A Cl | A 8 SOUTHE =!^= Z | EGIO 5 1 ~" CD 1 5 9 RY FACILITY 4 asanas $ nil J] I I | i — ft. 4. . u, c^n^ T 1854 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES .SCHOOL OF LAW GIFT OF 9 *\. tUavws PRACTICE AND PLEADING APPENDIX OF FORMS TEXT OF CODE AND EULES HENRY WHITTAKER. SECOND AND REVISED EDITION, IN TWO VOLUMES. Vol. X. NEW YORK: PRINTED FOR THE AUTHOR, AND SOLD BY THE PRINCIPAL LAW BOOKSELLERS THROUGHOUT THE STATE, 1854. Entered according to Act of Congress, in the year 1852, by HENRY WHITTAKEK, AUTHOR AND PROPRIETOR, in the Clerk's Office of the District Court for the Southern District of New York. Entered according to act of Congress, in the year 1854, by HENRY WHITTAKEK, ADTUOR AND PROPRIETOR, in the Clerk's Office of the District Court for the Southern District of New York. T B 0. .IK.NKINS, •EINTEB AMi BTESEOTYPER, : i Street CONTENTS OF VOL. I. Index to Cases cited, .... Introduction. Supplementary Introduction, noticing recent Decisions. BOOK I. Of the Courts of Justice within the State of New York. Chapter I. Of Judicial and other Officers. § 1. Judicial office, . . . • 1 2. Judicial powers, delegation of, . • 2 3. Clerk of court, . . . ... 2 4. Affidavits, taking of, .... 3 5. Sheriffs, &c, . . • • .4 6. Other ministerial officers, .... 6 7. Attorneys and counsel, . . . .7 Chapter II. Of different Courts of Justice within the State of New York. § 8. Courts, list of, . . . . . 10 9. Federal courts, jurisdiction of, . . . .11 Chapter III. Of the Courts of Appeal. § 10. Jurisdiction and powers of, ... 14 Chapter IT. Of the Supreme Court. § 11. Supreme Court, power of, . . . .19 12. General and special terms, .... 20 13. Chamber business,, powers of county judges, . . 21 14. Powers of judges out of court, ... 23 15. Courts, arrangement as to, . . . . 24 16. Appeals, &c, ..... 25 17. Rules of, . . . . . .25 Chapter V. Of the County Courts. § IS. Jurisdiction and power of, . . . 26 756564 iy CONTENTS. Chapter VI. Of the Superior Court and Court of Common Pleas of the City of New York. § 19. Jurisdiction and powers of, generally considered, . . 32 Chapter VIII. Of the Mayors' and Recorders' Courts of Cities. § 20. Powers and jurisdiction of, . . .40 Chapter VIII. Of Justices' Courts ix General, including the Marine and Justices' Courts in the City of New York. § 21. Powers and jurisdiction of, ... 42 22. Discontinuance before justice where title in question, . 44 23. Proceedings in courts in question. ... 47 BOOK II. Of Actions, generally considered. Chapter I. Of Actions in General. k § 24. General definitions, .... 54 25. Alternative remedies and special proceedings, . . 55 26. General observations, . . . . 56 Chapter II. Of the Parties to an Action. § 27. General principles as to, . • . • 58 28. General rules as to parties plaintiffs, . . 59 29. Parties plaintiffs, rules under Code, . . .61 30. Parties defendants, general rules, . . . 71 31. Parties defendants, rules under Code, . . .77 32. Interpleader, ..... 82 Chapter III. Of the Limitation of Actions. § 33. Limitations, generally considered, . . .84 34. Real estate, limitations as to, ... 86 35. Personal actions, limitations as to, . . . 92 36. Suspension of limitations, .... 99 37. Action, when deemed commenced, . . . 107 BOOK III. Commencement of an Action, and the Preliminaries thereto, when /"'-•' ssa/ry. CeUPTBB I. Or tmi; I'; i i <\tr. \i u. in THE COMMENCEMENT OS 1 AN ACTION, i\ CERTAIN 38. V:wv,u i preliminai .... 109 CONTENTS. CONTROVERSY Chapter II. Of Proceedings for Settlement of a without Action brought. § 39. Submission of controversy, 40. Confession of judgment, . Chapter III. Of Summons, and its Service. Preliminary Remarks, .... § 41. Summons, nature and form of, 42. Service of complaint, with summons, 43. Notice of no personal claim, . 44. Service of summons, .... 45. Substituted service against resident defendants in certain cases — Service by publication, 46. Service on several defendants, joint debtors, &c, 47. Proof of service, . 48. Appearance of defendant, .... 49. Closing remarks on above head, Chapter IV. Of the Appointment of Guardian, and his Duties. § 50. General remarks, .... 51. General guardian, . 52. Guardian ad litem, .... 112 113 117 118 125 126 126 131 138 139 140 141 142 142 146 BOOK IV. Of the formal Machinery of an Action. § 53. Preliminary remarks, .... 151 54. Notices, and service of papers, 152 55. Service by mail, .... 155 56. Computation of time, .... 160 57. Papers in cause — marking folios, 162 58. Consents or admissions, .... 162 59. Undertakings, .... lg3 60. Affidavits, ..... 163 61. Motions and orders — general definitions, . 167 62. Motions, general classificaion of, . 168 63. Where and before whom motions may be made, 168 64. Ex parte motions, .... 174 65. Order to show cause, . 179 66. Notice of motion, .... 180 67. Petitions, ..... 184 68. Opposed motions, where cognizable, 186 69. Opposed motions — course on hearing, and incidents of papers used on, . 190 70. Orders — general remarks, .... 198 y j CONTENTS. BOOK V. Of Provisional Remedies. § 71. General remarks, . . . . .205 Chapter I. Op Arrest and Bail. § 72. Preliminary remarks— old law how far repealed, . 207 73. Writ of ne exeat, . . . . .208 74. When defendant arrestable— statutory provisions, . 210 75. Application for arrest, when and how made, . . 217 76. Mode and incidents of arrest, . . . 222 77. Course of defendant when arrested, . . . 223 78. Bail by defendant, . . . .228 79. Exception and justification. .... 231 80. Surrender by bail, . . . .233 81. Remedies against bail. .... 234 82. Exoneration of bail, . . . . 235 83. Deposit in lieu of bail, . . . .236 84. Concluding remarks, .... 237 1 Chapter II. Op Claim and Delivery op Personal Property. § 85. General characteristics of replevin under Code, . .237 86. Provisional remedy, how obtained, . . . 241 87. Defendant's course of action, and ulterior proceedings, . 244 Chaptee III. Injunction. 88. Preliminary remarks : by whom granted, . . 248 89. When obtainable— general classification, . . 249 90. Preliminary injunctions, .... 250 91. Subsidiary injunction, .... 259 92. Mode of application for— affidavits, . . . 260 93. Service of injunction, .... 266 94. Defendant' course, in order to oppose or vacate. . 267 !).".. Violation Of injunction, .... 272 BB IV. An i'ii- § 96. Nature of remedy, .... ^7) 97, i i ind how obtainable, . . . 275 affidavit, . . . .282 99. Security on application, .... 284 100. Warrant of attachment, .... 285 101. proceedings on warrant, . . . 286 L02. i i of attachment, on giving Beourity, . . 289 in:;. Efl ■ • if in favor of defendant, . . 29:5 Chaptxb V. An i b, .'.ni> othbb Provisional Remedies. L04. .... 297 in;.. Receivers, ...... 298 106. Other remedies, ..... 803 CONTENTS. v ii BOOK VI. Of Pleading, generally considered. Chapter I. Of the essential Requisites of Pleading. § 107. Abolition of ancient forms, . 304 108. Distinctions between law and equity, . . 305 109. Averments of fact, principles as to, . . . 308 110. Observations in conclusion, . . . 325 Chapter II. Of the formal Requisites of Pleading. § 111. Numbering folios, &c, . . . .327 112. Subscription and verification, . . . 328 113. Return of defective pleading, .... 331 114. Other formalities, . . . .335 Chapter III. On the Correction of Pleadings by the moving Party. General remarks, .... 336 . § 115. Amendments as of course, .... 336 116. Service of amended pleading, . . . 343 117. Amendments by leave of the court, . . . 344 Chapter IV. Of the Correction of Pleadings ox Motion of the ad- verse Party. 118. Preliminary remarks, . . , .351 119. When motion proper remedy, or the reverse, . .351 120. Y\~hen motion to be made, and how, . . . 353 121. Irrelevancy or redundancy, .... 354 122. Motion for uncertainty, . . . - 363 BOOK VII. Of the Pleadings in an Action, and the Proceedings in connection, therewith, dozen to the Joinder of Issue. Chapter I. Of the Complaint, and the Proceedings collateral t § 123. General definition, . . . , 124. Formal requisites, 125. Statement of cause of action, . 126. Joinder of causes of action, 127. Right of plaintiff to sue, 128. Averments of fact, generally considered, 129. Averments of fact in special cases, 130. Averments of fact in special cases, continued. . 131. Averments of fact, continued, . 132. Averments of fact, continued, 133. Averments of fact, continued : Real estate cases, 134. Prayer for relief, 135. Service and other formalities, 136. Collateral proceedings. HEREWITH. . 365 366 . 368 369 . 376 380 . 386 392 . 403 405 . 409 417 . 420 422 vm CONTENTS. Chapter II. Of the Defendant's Course of Action ox being served with Process. § 137. Defects in summons, .... 138. Notice of appearance — demand of copy complaint, 139. Motion to dismiss, .... 140. Defendant's course on service of complaint, . 141. Precautionary proceedings of defendant, on his own behalf, 142. Defendant's proceedings with reference to plaintifi", 143. Proceedings preliminary to answer, 144. Time to plead, . . • 145. Relief where default suffered, . Chapter III. Demurrer. § 146. General nature and office of demurrer, 147. Grounds of demurrer under Code, 148. Mode of statement of grounds as above, 149. Omission to demur, .... 150. Demurrer and answer, how far admissible in connection, 151. Frivolous demurrer, .... 152. Concluding remarks, . . . • Chapter IV. Answer. § 153. 154. 155. 156. 157. 158. 1 V.). L60. 161. § lf>2. 163. L64. 1 65. Office and requisites of answer, Preliminary considerations, Demurrer by answer, Traverse of plaintiff 's case, Defensive allegations, in bar or in abatement, . Defensive allegations, continued : Averment of facts, Counter-claim and set-off, &c., Demand of relief by answer, . Defects in answer, 425 426 429 430 434 438 445 447 452 454 458 462 464 465 466 469 469 471 474 476 485 490 502 509 509 c of the Plaintiff on receipt of the Defendant's Pleasing. Motion to satisfy admitted part of demand, . . 518 Motion on ground of defects in answer, . . 519 Amendment of complaint, and other proceedings before final joinder of issue, ..... 523 Discontinuance, ..... 525 . '. i Demurrer to Answer, and of the Defendant's Pro- I I ADMISSIBLE. General consideraf .... 526 ]i;;. !'> answer, .... 530 168. Reply, ...... 535 169. Del of reply, . . 538 i7o. Final joinder of i me, effect of on pleadings, admission of fact aol controverted, .... 542 Chapter VII. ,Ri .... 172. Supplemental plead Ml 553 CONTENTS. IX BOOK VIII. Of Proceedings between Issue and Trial. Chapter I. Joinder of Issue, general Consequences of, including Consolidation of Causes. § 173. Issue, generally considered, . . . 556 174. Consolidation of causes, .... 559 Chapter II. Of Proceedings for tue purpose of dringing the Cause to a speedier. Decision. § 175. Motion for reference, . . . . 561 176. Other proceedings, ..... 569 Chapter III. Of the Change of Venue. § 177. Motion to change venue, .... 575 Chapter IV. Of Proceedings for obtaining an Insight into the Adversary's Case, or fortifying that of the moving Party. § 178. Enforcement of admission, .... 584 179. Discovery, &c. ; anticipatory notice, . . . 585 180. Depositions de bene esse, .... 586 181. Commission to examine witnesses, . . . 588 Chapter V. Of the formal Preparations for Trial. § 182. Noticing and setting down cause, . . . 594 183. Affidavit of merits, . . . .602 184. Preparations for trial, .... 605 Chapter VI. Inspection and Discovery of Documents. § 185. General remarks — statutory provisions, . . 610 186. Discovery under Rules, .... 613 187. Discovery and inspection under the Code, . . 617 188. Mode and course of application, . . . 620 Chapter VII. Examination of Parties. § 189. Nature of remedy, .... 624 190. Mode of examination, .... 626 191. Refusal to testify, .... 635 Chapter VIII. Of the Rules of Evidence, as affected by the Code. § 192. General outline of subject — statutory provisions, . . 637 193. Evidence of parties, as such, . . 638 194. Evidence of witnesses, . . . 646 BOOK IX. Of Trial and consequent Proceedings before Entry of Judgment. Chapter I. Of Trial, generally considered. § 195. General incidents of trial, . . . 658 196. Amendment, or disregard of formal objections, . . 661 x CONTENTS. § 197. Objections on trial, .... 668 198. Other incidents of trial. generall) T considered, . .671 199. . Course of trial, . . . .672 Chapter II. Trial of ax Issue at Law. § 200. Course on trial. . . . . .676 20L Course on decision, .... 677 Chapter III. Of taking Default or Inquest. § 202. Default, . . . . . .680 203. Inquest, ..... 683 201. Opening default, or inquest, .... 686 Chapter IV. Trial by Jury. § 205. Constitution of jury — general form of trial, . . 688 206. Incidental points as to trial, .... 690 207. Verdict and its incidents, .... 693 208. Entry and consequences of verdict, . . . 696 Chapter V. Trial by the Court. § 209. Trial by court, nature and incidents of, . . 698 Chapter VI. Trial, or Hearing by Referees. § 210. General characteristics, .... 701 211. Provisions of Code, powers of referees, . . 703 212. Course of hearing, ..... 707 213. Report, &c, . . . 712 214 Interlocutory or consequential reports— confirmation of, 717 Chapter VII. Motion fob new Trial — Proceedings between Trial and Judg- MKNT. § 215. Course of unsuccessful party in relation to review, . 719 216. Stay of proceedings, ..... 721 217. Motion on judges' minutes, . . . 721 218. Motion upon a case as to facts, .... 725 219. Mol ions upon exceptions, as to law, . . . 727 220. Preparation and settlement of case or exceptions, . . 730 221 Searing of case when settled, . . . 736 222. Separation of exceptions, when requisite, . 740 223. Re-settlement of exceptions, by express order, . 712 224. Remit of decision on case or exceptions, . . . 7-13 225. Law as to granting a new trial, . . . 744 226. M'" rounded on case or exceptions, . . 750 i Other proc< . . . . i:4 " of " v. Hurlbnt 181 " of Geneva v. Gulick 130 " of " v. Hotchkiss 230, 27.5, 291 " of Ithaca v. Bean 194 " of Lansingburgh v. McKie 13, 63, 70, 102, 194, 2S4 " of Massillon v. Dwight 231 " of Poughkeepsie v. Hasbrouck 157 " of Yergennes v. Cameron 130 " of Whitehall v. Weed 252,253 Bantes ▼. Brady 212,213 Barber v. Bennett 120 " v. Cary 313 '• v. Crossett 294. 295 " v. Hubbard 77 - v. - 129,253 Barculows v. Protection Co. of X. J. 263 Barker v. Dillon 77 " f v Russell 82,129,253 Barnard v. Wheeler 142,177 Barnes v. Harris 13, 18, 23, 44 v. Perine 117, 196 " v. •' 127 Barney v. Griffin 10 m r. Seneca Co. Bank 09, 287 Barry v. Whitney 7,294 Bartlett v. Mayor of New York 45, 74, 97 Barton v. Sackett 109, 128, 156, L6£ V. J tines 66, 3()5 v. Stanton 157 " v. Voorhies 117, 158 Beach 7. Forsyth 39 v. Gallup 130,151 v. Hayes 134, 146 Beats v. Cameron 168 '• v. Peck 130 194, 1.:/ Beardsley v. Dicfcerson l rj, 177 v. Stover 117, 196 v. Copley 23, L99 172 93, L38 L59 ! v. Powell G3, i " .. - L96, L99, 300,306 " ( 119, 121, I ittaworth 277, 2 5, 29 1 1 12ft,] 109, i 119, L4G, 1 .7, Id? Bi Iding v. ' lonldin ■• •. lord 272 Ill, III 1 17, L96 Section Bench v. Sheldon 132, 158 Benedict v. Dake 111, 119, 121, 128, 146 v. Harlow 294 " v. New York and Harlem R. R. Co. > 218,222 " v. Seymour 108, 109, 121, 126, 150 Benjamin v. Benjamin 308, 313 Bennett v. Am. Art Union 90, 128, 197, 206 v. Brown 23, 75, 96 " v. Chapin 105 "■ v. Dellicker 138, 232 v. Hughes 190, 191 v. Williamson 129, 158 Benson v. Couchman 130 " v. Fash 92 Bentley v. Jones 109, 128, 150, 169 v. " 70,163,230,239,275,304 Benton v. Bugnall 212,300 " v. Sheldon 300, 304 Betts v. City of Williamsburgh 90 Bigelow v. Benton 130, 158, 252 Billings v. Jane 130 Birckhead v. Brown 157, 199 Bisbey v . Shaw 158 Bi>hop v. Morgan 176, 182 Bissell v. Bissell 23,56 Blackmar v. Yan Inwager 63, 70, 181 Blair v. Dillaye 285, 289, 290 Blake v. Loey 18, 60, 66, 259, 283 Blanchard v. Strait 41, 109, 111, 121, 122, 127,128 Blodget v. Morris 193 Bl >od v. Wilder 59, 78, 271, 277 Bloodgood v. Bruen 36 Blossom v. Adams 142 Blunt v. Whitney 211 Blydcnburgh v. Cotheal 259, 274 Bogardus v. Parker 29, 158, 159. 166 v. " 30,126,133,154,158,312 " v. Rosendale Mas. Co. 292, 300 Bogart v. Yermilyea 225 Bogertv. " 36 Boice v. Tar e : 206 7. Banks 296, 300, 316 B tlto i v. Depi yster 284 eel v. Lynde 184, 1S8, 189, 191, 212 Borrodaile v. Leek 2::, 206 Borst v. Bpelman 219, 290 Burt v. Smith 273 ::an 29 Boutel v. Owens 10, 241 Bouton v. City of Brooklyn 29, 90, ] 127, 2 Bowenv. Newell 10, 19, 289 v. ■• 130, L99 Bowers v. Emerson 21 6 60, hi 66, 69, 120,1 il v. '• 175, Boyce v. I 1 12 255, 295 " v. BroM i 22, 109, 121, 1 16, 158 •' v. Con 175,238 199, 225 n v. Iloyt 171 Braden v. [take 298 159 V. VanZandt 69,274,276 ill 112 193 64,23 Braodou \. I ['I 136 'i 133, 141, 158,213,313 \ . V, i |5 ( L86, 189 7 91, 94 urger 97 INDEX TO CASES CITED. Xlll Section Brewster v. Michigan Central R. K. Co. 44, 97 " v. Silence 31,130 Bridge v Payson 154, 155, 161 " v. " 30,109,158,160,161,169, 170,197,245 Brien v.Clay 146,308 Briggsrv. Wells 199, 225 Bright v. Currie 29, 121, 127, 151 Bristol v. Rensselaer and Saratoga R R. Co. 128, 150, 158, 197 Brittan v. Peabody 177 Broadway Bank v. Daufurth 66, 113 Brockway v. Burnap 77, 131, 212 v. Stanton 181, 190 Brodhead v. Broad head 144, 238 Brokaw v. Bridgman l s l Bronson v. Freeman 142 " v. Wiman 197, 199, 22.5 « v. " 206 Broome Co. Bank v Lewis 161 Brophy v. Rogers 74, 75 Brouwer v. Harbeck 105 Brown v. Babcock 117, 190 " v. Bcadshaw 175, 224 " v. Briggs 55 " v.Brown, 22,273,289,291 " v. Comstcck 294 " v. " 300 " v. Jenison 161 " v. M'Cune 74, 31, 117, 129, 157, 168, 196,197,199,219,253,284 " v. Miller 238, 243 " v. Orvis 121,158 " v. Spear 168, 169 " v. Stearns 271 " v.Tracy 5,250 Browne v. Sootield 22, 273 Browning v. Paige 182, 202 Brownson v. Gifford 29, 30, 31, 133. 236, 243,312 Bruce v. Delaware and Hudson Canal Co. 94, 283 " v. Pinckney 230,284 Bryan v. Brenuon 175, 2>>4 Buck v. Waterbury 23, 173 Hucklin v. Ford 33, 36 Buckman v. Carnley 5, 66, 70, 80, 82, 256 Buddington v. Davis 12;*, 158, 107 Buell v. Trustees of Lockport 157, 199 Buffalo and New York Central R. 11. Co. v. Brainerd 197, 288, 200, 310 Buffalo and State Line R. 11. Co. v. Reynolds 310 Bulkeley v. Keteltas 206, 219, 220, 225 v. " 233,276 " v. " 301 " v. Smith 200, 235, 248 v. " 298 Bullard v. Van Tassell 7 Bump v. Van Orsdale 194 Bunn v. Fonda 264 Burbank v. Beach 29, 130, 199 Burch v. Newberry 275, 316 " v. Newbury 315 Burckle v. Luce 292, 295 Burdell v. Burdell ISO Burdick v. Collins 290 v. M'Ambly 23 " v. Post 157, 199 Burget v. B^sell 108, 109, 121 Burhans v. Casey 74, 162 v. " 162 " v. Tibbits 208, 227 v. " 284,297 Section Burhans v. Van Zandt 21 3, 21 S " v. " 157,199,213 Burkbardt v. Sanford 0,97,248,252 Burkle v. Ells 9 74, 253 Bumap v. Halloran 117 Burnett v. Harkness 281,236,291,202. 300., 306 Burnham v. De Bevoise 69, 170, 200. 23C Rurns v. Robbins 66,79.86,87 Burnside v. Brown 303,305 Burrowes v. Miller 147, 174 Burrows v. " 45, 74, 97 Burst v. Jackson 358 Burwell v. " 158 Bush v. Pettibone 84.253 " v. Prosser 158, 199 Bushnell v Bushnell 73, 106 Butler v. Miller 2S9, 310 " v. Wentwoith 161 Buzard v. Gross 72, 255, 295 c. Cahoon v. Bank of Utica 120, 134 " v. " 109,120 Calkins v. Brand 295 " v. Williams 295 Camden Bank v. Rodsrers 29, 151, 239 Cammanv. Tompkins 45, 75, 97, 98, 100,102 Camp v. Pulver 213 " v. Tibbetts 75.77 Campbell v. Ewalt 129 Candee v. Lord 290 Capet v. Parker 90, 95 Carley v. Wilkins 149, 197, 218 Carll v. Hart 35 Carnrick v. Myers 252 Carpenter v. Carpenter 290 " v. Dennis 129 " v. Haynes 290 v. Shelden 193, 199, 200, 225, 227 " v.Smith 206 " v. Soooner 19, 44 " v.Stilwell 5,206,256 v. West 108, 121 Carr, in re 19 Carroll v. Carroll 33, 36, 146 Carshore v. Huyck 30 Carter v. Dallimore 273 " v. Hamilton 29 " v. Newbold 308 Cary v. Williams 74, 105 Cashmere v. Crowell 19 v. Dewolf 19 Cassidy v. Meacham 259 Castelianos v. Beauville 298 " v. Jones 142 v. " 97. 98 Castles v. Woodhouse 128, 158 Caswell v. Bushnell 101 Catlin v. Gunter 109, 117,150, 158, 177, 190 199 " v. Hansen 158, 194, 196* 199 " v. McGroarty 161 Catskill Bank v. Sanford 251 " v. " 251 Cayuga Co. Bank v. Warden 130, 190, 199 Cemetery Board of Hyde Park v. Teller 41 Chadwiek v. Brother 55, 295, 305 Chamberlain v. O'Connor 32, 30S Chapman v. Fuller 252 v. Webb 117, 134 . 196 Chappell v. Skinner * 74, 85 Chautauque Co. Bank v. White 105 Chemung Co. Bank v. Judson XIV INDEX TO CASES CITED. Sect'on Cheney v. Garbutt 129, 253 Chichester v. Livingston 140, 190 Cailds v- Geraghty 275 Chittenden v. Missionary Society M. E. Church 290 Christopher v. Mayor of New York 90 Christophers v. Garr 36 Chubbuck v. Morrison 13, 63 Church v. Erben 213 " v. Rhodes 213, 21S, 219, 274, 275, 315, 316 Churchill v. Bennett 90, 92, 94, 105, 156 Clapper v. Fitzpatrick 112 Clark v. Andrews 213 " v. Bard '33 " v. Carnley 256 " v. Crandall 218, 225 " v. Harwood 109, 121, 128 " v. Hutchinson 251 " v. Mayor of Syracuse 90 " v. Metropolitan Bank 174 " v. Pettibone 177 " v. Bowling 74 " v. Van Dusen, 146, 150, 155, 167, 177 " v. Vorce 226 Ckirkev. Crandall 316 " v. Hughes 34, 109, 15S Clarks v. Staring 304 Clason v. Corley 44, 45, 97, 117, 234, 24S "v. " 244 Clerk of Albany Co., in re 304 Hickman v. Clickman 00, 06, 268, 274, 291 Clor v. Mallory 41, 115 Close v. Van Husen 45 Clute v. Clute 274 Coan v. Osgood 158, 196 Coatcs, in re 103 " v. Coates 94 Cobb v. Bows 126 " v. [-'razee 146, 150, 167 " v.Thornton 235,236,238,244,252 " v. Titus 158 Cobee v. Davis 309 Cochran v. Webb 158, 159, 100, 173,216 Coddington v. Webb 92, 255 ( )ohn v. Coit 23 313 Coit v. ( oil 29 "v. " 52,109,132 " v. Laiinbecr 60 < ole v. Jessup S6 '• v. " 3G, 199 " v. 97, 102 " v. . Itevi at 86, 252, 27:; ni v. Wade L57 i Mie v. Brown 290 Collins v. Albany and Boh'o. B. P., Co. 226 .. v u .. .. 2]s " i 803,313 Colli, ml. v. Caldwell 231, 298, 300 6, ii. 70, 7*;, 77, I!!. ' I 96 i Soli In \. Bragdi n 138 i lomb ■•■■ Bab 29, 193, I'll rcial Bank v. White 120, i:;i. ! < lommli '■•:>' i ol ' ralnei \ • Albion Plank Road I o. 289,310 \ . Albany rtbern R R I 90 I , and Syracuse Planli Road Co. 286,310 ton, '" " m v. Green Coautook •• B Section Coinstock v. Doe 193 " v. Halleck 297, 298, 300 " v. Hallock 169 " v. Olmstead 295 Conde v. Nelson 29, 31, 151, 239 " v. Shephard 29,31,151,239 Conger v. Bing 244 Conklin v. Dutcher 70, 97, 98, 99, 102, 277, 284 290 " v. Vandervoort 156, 161 Conro v. Gray, 105, 316 " v. Port Henry Iron Co. 11, 29, 109, 131, 132, 194 Conway v. Hitchins 13, 23. 63, 210, 233, 238, 252, 257, 258, 259, 262, 271, 283 Cook v. Dickerson 92 "v. " 284, 302 " v. " 232,248,256,276,285 " v. Genesee Mutual Ins. Co. 29, 31, 127, 157 " v. Hill 129, 197 " v. Litchfield 108, 130, 161, 199, 206 " v. Newman 252 " v. Bawdon 29, 52 Cooke v. Passage 218, 225, 311 Coon v. Syracuse and Utica R. B. Co. 197, 290 Cooney v. Van Bensselaer 253 Cooper v. Chamberlain 23 " v. Clason 146 " v.Jones 115,121,167 Cope v. Sibley 181 Corlies v. Delaplaine 119, 120, 163, 239 Cornell v. Bennett 23,273 " v. Smith 23 Corning v. Corning 158, 196 " v. Haight 155, 163, 239 " v. McCullough 35 " v. Smith 30, 138, 165 " v. Tooker 105,263,264 " v. Troy Iron and Nail Factory 90 Corwin v. Cor win 34, 156 " v. Freeland 72, 129, 253 Costigan v. Newland 127 Cottrell v. Finlayson 40 Countryman v. Boyer 265 Craig v. Fanning 226 Crain v. B jwley 291 Crandall v. Beach 41, 215 Crane v. Crane .116 " v. Sawyer 25, 135, 313 Crary v. Goodman 10S, 109, 158 Craw v. Daly 273 Crawford v. Whitehead 176 Crist v. New York Dry Dock Bank 2ls, 287 " v. " " " Co. 218,287 Crittenden v. Adams 55, 271, 275, 29 1 Crofts v. Rockefeller 29s Cronk v. Whitaker 308 I Irooke v. Mali 197, 288 Crugerv. Douglass 284,316 " v. " 290 < 'me v. < Irawford 90 1 in ii.- v. Baldwin 115, 16:! " v. Noyea 251, 258 Curtis v. I mi ion 235, 295, 304 " v Kei 9j v. Follett 29 Cuaaon \. Whalon 22, 55, 11:,, 1 r> 1 , 169, 175, 17(1, 182 Cnyler v. Banford 158 1). Dambmnn \. Empire Mill 127, 17 1, 258,264 INDEX TO CASES CITED. XV Section Dana v. Fiedler 284, 302 Daniels v. Hinkston 241 " v. Lyon 235, 298 Darby v. Comlit 142,295 Darrow v. Miller 66, 94, 120, 161, 163, 169, 230, 2.19 Darvin v. Hatfield " v. " Dauchy v. Bennett Davenport v. Ludlow " v. Russell Davies v. Crabtree " v. Cram Davis v. Allen " v. Garr " v. " " v. Jones "■ v. Lounsb'.iry " v. Marshall 29, 244 127, 244 108, 148, 252 205, 294 41 194 36, 194 290 117 29, 30,36,127 22, 117 271 23, 75 v. Mayor of New York 90, 93, 95, 255 Packard " v. Peabody " v. Potter " v. Sehermerhorn " v. Turner Davison v. Waring Dayharsh v. Enos Dayton v Mclntyre De Angelis, in re De Courcy v. Spalding 30 252 112, 156, 161, 163 117 24, 257, 266 302 18, 197, 205, 315 56, 182 19 23 Dolan v. Petty Dole v. Fellows Dollner V- (iibson Dolph v. White Dooiinick v. Eacker " v. Michael Donnell v. Cornell Doolittle v. Eddy Doran v. Dempsey Doremus v. Lewis Dorlon v. Lewis Section 162, 243 67,188 109, 121, 131 230, 284 206, 235 198 273 273,2!)7 252 168 Dorr v. Birge " v. Noxon Doty v. Brown Dean v. Empire State Mut. Ins. Co. 175, 284 Debaix v. Lehind 117, 129 Decker v. Gardner 235, 284, 298 " v. Matthews 130, 206 Dederick v. Hoysradfc 90, 159 Delacroix, in re 35 Delafield v. Wright 19 Delamater v. Russell 74, 126, 253 Delpont v. De Tastet 121 Deming v. Kemp 159 " v. Post 69,212,213 Dempsey v. Tylee 288, 316 Dennison v. Dennison 149, 156, 284, 290 Denniston v. Mudge 195 Denton v. Nanny 29, 30, 133, 244 De Peyster v. Wheeler 117, 196 De Ridder v. Sehermerhorn 27, 126, 130 Desmond v. Wolf 69, 120, 163, 239 Des Places v. Goris Devaissms v. Devai3mes Dewey v. Hoag ' ' v. Stewart Dewitt v. Barley Dexter v. Gardner Diblee v. Mason Diblin v. Murphy Dickerson v. Beardsley " v. Kimball Dickinson v. " Dickson v. McElwain Didier v. Warner Diefendorf v. Elwood " v. House Diefendorffv. Gage Dillon v. Horn Diraon v. Bridges Dix.v. Palmer 121 158 158, 159. 160 300, 301 199 302 41, 196, 238 196 115, 169, 238 156 183, 203 302 284, 302" 154, 238 196' 171 196 90, 105 133, 167 41, 137,183, 231,238 54,55,135, 182,274,275, 276, 285. 2«7 211,213 272, 280 105,213, 262,263,264 157, 199 220, 316 64, 292, 300, 316 213, 225, 312 193 146, 308 23, 273 135, 232 304 196, 198, 206 85, 117, 126, 131, 134 109, 121, 128 68,88 248, 308 Doubleday v. Newton Doughty v. Busteed '' v. Devlin Douglass v. Blackman Douoy v. Hoyt Dowling v. Bush Downing v. Mann Dows v. Green " v. Hotchkws Drake v Hudson River R. R. Co. Dressel v. French Dresser v. Ainsworth 225, 252 " v.Brooks, 55,277,281,291,292, 300, 306 " v. " 291,292 " v. Shufeldt 252 Drought v. Curtiss 153, 172, 264 Droz v. Lakey 218, 232 Drummond v. Husson 70, 230, 284, 300 Duane v. Northern R. R. Co. 10, 289, 290 Dudley v. Hubbard " v. Mayhew Duel v. Agan Duffy v. Morgan Dunaher v. Meyer Dunbar v. Duffy Duuckle v. Kocker Dunham v. Dodge " v. Jarvis " v. Nicholson Dixwell v. Wordsworth ] 1 2 Dobson v. Pearce 108, 157, 159, 160, 199 " v Racey 193,213 Dodd v. Curry 300 Dodge v. Averill 193 " v. Rose 63, 181 Doke v. Peek $9 213, 231 Dunlop v. Edwards Durfee v. Eveland Durkee v. Mott " v. Saratoga R. R. Co. Dutcher v. Slack Dutchess Cotton Man. Co. v. Davis Dutton v. Dutton Dwight v. Enos Dyckman v. McDonald v. Mayor of New York 145, 249 9 68, 129 271 74, 75, 77 21, 297, 306 23, 199, 273 36 90, 105 290 24, 35, 132, 189, 316 289, 293, 315 23 213 and Washington 111, 126, 148 117 Dykers v. Woodward 127 51, 157 236 302 19, 199 45, 156, 249 E. Eastman v. Caswell Easton v. Chamberlin Eaton v. North Eckerson v. Spoor Ecles v. Debeand Eddy v. Howlett Edson v. Dillaye Edwards v. Lent " v. Stewart Eggleston v. Orang R. R. Co. 252 56, 182 181 255, 295, 300, 303, 305 138 13,63 109, 121 121, 156 199 and Alexandria 97 XVI INDEX TO CASES CITED. Section Ehlev. Moyer 171,209,234 Eickhoff, in re 9,308 Ellice v. Tan Rensselaer 256 Eilieott v. Mosier 29, 30, 133, 157, 158 Elliott v. Hart 139, 155 Ellis v.Jones 183 " v. Meritt 23 Ellsworth v. i rOoding 223, 300, 302 Elson v. Xew York Equitable Ins. Co. 231 Elwood v. Diefendorf 35 Emerson v. Burney 284, 285 Eoiery v. Emery 40, 141, 245, 252, 258 Engle v. Bonneau Engs v. Overing Eco v. Crooke " v. Wood worth Enoa v. Thomas Erickson v. Compton Erwin v. Smaller Esmond v. Van Benschoten 252,259,260, 266 138 236 109, 121, 128 31, 126, 130 115, 175 290 213, 220,275,287 Section Fitch v. N. Y. and Erie R. R. Co. 2 Fitzhugh v. Wilcox 28, 1 17 v. Wiman 23(i Fin eg v. Hunger 175,316 " v. Thurber 298 Flaminer v. Kline 156, 161 Fleming v. Hollenback 1 S 1 Fleury v. Brown 156,161 " v. Roget 75,121,156,161 Flint v. Richardson 302 Florence v. Bates 92,94 v. Bulkley 28, 38, 142 Floyd v. Dearborn 108, 109, 121 Flynn v. Hudson River R. R. Co. 41, 44. 48, 137 Esterly v. Cole Estus v. Baldwin Everitt v. Lisk Everts v. Palmer Evertson v. Thomas 29, 193 69, 119. 120, 121, 182 219, 290 236, 269, -.'73, 295 23 194 45 Exchange Bank v. Monteath G7, 137, 183 F. Fabbricotti v. Launitz 119, 121, 146, 159. 174 Falconer v. Elias 77 " v. Ucoppell 54, 145 Falon v. Keese 194 Farmers' and Mechanics' Bank v. Pad- dock 1 Farmers' Loan and Trust Co. v. Carroll 289 •' " v. Hunt 90, 159, 164, 173, 174, 195 Farnham v. Farnham 255 Farrell v. Calkins 23, 235, 27:'. Fay v. Grimsteed 108, 109,117,158, 196, 206 Fellers v. Lee 33 Fellows v. Emperor 22 1 , 315 v. 8heridan 221,300 tewart 194 Ferguson v. Ferguson 278 v. •• 225, 289 L5 "v. 111. 255 Field v 9, 1 12 •' v. Hawxhnnt 1 17. L33, 284, 244 " v. Mayor of New York L28 " v. Mom 11, 12 " 138,248, 253 " v. Stouo;hton Foggv. Child" Follett v. Jewitt " v. Weed Forbes v. Locke Fordv. Babcock " v. Monroe " v. PeeriDg Forrest v. Forrest Forrester v. Wilson Fort v. Bard " v. Gooding 30, 147 23 121. 15.S 67, 185,1-7. 283 300, 306 19,36 231, 304 146 73. 106 73 29,117 90 290 193, 194 " v. " " 295,302 Fort Plain and Cooperstown Plank Road Co.,mre 218,284 Fosgate v. Herkimer Manufacturing and Hydraulic Co. " r. Park Finch v. Cleveland Finohly v Mills Finley v. .) Finnerty v. Ba of Alba iy v. Bay LIS, 117, L21, i 9 51 193 816 29 5 112, L29 276 802 Foster v. Agassiz " v. Bowen " V.Cleveland " v. Hazen ^ " v. Pdell Fowler v. Houston Fox v. Gould " v. Hunt " v. Jackson Eraser v. Greenhill " v. Phelps Frazer v. " " v. Western Frees v. Ford Frost v. Willard Fry v. Bennett Fuller v. Emeric " v. Fullerton " v. Squire " v. Sweet Fullerton v Tayl< r Furniss v. Brown v. " 30, 133 181, 305 300, 306 295 23, 146, 147 145, 249 302 211, 302 196 23 31,96, 103 108, ls^, 212 188, 212 ' 292 is, 15 75. 98, 101 119, 129, 146, 156, L58, 167, 170, 200 73 28 231,303 182, 202 L96, L98, 236 92,94,96, U7. L26 L72 G. Livingston 112 Hudson River R. R. Co. v. Outwater 286 Huff v. Bennett 19,64,219, 220 " v. " 129 Hughes v. Mulvey 231 Hulbcrt v. Hope Mutual Ins. Co. i I, 97 v. Newell 29,52,142 Hulbert v. Fuller 251 Hulce v. Thompson 90 " v. " 126 Hull v. Hull 177 " v.Peters 141,800,806 " v. Smith 121, 161, L68 '« v. " 81 I [umphreya v. Chamberlain 1 16, 166 Hunt v. Farmers' Loan and Trust Co. 90, 108, IV.) " v. Uaih 1*3 v Meaobam 112 Huhi r v. Frisbee 148 v Osterhoudt 197 Iliinl v. lii'cinan 273 •• v. Hunt 158 " v. Learenwortb 238 Hutohinionv. Brand 5, 76, 253,256 " v. Chainbcrlin 252 INDEX TO CASES CITED. XIX Hyatt v. Burr Hyde v. Conrad " v. Lynde Hyland v. Stafford Hynds v. Griswold Section 90 148,157,107 105 313 121 90, 109 316 236 121 63 IddiDgs v. Bruen Ingalls v. Morgan Ingersoll v. Ingersoll Inglehart v. Johnson Ingraham v. Baldwin 29, 133, 149 150, 155 19b, I'M , OLO Irvine v. Forbes 23 > 273 Isham v. Williamson 120, 156, 168, 1<0,239 Section Keator v. Ulster and Delaware Plank Road Co. "j| Keegan v. Western R. R. Co. 1 jl K ^ ler v V ;Knbury 186,187,190 Keep v. Lord 159 Keesev. Wyman ... ™ Keese's Exrs. v. Fullerton 117, 19b Kellogg v. Church ^ '« v. Klock 31, 52, 238, 249, 299, 305 Jacks v. Nichols Jackson v. M'Burney " v. Sanders " v. Wheedon Jacobs v. Hooker James v. Andrews " v. Chalmers " v. Kirkpatrick " v. Patten " v. Stuyvesant Jarvis v. Clerk Jaycocks v. Ayres Jenet v. Dusenbury Jennings v. Fay Jeroliman v. Cohen Jewett v. Jewett »' v. Miller Johnson v. Anderson " v. Cayuga and Susquehanna R. R. Co. v. Jillitt 70, 142, 177, 303, 305 v.Snyder 31,117,132 199 300 117, 196 23, 35 55 313 130, 199 194, 290 284, 289, 290 41 10,289 90 184, 186, 189, 190 158 29, 248 306 115, 117 22, 154 23 Olmsted " v. Paine Kelsey v. Bradbury " v. Griswold " v. Western Kemeys v. Richards Kemp v. Harding Keteltas v. Maybee Keyserv. Waterbury Kidd v. Dennison Kiddle v. Degroot Killian v. Washington King v. Dennis " v. Dowdall " v. Duntz " v. Merchants' Exchange Co " v. " " v. Stafford, " v. Tuska " v. Utica Ins. Co. " v. Vanrlerbilt Kingsley v. Vernon Kinkaid v. Kip Klenck v. De Forest Kloppenberg v. Neefus I Knehne v. Williams Kneiss v. Seligman Knickerbacker v. Aldrich " v. Loucks Knight v. Wilcox Knopfel v. Senfert Knowles v. Gee Krom v. Hogan " v. Schoonmaker " v. Wetmore » v. White " v. Wilson " v. Yeomans Johnston v. Bryan Jones v. Alston " v. Atterbury " v. Bradner " v. Kip " v. Lawlin " v.Osgood " v. Patterson " v. Porter " v. Russell Jordan v. Garrison Judd v. Fulton " v. Young 30, 245, 246 184 199 35 269, 274 213 105, 263, 264 156, 158 85, 103 31,90 22, 154 102 290 23, 56 313 145, 249 284, 290 163, 230, 238, 287 259, 263 121, 156, 168 149, 177 130, 157, 158 112 23,271 74, 253 85,86 148, 149, 150, 167 194 113 129 130 108, 109 92,95 218 K. Kaine, in re Kanouse v. Martin Kasson v. Mills Keating v. Anthony 31, 121, 146, 172 148 90 193 268, 276 63, 139 157 90 101 238, 287 251, 257. 260 199,206, 290 29 259 183 177, 183 56, 144 31, 103 9, 308 296, 300 232 11, 203 289 23, 273 297 Labar v. Koplin 193 Ladue v. Van Vechten 193 Laforge v. Chilson 141 Laimbeer v. Allen 60, 112, 113, 145, 218 v. City of New York Mott Lakev. Gibson Lakey v. Cogswell Lalliette v. Van Keuren Lamoreux v. Morris Lane v. Cole " v. Columbus Ins. Co. " v. Doty " v. Gilbert " v. Gould " v. Morse Lang v. Ropke Langdon v. Wilkes Langley v. Hickman " v. Warner Lanning v. Cole Lansing v. Cole " v. Russell 218 289 66 22, 289, 291 213, 312 184 29 36 158,161,103,238 34, 199, 225 60, 112, 154 39, 225 64 211 27G, 277 292 219, 228, 290 243, 313 295 10, 278, 2S9, 290 199, 219 XX INDEX TO CASES CITED. Section. 158, 1G1 29 252, 308 297, 298 308, 313 Lansingh v. Parker Lasher v. Lasher Latson, in re Launitz v. Barnum " v. Dixon Lawler v. Saratoga Mutual Fire Ins v. Kidder \f Lawton v. Sager £L Leach v. Kelsey 5 IrVm W Learned v. Vandenburgh 5, 44, 100, 101, Leaycroftv. Fowler 175 Lecomte v. Jerome 10J, ^ Ledyard-v. Acker ^° '' v. Jones 5, 256 ( , Vi « 225 Leev. Averill IP :: -Brush 121 » v. Heirberger ^ Leeds v. Dunn \f Lefevre v. Latson i" Leggettv.Mott 218, 287 Lehretter v. Koffman sus Lent v. Hodgman *;>« Lentilhon v. Mayor of New York 232 274 475, 111, Leopold v. Poppenheimer 41, 109, 75, Leroy v. Bedell ' Jg « v. Halsey 259, 2bi " v. Marshall _ 108 Lettmanv.Ritz 1", 1 29, 190 Levi v. Jakeways i". i« Lewis v. Acker f;«|, f°4 « v. Kendall 109, 156, 15b, 167 « v.Smith 29,30,133,244 " v. Truesdell 77 Lienan v. Lincoln 109, 128 Lin v. Jaquays 11- Linden v. (Jraham lzy v Hepburn 19,90,108,109,133, 134, 236, 311 Lindsay v. Sherman 258, 259, 260, 283 Lindsley v. Almy 275 Lintner v. Snyder 34 Lippencott v. ( ioodwin 109, 111, 144 Lippman v. Joelson 141 Litchfield v. Burwell 44, 45,47, 52, 175, 210, 249 v. Pelton 94 Lithaner v. Turner 77 Little v Keon 194 Littlefleld v. Murin 138 Livingston v. (lcaveland 259 " v. l-'inklo 156, 161 « v. Bndson K. It. Co. 88, 90 v. Miller 216 v " 300 v. " 223, 278, 291 v. Etadoliff 219, 228, 290 t. Tanner 128, L83, L99 Lock wood v. [saaci 21 " v. 'I III 213 Logan v. Ferris 258 Loom] ■ v. l»ornliimcr LB0, 168 I ■ v. Ilognri 808 Lord v. Cheiebroagfa 121, 180, 156, 166, i . . L68 Lord st, tabu v. Lad; Bt, John I H [and v Bosmer 168 Lovel] v. Clarke ,; 7, 186 Lovettv German informed Church 11 Section Lovett v. German Reformed Church 255 « v.Robinson irT i« Low v. Payne "i*, 185 Lowenstein, in re ^45, 4oa, £oa Lucas v. Johnson £»» ^ « v. Trustees of Baptist Church of Geneva 17fl Luce v. Trempert y Ludington v. Taft 132, 149, 155, «5, m, Lusk v. Lusk 2 ^ Lyle v. Murray ?° Lyme v. Ward 30 o, 316 Lynch v. Livingston * J <> v. Macbeth 271, 273 « v. Mosher U2, 177 " v.Welch 252 Lynde v. Cowenhoven 440, £d4 » v. Verity U5 > 249 Lyon v. Marshall 206, 225 M. McAllister v. Albion Plank Road Co. 18 McArthur v. Lansburgh 458, 459 McCafferty v. Kelley ^ McCarthy v. Hancock 176, 184 " v. Marsh ^ McCormick v. Kehoe 264 " v. Pickering McCotter v. Hooker 180 McCrackan v. Cholwell 4JO " v.Valentine v.Ware 90,105 McCrane v. Moulton *1 McCurdy v. Brown 85, 128, 131, 199, 23b McDermott v. Palmer 308 ii y_ " oU8 McDonald v. Edgerton 225 McDuffie v. Beddoe 41 McEwen's Exr. v. Public Admr. 45, 171 McFarlan v. Clark 1.4 " v. Watson i -> i McGafflgan v. Jenkins 145, 249 McGowan v. Morrow 121, 158, 299, 314 McGown v. Leavenworth 113, 145 McGregor v. Brown 199 McGuire v. Gallagher n < too Mclvcnzie v. L'Amoureux 29, 10J McKillipv.McKillip 28 McKnight v. Chauncey 91, 94, lit " v. Dunlop 199, 225 McKoan v. Devries 7 McLees v. Avery },\'iJ McMahon v. Harrison 484, im a y t ii 274, 27j McMaster v". Booth 108, 175, 238 McMullin v. GrannisB 36, 19o MoMurray v. Gifford 109, 128, 156, 183, 239 McNamara v. Bitely 22, 154 McSmith v. Van Deusen 251, 254 McSorley v. llogan Maher v. Comstock Mains v. Haight 130,158,252 Mairs v. Kemsen 14 *J Malcolm v. Miller 90,91 Maleom v. Baker l 1 ' Malcomb v. Jennings •'J 1 '* Mallory v Lamphear WJi ; .' 7 Mi heater v. Storrs 146, l.»0 Mandeville v. Whine L36, 139, 146 Manleyv. Patterson 75, 77, h? Mann v. Brooks 40, 00, 92, 234, 248 " v. Faircbild 35 INDEX TO CASES CITED. XXI Mann v. Morewood « v. Tyler Manning v. Guyon << v. Johnson Marquatv. Marquat Martin v. Gage << v. McCormick << v. Vanderlip " v. Wilson Marvin v. Seymour Mason v. Brown << v. Jones « v . « " v. " << v. White Masten v. Scovill Masters v. Barnard Section 23 35 Mills v. Winslow M6 ^ ' 163 Milnv.Vose Reformed Minister, &c., ot ^ •„ „ Wnnrl 2S8 Church of Canajohane v. Wood ^ Minks v. Wolf 92 109 132 Minor v. Terry 30 o Minturn v. Mam 216 231 302 itchdlV v : Montgomery 6 ' ^WeServelt 255,295,300,301, v. liarnara , T n/> v. Madison Co. Mutual Ins. Oo. Mixer v. Kuhn Moffatt v. Ford Moir v. Brown Monteith v. Cash I Montgomery v. EVhs^ 303, 304 177 69, 202, 302, 306 142 23, 273 58,234,230,249 310 Matteawan Co. v. Bentley Mathews v. Beach Matthewson v. Thompson Mattison v. Jones Maxwell v. Farman Maynard v. Talcott Mayne v. Griswold Mayor of New York v. Hillsburgh cc <* v. Pnco V. " « "v. Schermerhorn Mead v. Mead Meakim v. Anderson Meakings v. Cromwell Mechanics' Bank v. James Mechanics' and Farmers' Bank v. Bider^ Megary v. Funtis Megrath v. Van Wyck " v. " Meldora v. Meldora £chant v. New York Life Ins. Co.^ 87. Merchants' Mutual.Ins. Co. of Buffalo Montgomery Co. Bank v. Alta^Crt^ . v. Marsh Moore v. City of New York v. Evans v. Gardner v. Moore r . Eaton Merrick v. Suydam Merrifield v. Cooley Merrill v. Tyler Merritt v. Seaman " v. " " v. Sloeum " v. " «' v. Wing Mersereau v. Pearsall Mesick v. Mesick Messenger v. Fisk Messerve v. Sutton Meyer v. Schultz Mier v. Cartledge Milhau v. Sharp Millard v. Shaw Miller v. Garlock " v. Gunn " v. Hull " v. Lewis " v. Mather " v. " v. Moore 27,29,108,127 74 108,193,235,245 15 < 197 29, 127, 159 13,63,168 65, 66 251 226 194 259 290 158 109, 128, 161 90, 236, 255 132, 146 34 171,268,291 124, 142 233, 252 186,187,190 140 308 v. Penti v. Thayer v. Westervelt v. " Morehouse v. Crilley Morewood v. Hollister Morgan v. Avery v. Bruce v. Frees v. Leland Morris v. Brower " v. Husson Morrison v. Ide Morse v. Cloyes 1 ' v. Crofoot " v. Evans " v. Keyes Morss v. Morss Mosier v. Hilton Moss, in re " v. Averill Mottv Burnett 55, 194 29 129 142, 177 284, 286 244 185 45, 97, 171 295 224 289 109, 128 308 45, 97, 102, 284 218, 208, 287, 290 199 115, 238 221 130, 213, 290 300, 301, 303, 305, 306 157,181, 194,196,197 194 220 252 194, 211 18 303 10, 289 112, 156, 161 " v Moore Millered v. Lake Ontario, &c, R. R- Co. 310 Milligan v. Brophy \\\ Milliken v. Byerly "": " v.Cary 92,108,109,121,128,132 Mills v. Corbett **' »' « v.Thursby Mott v riurnew -- _, Moule v. Macedon and Bnstol FlanK Road Co. TTr . Mucklethwaite v. Weiser Muir v. Leich Mulford v. Decker Mullen v. Kearney Mulligan v. Brophy Mullin v. Kelly Mulvey v. Davison Munson v. Hagerman v. Hegeman v. Willard Murphy v. Darlington v. Kip v. Mooney Murray v. Haskins " v. Smith Muscott v. Miller Myers v. Feeter v. Gemmel v. M'Carthy v. Rasback 310 213, 316 233,252 271 109, 128, 239 24S, 249 175 74 193,197,235,288 193, 197, 235, 288 138 142 122, 225 23 295 206, 225 23 177 90 190 25, 133, 312 N. Neass v. Mercer Neefus v. KloppenburgU 194, 316 109, 128, 131, 151, 163, 239 XX11 INDEX TO CASES CITED. Section Neele v. Berryhill 3, 40, 232, 241 Neff v. Clute 23, 273 Nellis v. De Forrest 284, 300, 301, 303, 305 Nestle v. Jones 295 Neustadt v. Joel 90, 132, 25S New York and Erie R. R. Co. v. Coburn 310 « " v. Cook 194, 197 " " v. Corey 310 New York Fire Ins. Co. v. Burrell 302 New York Life Ins. and Trust Co. v. Eand 64,244 Newbury v. Newbury 66, 90. 94 Newcomb v. Keteltas 143 Newman v. Cook 129, 252 " v. Newman 29 1 " v. Otto 121, 140, 156, 158, 167 Newton v. Harris 277, 292 v. " 290 v. Sweet's Exrs. 295, 297 Nichols v. Jones 119, 146, 156, 161 Nicholson v. Dunham 64, 70, 283, 2S5, 300 v. Leavitt Niles v. Griswold " v. Lindsley " v. Randall Niver v. Rossman Nixon v. Palmer Noble v. Trotter " v. Trowbridge Nolton v. Moses Nones v. Hope Mutual Ins. Co 10, 19, 289 284, 290 158, 198, 297 31 302 180 55 163, 239 218 218, 287 44, 69, 137, 147, 154 235 Norbury v. Seeley North American Fire Ins. Co. v. Graham 121,252,258 Northrop v. Anderson 175, 236, 243, 312 v. Van Dusen 66, 142, 177, 305 Norton v. Coons 130 Noxon v. Bentley 300 " v. " ' 128, 148, 166, 167, 24* " v. Gregory 294 Oakley v. Aspinwall nT.ri.n v. f'atlin " v. Ha^an v. Peten Ogdenabnrgb Bank v Olcott v wood D v. Smith ' >im bead v. Loomii 1 1] in rted r. Brown Olw'-ll v. M I ( Orchard v. < Iron O'Reilly v. I taviea < tobora v. LobdeU Oibornc v. Betl " \ , liarqaand ii v. Bizby Oswego and Byraonae I KlIHt Otll v 1 " v. Sill " v. Bpenoer tonroeppel Owcdh v. A.0K61 on 1, 10, 289 10,19,97, Id I, L99, 245, 289 04,216,21:1,222 71, 97, 101,245 54, 144, 145 171 Paige 199 147 S08 91,92 90 129 111, 245 213,287 297, 298 66, 94 302 20'.) 121, 167, I'll Plank I toad 127 11, 122, 166, 161 ■' I 36, 109, L26, 134, 168 13, 68, 216, '. 22."., 308 169, BOS Section Pack v. Mayor of New York 30, 127 " v. " " 30, 194 Paddock , in re 105 Palmer v. Lawrence 10, 19, 289 " v. " 29, 292 Park v. Carnley 142, 177 " v. Church 40, 241, 248, 252 " v. Hitchcock 23, 273 Parsons v. Brown 199, 206 " v. Nash 159 " v. Pierce 193 " v. Travis 90 Partin v. Elliott 190 Partridge v. McCarthy 239 " v. Thayer 23,271,273 Paton v. Westervelt 40, 256 Patridge v. Ford 313 Patterson, in re 18,64 Pattison v. Taylor 109,121,158 Paulding v. Hudson Manufacturing Co. 23 Payn, in re 69, 308 Payne v. Young 19, 97, 98 Pearsoll v. Fraser 196, 315 Peck v. Elder 29 " v. Foot 271, 308 Peebles v. Rogers 13, 55, 63 Peets v. Bratt 130 Penfield v. AVhite 93 People v. Adams 256 " v. Aichinson 205 " v. Albertson 309 " v. Arnold 34, 157, 167 " v. Banfield 310 " v. Banker 141, 157, 167 " v. Barber 30S, 310 " v. Baron 278, 280 " v. Canal Board 308 " v. Carpenter 193 " v. Clarke 284, 302 " v# <. 34,167,309 " v. College of Physicians and Surgeons 69, 308 " v. Commissioners of Plaintield 286, 310 " v. Compton 90, " v. Cook 309 " v. " 124,142,309 " v. " 206,219, 225 " v. Cooper 19, 28, 308 " v. Cram 159, 193, 198 " v. Uikeman 60, 308 " v. Dodgo 209 " v. Downing 199, 286 " v. IOdmonds 308 " v. Kldridgo 271, 274, 275 " v. (Jilbert 316 " v. (loodwin 308 " v. Hayes 142,177 " v. Ilendrickson L99 " v. Hicks 12 " v. Hulbert 13, 18 , 63,105, 269, 268, 264 " v. King 105 256,264,284 " v. 1 264 " v. Lemmon 19,808 " v. Livingston 84, l. r .7 " v. Mayor of Now York 128, L58, L99, 308 " v. Metropolitan Bank 90 " v. Meyer 160 " V. Newell 808 " v. Norton L97 " v. " 252 INDEX TO CASES CITED. XX111 Section People v. Overseers of Barton 308 " v. Overseers of Ontario 308 " v. Perry 308 " v. Porter 11, 19, 308 " v. Schuyler 5, 86 " v. Sheriff of Westchester 9, 308 " v. Steele 316 " v. Sturtevant 19, 90, 93, 95, 255 "*' v. Supervisorsof Dutchess Co. 308 *" v. " of Fulton Co. 308 " v. " of Greene Co. 308 " v. " of Westchester Co 30S, 310 " v. " " 308 " v. Townsend 308 " v. Trustees of School District 308 " v. Van Dusen 300 " v. Van Leuven 308 " v. Van Rensselaer 34 " v. " " 34, 157, 167 " v. Vermilyea 181 " v. Webb 177 " v. Wood 35 " v. Woods 116 " v. Wright 177 Pepper v. Goulding 218, 287 Perkins v. Cottrell 29 " v.Warren 91,94 Perry v. Griffin 304 " v. Livingston 298, 300, 304 " v. Montgomery 97 " v. Moore 284, 290 Person v. Warren 28,29 Pester, in re 267 Petition, in re a 19 Pettit v. King 126 Phelps v. Brooks 259 " v. Cole 38, 105 Phenix v. Townsend 142 Phillips v. Drake 171 " v. Wright 308 Phincle v. Vaughan 117, 129, 158, 196, 219,284 Picabia v. Everard 69, 176, 234 Pierce v. Crane 251, 252 Pierrepont v. Barnard 158 Pierson v. Cooley 109, 128, 239 Pike v. Lent 74 " v. Van Wormer 111, 126, 129 Pillow v. Bushnell 29, 193 Pindar v. Black 31, 41, 60, 75 Plumb v. Whipples 115, 156, 203, 249 Plummer v. Plummer 40 Poillon v. Houghton 296 Pomroy v. Hindmarsh 75, 90, 91 v. Hulin 141, 164, 182 Poor v. Horton 33, 34 Porter v. Cass 92, 205, 313 " v. Jones 289, 300 v. Lee 236, 243 " v. McCreedy 109, 156, 15S " v. Williams 105, 264 Post v. Coleman 4,40, 112 " v. Westervelt 301 Potter v. Smith 168, 169, 170, 183, 203 Powell v. Rust 297 Powers v. Elmendorf 187 Pratt v. Gulick 130, 158, 199 Price v. Powell 219, 290 Pringle v. Phillips 85 Prior v. Tupper 90 Pugsley v. Aikin 126 v. Kesselbnrgh 22, 273, 289, 291 Pulling v. People 54, 56 Pulver v. Hiserodt 198, 300 Purdy v. Carpenter " v. Harrison Putnam v. De Forest " v. Putnam " v. Van Buren 0- Section 129, 148, 158 271, 275 121, 166 109, 121, 132 171 Quackenbush v. Ehle 213 Quick v. Grant 105, 158 " v. Keeler 35, 132, 189 Quin v. Chambers 121, 163, 166, 169 R. Radcliffe v. Van Benthuysen 55 Radley v. Houtaling 172 Radway v. Mather 109, 151 Rae v. Washington Mutual Ins. Co. 151, 161, 163, 169, 230, 239 Ranney v. Smith 130, 159 Ransom v. Halcott 5, 101 v.Miner 252 Rathbone v. Stanton 225 Rawdon v. Corbin 45 Raynor v. Clark 17. 