Nichols v. Rensselaer Co. Mut. Ins. Co.

from one of the companies, and that company would then be entitled to contribution from the other. Godin v. London Assurance Co. 1 Burr. 489. Thurston v. Koch, 4 Dall. 348. 1 Marsh. Ins. 146. 1 Phil. Ins. 326. Ellis' Ins. and Ann. 13. But as the assured can in such cases have but one satisfaction, it was proper that the plaintiffs should assign the claim against the Saratoga company, and as that claim, on the facts assumed, stood connected with the matter submitted, the arbitrators did not exceed their authority in directing the assignment.

In this view of the case the award is good in both its parts, and then of course the whole argument falls to the ground. But it is enough that we can see no necessary connection or dependence between that part of the award which directs the defendants to pay, and that which requires the plaintiffs to assign.

It was not necessary that the plaintiffs should aver a tender or offer of performance on their part. If there is no necessary connection or dependence between the two parts of the award, and that part which directs the assignment is void, it follows of course that the plaintiffs may sue without offering to assign. And if both parts of the award are valid, each party may, I think, have an action for the default of the other, in the same manner as upon independent covenants. This is not like the case of Huy v. Brown, 12 Wend. 591.

None of the minor objections to the action are well taken.

Judgment for plaintiffs.

FITCH US. COMMISSIONERS OF HIGHWAYS OF KIRKLAND.

Where a statute prescribes the form of an order or other summary proceeding, it must be followed as far forth as is consistent with the nature and exigency of the particular proceeding: IT WAS ACCORDINGLY HELD, that an order for the removal of fences made by two commissioners in the case of an encroachment of a highway was void, it not appearing on the face of the order, that the third commissioner was duly notified to attend the meeting of the board, and apprised of the purpose for which he was required to attend.

Although an order be void, it may be treated as voidable merely, and a certiorari brought to quash it.

A certificate of a jury finding an encroachment upon a highway, must, in the language of the statute, state the particulars of such encroachment: alleging the encroachment to exist according to the last survey of a person named in the certificate, without annexing the survey, or referring to it as on file in a public office, is not a compliance with the act. Whether such a certificate can properly be returned by the commissioners on certiorari to them, or whether the writ should not have issued to the town.clerk, and the certificate been returned by him, quere.

i

ENCROACHMENT on highway. In this case, a certiorari was issued to Orange Foote, Alden Brown and George Grummond, commissioners of highways, of the town of Kirkland, in the county of Oneida, to which they returned that on 22d April, 1837, a complaint was exhibited to them of an encroachment upon a certain highway; that they immediately proceeded to examine into the matter, and determined that an encroachment had been made, and agreed to meet at a certain place, on the 20th day of April, for the purpose of consulting on the expediency of making an order for the removal of the encroachment; that they, the three commissioners, met accordingly, and having consulted together, Two of them, viz: Foote and Brown, made an order, and subsequently to the loss of the order of the eighth of May, reduced the same to writing, as of the twenty-eighth of April. The order thus made, commences as follows: "At a meeting of the commissioners of highways, of the town of Kirkland, in the county of Oneida, holden at the Inn of Alden Brown, in said town of Kirkland, on the 28th day of April, 1837, at which said meeting Orange Foote and

Fitch v. Com'rs, &c. of Kirkland.

Alden Brown, two of the commissioners of highways of said town, were present, and George Grummond, having been duly notified, did not attend, (BUT WAS) deemed and adjudged by the two commissioners (TO BE) present. After a careful examination of the road, &c." they adjudged that the breadth of the road as originally intended was three rods, and that John Fitch had encroached. This paper purported to have been signed by the three commissioners, but there is a note attached to it in these words: "George was not present, but assented to the foregoing. April 28th, 1837." The commissioners. then further return that they caused a survey of the road to be made on the fourth day of May, the minutes of which survey and an accompanying diagram was delivered by the surveyor to two of the commissioners, viz: Foote and Brown, who thereupon gave due notice to Grummond, of an intended meeting on the eigth day of May, at the house of Brown, for the purpose of making an order requiring Fitch to remove the encroachments, and notifying him to remove his fences. That at the time and place appointed; Foote and Brown attended, and made and subscribed an order, and also made and subscribed a notice, a copy of which they annexed to their return; they further certify that Grummond consulted with them as to making the order and notice of the eighth of May, and that he approved of the The notice of the eighth of May, annexed to the return, was directed to John Fitch and was to the effect, that an order had been duly made and filed in the town-clerk's office, dated on the eighth day of May, requiring him within 60 days to remove his fence, specifying the breadth of the road originally intended, describing the line to which his fence should be removed, and specifying the extent of the encroachment. This notice was served on Fitch, on the day of the date of the notice, and he on the same day denied the encroachment in writing. The commissioners thereupon applied to a justice for a precept to summon a jury to inquire into the premises. Two juries heard the proofs and allegations which were produced, and could not agree upon a verdict. A third jury was summoned, who, on the 26th July, 1837, found a verdict and made and sub

