Oct. 1815.

owner of the fee, who might have provided against the com- NEW-YORK, mitting of waste by his lessee. (Co. Lit. 54. a.)

Our statute "for preventing waste," (1 R. L. 62.) (a) combines the provisions of the statute of Marlbridge, (52 Hen. III. ch. 23.) and the statute of Gloucester, (6 Edw. I. ch. 5.) and gives an action of waste and triple damages, and forfeiture, against him or her who holdeth by courtesy, or otherwise, for term of life, or for term of years, or other term, or a woman in dower, as well as against guardians."

It cannot be pretended that the defendant stands in the relation of guardian to the plaintiff. We have, therefore, only to inquire, whether, he is to be considered as holding "for term of life, or for term of years, or other term."

Under the rules of construction applicable to penal statutes, I think the defendant is not a tenant, within the purview of the act. By the will of John Kincaird, the lands are devised in fee simple to the plaintiff, an infant; and the testator then appoints the defendant trustee for the plaintiff, of all the lands so devised, until he shall arrive at full age

This gave to the defendant the right to occupy and control the real estate during the minority of the devisee, as trustee for the infant; and, as such, he is under the general superintendence and control of the chancellor, and is accountable, according to the rules which govern trusts. He has no interest or estate in the lands, in his own right, and may be devested of the trust for incompetency, or other good cause, at the discretion of the chancellor.

The relation of landlord and tenant does not subsist between the trustee and his cestui que trust. Scott does not hold the

lands under the plaintiff, but for him.

Clifton's case (5 Co. 75.) is an exposition of the English statute, of which ours is a transcript; and it was there ruled, that "if a feme lessee for life takes husband, the husband does *waste, and the wife dies, the husband shall not be punished by this law; for the words of the act be, 'a man that holds, &c., for life;' and the husband held not for life, for he was seised but in right of his wife, and the estate was in his wife." (2 Inst. 301. Co. Lit. 54. a.)

"But if a feme be possessed of a term for years, and take husband, and the husband doth waste, and the wife dieth, the husband shall be charged in an action of waste; for the law giveth the term to him." (Co. Lit. 54. a.)

The forfeiture of the place wasted, (given by the statute,) implies, that the person against whom that remedy is given has an interest and estate in the lands. Here the trusteeship was not an estate, but an office merely; and the plaintiff is not entitled to the remedy given by this penal statute.

Motion for setting aside the nonsuit denied.

(a) 2 R. S. 334.

KINCAIRD

V.

SCOTT.

[ *372]

NEW-YORK,
Oct. 1815.

CUYLER

V.

RUST.

Under the act

for the relief of

CUYLER, assignee of EARLL, late sheriff of Onondaga, against RUST, survivor, &c.

THIS was an action on a bond for the liberties of the jail of debtors, with the county of Onondaga, by the plaintiff, assignee, &c., against respect to the the defendant, surety on the bond, for one Archelaus Graves. of their persons, The following case was agreed to by the parties, and submitted (sess. 36. c. 81. to the Court without argument.

imprisonment

a person in jail,

on an execution

for costs only,

titled to his dis

expiration

thirty days.

203. s. 49.) this

In August term, 1812, a judgment for 36 dollars and 33 not being a free cents, of costs in the Supreme Court, was obtained against holder, was en- Graves, in an action in which he was plaintiff, and the now charge at the plaintiff, defendant. In the same term, the then defendant isof sued a ca. sa. on the judgment, returnable the next October But by the term, to the sheriff of Onondaga, on which Graves was arrested act, (sess. 36. c. on the 2d of September, and a bond given for the jail liberties construction of by Graves and the defendant Rust. Graves was not, at the the act for the time of his arrest, or during his imprisonment, a freeholder. relief, &c. is ex- At the expiration of thirty days from the time of his commitpressly done ament, Graves departed from the jail liberties, with the knowledge and consent of the deputy sheriff, and never returned. If the Court should be of opinion *that the plaintiff was not entitled to recover, it was agreed that judgment of nonsuit should be entered.

way.

[* 373]

Per Curiam. By the "act for the relief of debtors, with respect to the imprisonment of their persons," (sess. 36. ch. 81. 1 N. R. L. 348.) it is enacted, "That every person, not being a freeholder, who shall be confined in jail upon any execution, or other process, or by virtue of any judgment, or order of any Court of justice, or by warrant from any judge or justice, for any debt, sum of money, fine, or forfeiture, not exceeding twenty-five dollars, exclusive of costs, and shall have remained in jail for thirty days, if not detained for any other cause, shall be discharged from such imprisonment," &c.

