The People v. Lawrence.

the party has an adequate remedy by action. (Boyce v. Russell, 2 Cowen, 444. The People v. Corporation of Brooklyn, 1 Wend. 318.) There are many other cases to the same effect.(a)

Motion denied.

(a) See Ex parte Lynch, (2 Hill 45;) Ex parte Braudlucht, (id. 367, 369;) The People ex rel. Hodgkinson v. Stevens, 5 id. 616, 629;) The People ex rel. Merritt v. Lawrence, (infra.)

THE PEOPLE, ex rel. Merritt, vs. LAWRENCE, Chamberlain of the City of New-York.

Boards of supervisors, in auditing and allowing accounts, are limited to the powers conferred upon them by statute.

If the subject matter of the account be within the jurisdiction of the board of supervisors, and they allow it, the county treasurer has no right to refuse payment on the ground that the allowance was for too much, or was made upon insufficient evidence.

Otherwise, if it appear on the face of the account that the subject matter was not within the jurisdiction of the board.

Accordingly, where a justice of the peace, after being impeached before a county court, was tried and acquitted, and then presented a claim against the county for the expenses of his defence, which the board of supervisors audited and allowed; held, on motion for a mandamus to compel the treasurer to pay, that the board of supervisors exceeded their jurisdiction in allowing the claim, and that the treasurer did right in withholding payment.

Even had the allowance by the board been authorized, and payment improperly withheld, the remedy of the claimant was not by mandamus, but by action against the treasurer.

THE relator was one of the special justices in the city of New-York, and was impeached and tried before the county court. (Const. Art. 4, 7.) He subsequently presented to the board of supervisors of the county an account for counsel fees and other expenses attending his defence on the impeachment, and the board audited and allowed the account at $1061,48. The account and the resolution of the

The People v. Lawrence.

supervisors auditing the same, were presented for payment by the relator to the chamberlain of the city, who by virtue of his office is the county treasurer. (1 R. S. 370, § 29.) The chamberlain refused to pay.

D. Graham & J. T. Brady, for the relator, on the return to an alternative mandamus, moved for a peremptory writ, commanding the Chamberlain to pay the account as audited by the supervisors.

P. A. Cowdrey opposed the motion.

By the Court, BRONSON, J. If the relator has a legal right to the money which he claims, there is some reason for saying that his remedy was by action, and not by the writ of mandamus. (Boyce v. Russell, 2 Cowen, 444; Ex parte Lynch, 2 Hill, 45; id. 46, note; Ex parte The Fireman's Insurance Company, ante, p. 243.) But it is not necessary to decide that question, for he has no title to the money. Although the fact does not appear in the papers, it was said, and I shall assume, that the relator was acquitted of the charges brought against him in the court of common pleas. Still, the expenses of his defence have not been made a charge upon the county, and the board of supervisors had no authority to allow the account or any part of it. They have only such powers as have been conferred upon them by the legislature, and there is no statute which gives any color for saying that they could indemnify the relator against the expenses of his defence. (1 R. S. 366, § 4; id. 385, § 3; Stat. 1838, p. 314, 1.) It is not unlike the case of a party indicted for a crime, and acquitted on the trial. He gets no indemnity from the public treasury. And whatever appearance of justice there may be in charging the expenses of the accused upon the county, it is enough for us to say that this consideration addresses itself exclusively to the legislature.

If this had been a case where the supervisors had authority to allow the claim, I agree that it would have been the duty of the treasurer to pay, without inquiring whether the account was

Lee v. Phillips.

allowed upon insufficient evidence, or at too large an amount.(a) But here, the supervisors had no jurisdiction over the subject matter, and that fact appeared upon the face of the account which was presented for payment. Their act was a mere nullity, and it was the duty of the treasurer to withhold payment. As we entertain no doubt upon this point, it is unnecessary to consider the other questions which were made upon the argu

ment.

Motion denied.

(a) See The People ex. rel. Onderdonk v. The Supervisors of Queens County, (1 Hill, 195.)

LEE VS. PHILLIPS.

The court will not give effect to a bankrupt discharge on motion, where the party might have pleaded it, but omitted to do so.