same.

Fitch v. Com's, &c. of Kirkland.

scribed a certificate of their finding, which was filed on the same day, in the town-clerk's office. The jury certify that John Fitch has encroached by fences on the highway leading from the village of Franklin, in the town of Kirkland, to the town of Marshall, beginning at the south line of his farm on the high-way; running northerly on the line of said highway to the north line of his farm on said highway, according to the last survey of Gaius Butler. The commissioners, in the return, stated two surveys to have been made by Butler, one on the 4th May, 1837, and the other on the 24th July, 1837, and that both were filed in the town-clerk's office.

C. P. Kirkland, for plaintiff in error.

J. A. Spencer, for the defendants.

By the Court, COWEN, J. The objection that a second. jury could not be summoned on the disagreement of the first, and a third on the disagreement of the second, was abandoned by the counsel for the plaintiff, on the counsel for the commissioners citing 2 R. S. 458, §26, 2d ed., and the objection confined to the informality of the order and uncertainty of the certificate. The objection that the jury erred on the merits was abandoned as not examinable upon certiorari, on the authority of Birdsall v. Phillips, 17 Wendell, 464.

Was the order in due form? The order of the 8th of May, under which the proceedings were had, is lost, and is not returned in form, scarcely in substance. Another was then drawn up, as of a previous date, the 28th of April, which professes to be about the same in substance as that of the 8th of May; and the argument may be taken to proceed on that, or the previous order which it resembles; though it is somewhat difficult to see, from the return, whether any order is before us which we can notice. The most favorable side for the defendants is, to take the order of the 28th of April as a representative of the order of the 8th of May, which was the one professedly acted on. Is that in due

Fitch v. Com's, &c. of Kirkland.

form? The 1 R. S. 520, §129, 2d ed., provides that orders of this kind, and others made by commissioners of highways, in execution of the powers conferred by title I. of ch. 14 of part 1 of the Revised Statutes, may be made. by any two of the commissioners, "provided it shall appear in the order filed by them, that all the commissioners of highways of the town met and deliberated on the subject embraced in such order; or were duly notified to attend a meeting of the commissioners, for the purpose of deliberating thereon." The order in question does not state that they all met and deliberated in this instance; the contrary appears. Then is the other side of the alternative complied with? The order says: "and the said George Grummond, having been duly notified, did not attend." This differs from the words of the statute which gives the form. The recital stops with saying he was duly notified; it does not add for what purpose. The statute requires that the notice. should be given for the purpose of deliberating on the subject of the specific encroachment, or other subject, whatever it may be; and that the order shall expressly state the purpose of the notice. Here non constat that any purpose whatever was intimated to Grummond. The notice might have been a mere naked request. When a statute prescribes the form, the very words of an order or other summary proceeding, those words must be used, at least, as far as they can be applied to the nature and exigency of the particular proceeding. Davison v. Gill, 1 East, 64. Goss v. Jackson, 3 Esp. R. 198. According to the cases cited, the order would be a nullity; and no penalty could be recovered against Fitch under the statute. But the order being void, does not preclude the party from treating it as voidable, and bring a certiorari to quash it at his election. Starr v. The Trustees of the Village of Rochester, 6 Wendell, 564, 567.

ment.

Then, as to the certificate of the jury. This is intended as a guide to the party who is convicted of the encroachIn removing it, he is to conform to the certificate, which must, in the words of the statute, "state the particulars of the encroachment." 2 R. S. 518, §111, 2d ed. See