remedy by the appeal is provided in section 348 for precisely this class of cases, (viz.,) errors of law committed by the judge on trial. If the Legislature had intended to confer on the court at special term, this power of reviewing the errors of the judge at circuit, they would have said so in unequivocal terms. But it is nowhere even alluded to in the code. But the case is very different with cases on special verdict, motions for new trial on the ground that the verdict is against evidence; and on the ground of excessive damages. In all these cases, the motion must be made at special term or nowhere. There is no provision for an appeal (except on the law) from a judgment entered by the direction of a single judge. We have seen that the case of special verdicts must go to the special term. Then why not in the other cases I have enumerated, where no error of law has been committed, and where there must be, otherwise, an absolute failure of justice? It seems to me that by a very strong implication, this power must be exercised by a single judge and at the special term. 4th. Again, in section 401, it is enacted that motions may be made in the first judicial district, to a judge or justice out of court, except for a new trial on the merits. A new trial for the reason that the verdict is against evidence, is a motion for a new trial on the merits; and by implication, that motion may be made at special term. For these reasons I am of the opinion that a justice at special term has the power to hear and decide a motion for a new trial, on the ground that the verdict is against evidence. NOTE. As the reasoning of Mr. Justice GRIDLEY, upon the question involved in this case, will appear to be in opposition to that of Pepper v. Goulding, ante, page 310, it is proper that the circumstances attending the publication of the latter case should be stated. After that case was set up and struck off by the printer, a communication was received from Judge GRIDLEY, requesting that it should not be published, as he had come to a different conclusion upon some of the points involved in it, and wished it to be re-written before publication. Of course the answer to the request was, that it was then too late to save it from publication, it having been struck off. On receiving the above case, Judge G. remarked (in substance) that his attention was drawn to this subject more particularly, in writing this opinion. He considered that the case of Leggett v. Mott, ante, page 325, (which he had recently seen,) contained the most harmonious system. According to it, the decision of referees on questions of fact are to be brought before the special term; while questions of law go the general term by appeal. This is in harmony with cases before a jury. They are disposed of in the same way. Although much obscurity remained in relation to this question-as that section 348 of the code does not include appeals from referees' reports-and it was quite apparent that the commissioners did not provide for cases where the jury erred, there being no express provision, giving that business to the special term, &c. &c. Yet, on the whole, he thought the views taken by Mr. Justice SANDFORD would conduce to more harmony in practice in that class of cases. SUPREME COURT. BENJAMIN CAHOON, FRIEND COOK and POWERS L. GREENE, agt. THE PRESIDENT, DIRECTORS AND CO. of the Bank of Utica. A claim for money had and received cannot be joined in a complaint with a claim founded on a refusal to deliver up promissory notes, alleged to have been paid and satisfied. The latter has always been treated as a tort, (3 J. R. 452.) Herkimer Special Term, April, 1850.-The plaintiffs are the general assignees of Samuel W. Brown (now deceased.) This action is brought under the following circumstances. Brown, in his lifetime, procured to be discounted by the Bank of Utica three notes, amounting in the aggregate to three thousand dollars; two of which were made by himself, and one was made by Brown and Rossiter. At the time of getting the notes discounted, he placed in the hands of the bank as collateral security, a bond and mortgage made by S. Churchill, on which was due something over $3000. The notes were not paid at maturity; but, afterwards, the bond and mortgage were paid up, satisfying the notes and leaving a surplus in the hands of the bank of $89.42. This sum has been demanded by the plaintiffs; and also the notes, on the allegation that Brown's property having paid the note of Brown and Rossiter, his assignees are entitled to the possession of it, as evidence against Rossiter. The complaint sets out the above facts, and demands judgment for the $89.42; and that the notes be delivered up to the plaintiffs. To this complaint the defendant has demurred for misjoinder of actions. WARD HUNT, for the demurrer. A. LOOMIS, contra. GRIDLEY, Justice. It is manifest that this is the union of a demand for money had and received, with a claim which, under the former practice, would have been the foundation of a bill in chancery to compel the delivery of the notes, under the powers by which that court directed the delivery of deeds and other writings, (see Jeremy's Equity Jurisdiction, 468.) The facts on which the pleader relics to show that the plaintiffs are entitled to both kinds of relief, are set forth in the complaint; and both kinds of relief are distinctly demanded, in the prayer of the complaint. Now, if this be so, these causes of action require different trials. The money demand is triable by a jury, and the claim in equity is triable by the court, (sections of the Code, 253, 254.) In the one case, the verdict would be for the sum demanded, $89.42; in the other, upon the facts of the case, the judgment of the court would be, granting the plaintiffs to be right in the law, that the notes be delivered up; a verdict, it is at once seen, is inappropriate, unless it be a special verdict, on which, when found, the court pronounces judgment. It is true that by section 253 it is provided, that "when in an action for money only, or for specific real or personal property, there shall be an issue of fact, it shall be tried by a jury." Now this section relates to personal property which was formerly the subject of an action of replevin, and does not relate to claims in equity; several provisions seem incompatible with such a case; for example, the 5th subdivision of sec tion 207. But, 2. Suppose that instead of being a claim in equity it is a proceeding to obtain the possession of personal property under chapter 2 of the 7th title of the code, sections 206 to 217 inclusive; then there should have been an affidavit of the facts, and very special pleadings should have been pursued, entirely incompatible with the union of this with a demand for money had and received. Again, the 167th section forbids the uniting of this with any other cause of action. This section embraces seven distinct classes of actions, providing that any of the same class may be united; of these the sixth is, "claims to recover personal property, with or without damages for the withholding thereof." "But the causes of action so united must all belong to one only of these classes," is the express injunction of the code at the close of this section. 