81, 128, 149, 230, 249, 287, 288 Ready v. Stewart 97 Reddy v. Wilson 6G Reed v. Barber 23, 273 " v. Childs 133, 158, 312 " v. Latson 119, 146, 158, 159 Reese v. Reese 69 Reformed Presbyterian Church of New York, in re 310 Reid v. McNaughton 36 Remin v. Nagle 74 Renouil v. Harris 3, 175, 211, 213, 220, 232, 275 Rensselaer and Washington Plankroad Co v. Wetsel 109,121 Reynolds v. Brown 199 " v. Champlain Transportation Co. 208, 225 V.Davis 19,199 " v. " 233,315 v. Freeman 70,230,280,284,285 " v. Hamil 308 Ricart v. Townsend 109, 126 Rice v. Floyd 289, 290, 316 " v. " 225,290 " v. Wright 302 Rich v. Beekman 277 " v. Husson 194, 235 " v. " 296, 315 Richards v. Allen 213 " v. Varnum 252 Richardson v. Craig 75 v. Wilton 156 Richmond v. Russell 305 Rickards v. Swetzer 183, 231, 238 Rider v. Deitz 305 Ridgeway v. Bulkley 171 Ring v. McCoun 19 " v. Mott 181 Ripple v. Gilborn 29, 133, 155, 236, 238, 243, 312 Ritterband v. Maryatt 21, 256, 258, 259, 270 Robalinda v. Armstrong 28 Robb v. Jewell 224 Roberts v. Gee 190 " v. Law 162 " v. Morrison 130, 230, 284, 300 XXIV INDEX TO CASES CITED. Roberts v. Randel 74, 85, 131 " v. Thompson 190 " v. Willard 86 Eobinson v. Frost 156, 193, 198, 235 " v. Stewart 156 " v. Weeks 265 " v. West 23, 273 " v. " 23 Robison v. Lyle Roche v. Farran " v. Ward Rochester and Syracuse Railroad Co v. Budlong Rochester City Bank v. Suydam 225 190 45 Rockefeller v. Weiderwax Rodgers v. Rodgers Roe v. Rogers " v. Swezey Rogers' Administrator, in re " v. Hern " v- Mouncey " v. Rathbone " v. Rathbun " v. Runyan " v. Wing Romaine v. McMillen Roome v. Webb Roosa v. Saugertie3 and Woodstock 286, 310 108, 109 121 128, 129 300, 306 90, 126, 134 121, 158, 161 30, 34, 126 35 132 316 120 113, 115, 202 310 225, 311 69, 234, 312 90,92 Turnpike Road Go Roosevelt v. Brown Root v. Foster Roscoe v. Maison Rosenfield v. Howard Rosenthal v. Brush Ross v. Clussman Roth v. Schloss Row v. Row Rowell v. M'Cormick Roy v. Harley " v. Thompson Royce v. Brown Ruggles v. Fogg Rundell v. Butler Rusher v. Morris Russell v. Clapp " v. Gray " v. Spear Rutter v. Tallis Ryan v. M'Cannell 120, 166 300 109, 121, 129 112, 159, 166 23, 96, 97, 98 156, 158 95, 258 23, 196 25, 133, 312 55, 275 7, 248 176, 182 109, 146, 156, 15S 141, 159, 297, 298 129 165 109, 128, 156 5, 44, 85, 86, 87, 157 115 105, 264 238 Section Sawyer v. Warner 156, 199 Sayles v. Woodin 109, 156, 158, 167 Schenck v. McKie 13, 55, 56, 63, 64, 144, 177 Schenectady and Saratoga Plank Road Co. v. Thatcher 220, 282 Schermerhorn v. American Life Ins. & Trust Co. 158 " v. AndersoD 276, 277 " v. Develin 63 v. " 69, 175, 211 " v. Golief 271 " v. Mayor of New York 275,316 " v.Mohawk Bank 290 " v. Van Voast 231, 303, 304 Schneider v. Jacobi 141 , 159, 297, 298 " v. Schultz 158, 161 Schoolcraft v. Thompson 40, 60 Schoonmaker v. Reformed Prot. Dutch Church of Kingston 92 Schouton v. Kilmer 252 Schroeppel v. Corning 35 v. " 110, 128 167, 200 316 206 119, 146, 156, 163, 239 213 Schwab v. Furniss Scott v. Becker " v. Pentz Scovell v. Howell Scranton v. Baxter Scudder v. Voorhis Seaman v. Duryea Sears v. Gearn " v. Shafer Seaver v. Robinson Secor v. Roome Seeley v. Chittenden " v. " Seely v. Prichard Selden v. Vermilya " v. " Selkirk v. Waters 31 286 97, 101, 245 35, 157 44 129,253 226, 284 218, 226 275 94, 284, 289, 290, 316 292 193 Seneca Co. Bank v. Garlinghouse 115, 169 Sackett v. Ball 302 3«U)kett'8 Harbor Hank v. Burwell 284 1 v. Drew 29, 127, 128 St. Aniant v. l)e Beixcedon !is, 102 St. John v. West 171,284,290 Sale v. Lawson 13, 63, 252, 258, 269, '.'(, I 64,216 119, M6, 15ftj lei; 167 1 -~>7 ' _> ] '2 146,249 ::o2 286, 288 Saratoga and Washington It. R. Co. \ . McCoy 230,284,800 29 Bales v. Wooden Salinger v. l.u.nk Salter v. Malcolm 't, v l)ownes v. Sands Sanford v. Crangor Sartos v. Hero que i Katterlee v. Pr&zi r v. Darrow " v. Belyea Sawyer v. Schoonmaker 5,76,80, 82, 256 294 300, 305 61, 70, 144,283, 285 57,66,69,111,113 Servoss v. Stannard Seward v. Miller Seymour v. Judd Shaw v. Jayne Sheldon v. Albro " v. Allerton v. " v. Barnard " v. " " v. Carpenter " v. Havens " v. Martin " v. Paine " v. Pelton " v. Weeks 92,94 146, 156, 161, 163, 166, 167 286 108, 109, 128, 129 18, 286 92 302 275 316 126 171 183 5, 44, 70 29, 30 175, 190 105, 2S4, 316 175 199 252 132, 139 269, 273 156, 161 290 290 " v. Wood " v. Wright Shclton v. Westervelt Shepard v. Walker Sheridan v. Mann Sherman v. Hushnell " v. Daggett " v. Pell " v. Rochester and Syracuso R R. Co. 127 " v. Wakeman 86, 206 " v. Youngs 286, 300 Sherwood v. Uttlefield 259 " v. Saratoga and Washing- ton It. R. Co. 23 " v. Steele 177 Shore v. Shore 29 INDEX TO CASES CITED. XXV Short v. May Shuart v. Taylor Siefke v. Tappey Silliman v. Eddy Simmons v. Johnson Simpkins v. Page Simpson v. Loft Section 135, 232 211,213 74 159, 166 213,218 23, 259 166 Sipperly v. Troy and Boston R. R. Co. 109,121,128 Sisson v. Barrett 219, 228, 290 Slocum v. Hooker 31, 169 v. Wheeler 150, 163, 239 Small v. McChesney 274 Smedes v. Wild ' 90 Smethurst, in re 267 Smith v. Austin 95 " v. Briggs 159 v. Brinkerhoff 159 v. Brown 146, 151 v. " 203 " v. Caswell 222 " v. Dan vers 90, 105 " v. Dipeer 19 " v. Edmonds 74 " v. Falconer 23 " v. Greenin 119, 167 " v. Hallock 121, 126 " v. Johnson 262, 264 " v. Jones 305 « v . " 35,159 " v. "Joyce 23, 273 " v. Keeler 297 " v. Lockwood 29, 90, 109, 128 " v. Lowden 294 " v. Lynes 300 « v. « 276 " v. McAllister 34 " v. Maince 308 '' v. Manice 308 « v. Moffatt 90 « v. Norval 142 v. Olssen 141.162 " v.Reno 90,92 " v. Shufelt 122, 156, 163, 239 " v. Waite 121, 158, 199 Snell v. Loucks 219, 287 Snyder v. Andrews 129 v. White 69, 115, 144, 156, 164 " v. Young 295 Southart v. Dwight 188 Southworth v. Curtis 112 , 238 Soverhill v. Dickson 30, 38, 44 Spalding v. King 308 " v. " 308 " v. Spaulding, 77, 85, 86, 117, 126, 131, 134 Spaulding v. Kingsland 289, 290, 316 Spear v. Cutter 90 " v. Hyers 294 Spellman v. Weider 130, 150, 163, 239 Spencer v. Saratoga and Washington R. R. Co. 219, 273 " v. Utica and Schenectady R. R. Co. 213 " v. Wheelock 27, 108, 111, 126, 149, 206, 235 Spicer v. Norton 11, 199 Spies v. Joel ' 74 Sprague v. Cadwell 199 Spring Valley Shot and Lead Co. v. Jackson 298 Springsted v. Robinson 112 Sprong v. Snyder 302 Squire v. Elsworth 238 " v. Flynn 75, 253 Section Stafford v. Onderdonk 298, 306 " v. William3 194, 252 Stalker v. Gaunt 184, 186, 189 " v. " 184,186,189 Stanley v. Anderson 238 v. Webb 129 Stannard v. Mattice 112, 147, 235, 245 Stanton v. Delaware Mutual Ins. Co. 185, 186 Staples v. Fairchild 98 Starr v. Kent 74 Steam Navigation Co. v. Weed 216, 276 Stephens v. Browning 252 " v. Moore 64, 139 " v. Strong 212 Stephenson v. Hall 28 Sterne v. Bentley 141, 235, 245 Stevens v. Eno 252 Stewart v. Bouton 109, 121 v. Elwell 175 " v. Howard 74, 77 v. Kissam 30, 126 Stiles v. Comstock 121, 158, 161, 199 Stimpson v. Reynolds 5, 86, 256 Stimson v. Huggins 231, 232 Stockbridge Iron Co. v. Mellen 109, 121 128, 129 Stoddard v. Cleveland 127 " v. Long Island R. R. Co. 9, 197, 225 " v Onondaga Annual Confer- ence 109, 128, 167, 168, 170, 200 Stokes v. Hagar 120, 163, 239 Stoll v. King 74 Stone v. Carlan 95, 285 " v. " ♦ 90 " v. De Puga 109, 121 " v. Duffy 297, 298 Story v. " 276,285,287 " v. New York and Harlem R. R. Company 269 Stoutenburgh v. Vandenburgh 40, 97, 101, 245, 252 Streety v. Wood 129 Stright v. Vose 259 Striker v. Mott 22 Stroud v. Frith 199, 206, 225 Strout v. Curran 163, 238, 248 Stryker v. Lynch 133, 147, 312 Sturgis v. Law 19 " v. Merry 219, 290 Sturtevant v. Fairman 70, 305 Stuyvesant v. Pearsall 90 Sullivan v. Brewster 308 v. Decker 30, 31, 308 " v. M'Donald 271 Suydam v. Ewing 9, 142 v. Holden 11, 06, 250 " v. Jenkins 85 Swarthout v. Curtis 51 v. " 214, 289, 290 Sweet v. Bartlett 294 Sweezy v. Thayer 244 Swift v. Dewitt 41, 146, 148, 163, 239, 251 , 297 " v. Falconer 23 " v. Hart 225 " v. Hosmer 112, 113 Syme v. Ward 305 T. Taggard v. Gardner 190 XXVI INDEX TO CASES CITED. Taggard v. Roosevelt 313 Tallman v. Green 100, 122, 125 Tanner v. Hallenbeck 5, 35, 76, 250 Taylor, in re 80 " v. Church 158 " v . " 171 " v. Corbiere 56, 130, 151 " v.Gardner 295,297 " v. Mairs 190 " v. North 74 " v. Seeley 273, 300 " v. Stevens 90 Teall v. Van Wyck 130, 197, 271, 277, 315 Temple v. Murray 156, 161 Ten Broeck v. Hudson River R. R. Co. 276, 285, 287 Terry v. Rubel 186, 189 Thatcher v. Bank of the State of N. Y. 290 " v. Dusenbury 90 Thayer v. Mead 171 Thomas v. Clark 305 v. Dickinson 132, 158 v. Harrop 112, 166 Thompson v. Blanchard 64, 220 v. " 193 v. " 277 " v. " 316 v. Dickerson 97, 194, 197, 206 " v. Hopper _ 271 v. Krider 176, 182, 212 " v. Starkweather 284 " v. Valarino 30 Thumb v. Walrath 158, 167 Thursby v. Mills 90 Tilley v. Phillips 10, 289, 290, 316 Tillotson v Hudson River R.R. Co. 90 Tillow v.Vere 260 Tillspaugh v. Dick 300, 304, 305 Tippel v. Tippel 29 Todd v. Cooke 105, 264 Tomlinson v. Van Vechten 45, 23S Tompkins v. Soulice 290 " v. White 126, 133 Toomey v. Shields 135, 138, 232 Towner v. Towner 29 TowDsend v. Townsend 25,133,313 Townshend v. Tanner 90 Tracy v. Humphrey 156, 161, 162, 23s " v. " 231 " v. Leland 74 " v. Reynolds 48,138,139,176 " v. St.. no 298 Trapp v. New York and Erie R. R. Co. 41 Traver v. Silvernail F63, 232, 27fi " v. Traver 25, L83, 308, 812 Travis v. Tobias 11,11. 97, 101, 135 " v. " 117,196,224 Tripp v. Childa L82 " v. Del low 54,274 " v. Ilil.y 119. 15.', I v. Latson 184, 189 Troy and Boston EL El. Co. 7. Lee 286,310 " and Kntland EL I.'. Co. T. Cleveland 310 Truax v. Cluto 68, I (4, 271 Trotcott v Dole 109, L12, L21, 154, 156 v. King 211, 2 is " v. " 296 1 rn teeeofPenn Van v. Porbei 121. 182, 284, 286 ••■ Eta btoii 109, 128, 131 Torek v. EUohmoad 28, 1 17, 273 Turner v. ComHtock 130,151 Union Mutual Ins. Co. v. Osgood 128, 146, 151, 155 Vail v. Rice Valarino v. Thompson Vallance v. King Van Allen v. Humphrey Van Benthuysen v. Lyle 199 30, 245 218, 225 29, 132 55, 248 Van Buren v. Chenango Co. Mutual Ins. Co. 105 " v. Cockburn 29 « v. " 36,133,199 Van Buskirk v. Roy 32 Vandenburgh v. Biggs 37, 246 " v. Van Valkenburgh 86,131 Vanderpool v. Kissam 75 v. Tarbox 130, 196 v. Van Valkenburgh 31,105 157, 199 Vanderwerker v. Vanderwerker 117, 133, 312 Vandewater v. Kelsey 94, 284, 290 Van Gieson v. Van Gieson 168, 173 Van Heusen v. Kirkpatrick 271 Van Home v. Everson 30 " v. Montgomery 55, 112, 183, 238 Van Keuren v. Parmelee 36 Van Kirk v. Wilds 23, 44, 70, 206 Van Namee v. Bank of Troy 130 v. Peoble 146 Van Neste v. Conover 74, 131 Van Orman v. Phelps 236, 243 Van Pelt v. Boyer 138, 144, 199, 238 v. " 159, 294 Van Rensselaer v. Chadwick 5, 44, 137 " v. Dunbar 45 " v. Emery 90, 105, 264 " v. Kidd 295, 302 Van Schaick v. Winne 225, 300, 303, 305 Van Sickle v. Van Sickle 29, 39, 232 Van Sickler v. Graham 295, 302 Van Slyke v. Shelden 313 Van Steenburgh v. Hoffman 213, 287 Van Valkenburgh v. Allendorph 211 " v. Van Schaick 300 Van Vleck v. Bcrrougha 295 Van Wicklen v. Paulson 194 Van Wyck v. Alligor 90 v. " 305 " v. " 305 v. Bradly 263 Vassar v. Camp 132 Vermont Central R.R. Co. v. Northern R.R. Co. 142 Vernam v. Holbrook 45, 64, 70 Vernovy v. Tauney 69 Visscher v. Hudson River R. R. Co. 69, 286, 310 Voorhies v. Boofield 41, -Is, L37 Voss v. Fiolden 181 \ reeland r. Hughea 72, 255, 295 Vrooman v. .tones 171 , 316 " v. Shepherd 34 W. Waddell v. ESmendorf Wadsworth v. Sherman v. Thomas 33, 199 30, 44, 199 33, 36 INDEX TO CASES CITED. XXVll Wagener v. Reiley Wager v. Ide Waggoner v. Brown Wakeman v. Price Waldorph v. Bortle Section 290 168, 206 112, 154, 248 290 30, 133, 171 Walker v. Bank of the State of New York 130 " v. Burnham 295 " v. Hubbard 41 v. Johnson 141, 164, 182, 202, 248 Wall v. Howard Ins. Co. Wallace v. Bond " v. Eaton Walrath v. Killer Walrod v. Ball " v. Bennett Wanzer v. De Baum Ward v. Davis v. Dewey v. Stringham v. Syme v. " 199 177 27,31,147 138 219 155,156,168 74 177 90 41 79, 277 294 294 29 41,238 173 23, 194 109, 121 55, 115, 169. 203, 249 Washington Bank of Westerly v. Palmer 19, 194 Waterbury v. Graham 157, 199 " v. Westervelt 300 " v. " 5, 256 Waterford and Whitehall Turnpike v. Whitney Warner v. Kenny " v. Wigers Warren v. Helmer " v. Struller Washburn v. Herrick v. People Waterman v. Whitney Waters v. Whitamore Waterville Man. Co. v. Brown " " v. Bryan Watkins v. Stevens Watrous v. Lathrop Watson v. Brigham " v. Cabot Bank " v. Hazzard " v. Husson " v. Scriven Watts v. Aikin Weare v. Slocum Webb v. Clark " v. Mott Weber v. Defor Weed v. Foster " v. Raney Weeks v. Lowerre Weisser v. Denison Welch v. Cook " v. " Welles v. Webster Wells v. Danforth " v. " Wendell v. Mitchell, West v. Brewster " v. Fraser Westcott v. Piatt Western Bank Columbus Westervelt ads. Nelson Westgate v. Handlin 205 291 23 197, 199 128, 199 36 252, 264 25,133,238, 312 19, 44, 45, 48, 102 126 10, 119, 130, 167, 277, 289, 291 213, 218 286 7, 54, 41, 117 112, 113 41, 48, 77, 137 90, 127 129 218 180, 225 225 221, 232, 287, 309 69, 236, 276, 309 151 250, 276, 289, 291 275 22, 154 41, 122, 128, 140 105, 264 274, 275 City Bank of 97, 127 295 56,313 Westlake v. St. Lawrence Mutual Ins. Co. 197, 199 Weston v. Hatch 194 Wever v. Marvin 286 Section Whale v. Whale 175 Whalon v. Supervisors of Albany 175 Wheeler v. Cropsey 252 " v. Rochester and Syracuse R.R. Co. 90 " v. Smith 101, 256 " v. Westgate 295, 297 Whipple v. Williams 3, 56, 66, 176, 182, 231, 301, 303, 304, 305 White, in re 284 " v. Ambler 199 " v. Bennett 161 " v. Coatsworth 157 " v. Cummings 112, 113 " v. Featherstonhaugh 102, 13S, 238, 249 " v. Hudson River Fire Ins. Co. 130 " v. Kidd 119,121,146,163 " v. Low 111, 126, 13S, 148, 149 " v. M'AUister 74 " v. Parker 51 " v. White 29 Whitehead v. Pecare 66, 232, 234, 248, 249 Whitlock v. Roth 75 Whitney v. Bayard 272 " v. Kenyon 241, 248 " v. Knows 10, 289 " v. Waterman 121,284 Wiggins, in re 313 " v. Arkenburgh 300 " v. Cans 109,122,140,159 v. " 212 " v. Tallmadge 22, 117, 154, 273, 289 291 Wilcock v. Curtis 64, 144', 238 Wilcox v. Bennett 184, 197, 226 " v. Curtis 231 Wilder v. Baumstauck 40, 241 " v. Seelye 141 Wilkin v. Pearce 182, 291 Willard v. Andrews 302 Willets v. Phenix Bank 130 Williams v. Cunningham 271 v. Eldridge 181 " v. Fitch 275,286,300 " v. Hayes 109, 121 " v. Miller 41 " v. Price 23 v. Sage 176, 182, 212 " v. Sholto 113 v. Upton 166, 169 " v.Wilkinson 115 Williamson v. Moore 65, 67, 171 Willis v. Taggard 159 " v. Underhill 29,117,170,193,194, 196 " v. Welch 218 Wilmerding v. Moon 77 Wilson v. Allen 218 " v. " 300,301 " v. " 220,274,276,277 " v.Andrews 259,261,262,264 " v. Baptist Education Society of New York 286 " v. Onderdonk 274, 275, 285, 316 " v. Robinson 74. 129, 167 " v. Smith 35, 233, 252 " v.Wheeler 85,87,176,306 Wing v. Huntington 289, 290 " v. Ketcham 171 Winne v. Sickles 161 Winslow v. Kierski 23 Wisnerv. Teed 166, 167, 169 Witbeck v. Waine 220, 223, 278, 291 Wolfe v. Van Nostrand 302 xxvm Wood v. Anthony " v. Gilchrist " v. Harrison " v. Lambert " v. Staniels Wooden v. Waffle 109, Woodruff v. Bush " v. Moore Woods v. Morrell Woodward v. Grier Woodworth v. Bellows Woollen Manufacturing end Wordsworth v. Lyon Wright v Douglass INDEX TO CASES CITED. Section 109, 111, 121, 122 129, 196 195 230 156, 207 121, 158, 159, 195, 207 244 36 121 302 103,154,163,170, 182, 235, 239 Co. v. Towns- 275 90 10, 11 , 199, 252 101 Wright v. Douglass " v. Smith " v. Storms Wurts v. Jenkins Wyant v- Reeves Yale v. Gwinits Yates v. Bigelow " v. Blodgett Yorks v. Peck Young v. Colby " v. Hunter " v. Moore " v. Reiner Section 290 28, 250, 294 117 30, 157 41, 238 211,213 140, 156 41, 74, 135 295, 302 277 157, 161 23 23 INTKODUCTION. Encouraged by his former success, the author of " Practico and Pleading under the Code" has felt it due to himself and to the public to issue a second and revised edition, in lieu of the first, which for some time has been exhausted. Though varied in details, the general plan of the work remains identical. It may, therefore, be convenient to state that plan in the words of the original Introduction, and to mention afterwards the amendments that have been made. After noticing the various circumstances which induced such an undertaking on the part of the author, the original Introduction proceeds as follows : " To supply the void thus existing, is the attempt proposed in the compilation of the present work, in which the objects of a Commentary and of a Book of Practice are sought to be com- bined, in a practical spirit and with practical views throughout. All mere discussion has accordingly been studiously avoided from first to last, so far as was possible, consistent with a due investigation into the various difficulties which have from time to time been raised as to the interpretation of the measure. That so little of insoluble difficulty should have arisen, forms the best eulogium upon the Code itself — effecting, as it un- questionably has effected, a revolution in the previous system, which, for extent and boldness, stands unparalleled in the annals of legal reform. "The scope of the work may be thus briefly stated: A sketch of the different tribunals of Civil Jurisdiction is first given. The general prerequisites to the assertion of remedies XXX INTRODUCTION. in those tribunals, is next considered. The progress of an ordinary suit in the higher courts is then taken up, and prac- tical directions given for its conduct and management by both parties, from its first outset to its final result. This important subject having been fully considered in all its branches, the nature and characteristics of special proceedings are shortly adverted to, and the work concludes with a brief notice of the retrospective effect of the Code, and an Appendix of Forms. " In treating of these subjects, the enouncement of any pro- position unsupported by positive authority, has been carefully avoided ; and, where the decisions on any given point have been conflicting, the author has stated those on both sides, as impartially as lay in his power, whilst drawing his own con- clusion. He has, too, adopted the principle of confining him- self to the citation of decisions pronounced under the actual operation of the Code, to the exclusion of cases decided before its passage, or by the English tribunals. Though concurrent on many points, and consistent on more ; on others, and those of the most important nature, the old and new systems are at absolute and irreconcilable variance with each other ; and a fortiori, is this the fact with respect to English authorities. Their applicability is at the best illustrative ; it cannot be held to be direct under any circumstances. " The general tenor of the work presupposes likewise an acquaintance on the part of the student with the elementary and other works in relation to the practice under the old sys- tem. For some time to come, this will remain a matter, not of choice, but of necessity, though that necessity will lessen in degree with every recurring year. All details of proceed- ings governed exclusively by the old system will therefore be rigidly excluded, whilst indicating the sources whence those details may !><• gathered ; and the present work will be strictly and professedly confined to the new, as contradistinguished from tlm i. M practice. "The Code and Rules will necessarily form the subject of constant citation, the more important provisions of the former being inserted in the text. In quoting from the Revised Sta- tuteSj the references are made to the marginal paging. ' : ln preparing the appendix of Forms, succinctness has been INTRODUCTION. XXXi studied, and no attempt made to give precedents of mere state- ments of fact, apart from those clauses which are of general and not of particular application." To the plan as thus laid down in the outset, the author has still rigidly adhered. The great doubt which has arisen in his mind has been as to the expediency of incorporating in his work the remnants of the old practice, in relation to special proceedings and other matters unaffected by the Code. After much deliberation, he has decided against this course. The standard works on that practice still form, and must for some time continue to form, an indispensable requisite to the library of a practising lawyer. In those works the settled course of proceeding in these cases will be found accurately defined ; whilst the recent decisions, as far as matters of mere practice are concerned, are comparatively few and unimportant. Were there any prospect that the former practice in these matters would be permanently established on any thing approaching to a fixed basis, a refusion of the present information on the subject would be a highly desirable adjunct to a work of this nature. But such is not the case ; and, however indisposed, and justly indisposed, the Legislature may be to interfere fur- ther with the workings of the Code itself, until time has been given to mature and test the system as it now stands, the same argument does not apply to the balance of the original report of the Commissioners. It is not only highly probable, but it seems even essential to the proper working of the system of legal reform already commenced upon, that the Legislature should make some disposition of the subject as regards the remaining branches of procedure. Whenever this anticipated disposition takes place, the details of the old practice will at once become wholly, as they are now partially, obsolete ; and in the meantime they can best be gathered from the existent standard works upon the subject. To compose a supplement- ary treatise would therefore be an ephemeral labor ; and, when composed, that treatise would, in all probability, become speedily an excrescence on the face of a work devoted to the consideration of what has been accomplished, not what is pro- jected. Such a treatise would be either wholly conjectural, on xxx ii INTRODUCTION. the one hand, or a mere recasting of already digested informa- tion, on the other. For these reasons, then, the author has determined to adhere to his plan as first laid down. In matters of mere arrange- ment he has, however, made considerable alterations in the general plan of the work, and which he trusts will be found improvements. The references to decided cases have been brought down to the latest period, and the conclusions through- out subjected to a careful revision in connection with the new light thus thrown upon them. The book has been in fact in a great measure re-written, though with the incorporation in it of the old material. With a view to the greater convenience of reference, the text has been arranged throughout in sections continuously numbered, each section containing a specific sub- ject, and those sections again subdivided into dependent titles, according to the different minor subjects involved in each; and, in accordance with another suggestion from parties of high eminence in the profession, the text of the Code itself has been appended in a separate and integral shape. Additions have also been made to the appendix of Forms, with a view to their greater completeness and utility. These various changes have of necessity increased the bulk of the work, and necessitated its division into two volumes. The authorities on which the different positions advanced in the text are grounded, and which embrace all cases decided on points of practice, since the original passage of the Code, are as follows : Comstock's Reports, 4 volumes, cited as " Comst." Seidell's Reports, 1st and part of 2d volume, cited as "Seld." Notes of Decisions of Court of Appeals, issued in anticipa- tion of the regular Reports, each case being noticed by the date of the decision. Barbour's Supreme Court Reports, vols. 2 to 15 inclusive, cited as " l>;irb." Sandford's Superior Court Reports, 5 volumes ; cited as "Sandf." liner's Superior Court Reports, 1 volume ; citod as " Duer." INTRODUCTION. xxxiii Howard's Practice Reports, Vols. 3 to 8 inclusive, and part of Vol. 9; cited as "How." The Legal Observer, Vols. 5 to 11 inclusive, and part of Vol , 12; cited as"L. 0." The Code Reporter, 3 volumes ; cited as " C. R." Do. do. New Series, 1 volume ; cited as " 1 C. R. (N. S.)" N. B. — The balance of the 2d and part of the 3d volume of Selden, a further part of volume 9 of Howard, and additional numbers of the 12th volume of the Legal Observer, will doubt- less be received while the work is going through the press, and will be included in the text as far as possible. With these preliminary remarks, the author submits the result of his renewed labors, in the humble hope that they may be as indulgently appreciated, and as cordially supported by the profession and the public, as was the case with respect to the original publication. VOL. I. — l SUPPLEMENTARY NOTICE. XXXvii Rule 41, as to marking folios, is now made expressly appli- cable to affidavits ; note at vol. I., p. 162. Rule 20, inserted on last revision, imposes additional restric- tions on applications for time to answer, by requiring merits to be sworn to on those applications. Note change, at vol. I., pp. 178, 449. On the same revision, Rules 20 and 21, of 1852, were stricken out altogether, the general powers of the judges being sufficient for the purposes for which those Rules were made, without the necessity of any special provision on the subject. Note, under the heads of Motion to dismiss, and Post- ponement of Trial, at vol. I., pp. 569, 609, 672. As to the waiver of defects in a summons or complaint, by a general appearance on the part of the defendant ; note, at vol. I., p. 427 ; Beck v. Stephani, 9 How. 193 ; Van Namee v. Peohle, 9 How. 198. Corwin v. Freeland, 6 How. 241, has been reversed by the Court of Appeals, 2 Seld. 560. Note, vol. I., p. 387 ; vol. II. pp. 105, 106. This case seems to settle the doctrine that, if a provisional order for arrest be obtained by the plaintiff, and not set aside by the defendant, the latter will afterwards be arrest- able on execution, whatever the nature of the action. In relation to the judge's discretion with reference to the security on an arrest, and the evidence on which an order for arrest should be granted ; note Gourter v. McNamara, 9 How. 255, at vol. L, pp. 217-220. Refer to same case, as regards security on an injunction, at p. 263. As to refusal of an injunction, when plaintiff's right to it is not clear ; note Sebring v. Lent, 9 How. 346, at vol. L, p. 253. As to the law of domicil, note Lee v. Stanley, 9 How. 272, at vol. I., p. 279. In relation to actions by receivers, refer to Wheeler v. Wheedon, 9 How. 293 ; St. John v. Denison, 9 How. 343 ; Seymour v. Wil- son, 16 Barb. 294 ; and Haynerv. Fowler, 16 Barb. 300 ; at vol. I, p. 303 ; vol. II., p. 142. As to the course of adverse party, on a defective verification, note Strauss v. Parker, 9 How. 342, at vol. I., p. 329. Refer to same case, as regards omission to number causes of action, at vol. I., p. 328 ; and also to Van Namee v. Peoble, 9 How. 198, and, per contra, to Robinson v. Judd, 9 How. 378. Note Strauss v. Parker also, at vol. I., p. 334, as to return of defective pleading. XXXviii SUPPLEMENTARY NOTICE. As to an amendment on terms, refer to Vanderbilt v. Accessory Transit Company, 9 How. 352, at vol. I., p. 344. As to the making a pleading more definite and certain, note same case, and also Welles v. Webster, 9 How. 251, at vol. I., p. 363. As regards the fusion of law and equity effected by the Code, note Miller v. Losee, 9 How. 356, at vol. I., p. 306. As regards an omission to state the title of the cause in the complaint, refer to Van Namee v. Peoble, 9 How. 198, at vol. I., pp. 119, 366. With reference to the objection on the ground of separate causes of action not being separately stated, see Van Namee v. Peoble, 9 How. 198 ; Wood v. Anthony, 9 How. 78 ; Gooding v. McAllister, 9 How. 123 ; Strauss v. Parker, 9 How. 342 ; and Robinson v. Judd, 9 How. 378. Note, at vol. I., pp. 369, 463. As to misjoinder of causes of action in general, see Welles v. Webster, 9 How. 251 ; Colwell v. The New York and Erie Railroad Company, 9 How. 311, and Spier v. Robinson, 9 How. 325. Note at vol. I., pp. 370, 461. Make further note of Welles v. Webster, at vol. I., p. 378, with reference to profert by an executor. In relation to protest of a note, see Van Vechten v. Pruyn, 9 How. 222, and Hunt v. Maybee, 3 Seld. 266. Note, at vol. I., p. 395. As to proceedings in the nature of a creditor's bill, refer to Wheeler v. Wheedon, 9 How. 293, at vol. L, p. 405. As to Injunction ; note, at vol. I., p. 407, Sabring v. Lant, U How. 346. As to an action on a policy of insurance, not importing on its fece any interest in the holder, refer to Williams v. Insurance Company of North America, 9 How. 365, at vol. I., p. 403. As to tli'' effect of the giving of a promissory note, note at vol. I., i». 398, Lah v. Tysen, 2 Seld. 461 ; note also, at p. 399, Gilbert v. Danforth t 2 Seld. 585, as to a note payable in specific articles, instead of cash ; and likewise Austin v. Barns, 16 Barb. 648, as to the mode of suing upon an instrument containing other stipulations, in addition to a promise to pay money. A to an action on a cheque, note Chapman v. White, 2 Seld. 412, at vol. I., p. tOl. Refer, also, at p. 398, to Black v. Caffe % '•> Seld. 281, as f" an action on a bill of exchange. As to a suit against an insolvent corporation, note, at vol.1., SUPPLEMENTARY NOTICE or RECENT DECISIONS, ANDCHANGESIN RULES. INTRODUCTION. Since writing the foregoing Introduction, the additional reports there alluded to have appeared, and the cases cited in those reports have been noticed, in all portions of the text not actually gone through the press at the time of their appearance. The changes in the Eules on the revision in August last, are similarly noticed in the larger portion of the second volume, and the text is given in full in the Appendix; the first was complete before their revision. The 16th volume of Barbour's Eeports also appeared on the very morning on which these notes were called for by the printer. The author has, however, delayed the press, in order to insert, in the following pages, a reference to the cases reported in that volume. The constant remodelling of completed portions of the work, involved in the fulfilment of his pledge to that effect, has not been the least of that author's labors; but he has steadily kept in view the object of making his work, as far as practicable, a synopsis of all reported cases and settled points of practice, down to its actual publication. In order to the complete attainment of this object, it remains to notice the different decisions, and the different alterations in the Eules, which it was impossible to include in the actual text. That notice will be found in the following portions of this chapter ; and a short notice, in pencil or otherwise, in the margin of the different pages below referred to, of the particu- xxxvi SUPPLEMENTARY NOTICE. lars below given, will enable the reader, by a simple and easy process, to direct his attention to the subjects in question, and to obtain a sufficient reference to them for all practical pur- poses. NOTICE. Note Lynch v. Livingston, at vol. I., p. 3, as affirmed by the Court of Appeals. 2 Seld. 422. In relation to the liability of the sheriff for a false return, note Bacon v. Cropsey, 2 Seld. 195, at vol. I., p. 6. Note further, revision of Rules, at vol. I., p. 25. For text of Rules, as so revised, see vol. II., p. 643. It must be borne in mind that, from No. 67 downwards, the numbers of the Eules of 1852 were changed in that revision : deduct one, therefore, from the references in the first volume, in each Rule above that number ; Rule 68, of 1852, becoming, on that revision, Rule 67, of 1851, and so on, down to the concluding Rule, which now numbers 89, instead of 90. As to suits against stockholders of an insolvent manufactur- ing company, see Bogardus v. Rosendale Manufacturing Com- pany, 3 Seld. 147. Note at vol. I., p. 72, and likewise at p. 79, in relation to unknown defendants. As to the rights of the wife, and husband and wife respect- ively, and their joinder as parties, see Rusher v. Morris, 9 How. 266 ; Sleight v. Read, 9 How. 278. (affirmed by general term of first district, but affirmance as yet unreported;) Whittemore v. Sloat, 9 How. 317 ; Noyes v. Blakeman, 2 Seld. 567 ; Ellicott v. Mosler, 3 Seld. 201, (affirming 11 Barb. 574.) Note, at vol. I., pp. 65 to 68. Note also at p. 67, affirmance of Lewis v. Smith, in Court of Appeals, as reported 12 L. O. 193. As to the remedy of interpleader, note Beck v. Stephani, 9 How. 193, at vol. I., p. 82. Rule 53 is now amended, by removing the restrictions for- merly imposed, as regarded the appointment of a guardian ad lit/ in, bo far as respects the class of common law actions. Refer to alteration, at vol. I., p. 148. The Rule, as it now stands, also provides as to the course which maybe pursued, on appointing a next friend for a married woman. Note this alteration at vol. i., ] i. 65. As to service by mail, as applicable to notice of protest, refer to Van Vc be bound by the decision in Mdvoan V. Devries, and allowed a party not an attorney, to appear for another, on bis due compliance with the requisites imposed by the provision in question. JUDICIAL AND OTHER OFFICERS. 9 Two branches of the Supreme Court are thus in direct conflict on the subject of the above provision, and it seems a matter .to be regretted that the particular question has not yet been set at comparative rest by the decision of a general term of that court. The point as to whether parties may or may not act wisely in availing themselves of the facilities hereby granted, is entirely beside the question. Any right of whatever nature, constitu- tionally given by the legislature in the regular exercise of its powers, cannot constitutionally be taken away by any subordi- nate authority, on any forced construction, or on any consider- ations as to its convenience or inconvenience. The legislature, in the ordinary exercise of those powers, have passed the en- actment in question, such as it is ; that enactment being, more- over, one calculated rather to extend than to abridge the general liberties of the citizen : and if that enactment can by any con- struction be carried into effect, without a direct and positive violation of the constitution, the courts, it may well be contend- ed, are bound to give it that effect, whatever, may be their own views on the subject; and certainly the general doctrines as to constitutionality or unconstitutionality as laid down in Beecher v. Allen, seem, when examined, preferable to those maintained in McKoan v. Devries, and the other cases to the same effect ; the former being, moreover, a decision of the general, and the others of the special term. In Boy v. Harley, 11 L. 0. 29, 1 Duer, 637, the question was brought before the Superior Court ; and, although the point of constitutionality was not directly passed upon, but is on the contrary expressly avoided, the general scope of the opinion of Bos worth, J., given on consultation with the other justices, seems to infer that, if made in due form, such a nomination might be sustained by that tribunal. It was held that full and satisfactory evidence of the appointment itself, and also of the good moral character of the party named, must be adduced, and an order of the court must then be obtained and entered, and subsequently incorporated in the judgment roll ; after which order, such party may proceed in the action, and his proceedings will then be regular, unless the provision of the Judiciary Act in question be unconstitutional. The above conditions pre- cedent to the validity of such an appointment, not having been complied with in that particular case, the proceedings of the parties there in question were declared irregular and set aside. 10 COURTS OF JUSTICE. CHAPTER II. OF THE DIFFERENT COURTS OF JUSTICE "WITHIN THE STATE OF NEW YORK. § 8. Courts, List of. In section 9 of the Code, a list is given of the different tribu- nals within the State, and, in the following section, their then present jurisdiction is saved in all cases, except as otherwise prescribed by that Act. The list in question is as follows : 1. The court for the trial of impeachments. 2. The Court of Appeals. 3. The Supreme Court. 4. The Circuit Courts. 5. The Courts of Oyer and Terminer. G. The County Courts. f J. The Courts of Sessions. 8. The Courts of Special Sessions. 9. The Surrogates' Courts. 10. The courts of justices of the peace. 11. The Superior Court of the city of New York. 12. The Court of Common Pleas for the city and county of New York. 18. The Mayors' Courts of cities. 14. The Recorders' Courts of cities. 15. The Marine Court of the city of New- York. 10. The Justices 1 Courts id the city of New-York. 17. The Justices' Courts of cities. 18. The Police Courts. It. will of course be observed, that, valuable as an official list of the different courts of justice unquestionably is, still, as rc- rds the operation of the Code itself, that list is in part irrele- COURTS OF JUSTICE. H vant, many of the tribunals enumerated being neither directly nor indirectly affected by its provisions. Those provisions relate simply and solely to civil, and trench in no manner upon the limits of either criminal or police jurisdiction ; and there- fore the proceedings in Nos. 1, 5, 7, 8, and 18, which courts fall exclusively within one or the other of the latter categories, are entirely without their scope. The Surrogate's courts, (No. 9,) being tribunals exercising special statutory jurisdiction, are likewise in no manner affected by the recent changes. Proceedings in them, and the review of those proceedings, are, on the contrary, exclusively and en- tirely governed by the provisions of the Revised Statutes. The marine and justices' courts also, Nos. 15, 16, and 17, though their jurisdiction is defined by the Code, and the gene- ral course of practice in them laid down by title VI. of part I. of that measure, are likewise mainly governed by other statu- tory provisions. The course of proceedings in those courts is essentially different in all its main features from that pursued in those of higher jurisdiction, and remains substantially the same as heretofore. No attempt has accordingly been made by the author to enter into the full details of their practice, his ob- servations on the subject being confined to a mere reference to the enactments of the Code as regards the tribunals in question, and a citation of the different reported cases which bear upon the appellate jurisdiction of the higher courts in relation to the review of their decisions. To have attempted more than this, would have involved the composition of a separate and in- dependent treatise, upon a subject unconnected with the general operation of the Code, and one moreover already separately dealt with by others. § 9. Federal Courts, Jurisdiction of. Before proceeding to the detailed consideration of the juris- diction and functions of the different tribunals comprised in the foregoing list, another subject seems to require at least a cursory notice, though in strictness of a collateral nature ; that subject being the exclusive or concurrent jurisdiction of the federal courts in certain cases. To enter into any lengthened discussion upon the extent and exercise of that jurisdiction, would be of course beyond the limits 12 COURTS OF JUSTICE. of the present work ; while, on the other hand, to omit all re- ference to it might lead to serious inconvenience. The better course appears to be to give a slight sketch of its extent and boundaries, and then to leave the matter open for the further re- searches of the student, merely indicating the sources through which those researches may best be prosecuted. He cannot take a better guide for this purpose than the first volume of the invaluable commentaries of Chancellor Kent, part II., consulting, in particular, Lectures XIV. to XIX. inclu- sive, with the different statutory provisions and authorities there cited. The summary contained in the first volume of Conkling's treatise will also be found succinct and trustworth}^. An attentive perusal of these two works will be sufficient to give a good general idea upon the subject, and to suggest the further course of reading by which its details may be fully mastered. Without pretending, therefore, to give more than a mere sketch of the jurisdiction in question, that jurisdiction may be defined as threefold — 1. The original and exclusive, 2. The concurrent, 3. The appellate authority possessed by the courts referred to, within the limits of the State sovereignties, and which authori- ties are exercisable, the two former by the District and Circuit, and the latter by the Supreme Court of the United States. The original and exclusive jurisdiction of the federal tribu- nals extends to controversies of the following nature : 1. To cases between two States. 2. To cases where a foreign ambassador, minister, or consul, or the domestics of the two former, are parties defendants. 3. To cases in which a State is defendant, save only as re- gards controversies between a State and its own citizens. 4. To c;iscs arising under the patent or copyright laws, or the revenue laws of the United States. .'». Tn else:-, of admiralty or maritime jurisdiction; and, 6. To criminal cases arising within the limits of that juris- diction, or cognizable under the authority of the United States. In Dudley v. dfayhew, 8 Comst. 1), it was held by the Court of Appeals in this State that, in cases falling under class 4, the Stall- courts cannot exercise jurisdiction even by consent. The persona] privileges under class 2 seem, however, capable of being waived by continued non-assertion, though the right COURTS OF JUSTICE. 13 of asserting them can never be barred, but may, on the contrary, be exercised at any stage of any proceeding in the local tri- bunals. See this subject more fully considered hereafter, under the head of parties defendants in actions in the courts of this State. The concurrent jurisdiction of the federal tribunals may be shortly stated as comprising, 1. All cases in law or equity, arising under the Constitution, laws and treaties of the United States ; or where an alien sues for tort in violation of the law of nations. 2. Cases wherein foreign ambassadors, consuls, &c, are plain- tiffs. 3. Cases wherein the United States are plaintiffs. 4. Controversies in which a State is plaintiff, and individuals are defendants. 5. Controversies between a State, defendant, and its own citizens. 6. Controversies between citizens of different States, or between citizens of the same State, claiming lands under grants of dif- ferent States. 7. Controversies between a State or the citizens thereof, and a foreign state. 