Linnell & Foot v. Sutherland — 11 N.Y. 568

Majority

p. 569

Linnell & Foot vs. Sutherland.

Headnote

Where a suit is brought in a justice’s court, in the names of two plaintiffs, an affidavit that one of the plaintiffs is a non-resident of the county, is not sufficient to authorize the issuing of a warrant.

If the demand belongs to the non-resident plaintiff solely, by assignment, such assignment should be shown.

It seems that a warrant may be issued when the real plaintiff is a non-resident, although the nominal plaintiff is a resident of the county in which the process issues.

In a suit by a mechanic for work done in the line of his business, after proof of one or two items of his account, the production of his books of account, with proof that he keeps honest and fair books, is competent evidence.

Error from Monroe common pleas. Sutherland was arrested on a warrant issued by a justice of the peace of the county of Monroe, at the suit of Elijah Linnell and Alvin Foot, on an affidavit made by one James Linnell, that Elijah Linnell had a debt against Ebenezer Sutherland, and that Elijah Linnell was a non-resident of the county of Monroe. On being brought before the justice, the defendant inquired upon what grounds the warrant had been issued, and was informed by the justice that it had been proved that the debt belonged to Elijah Linnell; that he was a non-resident of the county of Monroe ; that bail had been put in for the costs, and that Foot was a nominal plaintiff.

The plaintiffs then declared in *assumpsit on the common counts, and the defendant pleaded the general issue, and the cause was tried. It was proved that the plaintiffs were partners in the shoemaking business, and an account was exhibited against the defendant for boots, shoes, and mending of boots and shoes, amounting to $11,53. The delivery of one pair of shoes at the price of $1,50, and the mending of another pair at 50 cents were proved. The books of account of the plaintiffs were then produced, and it was proved by two witnesses that they had dealt and settled with the plaintiffs, and that they kept fair and honest books, and that during the time the account against the defendant accrued, the plaintiffs had no clerk. The justice rendered judgment for the plaintiffs for $11,53, and the costs of suit. The defendant re

p. 570

moved the cause by certiorari into the Monroe common pleas, where the judgment of the justice was reversed. The plaintiffs sued out a writ of error.

E. Goss, for the plaintiffs in error.

M. F. Delano, for the defendant in error.

By the Court,

The warrant issued irregularly. There is no evidence showing where the plaintiff Foot resided. The statute, 2 R. S. 228, § 17 authorizes a warrant, where the plaintiff" is a non-resident, and tenders to the justice security for the payment of any sum which maybe adjudged against him in the suit. The 19th section requires that an affidavit shall be made, stating the facts and circumstances, showing the grounds of the application whereby the justice may the better judge of the necessity and propriety of issuing the warrant. The affidavit, in this case, may be perfectly true, and yet not enough is shown to authorize the issuing of a warrant. Linnell and Foot were partners ; the affidavit states that Linnell had a debt against Sutherland, and that he is a non-resident of the county of Monroe. The affidavit is true, supposing the debt to be a partnership debt. The assignment, if important, should have been shown. In a justices’ court, a summons is the regular process, and a warrant is *not allowed by the revised statutes as the first process, only in four cases : 1. When the defendant is a non-resident; 2. When the plaintiff is a non-resident, and gives security ; 3. When the defendant is about to depart, and not to return ; 4. When the plaintiff is in danger of losing his debt, unless a warrant issues. It is also allowed by the act of 1831, where the defendant has fraudulently disposed of his property, to defraud his creditors, or is about to do so. The reason of issuing a warrant in all these cases is to favor plaintiffs in facilitating the collection of their demands. When issued in favor of a non-resident plaintiff, the only reason for the statute is, that the plaintiff’s attendance is necessary, and as he is supposed to be absent from home, the law will not require him to wait six days ; and as his person and property are supposed to be without the reach of the process of the court, he is required to give security. This consideration operates whenever the real plaintiff is non-resident, although the nominal plaintiff is a resident. The objection to giving the statute this liberal construction is, that it may be abused by making collusive assignments to non-residents, and thus harrassing defendants unnecessarily. To this, however, it may be answered that the fact of such collusive assignment being shown, the plaintiff must fail. Whether the resident plaintiff would be liable for costs after assignment, is not material; probably without notice to the defendant of his want of interest and agency in the prosecution, he would be thus liable ; and there is no doubt of the liability of the assignee. But if the statute gives the warrant, as I have supposed, for the accommodation of the non-resident plaintiff, then the inquiry must be, whether the party in interest is non-resident; and according to this view of the statute, it should have been shown in the affidavit that Linnell was the sole owner of the demand.

As to the second point, arising upon the return of the justice, the evidence given was competent; whether it was sufficient, is not a question for us, upon a writ of error.

Judgment of common pleas affirmed, with single costs.