Newman v. Tiernan.

in the profits of a certain vessel and voyage in which they had been jointly concerned, was held void for want of consideration, unless it appeared that there were such profits.

It has been sometimes suggested that avoiding the expenses of resisting a claim or defending a suit, under any circumstances, would be a sufficient consideration for a compromise of the demand. But this would lead to sustaining such promises to pay money for the relinquishment of prosecutions which were utterly unfounded and malicious; and besides, the law supposes that the costs which would be recovered of the party making such a claim would be a sufficient indemnity for such expenses.

This complaint is defective in not alleging that there was some doubt or dispute as to the regularity or validity of the judgment in the foreclosure action, upon which the defendant might have founded a proceeding to vacate it, and for this reason, without passing upon any other questions which have been alluded to, the demurrer should have been allowed.

The order appealed from must be reversed with costs, and judgment ordered for the defendant, with leave to the plaintiffs to amend on the usual terms.

[DUTCHESS GENERAL TERM, May 12, 1862. Emott, Brown, Scrugham and Lott, Justices.]

NEWMAN VS. TIERNAN.

An individual, in order to justify his arrest and imprisonment of another, by virtue of his authority as a justice of the peace, must show himself to have been, at the time, not only de facto but de jure a justice. Where a defendant, sued for an illegal arrest and imprisonment, justified on the ground of his being a justice of the peace, in the lawful discharge of his duties, and to show that he was, de jure, a justice of the peace, gave evidence that he had taken and filed the oath of office, and introduced the minutes of the proceedings of a town meeting, showing the number of votes given for each of the several persons voted for, at that election, for the

Newman v. Tiernan.

office of justice of the peace, including the defendant, but not showing that the defendant had received the highest number of votes, or that more than one vacancy in the office existed, or that more than one person was to be chosen to fill the office; but the plaintiff produced a certificate of the inspectors and town clerk, incorporated in the minutes, stating that at such election two persons, other than the defendant, were elected to the office of justice, for different terms; it was held that there was not sufficient evidence of the right of the defendant to the office he assumed to exercise, to justify the arrest.

THIS

HIS action was brought by the plaintiff against the defendant to recover damages for false imprisonment. The complaint alleges that on or about the 5th of May, 1860, the defendant maliciously, and with intent to injure the plaintiff, did force and compel him to go to the county jail of "Richmond county, and did there imprison and detain him for the space of thirty days, without reasonable cause, and without authority so to do, &c., and claimed damages in the sum of five hundred dollars.

The answer of the defendant denies that he unlawfully and maliciously committed any of the acts complained of; and, for a distinct and separate defense, sets up that, "on the 14th day of February, 1860, at an annual town meeting, held in the town of Castleton, Richmond county, on that day, he was duly elected a justice of the peace for said town of Castleton; and that subsequent to said election, and before the 1st day of March, 1860, he took the oath of office required by the statute, before Israel C. Denyse, the clerk of the county of Richmond, and entered upon the discharge of his duties as a justice of the peace of the town of Castleton, and at the time of the issuing of the warrant against and the arrest of the plaintiff, as thereinafter mentioned, he, the defendant, was a justice of the peace of the said town of Castleton, and acting in the discharge of the duties of his office as such justice. That on the 4th day of May, 1860, one William Commens made a complaint under oath before the de-* fendant, while he was acting as a justice of the peace, in and for said town of Castleton, charging the plaintiff with hay

Newman v. Tiernan.

ing committed an assault and battery on him, in said town of Castleton. That he, the defendant, as such justice of the peace, issued his warrant on said complaint for the apprehension of the plaintiff for said offense, and the plaintiff was, on or about the 5th day of May, 1860, by a constable of said town of Castleton, arrested on said warrant, and brought before the defendant as such justice in said town, on said 5th day of May, and he was then and there, at a court of special sessions held by the defendant, duly tried on said complaint and found guilty of the commission of the offense therein charged, and was sentenced to be confined in the county jail of Richmond county for the space of thirty days. That in pursuance of such trial, conviction and sentence, the plaintiff was conveyed to said county jail, and was confined therein. And the defendant averred that these were the same acts of which the plaintiff complained in his complaint, and that all of said acts were done in accordance with the statute in such case made and provided.