3. But it is argued that these causes of action are authorized by the 1st and 7th subdivisions of this section. The 1st embraces causes of action arising out of contract, express or implied; that the claim for the money is sought under an implied promise, is quite clear; but a claim founded on a refusal to deliver up notes that are paid up, and "functio officio" has always been treated as a tort, (Todd v. Crookshank, 3 J. Rep. 452.) Again, there is no such contract set out. If the law would imply a contract to support such a claim, it would imply a contract in a case of assault and battery, to obey the laws of the land, and authorize damages for its breach. The 7th subdivision embraces "claims against a trustee, by virtue of a contract or by operation of law." This section manifestly relates to claims in equity against a trustee, properly so called, and has no reference to a common law action for money had and received. We must have some regard, in construing the code, to the great landmarks of the law, as it existed before that instrument became a law. This would be stretching the doctrine of torts over every transaction of life. This could not have been the intention of the Legislature. Demurrer allowed. SUPREME COURT. PECK VS. ERASMUS D. FOOT and wife. A return to a certiorari made by a judge, who was out of office, before the service of the certiorari upon him, is a nullity. Where a judge of the late Common Pleas was served with a certiorari, after his term of office had expired, under the amended constitution of 1846, to remove certain proceedings had before him, (while in office,) relating to summary proceedings to recover the possession of lands," held, that the return made by him was a nullity. A justice of the peace is authorized by statute, (2 R. S. 271, § 260,) to make a valid return to a certiorari served upon him, after he has gone out of office, for the purpose of reviewing a judg ment rendered by him. But there is no such provisions of law in cases of special proceedings, made applicable to a judge. Special Term, 1850.-Motion to set aside a return to a certiorari. Proceedings were instituted in June, 1847, by Foote and wife, against Peck, before Grosvenor S. Adams, then one of the judges of the Greene Common Pleas, to recover the possession of land, under the statute relating to summary proceedings, on the ground that the term of the tenant had expired, and also that he held over after default in the payment of rent. In September following, the term of office of the judge before whom the proceedings were had, having expired on the first Monday of July, by the operation of the new constitution, a certiorari was granted by this court, at a special term, under the provisions of the 47th section of the act relating to summary proceedings for the recovery of the possession of land, (2 R. S. 516.) Subsequently, and after Judge Adams had removed from the county of Greene, he made and filed a return to the certiorari. A motion was made by Foote and wife to set aside the return to the certiorari, on the ground that Adams' term of office had expired, and that he had removed from the county, and for general relief. L. TREMAIN, for Foote and wife. HARRIS, Justice.-Though it is the first with which I have met, I think we have here a case, which, on its passage from the old to the new judicial system, has fallen through. The writ of certiorari lies to remove all judicial proceedings in which no writ of error can be brought. It may be addressed to any officer, or tribunal, exercising judicial authority. It does not lie to any person who does not claim such authority. In respect to the judgment of a justice of the peace, it is provided VOL. IV. 54 by law that a certiorari, duly brought and served upon the justice, after he shall have gone out of office, shall have the same effect as if served. whilst he was in office, (2 R. S. 271, § 260.) And if the justice be dead, insane, or out of the state, the case may be reviewed upon affidavits, with the same effect as if the facts had been returned by the justice, (2 R. S. 272, § 262.) These provisions were deemed necessary by the Legislature, in order to save to parties the right to review justice's judgments after the justice has gone out of office. But though the Legislature has authorized this court to award a certiorari, for the purpose of examining any adjudication made under the statute relating to summary proceedings to recover the possession of land, it has not provided, as in the case of justices' judgments, for obtaining a return to the certiorari, or giving effect to such return, when the officer whose proceedings are to be reviewed, has, before he is served with the certiorari, gone out of office. There is no statute, nor do I know of any principle of law, which authorized the person before whom these proceedings were had, to make a return to the certiorari, or which would give any effect to such return, when made. To be effectual, the return must be an official act, performed under the sanction of an official oath. Here the return has been made by a mere private citizen, wholly divested of the official power and responsibility with which he had been clothed while in office. I cannot see how the return is to be regarded as anything else than a mere nullity. By the 76th section of the Judiciary Act, provision is made for transferring certain proceedings, and, among others, proceedings "for the removal of a tenant or other person from lands," which should be pending, on the first Monday of July, 1847, before any officer whose term of office would expire on that day, to some other officer under the new constitution. If the proceedings in question, can be deemed to have been pending on the day mentioned, it may be that, by procuring the transfer of the proceedings as provided in the section referred to, the party may obtain a review. Whether that section can be made to embrace such a case, is a question which I need not now decide. In the view I have taken of the case, the certiorari which has been allowed, can be of no advantage to the party obtaining it. I think it better, therefore, to direct that the rule allowing the certiorari and all subsequent proceedings be vacated. Neither party should have costs upon this motion. |