Gambar halaman
PDF
ePub

(Krider v. Lafferty.)

sary to inquire, whether any injury could arise therefrom to the plaintiffs in error, for unless they may have been prejudiced by it, with the jury; it is not sufficient cause for reversing the judgment. The effect of the charge of the Court was to induce the jury to consider Lafferty as a tenant of the land only from year to year, in place of being. a tenant thereof in fee simple. Now I am utterly unable to perceive any benefit that the plaintiffs in error could have derived from a direction of the Court to the jury, that the deed passed a fee simple estate in the land to Lafferty, that they were not entitled to claim, in the case of its creating only a tenancy from year to year.

Admitting the distinction taken by the counsel for the plaintiffs in error, between a tenant in fee and a tenant from year to year, to exist in favour of a bona fide purchaser for a valuable consideration, still with what propriety could the counsel ask the Court to assume the fact, contrary as I conceive, to the testimony of the witnesses on both sides, that Krider was such a purchaser; and to instruct the jury that the title of Lafferty must, therefore, give way to him. This, had the Court done so, would not only in effect have been a withdrawal of the decision of a matter of fact from the jury, but would have been a decision of it by the Court, contrary to a body of evidence, which went to prove very clearly, that the fact was otherwise. Though Lafferty had never put his deed on record, yet it appears from the testimony of the witnesses of both parties, that he had been in the actual possession and enjoyment of the acre of land from the year 1816 to the time of the trial, and of course was in the actual possession thereof, at the time Krider became the purchaser. When Lafferty bought, it was meadow, and part of a larger tract of land, owned by John Lentz at the time. Lafferty, it seems, was a basket-maker; and immediately after his purchase, the ground being set apart from that owned by Lentz, he took possession of it, planted it with willows, for the purpose of supplying himself with materials to carry on the business of his trade, and continued to occupy it, growing willows upon it, and cutting them every year at the proper season. This visible change in the appearance and occupation of the ground could not well fail to attract the notice of the neighbourhood; and hence it would seem, that all the witnesses who had resided within the same, for any length of time, had become acquainted with Lafferty's occupation of the ground. His possession then being sufficiently distinct to be notorious, was sufficient to put Krider upon his inquiry, as to the right, under which Lafferty held the possession of the land; and being sufficient for that purpose was good notice in equity. Smith v. Lowe, 1 Atk. 490. Sug. Vend. 743. This case, as presented by the evidence, is not like the case of Billington v. Welsh, (5 Binn. 129,) to which it has been compared by the counsel for the plaintiffs in error. Welsh had never had the fifty acres of land, which he alleged he bought of

(Krider v. Lafferty.)

Turner, laid off by survey or separated in any way from the residue of Turner's land. Turner had erected iron-works on his part of the land, and various dwelling-houses and other buildings for the accommodation of the persons in his employ, and for carrying on his business; with which the buildings and improvements of Welsh, to the eye of the spectator, were apparently connected, and seemingly formed a part thereof; so that there was no distinct unequivocal possession of the land by Welsh, as there has been here by Lafferty. Under such circumstances it is obvious, that it would have been erroneous on the part of the Court, and have been doing great injustice to Lafferty, to instruct the jury as requested by the counsel for the plaintiffs in error. They might have made a question as to what would amount to notice to Krider, of the right of Lafferty to the land; and whether such facts and circumstances had been proved as were equivalent to it; but it would seem as if they were unwilling to encounter it; and wished to have it assumed as being in favour of their clients. The charge of the Court then, in regard to the nature and effect of the deed, though erroneous, yet being more favourable to the plaintiffs in error, as we conceive, than their counsel had any right to claim, does not furnish a sufficient ground for reversing the judgment.

As Lafferty acquired a fee simple estate in the acre of land, on which the trespass is alleged to have been committed, by the deed from Lentz to him, the questions embraced in the 3d and 4th points submitted by the counsel for the plaintiffs in error, to the Court below, were not material to the issue, and, therefore, require no further notice.

In regard to the 5th point: we think there was no ground whatever for asking the Court to instruct the jury, as was done by it, that in case they found for the plaintiff below, the damages ought to be merely nominal; as the trespass committed, if any, was unintentional. Krider, one of the plaintiffs in error, under whose authority the others acted, being notified expressly by Lafferty of his right to the land and the willows, persisted in going on with the trespass and taking the willows away, after they were cut, in place of tendering amends for the injury done. It was certainly not an unintentional trespass, but one of design, committed under colour of right, which has been attempted to be vindicated throughout: Lafferty, beside the loss of his property, must have been put to considerable expense in asserting and establishing his right: and I am, therefore, not satisfied, but it was a proper case enough, to be left by the Court to the jury, to decide whether damages beyond the value of the willows taken, and the injury done, if any, to the freehold, ought not to be given nominal damages, merely, were out of the question; for it would have been error, as it appears to me, in the Court, to have suggested less than compensatory.

