ALBANY, Kelley V. Horton. er degree of strictness is required, in Sheriffs on process October, 1823. from the higher Courts, than where the question is confined to the parties upon the record. (Per Curiam in Linnendoll v. Doe, 14 John. 223.) In this case, the constable, having found sufficient goods of the defendant, could not have the execution renewed. (1 R. L. 393. Wickham v. Miller, 12 John. 320.) He should, therefore, under the execution first issued, have proceeded in due season to a sale. If no bidders had appeared, he might have postponed the sale, and given notice to the plaintiff to attend. I am of opinion that the udgment should be reversed. Judgment reversed, Tho' a road KELLEY against HORTON and SMITH, ON certiorari to a Justice's Court. The action was trespass be laid out, the in the Court below, by Kelly against overseer of Horton & Smith, for Smith, as overseer of his aid, justified this, highways has pulling down the plaintiff's fence. no right to highways, and Horton, as coming in moving fences, and proved by a witness, that he heard the plaintiff tell open it, by re without an or der from the Smith, the overseer, that the former would open his fence commissioners, when the latter wished to work the road. Verdict and judgor a majority ment for the defendants. of them. Nor have they a right to open a road which they have laid out, or direct it to be opened by removing fen G. Lawrence, for the plaintiff in error. H. Baldwin, contra. Curia. The testimony of the witness who heard the ces, until after plaintiff tell the overseer that he would open his fence, when 60 days notice to the owner, the latter wished to work the road, seems to admit that a to remove his road had been laid there; but by the 39th section of the act fences. ces are remov ed, to open a And if fen- to regulate highways, (2 R. L. 283,) the plaintiff was entitled to 60 days notice from the commissioners, or a majority of road newly them, to remove his fences; and the overseer had no right laid out, withthe road without their orders. The verdict is against out such no- to open tice, all per- law and evidence. sons concern ed therein are trespassers. Judgment reversed, SMITH against FENTON. ALBANY, October, 1823. Smith V. Fenton. Though the cause have been twice ad journed by the last ad under the de ON certiorari to a Justice's Court. Fenton sued Smith, in the Court below, and, after issue joined, the cause was twice adjourned, by consent. The second adjournment was under a stipulation of the defendant, that he would not delay the consent, and trial further, but would absolutely come to trial on the 17th journment be Jan. 1823, the last adjourned day. On that day the parties appeared, and the defendant requested a further adjournment, offered security, and to make oath of the absence of two material witnesses, who had been subpoenaed by him, but did not attend; that without their testimony he could not proceed to trial, as he was advised by counsel; that one of them had gone a journey; that he expected to procure their attendance in two or three weeks, The Justice denied the adjournment. Judgment for the plaintiff, A. Gregory, for the plaintiff in error. Clark & Birdsall, contra. fendant's stipulation that he will not delay the cause farther; but will absolutely come to trial on the 2d ad. journed day, yet the justice journ again on is bound to ad the defend. ant's giving security, and showing on oath, the absence of material testimony, &c., with due diligence used to obtain it. dant is entitled to The defen on one adjournment of course, making, oath and giving se curity; showing cause he may have And, on a still farther Curia. The spirit of the 25 dollar act, and the adjudications of this Court upon it, appear to be, that the Justice has a discretion in granting adjournments after the first. One adjournment the defendant may claim as matter of right, on giving security, and making oath of the absence of a material witness. Others, he may be entitled to on showing sufficient cause; provided the 3 months have not expired. In this case the two first adjournments were by consent; and though the defendant might have been guilty of adjournment, a violation of good faith, yet he offered to comply with the requisitions of the act. There had been no laches on his part; for he had subpoenaed his witnesses and they did not attend. We think the Justice ought to have granted the adjournment; though he seems to have acted under the impression that the defendant's object was delay and vexation. (Easton v. Coe, 2 John. Rep. 383. Townsend v. Lee, 3 id. 431. Powers v. Lockwood, 9 id. 133. Beekman v. Wright, provided the 3 months have not expired. 11 id. 442. 