The People agt. Hayes and others.

ference which would be of any force or validity? Clearly not. It is the statute alone which gives the court the power to change the mode of trial; and that power is given upon consent only, manifested by a writing. The consent in this case conferred no power or authority unless it was followed, and clearly it was not. The court had no jurisdiction to make the order which was made, and it was void (Garcia vs. Shelden, 3 Barb. S. C. R. 232).

It is not the irregular exercise of power, of which the court are clearly possessed, but the entire absence of all power to make the order in question, which constitutes the difficulty. And this is the essential line of distinction between void and voidable acts. The action was, therefore, still in court to be tried, and the inquest regular. Motion denied.

SUPREME COURT.

THE PEOPLE agt. HAYES AND OTHers.

An action against a public officer, sued for an act done by him by virtue of his office, must be tried in the county where the cause of action arose, unless changed for causes specified in the statute. And this is so, although the suit is brought by the people and prosecuted by the attorney general of the state.

In personal actions, sued by the attorney general, the king could sue in any county he pleased; and the people of this state have succeeded to the rights of the crown. But this rule has been here modified by statute. Regard, however should still be had to the opinions of the attorney general and other public officers, acting for the state, as to what will be for the public interest. Commissioners appointed by the act of the legislature, to lay out and build a road for the use of the public, are public officers.

An office is a public charge or employment; and every office is considered public, the duties of which concern the public.

Very little reliance can be placed upon an allegation of the materiality of witnesses, unless it be shown wherein they are material. But the place of trial may be changed upon such an affidavit, when no witnesses are shown to reside in the county where the venue is laid.

Schenectady Special Term, November 1852. This was a motion by the defendants to change the place of trial from the

The People agt. Hayes and others.

county of Albany to the county of Clinton. The affidavit of one of the defendants, stated that deponent resided in Clinton county; that the attorney general had brought a suit against the defendants, wherein the complaint charged that they were commissioners under the act entitled" an act to provide for laying out and opening a road from Clinton county to Carthage in Jefferson county, passed April 16, 1852 (Laws of 1852, p. 519), and as such had laid out a road on a route wholly unsuitable, and not within the meaning and intention of the act; and also charging that the defendants were guilty of fraud; and with corrupt purposes had laid out the road on a wrong route. That they had drawn about $17,000 from the state treasury, and were proceeding to open the road so improperly laid out, and the plaintiffs prayed an injunction, &c., and that the money be returned. That the defendants had put in their answer, denying all improper conduct, and alleging that they had, as commissioners under and by virtue of the act, laid out the road strictly in conformity thereto, and on the most direct and convenient route. The affidavit further stated that certain witnesses, whose names were given, and more than twenty-five of whom reside in Clinton county, and six in Franklin county, were material, &c., but did not state what the defendants expected to prove, or what part of their case they expected to sustain by said witnesses.

L. STETSON, for the Motion.

G. Srow, Contra.

HAND, Justice. The motion is pressed upon two grounds: convenience of witnesses, and that the defendants are public officers (Code, § 124, 125, 126).

Very little reliance can be placed upon an allegation of the materiality of witnesses, unless it be shown wherein they are material (see Rule 44; Jordon vs. Garrison, 6 How. Pr. R. 6). However, as there is no affidavit of any witnesses on the part of the plaintiffs, if the motion turns upon this point, it must be granted.

Are these commissioners public officers? Mr. Justice NELSON was inclined to consider certain persons, like these defendants, appointed by an act of the legislature to perform certain public VOL. VII

32

The People agt. Hayes and others.

duties, officers; particularly as they were so denominated in the act appointing them (The People vs. Comptroller, &c. 20 Wend. 595). In the 9th section of this act, the comptroller is authorized to fill any vacancies that might occur "in the office of said commissioners." The statute requires an action against a "public officer," for an act done by him by virtue of his office, to be tried where the cause of action arose, unless changed for causes specified in the act (Code, § 124). "An office," said Chancellor SANDFORD, "is a public charge or employment, and the term seems to comprehend every charge or employment, in which the public are interested (Wood's case, 2 Cow. 30, n.). Every office is considered public, the duties of which concern the public (5 Bac. Ab. 180; 2 Tom. Dic. "Office"; People vs. Bedell, 2 Hill, 199). BEST, Ch. J., in Henley vs. Mayor of Lyme (5 Bing. 91), said, " in my opinion every one who is appointed to discharge a public duty, and receives compensation, in whatever shape, whether from the crown or otherwise, is a public officer." I think the official character of the defendants gives them the privileges of public officers as to the place of trial (Code, § 124, subd. 2). From the affidavit, it seems, the misfeasance or malfeasance in laying out the road, is charged to have been, in part at least, committed in the county of Clinton. The money was drawn at Albany. But the complaint, as to that, is not that it was received, but misapplied.

