Fellows v. Gilman

By the Court, Sutherland, J. The fifteenth section of the act to incorporate the village of Rochester, (Laws of 1826, p. 121,) contains all the legal provisions upon the subject of the security to be given by a constable; and -it merely directs that the treasurer, collector and constables shall, before they enter upon the duties of their offices, “ give such security for the faithful performance of the trust reposed in [417] as the major part of the trustees (of the milage) for the time being shall deem sufficient.” Neither the form nor the amount of the security is prescribed, nor is any particular manner or form directed in which the trustees shall express their approbation; it is all left to their sound discretion. Any act of a majority of the trustees, from which their approval of the security is necessarily to be implied, would be as effectual as a direct formal vote upon the subject; and the manner in which the approbation is expressed is matter of evidence, .and need not be particularly set forth in the pleadings. Whether they approved of the security, and deemed it sufficient or not, is a pure question of fact, not of law. It does not put in issue a question of law, any more than does the plea of non assumpsit or non est factum in an action upon a note or a bond. As to the replication to the tenth plea, it was not necessary, I apprehend, for the plaintiff to incorporate the bill of particulars in his replication, and set forth at length the reasons why it could not be made more specific. He alleges, in the very terms of the act, that the items were set forth in writing, as far forth as the defendants were able to do : this fully puts in issue the sufficiency of the specification, and if upon the trial it should appear that it was defective, the issue, under the direction of the court, would be found for the defendant. The plea is confined to the particular grounds of objection which it enumerates. It was not necessary, therefore, for the plaintiff, in his replication, to show that the judgment in other respects conformed to the requisitions of the statute. But if the specification was defective, neither the constable nor his sureties could avail themselves of it. The judgment would be void only against the creditors of the defendants ; it would protect the officer in executing process under it. (17 Johns. R. 145. 2 Cowen, 548.) I am inclined to think the eleventh plea itself is bad in substance. The first count of the declaration to which this plea is put in does not charge the constable with having collected and received the money upon the execution; on the contrary, it expressly avers that he neglected to levy and make the sum [418] mentioned in the execution The plea does not allege that the consta^e received the money, and always had it ready to pay over, in a form in which issue could be taken upon it. If suc^ inference is to be drawn from it, it is mere matter of inference and argument, and it is bad on that ground. If the money was not levied and received by the constable, it certainly could not be contended that a demand, under any circumstances, was necessary. The "seventeenth section of the fifty dollar act, (Laws of 1824, p. 289,) provides for the case of the death or removal from office of a justice, and makes it the duty of the constable in such cases to pay the proceeds of his executions to the respective plaintiffs therein. The act assumes that the constable Imows, or can with proper diligence ascertain the residence of the plaintiff or his agent. If he cannot, it would probably be a good defence for him and his sureties, if properly pleaded. But if the act would admit of a construction which would render it necessary for non-resident plaintiffs to demand the money in such cases, then the replication in this case takes issue on the only material part of the plea, to wit, that the plaintiff was a non-resident. The seventeenth section of the act above alluded to, in terms, applies to all constables: constables in villages as well as in towns and wards. This replication is also good. But it is contended by the defendants that, independently of the objections already considered, the plaintiff cannot recover: 1. Because the instrument declared on is not in the form prescribed by the act, (Laws of 1826, p. 121, sect. 15.) and is therefore void; and 2. That covenant will not lie on such instrument, admitting it to be valid. I do not understand the legislature as intending to prescribe the form of the security to be given by the constables of Rochester. They do not say that it shall be by bond, conditioned for the faithful performance of the trust reposed in them. They use the most general terms: “ Such security, for the faithful performance of the trust reposed in them, as the trustees, Sec., shall deem sufficient.” As no form is prescribed, the trustees are to judge of the sufficiency of the security in point ofform, as well as substance; and if the se [419] curity exacted is less comprehensive than the act would have authorized, the parties cannot object to it on that ground. Where the form is given by the statute, it must be substantially followed. (Cowen’s Treatise, 679.) The objection to the form of the action in this case seems to be, that the plaintiff is not a party to the instrument on which the action is brought, nor named in it; and the rule is said to be, that in a deed inter partes, or an indenture, no one but the parties who have signed and sealed the instrument can maintain covenant upon it, though a stranger may have covenant on a deed poll, if he be named in it, and it contain a covenant in his favor. (6 Viner’s Abr. tit. Covenant. Comyn’s Dig. Cov. a, 1. 3 Bos. & Pul. 149, note a. and cases there cited.) If A. covenant generally to indemnity B., B. may have covenant, though he did not seal the articles and the covenant was not with him. (Comyn’s Dig. Cov. a, 1. Coke Litt. 231, a. 2 Lev. 74. 3 id. 139. 2 Mod. 116 Carth. 76, 7. 1 Chitty’s Pl. 5.) It must undoubtedly appear that the covenant which is alleged to have been broken, was made for the benefit of the person bringing the action. He must in some manner be pointed out or designated in the instrument; but it is not necessary that his name should in terms be used. A familiar illustration of this is to be found in the case of a covenant with a man and his heirs or his executors. There the names of the heirs or the executors do not appear in the deed; but still they can sue upon the covenant if broken. They are pointed out or designated in a manner which, with the aid of proper averments, shews that the covenant was intended for their benefit. So in this case, the defendants covenant to pay to each and every person, such sum or sums of money as the constable shall become liable for on account of any execution which may be delivered to him. This, in connection with the allegations and averments in the declaration, shews, as satisfactorily as in the case of an heir or an executor, that the plaintiff was one of the persons for whose benefit the covenant or instrument was designed. The plaintiff is entitled to judgment on the demurrer.