The only question is, whether Graves was a prisoner within the purview of this section.

By the 49th section of the act of 1813, (supply bill,) sess. 36. ch. 203., it is enacted, "That nothing in the first section of the 'act for the relief of debtors from the imprisonment of their persons,' shall be deemed, or construed, to extend to imprisonment of the plaintiff, or lessors of the plaintiff, for costs only, in any suit hereafter to be brought."

This last act is remedial and prospective: but the escape insisted on in this case was prior to it; and, therefore, not affected by it. This last act, however, is an implied exposition of

Oct. 1815.

the first act; and shows, that, in legislative construction, the NEW-YORK, first act did limit the imprisonment to thirty days, in all cases of persons in execution for costs only.

According to the spirit of the first act, (which must govern this case,) I think the prisoner was entitled to his discharge at the expiration of thirty days. This being a case of personal liberty, is one in which Courts are least of all bound by the strict letter of the statute. The intention of the legislature was, manifestly, this, that no person should be imprisoned more than thirty days, for costs only; nor for any sum of costs, together with debt or damages, not exceeding 25 dollars.

Let judgment of nonsuit be entered.

FLINT

V.

CLARK.

*DEBORAH FLINT against CLARK.

[*374]

agreement, un

contro

versy between

mitted to arbi

the sum to be

favor of

B.,

which A. held

THIS was an action of covenant. The declaration stated, Where, by an that, on the 24th of September, 1803, articles of agreement der seal, bewere made and sealed by the parties, by which the defendant tween A. and covenanted, that the defendant, and one Cyrus Clark, should submit a certain controversy, between them and the plaintiff, them was subconcerning the non-fulfilment of an agreement, before that tration, and it time made, between the defendant and Cyrus Clark, and the was agreed that plaintiff, respecting the building certain chimneys by the de- awarded by the fendant and Cyrus Clark, for the plaintiff, to arbitration; and arbitrators, in that, whatever sum of money the arbitrators should direct to should be credbe paid to the plaintiff, for damages, as for the non-fulfilment ited on a note of the said contract, should be accounted for, cancelled, and against B., B. credited on a certain promissory note which had been given cannot maintain by the plaintiff to the defendant and Cyrus Clark, to procure breach of cove the settlement of a suit, instituted in the Supreme Court, by nant in not credthe defendant and Cyrus Clark, against the plaintiff the of the award on iting the amount plaintiff then averred, that the arbitrators were appointed, and the note, withthat, after hearing the proofs and allegations, they awarded, that the note that the defendant and Cyrus Clark should pay to the plaintiff had been the sum of 202 dollars and 50 cents, of which the defendant fell due. (a) and Curus Clark had notice: the breach is then assigned in The covenant the following words :-" And the said plaintiff avers, that the rate as a receipt said defendant did not cause, or procure the said sum of 202 pro tanto of the dollars and 50 cents, or any part thereof, to be allowed, can- note; and when celled, or credited, on the aforesaid note so given to the said ever ance should de

an action for a

out averring

as

signed before it

and award ope

amount of the

the bal

paid, the note

would, in judgment of law, be satisfied.

(a) Vid. Pearl v. Wills, 6 Wendell's Rep. 291.

Oct. 1815.

NEW-YORK, defendant and the said Cyrus Clark, but hath hitherto wholly refused and neglected so to do; nor has the said defendant, an the said Cyrus Clark, in any way paid or satisfied the said plaintiff, the said sum of 202 dollars and 50 cents, or any part thereof, but on the contrary thereof," &c.

FLINT CLARK.

V.

{* 375]

66

The defendant prayed oyer of the agreement, and demurred generally. The agreement was in the following words :Canajohary, 24th of September, 1803. This may certify, that the business of prosecution in the Supreme Court, wherein Cyrenus Clark and Cyrus was plaintiffs, and Deborah Flint defendant, is settled by the defendant securing the plaintiffs by a promissory note; and further, the plaintiff's do agree to settle with the defendant, by way of arbitrament, the building of the chimney, wherein the plaintiffs is charged to make them good; provided also, said arbitrators, indifferently chosen by the parties, should award in favor of said Deborah Flint, the said sum is to be cancelled on a promissory note above mentioned."

The cause was submitted to the Court without argument.

