Malcom v. Rogers

1 Cow. 1

Opinion

Radcliff, insisted that the tenant could not avail himself of a defective summons in this manner. The proper course is to object this by plea of non-summons, and support it by wager of law. But here the defendant claims a right to qualify his appearance, and comes to shew that he is under no obligation to appear. His appearance is a waiver of all defects in the return ; authorizes us to treat him as in Court, and to count against him.

Emmet, remarked that where the very question is, whether process shall issue for non-appearance, the only mode of objecting is by way of pointing out the defect which renders his appearance unnecessary. This we have a right to do, at least, as amici curia ;

Footnotes

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(a) to which the Court agreed; and the counsel for the tenant then objected, that the return did not state the church, at which proclamation was made, to he the one nearest the land, which they insisted was necessary, unless it appeared upon the face of the return that there was but one church in the ward where the land lies. In Searle v. Long, wdiich was a quare impedit, and a proceeding upon the statute of Marlebridge, the Court held that actual notice to the tenant was not enough ; and because it wras not in the form allowed by law, the Court set aside the subsequent proceedings ; and in Furnis v. Waterhouse, the grand cape was superseded, because the return of the summons was not according to the 31 Eliz. (cap. 3.) They agreed that this return was according to the English form ; but our statute (Sess. 10, c. 50. s. 21, 1 R. L. 88.) differs from the English, and with reason; for in England there is but one church or chapel in & parish or town. Parish implies the precinct attached to a church, (Com. Dig. Parish B. 2. 1 Bl. Com. 112.) and the forms of English returns given in the books, relate to lands which lie in a parish. The national religion is there a part of the law of the land, and being a national establishment, the ecclesiastical division of the country, with the church attached to it, are as certain and as well defined by law as its civil divisions.(b) There, when

the statute speaks of churches, it means those of the estab* lished religion, and can have no reference to the meeting houses of the dissenters. Hence, it is sufficient to return, in language of their statute, that the proclamation was made at or near the most usual door of the church or chapel of that town or parish where the land doth lie. This must, of necessity, relate to the nearest church within the precinct contemplated by the statute. But the same certainty could not be attained here, where all churches are on the same footing ; accordingly, the phraseology of our statute is different. It provides, that where there is more than one church, proclamation shall be made at the one nearest the' lands ; and if none in the town, then at the nearest church in the county; and as there might have been, and were, for aught that appears, several churches within the 2d ward, where these lands lie, the return should have stated it to be the nearest church in the ward to the lands, or have shewn but one church in the ward. Suppose the proclamation had been made at a church out of the ward ; ought not this also to have been excused by a return that there was no church in the ward ? Nor can the defect here be supplied by intendment or construction in favour of the act of the Sheriff. There was as much room for favourable presumptions in the case of Furnia v. Waterhouse, as here, and yet none were allowed. Nor will the Court intend, from this return, that the service was personal, so as to supersede the necessity of proclamation. Indeed, the summons cannot be a personal one. It must be upon the land, and this appears from Allen v. Walter, (Hob. 133. 2 Saund. 43, n. 1, and vid. also, W. Jones 7, pl. 6.) True, the case in Hobart, was in dower. But this being a proceeding in nature of a writ of right, shews the mode of service applicable to both ; and further, as to the manner of service, they referred to Com. Dig. Process, D. 3. Archbold 421. title, Writs in nature of a writ of right. 2 Saund. 44, n. 4. But if a personal summons be sufficient, this return rather authorises a presumption against, than for one. It is, that; proclamation was made secundum formarn statuti, and it is only in cases of summons upon the land, that the statute rep quires proclamation.

