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Gale agt. Trustees of School District.

the contrary, the third section declares that

upon

the

appearance of the parties, or upon due proof of service of the notice of the application and of the account, if the board shall be of opinion that the account, or any portion of it, ought justly to be paid, such board, by an order to be entered in its minutes, shall direct its payment. The same section declares that the account, with the oath of the party claiming it, shall be prima facie evidence of the correctness thereof. If, when this claim was presented to the board of supervisors, it was accompanied with proof of service of notice of the application and of such copy account, and no one appeared on behalf of the defendants to oppose its allowance and settlement, I think the board had jurisdiction to make the order. In such case it was not necessary for them to inquire whether the taxable inhabitants of the district had determined upon its allowance. The second section of the act made it the duty of the trustees to attend and protect the rights and interests of the district, and if they neglected so to appear, the supervisors were warranted in assuming that no good reason existed why the account should not be ordered paid. It is no answer, in my opinion, for the trustees to say at this stage of the business, that they supposed the application would not be made. If any deception was practiced upon them by the relator or his agents in reference to the presentation of the claim, their remedy, if they have any, must be otherwise than resisting the order of the board. After the board have acquired jurisdiction under the act, and have made the order, we can not go behind it for the purpose of inquiring after irregularities or omissions in the proceedings of the relator, before the making of the order. The act is imperative upon the trustees to issue their warrant for the collection of the money. This they have neglected, although more than thirty days have elapsed since a certified copy of the order was served

upon them.

I shall, therefore, direct an alternative mandamus to issue, with ten dollars costs, &c. The order to be so drawn, that the costs of motion are only to be paid in case the trustees obey the writ at once, and not in case they make return, &c.

Craig agt. Fanning.

SUPREME COURT

Craig agt. FANNING.

A nonsuit will not be set aside on a special motion, on the grounds that the

judge received evidence prematurely, or refused to submit to the jury a question of fact proper for their determination, Erroneous decisions of the judge on the trial, can be corrected only on a case or bill of exceptions.

Suffolk Special Term, March 1852. The plaintiff, in person, moved to set aside the nonsuit in this cause for irregularity and surprise. He read an affidavit stating that issues of fact were joined on two special pleas to the declaration; that the cause was tried at the Suffolk Circuit in December 1851, before Justice Brown; that after the plaintiff had opened the case to the jury and was about to call his witnesses, “to his surprise," the defendant's counsel handed to the judge a bundle of papers, alleging the same to be a record of certain proceedings in the late Court of Chancery; that upon inspection of those papers the judge arrested the plaintiff in the further progress of the cause, and directed that he should be nonsuited, although he requested that the cause should go to the jury on the issues of fact.

Mr. GEORGE MILLER opposed the motion, on the plaintiff's affidavit.

S. B. STRONG, Justice.—The plaintiff does not state very clearly what were the issues of fact which he wished to have submitted to the jury. From what took place on the trial, the inference is that one of them was upon an allegation in the answer that there had been a decree of the late Court of Chancery, upon the subject matter of the controversy, which concluded the parties. The plaintiff's motion is based on the positions that he was taken by surprise; first, by the premature offer and admission in evidence of the decree in chancery; and secondly, by his being nonsuited upon that, evidence, and that both proceedings were irregular. Where a party alleges surprise as a ground of his application for relief, he is bound to show that some act prejudicial to him has been done; which, with a proper inquiry into the facts of

Craig agt. Fanning.