8. Controversies between citizens and aliens. The jurisdiction under classes 3, 6, and 8, is, however, limited to cases where the value of the thing in controversy exceeds live hundred dollars; the amount of the claim itself, and not of the recovery, being the criterion of value. Where exercisable, the jurisdiction in cases of this description is so far paramount, that they are removable from the State court to the federal tribunal by authority of the latter, by means of a proceeding analogous to certiorari. See Kent Com. vol. 1, p. 303. See also Field v. Blair, 1 C. E. (N.S.) 292, 361 ; Suydam v. Ewing, Id. 294. In cases falling under Nos. 6 and 8 of the last-mentioned classes, it is essential that the facts conferring jurisdiction should appear on the face of the record, or the federal tribunal cannot take cognizance of them at all. In particular, where one party is an alien, the citizenship of the other must be affirmatively shown, the jurisdiction of the federal courts not extending to suits between one alien and another. See 1 Kent, 344 and 345, and the cases there cited. The appellate jurisdiction of the federal tribunals extends, in 14 COURT OF APPEALS. the last place, to all cases in which any decision shall have been pronounced by the highest court of any State, repugnant to the Constitution, treaties, or statutes of the United States, or draw- ing in question any commission issued or authority conferred by the general government. The extent of this jurisdiction will be found defined at 1 Kent Com. p. 299 and 300; and the whole of the lecture, No. XIV., in which that passage is contained, and the following one, No.XV ., in which the subject is more fully entered upon, and various authorities are cited, demands and should receive the student's most careful attention. On questions of commercial law, the decisions of the Supreme Court of the United States ought to be regarded as paramount and controlling. Stoddard v. The Long Island Railroad Company, 5 Sandf. 180. In relation to the possible conflict of jurisdiction in matters falling equally within the cognizance of the federal and State tribunals, vide The People v. The Sheriff of Westchester County, 10 L. O. 298 ; and likewise in reference to the issue of warrants by an United States Commissioner, In Re Kaine, 10 L. O. 257; and In Re Eickhoff, 11 L. O. 310. See also, as to the light in which the federal jurisdiction is generally regarded in the State courts, The Chemung County Bank v.Judson; Court of Appeals, 12th April, 1853. CHAPTER III. OF THE COURT OF APPEALS. § 10. Jurisdiction and Poiocrs of. PROCEEDING then upon the consideration of the jurisdiction ; office of each of the different tribunals whose practice is affected by the Code of Procedure; the first in dignity and im- is the Court of Appeals, the tribunal of last resort, spt in those few cases arising on points of constitutional law, in which, as before noticed, the appellate jurisdiction of the reme Couii of the United States may be invoked. Such being the constitution and powers of the Court of Ap- COURT OF APPEALS. 15 peals, it need hardly be remarked, that its reported decisions are of the highest authority ; and that a principle of law once estab- lished by one of those decisions, is, as a general rule, conclusive upon the inferior jurisdictions, until either reversed or modified by the same tribunal, or by the paramount authority of the federal court of appeal, in cases where that jurisdiction may be invoked — see Palmer v. Lawrence, 1 Seld. 889 ; and this is the case, even where the judgment so pronounced appears to have been arrived at, by a process which the court below may consi- der in itself unsatisfactory. See Oakley v. Aspinwall, 1 Duer ; 10 L. O. 79, by the majority of the court. See however the dis- senting opinion of Bosworth, J., in which the contrary doctrine is advocated in great detail and with great force. The above propo- sition is, as a general rule, incontestable. It is not, however, without exceptions in a modified degree. Thus in Wright v. Douglass, 10 Barb. 97, where, on the new trial of the cause, new evidence was introduced, which removed the principal ground of the reversal of their former adjudication by the Court of Ap- peals, the Supreme Court regarded itself at liberty, on such new evidence, to declare the same judgment it had formerly rendered. In NicholsonY. Leavitt, 4 Sandf. 253, 9 L. 0. 105, the general term of the Superior Court in like manner refused to be bound by the opinion delivered by the presiding judge of the Court of Appeals in Barney v. Griffin, 2 Comst. 365, on the ground that it did not appear that the other judges of that court concurred in the views there laid down ; and, in a recent case of Boiven v. Newell, as yet unreported, the same tribunal has reasserted a similar independ- ence, and even reaffirmed its previous conclusions on a point of commercial law, in opposition to the view taken by the Court of Appeals, on the ground that the authorities in support of that view, though apparently passed upon, had not in fact been distinctly brought to the notice of the latter tribunal. In Whitney v. Knows, however, 11 Barb. 198, a less bold view was taken by the special term of the Supreme Court, and the decision in Grif- fin v. Barney was looked upon as a controlling authority. The court in question occupies the place and exercises the powers of the Court of Errors under the old system. The pro- visions on its original creation will be found in article (J of the constitution of 1816, and also in article 2 of the Judiciary Act, laws of 1847, c. 280. It consists of eight judges — four elected by the electors of the State, one at the expiration of IQ * COURT OF APPEALS. every two successive years, and four selected from the justices of the Supreme Court; the judge of the former class having the shortest time to serve, being, from time to time, the chief judge ex officio. Its sittings were at first intended to be migratory, and were held in turn in each of the different judicial districts; but, by section 18 of the Code of 1851, they are now perma- nently fixed for the future at Albany, where four terms are to be held every year, at the periods therein specified, with a power to appoint additional terms when required by the public interest. The following are the provisions of the Code, as last amend- ed, on the subject of the important jurisdiction exercisable by this high tribunal : § 11. The Court of Appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination hereafter made at a general term, by the Supreme Court, or by the Superior Court of the city of New- York, or the Court of Common Pleas for the city and county of New York, in the following cases, and no other : 1. In a judgment in an action commenced therein, or brought there from another court; and upon the appeal from such judgment, to re- view any intermediate order involving the merits, and necessarily affect- ing the judgment. 2. In an order affecting a substantial right, made in such action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken. 3. In a final order affecting a substantial right, made in a special proceeding, or upon a summary application, in an action, after judg- ment. lint sadi appeal shall not be allowed in an action originally com- menced in a court of a justice of the peace, or in the Marine Court of tin; city "! New Voik, or in an assistant-justices' court of that city, or in a justice's court of any of the cities of this State. B l_\ The Court of Appeals may reverse, affirm, or modify the judg- or order appealed from, in whole or in part, and as to any or all ,,f the partie ; and its judgment shall be remitted to the court below, t,, |,.- lci or ding to law. On reference to the corresponding section in the measure of a it uin be seen that the reoent amendments materially ex- tend the exercised by this court, the whole of subdivision 2 being entirely now. COURT OF APPEALS. 17 In the Code of 1851, a fourth subdivision was added, by which an appeal lay to this court in an order granting a new trial. The latter provision was probably inserted in consequence of the decisions in Duane v. The Northern Railroad Company, 3 Comst. 545, 4 How. 364, 3 C. R. 72 ; Lansing v. Russell, 2 Comst. 563, 4 How. 213 ; and Tilley v. Phillips, 1 Comst. 610, 3 How. 364, 1 C. R. Ill : in all of which it was held that orders of this na- ture were not proper subjects for the interference of the appel- late tribunal; both because they could not be held to come within the description of "a final determination of the rights of the parties in the action," the definition of a judgment in section 245, and also inasmuch as they were in their nature matters addressed to the discretion of the court below, with the exer- cise of which discretion the higher tribunals have hitherto ; as a general rule, always refused to interfere. On the recent amend- ment these views have again prevailed, the authority of the above cases is reestablished, and the jurisdiction of this court is restored to its former consistency, by the exclusion of all discussions on questions of fact, except only as subsidiary to questions of law. See however this subject further considered under the head of Appeals, and the recent measure, Laws of 1854, c. 317, there cited. It will be observed that, by this amendment, the Municipal Court of Brooklyn, ranked with justices' courts in the Code of 1849. is no longer to be looked upon as a court of inferior jurisdiction, but as standing, for the future, in regard to the review of its decisions, on the same level as other city and county courts. The amendment effected in section 14, by which, in the event of five judges not concurring in the judgment on any case sub- mitted to the court, that case is, in every instance, to be reheard, and that, twice in the event of a second disagreement, before judgment of affirmance is given in consequence of the members of the court being equally divided, is an important change from the Code of 1849, under which, on such an event occurring, the judgment of the court below was affirmed, as of course, unless a rehearing was specially ordered. This provision has since been acted upon, and the judgment of the court below affirmed, after an equal division on three successive arguments, in Moss v. Averill, Court of Appeals, 13 July, 1853. Of course an affirm- 2 IQ COURT OF APPEALS. ance of this nature only settles the point at issue as regards that particular case, and leaves it wholly open for renewed dis- cussion as bearing upon the rights of other parties. The question raised and decided in Oakley v. Aspinwall, 3 Comst. -647, 9 L. 0. 45, as to the effect of a judge taking part in the proceedings, when under disqualification on the ground of relationship, will be borne in mind. A serious difficulty was raised in the same case, as to whether this court could be held at all by a less number than by the whole of the eight judges. The proposition that it could be so held was, however, decided in the affirmative by a majority of six; which majority also held that one, consisting of four judges out of seven, was competent to make an order upon motion, but declined to give any opinion upon the further question as to whether such a majority were competent to pronounce a judgment. It seems clear upon the face of the measure that a majority of four only would not pos- sess adequate jurisdiction in this last respect, inasmuch as, by the express provisions of sec. 14, a concurrence of five judges is necessary for that purpose. When judgment of affirmance is pronounced in open court, without any public expression of dissent on the part of any of its members, it would seem that it is not competent for the par- ties to go behind that judgment, and to apply for a rehearing, on any allegation that, in their consultations out of court, the judges were equally divided in opinion. The public act of the court, in ordering such affirmance, is conclusive, and cannot be gone behind or impeached on any private grounds. Mason v. Jones, 3 Comst. 375; 5 How. 118; 3 C. R. 164. Nor can any allegations "I' that nature be taken into consideration by the inferior tribunal whose decision has been reviewed, when the question comes on afresh under the remittitur. Oakley v. Aspin- wall, LOL. 0. 79; 1 Duer, I. Where two <>r more points are discussed in the opinions de- livered, and the determinati >f either in the manner there indicated would authorize the judgmenl pronounced, the judges concurring in the judgment must 1"' regarded as concurring in ill., e opinions upon the points discussed, unless some dissent is expressed, or the circumstances necessarily Lead to a different conclusion. James v. /'< n f ^ Seld. '.». Tii.-. affirmance of ■■>. judgment l>y default, and not upon a ing on the merits, decides nothing as regards future adju- SUPREME COURT. 19 dications under the same circumstances. Watson v. Husson, 1 Duer, 242. See these subjects further considered in a subsequent portion of the work, under the head of Appeals to the Court in question. CHAPTER IV. OF THE SUPREME COURT. § 11. Supreme Court, Power of. The next tribunal which presents itself for consideration is the Supreme Court, a court whose powers are more extensive and more widely diffused than those of any other within the State, and embrace every species of cause, and every variety of jurisdiction; with authority also to remove cases pending in tribunals of inferior jurisdiction within its own cognizance, by certiorari. Its common law authority, analogous to that pos- sessed by the Court of King's Bench in England, has been ex- ercised from time immemorial, or rather, to speak more closely, from the original establishment of the English common law in this country. (See on this subject Kanouse v. Martin, 3 Sandf. 657, per Duer, J.) Its equitable jurisdiction is of more recent origin, being first indicated by the Constitution of 1846, art. 6, sec. 3, and afterwards expressly conferred by the Judiciary Act, laws of 1847, c. 280; and in particular by section 16 of that measure. It is in effect coextensive with and in substitution for that of the former Courts of Chancery thereby abolished. Mason v. Jones, 1 C. K. (1ST. S.) 335 ; Conro v. Port Henry Iron Company, 12 Barb. 27 ; Lovett v. German Reformed Church, 12 Barb. 67 ; Bailey v. Ryder, Court of Appeals, 30th December, 1852 ; Suydayn v. Holden, Court of Appeals, 7th October, 1853 ; People v. Porter, 1 Duer, 709 ; 11 L. 0. 228, (as to the custody of infants,) and numerous other cases. See also gene- rally as to the jurisdiction of this tribunal, as reorganized under the measure last referred to, Spicer v. Norton, 13 Barb. 542. The jurisdiction of this, and of all other tribunals of general powers. 20 SUPREME COURT. is always to be presumed till the contrary appears. Wright v. Douglass, 10 Barb. 97. Besides their authority in civil cases, the justices of this court exercise criminal jurisdiction in the Courts of Oyer and Terminer, as defined by art. 5 of the measure last referred to. See also the recent act on this subject, Laws of 1854, c. 73, p. 151. The mode of election, the classification, and the delegation of four of the judges of this court, to sit from time to time in the Court of Appeals, their distribution in districts throughout the State, and the provisions as to the presiding judge from time to time in each of those districts, remain as they were previously settled by the Revised Statutes and by the Judiciary Act. The Code effects no alteration whatever in these respects. § 12. General and Special Terms. The distinction between the general and special terms of this and the other tribunals of higher jurisdiction, remains also un- touched by the recent measures of amendment ; though, in some few respects, the matters falling within the peculiar attributes of each of those branches of the court have been made the subject of mutation. The special term, or the Circuit Court, in which a single judge presides, remains, as before, that branch of the aggregate tribunal to which belongs the consideration in the first instance of every question brought before it, with the few exceptions about to be noticed ; the Circuit Court taking pecu- liar cognizance of those cases in which the trial takes place by jury, and the special term of those which are triable by the court. The functions of the general term are, on the contrary, for the most part, strictly appellate; and embrace the revision of all decisions of the single judge on questions of law, to the exclusion, under ordinary circumstances, of questions of fact; and likewise the review of the judgments of subordinate courts. In Certai , however, and in particular on appeals from orders involving the granting or refusing of a new trial, ques- tions of fact are entertainable by this branch of the court. The general term DO • lea also a special jurisdiction in reference to the admission of attorneys and counsel, and to the control of the conduct of those ofliecrs when admitted ; and any question SUPREME COURT. 21 submitted for the opinion of the court, under the peculiar pro- vions of sec. 372 of the Code, is also originally cognizable by it. The concurrence of a majority of the judges holding a general term is, by sec. 19 of the Code, made indispensable to the validity of its decisions, and, in event of their non-concurrence, the case is on all occasions to be reheard. It will be seen that, by sec. 24 of the Code, the fullest powers of adjournment are given with reference to the terms of the Court, both general and special, including the Circuit Court and Courts of Oyer and Terminer. See as to the powers of judges specially appointed to hold a general term, and as to the presiding justice, The People v. Hicks, 15 Barb. 153. § 13. Chamber Business — Powers of County Judges. Besides the hearing of causes and appeals, and of those more important interlocutory proceedings in each, which involvepoints vital to the decision of the controversy between the^arties ; occasions on which it becomes necessary to obtain the direction or authority of the court, on matters of minor importance, are, during the progress of a suit, of almost daily occurrence. To provide for these matters, and to prevent the general calendars of the court from being overburthened by their constant recurrence, a sub- ordinate, but most important jurisdiction is exercised by the individual judges of each of the higher tribunals, at their cham- bers, or otherwise out of court. To enter into details on the different subjects embraced within these attributes, would at pre- sent be premature ; the only remark necessary at this juncture is, that, to a certain extent, and for certain purposes, that branch of jurisdiction is, as before noticed, capable of delegation, and may be exercised, ex officio, by the different county judges through- out the State, each within the limits of his peculiar jurisdiction, but within those limits only. See Code, sec. 401, 402, 403 and 405. The powers so exercised are substantially the same as those possessed under the old practice by the judges in question, and also by the officers styled "Supreme Court commissioners," and are conferred by the Revised Statutes, in connection with sec. 29 of the Judiciary Act. See also Graham's Practice, chap, ii., sec. 2. The jurisdiction of these officers being, however, limited, the presumption, as in all similar cases, will always be against, rather 22 SUPREME COURT. than in favor of their power to exercise it, wherever that power is open to reasonable doubt on any point, either technical or affecting the merits. See The People ex rel. Williams v. Hulbert, 5 How. 446 ; 1 C. K. (N. S.) 75 ; 9 L. 0. 245. Although, however, nothing can be presumed in favor of the jurisdiction of such officers in these matters, nothing will, on the contrary, be pre- sumed against it, in the absence of actual proof. Barnes v. Har- ris, 4 Comst. 374. •It is clear from the terms of the Code that the county judge has no power to act at all without his county ; and, in Eddy v. Howlett, 2 C. R. 76, it was held that the expression " his county" means, as regards the granting of orders, not the county within which the judge himself resides, but the county within which the action is triable. See also Chnbbuck v. Morrison, 6 How. 367. A contrary view is however taken in the case of Peebles v. Rogers, 5 How. 208, 3 C. R. 213, where an order, extending the time to answer, granted in the county of the defendant's residence by the county judge of that county, the venue having been fixed in that of the plaintiff, was nevertheless sustained as valid under the general powers of the officer in question under the old practice, as saved by sec. 403. The general powers of county judges in this respect, enlarged in some degree by the Code, (particularly in reference to the granting of injunctions, and to the proceedings supplementary to execution,) remain, where such has not been the case, substan- tially as they were before, under the then "existing practice," and are neither affected nor enlarged by that measure. Merritt v. Slocum, 1 C. R. 68 ; 3 How, 309. It was accordingly held in that case that the powers of a county judge did not extend to the hearing and deciding of motions, as such, in actions pending in the Supreme Court, but merely to the granting of orders obtainable as of course and without notice. A general stay of proceedings until after the hearing of a motion, granted by an officer of this description, without notice to the opposite party, le in Schenck v. McKie, 4 How. 246, 3 C. R. 24, as void for want of jurisdiction. See generally as to the power of tli is officer, Cumm, i v. Hitchins, 9 Barb. 378; Otis v. Spencer, 8 How. 171 ; Sale v. Lawson, I Sandf. 718, the details of which cases will be considered bereafter. In the Bank of Lansingburgh \ . McE /<, 7 ! [ow. 300, the fact that the county judge was related to the president of the plaintiffs SUPREME COURT. 23 bank, and was a stockholder therein, was held not to be such a disqualification as to prevent him from acting ministerially in granting an attachment. In Griffin v. Griffith, 6 How. 428, it was considered by Harris, J., that the act of the Legislature, Laws of 1847, p. 642, conferring upon the Eecorder of Troy the powers of a county judge in that city, was unconstitutional, and all his acts under those powers void. § 14. Powers of Judges out of Court. It will be observed in reference to sec. 401, that, in the first district, the powers of judges at chambers or out of court are greatly extended, and are in fact sufficiently large to include the granting of interlocutory orders of every description, whether upon or without notice, with the single exception of new trials upon the merits. The powers of the judges out of court do not, however, extend to the granting of judgment under any circum- stances, except in the single instance of an application under sec. 247. In all other cases the motion must be made to the court sitting as such, and cannot be otherwise entertained. Aymar v. Chase, 1 C. E. (N. S.) 830; 12 Barb. 301. Although the exercise of the office of judge on the part of inferior officers, by delegation, is confined within strict local limits, the powers of the judges themselves are unrestricted. Constitution, art. 6, sec. 6. Any judge of the Supreme Court is, therefore, competent to act in the place of any other, in the event of his inabilit}' to perform the peculiar duties assigned to him, (sec. 26;) and every judge moreover possesses the inherent power to make orders of course in any suit whatever, pending in any part of the State, irrespective of the district in which he for the time being exercises his functions ; and orders so made by him are equally binding on all parties, as they would have been if made by a judge of that particular district. By sec. 401 a restriction is, however, imposed upon these powers, as regards the making of orders upon notice, which can only be applied for in the district within which the action is triable, or, where the county fixed upon for the trial is a border county, then in some county in the next district, immediately adjoining thereto, the first district' excepted, in which, since the last amend- ment of the Code, motions cannot be made in actions triable 24: SUPREME COURT. elsewhere. Motions in actions triable in that district must on the contrary be made therein, and cannot be heard in any ad- joining county ; and any proceeding commenced before one of its judges may, under the especial provisions of section 27, be continued before another with the same effect. § 15. Courts, Arrangements as to. Although the general jurisdiction of the judges and officers of the Supreme Court remains unaltered by the Code, the previous arrangements as to the courts to be held by them are repealed, and fresh provisions substituted by title III. of part I. of that measure. By section 18 it is prescribed that at least four gene- ral terms, and more if necessary, shall be held annually in each judicial district, at such times and places as a majority of the judges of such district shall appoint ; and, by section 20, it is made imperative that at least two Circuit Courts and Courts of Oyer and Terminer, and one special term, shall be held yearly in every county throughout the State, (Fulton and Hamilton being considered as only one county for such purpose,) with similar powers to the judges to appoint additional terms for such purposes. The times and places for holding such terms were originally fixed by the governor, and subsequently by the judges, and are for the future to be from time to time made the subject of special appointment by the latter; such appointment to be made by them at least one month before the expiration of every second year, and to be for the two years commencing on the first of January then next following. The appointment of those terms for the two years commencing on the first of .January, 1854, will be found at the end of the volume. Whenever the justices of any one particular district are under personal disqualification in respect of any cause pending therein, the court, under the powers of c. 15 of the Laws of 1850, pos- sesses the power of removing that cause into any other adjoin- in g district. In addition to the above regular terms and circuits, the Gov- ernor of the State possesses also, under s. 23, the power of mak- ing additional appointments for such purpose, the same to be published in the State paper, as prescribed by sec. 25. By c. 1 of Laws of 1850, and sec, 469 of the Code, as last amended, his SUPREME COURT. 25 powers in this respect are greatly enlarged, and he is enabled to provide for the case of a term being in danger of failing, and also for that of any one branch of the court being overburden- ed with business ; those powers in the last instance extending to the assignment of other judges for the purpose of disposing of the arrears. By c. 374 of the Laws of 1852, power is given to the chief judge of the Court of Appeals, on the application of the presid- ing judge of the first district, to appoint additional sittings to be held therein, and to assign some justice of the Supreme Court to hold such sittings, whose duty it shall be to do so. The same measure also provides for the appointment of an additional judge for the same district, which provision has since been acted upon at the last general election. § 16. Appeals, S^c. As before stated, the appeal from the decisions of the general term of this court, lies to the Court of Appeals in all cases, with the single exception of causes originally commenced in a justices' or other court of lowest jurisdiction, in which this court is the ultimate tribunal. The decisions of the Surrogate's Courts, and also of all those subsequently enumerated in this portion of the work, with the exception of those of the Superior Court and Court of Common Pleas of the city of New York, are likewise reviewable by it in its appellate capacity; the appeal lying in the first instance from the decisions of the surrogate, and also from those of the county and municipal courts ; and in the second, after a previous review by the former of the two last tribunals, from the justices' and other courts of lowest juris- diction. § 17. Rules of. The practice of this court, and of the New York and county courts, is regulated by general rules made by the judges under the provisions of sec. 470 of the Code, and which are henceforth to be revised every two years, under the last amendment of that section. The first of these revisions took place in August, 1852, and the rules as then settled are now in force. They are binding not merely upon the Supreme Court, but also upon all 26 COUNTY COURTS. other tribunals of analogous jurisdiction, and, as such, will form the subjects of continual reference throughout the succeeding pages. It will be necessary to bear in mind that, on the last revision, the numbers of those rules were, for the most part, slightly changed. Attention to this circumstance will prevent much of the embarrassment that might otherwise arise in rela- tion to the citations of the same provisions, as they stood pre- vious to that revision, in the decided cases prior to August, 1852. CHAPTER V. OF THE COUNTY COURTS. § 18. Jurisdiction and Powe) of. In strictness these courts are of inferior authority and juris- diction to those mentioned in the next division. The definition of that jurisdiction is, however, to a certain extent, a definition of that of the New York tribunals also; and the operation of county courts is of course of far wider scope, extending, as it now ex- tends, throughout the whole of the State. It has, on the above grounds, been thought better to follow the order of arrangement adopted in the Code itself, and to consider the peculiarities and powers of these courts in the first instance,- before treating of those of the metropolitan district. The jurisdiction of these courts is of a special and statutory nature, and is thus expressly defined by sec. 30 of the Code as last amended: The County Court has jurisdiction in the following special l, but has no original civil jurisdiction except in such cases: I. Civil actions, in which the relief demanded is the recovery of a .sum of money not exceeding five hundred dollars, or the recovery of the dob e ion of personal property not exceeding in value five hundred dollar . and in which all the defendants are residents of the county in which tli" action is brought, at the time of its commencement: subject to Ijie right of the Supreme Court, upon special motion for good cause shown, to remove any such action to the Supreme Court before trial. COUNTY COURTS. 27 2. The exclusive power to review, in the first instance, a judgment rendered in a civil action by a justice's court in the county, or by a justices' court in cities, and to affirm, reverse, or modify such judgment. 3. The foreclosure or satisfaction of a mortgage, and the sale of mortgaged premises situated within the county, and the collection of any deficiency on the mortgage remaining unpaid, after the sale of the mortgaged premises. 4. The partition of real property situated within the county. 5. The admeasurement of dower in land situated within the county. 6. The sale, mortgage, or other disposition of the real property situ- ated within the county, of an infant or person of unsound mind. 7. To compel the specific performance, by an infant heir, or other person, of a contract made by a party who shall have died before the performance thereof. 8. The care and custody of the person and estate of a lunatic or person of unsound mind, or an habitual drunkard, residing within the county. 9. The mortgage or sale of the real property situated within the county, of a religious corporation, and the disposition of the proceeds thereof. 10. To exercise the power and authority heretofore vested in such Courts of Common Pleas, over judgments rendered by justices of the peace, transcripts of which have been filed in the offices of the county clerks in such counties. 11. To exercise all the powers and jurisdiction conferred by statute upon the late Courts of Common Pleas of the county, or the judges or any judge thereof, respecting ferries, fisheries, turnpike -roads, wrecks, physicians, habitual drunkards, imprisoned, insolvent, absent, concealed or non-resident debtors, jail-liberties, the removal of occupants from State lands, the laying out of railroads through Indian lands, and upon appeal from the determination of commissioners of highways, and all other powers and jurisdiction conferred by statute, which has not been repealed, on the late Court of Common Pleas of the county, or on the County Court, since the late Courts of Common Pleas were abolished, except in the trial and determination of civil actions ; and to prescribe the manner of exercising such jurisdiction, when the provisions of any statute are inconsistent with the organization of the County Court. 12. To remit fines and forfeited recognizances, in the same cases, and like manner as such power was given by law to Courts of Common Pleas. But the first subdivision of this section shall not apply to the County Court of the counties of Kings and Erie. 13. To grant new trials, or affirm, modify, or reverse judgments in actions tried in such court, upon exceptions or case made, subject to an 28 COUNTY COURTS. appeal to the Supreme Court. But any action or proceeding pending in the County Court, in -which the county judge is for any cause inca- pable of acting, may be transferred by the County Court to the Supreme Court, and thereupon the papers therein, on file in the County Court, shall be transmitted to the Supreme Court in the same district, -which shall thenceforth have jurisdiction of such action or proceeding. In the Code of 1851, the counties of Albany and Monroe were likewise included in the exception made bj subdivision 12. The powers of transfer to the Supreme Court of causes in which the county judge is from any reason incapable of acting, are like- wise new, having been inserted on the last amendment. An analogous power was, however, contained in the Judiciary Act, sec, 31. In Sheldon v. Albro, 8 How. 305, it was held that an appeal transferred to the Supreme Court under that provision, was to be heard in the first instance at special, and not at general term. It will be seen from the above summary, that, though limited in terms, the original jurisdiction of these tribunals is wide in its scope, and extends over a number of most important matters. The extent of that jurisdiction has, however, been somewhat doubted. In Griswold v. Sheldon, 4 Comst. 581, 1 C. E. (N. S.) 261, an opinion was expressed by Bronson, C. J., to the effect, that the statutory provisions giving common law jurisdiction to these courts, are unconstitutional and void. The question was not, however, actually decided in that case, and was expressly stated as remaining open for consideration, should it be ever brought before the court. In Beecher v. Allen, on the contrary, 5 Barb. 109, it was expressly decided, that the Legislature had not exceeded its powers in conferring the jurisdiction in ques- tion, and that the provisions for that purpose were not uncon- stitutional. The constitutionality of the statutory provisions conferring civil jurisdiction on these courts was also generally maintained in Frees v. Ford, 2 Seld. 176, 1 C. E. (N. S.) 413. Their general jurisdiction is also admitted without question, and their general rights as courts of record to grant a trial by jury maintained in Doyharsh v. JEnos t 1 Seld. 681. In McAllister v. Albion Plank Road Convpany i 11 Barb. 610, it was held, that not- withstanding the general repealing clause in sec. 29, of all sta- tutes deli nin;' the jurisdiction of these courts in conflict with the I lode, that jurisdiction still subsisted in regard to special statu- COUNTY COURTS. 29 tory remedies. See also Hosier v. Hilton, 15 Barb. 657 ; and this view is carried out by subdivision 11 of sec. 30, as it now stands. The jurisdiction of these courts being of a limited nature, every fact necessary to confer it must be clearly shown in all cases. See TJie People ex rel. Williams v. Ilulbert, 5 How. 446; 9 L. O. 245, 1 C. E. (N. S.) 75. Nothing can be presumed in favor of such j urisdiction without actual proof, though, on the contrary, nothing will be presumed against it, unless actually shown. Barnes v. Harris, 4 Comst. 374. It must be borne in mind that, with the exception of their appellate powers, and some few items of the peculiar statutory authority formerly vested in the Courts of Common Pleas, and now attributed to these tribunals, the Supreme Court exercises an equal, or rather a paramount jurisdiction over the same matters; and, in the event of any conflict with that jurisdiction, possesses the power in most instances of removing the con- troversy within its own cognizance, by means of certiorari, pro- hibition, or special order of removal, as prescribed in subdivision 1 of the section last cited. It may be a convenience to the reader simply to refer to the provisions of the Eevised Statutes, in reference to which the special powers of these courts, as above enumerated, are seve- rally exercisable, though of course without entering into any discussion on those subjects. The statutory provisions respecting foreclosure will be found at 2 E. S. p. 191 to 194, in connection with the jurisdiction of the Court of Chancery as then exercisable. The statute law on the subject of partition is contained in title III., chap. V., of part III. of those statutes, 2 E. S. 316 to 333. That as to the admeasurement of dower will be found in title VII. of chap. VIII. of the same part, 2 E. S. 488 to 493. That as to the sale or other disposition of the real estate of infants, and the specific performance of contracts by infant heirs, at 2 E. S. 194 to 197. That as to the care of the person, and the disposition of the estate of persons of unsound mind, at 2 E. S. 52 to 56. The general act for the incorporation of religious societies, is that of 5th April, 1813. Laws of 1813, c. 60. Various amend- ments of that act have since taken place, and various local acts 30 COUNTY COURTS. passed by the Legislature, which will be found in vol. 3 of the third edition of the Eevised Statutes, and in the laws of the dif- ferent years since that edition was published. The provisions of the Eevised Statutes as to the powers of the Courts of Common Pleas over justices' judgments will be found at 2 R. S. 245 to 249. The statute law as to ferries, at 1 E. S. 526 to 528. That as to fisheries, at 1 E. S. 687 to 690. As to turnpike roads, 1 E. S. 695 to 697. As to wrecks, 1 E. S. 690 to 695. As to physicians, 1 E. S. 452 to 456. As to habitual drunkards, 2 E. S. 52 to 56. (N. B. In Re Paterson, 4 How. 34, it was held that an habit- ual drunkard may, if thought proper, be authorized by order to make a will, without notice to his committee or next of kin.) That as to imprisoned, insolvent, absent, concealed, or non- resident debtors, at 2 E. S. 1 to 52, i. e. in chap. Y. of part II., title I. passim. See also Act of April 26, 1831. As to the liberties of jails, 2 E. S. 432 to 437. As to removal of occupants from State lands, 1 E. S. 205 to 208. As to the laying out of railroads through Indian lands, Laws of 1836, c. 316. As to appeals from the determination of commissioners of highways, 1 E. S. 518 to 521. The general jurisdiction of the late Courts of Common Pleas will be found laid down in title V.,chap. I., part. III. of the Ee- vised Statutes, 2 E. S. 208 to 218, and in various local statutes, some of which will be found collected in vol. 2 of the third edi- tion of those statutes, page 273 to 293, and the remainder in the laws of the different years subsequent to the publication of that edition. The provisions as to the collection and remission of fines and forfeited ances, are contained in art. II., title VI., chap. VIII., part III. of the Revised Statutes, 2 E. S. 483 to 488. < )n reference to the < lodes of 1848 and 1849, it will be seen that the jurisdiction of these courts is most materially extended by the recent amendments. [n the first place, they now possess original cognizance of actions in general, instituted for the re- covery of either money or property, to the value of $500, (but subject to the controlling powers of the Supreme Court,) which, COUNTY COURTS. 31 under the former measures, did not come within the scope of their jurisdiction. The local exceptions in this respect with refer- ence to the counties of Kings and Erie, will, however, be no- ticed; Albany and Monroe were likewise excluded under the Code of 1851. In the second place, the statutory authorities, formerly vested in the Courts of Common Pleas, are more exten- sively attributed to them ; and, in the third, by subdivision 13 as it now stands, the full powers of the higher Courts of Eecord, with reference to the review of their own decisions on case or exceptions, are, for the first time, distinctly given to them. They thus possess within themselves all the usual powers of courts of record, in reference to the decision of the questions submitted to them ; though, of course, only within the limits of their peculiar jurisdiction, and subject, in all cases where a ministerial statute authority is not exercised, to the control of the appellate tribunal. Their proceedings are governed by the new rules of the Supreme Court, so far as they are applicable. Sec. 470. In the Codes of 1848 and 1849, the sittings of this class of tribunals were called and treated as general terms, although held by only one judge. In the present measure, however, this nomenclature is abandoned, and it will be seen by consulting section 31, that these courts are always open for the transaction of business in matters which are not litigated, and that at least two terms, and as many more as the judge may appoint, are to be held yearly in each county, for the trial of issues of law and fact in the ordinary course, at periods to be fixed by such judge, and to be advertised for at least four weeks in the State and county papers ; with power for the designation of terms to be held for the trial of issues of law only, or of those proceedings at which no jury shall be required to attend. The provisions of sect. 24, as last amended, confer the fullest powers of adjournment with reference to the different terms to be held as above stated. The appellate jurisdiction of these tribunals has been before defined. Their decisions are reviewable by the general term of the Supreme Court, under chap. III. of title XI. of the second part of the Code. By the amendments of 1851 and 1852, these tribunals are sub- stituted for the Supreme Court, as the proper forum for the decision of questions of title, in suits originally commenced in the justices' courts, but discontinued under the provisions of sees. 32 SUPERIOR COURT AND COURT OF COMMON PLEAS. 55 to 62, inclusive. Sec. 68, as printed in the laws of 1851, has been omitted to be corrected in this respect, but that this is a mere clerical error is self-evident. If a Count}' Court entertain a suit for an amount exceeding the limits of its jurisdiction as above defined, the proceedings will of course be void. Oriswold v. Sheldon, 4 Comst. 581 ; ICE. (N. S.) 261. In proceedings supplementary to an execution issued by the County Court, a judge of the Supreme Court has no power, to make an order, and, if made, such order will be vacated. The power in this respect is limited by sec. 292 to a judge of the court or a county judge, and therefore the county judge alone has jurisdiction. Blake v. Locy, 6 How. 108. CHAPTER VI. OF THE SUPERIOR COURT AND COURT OF COMMON PLEAS OF THE CITY OF NEW YORK. § 19. Jurisdiction and Powers of , generally considered. Though, relatively speaking, of far higher authority than the courts treated of in the last division, these tribunals possess, in some features, an analogous jurisdiction. The superiority alluded to consists in the fact of their decisions being review- able at once by the Court of Appeals, without any intermediate revision. Their jurisdiction is also, within its peculiar scope, unlimited in its nature, and unfettered by any restriction as to the form mi- amount of the controversies brought before it. These two tribunals are, in fact, of coordinate and equal authority with Supreme Court, in all matters duly brought under their and, although the decisions of the latter are, of course, always consi Lered by them as entitled to the highest re- till, whereverany disagreement of opinion has occurred, they have never he itated to disregard the authority of those decisions, and to make rulings to the contrary effect. Ford v. Babcock, '1 Sandf. 518, 7 L. O. 270; The Washington Bank of Westerly v. Palmer, 2 Sandf. 686, 8 L. 0. 92, SUPERIOR COURT AND COURT OF COMMON RLEAS. 33 and Reynolds v. Davis, 5 Sandf. 267, may be mentioned as three out of the many instances of the exercise of this discretion, ap- pearing upon the recent reports. In the case of Cashmere v. Be Wolf, 2 Sandf. 379, the powers of this court to assume juris- diction of a matter which, under ordinary circumstances, would have been one of admiralty cognizance, were also distinctly asserted: and although, in Sturgis v. Law, 3 Sandf. 