Radcliff. It is agreed that this return accords with the English precedents, ancient and modern. A form of the English return may be found in Imp. Shff. 402. 3 Wils. 553. 2 Saund. per Serj. Wms. 43, n. 1, in connexion with id. p. 44, n. 4. ch. 3 pi. 596, The statute does not require a summons upon the land. It is true, this was the ancient practice, and was allowable where every possession was open and notorious, and every man was presumed to occupy his own land. But a personal summons was always sufficient. {Booth on R. A. 4, 5.) In the state of modern possessions it is many times essential, to avoid imposition A summons on the land would be very imperfect in this country, for the purposes of notice ; and where the summons is personal, proclamation is unnecesary. This is required only where the summons is upon the land. As the statute was avowedly for avoiding secret summonses, there can he no motive for proclamation where the summons is personal. As to the church, the statute is merely directory. The same certainty is not required in a return as in pleading, (Imp. Shff. 378,)(c) and every fair intendment is to be made in support of the acts of a ministerial officer. He is presumed to comply with his duty until the contrary expressly appeared,(d) and when he returns, the Court will not presume him guilty of an equivoque. The English statute is not confined either to churches or parishes. The proclamation is to be made at the door of the church or chapel of that town or parish, where the land lies, yet a return in the general form given by the precedents has always been holden good. And according to 2 Saund. 43, n. 1, it is enough, according to the modern practice, to return, that the Sheriff h&d made proclamation of the $aid summons according to the form of the statute, §rc.

But should the Court be against the return, we then ask leave to amend, according to the fact, the summons being, in truth, regular.

Another answer to these objections is, that the defendant has a right to avail himself of them, if they are valid, by plea of non-summons, and where a party may plead a matter, he cannot take advantage of it by motion.

The Court took time for advisement, which they declared should not prejudice the demandant; hut that he might take the rule they should finally make, as of the quarto die post.

And now,

May 12th—The opinion of the Court was delivered by Woodworth, J. He remarked that there was nothing in the return, or in the nature of the case, from which to infer a personal service on the tenant. Had such service in fact taken place and been returned, we think the proclamation would have been unnecessary ;(e) but here is evidently the common proceeding by summons on the land, and proclamation. It does not appear that such proclamation was at the church nearest the lands, though at one in the Second ward, where they lie. The return of the Sheriff is, that he caused proclamation to be made at the most usual door of the Episcopal Church, in Beekman-Street, called St. George’s Chapel, in the Second ward, fyc. We think, that to make the return conform to the statute of this state, he should have gone further, and shewn by the return, either, that St. George’s Chapel was the church within the ward nearest the land, or that it was the only church within the ward. No doubt, that where an omission of duty would be culpable, the officer will, in general, be presumed to have done his duty. But we think the rule does not extend to this case. The statute requires great strictness in this proceeding of the officer ; and his compliance with it ought not to be left to inference, but should plainly appear upon his return. The rule for a grand cape is, therefore, refused, and the demandant must proceed by an alias summons,(f) unless St. George’s Chapel was, in fact, the nearest church in the ward. If so, the Sheriff may amend according to the truth.

At the opening of the Court on the 13th, Radcliff men-, tioned that, at his request, the Deputy Sheriff, who had served the writ, was in attendance to amend his return. This was, perhaps, a matter of course under the rule which had been made; but, as it was convenient, he requested, for grea-

tei’ caution, permission to amend it in open the immediate direction of the Justices. Court, under

Ulshoeffer and T. A. Emmet, for the tenant, asked to be heard against the principle of the amendment. As it could not be known what disposition the Court would make of the other objections, the attention of the counsel had not been directed to this branch of the discussion. Leave being granted, they contended that no amendment could be allowed in this case. The statute is, that if the summons shall not be proclaimed and returned, then no grand cape to be awarded, but an alias or pluries summons, as the case shall require. The process is not vitiated ; the effect is merely a change of process, and the action proceeds. Now, in circumstances much more unfavourable to the demandant; indeed, where the omission is fatal to his remedy, and even Ms right, the Courts have refused amendments. In Charlwood v. Morgan, (4 Bos. &. Pull. 64,) a motion was made to amend the count in a writ of right, so as to correct the pedigree. This the Court refused, though Mansfield, C. J. said they would have been willing to amend, had not this been a proceeding by writ of right, which he said had always been discouraged, and tenants had been allowed to avail themselves of every advantage to defeat the claims of demandants. And in this all the Justices agreed. And upon the same principle they refused the demandant leave to discontinue. In Maidment v. Jukes, (5 Bos. & Pull. 429,) the Court, on the authority of Charlwood v. Morgan, ordered a side bar rule to discontinue, to be set aside with costs. In Dumsday v. Hughes & Bedford, (3 Bos. & Pull. 453,) the Court refused an amendment of the count, in a writ of right, after demurrer argued, although cases of amendment were cited in formedon and dower, and in common recoveries. This case, refers the strictness or liberality of the Court, in allowing amendments, to the nature of the action. Dower, say the Court, is favoured in the law. But the cases cited shew that the remedy by writ of right has always been holden to be stricti juris. And the Courts have refused amendments, even where the demandant will, in consequence,,be barred by the statute of limitations.

