4 N.Y. 157, Howard v. Sexton

Citation:4 N.Y. 157
Party Name:HOWARD v. SEXTON.
Case Date:October 01, 1850
Court:New York Court of Appeals

Page 157

4 N.Y. 157

HOWARD

v.

SEXTON.

New York Court of Appeal

October 1, 1850

Page 158

COUNSEL

B. F. Rexford, for appellant.

Abial Cook, for respondent.

OPINION

GARDINER, J.

By the common law, arbitrators could act judicially without being sworn. They were judges selected by the parties. The statute of arbitrations (2 R. S. 541) has not changed the

Page 159

law in this respect, but permits the parties to agree in their submission, that a judgment of a court of record may be rendered upon the award. Although the litigants have not availed themselves of this privilege, yet the submission they did execute, was a sufficient authority until revoked, for the arbitrators to hear and determine the controversy between them. The oath prescribed by the fourth section, to be administered to the arbitrators, is not in such cases a prerequisite to jurisdiction. This is conferred by the agreement of the parties. Its omission, even if not waived, as it manifestly was, would be a mere irregularity.

The arbitrators, therefore, had jurisdiction, and the plaintiff being sworn by the officer prescribed in the fifth section, the oath was administered by competent authority, and in a judicial proceeding. (1 Denio, 440.)This disposes of the first five points made by the defendant.

The second ground taken by the defendant, on the motion for a nonsuit was, "that the evidence of the plaintiff before the arbitrators, was immaterial; he swearing to a promise within the statute of frauds. "The evidence was material, for it proved the promise. It was not perhaps competent, if the objection had been taken in season. All secondary evidence becomes incompetent if objected to. But if the parties choose to rely upon it, a witness is not thereby absolved in conscience or law, from his obligation to speak the truth.

The third and principal question is, whether the court erred in admitting evidence of a charge, made by the defendant, against the plaintiff, of a different nature and at a different time from the slander alledged in the declaration. The plaintiff complained, that the defendant had at the time and manner mentioned in the declaration, charged him, in substance, with the crime of perjury. If the words proved, together with the circumstances under which they were spoken, did not sustain the declaration, the plaintiff should have been nonsuited; if they did...

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46 practice notes
  • 101 N.W. 907 (N.D. 1904), Lauder v. Jones
    • United States
    • North Dakota Supreme Court of North Dakota
    • 24 Febrero 1904
    ...for the purpose of showing that the words charged were spoken with a malicious intent. Finnerty v. Tipper, 2 Camp. 72; Howard v. Sexton, 4 N.Y. 157; Frazier v. McCloskey, 60 N.Y. 337, 19 Am. Rep. 193; Root v. Lowndes, 6 Hill 518; Distin v. Rose, 69 N.Y. 122; Bodwell v. Swan, 20 Mass. 376, 3......
  • 33 P. 810 (Or. 1893), Upton v. Hume
    • United States
    • Oregon Supreme Court of Oregon
    • 17 Julio 1893
    ...of this second charge." Bodwell v. Swan, 3 Pick. 376. To the same effect are Root v. Lowndes, 6 Hill, (N.Y.) 518; Howard v. Sexton, 4 N.Y. 157; Frazier v. McCloskey, 60 N.Y. 337; Distin v. Rose, 69 N.Y. 122; Barr v. Hack, 46 Iowa, 308. This is recognized as the better rule by Mr. Towns......
  • 160 S.E. 190 (Va. 1931), Rosenberg v. Mason
    • United States
    • Virginia Supreme Court of Virginia
    • 17 Septiembre 1931
    ...items of special damage, recoverable in civil action for slander or libel is in some sense punitive has been abandoned. Howard v. Sexton, 4 N.Y. 157 at 161 ; Bush v. Prosser, 13 Barb.(N.Y.) 221, at page 227. But prior to Underwood v. Parks both of these views prevailed, and the persistence ......
  • 156 N.Y. 376, Van Ingen v. Mail & Express Pub. Co.
    • United States
    • New York New York Court of Appeals
    • 7 Junio 1898
    ...26 How. Pr. 431; Bergmann v. Jones, 94 N.Y. 51; L. 1842, ch. 130; King v. Root, 4 Wend. 113; Thorn v. Moser, 1 Den. 488; Howard v. Sexton, 4 N.Y. 157; Bush v. Prosser, 11 N.Y. 347; Hatch v. Potter, 7 Ill. 725; Rearick v. Wilcox, 81 Ill. 77; Gilman v. Lowell, 8 Wend. 573, 578; Sanderson v. C......
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46 cases
  • 101 N.W. 907 (N.D. 1904), Lauder v. Jones
    • United States
    • North Dakota Supreme Court of North Dakota
    • 24 Febrero 1904
    ...for the purpose of showing that the words charged were spoken with a malicious intent. Finnerty v. Tipper, 2 Camp. 72; Howard v. Sexton, 4 N.Y. 157; Frazier v. McCloskey, 60 N.Y. 337, 19 Am. Rep. 193; Root v. Lowndes, 6 Hill 518; Distin v. Rose, 69 N.Y. 122; Bodwell v. Swan, 20 Mass. 376, 3......
  • 33 P. 810 (Or. 1893), Upton v. Hume
    • United States
    • Oregon Supreme Court of Oregon
    • 17 Julio 1893
    ...of this second charge." Bodwell v. Swan, 3 Pick. 376. To the same effect are Root v. Lowndes, 6 Hill, (N.Y.) 518; Howard v. Sexton, 4 N.Y. 157; Frazier v. McCloskey, 60 N.Y. 337; Distin v. Rose, 69 N.Y. 122; Barr v. Hack, 46 Iowa, 308. This is recognized as the better rule by Mr. Towns......
  • 160 S.E. 190 (Va. 1931), Rosenberg v. Mason
    • United States
    • Virginia Supreme Court of Virginia
    • 17 Septiembre 1931
    ...items of special damage, recoverable in civil action for slander or libel is in some sense punitive has been abandoned. Howard v. Sexton, 4 N.Y. 157 at 161 ; Bush v. Prosser, 13 Barb.(N.Y.) 221, at page 227. But prior to Underwood v. Parks both of these views prevailed, and the persistence ......
  • 156 N.Y. 376, Van Ingen v. Mail & Express Pub. Co.
    • United States
    • New York New York Court of Appeals
    • 7 Junio 1898
    ...26 How. Pr. 431; Bergmann v. Jones, 94 N.Y. 51; L. 1842, ch. 130; King v. Root, 4 Wend. 113; Thorn v. Moser, 1 Den. 488; Howard v. Sexton, 4 N.Y. 157; Bush v. Prosser, 11 N.Y. 347; Hatch v. Potter, 7 Ill. 725; Rearick v. Wilcox, 81 Ill. 77; Gilman v. Lowell, 8 Wend. 573, 578; Sanderson v. C......
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