Accordingly, where a defendant obtained his discharge during the pendency of the suit, and afterwards suffered judgment by default to be entered against him for not pleading, on which execution was issued; held, that the only relief to which he was entitled was to be let in to plead the discharge, on payment of costs.

Where the defendant is thus let in, the court will allow the plaintiff to discontinue without costs.

WHILE this action of assumpsit was pending, and on the 30th of March last, the defendant obtained his discharge under the bankrupt act. On the 15th of May, the plaintiff entered the defendant's default, perfected judgment, and subsequently issued

execution.

R. W. Peckham, for the defendant, now moved for relief. A. Taber, contra.

By the Court, BRONSON, J. We never give effect to the discharge on motion where the defendant might have pleaded it;

Graham v. Pierson.

and here it might have been pleaded. (a) But we can relieve the defendant by setting aside the judgment on payment of costs, and allowing him now to plead the discharge. If he does so, the plaintiff will then be entitled to discontinue without costs.

Ordered accordingly.

(a) See Graham v. Pierson infra and the cases there cited in note (b).

GRAHAM and others vs. PIERSON, sheriff &c.

Where a judgment for costs was recovered by a sheriff, in an action on the case against him for not returning an execution, and the plaintiff afterwards petitioned for and obtained a discharge under the bankrupt act; held, that the judgment was a debt provable under the act, and was therefore reached by the discharge. Held further, that in such case the court would, on motion of the plaintiff, order a perpetual stay of execution upon the judgment.

THE plaintiffs sued Pierson as sheriff of Erie county, in an action on the case for not returning an execution. The plea was not guilty. The defendant succeeded in the suit, and recovered costs against the plaintiffs, which were taxed at $256,51. Judgment was perfected on the 20th of October, 1841. In February following, the plaintiff Graham became a petitioner under the bankrupt law, and in June, 1842, he obtained a certificate of discharge from all his debts provable under the act and owing by him at the time of presenting the petition. The defendant afterwards issued a ca. sa. on the judgment to the sheriff of New-York, where Graham resides.

S. Sherwood moved for a perpetual stay of proceedings on the judgment and execution, so far as relates to the plaintiff Graham.

M. T. Reynolds, contra. If the plaintiffs had succeeded in the suit, a bankrupt's discharge would not have aided the de

Sandford v. Sinclair.

fendant, because he was sued for an alleged "defalcation as a public officer." (Bankrupt act, 1.) As the plaintiffs have failed, the discharge of Graham should not protect him against the payment of costs.

By the Court, BRONSON, J. The judgment which the defendant recovered against Graham for costs, was a debt provable under the bankrupt act, and is consequently reached by the discharge.(a) If the defendant chooses to bring a suit on the judgment, Graham can then plead his certificate. But so far as relates to the execution now in the sheriff's hands, or any other execution to be issued on the judgment, Graham has no means of availing himself of the discharge except by motion. He is therefore entitled to a perpetual stay of execution. (b)

Ordered accordingly.

(a) See Crouch v. Gridley, (post, p. 250;) and Thompson v. Hewitt, (id. p. 254.) (b) See Noble v. Johnson, (9 Johns. Rep. 259;) Baker v. Taylor (1 Cowen, 165;) Palmer v. Hutchins, (id. 42 ;) Field v. Howland, (17 Johns. 85;) Cole v. Stafford, (1 Cain. Rep. 259 ;) Russell v. Packard, (9 Wend. 431 ;) Lee v. Phillips, (ante, p. 246;) Crouch v. Gridley, (post, p. 250;) Thompson v. Hewitt, (id. p. 254.)

SANDFORD vs. SINCLAIR.

Judgment having been obtained against the plaintiff upon a nonsuit ordered at the circuit, he brought error, and the defendant was afterwards discharged from the alleged cause of action under the bankrupt law. Held, that the plaintiff was not entitled to an order allowing him to discontinue the suit without costs, until he succeeded in reversing the judgment.

In such case, however, the plaintiff may obtain leave to discontinue his writ of error without costs, on application to the court for the correction of errors. See

note (a),

Where, by reason of the defendant having been discharged as a bankrupt, the plaintiff becomes entitled to discontinue without costs, he will be allowed to do so though the defendant offer to stipulate that he will waive the benefit of his discharge. Per BRONSON, J.