The action was tried at the Richmond circuit, before Justice SCRUGHAM and a jury. The plaintiff proved his arrest and imprisonment, as alleged in the complaint. The defendant proved that the oath of office as a justice of the peace was administered to him by the clerk of Richmond county, on the 20th of February, 1860. He also read in evidence a record of the conviction of the plaintiff, Charles Newman, of the offense of assault and battery, for which he was sentenced to be imprisoned in the county jail for thirty days. This was signed by the defendant as justice of the peace, and was dated May 22, 1860. The complaint, warrants, constable's return, and the minutes of the trial before the court of special sessions were also read in evidence. Israel C. Denyse, the clerk of Richmond county, was examined as a witness. Being asked if he had examined the records and files in his office. for any certificate of the defendant's election as a justice of the peace for the town of Castleton, he testified that he had not found any certificate stating that he was elected a justice

Newman v. Tiernan.

of the peace during the year 1860. That from February, 1860, to the time of the trial, he had acted as a justice of the peace for the town of Castleton. That there was a certificate on file in the county clerk's office, from the town clerk, showing the number of votes given for justices at the election in 1860.

Peter H. Wendell, being duly sworn, testified as follows: "I am town clerk of Castleton. I have the returns of election of town officers of Castleton for 1860. This is the true book of records." The defendant's counsel offered in evidence the returns marked B, and to read therefrom the number of votes cast for justice of the peace, at the annual town meeting for the town of Castleton, in February, 1860. The counsel for the plaintiff objected to this, as not being the certificate of the result of the election, as required by statute. The objection was overruled and exception noted. So much of the paper marked B was then read as refers to the election of justices of the peace, and also the certificate to the same, which are as follows:

"At the annual town meeting of the town of Castleton, held at the house of Thomas C. Burns, at Tompkinsville. The town clerk, Robert Hesle

wood, not being present, Josephus Van Tassell was unanimously elected clerk of said meeting. The whole number of votes cast for justices of the peace was three thousand and fourteen, of which Philip Wolfe received four hundred and fifty-seven; Peter Tiernan, four hundred and twenty-six; Michael Langton, four hundred and twenty-four; John Crabtree, three hundred and seventy-nine; William J. Watson, three hundred and sixty-four; Michael Conklin, three hundred and fifty; Benjamin P. Brown, two hundred and fiftythree; David Moore, two hundred and fifty-two, and John R. Western one hundred and nine."

"I certify that the within is a true copy of the proceedings of a town meeting held in the town of Castleton, Richmond county, on the 14th day of February, 1860, from the

Newman v. Tiernan.

opening to the closing of the polls, and a true canvass of all the votes cast for all the different persons voted for to fill all the offices to be elected at such town meeting.

JOSEPHUS VAN TASSELL, Clerk pro tem."

"I certify that the within is a true copy of the return of the town meeting of Castleton, held February 14, 1860, and filed in my office by Josephus Van Tassell, the clerk elected at said meeting. ROBERT HESLEWOOD, Town Clerk."

The plaintiff read in evidence the following entry in the book of minutes of the town of Castleton, dated February 14, 1860, and signed by Alex. T. Watson and Nathan Barrett, inspectors of election, and Josephus Van Tassell, town clerk pro tem.; being the returns of the election at the town meeting held on that day.

"The town clerk, Robert Heslewood, not being present, Josephus Van Tassell was unanimously elected clerk of said town meeting. The following persons received a majority of all the votes cast for the offices hereafter mentioned, and were declared to be duly elected:

Jacob B. Wood, for supervisor; Peter H. Wandel, town clerk; David Moore, justice of the peace; Benjamin P. Brower, long term, justice of the peace," &c.

The defendant offered to read from the same book the protest and certificate of Josephus Van Tassell, the clerk of the town meeting, stating Barrett and Watson's certificate to be incorrect. This was objected to by the plaintiff's counsel, and excluded; to which the counsel for the defendant excepted. Israel C. Denyse, the county clerk, being shown a paper, testified as follows: "This is a paper which was filed in my office, 21st February, 1860. It is a certificate of the clerk of the town meeting, held in the town of Castleton, February 14, 1860, of the election of certain justices of the peace." The paper was as follows:

"Richmond County, Town of Castleton, ss: I, Josephus Van Tassell, clerk of the annual town meeting, held in the