Again, this return being defective, the tenant was not bound t° appear. There is no means of compelling his appearanee except by an alias. ' The Court have not now the power’ ^ an amendment, nunc pro tunc, to make the defendant a defaulter by relation, on the quarto die post, and subject him to a gfand cape.

Radcliff, said that the cases in which Courts would discourage remedies were those where the party had a choice between different modes of redress. It is, really, very singular that the legislature should give a remedy, and yet that it should be the duty of the Court to set about defeating it by requiring an almost impracticable strictness, not applicable to any other case. The authorities cited relate to the a- • mendment of the count, or relief by discontinuance, against the omission of & party ; but the application here, is to amend the return of the officer*?/ho served the process. Nor is it competent to object that we are not now on the quarto die post. The delay for advisement was declared by the Court to be without prejudice, and our proceedings are tobe entered nunc pro tunc.

Slosson, observed that the demandant must offer himself the first day, or a ne recipiatur may be entered. He must then appear with a regular return. If the Court had powei to amend on the first day, they cannot do it on the quarto die post. On that day, the return being insufficient, the tenant may depart without being guilty of a contempt.

Radcliff, denied that the omission of the demandant id offer himself, would prevent his being afterwards received to prosecute. It is true, we are demandable on the first day, and if we do not appear, may be shut out by a ne recipiatur. (g.) But it does not follow that we must come with a suffi-

clent return, officer. If this be deficient, it is the fault of the

Woodworth, J.

The ancient strictness, which prevailed in these real actioná, has been much relaxed by the late decisions.(h) I remember that at the last term, a default and grand cape were taken, which it was moved to set aside. This was opposed on the ground of the great strictness which prevails in real actions. But the default was set aside. I should say, then, a fortiori, that relief ought to be granted here, in a casé which is a iheré mistake of the officer. There is no difficulty here from the quarto die post having elapsed. The demand of the tenant was made on that day, but opposed for a defect in the return; and the motion has been adjourned from day to day.

Sutherland, J.

It would, indeed, be a disgraceful rale in our jurisprudence, which would forbid an amendment in this mere mistake in form, by the officer, whether the effect be to delay the démandant ór turn him out of Court. As to the difficulty made in point of time, every thing done now, is as if it had been ordéred on thé quarto die post,(i)

Savage, Ch. J.

This application is addressed to the . sound discretion of the Court. And this is the ground on which it is placed, by the cases cited from the English books. It was in the exercise of this discretion, that the application to amend the count, was rejected by the Court of Common Pleas, (j) Admitting the reason Of those cases to apply to this case, which is distinguishable as being the mistake of aft °fficeri yet the strictness of the ancient practice has been. disregarded in the modern decisions.

Rule to amend granted.

Radcliff, then, in presence of the Court, and Deputy Sheriff, amended the return, by inserting the words, “ and which church is the church nearest to the said tenements, in the Ward aforesaid,” between the words “ lie” and “ upon.” (k)

Slosson, then said he should appear for the tenant; and he gave to the Clerk in Court a. principe for appearance.(l)

Radcliff, thereupon, counted against the tenant, by produring and filing with the Clerk, a written count, and memorandum of warrant of attorney,(m) and giving Slosson, the counsel for the tenant, a copy.

