Albany, October, 1840.-Edwards v. Clemons.

terms of the contract or lease, for the rent of the premises from 1st May, 1836, to 1st May, 1837, being for balance due on first year's rent. (Signed) "Alfred Clemons, one of A. Palmer's assignees." The plaintiffs also produced a distress warrant, dated 27th June, 1837, directing any constable of the town of Buffalo to distrain the goods and chattels of the plaintiffs, for $120,75,"being for amount of rent due to me for the use of the said premises," on 1st May, 1837, as appears by the affidavit hereunto annexed: this warrant was signed "Alanson Palmer, by Alfred Clemons, one of his assignees." The plaintiffs then proved, that by virtue of the warrant the defendants levied upon property in the possession of the plaintiffs of the value of $1500. The property, however, was not removed. Here the plaintiffs rested. The defendants then proved an acknowledgment of McKibben, one of the plaintiffs, that he and his partner had taken the store from Palmer, for four years from 1st May, 1836 at an annual rent of $600 : this evidence was objected to by the plaintiffs as inadmissible under the notice accompanying the plea; but the objection was overruled. The defendants also proved that the plaintiffs took possession of the demised premises on 1st May, 1836; and produced in evidence an assignment from Palmer to Alfred Clemons and Horatio Warren, dated 4th May, 1836, conveying to them all his property for the benefit of his creditors. The value of the property was conceded to be $1500, and the balance of rent due to be $120,75. The judge charged the jury that the plaintiffs were not entitled The jury found for the defendants, assessing the value of the property at $1500, and certifying the amount of rent due to be $120,75. The plaintiffs, on a bill of exceptions, moved for a new trial.

to recover.

W. L. G. Smith, for the plaintiffs.

J. G. Masten, for the defendants.

[ *483 ]

*By the Court, COWEN, J. The notice accompanying the plea did not mislead by stating that the defendants were bailiffs to Alanson Palmer. They could not take any authority from him; but that was not the objection, nor was it that the notice varied from the truth. It seems to have been merely that the notice was inconsistent in stating a distress by Palmer's bailiffs for a rent which the same notice stated to be due to his assignces. Such a notice would not mislead the plaintiffs. Particu lars enough were stated to show them the premises and rent in respect to which the distress was made. It is enough in a notice of special matter, that it fairly apprise the plaintiff of the material facts on which the defendant means to insist. Chamberlain v. Gorham, 20 Johns. R. 746, on error. Id. 144, S. C.

To the objection that the warrant claimed the rent to be due to Palmer,

Albany, October, 1840.-Edwards v. Clemons.

while the affidavit stated that it was due to the assignees, nearly the same remarks are applicable. The warrant was sufficiently plain on the whole as to the rent for which the distress was to be made. So of the affidavit. This claims a balance of rent for the true year, and is not vitiated by previ ously averring that the lease was for four years.

No objection appears to have been taken that the warrant was in fact issued in the wrong name, or signed by the wrong person. It undoubtodly went in the wrong name. The rent appears to have been assigned before it accrued, and the warrant should in strictness have been in the name or under the authority of the assignees to whom the rent passed, and have been so expressed. They had more than a mere equitable title. However, the warrant was signed with Palmer's name, by one of the assignees; and had the form of the signature or the actual authority under which it issued been called in question, they might have sustained the proceeding by more formal documents or other evidence.

Some objections of a more plausible character remain; but I think they are unavailable for the plaintiffs. The lease was in itself void, as being a parol one for four years. But the plaintiffs actually entered and

enjoyed for one year. The entry and enjoyment would alone [*484 ] have made them liable for use and occupation, and the parol agreement would have shown the amount to be recovered. It has also often been held, that under such circumstances, the lease is in effect but for one year, or from year to year, according to the time of enjoyment. It follows that the parol agreement, though void as a lease, may yet be resorted to as evidence to make the rent for the year certain, and thus confer a right of distress on the landlord. Schuyler v. Leggett, 2 Cowen, 260. The People v. Rickert, 8 id. 226. The case of Prindle v. Anderson, 19 Wendell, 391, does not at all conflict with those in my reports. On the contrary, Schuyler v. Leggett is expressly recognized. The course of proof by such cases is the obvious one of making out an oral lease for a year by circumstantial testimony.

No doubt there is a variance between the notice and proof in respect to the time of payment, which would have been fatal within the principle of Bristow v. Wright, Doug. 665. The notice relies on rent payable quarterly, while the proof leaves it, in effect, payable at the end of the current year. No stipulation to pay quarterly was shown. The variance, however, as remarked by the learned judge, not operating prejudicially to the plaintiffs, might, as it was, be properly disregarded. It presented a case proper for amendment. See the authorities referred to in Weed v. The Saratoga and Schenectady R. R. Co., 19 Wendell, 541, to 543. The variance supposed to exist between the notice of special matter and the affidavit, the forVOL. XXIV.

46

Albany, October, 1840.-Edwards v. Clemons.

mer asserting a lease for one and the latter for four years, might, if necessary, be obviated on the same principle.

New trial denied.

[*485]

*WEBBER & HAND vs. GAY & EYSAMAN.

An attachment issued under the non imprisonment act is void, if it be made returnable more than four days after its date, although the proceeding be under § 34 of that act, allowing such process against a debtor about to remove his property from the county.

A constable, however, executing an attachment returnable more than four days after its date, is protected, although he knew the facts limiting the return of the process to four days, provided that in other respects the process be good on its face.

THIS was an action of replevin, tried at Herkimer circuit in April, 1840, before the Hon. JOIN WILLARD, one of the circuit judges.