451, the court there refused to assume jurisdiction of a case arising out of salvage, still that decision proceeded on a general view of com- mon law jurisdiction, and not on any point in connection with the special powers of these courts. Original Constitution of] — The statutory provisions for the constitution of the Court of Common Pleas, will be found at 2 K. S. 216, and in various subsequent acts, collected in the third edition of those statutes, vol. II., page 284 to 289. The organi- zation of the Superior Court was effected by c. 137 of the laws of 1828, which act, and the subsequent provisions affecting it, will be found in vol. II., pages 311 to 317, and likewise at page 751 of vol. III. of the same edition, and in the laws of the dif- ferent sessions subsequent to its publication. Provisions of Code,] — The jurisdiction of these courts, and like- wise of those treated of in the succeeding chapter, is thus de- fined by the Code : § 33. The jurisdiction of the Superior Court of the City of New York, of the Court of Common Pleas for the City ancl County of New York of the Mayors' Courts of cities, and of the Recorders' Courts of cities, shall extend to the following actions : 1. To the actions enumerated in section one hundred and twenty- three and one hundred and twenty-four, when the cause of action shall have arisen, or the subject of action shall be situated, within those cities respectively. 2. To all other actions where all the defendants shall reside, or are personally served with the summons within those cities respectively, or where one or more of several defendants, jointly liable on contract, reside or are personally served with the summons, within those cities respect- ively, except in the case of Mayors' and Recorders' Courts of cities, which courts shall only have jurisdiction where all the defendants reside within the cities in which such courts aie respectively situated. The Supreme Court may remove into that court any action brought under 3 34 SUPERIOR COURT AND COURT OF COMMON PLEAS. this subdivision, and pending in the Superior Court, or Court of Common Pleas for the city and county of New York, and may change the place of trial therein, as if such action had been commenced in the Supreme Court ; such order for removal and for change of place of trial to be made in the Supreme Court upon motion ; and, on filing a certified copy of such order in the office of the clerk of the Superior Court, or of the Court of Common Pleas, such cause shall be deemed to be removed into< the Supreme Court, which shall proceed therein as if the same had ori- ginally been commenced there ; and the clerk with whom such order is filed must forthwith deliver to the clerk of the county in which, by such order, the trial is ordered to be had, to be filed in his office, all process, pleadings, and proceedings relating to such cause. Any action or pro- ceeding pending in any Mayor's or Recorder's Court, in which the judge is for any cause incapable of acting, may by such court be transferred to the County Court ; and thereupon the papers on file in the Mayor's or Recorder's Court shall be transmitted to the County Court ; which shall thenceforth have jurisdiction of such action or proceeding. 3. To actions against corporations, created under the laws of this Stale, and transacting their general business, or keeping an office for the trans- action of business within those cities respectively, or established by law therein, or created by 'or under the laws of any other State, government, or country, for the recovery of any debt or damages, whether liquidated or not, arising upon contract made, executed, or delivered within the State, or upon any cause of action arising therein. The actions enumerated in subdivision 1 are all either real actions, or otherwise of a local nature, requiring trial by a local court, and, as such, peculiarly falling within the cognizance of these courts, as answering that description. Subdivision 2 is extended in operation, and somewhat altered in phraseology from the same provision as it stood in the Code of 1851. The extension is with reference to actions against defendants jointly indebted on contract; service on any one of whom within the limits is now sufficient to confer jurisdiction. Under these pro- visions, any cause of action whatsoever is now cognizable by courts, provided the conditions precedent as to residence or g ■■ satisfied ; but it will be seen that, under the latter part of the clause, the Supreme ('unit possesses the same powers of removing actions from these courts into any other county within its own peculiar cognizance, which it possesses with re- ferenoe to the change of tin: place of trial from one of those counties to another; aid this power has been extended by the SUPERIOR COURT AND COURT OF COMMON PLEAS- 35 last amendment, and made applicable to any action brought under this last subdivision, whether transitory or not, without restriction. This power, however, extended as it is, in no prac- tical respect derogates from the coordinate authority of the New York tribunals, and is, in itself, one most essential to the ends of justice ; in reference to cases in which the jurisdiction of the latter may have been acquired by casual service within their district, the real matter in controversy being situate elsewhere, and the evidence in support of that matter being only there attainable. It is evident that, where the parties all reside in New York, and the cause of action is either purely transient, or locally situate within that city, this power can never in practice be exercised, and therefore any conflict of jurisdiction on the subject is highly improbable. The further provision, as to the removal of causes pending in a mayor's or recorder's court, in which the judge is incapable of acting, was also first inserted on the recent amendment, as a necessary corollary to the similar provision as to county courts, in subdivision 13 of sec. 30. It seems clear that an order of this nature, on the part of the Supreme Court, removes the cause, and not merely the place of trial, notwithstanding the note at 2 C. E. 50. The Superior Court itself has imposed analogous limits on its own jurisdiction in the case of Ring v. McCoun, 3 Sandf. 524, where it refused to entertain a cause, in which, (although in every other respect it was clearly within the scope of its cogni- zance, both as regarded the parties and the origin of the cause of action,) title to land in another county came, nevertheless, into question-; and which county might, therefore, under sec. 123, be fairly contended to be the proper place of trial. A suit for specific performance of a contract does not, however, come within this category ; a proceeding of that nature is not a real but a personal action. Auchincloss v. Nott, 12 L. 0. 119. General Characteristics of both Courts.'] — The powers and offices of the general, special, and trial terms of these courts, (the latter term being synonymous with that of Circuit Court,) are identical with those of the Supreme Court before noticed. The practice in them is regulated by the general rules of the latter tribunal ; but the Superior Court has also published a further set of rules for its own guidance, with reference to the arrangement of the 36 SUPERIOR COURT AND COURT OF COMMON PLEAS. business before it, and the mode of transacting that business. The Common Pleas has likewise made some few regulations on similar matters, particularly in reference to the hearing of ap- peals from the Marine and Justices' Courts. These rules will form the subject of constant citation throughout the work. Common Pleas — -further Special Jurisdiction.'] — In addition to the powers which it possesses in common with the Superior Court, the Court of Common Pleas is also invested, by sections 34 and 352 of the Code, with the peculiar cognizance of appeals from the Marine Court of New York, and also from the Justices' Courts within that city, a branch of jurisdiction formerly exer- cised by the sister tribunal. In addition to the above items of jurisdiction, the powers of this court have been recently extended by sec. 6 of c. 198 of the laws of 1854, in the following terms : § 6. The said Court of Common Pleas for the city and county of New York lias power and jurisdiction of the following proceedings: To remit fines and forfeited recognizances, in the same cases and in like manner as such power was heretofore given by law to Courts of Common Pleas, and to correct and discharge the dockets of liens and of judgments entered upon recognizances, and to exercise in the city and county of New York all the powers and jurisdiction now or hereafter conferred upon or vested in the said court, or the County Courts in their counties, and the powers and jurisdiction which were vested in the Court of Common Pleas for the city and county of New York before the enactment of the act designated as the Code of Procedure, passed April 12, 1848. Ami, by the same statute, the appointment of a special clerk of that court, and the removal of all prior documents from the office of the clerk of the city and county of New York, is ex. ly provided for, with a view to its more complete and Beparate organization. Superior Court — Peculiar Cliaracieristics of.~] — It would seem that doubts bave been started as to the equity jurisdiction of the Superior Court, but, when examined into, those doubts ap- pear i" n ' upon Little or do foundation. The preamble of the Code, and sec. 69, when read in connection with the unlimited lizance of actions within their local limits which Is conferred upon ; >urts in general by sec 38, and, moreover, with the peculiar cognizance of transferred equity eases given to the SUPERIOR COURT AND COURT OF COMMON PLEAS. 37 Superior Court by sec. 47, are utterly and irreconcilably at variance with any such notion; and jurisdiction of this nature has been exercised by this court from the original passage of the Code, without any question whatever. To cite cases upon the subject would be really superfluous, as the exercise of that jurisdiction appears in almost every page of the five volumes of Sanclford's Eeports. Cashmere v. De Wolf, above cited; Linden v. Hepburn, 3 Sandf. 668 ; 3 C. R 165 ; 5 How. 188; and Mayne v. Grisivold, 3 Sandf. 463 ; may be taken as types of this class of cases, but to attempt to cite the whole of them would be unnecessary. The exercise of the same branch of jurisdiction is also recognized and acted upon by the Court of Appeals in Palmer v. Lawrence, 1 Seld. 389. The decisions of this court have been very fully reported; and it need scarcely be said that those reports are of high authority, and possess, moreover, a general character of unity with each other, owing to the peculiar centralization of the court, and to that constant communication which takes place between all the judges composing it, which, in the more widely-diffused attri- butes of the Supreme Court, is, of course, physically impracti- cable. On more than one occasion those judges have taken high ground in asserting the dignity of their tribunal, and that, even as regards the Court of Appeals itself. See citation of case of Nicholson v. Leavitt, 4 Sandf. 253, 9 L. O. 105, and remarks thereon, and also on the unreported case of Bowen v. Newell, as contained in chap. III. of this book. See likewise the dissent- ing opinion of Bosworth, J., in Oakley v. Aspinivall, 1 Duer, 1, 10 L. O. 79. In addition to the justices of the Superior Court as originally constituted, provision is made by the Code, sec. 41 to 45, for the election of three additional judges, and for their classification in a manner analogous to that of the elected judges of the Court of Appeals ; their future terms of office, after the expi- ration of those under such classification, to be six years. The jurisdiction of the judges so appointed is coextensive with that of the judges of the court under its original constitution, Huff v. Bennett, 2 Sandf. 703 ; 2 C. E. 139. In section 47 of 1849, provision was made for the transfer to this court of some portion of the arrears of issues of law and equity cases then pending in the Supreme Court, and, under section 49, the hearing of these transferred cases Avas, for a term of two years, to be the peculiar 38 SUPERIOR COURT AND COURT OF COMMON PLEAS. office of the three judges to be so elected. By c. 2 of the laws of 1851, this last section was, however, repealed, and the three judges in question now exercise the general functions of judges of the court, without any distinction between them and those appointed under its original constitution. In Giles v. Lyon, 4 Comst. 600, 1 C. E. (N. S.) 257, it was held that the power of the Supreme Court in the foregoing respect was confined to equity causes existing at the passage of the Code, and that a cause subsequently commenced could not be so transferred to the Superior Court ; and all the proceedings in a case of that de- scription were accordingly set aside. Points as to General Jurisdiction of both Courts.'] — On the subject of jurisdiction by service, the Superior Court has throughout been disposed to take a rigid view of its own powers. Thus, in Delafield v. Wright, 3 Sandf. 746, 1 C. E. (N. S.) 123, (a suit brought against two joint debtors, as such,) the objection that one of the defendants was neither a resident, nor served with process within the limits, was held to be fatal, and the complaint was dismissed for want of jurisdiction, notwithstanding that the resident defendant had appeared, and had put in a separate de- fence. See Note on the subject at 1 C. E. (N. S.) 341. In Fishery. Curtis, 2 Sandf. 660, 2 C. E. 62, and In re Carr, lb. 63, attachments which had been issued against non-resident debtors were, on similar grounds, held to be invalid, and it was distinctly laid down in the former case, that, to give the court jurisdiction, all the defendants must either be resident, or be served within the limits, according to the terms of the section. This rule is, how- ever, relaxed, as regards the case of parties jointly indebted, by the recent amendment; service on any one of whom, or residence within the limits, is now sufficient to confer jurisdiction, and to sustain a judgment entered up against all on the joint indebted- ness. Since that amendment, this court stands precisely on the same footing as the Supreme Court as to ulterior proceedings .nst absent defendants, where jurisdiction has been once acquired by service on :i,ny one of several joint debtors. Ano- nymou < < e, I Duer, 662. See likewise as to the subsequent exercise of jurisdiction once acquired, The People v. iSturtevant, Court of Appi al , 31 Dec, 1853. Of course this rule will not apply, where the liabilities of such parties are several, although arising under the same contract. Where, however, none of the SUPERIOR COURT AND COURT OF COMMON PLEAS. 39 defendants reside within the limits, jurisdiction cannot be ac- quired for any purposes, without actual service, nor can an at- tachment be issued. Granger v. Schwartz, 11 L. 0. 346. See also, as to the non-residence of plaintiffs with reference to an attachment, Payne v. Young, Court of Appeals, 12th April, 1853. In cases where the jurisdiction arises under sec. 123 and 124, in respect of local matters, the non-residence of some of the de- fendants will form no ground of objection. See the principles laid down on this subject in Cashmere v. Crowell, 1 Sandf. 715 ; 1 C. E. 95 ; and asserted in the subsequent decision of Cashmere v. De Wolf, before referred to, although the particular provi- sion of the Code of 1848, in respect of which that case was de- cided, has been repealed by the subsequent amendments. Although service within the limits confers jurisdiction, with- out respect to the residence of the party so served, still the court will not sanction any attempt to bring a party within that juris- diction by, any fraud or misrepresentation, and will set aside a service effected by such means. Carpenter v. Spooner, 2 Sandf. 717, 2 C. E. 140, which decision appears to have been affirmed by the general term, 3 C. E. 23. Where a defendant, irregularly served, gave notice of retainer, and afterwards moved to set the proceedings aside for want of jurisdiction, it was held in the Common Pleas that he was too late, and that the court had acquired jurisdiction by his volun- tary appearance. Smith v. Dipeer, 2 C. E. 70. A similar con- clusion was come to by the Superior Court in Watson v. The Cabot Bank, 5 Sandf. 423, where it was held that, where the court had otherwise jurisdiction of the action, a voluntary ap- pearance conferred it as to the person. In Auchincloss v. Nbtt, 12 L. 0. 119, it was held that this court had jurisdiction of a suit for specific performance of a contract relating to property in another county, where jurisdiction had been otherwise acquired by service. A proceeding of that nature is not a real but a personal action. A jurisdictional ob- jection of the above nature must be taken at the outset of the proceedings, or it will be waived ; nor can' the record of a judg- ment suffered to be thus taken, and asserting the facts which confer jurisdiction, be afterwards impeached collaterally. Dyck- man v. The Mayor of New York, 1 Seld. 434. In the matter of a petition, 5 Sandf. 674, a doubt was ex- pressed whether the powers of the Superior Court extended to 40 MAYORS' AND RECORDERS' COURTS. the granting of process to compel the attendance of witnesses to be examined under a foreign commission, and the parties were recommended to apply to the Supreme Court under its unques- tionable general powers, which course was accordingly pursued. In re De Angelis, 1 C. E. (N. S.) 349, the question as to the powers of the Court of Common Pleas to award as to the cus- tody of children, pending an action for divorce between their parents, was raised ; and it was held that the custody of infants was a matter of special jurisdiction, formerly vested in the Court of Chancery alone, and was therefore not a necessary incident to the action of divorce, but of a distinct and independent nature. It was accordingly decided that the powers of the Court of Common Pleas did not extend so far as to enable them to make any award on the subject, and that the Supreme Court was the only competent tribunal for that purpose. Similar doctrines have been held by the Superior Court, where the question came up on habeas corpus, in The People v. Porter, 1 Duer, 709 ; 11 L. O. 228 ; and they were also strongly asserted in relation to the same matter by Barculo, J., in the Supreme Court, in The People v. Cooper, 8 How. 288. In the former of the last two cases, it was held by Duer, J., that a judge of the Superior Court possessed no independent powers in relation to the granting of a habeas corpus, but merely those of a Supreme Court commissioner. Jurisdiction of an analogous nature was, however, exercised by Paine, J., in rela- tion to the discharge of certain persons detained as fugitive slaves, in The People v. Lemmon, 5 Sandf. G81. CHAPTER VII. 01 THE MAYORS' AND RECORDERS! COURTS OF CITIES. § 20. Powers and Jurisdiction of. ill not be necessary to detain the reader <\i any length on the subject of the powers and jurisdiction of these oourts, as, witli reference i" the cognizance of actions in general, they are sub.st;uitially the those treated of in the last division, MAYORS' AND RECORDERS' COURTS. 41 with this important exception, that mere service within the limits is not here sufficient to confer jurisdiction, but, under subdivision 2 of sec. 33, as before cited, absolute residence of all the defendants within the city in which each of such courts is situated, is an absolute prerequisite to its exercise of any functions whatever, except in cases strictly local in their nature, and falling as such within subdivision 1 of that section. ' These courts are likewise devoid of any appellate jurisdiction what- ever, and their own proceedings are not subjects of review by the Court of Appeals, until they have been previously submitted to the intermediate jurisdiction of the Supreme Court. The recent provision as to removal into the Supreme Court of cases pending in these jurisdictions, in which the judge is in any manner incapable of acting, will of course be noticed. It would seem that by the terms of sec. 470, if strictly con- strued, the rules of the Supreme Court are not binding upon these tribunals, but only on the County Courts ; but there can be little doubt that, in practice, they will be found the safest, if not the only safe guides to follow. The statutory provisions on the subject of the organization of these courts will be found collected in volume 2 of the third edition of the Revised Statutes, pages 293 to 311. The cities in which they are thereby established, are Albany, Hudson, Troy, Buffalo, and Utica, and also Eochester ; but the last court has since been abolished by c. 303 of the laws of 1849. In vol. 3 of the same edition, pages 702 to 708, inclusive, will be found various provisions in relation to the same courts, and also those establishing a similar court in the city of Oswego, subsequently amended by c. 134 of the laws of 1849. The City Court of Brooklyn was established by c. 125 of the laws of 1849, amended by c. 102 of the laws of 1850. By c. 138 of the latter, the act as to the establishment of these courts in Buffalo is amended. The former of the two tribunals last mentioned is one of great and increasing importance. It possesses, in common with others of this class, in which the whole business is carried on by a single judge, this peculiar and exceptional feature, viz., that the report of a referee, when impeached, must be reviewed in the first instance on motion by the judge of the court, before an appeal from the judgment founded on that report can be carried up to the higher tribunal. Goulard v. Castillon, 12 Barb. 126. 42 JUSTICES' COURTS. This review stands in the place of the appeal to the general term of the same tribunal in the courts of larger jurisdiction, and is expressly contemplated, though only indirectly referred to in the acts above cited. In Griffith v. Griffin, 6 How. 428, before cited, it was held that the act of the Legislature, conferring upon the recorder of Troy the powers of a county judge, was unconstitutional, and his acts under it void. This principle, if confirmed, is doubtless applicable to all courts falling within this category. CHAPTER VIII. OF JUSTICES' COURTS IN GENERAL, INCLUDING THE MARINE AND JUSTICES' COURTS IN THE CITY OF NEW YORK. § 21. Powers and Jurisdiction of. In pursuing the analysis of the different courts of civil juris- diction within this State, whose practice and proceedings are affected by the Code, we come, in the last place, to the courts of inferior jurisdiction above enumerated. For all general purposes, the powers of these different courts are substantially the same, though the Marine Court, under sec. 65, possesses peculiar au- thority in reference to actions on contract, in respect of ser- vices performed, or of tort, for injuries committed on board ves- sels in the merchant service : subject however, in all respects, to the paramount authority of the United States' Courts, in cases of admiralty or maritime jurisdiction. The powers and scope of the Marine Court have been recently increased by til- Legislature, and it is become in consequence a tribunal of much greater utility and importance. It now possesses cogni- zance of controversies to the value of $500, and is invested with Ike power of reviewing its own decisions in general term. The statutory provisions on these subjects will be found in c. 617 of the laws of L858, p. 1165. By that statute it is pro- vided that an appea] of this nature shall have the same effect as that tOth< .ihi.i] trim of the courts of higher jurisdiction. The Leg] 1. it in.' bas however omitted to define whether this form of appeal a optional or imperative, and also whether, in the event JUSTICES' COURTS.. 43 of its being taken, the time for the appeal to the Court of Com- mon Pleas is thereby extended. The latter tribunal has held that such is not the case, and that the only appeal which it, as the appellate court, can recognize, is from the decision of the single justice, and that, taken within the statutory period of twenty days from the judgment on that decision. Heidenheimer v. Lyon, unreported. This form of appeal has, however, been so far recognized by the same tribunal as to hold that, during its pendency, a stay of proceedings on an execution issued out of the court above will be granted, though not as of right, but on a special application for that purpose. — Ritterhand v. Maryatt, 12 L. 0. 158. The enlargement of jurisdiction of the Marine Court was held not to be retrospective, so far as regards the question of costs, in Dunbar v. Duffy, 11 L. 0. 349. The general provisions on the subject of Justices' Courts are contained in title VI. of part I. of the Code, and the boundaries of their jurisdiction are laid down in sec. 53, when read in con- nection with the provisions of sec. 65, above referred to, and also with those in reference to actions upon the charters or by-laws of the corporations of the different cities.in which Justices' Courts are held, contained in the same and the two following sec- tions. The plan before laid down for the general scope of the work, forbids any lengthened discussion on the subject of this juris- diction; but it may be shortly defined as limited, in ordinary cases, to causes of action where the value of the matter in dis- pute does not exceed $100 in the Justices', and $500 in the Ma- rine Court, but as comprising a very general cognizance of con- troversies within that limit, save those only which, by sec. 54, are made the subjects of special exception. In actions on surety bonds taken by these courts in the exercise of their jurisdiction, their powers are of wider extent ; and, in reference to the taking of judgments by confession, under the provisions of the Revised Statutes, those powers extend to all cases where the amount con- fessed does not exceed $250. A plaintiff cannot, however, split up an undivided demand into different actions for the purpose of conferring jurisdiction ; though it would seem he may consent to reductions, or, on too large a recovery, may remit the excess for that purpose. It would seem, also, that by consent of the defendant, but not otherwise, a larger demand may be divided, 44 JUSTICES' COURTS. in order to the confession of separate judgments for different por- tions of it. By sec. 54, the following causes of action are excepted from the jurisdiction of these courts : 1. Cases to which the people are a party, except for penalties within the limitation above laid down. 2. Cases in which the title to real property shall come into question. 3. Civil actions for assault, battery, false imprisonment, libel, slander, malicious prosecution, criminal conversation, or seduc- tion. By the act of 1853, above cited, the Marine Court is in- vested with special jurisdiction over all this class of actions, (except those for criminal conversation and seduction,) where the damages claimed do not exceed $500. 4. Matters of account where the sum total of the accounts of both parties to the controversy exceeds $400 ; and, 5. Actions against executors or administrators as such. N. B. — Parties standing in these capacities are, however, compe- tent to sue as plaintiffs, and the defendant, in that case, may plead, and if he prevail, may enter and enforce judgment for a set-off, as in the higher courts. With reference to No. 4, it might probably be held, that an action may be maintained in respect of a balance actually struck and settled, though the aggregate items of the accounts on which it arises exceed $400, provided no question arises on the accounts themselves as such. When, however, such is the case, and it would seem that, whenever the objection is formalty taken, the court has no jurisdiction, however small the actual balance may be. Lockwood v. Isaacs, 1 C. 11. 29. § 22. Discontinuance before Justice where Title in question. The mode of assertion of the defendant's claim to exemption from suit, in these courts, where the title to real property may come into question, is pointed out by sections 55 to 59 inclusive. (The po M t<> the justice by sec. 62 to continue any per- of action, independent of those stayed on this ac- COUnt, will of course not, be overlooked.) The course to be I, on this objection being taken, is the putting in of a written an wer, showing Buch to be the case, accompanied by an undertaking, executed l»y one or more sufficient sureties, in a JUSTICES' COURTS. 45 penalty of $100, conditioned for the giving a written admission of service of summons and complaint in the County Court, in the event of the same being deposited with the justice within thirty days thereafter, such admission to be given within ten days from the time of that deposit ; and conditioned also for the defendant's rendering himself amenable to all process of that court in those cases where, at the time of giving the undertaking, he has already been arrested under the authority of the inferior tribunal. It would be prudent, on the preparation of an un- dertaking of this nature, to follow the rules hereafter laid down with reference to those required by the Superior Courts, though this does not appear to be imperative, but to rest in the discre- tion of the justice. In Davis v. Jones, 4 How. 340, 3 C. K. 63, it was held that the limitation of ten days in the above provision is absolutely imperative, and that the court above possesses no power of curing the defect by amendment, if the defendant, through ignorance of the deposit of the summons and complaint with the justice, (of which it would seem the plaintiff is not bound to give any notice,) omit to furnish the required admission within the period so limited ; the mere deposit of the summons not being a commencement of the action sufficient to give the court jurisdiction to exercise its general powers of amendment under sections 173 and 174. If, however, the plaintiff accept an answer put in in the higher court, without the formal admission, as above provided, it will be considered as a waiver of the objection, and the subsequent proceedings will stand. Wiggins v. Tallmaclge, 7 How. 404. The giving the undertaking is, however, essential. Lalliette v. Vankeuren, 7 How. 409. On the delivery of the undertaking above described, the cause is to be discontinued before the justice, but, if the defendant omit to take this step, his jurisdiction is restored, notwithstand- ing the answer ; and the defence of title being in question will then no longer be admissible, unless that fact appear on the plaintiff's own showing, in which last event the action cannot be maintained, but must be dismissed with costs ; and it would seem that in such cases the justice cannot take cognizance of the cause even by consent. See Striker v. Mott, 6 Wendell, 405. Where, however, the fact that title is in question appears by the complaint, and the defendant omits to take the objection in the manner above prescribed, the justice's jurisdiction remains, 46 JUSTICES' COURTS. and the defendant will be precluded from availing himself of the benefit of the 59th section at the trial. Adams v. Rivers, 11 Barb. 390. "Where, too, the title to real estate is not pleaded, the justice will not be ousted of his jurisdiction, merely because it may be necessary to prove it in order to sustain the action, unless such title is disputed by the defendant. Bellows v. Sackett, 15 Barb. 96. The point as to whether title to lands does or does not come in question, appears to be cognizable by the justice in the first instance, where there is no reasonable doubt on the subject, but not where any such doubt exists. Whenever any real point of this nature arises, the case is likely to be one of difficulty, and can only be dealt with by the higher tribunal. The mere plead- ing of a grant of the Legislature, in an action brought for the assertion of a public right, was held in Browne v. Scqfield, 8 Barb. 239, (an action for damages for obstructing a navigable river,) as not in its nature a case of claim of title to lands sufficient to oust the justices' jurisdiction. The assertion of a private right of way has, however, been uniformly held to be a question in- volving title. See Striker v. Mott, above referred to ; Boyce v. Brown, 3 How. 391 ; 7 Barb. 80. It will be observed, on a comparison of the Codes of 1819 and 1851, that the County Court is now substituted for the Supreme Court, as the tribunal in which the action in lieu of that discon- tinued before the justice is, for the future, to be brought in all cases. See, however, the error in printing sec. 68, before noticed. On the bringing of such substituted action, the suit is in effect one in the County Court, and judgment is to be entered on its decision as such. In one respect, however, the proceedings difi«ir. and that is with reference to the pleadings. It was at first held that these must be the same as those before the justice, and thai they could not be amended in matters of substance, and also thai a reply could not be now put in, in such a suit, under any circumstances. McNamara v. Bitely, 4 How. 1-1; v. Whabn, 5 Bow. 302; 1 C. R. (N. S.) 27; Wendell v. Mitchell, 5 II >w. t24. This view is, however, controverted by the decisions in Kiddle v. Degroot, 1 C. R. (N. S.) 202 and 272, and JeweU v.Jewett, 6 Eow. 185; and the point has since been ttled by the Courl of A.ppealsin Wiggins v. Tallmadge, 7 How. lof, where it is laid down that the provision that the defend- JUSTICES' COURTS. 47 ant's answer is to be the same, does not require the same iden- tical words, but only tie same substantial defence. It was also held that the defendant in such cases is at liberty to abandon part of his original defence, provided the remainder of it was not varied from the grounds originally taken. For the purposes of appeal, proceedings of this nature will be held to be actions in a Justices' Court, and the Court of Appeals has accordingly no jurisdiction to review the decision of the Supreme Court thereupon. See Brown v. Brown, 2 Seld. 106 ; 6 How. 320 ; Pugsley v. Kesselburgh, 7 How. 402 ; Wiggins v. Tallmadge, 7 How. 404. § 23. Proceedings in Courts in question. A sj^stem of rules with reference to the pleadings and practice in these courts, is laid down by section 64 of the Code, -which, in a great many respects, but not altogether, supersedes the provisions of the Eevised Statutes in reference to these tribunals in general, including the proceedings therein, the removal there- of by certiorari, and the review of their decisions. The whole of those provisions must therefore be still made the subjects of careful study, in connection with those of the Code. They will be found in titles III. and IV. of chap. II., part III. of the Re- vised Statutes, 2 R. S. 224 to 275, and in various subsequent acts on the same subject, collected in the third edition, vol. II., pages 323 to 373, and likewise at pages 708 and 709 of vol. III. The original constitution of the Marine Court will be found in the Revised Laws of 1813, its further organization in c. 144 of the Laws of 1849, and its recent reorganization and enlargement in Laws of 1852, c. 389, and Laws of 1853, c. 617. Chapters 22 and 53 of 1849 contain provisions with reference to the Justices' Courts of Rochester and Hudson, whilst c. 196 and 514 of the Laws of 1851 have reference to those in the city of New York. The style of the latter tribunals is changed from Justices' Courts to District Courts by c. 324 of the Laws of 1852. By c. 65 of the Laws of 1854 an additional judicial district is created. In certain respects, such as the form of summons and other pro- ceedings not expressly provided for by the Code, the Marine Court and Justices' Courts of New York are governed by their own statutory practice, and not by that prescribed by the Re- vised Statutes in reference to justices' courts in general. See 48 JUSTICES' COURTS. Williams v. Price, 2 Sandf. 229; Colin v. (hit, 3 C. R 23; Jack- son v. Wheedon, 3 C. E. 186; Klenchv. U% Forest, 3 C. K. 185, and other cases. In all matters, however, which are regulated by the provisions of the Code, those provisions are applicable to all, without distinction. See sec. 68. The Marine Court have recently issued a set of rules for the government of their practice in various respects, and particularly with regard to motions, and the hearing of arguments before the general term under the recent extension of their powers in this respect. The leading characteristic of the system thus established is the admissibility of oral and unverified pleadings in all cases, except where an answer of title being in question has been put in ; coupled with the most unlimited powers of amendment and disregard of mere technical objections. In Turch v. Richmond, 13 Barb. 533, it was even held that when a defence before a justice is overruled as insufficiently pleaded, he is bound not merely to allow, but to order the pleading to be amended. By subdivision 15 of section 64, the provisions of the Code respecting the forms of and parties to actions, the times of commencing them, the rules of evidence, and the service of process on corporations, are made applicable to these courts ; the last of these particulars being a provision on the recent amendments ; but, in all other respects, as before adverted to, the practice in them is totally diverse from and ir- reconcilable with that of the higher courts, as established by that measure. It remains to notice some few decided points in reference to that practice, which may bear upon the exercise of the appellate jurisdiction of the courts above. In Warren v. I h liner, 8 How. 419, it was held that s. 399 of the Code, re- quiring ten days' notice to be given of the examination of an i witness, was not "a rule of evidence," and was therefore not applicable to these courts. The jurisdiction of these courts being of a limited nature, is abject to the same strict rules before adverted to, under the bead of county courts. The mere issuing of a sum- -, however, prima facie, confers jurisdiction; and if such summons !"• served within the limits of the authority of the court, Mir presumption will lie that it was duly served. If a warrant I I, the reverse is the case, and the lads warrant- ing il in".! all !><• Btrictly proved. Barnes v. Harris, 4 ,71. No presumption will, however, be admitted, even JUSTICES' COURTS. 49 in this case, to oust the jurisdiction, if enough be shown to bring the case within the general language of the statute. Foster v. Hazen, 12 Barb. 547. See also Van Kirk v. Wilds, 11 Barb. 520. At the same time, the jurisdictional defect for want of proper service of summons can be taken advantage of on appeal, if sufficient cause be shown ; Fitch v. Devlin, 15 Barb., 47. ' The justices' courts have jurisdiction in actions against do- mestic, but none whatever in those against foreign corporations. This last objection is, however, capable of being waived, if the defendants appear and plead to the merits, without insisting on it. Paulding v. Hudson Mannf. Co., 3 C. E. 223. A certain class of jurisdictional objections cannot neverthe- less be waived, even by submitting to an actual trial. As, for instance, in an action brought in a justices' court, where judg- ment for $200 was claimed, Bellinger v. Ford, 14 Barb. 250, or the bringing the action against a non-resident defendant by long summons, contrary to the statute, Laws of 1831, p. 403, ss. 33, 47; Robinson v. West, 11 Barb. 309;- Cornell v. Smith, 2 Sandf. 290, there cited; see also Allen v. Stone, 9 Barb. 60. See as to the mode of obtaining a short summons, Waters v. Whitamore, 13 Barb. 634. Long summons is, however, prima facie, the pro- per remedy in all cases, unless the contrary is shown. Allen v. Stone, 9 Barb. 60. , In Johnson v. Cayuga and Susquehanna Railroad Company, 11 Barb. 621, it was held that the above provision could not be held applicable to a non-resident corporation, and that the ordinary proceeding by long summons was the proper course in such cases. In Sheriuood v. The Saratoga and Washington Railroad Company, 15 Barb. 650, it was held that a short summons issued against such a corporation was a nullity. The mode of obtaining the cognate remedy of attachment is pointed out in Vankirk v. Wilds, 11 Barb. 520. It would seem that the deposition required for the purpose of obtaining it need not be in writing, but may be oral ; Baker v. Williams, 12 Barb. 527 ; though the former is the more convenient course. The appearance of the defendant on the return of an attachment super- sedes the necessity of a subsequent summons. Comvayv. Hitchins, 9 Barb. 378. The bond required by the statute is imperative, and, if omitted, all the proceedings will be void. Davis v. Marshall, 14 Barb. 96; see Bennett v. Brown, 4 Comst. 254, 1 C. E. (N. S.) 267, there cited. See also Allen v. Stone, 9 Barb. 60. A formal defect 4 50 JUSTICES' COURTS. in the constable's return was disregarded, and a summons subse- quently issued and sustained, in Rosenfieldv. Howard, 15 Barb. 546- In the city of New York, where the jurisdiction of these courts is exercised with reference to the different wards of that city, the residence of one party within a ward is sufficient to confer jurisdiction ; but, where both are non-resident, the objec- tion will be fatal, and cannot be waived. Murphy v. Mooney, 2 Sandf..288; Cornell v. Smith, Id. 290. It was at first held that the summons must of necessity state on its face the cause of action, or, if not, it would be held to be a nullity, and no jurisdiction would be conferred. Ellis v. Merritt, 2 C. R 68 ; Cooper v. Chamberlain, 2 C. R 142. This view has however been distinctly overruled in Cornell v. Bennett, 11 Barb. 657, (see also Park v. Hitchcock, there cited in note,) and Smith v. Joyce, 12 Barb. 21. The defect, it was held in the former case, is amendable, and one that will be waived by the defendant's failure to appear and object when the case is called. The summons must not be for a shorter term of notice than that prescribed by statute, King v. Dowdall, 2 Sandf. 131 ; and the service of it must be properly and duly authenticated. Man- ning v. Johnson, 7 Barb. 457. The two last defects will, how- ever, be waived by appearance and answer without objection. Heilaer v. Barras, 3 C. R 17. Robinson v. West, 1 Sandf. 19. Service of the summons on one defendant will authorize the entry of judgment against others jointly sued in contract. Fogg v. Child, 13 Barb. 246. In actions for a tort, however, the con- trary is the case, and judgment so entered will be altogether void. Farrdl v. Calkins, 10 Barb. 348. It would seem that the justice may deputize a competent party to effect such service in lieu of the regular constable. Monteith v. Cash, 10 L. 0. 348. See BarrodaiU v. Leek, 9 Barb. 611. lie cannot however dele- gate any part of his general official authority, and, if he do so, the acts of such deputy will be void. Objections in the nature of a demurrer must be raised by the pleadings, or theycannol be taken afterwards. Jackson v. W/iee- .;<'. I:. L86. ')n the same principle, a plea of the general i beld to be sufficient on which to ground the introduc- tion of any testimony at the trial, where no objection was made to it lor want of certainty, at the time of the joinder of issue. Burfee v. EveUend, 8 Barb. L6. If the complainl be demurrable, the defendant must object to JUSTICES' COURTS. 51 it at once in that form. If he take issue upon it, he cannot after- wards object to it on appeal, on formal grounds. Neff v. Clute, 12 Barb. 466. And. even if a demurrer have been taken and overruled, the defendant, by putting in an answer, will waive the objection, and the appellate court cannot in such cases review the decision on the demurrer. Irvine v. Forbes, 11 Barb. 587. The principle that the court may disregard all matter in abate- ment, where the defendant relies on the merits, is also laid down in Monteith v. Gash, 10 L. 0. 