M'Instry v. Tanner

9 Johns. 135

• Court: New York Supreme Court
• Decided: May 15, 1812
• Status: Published

Opinion

Per Curiam.

There is no ground for the objection that the proceedings before the justice were coram non judice, because he was a priest, or minister of the gospel. It was not true in point of fact; for the allegation is expressly contradicted in the return, and if it were not so, it might well be questioned whether the court could take notice of such an objection, in this way, since we are to intend that the justice acted under a regular commission ; and he has not been put to answer for an unconstitutional exercise of power. The acts of officers de facto, are often valid, as far as they concern the public and the rights of third persons. The only real question in the case is, whether the law arising upon the facts would warrant the verdict. There were circumstances in this case from which a jury might have inferred a fraudulent collusion between Tanner and Andross, to cover this property; but the jury’have drawn a different conclusion, and the case is not so strong as to warrant an interference with their verdict. There are cases in which goods may be safely left with the original owner, .as was intimated in the case of Putnam v. Wiley, (8 Johns. Rep. 435.) and as was decided in the case of Kidd v. Rawlinson. (2 B. & P. 59.) That decision seems to confine the case to instances in which the parties do not stand in the relation of debtor' and creditor; and where, of course, there could not have been any object to defeat other creditors, and where the goods were lent for a temporary, benevolent and honest purpose. The jury must have considered this case as coming within that principle; and, upon the whole, the judgment must be affirmed.

Judgment affirmed.