Slosson, then produced, arid filed with the Clerk, a specía/ imparlance.(n)

The Clerk was then furnished, by counsel, with this form, to be entered in the minutes of the Court; which was entered accordingly ;

Richard M. Malcom, demandant,) v. ' > George P. Rogers, tenant. 3

May 8ih, 1823. The demandant, Richard M. Malcom, being present here in Court, on motion of Mr. P. W. Radcliff, ■ of counsel, in beítalf of Mr. Doughty, attorney for the said demandant, Ordered, that the demandant’s appearance be and the same is hereby entered ; and thereupon, the tenant having been duly called, appeared in Court, by Messrs. Winter and Bolton, his attornies,and his appearance having been duly entered, the demandant, in open Court, counted against the tenant; and the tenant thereupon prayed a special im parlance, until the first Monday of the next term, at the Academy in the town of Utica, in the county of Oneida, which is granted to him, &c. And the same day is given to the demandant, at the same place.

Similar proceedings were had against foiir other tenants, at the suit oí the same demandant.

And vid. Wheeler v. Lampman, 14 John. 481.

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Vid. 1 Bl. Com. 112. Com. Dig. Parish, B. 1.

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Vid. 8. Co. 127,128,,

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Vid. 14 John. Rep. 184.

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Dalt. Sheriff, 224-5. Imp. Sheriff, 402.

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Com. Dig. Process, D. 2.

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The tenant in a writ of right is only demandable on the quarto Me post; but the demandant is liable to be called on the primo Meplaciti ; and in case of his non-appearance, his default may be entered, which, if he does appear and excuse, on the quarto Me post, he is liable to a nonsuit.— Swift v. Livingston, 2 John. cas. 112. Clobery v. The Bishop of Exon, Carth. 173. Co. Litt. 139. b. In 1 Bulstr. 35. it is said, “ If it be not in a writ of right, no man is demandable, till the quarto Mepost.”

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Vid. Van Bergen v. Palmer, 18 John. Rep. 504.

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In Socket v. Lothrop, 1 John. Cas. 249, the writ was not returned on the quarto die post. The Sheriif being ruled to return the writ sedente curia, returned it, and a motion was then made to call the tenant. The Court said that the tenant, if he meant to put the demandant out of Court, should have entered a ne recipitttur, on the quarto die post; and by the rule to return the writ sedente curia, the demandant is deemed as continuing in Court from day to day, during the term. So the tenant was called after the quarto diepost.

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In Charlwood v. Morgan, (4 Bos. & Pul. 64,) Mansfield, C. J. says, “ I am of opinion, that unless some precedent for such an amendment can be produced, the soundest exercise of our discretion, will be, not to allow the amendment.” Heath, J. says, speaking of Dumsday v. Hughes, (3 Bos. & Pul. 453,) “We did not choose to say at that time, that in no case whatever, would an amendment be allowed, since a fit case might, by possibility, be brought before us.” It is plain, from the reasoning of Mansfield, C. J. how be would have thought of this question, had the statute 32 H. 8. c. 2, 3, like our statute, (Sess. 24, s. 183, c. 2,1 R. L. 185,) limited the prosecution of writs of right to 25, instead of 60 and 30 years. “Every one,” he says, “ knows'lhe consequence of overturning titles, which have been supposed to exist for near sixty years. Many great purchasers consider 60 years possession, as the best title which can be made; and it has often been lamented, by eminent lawyers, that the period has not been shortened,- who have thought that 60 years was too long a time for titles to remain in dubio,

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If ote, that the return of the Sheriff being erroneous, or not good, yet it may be amended by the Court in divers cases ; yea, although such return were made in another Sheriff’s time. (Dalt. 189, cites 22 H. 6. 45. 33 H. 6. 47. 37 H. 6. 12, and 2 H. 5. 8.) And the Court may cause the old Sheriff, (in whose time such return was made,) or his Under Sheriff, or his Clerk or Deputy, to amend the same ; or any Clerk of the place. (Ibid, cites Fits. Amendment, 40, 33 H. 6. 47.)

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It was-thus :

New-York Supreme Court. George P. Rogers, tenant, Richard M. Malcom, demandant, ads.

Gity and County of New-York, ss.—Appearance for George P. Rogers, tenant, at tire suit of Richard M. Malcom, demandant.