505 to 509, Annin v. Chase, 13 id. 462. Cowen's Treatise, where all the cases upon this head are quo ALBANY, October, 1823. Lyon V. Munson. ted.) Judgment reversed. Where a WALES against HART & DOWD. ON certiorari to a Justice's Court. Trover, in the Court constable below by Wales against Hart & Dowd. The defendants sued for selling property on pleaded jointly the general issue; and the verdict was for execution, and The defence was that the property in judgment is in the defendants. his favor, he question belonged to one Davis against whom Hart, as condouble costs; stable, had an execution by virtue whereof he levied upon Otherwise, and sold the property to Dowd. The Justice gave judg is entitled to where he is sued jointly ment for the defendants, with double costs. with another and they plead jointly; tho' the judgment be in favor of both. J. Birdsall, for the plaintiff in error. Rexford, contra. Curia. The defendant, Hart, would have boen entitled to his double costs, had he pleaded separately: but joining with Dowd, the purchaser, single costs only were allowable. The judgment must be reversed, as to the costs. Judgment accordingly. LYON against MUNSON. If a highON certiorari to a Justice's Court. Debt in the Court way, or any below by Munson against Lyon, for the penalty imposed by not opened part of it, be and worked within six years after the 19th March, 1813, it ceases to be a road; though it had been opened and worked before that time, and within 6 years after it had been laid out. Accordingly, where a road had been laid out in 1798, and opened and worked within 6 years thereafter; but a part of it had been fenced up, and the travel turned another way for six years after, and including, the 19th March, 1813'; held, that the part thus fenced, ceased to be a road; And, consequently, that an action for the penalty of $5, within the 25th section of the act to regulate highways, would not lie for continuing the fence. Lyon V. Munson. the 25th section of the act to regulate highways,' (2 R. L. ALBANY, 270,) for obstructing a public highway in Oxford, Chenan- October, 1823. go county. Plea the general issue. The cause was tried by jury, Sept. 28th, 1822. The plaintiff produced the town record by which it appeared that the road was duly laid out, on survey, in the year 1798, beginning at the town line between Oxford and Greene, and running to Oxford village. It appeared also, by the same record, that an alteration was made, June 24th, 1800, by two commissioners of highways, in a part of the road from one point to another sufficiently explicit, but without an actual survey, and the certificate of alteration concluded thus: "N. B. The road from the place of beginning round by old Mr. Warn's, is hereby make void." The part of the road thus discontinued is that on which the pretended obstruction was placed by the erection of a gate. William Betts, a witness on the part of the plaintiff, proved that the old road passed through the farms of the plaintiff, of the defendant, and of Warn. That there had been fences across it on all the farms for a number of years. He understood the old road was to be discontinued when the new one was laid. Samuel Garnsey, another witness, said there was nothing in the petition about discontinuing the old road; that the north part of this road, at the defendant's, has had gates and bars, and the south part has had fences across it for 17 or 18 years. This witness did not understand that the old road was to have been discontinued. Abraham Hallenback testified, that when the new road was laid, he owned the farm now owned by the plaintiff. Before he put up the fences, he got the consent of his neighbours. The gates and bars were put up 3 or 4 years after the new road was laid. The old road has not been worked since the new one was laid. Verdict and judgment for the plaintiff. Curia. It is not necessary to inquire whether the act of the commissioners, in altering the old road, be valid within the provisions of the law under which they acted; for, if it ALBANY, Walker was void, the 23d section of the act which was passed March October, 1823. 19, 1813, (2 R. L. 277,) is, in our opinion, decisive of the question. It enacts, "that if any public highway already laid out, or hereafter to be laid out, shall not be opened and worked within six years after the passing of this act, or from the time of its being so laid out, the same shall cease to be a public highway or road, for any use, intent or purpose whatsoever." It is said the road was opened and worked, within six years after it was laid out. But the act is prospective. It speaks in the future tense. It requires that the road shall be opened and worked, &c.—not, shall have been opened and worked, &c. The clause, " or from the time of its being so laid out," refers to those roads only, to be laid out subsequent to the time at which the act passed. The road in question has not been worked within six years from that time. We think, therefore, it had ceased to be a road; and, consequently, that the judgment was erroneous, and should be reversed. Judgment reversed. Where one, by action, recovers money, been before lies to recover it back; WALKER against AMES. ON certiorari to a Justice's Court. The action was case in the Court below, by Ames against Walker; "For that which has the defendant did fraudulently obtain a judgment, or a cerpaid, no action tain part thereof, against the present plaintiff, to his damage $25." The defendant pleaded the former suit in bar, which And this was overruled by the Justice. The fraud complained of though first recovery was, that Walker, in the suit against Ames, recovered on be fraudulent. a book account, and also on a note given by Ames to Walker, on settlement of the same account for the balance thereof. Verdict and judgment for the plaintiff. the J. Root, for the plaintiff in error. J. S. Sheldon, conta. |