318. The Code does not authorize the joinder of causes of action on contract and in tort in the same complaint in these courts, any more than in courts of record. The remedy in such case is to require the plaintiff, upon joining issue, or before proceeding to trial, to elect to which class of actions he will be confined. Burdick v. McAmbly, 9 How. 117. A plea of payment or set-off in these courts, is an admission of the plaintiff's case, nor can the latter be contested under such circumstances, if the defence on the above grounds fails. De Courcy v. Spalding, 3 C. R. 16; Young v. Moore, 2 C. R. 143. In Everitt v. Lish, 1 C. R. 71, a refusal to answer was held to be an admission of the plaintiff's claim, and to preclude the defend- ant from his right to a cross-examination. This decision was, however, under the Code of 1848, prior to the establishment of the present rules by sec. 64. The plaintiff cannot take judgment by default, without prov- ing his case ; Muscott v. Miller, 6 L. 0. 423 ; Smith v. Falconer, 1 C. R. 120 ; 2 Sandf. 640 ; a point indeed clear on the terms of the section itself. Nor can he, under any circumstances, take judgment for an amount greater than that mentioned in the sum- mons. Partridge v. Thayer, 1 C. R. 85 ; 2 Sandf. 227. A judg- ment taken on the plaintiif 's default to furnish a bill of particu- lars was held to be bad, under the Code of 1848, in Winslow v. Kiershi, 2 Sandf. 304, but the amended measures contain special provisions on this subject. In Mills v. Winslow, 3 C. R. 44, it was held that an action on the judgment of an Assistant Justice's Court, brought without the leave prescribed by sec. 71, could not be maintained ; the judge treating those courts, and also the Marine and Assistant Justices' Courts of New York, as not within the definition of "Courts of a Justice of the Peace." See also (John v. Coit, 3 C. R, 23. In McGuire v. Gallagher, 2 Sandf. 402, 1 C. R. 127, a 52 JUSTICES' COURTS. contrary view is taken on this point, and it was also held that the restrictions in sec. 71 are in no manner retrospective, in re- lation to causes of action accrued before the passage of the Code. The ordinary principles of law with reference to the regular conducting of a trial by jury, are applicable to those taking place in these courts. In Bell v. Davis, 8 Barb. 210, a judgment was accordingly reversed because the minutes of counsel had been laid before the jury. Where, however, at the request of the parties, the justice went into the jury-room, while they were deliberating on their verdict, a consent that he should read cer- tain testimony to them was implied ; Hancock v. Salmon, 8 Barb. 564; nor will the due exercise of the justice's discretion on the trial be interfered with, as, for instance, his refusal to allow ad- ditional evidence to be taken, after a motion for a nonsuit. Reed v. Barber, 3 C. R. 160. The justice cannot, it seems, receive the verdict of the jury in the absence of the plaintiff; and, if he does so, his judgment will be reversed. Douglass v. Blackman, 14 Barb. 381. Where, however, the justice returned that the jury delivered their ver- dict to him in court, it will be inferred that it was done regu- larly, though, prima facie, the circumstances seemed inconsistent. Beattie v. Qua, 15 Barb. 132. The judgment of a justice on questions of fact is, as a gene- ral rule, conclusive, as in other similar cases. Adsit v. Wilso7i, 7 How. 64 ; Kasson v. Mills, 8 How. 377. And, in reviewing such judgments in general, immaterial errors will be overlooked. Dunckle v. Kocker, 11 Barb. 387; Buck v. Waterbury, 13 Barb. 116. The justice is, by statute, bound to give his judgment within four days after the hearing of the cause. In Bissell v. Bissell, 11 Barb. 96, it was held that, contrary to the rules of practice in ordinary cases, Sunday is not excluded from, but included in the computation. A judgment rendered on Monday, Sunday ig tin; fourth day in that case, was accordingly held to be Void, as not being entered in due season. In these OOUrta, the strict rules which bind the judges of the higher tribunals, do not prevail; and, therefore, tin: partner or clerk of tin- justice may practice before him. Fox v. Jackson, 8 Barb. 855. Tin', judgment I of these courts are enforceable by process issued under their authority, according to the powers conferred JUSTICES' COURTS. 53 on them by the Eevised Statutes, (such powers embracing that of arrest in many cases,) but those judgments are not liens upon real estate, unless transcripts of them are docketed in the office of the clerk of the county, as prescribed in sec. 63, and unless for sums exceeding $25. The delivery of such a transcript on the part of the justice is compulsory, and may be enforced by mandamus. From the time of docketing, they become in effect judgments of the County Court, and are in all respects enforce- able as such. It would seem though that, in one respect, they acquire no greater weight by this process, but still remain on the footing of judgments of inferior courts; and that the lien on them, unless revived, will accordingly cease at the expira- tion of six years. Young v. Hemes, 4 Barb. 442. See 2 E. S. 359, sec. 5. As regards the statute of limitations, however, all judgments whatever seem now, by sec. 90 of the Code, to be placed on an equal footing. The transcript must correspond with the judgment in all respects, or the docketing will be void, nor can any material variance be either amended or disregarded by the court above. Simpkins v. Page, 1 C. E. 107. A defect in the issuing of execution, on the ground that the judgment had not been properly docketed, was, however, held in Roth v. Schloss, 6 Barb. 308, to be amendable, and the judgment was there allowed to be docketed nunc pro tunc. In Bander v. Burly, 15 Barb. 604, it was held that the pro- visions of the Eevised Statutes, in relation to the dates at which executions from these courts were made returnable, are repealed by the Code ; and that the period of sixty days, prescribed by the latter measure, now applies in all cases. The provisions under the former law in relation to the subsequent renewal of those executions, and the periods for which renewal may be made, were held on the contrary to be still in force, and to govern executions of this nature after the period of the original return. The appeal from all these tribunals lies, as before stated, to the county courts, or, in New York, to the Court of Common Pleas of that city. 54 ACTIONS IN GENERAL. BOOK II. OF ACTIONS GENERALLY CONSIDERED. CHAPTER I. OF ACTIONS IN GENERAL. § 24. General Definitions. The Code, in s. 1, classes remedies in courts of justice under the two heads of actions and special proceedings, giving in s. 2 and 3 the following definitions of each : § 2. An action is an ordinary proceeding in a court of justice, by which a party prosecutes another p arty, for the enforcement or protec- tion of a right, the redress or prevention of a wrong, or the punishment of a public offence. § 3. Every other remedy is a special proceeding. It then proceeds, in sections 5 and 6, to draw the distinctions between civil and criminal actions; declaring in section 7, that when; the violation of a right admits of both a civil and criminal remedy, the right to prosecute the one is not merged in the other. These provisions are, in substance, little more than declara- tory of tin; old and inherent distinctions between ordinary and special proceedings, and likewise between those appertaining to civil, in contradistinction to criminal jurisdiction. With the exercise of the latter, the Code, as it now stands, has no con- cern, and therefore the Bubject may beat, once and permanently dismissed, merely drawing the reader's attention to section 7, above cited, under which both civil and criminal proceedings ACTIONS IN GENERAL. 55 are capable of being taken in conjunction with each other, in relation to the same act, or state of circumstances. The boundaries between ordinary actions and special pro- ceedings are less capable of accurate definition, and many of the measures which will hereafter be treated of in connection with the due prosecution of the former, are, perhaps, strictly considered, rather of the latter nature ; as, for instance, pro- ceedings supplementary to execution, (see Davis v. Turner, 4 How. 190; Dunham v. Nicholson, 2 Sandf. 636,) and other similar steps in the ordinary assertion of the remedies ob- tainable by action. In practice, however, this distinction is unimportant. § 25. Alternative Remedies and Special Proceedings. There exists, likewise, in relation to real estate, a certain class of proceedings of a mixed nature, and which may be originated and carried on, either in the form of an action, or in that of a special proceeding, and under the forms of either the old or new practice, at the election of the parties. Of this nature are proceedings for partition. See Watson v. Brigham, 8 How- 290; 1 G.R 67; Backus v. Stilwell, 3 How. 318, 1 0. E. 70; Traver v. Traver, 3 How. 351 ; 1 C. E. 112 ; Myers v. Rasbach, 4 How. 83, 2 C. E. 13; Bow v. Row, 4 How. 133, — and various other cases subsequently cited under that head ; and likewise those for the admeasurement of dower, see Townsend v. Townsend, 2 Sandf. 711. Proceedings to compel the determination of conflicting claims to real property would seem, however, not to fall within • this class, but to belong to that of strictly special proceedings, notwithstanding the provisions of the Code to the contrary in section 449. Crane v. Sawyer, 5 How. 372, 1 C. E. (N. S.) 30. The different special proceedings which may be taken during the ordinary course of an action, will be treated of in due course in connection therewith; and those prescribed by the Code itself in reference to the preliminary settlement of con- troversies, Avill form the 'Subject of an introductory chapter. The remedies unconnected with the ordinary progress of a suit, and obtainable under special statutory provisions, will be shortly noticed at the conclusion of the work ; but, in accord- ance with its general plan, they will not be entered upon in detail, inasmuch as they are governed in all respects by the 56 ACTIONS IN GENERAL. forms of the Revised Statutes, or other independent enactments on the subject, and by the rules of the former practice. § 26. General Observations By the preamble to the Code, the then present forms of actions and pleadings in cases at common law, and the dis- tinction between legal and equitable remedies, are entirely abolished ; and, with that abolition, the multiplicity of nice and subtle distinctions between the different forms of actions, which formed so distinguishing a feature of the old practice, together with the numerous and intricate questions of law connected therewith, are at once and for ever annihilated. By the same preamble, when read in connection with the provisions of sec- tion 69, the formal lines of demarcation between legal and equitable remedies, and between ' actions at law and suits at equity, together with the previously existing forms in those actions or suits, are likewise completely swept away ; and one uniform course of proceeding in all cases, whether in relation to the enforcement of private rights, or to the redress of private wrongs, to be taken in one single form of action, denominated a civil action, is distinctly and in terms established in their stead. By these provisions, the main features of the ancient and complex system, together with the numerous distinctions and conflicts of jurisdiction, incident to the administration of law and equity by separate tribunals, are, beyond question, entirely superseded. It is impossible, indeed, to conceive a more complete and rad- ical abolition of the ancient forms and practice, than that effect- ed by these provisions; and, so far as matters of form alone are concerned, the conclusion to be drawn from them is irresistible. Although, however, the preamble seems to contemplate the abolition of all distinction between legal and equitable remedies i, that abolition is, to some extent, and must always con- tinue, impracticable. The Code itself, in numerous respects, and particularly in the institution of two different forms of summons, and tin- enabling provisions for the trial of causes by the court, contains ;i practical recognition of the separate na- ture of i o branches of jurisdiction, which the preamble in terms profe e i" amalgamate. The mere common law or statutory action, involving ;i simple recovery upon a simple and ACTIONS IN GENERAL. 57 certain issue ; and the complicated decree in chancery, embrac- ing: the concurrent dealing with a combination of intricate and often conflicting rights, and the adaptation of proportionate relief in respect of those rights generally considered, are, in their very essence, so completely diverse, that no human wisdom could establish any one uniform system, which would complete- ly adapt itself to both these states of circumstances, or under which adequate justice could be meted out in every case aris- ing under them. As regards certain general principles, all good pleading, whether legal or equitable, has always been substantially subject to similar rules ; and, under the new sys- tem, those general principles are now of far wider scope and far more general adaptability ; but still there must ever remain a wide and irreconcilable difference between the statements on which a mere money recovery may be obtained, and those which are requisite in order to ground a title to special or con- flicting relief, under a more complicated state of circumstances. This branch, of the subject is, however, so fully considered hereafter, in that portion of the work devoted to the considera- tion of pleading in a general point of view, in which the different cases on the subject will be found cited in detail, that it would be superfluous to dwell further upon it for the present. Though abolished in form, the old classification of actions arising ex contractu or ex delicto, still practically subsists, so far at least as regards the nature of the remedies obtainable in such actions ; and, with reference to the nature of the relief to be granted, and of the statutory limitations imposed, an equally broad line of demarcation may still be drawn between actions in relation to the recovery of real estate, or to the enforcement of claims upon property as such, and those where the relief sought for is capable of being represented by a simple money payment. It would, however, be a superfluous anticipation to enter at this juncture into the details of these distinctions, which will be duly drawn and commented upon, when different proceedings in such actions are brought under consideration. The question as to how far the provisions of the Code are or are not retrospective, in relation to proceedings in actions or suits commenced before its passage, will be found fully consi- dered in the concluding chapter of the work. 58 PARTIES TO AN ACTION. CHAPTER II. OF THE PARTIES TO AN ACTION. § 27. General Principles as to. By the provisions of the Code, the old common law doctrine with respect to parties is in effect superseded, and the rules which prevailed in equity substituted, with scarcely any modi- fication. See Wallace v. Eaton, 5 How. 99, 3 C. E. 161, and Hollen- beckv. Van Valhmburgh, 5 How. 281 ; 1 C.E, (N.S.) 33. In some few cases, however, the old common law principles have been upheld, as in The Merchants' Mutual Insurance Company v. Eaton, 11 L. 0. 140, with reference to the assignment of a cause of action in tort ; and Spencer v. Wheelock, 11 L. 0. 329, where it was held that parties liable for the same debt under different contracts could not be joined in the same action. See also De Bidder v. Schermerhom, 10 Barb. 638. The intentions of the commissioners of practice and pleading in framing these provisions, may thus be stated in their own words, taken from page 123 of their report : " The rules respecting parties in the courts of law, differ from those in the courts of equity. The blending of the jurisdiction makes it neces- sary to revise these rules to some extent. In doing so, we have had a three-fold purpose in view ; first, to do away with the artificial distinctions existing in the courts of law, and to require the real party in interest to appear in court as such ; second, to require the presence of such parties try to make an end of the controversy ; and, third, to allow othei ititude in respect to the number of parties who may !«• brought in." equitable interest is, accordingly, with very few and tions, the grand criterion as to who arc, or are not, the m '■• proper parties to a proceeding, of whatever nature; and it is, therefore, indispensable that the doctrine of the former Courts of Chancery in relation to this subject should be carefully studied; without which study, though the practice in ordinary cases may be easily understood, the principles which PARTIES TO AN ACTION. 59 govern that practice cannot. Safer guides cannot be taken in this respect than Mr. Edwards' valuable work on Parties, and the 3d and 4th chapters of Story's Commentaries on Equity Pleading; to which, and to the many elementary and other treatises on the same subject, the reader is accordingly referred. The remaining considerations upon it will, therefore, be simply confined to a general definition of the parties who, under the former practice, might or might not sue, or be sued ; with a notice in detail of the different provisions of the Code in relation thereto, and of the decided, cases with reference to those pro- visions. The ancient nomenclature of plaintiff and defendant- is expressly continued by sec. 70. This chapter naturally divides itself into two separate and independent branches. First, as to parties plaintiffs, and second, as to parties defendants ; which will be accordingly considered seriatim. § 28. General Rules as to Parties Plaintiffs. With reference to the plaintiffs in an action, the old equitable doctrine still prevails on the following, amongst many other, subjects, which will be found fully treated of in the works before referred to. Joint and several Contracts.] — An action upon a joint contract must be brought in the names of all the parties thereto, or in those of the survivors, if the cause of action survive; but if the contract be of a several or severable nature, any of the parties, or the representatives of any who are in the same interest, may sue, either in conjunction or severally, at their election. Aliens.'] — Aliens in general are competent to sue; but see observations in a previous part of the work as to the jurisdiction of the federal courts. An alien enemy, whilst he remains such, is not ; nor does the statute run against him, sec. 103. A criminal, while under sentence, is in like manner disqualified from suing. Corporations.] — Corporations and joint-stock companies may sue or be sued by the names, and under the forms prescribed in the laws authorizing their incorporation. See as to the latter, Laws of 1849, c. 258. 60 PARTIES TO AN ACTION. Heirs and Executors] — In cases where real estate of a deceased party is in question, the heir is the party entitled to sue as to the realty, and the executor or administrator in respect of rents become due, or damages accrued thereto, during the life of the deceased. In all cases arising out of the personal estate of a deceased party, the executor or administrator is of course the proper party to sue ; so also in an action to recover compensation for death by a wrongful act, under laws of 1849, c. 256. • Joint Wrong.] — Where an action is brought in respect of a joint wrong, each party injured must sue separately, except where the injury is one to partners, as such, or the action is for slan- der of title. Principal and Agent] — In all cases of agency, the principal must sue, and not the agent, unless the agent is personally inter- ested, and the former may sue on a contract made for his benefit, though in the agent's own name. Erickson v. Compton, 6 How. 471. Lunatics, <£c] — The committee of a lunatic, idiot, or habitual drunkard, may sue in all cases where he is authorized by statute, see laws of 1845, c. 112, sec. 2 ; 2 E. S., third edition, p. 115 ; but, in all other cases where this authority is not expressly given by statute, the action must be brought in the name of the luna- tic or idiot, by his next friend, or, it would seem, in the case of an habitual drunkard, by that party himself. See M'Killip v. M'Killip, 8 Barb. 552. In Person v. Warren, 14 Barb. 488, it was held that a committee might maintain an action in his own name, but for the benefit of the lunatic, for the purpose of set- ting aside a deed improvidently executed by the latter, nothow- ever strictly as committee, but as trustee of an express trust corning within the scope of the enabling provisions in sec. 1 L8. Ee cannot, liowever, by any act of his, affirm and sue upon the lunatic's contract, but must first obtain the direction of the court. Fitzhugh v. Wilcox, 12 Barb. 235. Before a committee ''an sue as such, he must obtain the author- ity of the court. Lunatics, idiots, and married women must sue by their next friend, and infanl i by their guardians, in all cases, except those specially provided for by statute PARTIES TO AN ACTION. 61 Parents or Masters.'] — A party standing in either of these capa- cities may sue in his own name, in respect of an injury to his child or servant, " per quod servitium amisit." He cannot, how- ever, maintain such an action unless he proves some pecuniary loss accrued to him. Stephenson v. Hall, 14 Barb. 222. The right of a parent to the custody of his infant children was maintained by the Supreme Court in The People v. Cooper, 8 How. 288. The putative father of an illegitimate child has however no right to its custody ; that right rests on the contrary with the mother. Bobalinda v. Armstrong, 15 Barb. 247. States.] — The State is competent to sue by its proper officer, and foreign states or potentates labor under no disqualification as such. Parceners.] — Coparceners must sue jointly, except in reference to a partition, but tenants in common may sue either jointly or severally, at' their election. Limited Partnership.] — In cases of limited partnership, under the provisions of Part II. E. S., chap. IV. title I. ; 1 R. S. 763 to 768, the acting general partners alone are the proper plain- tiffs. Ministerial Officers.] — Receivers, sheriffs, and all other parties exercising ministerial powers under the special appointment of the courts, in order to the realization of property, or the collec- tion of its proceeds, may sue, as such, in their own names. A similar rule applies, as of course, to public officers specially em- powered to sue as such by statute. See Wright v. Smith, 13 Barb. 414 ; Holmes v. Brown, 13 Barb. 599 ; Fuller v. Fidlerton, 14 Barb. 59. Suit in forma pauperis^] — A plaintiff without adequate means, may sue in formd pauperis under the provisions of the Revised Statutes before referred to, and, in this case, he cannot be required to give security for costs : he must however sue as such ab initio. Florence v. Bulkley, 12 L. O. 28 ; 1 Duer, 705. § 29. Parties Plaintiffs, Rules under Code. We now come to the different matters, in respect of which 62 PARTIES TO AN ACTION. the Code lias either altered or defined the previously existing rules upon the subject. Real Party in Interest] — The first provision to be noticed is that in section 113, under which, with the exception of actions by- executors or trustees as such, every action must be brought in the name of the real party in interest : establishing, as before stated, the equitable doctrine as to parties, in contradistinction to that formerly prevailing at common law. It will be seen that, by this section, the old common law doc- trine as to a chose in action being incapable of assignment, is done away with, and the assignee is now the proper party, and the only proper party, to sue thereupon, in all cases arising out of contract. See Combs v. Bateman, 10 Barb. 573. The assignee of a portion of an entire demand may main- tain an action in the nature of a suit in equity to recover his part ; nor will the objection avail as a defence, that others stand- ing in the same position have been satisfied. Cook v. Genesee Mutual Insurance Company, 8 How. 514. By the last amendment of the Code, the assignment of causes of action arising out of tort is prohibited for the future. See Hodg. man v. Western Railroad Corporation, 7 How. 492 ; Merchants' Mutual Insurance Company v. Eaton, 11 L. 0. 140. In the Code of 1849 no such provision was contained, and in Kellogg v. Church, 3 C. E. 53, it was held that such a cause was assignable, and that an action might be maintained by the assignee; but of course this proposition is now no longer law. It would seem from the case of Hall v. Robinson, 2 Comst. 293, that though a right of action in trover for a chattel is not assignable, a subse- quent purchaser of the chattel itself may reclaim, and bring an action to recover it in his own name. I n /'A- (hiii'lni Iluik y. Rodgers, 4 How. 63, 2 C. E. 45, it was held that u bank might sue in its own name, as real holders of ;i cote made payable to their cashier's order, and never regu- lar!. ! !'-. Iiiin. In Lanev, The Columbus Insurance Com- /> \ny s "1 C. I«. < 15, the same principle was carried still further, and, alth policy there in question was effeoted by an agent in his own name, and with a clause that the loss, if any, was to 1).: paid t." him (the agent) "only" the principal was, neverthe- beld to be entitled to maintain an action upon it. In Bos PARTIES TO AN ACTION. (33 v. Seaman, 2 C. R 1, the judge "inclined to the belief" that, not- withstanding these provisions, bonds taken in the name of the people of the State ought still to be so prosecuted, and not in the name of the real party in interest; but this opinion is so doubtfully pronounced, and appears so contrary to the general spirit of the measure, that it can be scarcely considered as of positive authority. In Hoogland v. Hudson, however, 8 How. 343, it was held that the same provisions were inapplicable to suits by official persons in their name of office, under special authority conferred by statute, who were there looked upon as trustees of an express trust within the scope of sec. 113. It will be seen that, by section 112, the rights of the opposite party to interpose any defence, by set-off or otherwise, in re- spect of a chose in action sued upon by the assignee, are made the subject of express reservation. In the event of any defence of this nature being set up, it would seem that the assignor ought then to be made a party by amendment, in order that the controversy' between him and the original defendant maybe brought to an issue ; though, otherwise, it would be neither ne- cessary nor proper to include him in the action, inasmuch as, under ordinary circumstances, he neither seeks relief himself, nor is relief sought against him. The law, as it previously stood, in respect to the exemption from this restriction of nego- tiable promissory notes or bills transferred bond fide and before maturity, is expressly declared at the end of the section. Executors.'] — By sec. 113, the previous rules with reference to actions by executors or administrators, and trustees of express trusts, are expressty enacted, and they may now sue as before in all cases, without joining their cestui que trust in the action. An administrator, it would seem, may sue on a promissory note given for part of his intestate's estate, either personally, or in his representative capacity, at his election. Bright v. Carrie, 5 Sandf. 433 ; 10 L. O. 104 ; Merritt v. Seaman, 2 Seld. 168. Trustees.'] — By the recent amendments, the utmost extent of signification is attributed to the term " trustee of an express trust;" and all parties with whom, or in whose name, a contract is made for the benefit of another, are expressly declared to be included within it. This amendment is in accordance with the views previously laid down in Grirmellv. Schmidt, 2 Sandf. 706; ,04 PARTIES TO AN ACTION. 3 C. E. 19 ; 8 L. 0. 197, on the subject of mercantile factors, or agents, doing business for others, but in their own names: and also in Ward v. Whitney, 3 Sandf. 399, with reference to the managing owner of a vessel, where another party held a mere executory contract for the purchase of an interest therein. In Hahicht v. Pernberton, 4 Sandf. 657, the same principle was ex- tended to the case of the general agent of an incorporated asso- ciation; in Person v. Warren, 14 Barb. 488, to the committee of a lunatic, siring to set aside the lunatic's improvident deed; in Hoogland v. Hudson, 8 How. 343, to the case of an overseer suing under a filiation bond ; and in Burbank v. Beach, 15 Barb. 326, to the nominal proprietor of an individual bank. The administrator of a person killed by a steamboat accident, was also held to be the proper party to bring an action under the statute of 1847, on behalf of his widow and next of kin. Safford v. Drew, 12 L. 0. 150. The law on the subject of suits brought by the committees of lunatics, &c, in their own names, has been before referred to. Eeceivers, under sections 244 and 299 of the Code, and Eule 81 of the Supreme Court, and sheriffs, under sec. 232, also possess authority to sue in their own names ; though they may likewise sue in the names of the parties for whom they act,-or may dele- gate the right to sue to such parties, and may therefore be con- sidered as coming within the spirit of sec. 113. It by no means follows, however, that, because parties an- swering the general description of trustees of an express trust, under the extended signification given to the term by the recent amendments, may sue in their own names, the real parties in interest may not also sue in many of such cases; and, in the event of any conflict between two suits of this nature occurring, proceedings instituted by the latter might, in all probability, obtain the preference. The instance of a party for whose benefit a contract bas been made, may be mentioned as a type of num- berli of this description that might arise in practice. The above-cited cases of The Camden Ban/c v. Bodgers, and Lane v. The Columbus Insurance Company t &ie in fact express authority to thi I; the reeenl i tatu te, c. 224 of Laws of 1854, p. 502, trustees under :ni ae ignment by an insolvent corporation, whose trust ! from any cause have become vested in the Supreme Court, are invested will: all the power, and made subject to the obli- PARTIES TO AN ACTION. 55 gations and duties imposed by art. III., title IV., part III., c. VIII. of the Kevised Statutes upon Receivers appointed on the volun- tary dissolution of such a corporation, and likewise with those conferred or imposed by the act of 19th March, 1852, to facilitate the collection of debts against corporations, subject in all respects to the control and direction of the court. Husband and Wife.~\ — The next point that arises for consider- ation is with respect to the interests of married women ; the provisions of the Code on which subject are as follows : § 114. When a married woman is a party, her husband must be joined with her, except that, 1. When the action concerns her separate property, she may sue alone. 2. When the action is between herself and her husband, she may sue or be sued alone. But, where her husband cannot be joined with her, as herein pro- vided, she shall prosecute or defend by her next friend. The above clause is evidently imperative as to the joinder of the husband as co-plaintiff with the wife, in whatever character she may sue, except under the circumstances specially pro- vided for. As regards her separate property, it is clear that she may sue alone, Willis v. Underliill, 6 How. 396; though it would seem she is not absolutely bound to do so. See infra. The last clause in this section was inserted as an amendment in 1851, in consequence of a conflict in the previous decisions on the subject. The conclusion that a married woman could sue or be sued in her own name, under the Code as it stood before, was come to in Tippd v. Tippel, 4 How. 846, 3 C. R. 40; Newman v. Newman, 3 C. R. 183; Anon., 3 C. R. 18; Shore v. Shore, 2 Sandf. 715 ; 8 L. 0. 166, (the same case as the last,) and was acted upon without question in White v. White, 4 How. 102 : the contrary proposition was maintained in Colt v. Coit, 4 How. 232; 2 C. R. 94, affirmed 6 How. 53; Forrest v. Forrest, Z C. R. 254; and Cook v. Rawdon, 6 How. 233, 1 C. R. (N. S.) 382. The question is now set at rest by the amendment in question ; and the provision has since been acted upon in Heller v. Heller, 6 How. 194, 1 C. R. (N. S.) 309 ; Meldora v. Meldora, 4 Sanclf. 721 ; Hender- son v. Easton, 8 How. 201 ; and Towner v. Towner, 7 How. 387. Her previous consent is of course necessary, before a suit can pro- perly be commenced in her name by a party acting as next friend, 5 QQ PARTIES TO AN ACTION. No formal order appointing such, party is however necessary- Towner v. Towner, above cited. Where the husband and wife possess different interests in the same subject-matter, they may properly be joined as plaintiffs. Gonde v. Shephard, 4 How. 75 ; Conde v. Nelson, 2 C. K. 58 ; In- graham v. Baldwin, 12 Barb. 9, affirmed by the Court of Ap- peals, 7th Oct., 1853. In Van Bur en v. Cockburn, 2 C. R. 63, it was held that the joinder of the husband as co-plaintiff with the wife, in a suit relating to her separate estate, was no ground of demurrer. The contrary is however maintained, and Van Buren v. Cockburn expressly dissented from, in Brownson v. Gifford, 8 How. 389, where such a demurrer was allowed. See also Bailey v. Easterly, 7 How. 495, as to their joinder as defendants. The point seems however very doubtful ; where any interest whatever, either present or inchoate, is vested in the husband, it would seem that this strict view cannot prevail. See Ingraham v. Baldwin, 12 Barb. 9. See likewise Ilowland v. Fort Edward Paper Mill Company, 8 How. 505 ; and in all cases of this description it will be- clearly proper, and in most cases necessary to make him a defendant, even if he be not joined as plaintiff. In a partition suit by the husband, the wife must be joined as co-plaintiff in respect of her inchoate right of dower. Ripple v. Gilborn, 8 How. 456. The husband's interests, in cases arising before the recent act for the protection of married women, are recognized in Jones v. Patterson, 1 1 Barb. 572, where it was held that he might sue for occupation of his deceased wife's estate during the coverture. In Moore v. The City of New York, 4 Sandf. 456, affirmed by the Courts of Appeals, 12th April, 1853, the wife's dower was refused to be allowed as a charge upon lands taken under an act of the Legislature during the husband's lifetime. Goods purchased by the wife were allowed to be taken on execution for the debt of the husband, notwithstanding the statute, in Lovett v. Robin- son, 7 Now. L05. In Perkins v. Coffrell, L5 Barb. 446, property originally belonging to and Lately reassigned to the wife, but wliidi had intermediately passed through the husband to his assignees, was held liable to be sold on execution for his debts prior t'» the rea signment. Tin- rights of the wife, on the contrary, as regards the disposal of her separate property by will, are fully maintained in The PARTIES TO AN ACTION. QJ American Home Missionary Society v. Wadhams, 10 Barb. 597. See also as to her rights under an ante-nuptial contract before the statute, Van Allen v. Humphrey, 15 Barb. 555, and Sheldon v. Pelton, Court of Appeals, 12th April, 1853 ; in which last case it is held that such a contract, when not fully performed, is no bar to a widow's claim to the property to which she is entitled by statute. She may transfer a note belonging to her as part of her separate property, pending an action for its value, and the transferee may be substituted in her stead by order, whereon her husband will become a competent witness. Hastings v. McKinley, Court of Appeals, 7th Oct., 1853. In Gates v. Brower, Court of Appeals, 31st Dec, 1853, her right to make a purchase on her own separate account, of farming stock, to be used on a farm occupied by herself and her husband, seems to be recog- nized, even though it did not appear that she had any separate estate. A new trial was however granted, on the ground that the question of her agency for the husband ought to have been submitted to the jury. The general rights of a wife under the recent statute, as be- tween herself and her husband, are defined in Van Sickle v. Van Sickle, 8 How. 265. Their joint deed, not acknowledged by her, will only avail to pass the husband's interest : on his death she will be restored to all her rights in the premises; nor will even the fact that the consideration for that deed was actually paid to her, estop her claim to the land. Curtiss v. Follett, 15 Barb. 337. Nor can she be made liable for her own contract made jointly with her husband. Marquat v. Marquat, 7 How. 417; Bailey v. Easterly, 7 How. 495. Her dower right cannot be conveyed by her to her husband, Graham v. Van Wyck, 14 Barb. 531 ; 7 How. 373. Nor can her paramount right to dower be evaded, in a suit by a mortgagee, even though she be made a party to that suit in another capa- city. Denton v. Nanney, 8 Barb. 618; Lewis v. Smith, 11 Barb. 152 ; affirmed by Court of Appeals, 18th April, 1854. Her claim in this respect will always be favored, nor will she be de- prived of it by a testamentary disposition for her benefit, unless the testator's intent to do so appear expressly or by necessary implication. Lasher v. Lasher, 13 Barb. 106. See as to the enforcement of her rights in respect of her dower, Ellicott v. Mosier, 11 Barb. 574. Nor, it seems, can a set-off be pleaded in an action by her for that purpose. Bogardus v. Parker, 7 How. 303. 63 PARTIES TO AN ACTION. Where, however, in knowledge of her rights, the widow of a testator had affirmed a contract for sale of specific personal property, made by his executor, and agreed to accept that con- tract in lieu of her claim, she was held to be bound by its terms, and to be liable to rebate to the purchaser for a deficiency in its subject-matter. Carter v. Hamilton, Court of Appeals, 18th April, 1854. In a gross case of fraud by a married woman, a judgment obtained against her in error, as a feme sole, was refused to be set aside on motion, and she was left to her appeal. Jenei v. Dusenbury, 11 L. 0. 355. In 12 L. 0. 31, will be found a long communication on the subject of the rights and powers of mar- ried women, in which the subject is fully gone into and various authorities cited. The principle of the wife's separate interest was, it may be remarked, fully recognized in Pillow v. Bushnell, 4 How. 9 ; 2 C. R. 19; an action brought by husband and wife for an assault on the latter, where evidence of the assault being committed with her consent, was held to be admissible ; and that such consent, if proved, constituted an entire defence. See also Erwin v. Smaller, 2 Sandf. 310 ; Hasbrouck v. Vandervoort, 9 L. 0. 249 ; 4 Sandf. 596; 1 C. E. (JST. S.) 81 ; affirmed by Court of Appeals, 31st Dec, 1853. It may not be superfluous either to remark at this point, that, in White v. White, 4 How. 102, before cited, sec. 2 of the act, c. 200, of the laws of 1848, which gives the wife a separate interest in all property whatever, accruing to her during the coverture, was held to be unconstitutional, as far as regarded its retrospect- ive effect in relation to marriages existing at the time of the passage of that act; but not so as regards its prospective ope- ration. Although, as a general rule, the appointment of a guardian is a accessary preliminary to the commencement of a suit where :ui infant is party, see Hill v. Thacter, 3 How. 407; C. E. 3, it seems that where the suit is by husband and wife, in respect of their joint property, the wife being an infant, the appointment of ;i guardian for the wife will not be necessary. The husband appoints an attorney for both. Cook v. Bawdon, 6 How. 233, ! ( !, I>\ (\ . S) S82. See alsi » Hubert v. Newell, 4 How. 93. Infiiiir-.] —Aw infant can only sue by his guardian, as above. PARTIES TO AN ACTION. (39 It seems, however, that, when a suit is once brought by him, he is as much bound and as little privileged as a plaintiff of full age. A decree for sale of an estate, in which infant plaintiffs were interested, on the prayer of a mortgagee defendant, was ac- cordingly sustained in Darvin v. Hatfield, 4 Sandf. 468. Joinder of Parties interested.'] — By sec. 117, it is enacted that all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be properly joined as plaintiffs, except as otherwise provided. In Peck v. Elder, 3 Sandf. 126, it was held, in accordance with this principle, that owners of different tenements affected by the same nuisance, might join as co-plaintiffs in a suit to restrain its continuance. In Conro v. Port Henry Iron Company, 12 Barb. 27, it was similarly laid down, that several creditors of the same debtor might unite in a general creditors' bill, although it was competent for one only to maintain such a suit. Of course, the provision in question must be understood with this qualification, that the persons so to be joined have all the same interest in the subject-matter of the action, and in the relief to be obtained in it. If their rights in relation thereto are in any manner diverse or opposed to each other, they cannot be properly joined as co-plaintiffs, notwith- standing they may all possess, to a certain extent, a common title to relief against some other party. They must, under such circumstances, be classified ; and one or other of the classes must appear in the character of defendants, the remaining one undertaking the conduct of the suit. It will be seen that, by sec. 119, the joinder, as plaintiffs, of all parties in the same interest is made positively imperative, unless in the event of their refusal, when, but not otherwise, they may be made de- fendants. Actions on behalf of State. ~\ — The provisions of sec. 447, in re- ference to actions brought by the proper officer, on forfeiture of property to the people of the State, will of course be remarked. Action by One of a Class.'] — The old practice of one or more of a numerous class suinsr for the benefit of the whole, as in the former creditor's suit, and other similar proceedings, is, as will be seen, expressly provided for by the latter part of sec. 119. A party, member of a class of persons interested in a particular 70 PARTIES TO AN ACTION. branch of labor, may maintain a suit in his own name, without making the others parties, provided he brings it on behalf of himself, and all others, members of that class. He cannot, how- ever, bring a separate action in his own name only, unless he has an interest in the subject, peculiar to himself, and not en- joyed in common with others. Smith v. Lockivood, 13 Barb. 209 ; 10 L. 0. 32 ; 1 C. R. (N. S.) 319. Nor can any one maintain an action for an injury to others, whether they be individuals or the public, unless his own rights are invaded. Badeau v. Mead, 14 Barb. 328. The practice in suits of this description will be found laid down in extenso, and various authorities cited, in Conro v. Port Henry Iron Company, 12 Barb. 27. In McKenzie v.DAmou- reux, 11 Barb. 516, an action, brought by some of the legatees under a will, against the personal representatives and devisees of the testator, was sustained ; and it was laid down, firstly, that where the question is one of common and general interest, such an action may be brought, without showing affirmatively the im- possibility of bringing in the other parties ; and, secondly, that this provision of the Code applies indiscriminately to all actions, whether they involve questions of common interest or not. In relation to the shareholders in a foreign incorporated associa- tion, but not incorporated under the laws of this State, see Habicht v. Pemberton, 4 Sandf. 657, laying down that, in such cases, the general agent of the society is competent to sue on their behalf under sec. 113, and allowing a demurrer to an action brought by a shareholder on behalf of himself and the other parties entitled. In Davis v. Garr, 2 Seld. 124, where a note had been given to the trustees of a similar association and their successors in office, it was held that the individuals named in that note might maintain an action in their own names, though others had succeeded them as trustees. In Bouton v. The City of Brooklyn, however, 15 Barb. 375; 7 IIow. 198, an action brought by a party complaining of a munici- pal assessment, on behalf of himself and other landholders, simi- larly interested, was held not to be maintainable, on the ground that tin' parties had no common rights in the subject-matter in question, which would authorize them to use that form of remedy. Recusant Parties made Defendants.'] — Where any party who ought otherwise to have been joined as a plaintiff' will not con- PARTIES TO AN ACTION. 