his case he could not have anticipated, and against which he could not have protected himself with due vigilance. Now in this case, if the issue was what the proceedings stated in the affidavit indicate, it was a matter of course, that the decree would be given in evidence, and the plaintiff had, no doubt, abundant time to prepare his testimony, if any he had, to explain or controvert it. If the defendant's evidence was tendered prematurely, that would not have prevented the plaintiff from introducing his own testimony with the same effect as upon a later stage of the trial. But if the issue to be tried was upon the decree, the defendant held the affirmative, and then his evidence was properly offered and received. The other ground of the plaintiff's surprise was that he was nonsuited. Plaintiffs are not unfrequently surprised in that way, but that has never been deemed a sufficient ground for setting aside a nonsuit on a nonenumerated motion, unless it has resulted from some unexpected occurrence, against which the plaintiff could not have been reasonably expected to guard himself, and against which he could have protected himself had he been previously made acquainted with it. Nothing of the kind is alleged in this case. The plaintiff's surprise was caused by the refusal of the judge to send the case to the jury, and nearly all of his argument upon his motion was upon that point. Whether the course adopted by the learned judge was right or wrong, it is not material, nor would it be proper for me to decide on this motion. It is sufficient to say that if it was erroneous it can not be corrected on the ground of surprise. The alleged irregularities were in reference to the same particulars. These, as has been already mentioned, consisted in the reception of the evidence and granting the nonsuit. The decisions of a judge upon points of law raised on the trial could not, under the former system, be reviewed on a nonenumerated motion. Neither can they be under the existing code of procedure, on a special motion founded upon affidavits. However erroneous a decision of a judge in the progress of a trial may be, if it relate to the reception of evidence or granting a nonsuit, it is not an irregularity within the ordinary and technical meaning of that word. The unsuccessful party should resort to a case or bill of exceptions. Motion denied with seven dollars costs.

Chappel agt. Skinner,

SUPREME COURT.

CHAPPEL agt. SKINNER.

In an action to recover possession of personal property, the plaintiff can not

have the defendant arrested and held to bail under $ 179 of the Code, and

have the property delivered to him before judgment in the action. He has his election to proceed under chap. 2, title 7 of the Code, to recover

possession of the property, or to recover damages for the taking or detention; and having made his election he must abide by it. He can not commence his action and hold the defendant to bail, and have a delivery of the property too, pending the litigation.

Monroe Special Term and Circuit, November 1851. On the 8th day of October 1851, the plaintiff made an affidavit and obtained an order from a justice of this court, directing the sheriff of Monroe county to arrest the defendant and hold him to bail in the sum of $600. &c. The affidavit stated in substance that the plaintiff was the owner of certain personal property, describing it, worth $300; that he was entitled to the possession thereof, and that it was wrongfully detained by the defendant, upon certain pretences specified in the affidavit, and containing also the allegations or statements required by $ 207 of the Code, to entitle the plaintiff to an immediate delivery of the property, and showing also, that the defendant had clandestinely taken the property away and concealed it, so that it could not be found by the sheriff. The summons was served and the defendant arrested and gave bail the same day.

On the 15th day of October, and before the defendant had answered the complaint, the plaintiff made another affidavit similar to the first, excepting the statement that the defendant had clandestinely taken the property away, &c., gave the undertaking required by section 209, and made an endorsement on the affidavit according to g 208; upon delivery of which last mentioned papers to the sheriff, the latter took the property from the defendant, and has delivered the same to the plaintiff. A motion is now made for an order vacating and setting aside the second affidavit, undertaking and direction endorsed, upon which the

Chappel agt. Skinner.

property was taken by the sheriff, and that the possession of the property be restored to the defendant.

W. F. COGGSWELL, for the Motion.

E. A. HOPKINS, Opposed. WELLES, Justice—The question in this case is, whether the plaintiff, in an action to recover the possession of personal property, can have the defendant arrested and held to bail under $ 179 of the Code, and have the property delivered to him, before judgment in the same action?

The action to recover the possession of personal property, is one peculiar in its character and object. The Code has given it in place of the former action of replevin, and its design is to subserve the same purpose. It is regulated by ch. 2, of title 7 of the second part of the Code ($9 206 to 217 inclusive). There are other provisions which have an incidental and collateral application to it.

The first chapter of the same title contains provisions respecting arrest and bail in personal actions generally, and among them is the case mentioned in the 3d subdivision of $ 179, which authorizes an arrest“ in an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed, or disposed of, so that it can not be found or taken by the sheriff, and with the intent that it should not be so found, or taken, or with the intent to deprive the plaintiff of the benefit thereof.” That is the only provision authorizing the arrest of the defendant, in an action to recover possession of personal property. The first subdivision of the same section, authorizes the arrest of the defendant, where the action is for an injury to person or character, or for injury, or for wrongfully taking, detaining or converting property; by which is intended, an action to recover damages for such injury, taking, detaining, or converting; answering to our late actions of trespass, case, trespass de bonis asportatis and trover, and not an action to recover the possession of personal property.

Cases may arise, where the plaintiff has his election to proceed under ch. 2, title 7, to recover possession of the property, or to recover damages for the taking or detention; and, I think, in

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