PLATT, J., delivered the opinion of the Court. I think the demurrer is good; for, allowing all the averments in the declaration to be true, the plaintiff is not entitled to recover. The covenant, as set out in the declaration, does not bind the defendant to do any act: he did not engage to endorse a receipt on the note for the amount of the award. It was an agreement by one of the joint creditors of the plaintiff, that the sum to be awarded should be deemed a payment pro tanto on the note; and that the plaintiff should have the full benefit of it, as a part satisfaction of the note. All the right and benefit which accrue to the plaintiff, from the covenant, are, that upon his paying the balance of the note, over and above the sum awarded to him, the note is, in judgment of law, satisfied.

It must be presumed, (because the contrary is not averred,) that the note still remains in the hands of the original payees; and if so, the plaintiff has sustained no injury.

The covenant and the award operate like a receipt, whereby the defendant acknowledges so much paid on the note; and it is enough for him, that when payment of the note is demanded, he can protect himself pro tanto, under the agreement and award. There can be no doubt that the agreement, in this sense, is binding upon Cyrus Clark, as well as the defendant.

If the declaration had averred, that the note had been assigned before it fell due, then it would have shown a right of action in the plaintiff; because he would have thereby lost the benefit of the payment under the award.

There must be judgment for the defendant on the demurrer.

Let the plaintiff amend, &c.

*DENNISTON against Cook.

THIS was an action for assumpsit, to recover the amount of a check on the bank of Albany, for 200 dollars.

NEW-YORK,
Oct. 1815.

DENNISTON

V.

Cook.

A. and B., being qualified electors for governor, a few days before the polls were openlaid a bet on election for govposited their respective checks

the event of the

ernor, and de

on the bank, for

A few days before the election of governor, on the last Tuesday of April, 1813, the plaintiff and defendant deposited with J. Alexander, their respective checks on the bank, for 200 dollars each, dated the 24th of April, and payable on the 1st of June then next, to abide the determination of a wager on the election; the terms of which, as stated by the witness, were, that the defendant bet 100 dollars with the plaintiff, that Stephen Van Rensselaer would have a majority of 5,000 votes the amount, over Daniel D. Tompkins; and another 100 dollars, Stephen Van Rensselaer would have a majority of votes Daniel D. Tompkins. On the official canvass of the votes for governor being made known, Alexander was to deliver the checks to the defendant, in case S. Van Rensselaer was elected governor by a majority of 5,000 votes; or to the plaintiff, in case Daniel D. Tompkins was elected; but if S. Van Rensselaer was elected by a majority of votes less than 5,000, the check of each party was to be returned to him.

of June, with a

that payable the 1st over stakeholder. When the re tion was generally known, but cial canvass of votes was deposing the wa

suit of the elec

before the offi

clared, B., sup

ger lost, withdrew all his

money from the bank; and his

check, which

About the middle of May, and before the official canvass of votes was published, but after it was well known, from public information of the result of the canvass, how the election had had been delivterminated, the defendant gave Alexander notice not to deliver up his check to the plaintiff. But immediately after the result of the canvass was officially announced to the public, and D. D. Tompkins was declared to have been elected governor, sented Alexander, on being indemnified by the plaintiff, delivered the checks to him.

ered over by the stakeholder, after the official canvass, to A.,

on being pre

at the

bank, was re

fused payment. In an action

against B., to

mount of the

was

At the time the wager was laid, the defendant had deposited brought by A. in the Albany bank more than 200 dollars, and such deposit recover the acontinued until after the result of the election was generally check, it known, but before it was officially declared; and the defendant withdrew the deposit, expressly for the purpose of defeating the payment of this check, alleging that he had laid the bet as the agent of a third person, who had refused to assume it. *When the check was presented by the plaintiff at the bank, payment was refused for want of funds.

It was agreed that, if the Court should be of opinion that the plaintiff was entitled to recover, the defendant should give a cognovit actionem for 200 dollars, on which judgment should be entered; otherwise, a judgment of nonsuit was to be entered.

Van Vechten, for the plaintiff, relied on the case of Yates v. Foot, (ante, p. 1.) decided in the Court of Errors.

(a) Rust v. Gott, 9 Cow. Rep. 169. Brush v. Keeler, 5 Wendell, 250.

held, that the contract being would lie on the the wager, nor for money had

illegal, no action

check given for

and received to the plaintiff's use. (a)

[*377]

1