Manchester v. Herrington , 1 Seld. Notes 235 ( 1854 )

It was held, in this case, that the 5th section of the act entitled “An act relating to excise, and to licensing retailers of intoxicating liquors,” passed May 14th, 1845, did not repeal or in any way impair the force of sec. 15, title 9, chap. 20, part 1 of the Revised Statutes, in towns which should vote under the provisions of the act of 1845 not to grant licenses ; but that the overseers of the poor in any town might sue for and recover any penalty accruing under the provision of the Revised Statutes referred to, notwithstanding such town should have voted against all licenses.

Held, also, where the term of office of one of the two overseers of the poor, plaintiffs in the suit, expired after the commencement of the circuit at which the cause was tried, but before the trial, that this was no ground of nonsuit, nor any valid objection to a recovery in the name of the plaintiffs upon the record.

First. Because the whole term is regarded but as one day, and the recovery will be held to relate to, and to have been had at, the commencement of the term ; and

Second. Because it is expressly proved by a section of the Revised Statutes, that “no suit commenced by or against any officers named in this article [overseers of the poor being of the number] shall be abated or discontinued by the death of such officers, their removal from, or resignation of their term of office; but the court in which any such action shall be pending, shall substitute the names of the successors in such office, upon the application of such successors or the adverse party,” it having been heretofore held under this provision, that until the successor in office or the adverse party apply for a substitution, the suit shall proceed in the names of the original parties. (See 2 R. S. 474, § 100; 2 Denio, 125; 7 T. R. 31.)

(S. C., 10 N. Y. 164.)