the provisions of the act should be void. (Laws of 1818, p. 80, §§ 6, 7, ch. 94.) The provision was substantially re-enacted in 1824, with a proviso that a non-compliance with the provisions of the act should not affect the right or title of any bona fide purchaser of any goods or chattels, lands or tenements, under any such judgment. (Laws of 1824, p. 280, ch. 238, §§ 13, 14.) The case of Griffin v. Mitchell, (supra,) was decided under the act of 1818, in 1824, but before the passage of the statute of that year. A judgment had in that case been entered by a justice of the