71 sent, he may be made a defendant, according to the old Chan- cery practice upon the subject. Sec. 119. § 30. Parties Defendants, General Rules. We now come, in the second place, as to who are or are not necessary or proper parties to be made defendants in an action when brought ; and many of the general observations before made in reference to parties plaintiffs, are applicable to this branch of the question also. According to the plan above adopted with reference to parties plaintiffs, it will be sufficient shortly to notice some few of the cases in which the practice still stands as it did before the Code, referring the reader to the works there alluded to, for more de- tailed information, but entering in detail into the special provi- sions of the Code on the subject, and the decided cases thereon. The old doctrine still prevails then on the following points : — Joint and Several Contractors. ,] — Where parties are sued upon a joint contract, or are joint tenants of real estate, all, or the sur- vivors of them, must be made defendants. Thus in Bridge v. Pay son, 5 Sandf. 210, the nonjoinder of the copartner of a per- son liable only as a partner, but sued alone, was held to be a valid defence. Where they are sued on a joint and several contract, the plain- tiff may include all, and also the representatives of any deceased , in one action ; or may proceed against them separately, at his election. See however sec. 304, as to costs in the latter case. Aliens^ — An alien, or a citizen of another State, may be sued in the State courts ; but see previous observations as to the fede- ral jurisdiction, when invoked under these circumstances. As long, however, as the former sustains the character of an alien enemy, the statute does not run ; sec. 103. Corporations .] — Corporations, domestic or foreign, are sued, as before noticed, under their corporate names; and joint-stock companies may be sued in the name of their president or trea- surer. See c. 258, Laws of 1849. Individual corporators cannot be properly joined in a suit against a corporation, see Pack v. The Mayor of New York, 3 72 PARTIES TO AN ACTION. Comst. 489, unless they have some individual interest which may render them proper parties. See however Habicht v. Pemberton, and Davis v. Gear, before cited, in relation to foreign associations, the incorporation of which is not proved, or recognized by the laws of this State. In Pack v. The Mayor of New York, Court of Appeals, 12th April, 1853, and likewise in Grub v. The Mayor of New York, Court of Appeals, 18th April, 1854, the Corporation of that city were held not to be liable for damages accrued to an individual, by the negligence of their sub-contractors in executing a public work. Shareholders, <£c] — Shareholders and stockholders in dissolved companies for manufacturing purposes, may be sued, to the amount of their shares, by creditors of those companies, under the provisions of the act of 22d March, 1811. See3K.S.262, Third Edition; see also Laws of 1848, c. 40; 3 K. S., Third Edition, 613 ; Laws of 1853, c. 333, p. 705. By the latter act, the holders of stock, issued in payment for property purchased, to the amount of the value of that property, and so reported, are exempted from all farther liability. liepresentatives of Deceased Debtor.] — As long as the personalty of a deceased debtor remains unexhausted, his executor or ad- ministrator is the proper party to be sued, before distribution ; but, afterwards, the assets may be pursued in the hands of next of kin, or legatees. But, after the exhaustion of such personal estate, the real estate may be resorted to, first in the hands of the executor, and afterwards in those of the heir, and, failing, in those of the devi- see of such real estate. In Stewart v. Kissam, 11 Barb. 271, the priorities of the parties sued in the above capacities are distinctly laid down, and it was held, 1st, That before a creditor can sue legatees, he must show that no assets havel a delivered to or remain with the next of ':in. 2d, That before the heirs can be sued, the insufficiency of the ]"■!' >nal estate In the hands of the executors, next of kin, nnd legatees must be shown, and that a suit at law against those parties is a nee© ary preliminary to the right to sue the heir.-; and, 8d, That before devisees can be resorted to, the insufficiency and the exhaustion of all remedies against the prior PARTIES TO AN ACTION. 73 parties, must in like manner be shown. It was also held that it makes no difference that the same persons are entitled to the whole estate, real and personal, the statute requiring the creditor in all cases to seek satisfaction from the latter, before he resorts to the former in the hands of the heirs. In the same case it was held that the heirs, under such cir- cumstances, must all be sued jointly, whether in law or in equity, and also that the heirs and personal representatives cannot be joined in the same suit. This last conclusion seems however to be no longer law, owing to the subsequent amendments in s. 167. In Kellogg v. Olmsted, 6 How. 487, it was in like manner held that, under the statute of 1837, Laws of 1837, p. 537, s. 73, the heirs of an intestate must be sued jointly, and cannot be so se- parately, for a debt against the intestate ; but that such liability does not make them liable as joint debtors, within the purview of the statutory provisions in relation to the taking of judgment against parties standing in that capacity, and not served with process. In Roe v. Swezey, 10 Barb. 247, the same conclusions as were come to in Stewart v. Kissam with respect to the pre- requisites to a suit against heirs under these circumstances, are maintained, and it was held that such a suit could not be brought, within the three years' limitation prescribed by the statute, under any circumstances. Executors, nsu] is indebted jointly with a non-privileged party. This cas': b I" en affirmed by the Court of Appeals ; Valarino v. Thompson^ L2th April, L863; and by it the doctrine above stated \b clearly e tablished to its full extent. In Be AffcinenOi I Sandf. ''''• ,, »: and Griffin v. Dominguez, 11 PARTIES TO AN ACTION. 75 L. O. 285; the same principle is maintained, as regards an at- tachment in the former, and proceedings supplementary to exe- cution in the latter case. A foreign state or potentate cannot, it would seem, be sued, unless in the federal tribunals. Members of Legislature.'] — A member of the Legislature is privileged from arrest, but no farther ; and therefore a suit may be commenced or prosecuted against him as usual, in all other respects, except as regards remedies against the person. Defendants in Tort.] — Actions \ /: respect of wrong, jointly committed by several parties, may be brought against all, or against any of those parties ind'rvidually. Where the same wrong is committed by more than o-ne party severally, as on slander for the same words spoke/.., separate actions must be brought. Infants may be sued for personal torts, and corporate bodies for damages arising from the neglect of their servants. "Where a married woman is sued for tort, committed before or during coverture, her husband must be joined. The death of the wrong-doer in actions for personal tort, ex- tinguishes the remedy. In these, " actio personalis moritur cum persona." Where, however, the action really arises out of con- : tract, though formally brought in respect of a wrong, the ordi- nary rules as to parties apply. Principal and Agent.] — The principal, not the agent, is the proper defendant in all cases, unless, as before remarked, the agent be personally interested. Associations owning Vessels.] — In chap. 385 of the laws of 1836, special provision is made with reference to the parties to be made defendants in actions against associations owning vessels, &c, and a plaintiff is not bound to make persons parties, who have not acquired and duly registered their interest as thereby provided, at least thirty days before suit brought. Partition.] — In partition, every person directly or indirectly interested in the corpus of the estate itself must be a party, in- cluding the wives of parties living, in respect of their inchoate right to dower. Incumbrancers are not necessary parties, though it may sometimes be expedient to make them so, in order to bind them by the decree. Bogardus v. Parker, 7 How. 305. If 76 PARTIES TO AN ACTION. done, however, this will be at the risk of costs, see Hammersley v. Hammersley, 7 L. 0. 127, unless it be done, as there, at the request of the other parties. The including superfluous parties will not, under ordinary cir- cumstances, constitute a demurrable objection. Broumson v. Gif ford, 8 How. 389. Foreclosure^] — In foreclosure, every person interested in the corpus of the estate, and every junior incumbrancer, whether on mortgage, or as a creditor on a judgment docketed in the same county, must be made a party. Senior incumbrances may be omitted, unless it is sought to pay off their mortgages out of the sale-moneys, in which case they must be joined. And, although they be joined, their paramount rights prior to the incumbrance sought to be enforced, will not be affected, Lewis v. Smith, 11 Barb. 151, affirmed by Court of Appeals, 18th April, 1854. The dower right of the wife or widow of the owner is a para- mount right of this description, and will render her, as such, a necessary party. See also Denton v. Nanny, 8 Barb. 618. The rights of a party claiming adversely, and prior to the mortgage, cannot properly be litigated in an ordinary suit for foreclosure; and, if he object, the suit should be dismissed against him. Corning v, /Smith, 2 Seld. 82. In an action for foreclosure of a mechanic's lien, similar principles to the above prevail, both generally, and with reference to prior incumbrances. Sullivan v. Decker, 12 L. 0. 109. A party plaintiff will equally be bound by the decree in foreclosure, if adverse to any rights he may claim. Iloyt v. Marterise, 8 How. 196. Ejectment^ — In ejectment, the proper defendants now appear to be all persons claiming an adverse title in their own right, or their heirs at law, if deceased, and also the person in actual p ion of the premises. Sec Waldcrph v. Bortle, 4 How. 858. That the tenant in possession is a necessary party in such an action, is al io laid down iii EUicott v. Moster, 11 Barb. 574; Fosgate v. Herkimer Manufacturing and Hydraulic Company, 12 B rb.852. [n the latter case it was likewise held that parties interest to the plaintills, though not, in pos- session, might properly 1"' joined under sec. 118, in order to a c implete determination of the controversy ; but in Van Buren v. Coclcburn^ J I Barb, 118, it was decided that a person standing PARTIES TO AN ACTION. 77 in this last position was not a necessary party. Where, how- ever, defendants were not actually in possession, and never had been, nor received any rents since the plaintiff's interest was acquired, it was held that they were improperly joined. Van Home v. Everson, 13 Barb. 526. § 31. Parties Defendants — Rules under Code. We come now to the peculiar provisions of the Code itself, in reference to the parties who may, or ought to be made defend- ants, and to the decisions thereon. Assignee of a Chose in Aclion.~\ — Of course the alteration of the previous law with respect to the assignment of choses in action, arising out of contract, is equally applicable to the case of a de- fendant, as to that of a plaintiff, and such assignee may be sued as well as, sue in respect of matter arising thereout. In Cook v. Genesee Mutual Insurance Company, 8 IIow. 514, it was held that assignees of portions of an entire demand, who had not received their shares, were proper parties in a suit instituted by another standing in the same capacity ; but that it would not be necessary to join others who had received their proportions. Husband and Wife, Lunatics, <£c] — The husband of a married woman must, as a general rule, be joined as a co-defendant with her in every case, except where the suit is one between them- selves as parties. There can be no doubt but that this rule holds good, even when the suit is concerning her separate pro- perty, or she is sued in a representative capacity. Although husband and wife may possess distinct interests in the same subject-matter, the joinder of both in the same action will be no ground of objection. Conde v. Shephard, 4 How. 75 ; 2 C. E. 58. See this subject fully considered in a preceding portion of the chapter. The same doctrine will of course hold good as respects luna- tics or idiots, or habitual drunkards and their committees. In relation to the necessity of a married woman appearing by her guardian or next friend, see heretofore under the head of Parties Plaintiffs. Infants.~] — An infant must appear by guardian, and no pro- 78 PARTIES TO AN ACTION. ceeding in the suit will be valid until such guardian is ap- pointed, (see Kellogg v. Klock, 2 C. K. 28,) but he must be made party in his own name, and the summons served according to the special directions in sec. 184. In S locum v. Hooker, 6 How. 167 ; 10 L. 0. 49, 12 Barb. 563, it was held at special term that, where one of several joint contractors was an infant, he was not a necessary party to a suit on the joint contract, and that he might be disregarded entirely in bringing an action against the firm. This decision has, however, been reversed by the Gene- ral Term. See 13 Barb. 536. In Brown v. McCune, S Sandf. 224, it was held that an action could not be maintained against an infant for goods obtained by him during his minority, even though by his own fraudulent representations as to his real age. Joint or Several Liabilities.'] — By sec. 120, it is declared that, as formerly, in actions against parties severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, all or any of such parties may be included in the same action, at the option of the plaintiff. If, however, he bring separate actions, he does so at the risk of being only allowed one set of costs, under sec. 304. In Enos v. T/iomas, 4 How. 48, it was held that a contract, with a guaranty signed at its' foot, was, for the purposes of an action founded thereon, to be considered as one instrument ; and that the party who signed the guaranty there in question, was properly joined as co-defendant with the party to the contract, as it stood before the guaranty was subjoined. See, however, Brewster v. Sleure, 1 1 Barb. 144, to the effect that such a guaranty will not be v;ilid under the Statute of Frauds, unless a consideration be ex- pi •■ 1 upon its face; and, see the subject of the liability of parties under instruments of this description, hereafter fully idered under the head of Complaint. Trustees for Creditors, &c. — In the Bank of North American. Suydam, 1 0. Et. (N. S.) 325, 6 How. 379, it was held that, in an aside an assignment for the benefit of creditors, on the ground of a fraudulent preference given to one of their body, the ail m i well brought against the parties to the assignment and the preferred creditors alone, and that the other creditors for whom provision was made were not necessary parties. In such :i ca e the a represents all the creditors interested in the tin b, Hi defi nee is their defence, in the same manner PARTIES TO AN ACTION. 79 as an executor represents the estate intrusted to him; and the case of Orover v. Wakeman, 4 Paige, 23, and 11 Wendell, 187, is referred to as settling the question. In Scudder v. Voorhis, 5 Sandf. 271, it was held that, in a bill filed to set aside an assignment for the benefit of creditors as fraudulent, it was sufficient to make the trustee a party defend- ant, without'joining the beneficiaries under the trust. See also Johnson v. Snyder, 7 How. 395, holding that a trustee appointed by the court in the place of an assignee for the creditors of one of the partners, is a necessary party to an action for taking an account of the partnership estate. In the same case, it was sub- sequently held that the creditors protected by that assignment were necessary to be brought in. Johnson v. Snyder, 8 How. 498. Unknown Defendant.'] — Where, at the time of commencing the action, the real defendant is unknown, the plaintiff may sue in a fictitious name, amending when the true one is discovered, sec. 175. See Pindar v. Black, 4 How. 95. Superfluous Parties.] — In Hull v. Smith, 8 How. 281, and Broionson v. Gifford, 8 How. 389, it was held that the introduc- tion of superfluous parties as defendants, was no ground for de- murrer, though of course as a general rule it will be most inex- pedient to do so. Joinder of Recusant Parties.] — By sec. 119, provision is made for the joinder as defendants of any parties who, in strictness, ought to be plaintiffs, but refuse to be joined as such ; a provi- sion analogous in all respects to the rules of the old chancery practice. Defendant for a Class.] — Under the same section, power is given for one or more defendants of a class to defend for the benefit of the whole, where that class is very numerous, or it may be impracticable to bring all the parties composing it be- fore the court.; except, however", under very unusual circum- stances, it would scarcely be prudent to omit joining every party really interested in the first instance. Defendants necessary in certain cases.] — In Niles v. Randall, 2 C. E. 31, it was held, that, in an action to set aside a mortgage as usurious, brought against an assignee of that mortgage, the original mortgagee was properly made a defendant. N.B. — The 80 PARTIES TO AN ACTION. Reporter's head note is the direct reverse of the statement in the body of the report. Where, too, the plaintiff in a judgment creditor's suit at- tempted to reach moneys due on a mortgage, alleged to be fraudulently assigned, it was held that the assignee of that mortgage must be made a party, though he resided out of the State. Gray v. Schenck, 4 Comst. 460. In Kidd v. Denrmon, 6 Barb. 9, it was held that the vendee of an estate was a necessary party to a bill filed by the vendor, to stay waste on the premises, pending the contract for sale, and before its completion. In an action brought by the receiver under a creditor's bill, to reach property in the hands of the trustees of a judgment debtor, the latter was held to be a necessary party. Vander- pool v. Van Valkenburgh, 2 Seld. 190. In an action against the owner of property, under the Mecha- nics' Lien Law, brought by a sub-contractor, the contractor is a necessary party, and, on application, will be ordered to be brought in. Sullivan v. Decker, 12 L. 0. 109. The former chan- cery practice on this subject, as referred to in the outset of the chapter, may advantageously be consulted. § 31. Bringing in of Parlies, Necessary Defendants. The first provision on this subject is made by sec. 118, by which the fullest latitude is given for the bringing in as defend- CD O O ants, of any persons having or claiming interests adverse to those of plaintiffs, or who may be necessary parties to a complete de- termination and settlement of the questions involved in the cause ; though, of course, any plaintiff joining persons as defendants, whose interests in the matter in controversy are doubtful, does so at the risk of having to pay the costs of such parties, in case it shall be decided that they were unnecessarily brought in. See Hai i v. Hammersl //, 7 L. O. 127. General Power as to Parties."] — By section 122, however, the couj ! with the fullest discretionary authority in rela- tion to tl ' a proceeding, generally considered, without ence to the capa in which they may stand, or their ' joindi rin i be previous proceedings, provision in question, which in its present form forms part '■!' th': amendments of L851, run:- as follows: PARTIES TO AN ACTION. 81 § 122. The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in. And when, in an action for the recovery of real or personal property, a person, not a party to the action, but having an interest in the subject thereof, makes application to the court to be made a party, it may order him to be brought in by the proper amendment. The first clause in this section was in the Code of 1849, and is little more than declaratory of the inherent powers of the courts, acting as courts of equity, to enforce the bringing in of all proper parties, in relation to the controversies brought before them. The substitution of the word " must" for the word " may," in the last words of that clause, is, however, important and seems to leave them no discretion in this respect, in cases where any party claiming a really adverse interest has been omitted to be brought in. In Wallace v. Eaton, 5 How. 99, 3 C. R. 161, it was held that this is the controlling section in cases of a demurrer for want of proper parties. The next clause, the first of those brought in by the amendment of 1851, enables persons, not parties to suits for the recovery of property, but having an interest therein, to apply, themselves, to the court, for the purpose of being brought in by amendment, without waiting for the action of the original parties thereto; an im- portant and novel provision. In Fraser v. OreenMU, 3 C. R. 172, it was held that, where an attachment has been issued against a debtor's property under the Code, any other creditors of that debtor may not only be pro- per parties to the suit, but may apply to the court for the pur- pose of being brought in as such. In Judd v. Young, however, 7 How. 79, a similar application by subsequent creditors claim- ing an interest in surplus moneys under a prior foreclosure was refused, on the ground that the provisions of sec. 122, under which the application was made, were confined to actions for the recovery of specific real or personal property, and to them alone ; and this seems to be the sounder view, for it would indeed be a great hardship to a creditor, to have his proceedings embarrassed by the presence of persons who are entire strangers to the main subject of the suit, and whose only claim can be in respect of a 6 82 PARTIES TO AN ACTION. surplus, which cannot arise until after the satisfaction of his debt, and in which he has therefore no interest whatever. § 32. Interpleader. The following provisions on this subject are also contained in s. 122, above cited, and were first inserted in 1851. A defendant, against whom an action is pending upon a contract, or for specific real or personal property, may, at any time before answer, upon affidavit that a person, not a party to the action, and without col- lusion with him, makes against him a demand for the same debt or pro- perty, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and dis- charge him from liability to either party, on his depositing in court the amount of the debt, or delivering the property, or its value, to such per- son as the court may direct; and the court may, in its discretion, make the order. This amendment was doubtless suggested by the English sta- tute 1 and 2 William IV., c. 58, on the same subject. In Van Buskirh v. Roy, 8 How. 425, this remedy was extend- ed to a defendant who held, as administrator, a promissory note, the title to which was disputed by two parties. In Chamber- lain v. O'Connor, 8 How. 45, it was held that this remedy is in- applicable to proceedings under the mechanics' lien act. Except these two decisions, the recent reports are silent upon the sub- ject; and until the proper construction of this provision shall have been laid down more in detail, the English books of prac- tice may advantageously be consulted upon the question. It will be observed that the powers of the court upon this subject are entirely discretionary, and that the relief so asked can only be asked as a matter of favor, and not of right. The operation of the court, too, is confined to actions ex contractu, or for the recovery of specific real or personal property. The party ap- plying must prove entire good faith on his part, and entire ab- of collusion with the party proposed to be substituted in his place; and he must also place the subject-matter of contro- versy within the control of the court, entirely and without re- Dnder these circumstances, and under these only, can the application be made; and a failure in any one of these re- quisites will, of course, be fatal to it, and would probably involve PARTIES TO AN ACTION. 83 the payment of costs. If it succeed, however, the applicant ob- tains a complete release from the controversy and its conse- quences, and the substituted party takes his place in all respects. Of course this remedy is entirely inapplicable to cases where the party seeking it retains any claim or interest whatever in the subject-matter of the controversy, or is in reality directly liable, as in the case of an advertised reward claimed by sev- eral, or in those where he has otherwise given occasion for that controversy by his own acts. It is simply and solely intended to meet the case of a mere depositary, or holder of that subject-matter, in an official, ministerial, or fiduciary ca- pacity, either original, or attaching by implication, under occur- rences accruing subsequent to its original coming into his possession. A party into whose hands money or goods may have come in the ordinary course of business, for safe custody, and to be thereafter accounted for to the proper owners, may also become entitled to this remedy; and it would seem, from some of the English cases, that the existence of a mere lien upon such goods, for charges in respect of such custody, which lien does not in its nature attach specially on either of the claimants, and involves no assertion of ownership in any part thereof, will not be a bar to such an application ; though any claim of actual ownership, or ligitation in respect thereof, in any part of such deposit, however small, will be held to be so. A purchaser of land, unable to pay his purchase-money to one or other of two parties claiming title to the estate contracted to be sold, has also been held in England to be a proper subject for this species of relief. Any dealing with either of the par- ties, calculated to alter their interest in the subject-matter in question, or to give either of those parties an independent right against the depositary, the taking of any indemnity from either, or any illegality in the original transaction, out of which the de- posit arose, will of course do away with the bona fides of the application, and form an effectual bar to it, as showing collusion. The reverse, however, seems to be the case with regard to a mere demand of indemnity, prior to the action, when not com- plied with. It is evident that no remedy of this kind exists before action brought; and, of course, if the party prefer to insti- tute a separate suit for the same purpose, it is competent for him to do so, though probably at the risk of costs, if such separate suit prove to be clearly unnecessary. 84 LIMITATION OF ACTIONS. The proper mode of applying for this species of relief, or that last previously mentioned, would appear, by analogy, to be by motion, founded on a duly verified petition. The latter appears to be advisable, if not necessary, inasmuch as either of such ap- plications must, of necessity, be grounded upon a substantive statement of facts, unconnected with the matter regularly in question in the cause ; and it is of course necessary that such statement should be duly brought before the court, and should duly appear upon the face of the order granted upon it, or rather upon the petition, as, in effect, part of the order, — so that the circumstances under which the court has exer- cised its discretion in the matter may be duly apparent upon the record. Concluding Remarks. The subject of abatement of suits, and the measures necessary thereon, will be found considered hereafter in that portion of the work which treats of the proceedings intermediate between the original joinder of issue and its trial. CHAPTER III. OF THE LIMITATION OF ACTIONS. § 33. Limitations, generally considered. This subject, as was the case with the last, divides itself na- turally, in the first instance, into two branches, involving the consideration of the limitation of actions, as applicable, — lstly, with reference to real, and 2dly. to personal property. These two different subjects will according^ be treated of successively in the above order ; the preliminary provision of the Code, abo- lisbing the former law thereon, being previously noticed; a few supplementary observations, applicable to the limitation of actions in general, being subjoined at the conclusion of the chapter. The provisions of the Code on these subjects arc contained in the second title of p;irt IT. of that measure, and consist of four chapters. The three last of these follow the order above pre- LIMITATION OF ACTIONS. 35 scribed; the first being of a general and preliminary nature, and containing only two sections. By section 73, the first of those last alluded to, the whole of the provisions of that chapter of the Eevised Statutes which con- tains the general statute law on this subject, are expressly repealed ; so that, in relation to all future controversies, the Code, and the Code alone, will henceforth be authority. As to actions commenced, or rights accrued previously to its passage, the old law still governs. See Waddel v. Elmendorf, 12 Barb. 585, affirmed by the Court of Appeals, 18th April, 1854, holding a similar doctrine with reference to a judgment reco- vered prior to the passing of the Eevised Statutes. See also Clark v. Bard, Court of Appeals, 31st December, 1853; Hen- dersonv. Cairns, 14 Barb. 15; and likewise, as to the doctrine of adverse possession, Poor v. Horton, 15 Barb. 485 ; Fosgate v. Her- kimer Manufacturing and Hydraulic Company, 9 Barb. 287. Where, however, a previous right of action stood already barred at the actual time of that passage, it was held that a sub- sequent parol acknowledgment of that right, though sufficient to have revived it under the former statutes, had no such effect ; the Code being in actual operation at the time such acknowledg- ment took place, and the provisions of section 90 being applica- ble accordingly, without attributing to those provisions any retrospective effect whatsoever. The alleged verbal promise was a transaction subsequent to the passage of the Code, and was, as such, governed by the statute law in existence at the time of its actual making. Wadsworth v. Thomas, 7 Barb. 445 ; 3 C. E. 227. The other introductory section, (74,) after general provisions in relation to the following limitations, contains a further general reservation of all other cases in which a special limitation is pre- scribed by statute, independent of the provisions repealed as above, which special limitations will be treated of as they occur. An important provision has been added at the conclusion of this section, on the amendment of the measure in 1851, i.e., that objections of this nature can only be taken by answer. No re- striction in this respect was imposed by the Codes either of 1848 or 1849 ; and in Fellers v. Lee, 2 Barb. 488, it was treated as a well-settled rule, that, when actually apparent on the face of the complaint, demurrer would lie on this ground. In reference to limitations in general, it may be remarked that 86 LIMITATION OF ACTIONS. so long as a right remains suspended and vested in no one, the operation of the statute is suspended also. Thus, in a case where an action was brought by an administrator, in respect of pro- perty received after the intestate's death, but before administra- tion taken out, it was held that the statute did not commence running until the latter date. Buchlin v. Ford, 5 Barb. S93. In Carroll v. Carroll, 11 Barb. 293, where an executor had held himself out to devisees, as engaged in winding up the testator's estate, and discharging prior claims, it was decided that whilst he was doing or professing to do this, the statute would not run in his favor, and that each act of his in the administration of the estate was effectual as an acknowledgment of his continuous acting as executor. A surrogate's decree, however, directing a pro rata payment of a debt, does not, per se, amount to a promise on the part of an administratrix to pay the balance, so as to de- prive her of the benefit of the statute, Arnold v. Downing, 11 Barb. 554 ; nor does a devise by a testator for the payment of debts generally, prevent the statute from running as against debts due prior to his decease. Martin v. Gage, Court of Appeals, 31st Dec, 1853. § 34. Real Estate, Limitations as to. We now arrive at the consideration of the limitations imposed on actions for the recovery of real property, as contained in chap. II. of the title in question. Actions by People.] — The first subject entered upon is that of actions by the people of this State, or their grantees. The limits imposed in this respect are as follows, viz.: that the people or their grantees cannot sue in respect of real pro- perty, by reason of the title of the former, unless, 1. Sucb right have accrued within forty years previous to action, or other proceeding for its assertion ; or 2. Unless the people, or those from whom they claim, shall have received the rents and profits of such real property, or some part thereof, within the same period; Code, sec. 75: and by Bee. 76, the Bame limitation is imposed upon grantees of the people, claiming under their grants. By section 77, this period of limitation, in the ease there provided for, is shortened by one half, and twenty years only arc allowed for bringing actions by LIMITATION OF ACTIONS. 87 the people, or their grantees, in cases where a recovery is sought of lands previously granted, but the grants of which have been revoked, on the ground of fraud or of defective title. In interpreting these sections, however, the right of eminent domain, by virtue of which the people are the unquestioned owners of all waste and unoccupied lands within the State, must not be overlooked, or a most serious mistake may be committed. Extensive as the words of the above limitations may seem, in practice they only apply to cases where there has been positive adverse possession (actual and not constructive, and capable of dis- tinct proof) of the whole matter in controversy, during the whole of the period of limitation. The onus probandi in such cases lies, moreover, upon the defendant, who must plead the facts, or show an adverse title in himself by special allegation. A mere averment, that no right has accrued to the people within forty years, &c, following the words of the above section, was held in T/ie People v. Van Rensselaer, 8 Barb. 189, to be insufficient, and a demurrer on that ground was allowed ; but see below as to reversal of this decision. This decision is also so far overruled by the case of The People v. Arnold, 4 Comst. 508, where an answer, following the exact words of the statute, was held to be good, as pleading the facts of the case, and not the evidence in support. It was held, how- ever, that, on the trial itself, an unquestionable and actual ad- verse possession must be shown. In The People v. Van Rensselaer, above cited, the rule that, in such cases, every presumption is to be made on behalf of the people, and against parties claiming in opposition to them ; and that the mere fact of lands having been actually unoccupied, is of itself sufficient to show a prima facie title on their part, unless rebutted by distinct evidence of actual adverse possession, or of adverse documentary title, is laid down in the most une- quivocal terms, and to the fullest extent of the high prerogative doctrines held in the older English cases upon similar subjects. See however The People v. Clarke, below cited ; and the decision in The People v. Van Rensselaer has since been reversed by the Court of Appeals, 31st Dec. 1853. In Tlie People v. Livingston, 8 Barb. 253, similar principles are also most distinctly and most unequivocally asserted, though, under the peculiar circumstances of that case, the prima facie title of the people, as above alluded to, was rebutted by proof 88 LIMITATION OF ACTIONS. of an old grant from the English crown, under which, title to the waste lands there sought to be recovered, had been origin- ally conferred upon the parties claiming to hold them. In The People v. Clarke, 10 Barb. 120, affirmed by the Court of Appeals, 31st Dec. 1853, an action on behalf of the people was dismissed, on the ground of the defendant's title being de- rived under a similar grant ; and it was held that the same rules with respect to adverse possession should be applied to an action between the people and a citizen, as between one citizen and another, provided such possession be continued for the full sta- tutory period. The dispositions of the Legislature upon this particular subject are evidenced by the resolution of 10th April, 1848, see Laws of 1848, page 582, expressly directing the Attorney-General to impeach all manorial titles throughout the State, wherever it may be found practicable; and by the provisions of c. 128 of the Laws of 1850, declaring that proceedings so instituted by him, shall have precedence over all others. The above cases go far, however, to neutralize any evil effect that might attend too rigid a compliance with these directions. Actions by Private Parties. Adverse Possession.'] — The period of limitation in ordinary real estate cases, is fixed by sections 78 and 79 at twenty years, as under the Revised Statutes; within which period, the party prosecuting or defending a claim to or in resj)ect of real property, must show seizin in himself or his ancestor, predecessor, or grantor ; whilst, by section 80, a bare entry is declared insufficient to establish, or to strengthen a claim, unless an action be commenced thereon within one year after, and also within the period above prescribed. Mere possession of the property, not adverse to the right of a claimant, is, under section 81, to be deemed subordinate to the legal title : and, in every action, the person establishing such . ! title is to be presumed to have been duly possessed, unless the contrary be shown. Under sec. 8(3, the possession of a ten- ant, at any time, is to be deemed the possession of the land- Lord, until the expiration of twenty years from the termination of the tenancy, or the last payment of rent; whilst, by sec. 87, it is expre ly declared that no right to property shall be affect- ed, by reason of a del icen t being cast, by the death of the person in actual possession. LIMITATION OF ACTIONS. 89 The doctrine of adverse possession is defined by the chapter now under consideration, as follows, i. e. Where it shall appear that the occupant, or his predecessors in title, entered into possession of premises under claim, of title, exclusive of any other right founded upon a written conveyance, or upon the decree of a competent court, and that there has been a continued possession of such premises, or of part of them, under such claim, for twenty years, such possession shall be deemed adverse. And such adverse possession shall extend to the whole property, of which a part has been so held, except where that property shall consist of a tract divided into lots, in which latter case, the possession of one lot shall not be deemed that of another of the same tract. — Sec. 82. By sec. 83, the premises comprised within the scope of an adverse possession of this nature are defined to be as follows, viz: 1. All land usually cultivated and improved. 2. All land protected by a substantial enclosure. 3. All unenclosed land used for the supply of fuel or fencing timber. 4. Any portions of a partially improved farm or lot, left un- cleared or unenclosed, according to the usual course or custom of the neighboring country. An inferior species of adverse possession may also, under sec. 84, be acquired by actual continued occupation, under a claim of title, exclusive of any other right, but not founded either on a written instrument, or on the decree of a court. Adverse possession of this nature extends, however, only to land which has been actually occupied by the party claiming such title; and, by sec. 85, such actual occupation is defined as extending to the two following cases, and to those only, i. e. : 1. Where the land has been protected by a substantial en- closure. 2. Where it has been usually cultivated or improved. Possession of this nature confers, therefore, no such rights with regard to unenclosed land, as are claimable under title founded upon a written instrument, or the decree of a court, as before stated. Under sec. 86, adverse possession can in no case be established by a party who has once stood in the rela- tion of tenant to the claimant, or his predecessors in claim, until the full period of limitation shall have expired since the termi- 90 LIMITATION OF ACTIONS. nation of his lease, or the time of the last payment of rent under his tenancy, where no lease shall have existed. In Miller v. Garlock, 8 Barb. 153, it was held that the conti- nuous and uninterrupted user of an easement for twenty years, under a claim of right, was an adverse enjoyment sufficient to raise the presumption of a grant, as against the owners of the lands affected by it; and that the right to an easement thus acquired could only be lost by non-user of twenty years, (espe- cially if coupled with acts of such owners inconsistent with the right,) or by a release. In Smith v. McAllister, 14 Barb. 434, it was in like manner held that acquiescence in an erroneous boundary line for a length of time sufficient to bar an entry, was sufficient to raise the presumption of an agreement, and to defeat an ejectment on the part of the adjoining owner. A similar conclusion was come to in Hamilton v. White, 1 Seld. 9, where a right of way originally enjoyed by the defendants, had been closed by the plaintiff, and another road opened in its stead. The substituted way having been closed by him, it was held that he was bound to restore the former one, and that the defendants were not trespassers on the substituted road, until the old one was restored to its former condition. In Lane v. Gould, 10 Barb. 254, the nature of adverse pos- session with reference to open and unenclosed woodlands is defined in extenso. The possession there claimed was not conti- nuous as to any specified portion of the property, but consisted in taking wood at various times, and in occasionally enclosing and cultivating small portions for a single season. It was held that this species of enjoyment was not sufficient to constitute a title, and that, to make out an adverse possession, where there is no deed, there must be a real substantial- enclosure, a "pedis pos- session or an usual cultivation or improvement of the premises, continued for a sufficient length of time, and accompanied throughout by a claim of title. It is not necessary that this oc- cupancy should be under a rightful title, but it must be marked by definite boundaries, and continued for a sufficient period. See also OD these points, /"W v. JInrton, below cited. It was also held with reference to a claim under a deed, that the only effect of ,-i paper title was to enlarge and extend the possession so as to include tl"; entire lot described; but that, if the instrument claim' 1 ! under contain no certain and ascertainable description, LIMITATION OF ACTIONS. 