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Newman e. Tiernan.

town of Castleton aforesaid, on the 14th day of February instant, do hereby certify that the following persons were declared elected justices of the peace for said town, at such town meeting, viz: Benjamin P. Brower, longest term, and David Moore, to fill the unexpired term of Theo. Freau. Dated this 2 1st day of February, 1860.

JOSEPHUS VAN TASSELL, Clerk of the annual town meeting, Feb. 14, 1860.” The counsel for the plaintiff offered to read this certificate in evidence, to which the counsel for the defendant objected, and the objection was sustained by the court, and the counsel for the plaintiff excepted.

The case having been closed, the counsel for the defendant moved to dismiss the complaint, upon the following grounds :

First. That there was no malice shown on the part of the defendant against the plaintiff. Secondly. That the defendant, acting regularly and believing himself to be a justice of the peace, and acting colorably as such, cannot be held responsible in this action. The court refused to grant the motion; to which refusal the counsel for the defendant excepted.

The case having been summed up by the respective counsel, the court charged the jury, after reviewing the facts of the case, substantially as follows: “It is not sufficient to justify the defendant, for him to show merely that he was acting as a justice of the peace; he is bound to show that he was actually such. As no statement of the election showing that he was elected a justice of the peace was transmitted to the county clerk, he was not regularly sworn into office, and was not a justice of the peace. His proceedings against the plaintiff were therefore unlawful, and the plaintiff is entitled to recover for the damage he actually sustained.”

The jury found a verdict in favor of the plaintiff, assessing his damages at twenty-five dollars.

Newman v. Tiernan.

D. B. Williamson, for the plaintiff.

John McKeon and Jonas B. Phillips, for the defendant.

By the Court, Emott, J. The defendant, in order to justify his arrest and imprisonment of the plaintiff, must show himself to have been at the time not only de facto, but de jure, a justice of the peace. This is an action by a plaintiff who has been personally affected by the authority exercised by the defendant, and of course it brings up the question of the rightfulness and extent of that authority directly, and not collaterally.

The defendant, to show that he was de jure a justice, gavo evidence that he had taken and filed the oath of office; and he also introduced the minutes of the proceedings of a town meeting of Castleton, in Richmond county, held February 14, 1860. By these minutes it appeared that 3014 votes were cast for the office of justice of the peace, of which Philip Wolfe received 457, the defendant Peter Tiernan 426, Michael Langton 424, and six others, each a different and less number of votes.

The portion of the minutes introduced by the defendant does not contain any certificate or declaration of the election of any one of these persons to this office; nor do they show or state that more than one vacancy in the office of justice of the peace existed or was to be filled at this election. It does not appear whether all these persons were candidates for the same office, or, if not, how many justices of the peace were to be chosen in this town, at this election.

The inspectors, or persons holding the town meeting or election, for some reason which does not appear and which is not material at present, refused to declare the defendant elected. After the defendant rested his case at the trial, the piaintiff introduced a certificate or return of these officers, stating the persons elected to the various offices filled at this town meeting, among whom are two persons declared to have

Newman v. Tiernan.

been elected to the office of justice of the peace for different towns, neither being the defendant. The plaintiff also offered in evidence a certificate of the clerk of the town meeting held in Castleton on the 14th of February, 1860, to the effect that Benjamin P. Brower and David Moore were “declared elected justices of the peace” at that town meeting. The statute (1 R. S. 344, S 18) enacts that the clerk of every town meeting at which an election of justices of the peace shall be held, shall within ten days thereafter transmit to the clerk of his county a certificate of the result of such election, under his hand, which shall be evidence of the facts therein certified. The certificate of Josephus Van Tassell, which the plaintiff offered to read, was produced from the county clerk's office, and, I am inclined to think, was a substantial compliance with this provision. It might have furnished prima facie evidence of the election of another person than the defendant to the office which he claims to exercise. Without deciding whether this certificate should have been admitted, and leaving it out of the question, however, the only other declaration or certificate of the result of the election was that found in the statement made by two persons designating themselves inspectors of the election, but signed also by the town clerk, and incorporated in the minutes. This was read in evidence by the plaintiff, and, as I have already stated, declared the election to the office of justice of another person than the defendant. This statement of the result would seem to have been substantially in compliance with section 15, page 344 of 1 revised statutes, being section 9 of title 8, chapter 130 of the laws of 1842. The defendant offered to read in evidence a protest and certificate of the same clerk who had signed these minutes, against their correctness. The protest is not set out in the case, but it was a paper which the clerk had no authority to make, and it was properly rejected on this trial.