Are these rules applicable, in a suit by the people? I came to the conclusion, in a recent case, that in many respects, the people, upon obtaining our independence, succeeded to the rights of the crown (People vs. Van Rensselaer, 8 Barb. 189). And I find nothing in The People vs. Arnold (4 Comst. 508), overruling this doctrine. (And see People vs. Thurman, 3 Cow. 16; People vs. Herkimer, 4 id. 345.) And it seems pretty clear that in personal actions, the king could lay his action in any county he pleased (16 Vin. 538; Com. Dig. Prerog. D. 85; Attorney General vs. Churchill, 8 Th. & W. 171, and cases there cited. And see Rex vs. Hunt, 3 B. & Ald. 444) But this rule may be abrogated by positive statute; and this, I think, has been done in some suits against public officers, of which this is one. Where the statute has not taken away all discretion, no doubt

Shuart agt. Taylor.

regard should be had to the opinions of the attorney general and other public officers acting for the people, as to what would be for the public interest. But nothing appears in this case requiring the court to retain the place of trial contrary to the general rule. Motion granted.

SUPREME COURT.

SHUART agt. TAYLOR.

Where a cause was referred and tried before the referee, who made a report therein which was set aside by this court, and a new trial ordered, with costs to abide the event, without further directions, and the same referee tried the cause again, after objections thereto on the part of the defendant, it was held that he had power to do so, and that the objection was properly overruled.

A report of a referee will not be set aside as contrary to the evidence, unless there is a decided preponderance of evidence against it.

If a person who has, by agreement with the owner of land, an interest in a fallow, for the purpose of raising a crop of wheat—each to have one halfexecutes a chattel mortgage upon the fallow, the mortgage will bind the interest of the mortgagor in the fallow, and in the wheat afterwards put in under the agreement.

Where the owner of a chattel mortgage brought an action of trover, before the Code, for a sale of the mortgaged property, made without his assent, before the mortgage money had become due, and when he had not taken possession, Held, that the action would lie.

A mortgagee of a chattel has the entire legal title thereto, subject only to be defeated by a performance of the condition of the mortgage, and is entitled to the possession immediately, when there is no provision in the instrument that the possession may be retained by the mortgagor.

Monroe Circuit and Special Term, January 1852. This was an action of trover, brought in 1847, to recover the value of a quantity of wheat. The plea was the general issue. The cause was referred by consent to H. Humphrey Esq., sole referee, before whom it was tried, and who in March 1848, reported in favor of the defendant. A motion was made on the part of the plaintiff, to this court, to set aside the report, the decision of

Shuart agt. Taylor.

which, as entered in the minutes of the clerk, was in these words: "New trial granted, costs to abide the event." The plaintiff noticed the cause for a second trial, before the same referee, in August 1851, and the parties by their counsel appeared before him, in pursuance of the notice, when the counsel for the defendant objected that the referee had not authority to try the cause again. The referee overruled the objection, and the parties proceeded to the second trial. It was proved, on the part of the plaintiff, that one Ezra T. Cogswell, on the 5th of September 1844, executed a promissory note for $75, payable to George W. Clark, or bearer, by the 1st day of October 1845, with interest; and that on the 17th of September 1844, Cogswell executed a chattel mortgage to Clark, as collateral security for the payment of the note, of all the right, title and interest of the mortgagor "in and to about thirty acres of fallow or wheat, on the farm of D. Tracy, better known as the Ezra Taylor farm, of the town of Pittsford," which mortgage contained a clause authorizing the mortgagee, in case of default in payment, at the time limited therefor, to take the property and sell the same, and out of the money to arise from the sale to pay and retain the amount of the debt and charges, he rendering the overplus to the mortgagor. The mortgage was filed in the town clerk's office in Pittsford, the same day. On the 18th of September 1844, Clark assigned the note and mortgage to the plaintiff. The other facts proved, so far as is necessary to an understanding of the points decided, are stated in the opinion of the court. The referee reported in favor of the plaintiff, for $112-26, October 22, 1851, and the defendant, upon a case made, moves to set the report aside.

S. B. JEWETT, for Plaintiff.

J. ABRAMS and H. R. JEROME, for Defendant.

T. R. STRONG, Justice.-The effect of the decision of the court, and the rule entered thereupon, setting aside the former report of the referee, and directing a new trial, was to place the cause in the same situation, in respect to a trial, it was in before it was first tried. The order of reference was not set aside, but remained in full force; and the duties and powers of the referee were precisely the same as if he had not previously reported.