Giles v. Halbert
New York Supreme Court
This is a motion on behalf of the defendant, for an order compelling one Justus Parce to pay the costs of defending the above action, on the ground that he commenced and prosecuted the action to its termination, and was beneficially interested in the recovery in the same, within the provisions of 2 R. S., 619, §47. The action was instituted to recover the penalty given by 2 R. S., 369, §37, against the defendant as sheriff for selling the plaintiff’s real estate, without…
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This is a motion on behalf of the defendant, for an order compelling one Justus Parce to pay the costs of defending the above action, on the ground that he commenced and prosecuted the action to its termination, and was beneficially interested in the recovery in the same, within the provisions of 2 R. S., 619, §47. The action was instituted to recover the penalty given by 2 R. S., 369, §37, against the defendant as sheriff for selling the plaintiff’s real estate, without having advertised the Same. On the trial the plaintiff was non-suited, and a new trial denied on application to the court.…
1Opinion of the Court
Shankland, Justice.
Parce brought the action in the name of Giles, and with his assent, to recover the penalty of one thousand dollars against the defendant. But it is elaimed, that as the agreement between Giles and Parce was not in writing it is within the statute of frauds, an'd that therefore Parce was not beneficially interested in the recovery; and that the contract is also void for champerty (10 Paige, 352; 2 Denio, 607; 5 Paige, 301).
It is probably true, that as between Giles and Parce, the con-' tract is void for both reasons; but is it competent to Parce to’ insist upon that…
2Cases cited3 opinions
- Merritt v. LambertNew York Court of Chancery · 1843
- Wallis v. LoubatNew York Supreme Court · 1845
- Bliss v. OtisCourt for the Trial of Impeachments and Correction of Errors · 1845