The action was brought by A. B. Webber and I. Hand, for the taking and detaining of four horses and two sets of harness, mortgaged to them on the 12th July, 1836, by D. S. Webber and E. Mansfield. The property was at the time in the possession of Gay, one of the defendan s; it was demanded of him by the plaintiffs, but he refused to deliver it up, alleging that he had a demand against the mortgagors for the keeping of the horses. On the 30th July, Gay sued out an attachment against the mortgagors, by virtue of which the property in question was seized; whereupon it was replevied by the plaintiffs. In the affidavit upon which the attachment was issued, Gay stated that D. S. Webber and E. Mansfield were indebted to him in the sum of $50, over and above, &c. and that he believed that they were about to remove some of their property with intent to defraud their creditors, and that they were not residents of the county of Herkimer, (to a justice of which county the application for the attachment was made.) The warrant was made returnable seven days after its date. Eysaman was the constable who served the attachment. He was present when the application for the process was made, and became the surety of Gay in the bond executed by him upon that occasion: which bond was in the penalty of $100. The de

fendants pleaded separately; and in pursuance of a notice accom[486] panying their pleas, offered to prove that the mortgage under which the plaintiffs claimed was fraudulent and void as against Gay, one of the defendants-he being a creditor of the mortgagors, and as such having sued out the attachment. The judge ruled that the defendants being non-residents of the county of Herkimer, the attachment was void in being made returnable more than four days after its date; that Eysaman, the constable, knowing the fact that the defendants named in the attachment

Albany, October, 1840.-Webber v. Gay.

were non-residents of the county, was not protected by the process; and that consequently neither of them could allege fraud in the mortgage. The jury, under the direction of the judge, found a verdict for the plaintiffs. The defendants ask for a new trial.

L. Ford, for the defendant.

T. Jenkins, for the plaintiff.

By the Court, NELSON, Ch. J. It was decided in Clark v. Luce, 15 Wendell, 479, that an attachment under the 33d section of the act of 1831, Statutes of 1831, p. 403, might issue against non-residents of the county without any affidavit. In terms, hovever, the attachment must be returnable in not less than two days, and must not run more than four days from its date. And if a defendant be proceeded against otherwise, the stat ute declares the justice shall have no jurisdiction.

The counsel for the defendants insist that in this case the attachment was issued under the 34th section, and if so, the return is undoubtedly regular. If it may be issued against non-residents of the county under this section, the preliminary steps before the justice are probably sufficient, though the affidavit is quite meagre. That section provides, that in addition to the cases in which a suit may be commenced under the revised statutes by attachment before a justice, (this is the import,) it may be so commenced for the recovery of a debt not exceeding $50, whenever it shall satisfactorily appear to the justice, that the defendant is about to remove from the county his property, &c. whether such defendant be a resident of the [487] state or not. The language doubtless is broad enough to embrace the case of non-resident defendants; but I think it should be construed as intended to apply, exclusively, to residents of the county. The previous section had already provided for the former, and, as has been held in Clark v. Luce, authorizes the issuing without any preliminary proceedings. The 34th section, therefore, could not have intended to prescribe a like remedy, fettered with these proceedings, for the sake of affording the alternative to the creditor; it would have been worse than useless. As some of the previous provisions recognized a distinction in legal proceedings before the justice favorable to residents of the state, the clause was, probably, thrown in for the purpose of repudiating it in the particular case. The limitation of time in the return of the attachment against non-residents, was to afford a speedy opportunity for trial; was intended for their convenience, and should be upheld if possible, consistent with a reasonable interpretation of the several provisions.

2. I think the learned judge erred as to the officer. I am not aware the

Albany, October, 1840.-Webber v. Gay.

court has ever looked beyond the process with a view to see if he was cogni zant of the irregularity. The point was thrown out by the chancellor in Parker v. Walrod, 16 Wendell, 519, but no definite opinion expressed. The general rule as there admitted is, if the justice has jurisdiction of the subject matter, and if the process is regular upon its face, he is protected. To go beyond this, would lead to a new and troublesome issue, which would tend greatly to weaken the reasonable protection to ministerial officers. Their duties, at best, are sufficiently embarrassing and responsible; to require them to act or not, at their peril, as they may be supposed to know or not the technical regularity of the party or magistrate, seems to me an innovation upon previous cases, and against the reasons and policy of the rule. The experience of the officer will soon enable him to determine whether the

process is in regular form or not, or he can readily obtain the ne[488]cessary advice; but he must be presumed wiser than "the magis

trate if even a knowledge of the proceedings would enable him to decide correctly, if they happened to be erroneous. I think a new trial should be granted as to the officer.

Ordered accordingly.

HOWELL & STRONG vs. BABCOCK'S EXECUTOR.

Where a testator is indebted and dies within six years after the accruing of a cause of action against him, and within eighteen months after his death a suit be brought against his executor who pleads the statute of limitations, the proper course for the plaintiff is, to reply that the cause of action did accrue within six years, and not to plead the facts specially that the cause of action accrued within six years before the death of the testator, and that the suit was com menced within eighteen months after that period. On such general replication, in the computation of time the eighteen months are excluded. So in an action by an executor or administrator, where twelve months have elapsed since the death of the testator or intestate, and the statute of limitations is pleaded, it seems that it is not necessary for the plaintiff to reply specially the time allowed by law for the bringing of the suit, but may reply generally.

DEMURRER to replication. The plaintiffs declared in assumpsit for that the testator was indebted to them for work, labor and services bestowed by them as attorneys and counsellors in and about his business. The defendant pleaded actio non accrevit infra, &c. The plaintiffs replied that the causes of action in the declaration mentioned accrued to them within six years next before the death of the testator, and that the action was commenced within eighteen months next after his death, concluding with a verification and prayer of judgment. The defendant demurred, assigning as special causes of demurrer the following: 1. That the replication is double in offering in