Winter & Bolton, Attornies for tenant.-

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Which was thus :

New-York Supreme Court, of May term, in the year of > our Lord one thousand eight hundred and twenty-three. )

City and County of New-York, ss Richard M. Malcom, by Charles J. Doughty, his attorney, demands against George P. Rogers, the one equal undivided tenth part, and also the one equal undivided ninth part of another equal undivided tenth part, of two messuages and two acres of land, with the appurtenances, in the Second ward of the City of New-York, in the County of New-York, as his right and inheritance, by the Writ of the People of the State of Ncw-Yorlc, of right—And thereupon the said Richard M.' Malcom, says, that William Malcom, deceased, the late father of the said Richard M. Malcom, and of one William, A. Malcom, now also deceased, was seized of the whole of the messuages and. land aforesaid, with the appurtenances, in his demesne, as of fee and right, in the time of peace, to wit, within twenty-five years now last past, exclusive of the time during which the srid Richard M. Malcom and William A. Malcom were respectively within the age of twenty-one years, by taking the esplees thereof to the value, &c. and died thereof seized, without devising the same ; and having lawful issue, three sons and seven daughters, to wit, Samuel B., Frances, Elizabeth C., Ann S., Catharine B., Margaret B., Agnes, Abigail, and the said Richard M. and William A. and no other lawful issue. And thereupon the right to one equal undivided tenth part, above demanded of the said messuages and land, with the Appurtenances, descended and came from the said William Malcom to the said Richard M. Malcom, then an infant, within the age of twenty-one years, who now demands the same, as son and heir, in respect to the said one equal undivided tenth part, of the said William Malcom., deceased : and thereupon, also, one other equal undivided tenth part of the said messuages and land, with the appurtenances, descended and came from the said William Malcom, to the said William A. then also an infant, within the age of twenty-one years, also, as son and heir, in respect to the same, of the said William Malcom, deceased. And because the said William A. died without issue, after the death of his said father, leaving the said Richard M., Samuel B., Frances, Elisabeth C., Ann S., Catharine B., Margaret B., and Agnes, his said brothers and sisters, and William M. the only lawful child and heir pf his said sister Abigail, who was then deceased, and no other brother or sister, nor any child or children of any other brother or sister, the right to one equal undivided ninth part of the said last mentioned one equal undivided tenth part, which so as aforesaid descended and came to the said William A. descended and came to the said Richard M. Malcom, as brother and heir,in respect to the same, of the said William A. deceased, to wit, within twenty-five years since the said last mentioned one equal undivided tenth part of the said messuages and land, so descended to the said William A. exclusive of the Mate during which, as well the said William A, as the said Richard M. Mal* com were, respectively, within the age of twenty-one years. And the said Richard M. Malcom now also demands the same, as brother, and heir in respect to the same, of the said William A. deceased, and that such is his right, he offers, fee.

Doughty, Att’y for demandant.

P. W. Radcliff, of Counsel for demandant.

Pledges to prosecute, John Doe Sc Richard Roe.

City and County of New-York, ss,—Richard M. Malcom puts in his place, Charles I. Doughty, his Attorney, against George P. Rogers, in a plea of land. • •

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Which was thus :

“ Supreme Couiit.

George P. Rogers, tenant, 1

ads. ' 1 > Special imparlance.

Richard M. Malcom, demandant. )

And the said George P. Rogers, by Gabriel Winter ani Thomas Boh ion, his attornies, comes and defends his right, &c. and prays leave to imparl, until the first Monday in August next, before the said Justices of the People of the state oí New-York, of the Supreme Court of Judicature of the same People, at Vue Academy, in the town of Utica, in the county of Oneida, and he hath it, saving all objections, as well to the jurisdiction of the Court, as to the writ and count.”’

Further, as to the form and effect of this imparlance, and when it will be granted, vid. Booth, 36,37. Whitbeck v. Shoefelt, 9 John. Rep. 265. Haviland v. Bond, 4 id. 309. Haines, v. Budd, 1 John. Cas, 335.