In regard to the sixth point; Lafferty being held to be the owner

(Krider v. Lafferty.)

of the land, on which the willows grew and were cut; and being in the actual possession of it, there can be no question, but he had a right to allege in his declaration, in addition to the breaking and entering of his close, the cutting, taking and carrying away of the willows there found growing; and having alleged it, it was competent for him to prove it, if he could; and if he proved it, he was entitled to recover damages, equal to the full value of the willows at least, as well as for the injury done to the freehold; hence the Court committed no error in their answer to this point, that could injure the plaintiffs in error.

The judgment is affirmed.

[PHILADELPHIA, FEBRUARY 6, 1836.]

CAMMANN against HIND.

Affidavits to hold to bail made by the plaintiff (residing in New York,) and his clerk in Philadelphia, which set forth that the defendant was indebted to the plaintiff in a certain sum, "part of which" was for money lent and advanced by the plaintiff to the defendant, and "the rest of the principal sum" was due "for the balance which the defendant owes the plaintiff on settlement, in transactions in which the plaintiff, by the the defendant's request, and as his agent, made purchases and sales for the defendant, but in the plaintiff's name, by which he stands indebted to third persons, and the defendant is indebted to him in the said sum; the precise amount and extent of which balance cannot be stated now, because the defendant suddenly left New York, without coming to any settlement &c.," and that the defendant, on being required to pay, did not deny the debt or the amount: held to be sufficient.

An action on the case was brought by Frederick W. Cammann against Edward Hind, to March Term, 1836, of this Court, and bail demanded in $30,000.

A rule to show cause of action and why the defendant should not be discharged on common bail, having been obtained, returnable this day; the following affidavits were now produced on the part of the plaintiff:

"City and County of New York, ss.

Frederick W. Cammann being duly sworn, saith that Edward Hind of the United Kingdom of Great Britain and Ireland, is justly

(Cammann v. Hind.)

and truly indebted to deponent, for money paid, laid out, and expended for the use of said Hind, and for services, and stock in incorporated companies, actually transferred at the instance and request of said Hind, in the sum of thirty thousand dollars or thereabouts, as this deponent has not been able at this time to ascertain the amount of such indebtedness within a dollar, but that the same is very near such amount over or under.

FRED. W. CAMMANN."

"Henry Meigs of the City of New York, attorney in fact of Frederick W. Cammann, plaintiff above-named, on oath declares, that Edward Hind defendant, held to bail in this action, is justly and truly indebted to said plaintiff, in the sum of twenty-five thousand dollars and upwards, without reckoning interest; part of which sum is due for money lent and advanced by the said plaintiff to the said defendant at his request, and the rest of the said principal sum is due for the balance which the said defendant owes the said plaintiff on settlement of accounts, in transactions, in which the plaintiff, by the defendant's request and as his agent, made purchases and sales for the defendant, but in the plaintiff's name, by which he stands indebted to third persons, and the defendant is indebted to him in the said sum, the precise amount and extent of which balance cannot be stated now, because the defendant a few days ago suddenly left the city of New York, where he was a resident, without coming to any settlement with the plaintiff. Deponent being a clerk in plaintiff's counting house, was therefore despatched by him to follow defendant to Philadelphia with power of an attorney to bring him to a settlement. While in plaintiff's counting house, deponent was privy to the transactions and dealings between plaintiff and defendant, and the latter's indebtedness to the former, as aforesaid, is within deponent's personal and actual knowledge. On his arrival in Philadelphia, deponent waited on defendant, and required him to pay from fifteen to twenty thousand dollars, on account of what defendant owes plaintiff. Defendant did not deny the debt or the amount, but said that he had not the means of paying it; whereupon, deponent caused him to be held to bail in this action. Deponent further adds, that defendant is a foreigner, not a citizen of the United States, nor likely to remain in this country, now transiently in Philadelphia, having suddenly left New York as aforesaid, where he has resided about two years last past; that, as deponent understands and believes, defendant has credit for considerable means in England; where he comes from that if held to bail in this action there is a probability, but if not held to bail in it, there is no probability of plaintiff's recovering the debt due to him, by the defendant as aforesaid.

[blocks in formation]

H. MEIGS, Jun."

(Cammann v. Hind.)

Mr. Brashears for the defendant, objected that these affidavits did not bring the case within the 5th section of the 4th Rule of this Court, which requires "a positive affidavit of a real subsisting debt." The plaintiff declares in his affidavit that he has not been able to ascertain the exact amount of the indebtedness, nor does he distinguish, as he ought to have done, between his claim for money paid, &c., and that arising from stock transactions. The latter are too vaguely stated in both affidavits to authorise a holding to bail. The liabilities to third persons mentioned in the affidavit of the clerk, ought to have been particularly set forth; besides, the affidavits are in a measure contradictory, since the first speaks of services rendered, and the last confines the claim to money lent and advanced, and liabilities to third persons for purchases and sales of stock.

But, by THE COURT, (without hearing Mr. C. J. Ingersoll, for the plaintiff.) These affidavits taken together make out a sufficient case, to justify us in refusing bail. It is not necessary to spread out the particulars of the indebtedness, in an action like the present. Besides, it appears that the defendant has acknowledged himself to be indebted to the plaintiff in a sum, which authorises the bail demanded.

Rule discharged.

« SebelumnyaLanjutkan »