I am unable to find any sufficient evidence in the case before us of the right of the defendant to the office he assumed

Newman v. Tiernan.

to exercise. The only evidence tending that way is the statement of the number of votes given for all the persons voted for at the town meeting in Castleton in 1860 for justice of the peace, and among others for the defendant. But the defendant does not even by that statement appear to have received the highest number of votes for that office, and there is nothing to show that more than one vacancy in such an office existed in the town, at that time, or that more than one person was to be chosen to fill the office ; unless we resort to the documents introduced by the plaintiff. If we do that, it an once appears that another person, and not the defendant, was elected, or at least declared elected to the office.

The defendant might have proceeded against the town officers to compel them to declare his election, if he was duly elected, or he might have proceeded to oust the person who intruded into the office upon the certificate or declaration of these officers. And the town officers themselves were liable to indictment if they were guilty of misfeasance in the premises. But the defendant cannot justify himself upon any such evidence as we have here, when his authority is questioned, as it is now, by a party whom he has arrested. I do not understand how he could justify or defend this action, even if he could show that he was entitled to the office, if another person had received the certificate of the election. But I do not find enough in the present case even to raise the question.

The plaintiff should have judgment on the verdict, with costs.

(DUTCHESS GENERAL TERM, May 12, 1862. Emott, Brown, Scrugham and Lott, Justices.)

37b
76 AD:128

168 FREDERICK DIAPER, appellant, vs. HENRY R. ANDERSON

and ELIZABETH G. S. ANDERSON, respondents.

The provisions of the revised statutes relative to the rendering of annual ac

counts, by guardians, do not contemplate the settlement of those accounts. They are intended to inform the ward and the court of the manner in which

the guardian is discharging his trust. The ward, or the court, may act upon the information thus obtained, to remove the guardian, or to obtain further security for the performance of his duties. But there is no provision in the statute for a judicial examination and settlement of the guardian's accounts, either at the instance of the ward or the guardian, while the guard

ianship still continues and is intended to continue. If the guardian has failed to render his annual accounts, he may be cited to do

80; but in a proceeding for that purpose, where there is no prayer for the supersession or removal of the guardian, and the ward is not yet of age, the surrogate has no jurisdiction to make a decree for the final settlement of the account.

A

son.

PPEAL from a decree of the surrogate of the county of

Westchester. The surrogate appointed Frederick Diaper guardian of the estate of his daughter Elizabeth G. S. Diaper. During her infancy she married Henry R. Ander

The guardian not having filed a first account, the husband of the ward (the latter being still under age) presented a petition to the surrogate, in which he stated that the guardian had not, since his appointment, filed an account of his proceedings; that the guardian was insolvent and in failing circumstances as to property, and that one of his sureties had failed and become insolvent, and therefore that the estate of the ward was in jeopardy : prayer, “ that the said guardian may be required to account to the surrogate of the county of Westchester, according to the statute in such case made and provided.On this, the surrogate made an order that the guardian appear in his court, on a day specified, " and then and there render an account of his proceedings as such guardian, or show cause,” &c. Citation granted upon

this order to the same effect : " Then and there to render an account of your proceedings as such guardian of the said Elizabeth G. S. Diaper, or show cause,” &c. The

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