91 it cannot have the effect of extending the possession beyond the u pedis possession which is definite, positive, and notorious. In Poor v. Horton, 15 Barb. 485, it was held that where an entry had been made on wild lands, but not proved by whom, "the presumption was that such entry was permissive and not. in hostility to the true title." It was also held, that an eject- ment for uncultivated lands might be maintained without actual entry, and likewise, that an adverse claimant in possession may legally abandon or release his rights, and will be concluded by his acts in this respect. See also on this last point Lindner v. Snyder, 15 Barb. 621. In Vrooman v. Shepherd, 14 Barb. 441, it was held that a re- lease could not properly be executed by a tenant by the curtesy to the heir, when both were out of possession. The possession of a vendee under a contract may be adverse as against strangers, but cannot become so to his vendor, until after performance in full by him ;, if, however, there has been such full performance, a conveyance may be presumed, the vendee still remaining in possession ; and it seems that if, in the absence of all proof on the subject, the latter continues in undisturbed possession, per- formance by him may be presumed, after the lapse of twenty years from the time when he should have performed. If the grantee in fee enter in the lifetime of the grantor, and hold both lands and deed, for a period sufficient, if adverse, to bar an entry, in the absence of other evidence, the character of his possession may be ascertained from the language of the deed, and, if that professes to convey an estate in fee, the infer- ence that both entry and possession were adverse will be irresist- ible; Corivin v. Corwin, 9 Barb. 219; so held by a majority of the court at general term, Barcido, J., dissenting. The facts constituting an adverse occupation must be specific- ally alleged, or it will be no defense. As against a reversioner there cannot be an adverse possession; it can only exist as against a person entitled at the time. Clarke v. Hughes, 13 Barb. 147. It seems that the people and private individuals are placed on the same footing with regard to the facts, which will, or will not constitute an adverse possession, as against them respectively. See the People v. Clarice, above cited. Disabilities.] — Lastly, by sec. 88, the disabilities which suspend 92 LIMITATION OF ACTIONS. the operation of the statute in real estate cases are thus denned, i. e. : — If, at the time that the title to real property shall descend or accrue to any person, that person shall be — 1. A minor. 2. Insane. 3. Imprisoned on a criminal charge, or on execution, upon conviction of a crime, for a term less than for life ; or, 4. A married woman. The operation of the statute is, in all these cases, to be sus- pended until ten years after such disability shall cease, or after the death of the person under such disability. The provisions of sec. 100, in reference to the absence from the State of parties against whom a cause of action shall accrue, seem also applicable to real estate cases, though included in another chapter of the Code. The subject will be more fully entered upon in the subsequent division of this chapter. The periods of disability above cited are the same as those under the former law ; though the Old Rules on this subject, with reference to actions arising in respect of personal property, have undergone a considerable change, as will be seen hereafter. In fact, as regards real estate actions in general, no change of any moment has been made in the former law upon the subject. In Roe v. Swezey, 10 Barb. 247, it was held that a suit, having directly or indirectly the effect of charging real estate in the hands of heirs with the debt of their ancestor, could not, under any circumstances, be commenced within the three years' limi- tation fixed by statute, 2 R. S. 46 ; even though that suit sought to deprive them of that character, and to render them liable as purchasers under a deed of trust. § 35. Personal Actions, Limitations as to. The Btatutory provisions fixing the periods of limitation in actions other than for the recovery of real property, are thus fixed by Chapter [II. of that portion of the Code now under considiT.'ilion : Judgments and Sealed Instrumented — The first period of limit- ation fixed, is with reference to actions, LIMITATION OF ACTIONS. 93 1. Upon a judgment or decree of any court of the United States, or of any State or Territory within them ; or, 2. Upon a sealed instrument : Which, by sec. 90, are fixed at twenty years in each case ; and that by way of positive limitation, and not as a presumption of payment, as the law before stood under the provisions of the Revised Statutes repealed as above. See as to the law under these provisions, before their repeal, Carll v. Hart, 15 Barb. 565. The former law on the subject of pleading a presumption of this nature, as declared in Austin v. Tompkins, 3 Sandf. 22, is therefore become obsolete ; but, nevertheless, the principle laid down in that case, i. e., that where a judgment has been taken against executors, for assets "quando acciderint," that judgment will still remain in force, and the parties holding it may enforce it at any time as against assets subsequently accrued, at how- ever late a period, may probably be held to be still existent, even under the present more positive limitation. The words of the statute seem large enough to include the judgments of courts not of record ; but the doctrine that a judg- ment of this nature is only a mere contract, and is suable upon, and subject to limitation as such, would appear to have pre- vailed, in analogy to the provisions of the Revised Statutes in relation thereto. See on this point in Re Delacroix, 1 Brad- ford's Surrogates' Reports 1, as to a Surrogate's decree ; and Maguire v. Gallagher, 2 Sandf. 402 ; 1 C. R. 127, as to justices' judgments. Where, however, the lien of a judgment on real estate has ceased by lapse of time, the court will interfere as regards the rights of bona fide purchasers thereof, and will grant a perpetual stay of execution, so far as their interests are concerned. Wilson v. Smith, 2 C. R. 18. Six Years.~] — The period of limitation of actions generally considered, including suits for relief on the ground of fraud, remains, as before, six years ; and the actions falling within that limitation are thus defined by sec. 91 of the Code : § 91. Within six years. 1. An action upon a contract, obligation, or liability, express or im- plied ; excepting those mentioned in section 90. 2. An action upon a liability created by statute, other than a penalty or forfeiture 94 LIMITATION OF ACTIONS. 3. An action for trespass upon real property. 4. An action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property. 5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not here- inafter enumerated. 6. An action for relief, on the ground of fraud, in cases which here- tofore were solely cognizable by the Court of Chancery ; the cause of action in such case not to be deemed to have accrued, until the disco- very by the aggrieved party, of the facts constituting the fraud. In actions on contract, where credit has been given by special stipulation, the operation of the statute will date from the period of the expiration of the credit so given, without regard to the date of the original transaction. In those for an injury, or for statutory penalties, the time will run from the actual commis- sion of the offence sued upon, or by which, the penalty was incurred. The point as to actions on the judgments of courts not of record, as supposed to fall under the class of actions on con- tract, under subdivision 1 of the above section, has been before adverted to. In Corning v. M' 'C 'ullough, 1 Comst. 47, a suit against a stock- holder of a corporation, pursuant to its act of incorporation, with a view to charge him individually with payment of a debt, was held not to be an action for a penalty, under subdivision 2 of sec. 92, but to fall within subdivision No. 2 of the above provisions. In cases of trover, the statute was held to run from the actual conversion of the property, without regard to the time of demand and refusal, in Kelsey v. Grisivold, 6 Barb. 436. In Schro&ppel v. Coming, 10 Barb. 576, affirmed by the Court of Appeals, 2 Seld.107, it was held that, in an action brought to sot, aside an assignment of securities made as part of an usurious transaction, the statute will commence running from the date of that ;i Bignment, both as regards the assignment itself, and also as to any moneys paid under it: Paige and Foote, J. J., dis- cing from the latter conclusion, and holding that the receipt of such moneys created a new cause of action. In Sears v.Shafer, 2 Seld. 208, the rule as to subdivision 6 is laid down as follows: Tlie statute docs not constitute a defence to ,-, suit, in equity to set aside a deed on the ground of fraud, LIMITATION OF ACTIONS. 95 unless it be shown that the plaintiffs discovered the facts con- stituting that fraud more than six years before the filing of the bill ; nor unless that defence has been set forth by the defend- ants in their answer. In Mayne v. Griswold, 3 Sandf. 463, the rule as to the ope- ration of the statute under these circumstances, was held to be general, and to apply in all cases of that nature, whether exclu- sively cognizable in equity, or the reverse ; and it would seem that the complaint, in such cases, ought to go on to show, not merely that the fraud has only been discovered within six years, but that, with reasonable diligence, it could not have been dis- covered sooner. In Bcdrd v. Walker, 12 Barb. 298, 1 C. E. (N. S.) 329, it was held that where goods have been left with a factor for sale by commission, the owner has no cause of action for the price of such goods received by him, until a demand and refusal to pay # the same ; and that the statute of limitations does not commence to run until such demand has been made. The general principle of limitation of personal actions having thus been laid down, the following special exemptions are made from its operation : Three Years.] — A period of three years is prescribed by sec. 92, in the following cases : § 92. Within three years. 1. An action against a sheriff, coroner, or constable, upon a liability incurred by the doing of an act in his official capacity, and in virtue of his office, or by the omission of an official duty; including the non- payment of money collected upon an execution. But this section shall not apply to an action for an escape. 2. An action upon a statute, for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the people of this State, except where the statute imposing it prescribes a different limitation. In The People v. Wood, 10 L. O. 61, where the defendant was indicted for obtaining money under false pretences, under 2 E. S. 607, which prescribes that the indictment shall be found and filed within three years after the commission of the offence, it was held that the day on which the act is done must be included in the computation : and the indictment, on 7th November 96 LIMITATION OF ACTIONS. 1851, for an offence committed 7th November, 1848, was quash- ed, as barred by the statute above cited. "With reference to subdivision 2 of this last section, see Corn- ing v. McCullough, above cited. Two Years.] — A two years' limitation is then fixed as follows, by sec. 93 : § 93. Within two years. 1. An action for libel, slander, assault, battery, or false imprisonment- 2. An action upon a statute for a forfeiture or penalty to the people of this State. These periods are in many respects materially reduced from those allowed by the Eevised Statutes, with the single exception of slander. The former periods were four years, in assault, battery, and false imprisonment, and six in libel. One Year.'] — A one-year limitation is prescribed by sec. 94, with reference to actions against a sheriff or other officer for an escape, in connection with which, it may be observed that the subsequent death of an escaped prisoner, before action brought, is no discharge of such liability. See Tanner v. Hallenbeck, 4 How. 297. A peculiar limitation is fixed by section 96, in respect of actions upon a statute for a penalty or forfeiture, given in whole, or in part, to the prosecutor. Such actions must be commenced by the latter within one year after the commission of the offence. If not, his power to sue is gone, but a further period of two years is allowed, during which such action may be commenced on the part of the people, by the proper officer. In Srhroeppel v. Coming, 10 Barb. 576, affirmed by the Court of Appeals, 2 Seld. 107, it was held that the last-mentioned 1 i m it.it i >nly applies to cases where money is actually paid for f usury, and not to a suit brought to set aside an as- iment i if securities for similar purposes, orfor moneys received under such assignment. Under these circumstances, the usual statutory period of six years is applicable. Tt n Years.] -Lastly, the period of limitation in all other actions for relief whatsoever, not therein-before provided for, is fixed, by Bection 97, at ten years after the cause of action shall have accrued. Under this large class will fall the whole of that de- scription of controversies which were formerly peculiarly of LIMITATION OF ACTIONS. 97 equitable cognizance, including all those for the purpose of en- forcing any securities or liens upon real estate, not involving the actual title thereto. See Elwood v. Deifendorf, 5 Barb. 398 ; Mann v. Fairchild, 14 Barb. 548. The special limitation as to actions for relief on the ground of fraud, above noticed, must however be borne in mind with refer- ence to suits of this description. An administrator, who neglected to prove his debt against the estate of the intestate for ten years and upwards, was held to have lost his claim, and to be barred under this section of the statute. Re Rogers' Administrator, 11 L. 0. 245. Personal Actions by People.] — The people of the State enjoy no such peculiar privileges, in respect to personal demands, as are before accorded to them in reference to real estate; they are, in these cases, subject in all respects to the same rules as bind pri- vate parties. See Code, sec. 98. Actions on Judgments.'] — Before passing on to the subject of limitations in general, the following special provisions, in addi- tion to the above, may be noticed : Actions upon judgments of any court of this State, except a court of a justice of the peace, are positively prohibited by sec. 71, unless upon leave of the court, for good cause shown, on notice to the adverse party ; and actions upon judgments of a justice of the peace cannot be brought in the same county, within five years after their rendition, except under the following cir- cumstances: 1. The death, resignation, incapacity to act, or removal from the county, of the justice himself. 2. The absence of personal service of process on the defend- ant, or all the defendants. 3. The death of some of the parties. 4. The loss or destruction of the docket of the judgment. But it would seem that the plaintiff is always at liberty to bring an action thereon, in any other county, within that period. In Smith v. Jones, 2 C. K. 78, the above limitation, in reference to actions on justices' judgments, was applied by the county judge to the pleading of such a judgment, as a set-off, within the same period; and it was held that a judgment could not be so pleaded, within five years after its rendition. 7 98 LIMITATION OF ACTIONS. A conflict of opinion has arisen, between the Superior Court and the Court of Common Pleas, in reference to actions in as- sistant justices' courts. In McGuire v. Gallagher, 2 Sandf. 402, 1 C. R. 127, it was considered that they came under the defini- tion of justices' courts; but in Mills v. Winsloiv, 3 C. R. 44, it was held, on the contrary, they did not; and that actions on the judgments of the assistant justices' and Marine Court in New York, fall under the general class of judgments, and that actions may be brought on them at any time, on leave of the court first obtained. See, also, Jackson v. Wheedon, 3 C. R. 186, before cited. The Common Pleas being now the peculiar court for the revision of justices' judgments, the doctrine laid down by them will probably prevail. In Quick v. Keeler, 2 Sandf. 231, and Dunham v. Nicholson, 2 Sandf. 636, it was held that, when an execution had been returned unsatisfied prior to the Code, an action in the nature of the former creditors' suit might be maintained on the judgment on which it was issued, without previous leave of the court ; on the ground that, though assum- ing the form of an action, it was in reality a proceeding to carry out the existing judgment, and to aid the process issued upon it. Claims against Executors, in ut acknowledgment or part payment, is in the nature of an action on the old demand, and not on thenewpro- mise, and musl be brought accordingly. Carshore v. lluych, 6 Barb. 6 LIMITATION OF ACTIONS. 107 § 37. Action, when deemed commenced. The last point to be considered is as to when an action is or is not to be deemed as commenced, for the purpose of taking a demand out of the operation of the different limitations pre- scribed as above stated. The provision of the Code on this subject is as follows : § 99. An action is commenced as to each defendant, when the sum- mons is served on him, or on a co-defendant, who is a joint contractor, or otherwise united in interest with him. An attempt to commence an action is deemed equivalent to the' com- mencement thereof, within the meaning of this title, when the summons is delivered, with the intent that it shall be actually served, to the sheriff or other officer of the county, in which the defendants, or one of them, usually or last resided ; or, if a corporation be defendant, to the sheriff, or other officer, of the county in which such corporation was established by law, or where its general business was transacted, or where it kept an office for the transaction of business. But such an attempt must be followed by the first publication of the summons, or the service thereof, within sixty days. It will be observed, on comparison of this section with that in the Code of 1848, that, now, service of summons on any one joint contractor, or co-defendant united in interest, is sufficient to take the case out of the statute, as against all other parties in the same interest with the parties served, which formerly was not the case. See Vandenburgh v. Biggs, 3 How. 316. On the other hand, the provisions of the former Code are re- stricted by its being now rendered imperatively necessary that service, either actual or by publication, must, in every case, fol- low the delivery of process to the sheriff, within sixty days thereafter, in order to render that delivery of any effect what- ever. Actual or substituted service must therefore, in all cases, be made within the period of limitation, or within sixty days after, at the very latest ; and, in the latter case, the summons must be actually in the hands of the sheriff of the county of residence or last residence of the defendants, or one of them, or, in the case of a corporation, in those of the sheriff of the county in which its business has been carried on, within the original period of limitation, whatever that period may be. It is, the writer feels, -[08 LIMITATION OF ACTIONS. superfluous to insist at any length upon the vital importance of this rule being always borne in mind, and always acted upon, within the time allowed. It is a principle so clear as to amount to an axiom. For certain purposes, however, the action may, in a certain sense, be said to have commenced, from the allowance of a pro- visional remedy, on which, under sec. 139, the court is also to be deemed to have acquired jurisdiction, and to have control of all subsequent proceedings. See this subject subsequently considered, and cases cited. The allowance of such a remedy, though it confers jurisdiction as above, is not however, in strictness, a commencement of the action. In Re Grisivold, 13 Barb. 412. PRELIMINARIES TO COMMENCEMENT OF ACTION. 1Q9 BOOK III. OF THE COMMENCEMENT OF AN ACTION, AND THE PRELIMINARIES THERETO WHEN NECESSARY. CHAPTER I . OF THE PRELIMINARIES TO THE COMMENCEMENT OF AN ACTION IN CERTAIN CASES. § 38. Various Preliminaries. Infant Plaintiffs.'] — Before an action can be commenced by, or on behalf of an infant plaintiff, a guardian for the purposes of the suit must be regularly appointed. If the summons be previously issued, the whole proceeding will be irregular, and, on application, will be set aside, Hill v. Thacter, 3 How. 407, 2 C. E. 3 ; where the appointment of the guardian ad litem not having been made till the day of actual service of the sum- mons, and one day after its date and that of the verification of the complaint, the action was held to have been irregularly commenced. The proceedings necessary for this purpose, and the decisions in relation thereto, are treated of in a separate chapter? No. IV., of this portion of the work. Lunatics, cfrc] — No action can be brought by the committee of an idiot, lunatic, or habitual drunkard, without the leave of the court by which the commission was issued, previously obtained for that purpose. Such leave must be applied for on petition stating the facts, according to the old practice. Nor can an action be brought against a lunatic, or other in- capacitated party as above, judicially declared to be such, without a similar application being first made to the court. The HO PRELIMINARIES TO COMMENCEMENT OF ACTION. provisions as to service of summons in such cases, as contained in sec. 134, make no difference; they do not authorize the bringing an action without leave, but merely regulate the mode of service in that action, when duly brought thereon. The proper course of the creditor in such cases, " is to petition the court for relief, and, if his claim is undisputed, the committee will be ordered to pay it ; if disputed, so as to bring its justice seriously in question, a reference will be ordered, or the plain- tiff will be permitted to bring an action to determine its justice and extent." Soverhill v. Dickson, 5 How. 109 ; Hall v. Taylor, 8 How. 428. This is also a proceeding in which the forms of the old practice must be followed. Receivers.] — A receiver appointed by the court cannot, in general, bring or defend a suit, without its consent. Before doing the former, he must apply for leave, in the manner before indicated, with respect to the bringing of suits by committees under similar circumstances. If he omit to do so, and fail in the suit, he will be personally liable for the costs. Phelps v. Cole, 3 C. E. 157. This is, however,, not the case as regards receivers of a debtor's estate x appointed in the course of sup- plemental proceedings, after judgment. Sees. 298 and 299 of the Code, and Eule 77 of the Supreme Court. The au- thority of a receiver of this class to sue, is general, and extends to all cases in which he is not restricted by the special order of the court. The only point in which his discretion in this respect is limited, is with respect to actions brought against insolvents, from whom he cannot obtain his costs. In these cases he will not be allowed them, unless, before bringing such action, he obtain the authority of the court, or the consent of all persons interested. See rule 77. ,Y< ./ / Priend. | —The circumstances under which a party labor- ing under disability must appear by a next friend, have been adverted to in a former chapter, under the head of Parties. The selection must of course be made, in those cases, before I. and the party selected must be of ability to answer for I be co I of 1 he Buit. Suing in Form&Pauperis.] -In addition to legal disabilities, a party may labor under inability to sue with eifect, occasioned SETTLEMENT OF CONTROVERSY WITHOUT ACTION. HI by poverty. For this case provision is expressly made by title I. of chap. VIII. part III. of the Revised Statutes, 2 R. S. 444, 445. A party in this position must apply to the court on petition, verified by affidavit in the form there expressly prescribed, according to the former practice in such cases. If the court be satisfied with the facts alleged, counsel and attorneys will be assigned to him, and he will be permitted to prosecute his cause/without being liable to the payment of any fees, or of the costs of the suit. The privilege thus granted is, however, revocable for misconduct; and an order of this nature, though generally a preliminary to suit brought, is, it would seem from sec. 2 of the title before cited, obtainable in a suit then actually existing. As a general rule, however, he must sue as such ab initio, or the application, if delayed, may be denied. Florence v. BulJceley, 1 Duer, 705, 12 L. 0. 28. Actions by Attorney- General]— Under sec. 430 of the Code, the leave' of the court is also made a prerequisite to actions brought by the Attorney-General, for vacating the charters, or annulling the existence of corporations other than municipal, under the peculiar circumstances there specified. CHAPTER II. OF PROCEEDINGS FOR SETTLEMENT OF A CONTROVERSY WITHOUT ACTION BROUGHT. General Remarks. The modes of accomplishing this object, as pointed out by the Code, are twofold. 1st. The bringing such controversy to a final decision, upon a case, without going through the forms of an action; and 2d. The confession of judgment in respect thereof; which subjects will be successively treated. Of a somewhat analagous nature to the former, is the reference of a claim to arbitration under the old practice, but which mode of proceeding is in nowise affected by the Code. 112 SETTLEMENT OF CONTROVERSY WITHOUT ACTION. § 39. Submission of Controversy. The submission of a controversy without action is provided for by sees. 372 to 374 of the Code. The parties are thereby em- powered to agree upon a case containing the facts upon which such controversy depends, and to present a submission of the same to any court which would have jurisdiction of an action when brought ; it being also made to appear by affidavit, that the controversy is real, and the proceeding in good faith, to determine the rights in question. The case having been drawn, and the submission signed by the parties, the matter is then to be heard at the general Term, on printed papers. See Eule 29 of the Supreme Court. From the moment, in fact, that the case and submission have been prepared and signed, the matter takes, in all respects, the shape of an appeal to the general term, from the decision of a single judge upon a case. The papers must be printed and served, points prepared, and the whole case conducted precisely as prescribed in relation to the latter. 'See hereafter under the head of Appeals. On the decision of the court on the matter thus brought be- fore it being pronounced, judgment is to be entered thereon exactly as in other cases, but without costs for any proceedings prior to notice of trial. The judgment roll is to consist of the case, the submission, and a copy of the judgment, sec. 373. When entered, such judgment may, under sec. 374, be en- forced, in the same manner, and subject to the same right of appeal, as if it had been entered in a regular action at that par- ticular stage, and the appeal therefrom lies direct to the Court of Appeals, without the intervention of any intermediate tribunal. These provisions, in effect, enable parties wishing an amica- ble settlement of a controversy between them, to place their case precisely on the same footing as if, after having gone through all the regular stages, it had been passed upon by a single judge, and an appeal taken from that decision to the ml term ; but without the delay and expense consequent on the ordinary proceedings for that purpose. In // " .. Foraythf L4 Barb. 499, this course of proceeding adopted. So also in Van Sickle v. Van Sickle, 8 How. 265, where it j. laid down that this remedy is only appropriate in no action has been brought. The action which had been thi re commenced, must, it was held, be deemed to be SETTLEMENT OF CONTROVERSY WITHOUT ACTION. U3 abandoned, or at least suspended, and the case considered and determined entirely independent of it. If the submission of the case did not of itself work a discontinuance of the action, it must do so when followed by a judgment, and must, mean- while, suspend it. In Lang v. Bopke, 1 Duer, 701, 10 L. O. 70, it was held that the provisions of the Revised Statutes for granting a new trial, as of right, in ejectment cases, are not applicable to a judgment rendered on a submission of this nature. Such a pro- ceeding is not an action within the scope of those provisions. The submission has the effect of passing the case at once to the general term ; nor can the parties be released, on motion, from the legal effect of their submission, so as to enable them to liti- gate before a jury the facts upon which they had agreed. The above are the only reported cases bearing on these pro- visions. They are, in fact, of a nature little likely to give rise to controversy as to their form, the whole proceeding being one of an amicable nature, and only adoptable on express agree- ment of the parties. For the same reason, this course of action appears incompatible, with reference to the decision of a contro- versy to which infants or other persons not sui juris are parties. The very essence of it is consent, and an admission of all the facts out of which that controversy arises, which, with regard to parties so situated is evidently an inadmissible line of action. The necessity of a full consideration of the whole matter in all its possible bearings, before this course, if proposed, is finally assented, to is evidenced by the case of Lang v.Ropke, above cited. § 40. Confession of Judgment. The other mode of settlement, above noticed, is the confes- sion of a judgment without action. By this proceeding, the full benefits of an action are secured to the intended plaintiff, with- out the corresponding expense to the defendant. It is, there- fore, a measure of frequent occurrence, where the latter pos- sesses no real defence, and has no wish to evade his responsi- bility ; or where an arrangement is made between the parties, for security in respect of a present, or indemnity against a future indebtedness. It is equivalent to the cognovit or war- rant of attorney, under the old practice, and in the English courts. In the latter, an analogous proceeding is of frequent occurrence, in the shape of an order, obtained by the defendant, 8 114 SETTLEMENT OF CONTROVERSY WITHOUT ACTION. for the plaintiff to show cause why, on a stipulation that he is to be at liberty to enter up judgment at a fixed' date, in default of payment of debt and costs at that period, all interim pro- ceedings should not be stayed. A similar proceeding is also adoptable under the Code, where thought expedient, by means of an offer served by the defendant to allow the plaintiff to take judgment for the whole amount claimed by him,, and the entry of judgment on that offer. The main part of the provisions of the Code on this subject were contained in the measures of 1848 and 1849- ; but the alterations on the amendment of 1851 are important, the larger portion of sec. 384 being new. This proceeding may be taken for the purpose of securing to the confessee any amount, either due qx to become due, or to indemnify him against any contingent liability ; and provision may be made for the entry of the judgment, either immediately.. or at any future specified date. The mode of proceeding is prescribed by sec. 383, as follows : § 383. A statement in writing must be made, signed by the defend- ant, and verified by his oath, to the following effect : 1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor. 2. If it be for money due or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due. 3. If it be for the purpose of securing the platiniff against a contin- gent liability, it must stale concisely the facts constituting the liability, and must show that the sum confessed therefor does not exceed the same. In the Appendix, a form is given, adapted to each of the above contingencies. Where the security is for the purposes of indemnity against future liabilities, the statements of fact must necessarily vary according to the peculiar circumstances, great thing to be looked to, is the making a concise and clear exposition of the actual facts, in much the same manner, and governed by the same general principles, as are subsequently laid down in reference to averments of fact in pleading. Bj see. 884, the mode of entering judgment on such a state- ment, and of enforcing such judgment, when entered, are pre- scribed in terms. This brunch of the subject will hereafter be SETTLEMENT OF CONTROVERSY WITHOUT ACTION. H5 considered, under the heads of Judgment and Execution ; the former differing very slightly, and the latter in no respect, except one, from the usual practice in such cases. The peculiar pro- vision alluded to is of recent insertion, and is to the effect, that, where a confession of judgment of this nature shall provide for the payment of a sum by instalments, execution may from time to time be issued for the instalments then actually due, without prejudice to the renewal of the same proceeding, for the recovery of any subsequent payments. Sec. 384. (See here- after, under the head of Execution.) It will be remembered that, in cases where the amount con- fessed does not exceed $250, justices of the peace have the power to enter judgment on confession, under art. VIII. title IV. c. II. part III. of the Eevised Statutes ; the defendant in such cases being, however, obliged to appear before the justice in person. (See former chapter, as to proceedings in these courts.) A judgment of this nature cannot be confessed by a joint debtor so as to bind his copartner. Such judgment will pro- bably be valid as against the party signing, but it will be void as against the other, and cannot be enforced against the joint property. Stoutenburgh v. Vandenburgh, 7 How. 229. An offer under the Code seems, however, to stand on a different footing, and in the place of a cognovit under the Eevised Statutes, and the judgment under it will be enforceable against joint pro- perty. Emery v. Redfield, 9 How. 130. A public officer, sued for services rendered to the public, may confess judgment in his official capacity ; but the supervisors of the county will not be concluded, and may go behind it and inquire whether the whole or part of the cause of action was a county charge. Gere v. Supervisors of Cayuga, 7 How. 255. A confession of judgment will, it seems, be good, though made to a substituted party, if the transaction be otherwise bona fide. Paton v. Westervelt, 12 L. 0. 7. In /Schoolcraft v. Thompson, 9 How. 61, a general statement that the debt for which judgment was confessed, arose in respect of goods purchased of parties and at times specified, was held to be such a concise statement of the facts out of which the debt arose, as fully to meet the requirements of the statute. By this decision, that made in the same case to the contrary effect, and reported 7 How. 446, is reversed. 116 SETTLEMENT OF CONTROVERSY WITHOUT ACTION. In Plummer v. Plummer, 7 How. 62, a strict view was taken, and it was held that it was not sufficient to state that the debt jn question arose on a promissory note, without stating also the consideration given for it. In Mann v. Brooks, however, 7 How. 449, this decision was not concurred in, and it was considered that a statement that the debt was due on a promissory note, describing it, was a sufficient specification to bring the case within the terms of the statute ; and this latter decision has since been affirmed at General Term. See Mann v. Brooks, 8 How. 40. In Post v. Coleman, 9 How. 64, a statement that the defendant gave his promissory note there described, for coal purchased of the plaintiff for the use of the defendant's house, was held to be a sufficient statement, and that the defendant's declaration that the debt was justly due, made it legally due, though, by the terms of the note, the credit had not expired. The debt became merged in the judgment. It was likewise held that the defend- ant's signature to the verification following the statement, instead of to the statement itself, was a sufficient compliance with the statute ; and, likewise, that the verification before one of the plaintiff's attorneys was no objection to the regularity of the judgment. The Rule in that respect does not apply to affidavits preparatory to the commencement of a suit. There is then no suit pending. A confession of judgment, under the Code, cannot be made in an action arising out of tort. The proceeding is only author- ized in respect of money due or to become due, or for security against a contingent liability. These are the only cases affected by the Code. Boutel v. Owens, 2 Sandf. 655; 2 C. R. 40. It would seem, by the same case, as if these provisions were not applicable to the case of confession of judgment, in a suit already commenced, though this is doubtful. It is, however, te clear, that, where such confession takes place whilst the party is actually in custody, and without the presence of an attorney or counsel to advise him in the matter, the judgment entered on it will be void. Same case. (See also Wilder v. r,iiiin tunc/:, '•'> How. 81.) This is in accordance with the rigid rules and practice of the English courts, under similar circum- stances. jiy sec 884, the judgment to be entered on a confession of this nature must be endorsed upon the statement, and also entered in the judgment*book. It will be most essential that ' these rules be literally complied with on all occasions. SUMMONS, AND ITS SERVICE. H7 These provisions, however imperative, are nevertheless direct- ory in their nature, and therefore the court will not allow an innocent party to suffer, from a mistake or omission of one of its officers in this respect. Neele v. JBerryhill, 4 How. 16. The same principle, as to these provisions being merely direct- ory, is also fully sustained in Park v. Church, 5 How. 381 ; 1 C. E. (N. S.) 47. It was there held that, where the defendants had confessed judgment "for a certain amount, but omitted in direct terms to authorize its entry," the judgment could not be set aside for irregularity, the words omitted being merely direct- ory, and the authority being to be implied from the confession itself. It was also held that the defendant could not even be heard to object, after the lapse of a year, which had occurred, which lapse, of itself, barred all relief for irregularity. 2 E. S. 282, sec. 2. In the same case, a liberal construction was put upon a stipulation binding the plaintiff not to issue execution for a limited period, unless, upon actual examination of the books, &c., of the defendants, "he should have good reason to believe himself insecure." The court refused to set aside the execution, though the plaintiffs had not actually examined the books, it appearing clear, from other circumstances, that he had such good reason. CHAPTER III. OF SUMMONS, AND ITS SERVICE. Preliminary Remarks.] — The proceedings preliminary to the bringing of an action in the regular form having thus been con- sidered, we now arrive, in due course, at the primary proceeding in such action when brought, i. e., the issuing and service of the summons by which it is originally commenced. This process is indispensable for the due bringing of an action in all cases, al- though, for certain purposes, the action, as hereafter noticed, may be held to be commenced before its actual service. In one case, and one only, the issuing of a summons will not only be unnecessary, but unadvisable, and that is with reference to moneys collected by an attorney and not paid over on demand, 118 SUMMONS, AND ITS SERVICE. in respect of "which an attachment is issuable under the Eevised Statutes. If, instead of issuing such attachment, the client bring an action in the ordinary course, the right to the former remedy will be held to have been waived, and it cannot be afterwards obtained. Cottrell v. Finlayson, 4 How. 242. § 41. Summons, Nature and Form of. The nature and form of summons are thus indicated by the Code:— § 128. The summons shall be subscribed by the plaintiff, or his at- torney, and directed to the defendant, and shall require him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the State, to be therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service. § 129. The plaintiff shall also insert in the summons a notice, in sub- stance as follows : 1. In an action, arising on contract for the recovery of money only, that he will take judgment for a sum specified therein, if the defendant fail to answer the complaint in twenty days after the service of the sum- mons. 2. In other actions, that if the defendant shall fail to answer the complaint, within twenty days after service of the summons, the plain- tiff will apply to the court for the relief demanded in the complaint. Indispensable Requisites^] — It will be seen from these provi- sions, that the following are indispensable requisites to the regu- larity of this important process: 1. That the summons should be subscribed by the plain tiff or his attorney. 2. That it should be directed to the defendant. 3. That he should be formally required thereby to answer the complaint in the action. 4. That the place where his answer is to be served should be distinctly specified. 5. That tin; time within which such service should be made shouM all o be distinctly pointed out. 6. That lie should be distinctly warned that, in the event of his not answering, judgment will be taken against him. 7. That the nature of the judgment to be so taken should be distinctly and unmistakably indicated. SUMMONS, AND ITS SERVICE. ;Q9 With reference to the last of these requisites, the process in question may also be classified into two separate branches, i. e., 1, summons for payment of a money demand, and, 2, summons for relief; the first embracing all actions arising on contract, in which a fixed and specified amount is sought to be recovered; and the second, all those of which a contract, either express or implied, does not form the basis ; where unliquidated damages are claimed ; or, where the relief demanded consists in the per- formance of some act, or is otherwise of such a nature that it cannot be represented by a fixed and specific money payment. See form, in Appendix, adapted to both cases. The plaintiff having, under sec. 130, the option as to whether he will or will not serve a copy of the complaint, to accompany the summons in the first instance, the form in question is also adapted to meet this contingency. Reference to Complaint.'] — In case the complaint is not served, it is requisite, under the provisions of that section, that the summons should state where it is or will be filed. In ordinary cases, a statement to the latter effect will be sufficient, but, where service is made by publication, the previous filing of the complaint is made a condition precedent by the terms of sec. 135 ; where, too, the title to real property is in any manner in question in the cause, the filing of the complaint in the first instance, is also an advisable preliminary under sec. 132. It will be observed that, in each of these forms, the name of the court, and also the title of the cause, are inserted in full. It is true that, by the above provisions of the Code, these precau- tions are not specially required, but neither of them can be safely omitted in any case, and above all, in those where the summons is served by itself, without a copy of the complaint. The omis- sion of the name of the court, in particular, will be a fatal ob- jection. The weight of authority on this subject is conclusive. In Ward v. tStringham, 1 C. R. 118, a summons and copy com- plaint, so served, were held to be a nullity, and leave to amend was refused. In an anonymous case, 2 C. E-. 75, a judgment entered upon a summons so issued, the complaint not being served, was also set aside. In Dix v. Palmer, 5 How. 233; 3 C. R. 214, the omission in question was held to be "a fatal" ob- jection," (though capable of being waived by subsequent acqui- escence;) and in James v. Kirkpatrick, 5 How. 241, 3 C. R. 120 SUMMONS, AND ITS SERVICE. 174, the same view was sustained, and a judgment, entered on such a summons, set aside as irregular, leave to amend being only granted, on terms equivalent to the. bringing of a fresh action. Nor is Walker v. Hubbard, 4 How. 154, an authority to the contrary, for, in that case, although leave was given to amend, when no court was named in the summons, still the name "Sup. Court" was inserted in the complaint itself, (that abbrevia- tion conveying a definite idea, the case being at Albany and not in New York, where it might have given rise to a confusion of terms,) and such leave was only granted upon terms which showed that the court considered the summons and complaint, as they then stood, to be bad altogether, until such amendment had been made. In the recent case of Yates v. Blodgett, however, 8 How. 278, the above decisions are reviewed and in part dissented from. The summons in that case did not give the name of the court, but it appeared correctly upon the complaint which was served with it, under which circumstances, the court held that the latter indication was sufficient, and refused to set aside the summons, though, if served alone, it would have been insufficient. If the plaintiff sue in any special capacity, the complaint must conform to the summons, and cannot be made in general terms, or the proceedings will be set aside as irregular, Blanchard v. Strait, 8 How. 83. Foregoing Requisites considered. 1. Subscription.] — The follow- ing cases have been decided, with reference to the different requi- sites to a valid summons as above laid down. 1st, as to subscription. The subscription of an agent of the plaintiff, not an attorney, is bad, and a summons so subscribed will be set aside. Weare or Weir v. Slocitm, 3 How. 397; 1 C. R. 105. Besides subscribing his name, and indicating a place where the answer may be served, the attorney, or party so subscrib- ing, must also add his place of residence, or, if he omit to do so, any subsequent papers in the suit may be served on him by mail. Bale 5 of Supreme Court. 2. Direction ><> Defendant. 3. Requisition to Answer.'] — On the second and third requisites, viz., the direction to the defendant, and the formal requisition to answer the complaint, no question SUMMONS, AND ITS SERVICE. 121 appears as yet to have arisen. Under sec. 176, the suit may be commenced, and the summons served, in a fictitious name, when the real one of the defendant is unknown, being afterwards amended on its discovery. See Pindar v. Black, 4 How. 95. It is not, however, allowable to the plaintiff to use a fictitious name at his discretion ; but only when he is ignorant of the true one. Some description must also be given, so as to identify the party intended as far as possible ; and the facts of the use of a ficti- tious name, and of the plaintiff's ignorance of the true one, must likewise appear on the subsequent proceedings. Crandall v. Beach, 7 How. 271. 4. Place of Service of Answer.] — With reference to the fourth requisite, the above-cited case of Weare v. Slocum is also author- ity, that the summons, to be regular, must require the copy answer to be served upon the actual subscriber, whoever that subscriber may be. In that case, the summons, subscribed by the agent. in the name of the plaintiff, required the answer to be served on "we," meaning the plaintiff, at a certain place therein specified, such place being, not the plaintiff's residence, but that of the agent who subscribed in his name ; and this direction was held to be clearly bad, on the grounds above stated, though, under the peculiar circumstances of the case, the statute of limi- tations having run out in the interim, leave was given to amend on terms imposed. 5. Time of Service.'] — The fifth requisite, i. e., that of the time within which the answer must be served, will be considered in its details hereafter. There can be no question but that a full compliance with this direction of the statute is an indispensable prerequisite to the regu larity of process, and would be so held, though, as yet, the point does not seem to have been made the subject of express decision. 6. Notice of talcing Judgment.) — The sixth requisite, i. e., the formal notice that j udgmCnt will be taken in default of answer, seems also, as yet, to have awakened no question, doubtless in consequence of its having been complied with in all instances. 7. Demand of Judgment or Relief] — On the seventh and last requisite, however, i. e., the terms of that notice, more question has arisen, and the distinction between the two different forms 122 SUMMONS, AND ITS SERVICE. of summons, ?". e., the summons for money, and the summons for relief, is one most necessary to be observed. A summons for relief has been held to be bad, in an action for goods sold and delivered, and judgment was denied, on the ground that the contract was one for the recovery of money only, and should have been sued upon as such. Diblee v. Ma- son, 1 C. R 37; 6L. 0. 363. The converse of this proposition was maintained in WyantY. Reeves, 1 C. E. 49, where a summons for money was held to be bad, the complaint merely praying for a foreclosure in the usual form. In Leopold v. Poppenheimer, 1 C. E. 39, and Williams v. Miller, 2 C. B, 55 ; 4 How. 94, it was ruled that an action for damages for breach of promise of marriage, was, although the damages were unliquidated, an action " arising on contract for the recovery of money only," and that, as such, the summons was properly issued in the form of a summons for money. The authority of Williams v. Miller is also confirmed by Trapp v. The N. Y. & Erie Railroad Company, 6 How. 237 ; where it was held that an action for damages in respect of breach of con- tract, was an action for the recovery of money only, and as such, fell within subdivision 1. In Flynn v. The Hudson River Railroad Company, however, below cited, the learned Judge who decided Williams v. Millar, stated that he had never felt satisfied with that decision ; and that, although that case and Leopold v. Poppenheimer seemed too clearly within the language of the first subdivision to allow an escape, yet he should not regret to see them reexamined and disapproved. "The rule ought to be, that, when the action is brought for the recovery of a money demand or a sum certain, judgment maybe perfected without application to the court, but in all ot In t cases such application should be required;" and this DM the sounder principle, as claims of this kind are, in their . nature, claims for unliquidated damages, although a cer- tain maximum is originally fixed in the summons: and they OOght properly, as such, to be made the subject of an assess- ment in the ordinary form, on a recovery, of whatever nature. The view- last announced seem in fact to have prevailed, as appears from the followin In Cfor v. M'tllnnj, 1 C. E. 120, it was held that an action for damages against a common carrier in respect of the loss of goods, SUMMONS, AND ITS SERVICE. 123 fell properly under the division of actions for relief, the learned Judge considering that, though within the letter, a suit of that nature was not within the spirit of subdivision 1 ; and that this last provision was only intended to apply to actions upon con- tracts for the payment of money upon their face, and not to those in which an unliquidated amount of damages is claimed. In Flynn v. The Hudson River Railroad Company, 6 How. 308, 10 L. 0. 158, these views are confirmed, and the foregoing case concurred in, in terms, by the same learned judge who decided Williams v. Miller, as before noticed. A j udgment entered up against a common carrier, for the amount mentioned in the sum- mons, without application to the court, was there held to be irregular, and an amendment of the summons was ordered, so as to bring the case within the second subdivision instead of the first. The decision proceeds upon the ground that, although in form an action ex contractu, the case in question was in fact an action ex delicto ; and McDuffie v. Beddoe, 7 Hill, 578, is cited in support of this view. See also Hasten v. Scovill, 6 How. 315, and Hewitt v. Howell, 8 How. 346. In Webb v. Mott, 6 How. 439, similar views were entertained, t and a summons under subdivision 1, the complaint being for damages for a malicious prosecution, was held to be bad, although, the defendant having appeared generally, the objection was considered waived. See also Hewitt v. Howell, 8 How. 346, and other cases given below, deciding in like manner. The foregoing principles were greatly extended in Field v. Morse, 7 How. 12, where, although the action would otherwise have fallen under subdivision 1, allegations of fraud were inserted. It was held that, under these circumstances, the summons was bad, the gravamen of the action being fraud, and a judgment which had been taken by default was set aside. In West v. Brewster, 1 Duer. 647, 11 L. O. 157, it was held in like manner, that an action against an attorney for moneys collected by him, was an action for relief, and the summons properly issued under subdi- vision 2. In Voorhies v. Scojield, 7 How. 51, similar views were enter- tained, and a money summons, the complaint being for wrong- fully taking personal property, was held to be irregular. Where, too, collateral relief seeking to vacate an agreement for extending the time of payment, was prayed for in an ordinary 124 SUMMONS, AND ITS SERVICE. action on contract, a summons for relief under subdivision 2 was sustained. Travis v. Tobias, 7 How. 90. In The Cemetery Board of Hyde Park v. Teller, 8 How. 504, it was held, in like manner, that, where the action is for unliquidated damages, summons for relief is the proper form ; where, how- ever, the contract sued upon provides in terms, for the payment of a fixed sum, as liquidated damages, the reverse is the case, and a summons for that amount will be properly issued under subdivision 1. One general principle may be safely deduced from the various decisions last cited, and particularly from Webb v. Mott, Field v. Morse, Voorhies v. Scojield, and Travis v. Tobias, in all of which it is more or less distinctly laid down, viz: that the statement of the cause of action in the complaint, and the incidents to that statement, will, in all cases, be held to control the summons ; and that the latter process must be adapted to that statement, and to the relief prayed for, whether direct or collateral. Another general principle seems also deducible from the same series of decisions, viz: that where there is any doubt as to whether the action does or does not embrace more than a mere money reco- very, or where the allegations in that action sound anywise in tort, or tend towards making the defendant arrestable on execu- tion, a summons for relief will be the more advisable form of process. General Remarks.]— Swift v. Be Witt, 3 How. 280, 1 C. E. 25, 6 L. 0. 314, is direct authority as to legality of the form usually adopted under subdivision 1, i. e., that the plaintiffs will take judgment for the amount claimed, and also for interest thereon from a given date mentioned in that notice. The case of Hill v. Thacter, 3 How. 407, 2 C. K. 3, before cited under the last head, evidences the necessity of the preli- minary proceedings, necessary to authorize the commencement of a suit in the name of an infant plaintiff, being perfected be- fore the summons is issued. I>< In I mul .1 in' udments.'] — Defects in a summons can neither be disregarded under see. 169, nor amended, as of course, but only on special application to the court under sec. 173. See, on the former point, Uiblee \. Mason, above cited, and, on the latter, McCranev. Moulton, '6 Saudi'. 736; 1 C. K. (N. S.) 157. Davenport SUMMONS, AND ITS SERVICE. 125 v. Russell, 2 C. E. 82, is a decision to the contrary effect, but seems of no authority. The above cases were decided under the Code of 1849, under which process was not, in express terms, made amendable. Any possible difficulty on the question is, however, now removed by the last amendment, by the express insertion of the word "pro- cess" in that section. Although, in several of the cases above referred to, leave to amend the summons was refused, and the universal practice of the courts seems to be to insist upon a strict compliance with the form prescribed; and, in ordinary cases, where the defect is a defect in substance, only to grant that leave on terms equivalent to the bringing of a fresh action, and even, in some few instances, to refuse it; the same strictness has not always been shown where the defects have been of a more technical nature, and not calculated practically to mislead the defendant. Thus, in Hart v. Kremer, 2 C. R. 50, where the summons stated, not that the complaint, but that "a copy of the complaint" would be filed, the court held that there was nothing in the objection; and in Keeler v. Belts, 3 C. R. 188, a summons which referred to the complaint as "annexed," when such in fact was not the case, was, though held to be bad, allowed to be amended on payment of costs. Where, too, the statute would run unless an amendment be granted, the court will permit one, where otherwise it would have been refused. See the same case, and also that of Weare v. Slocuni, above cited. Where the application for the above purpose is made after the defendant has appeared, it can only be made upon notice. Hewitt v. Howell, 8 How. 3-46. Before the making of Rule 86 of the Supreme Court, it was held that, in a summons for relief, the county in which applica- tion would be made for judgment, was necessary to be stated, and that such county must be that designated in the complaint as the place of trial. Warner v. Kenny, 3 How. 323; 1 C. R. 96 ; Anon., 1 C. R. 82. Since the making of that rule, however, this is no longer necessary. § 42. Service of Complaint, with Summons. It is left optional by the Code, sec. 130, as to whether a copy of the complaint should or should not be served with the sum- mons; but, in a majority of instances, the expediency of adopt- 126 SUMMONS, AND ITS SERVICE. ing that course is unquestionable ; for the obvious reason, that a defendant desirous of delay may wait till the very last day, before he demands a copy of the complaint, and, by then serv- ing that demand, may practically gain an extension of his time to defend, amounting to double that allowed to him, when the complaint accompanies the summons. There are, however, two classes of cases in which the sum- mons may advantageously be served alone; i. e., 1, those in which an immediate commencement of the action is an object, or in which it is likely that several defendants may defend jointly; and 2, those in which no personal claim is made against any one or more of the defendants. § 43. Notice of no Personal Claim. In these last cases, the Code has made provision for the ser- vice of a notice to that effect, concurrent with the summons, the requisites as to which are prescribed by sec. 131. See Appendix. Under the Code of 1849, the plaintiff's power in this respect was limited to cases of partition or foreclosure ; but, by the last amendment, it is extended to causes of every description, with- out limitation, and may now be advantageously exercised, with reference to every mere formal defendant, against whom no per- sonal claim is made, in any suit, of whatever nature. In cases involving a claim upon specific real or personal property, a brief description of that property must be inserted. See form as adapted thereto. The benefits of adopting this course, wherever practicable, in reference, both to the proceedings at the outset, and also to the ultimate award of costs in the action, in the event of an unreasonable defence, are obvious ; and therefore, wherever possible, it should never be omitted; though, of course, it cannot be done with reference to any defendant against whom substantive relief is sought, and, if attempted under such cir- cumstances, would render the proceedings so far void, ab initio. It would seem that, where husband and wife are mere formal defendant Bervice of notice on the former alone would be held sufficient. § 44. Service of Summons. The essentials ol a valid summons, and of the accompanying notice, in cases where that course is admissible, having thus SUMMONS, AND ITS SERVICE. 127 been considered, the next point to be entered upon is tliat as to their due service. In courts of limited authority, tbe mere issuing of a summons prima facie confers jurisdiction ; and, if such summons be served within the proper limits, the presumption will be that it was duly issued. Barnes v. Harris, 4 Comst. 374. In Clason v. Corley, 5 Sandf. 454, it was held that the re- sidence of a defendant within the circuit of a judge under the former equity system, was of itself sufficient to give that judge jurisdiction in an equity suit, though neither had the cause of action arisen, nor was the subject in controversy within that district. Persons by whom Service may be effected.] — Service may be ef- fected either, 1. By the sheriff of the county where the defendant may be found, or, 2. By any person not a party to the action : and the party subscribing the summons may, if thought expedient, fix by en- dorsement a specified time for its service. See sec. 133. By Sheriff.] — Van Rensselaer v. Chadwick, 7 How. 297, con- tains an " obiter dictum,'" that the sheriff's return in such a case is not conclusive, but may be impeached, the precise point how- ever notbeingin question. The contrary seems nevertheless to be settled, and the conclusiveness of the sheriff's return, as re- gards acts duly done by him in his official capacity, clearly established by a numerous series of decisions, and, in particular, by the cases of Learned v. Vandenburgh, 7 How. 379 ; Van Kirk v. Wilds, 11 Barb. 520; Russell v. Gray, 11 Barb. 541; Col. In- surance Co. v. Force, 8 How. 353 ; Sheldon v. Paine, Court of Appeals, 30th Dec, 1852. The sheriff's certificate must how- ever identify the summons and complaint as that served by him, or the service will be defective. Litchfield v. Bumcell, 5 How. 341, 1 C. K. (1ST. S.) 42, 9 L. 0. 182. It seems, though, that some limit should be imposed on this doctrine in extreme cases, such as that reported, 4 How. 112, Anon., where it was held that a judgment entered upon a capias under the old practice, which had been served by the sheriff upon a wrong person, was not void for irregulari ty ; the appli- cation to set such judgment aside being made on that ground 128 SUMMONS, AND ITS SERVICE. alone, without any affidavit of merits, or proof of collusion. It seems difficult to understand on what ground this decision pro- ceeded, or how any proceeding could be considered regular, in an action which, as between the real parties to it, had never been commenced at all. In both the cases from Wendell, which are cited in the report, the causes had there been duly com- menced in the first instance, and the irregularities complained of were of subsequent occurrence, during their progress, and on mere points of form. There seems a wide distinction to be drawn between cases of this nature, and that now under con- sideration. The fact, that process under a provisional remedy has been placed in the sheriff's hands for execution, does not render it necessary that the summons should be served by him also. It is equally competent for another party to serve it, in this as in other cases ; and that, either before or after the action of the sheriff under the provisional remedy, provided only the sum raons has been previously issued. Mills v. Corbett, 8 How. 500. By other Persons.] — In this case it seems clear that the ordi- nary affidavit by the person employed for that purpose pos- sesses no inherent authority, and may be impeached as under other circumstances, on the facts sworn to being disproved. See Van Rensselaer v. Ohadivick, 7 How. 297, before cited, which is clearly an authority to this effect. Mnde of Service.] — The mode of service of such summons, by tlio party appointed for that purpose, is thus prescribed. A copy must of course be delivered to every defendant served. 1 n actions on contract, however, it is not absolutely impera- tive that service should be made on all the defendants, prior i" ill'- plaintiff proceeding against those on whom it has been effected. Travis v. Tobias, 7 How. 90. i. The summons shall be served by delivering a copy thereof us follows : 1. If the suit be against a corporation, to the president or other head <>f the corporation, secretary, cashier, treasurer, a director, or managing agent thereof; but Buch service can be made in respect to a foreign corporation, only when it lias property within this State, or the cause of notion ftro le I herein. 2. If agrifost a minor Cinder the age of fourteen years, to such minor SUMMONS, AND ITS SERVICE. 129 personally, and also to his father, mother or guardian, or, if there be none within the State, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed. 3. If against a person judicially declared to be of unsound mind, or incapable of conducting his own affairs in consequence of habitual drunkenness, and for whom a committee has been appointed ; to such committee, and to the defendant personally. 4. In all other cases to the defendant personally. The mere manual delivery of a summons and complaint, or of either, is not good service, unless they be left with the party served. Beehman v. Cutler, 2 C.'E. 51. It is absolutely neces- sary that this precaution should be observed, in case of any attempt by that party to return them. The courts, too, will not sanction any false statement or misrepresentation with a view to service within their jurisdiction, and, if that imputation be established, the service so made will be set aside. Carpentev v. Spoonen, 2 Sandf. 717 ; 2 C. E. 140 ; affirmed, 3 C. E. 23. A non-resident witness, who has voluntarily come within the jurisdiction of the court for the express purpose of being examin- ed, is privileged from the service of process during his attendance. He has the same privilege as a witness attending under sub- poena, and that privilege extends to the service of process as well as to exemption from arrest. Seaver v. Robinson, 12 L. 0. 120. Service of process out of the territorial jurisdiction of the court is, ipso facto, a nullity, so far as judicial proceedings, in personam, are concerned, nor can the defect be cured by any admission. The only valid mode of proceeding in such cases is by publication under the next section. Litchfield v. Burwell, 5 How. 341 ; 9 L. 0. 182 ; 1 C. E. (N. S.) 42. See also the case next cited. Service of a summons on the president of a foreign corpora- tion, temporarily within the State, was held to be good service under the Code of 1849, so far as notice ©f the commencement of a suit was concerned, in Hulbert v. The Hope Mutual Insu- rance Company, 4 How. 275; affirmed, 4 How. 415: though it was held as above, that, so far as regarded a judgment in per- sonam, such service was ineffectual, and that the only mode of making the action of any practical effect was by an attachment. See also Nones v. The Hope Mutual Insurance Company, 8 Barb. 9 130 SUMMONS, AND ITS SERVICE. 541 ; 5 How. 96 ; 3 C. R 161. It will be seen that, by the last amendment, special provision is made for service of this nature, in the section as it now stands. The same view, as to the necessity of an attachment in these cases, was taken in Brewster v. TJie Michigan Railroad Company, 5 How. 183; 3 C. E. 215. In this case, it was held that service on a mere local agent of a foreign company for special purposes only, was not service on the managing agent within the terms of the above section. Service upon the baggage-master at a railroad station was held to be insufficient, in an action against the company for loss of baggage. Flynn v. Tlie Hudson River Railroad Company, 6 How. 308, 10 L. 0. 158. He was held not to be a managing agent, within the terms of the section. "To authorize such a service, the agent must have the same general supervision and control of the general interests of the corporation, that are usually associated with the office of cashier and secretary." The irregularity was held, however, to be cured by the subse- quent appearance of the defendants. When the court has jurisdiction of the action, such an ap- pearance on the part of a foreign corporation will waive all other irregularities, and give jurisdiction of the person. Wat- son v. Cabot Bank, 5 Sandf. 428 ; see s. 139. Service on the secretary of a corporation was held to be good, but service on individual corporators to be bad service under the former practice, in Lucas v. The Trustees of the Baptist Oh arch of Geneva, 4 How. 353. Although, by subdivision 3, a special mode of service is prescribed in the cases of lunatics, &c, yet the commencement of an action against a party judicially declared to be such, will not be regular, without previous application to the court, on petition for leave for that purpose, as under the former practice; and, if commenced, the proceedings in such an action will be restrained until such leave has been obtained. Soverhill v. Dick on, 5 How. 109. See also Hall v. Taylor, 8 How. 428; Wadsworih v. Sherman^ 14 Barb. 169, affirmed by the Court Of A-ppeals, July 13th, 1853, and (Iriswold v. Miller, lb Barb. 520, before cited. Service on a lunatic in person is absolutely indispensable in all cases, whether a committee has been appointed or not. Heller v. Better, 6 How. 191 ; 1 C. R. (N". S.) 309. SUMMONS, AND ITS SERVICE. 131 § 45. Substituted Service against resident Defendants, in certain cases. Additional facilities in relation to the service of process, in cases where the defendant is resident within the State, but cannot be found, are given by the recent measure, c. 511 of 1853, Laws of 1853, p. 974. These provisions run as follows, and apply not merely to process for the commencement, but also to notices, &c, pending the prosecution of an action. They effect an important change, and afford additional and important facil- ities for the bona fide commencement or prosecution of an action against parties not responding in the same spirit. Whenever it shall satisfactorily appear, to any court, or any judge of the Supreme Court, or any county judge, by the return or affidavit of any sheriff, deputy sheriff, or constable, authorized to serve or execute any process or paper for the commencement, or in the prose- cution, of. any action or proceeding, that proper and diligent effort has been made to serve any such process or paper on any defendant in any such action, residing in this State, and that such defendant cannot be found, or, if found, avoids or evades such service, so that the same cannot be made personally, by such proper diligence and effort, such court or judge, may, by order, direct the service of any summons, sub- poena, order, notice or other process or paper to be made by leaving a copy thereof at the residence of the person to be served, with some per- son of proper age, if admittance cannot be obtained, or any such proper person found, who will receive the same, by affixing the same to the outer or other door of said residence, and by putting another copy thereof, properly folded or enveloped, and directed to the person to be served, at his place of residence, into the post office in the town or city where such defendant resides, and paying the postage thereon. On filing with the clerk of the county where such defendant resides, or the county in which the complaint in any such action is by law to be filed, an affidavit showing service according to such order, such sum- mons, subpoena, order, notice, or other process or paper, shall be deemed served, and the same proceedings may be taken thereon as if the same had been served by delivery to such defendant personally or otherwise, as by law now required ; but the court may, upon any applica- tion by them deemed reasonable, at any time, permit any defendant to appear and defend, or have such other relief, in any action or proceed- ing founded on any such service, as the nature of the case may require. Service by Publication.'] — In those cases where the defendant 132 SUMMONS, AND ITS SERVICE. is non-resident, or cannot be found within the limits of the State, the summons may be served by publication, according to the former practice in equity ; and this remedy is not, like the former, of recent introduction, but is, on the contrary, coeval with the Code. The provisions of that measure on this important subject are, as they now stand, as follows : § 135. Where the person, on whom the service of the summons is to be made, cannot, after due diligence, be found within the State, and that fact appears by affidavit to the satisfaction of the court or a judge thereof, or of the county judge of the county where the trial is to be had, and it in like manner appears that a cause of action exists against the defendant, in respect to whom the service is to be made, or that he is a proper party to an action relating to real property in this State, such court or judge may grant an order that the service be made by the publication of a summons, in either of the following cases : 1. Where the defendant is a foreign corporation, and has property within the State, or the cause of action arose therein. 2. Where the defendant, being a resident of this State, has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent. 3. Where he is not a resident of this State, but has property therein, and the action arises on contract, and the court has jurisdiction of the subject of the action. 4. Where the subject of the action is real or personal property in this State, and the defendant has, or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partly in excluding the defendant from any interest or lien therein. 5. Where the action is for divorce, in the cases prescribed by law. The order must direct the publication to be made in two newspapers, to be designated as most likely to give notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six weeks. In case of publication, the court or judge miut also direct a copy of the summons and complaint to be forthwith deposited in the post-office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application, nor can with rea- sonable diligence be ascertained by him. When publication is ordered, personal service of a copy of the summons and complaint out of the State is equivalent to publication and deposit in the post-office. The defendant against whom publication is ordered, or his represent- atives, on application and sufficient cause shown, at any time before SUMMONS, AND ITS SERVICE. 133 judgment, must be allowed to defend the action; and, except in an action for divorce, the defendant, against whom publication is ordered, or bis representatives, may, in like manner, upon good cause shown, be allowed to defend after judgment, or at any time witbin one year after notice thereof, and within seven years after its rendition, on such terms as may be just; and if the defence be successful, and the judgment, or any part thereof, have been collected, or otherwise enforced, such restitution may thereupon be compelled as the court directs ; but the title to property sold under such judgment to a purchaser in good faith shall not be thereby affected. And in all cases where publication is made, the complaint must be first filed, and the summons, as pub- lished, must state the time and place of such filing. The powers under this section, as it stood in the former mea- sure, are in some respects restricted, in others enlarged by the amendments of 1851. The restrictions imposed are with refer- ence to the application to the county judge, and as to the necessity of a foreign corporation having property within the State, in order to ground a right to this species of relief against them. The power of service in cases falling under subdivision 2, which, in the former act, was limited to actions arising out of contract, is now on the contrary relieved from that restriction ; and those imposed upon applications for leave to defend before judgment are now removed. The provisions for the protection of bona fide purchasers, under judgments obtained in this man- ner, have also, for the first time, been inserted by those amend- ments. The cases with reference to service upon a foreign corporation, have been already cited in the course of this chapter. See also observations below as to non-resident defendants. Fraudulent Departure or Concealment.'] — In the subsequent portion of the work which is devoted to the consideration of the provisional remedy of attachment, the question as to what will, or will not, be considered as a fraudulent departure or concealment, will be found treated of in detail. See in particu- lar the cases of Morgan v. Avery, 2 C. K. 91, 7 Barb. 656 ; Cam- man v. Tompkins, 1 C. E. (1ST. S.) 12 ; Gilbert v. Tompkins, Id. ; and Genin v. Tompkins, 12 Barb. 265. Where a defendant had established a regular system, by which he had always notice of the approach of the sheriff, with a view to prevent service ; but afterwards followed him, on horseback, within sight, but out of 134 SUMMONS, AND ITS SERVICE. reach, service by publication was denied, on the ground that, though the intent was obvious, it could neither be said that the defendant " could not be found," or that " he kept himself con- cealed." Van Rensselaer v. Dunbar, 4 How. 151. This last state of things is now provided for by c. 511 of the Laws of 1853, above cited. Non- Residence.'] — The law on this subject is distinctly laid down in Haggart v. Morgan, 1 Seld. 422, where it is held that a person may be a non-resident, within the meaning of the statutes relative to non-resident debtors, while his domicil continues within the State. The debtor, in that case, had been detained abroad for three years and upwards, though keeping, and having previously kept up a house within the city of New York, and intending at some time to return. Under these circumstances, he was held to be a non-resident, and an attachment sustained against him. See same principles laid down by the court be- low, in Haggart v. Morgan, 5 Sandf. 198. Similar distinctions between residence and domicil are drawn by the same court, in Bartlett v. The City of Neiv York, 5 Sandf. 44 ; and Clason v. Corley, 5 Sandf. 454. The converse of this proposition, i. e., that a party originally a resident, but who had emigrated to another State, and had since returned on a visit to New York, and was then undetermined as to where he should finally reside, was a non-resident, within the meaning of the provisions of the Code as to attachments, will be found laid down in Burrows v. Miller, 4 How. 349. In actions where the defendant is non-resident, the fact of his having property within the State must appear distinctly and aflinnatively, or the court will have no jurisdiction. It would seem, that, in these cases, no previous attempt to serve process is necessary, the proof of non-residence being, of itself, sufficient evidence that the party cannot be found within the State. Ver- nam v. H6Ibroo7e } 5 How. 3; Rawdonv. Corbin, 3 How. 416. See observations above as to the absolute necessity of service of this nature, in all cases where the defendants arc non-residents, and cannot bo served within the jurisdiction. Affidavits <>" Application.] — The utmost care should betaken in the preparation of the affidavits on which the application is grounded, as the courts are extremely strict in requiring that every provision should be complied with. See Evertson v. Tho- SUMMONS, AND ITS SERVICE. 135 mas, 5 How. 45; 3 C. R. 74. The facts necessary to confer juris- diction must be stated positively, and not on mere information and belief, (Id.,) although, of course, this rule admits of some qualification, with reference to facts not within the personal knowledge of the party making the affidavit. See this point fully treated in a subsequent chapter, under the analogous head of Attachment, and also with reference to the necessary evi- dence in cases of arrest. In every such affidavit, substantive statements of the exist- ence of a cause of action sufficient to give jurisdiction, and of facts sufficient whereon to ground this peculiar species of relief, that a summons and complaint have been made out, and, where the application is under subdivision 2, that due diligence has been used for the purpose of attempting to serve the former, are absolutely essential, and the summons ought to be recited in the affidavit, or referred to as being annexed. See Raivdon v. Corbin, 3 How. 416. See also Note, 1 C. E. 13. N. B.— These decisions were under the Oode of 1848, but the amended measures are still more imperative upon the same pomts. A form of affidavit on applications of this nature will be found in the Appendix. As a matter of course, every fact which tends to show a fraudulent departure or concealment, must be clearly and distinctly stated, with all necessary detail, where an inference to that effect is to be drawn from any com- bination of circumstances; and, equally of course, the facts so to be proved may be sustained by different affidavits, where they are not all within the knowledge of one single party. The disposal of the affidavits to be used does not appear to be pointed out by the Code, but the usual, and doubtless the proper practice, will be to file, or to leave them with the judge who grants the order; Vernam v. Uolbrook, 5 How. 3, above cited. This appears most essential, with a view to establishing the validity of the proceedings, if called into question thereaf- ter. In the same case, a third affidavit, not filed with the order, supplying defects in two which were so filed, was admitted as suf- ficient to sustain the proceeding, on allegation that it had been used before the judge ; and a motion to set aside the order, on the ground of defects in the affidavits which had been filed, was denied. Form of Order, cfrc] — The form of order to be drawn up on applications of this nature will be found in the Appendix. 136 SUMMONS, AND ITS SERVICE. The applicant should of course be prepared with, the names of two newspapers, to be inserted in the order, and also with the direction of the defendant, or proof that his residence can- not, after due diligence, be ascertained. In this latter case, an allegation to this effect, and proving the exercise of that dili- gence, must of course be inserted in the affidavits. It is need- less to observe, that the strictest compliance with every direc- tion contained in the order is essential. The forms of affidavit necessary for the proof of that compliance, will be found in the Appendix. Service out of State, Effect of.'] — In Litchfield v. Bumvell, 5 How. 341, 1 C. R. (N. S.) 42, 9 L. O. 182, it was held that personal service out of the limits of the State in no respect did away with the necessity of publication under the order, and that its effect was merely to dispense with the service by mail also required as above. This view seemed doubtful at the best, and has since been overruled in Watson v. The Cabot Bank, 5 Sandf. 423, where it was held that, by a voluntary appearance, a defendant waived all objection to the mode of service, and that, under these circum- stances, jurisdiction of the person was acquired, whether publi- cation was or was not in fact made ; and also in Dyhers v. Wood- 'card, 7 How. 313, where it was held, distinctly, that the defend- ant time to answer began to run from the time of personal service on him out of the State, without regard as to whether the publication of the summons was or was not complete ; a default which had been taken in that case, under the above cir- cumstances, was accordingly refused to be opened, and judgment riven for the plaintiffs. Service within the State, upon the responsible officer of a foreign corporation, would appear to be merely equivalent to personal Bervice out of the State, on a non-resident defendant, and in oo respect to dispense with the necessity of an order for publication being obtained, or of the other requisites of that order being complied with. See Hidbert v. The Hope Mutual I,, wrance Company^ before cited. The complaint nerd not be published with the summons. Anon. } B Bow. 298; I C. R. 1 02, a point clear from the terms of the act itself. It is essential, however, that it should be previ- ously Bled, and that the summons should state the date and place of the filing, or the order will be irregular. SUMMONS, AND ITS SERVICE. IgJ When Service complete] — With the exception of the cases last referred to, service of this nature will not, as a general rule, be held to be complete, and the action commenced, until the ex- piration of the time of publication, as prescribed in the order, sec. 137. Where, therefore, the defendant had died during that period, it was held at special term that no action was pend- ing, that could be revived against his representatives. McEwen's Executor v. Public Administrator, 8 C. R. 139. The above general doctrine was confirmed by the General Term on appeal, though, with reference to the peculiar circum- stances of the case, it was held that an action had been duly commenced against the deceased, by the granting of the provi- sional remedy of attachment during his lifetime. Moore v. Thayer, 6 How. 47, 3 C. R 176, 10 Barb. 258. The proceedings with reference to the entry of judgment on the expiration of the time limited for publication, will be here- after considered. It has been an usual practice to enter up such judgment forthwith, on the expiration of the period mentioned in the order. In Tomlinson v. Van Vechlen, however, 6 How. 199; 1 C. R. (N. S.) 317, it was held that the service of the summons is not complete until that time, and that the defend- ant has the usual period of twenty days to answer, in addition, before judgment can be taken. See, however, Dyhers v. Wood- ward, above noticed. Defendant's power to come in and defend] — It remains to notice the measures which the defendant may take to set aside service of this nature, or to obtain leave to come in and defend, after judgment obtained thereon. It will be seen that, at any time before judgment, the defend- ant may come in and defend, as of course; and that he pos- sesses the full power of doing so, and of enforcing restitution, if he prevail, (except as regards the rights of bond fide pur- chasers,) within a very extended period after its rendition, except in the single case of divorce, on proof that he has not had a full year's previous notice of such judgment; a provision which renders it highly advisable that, wherever practicable, a formal notice of judgment being entered should be forthwith served upon him on the part of the plaintiff. Under the Code of 1849, a defendant, who had been personally served out of the State, or who had received the summons by post, was pre- 138 SUMMONS, AND ITS SERVICE. eluded from coming in to defend after judgment. See Hulbert v. The Hope Mutual Insurance Company, before cited; but this restriction no longer exists under the recent amendments. The courts will not, however, interfere with the discretion of a justice, granting an order of this nature, or set such order aside, merely because the evidence on which it was granted was slight. Roche v. Ward, 7 How. 416. General Remarks .] — In many cases where an order of this description is obtainable, the same state of facts will warrant an application for an attachment, (see Moore v. Thayer, above cited,) which may be made at the same time, and on the same affidavits; though it by no means follows that the latter will, in all cases, be also granted — the greater stringency of that species of remedy, rendering the courts more jealous as to its exercise. By the above section, provision is not made for the case of a defendant, whose residence cannot be ascertained on due in- quiry. In Close v. Van Husen, 6 How. 157, it was held that, under these circumstances, the plaintiff still possessed a remedy in equitable cases, under the act of April 12, Laws of 1842, p. 368, where the last known residence of the defendant was within the State; and that such act was not inconsistent with the Code, and therefore still in force. The plaintiff, it was held, "should present his application by petition, bringing his case within the 135th section of the Code, so far as form is concerned, and the first section of the act of 1842. The pub- lication of the order should be in two newspapers, to be de- signated as most likely to give notice to the persons to be served, and for the period of three months. (Compare Code, sec. 13.0, with Law of 12th April, 1842, sec. 2, subd. 2.)" This state of things is, however, now provided for by the recent statute, e. 5] | ,,{■ the Laws of 1853, above noticed. § 46. Service, on several Defendants, Joint Debtors, SfC. The provi ionB Of section 136, under which, in actions against several defendants, the summons may be served upon any one or more of them alone, and separate procedings taken there- upon, against the parties BO served, will be remarked; though, SUMMONS, AND ITS SERVICE. 139 of course, it will be premature, at this point, to enter into the details of those proceedings. The peculiar description of pro- cess by means of which parties against whom a joint judgment has been entered without personal service upon them, or the representatives of a deceased judgment-debtor may be respectively summoned to show cause why they should not be bound by the judgment already on record, will be hereafter considered in connection with those proceedings. See sections 375 to 378 inclusive, and Forms in Appendix. § 47. Proof of Service. The following are the provisions of the Code on the subject of the proof of service of summons, &c, as above : — § 138. Proof of the service of the summons, and of the complaint or notice, if any, accompanying the same, must be as follows : 1. If served by the sheriff, his certificate thereof; or, 2. If by any other person, his affidavit thereof; or, 3. In case of publication, the affidavit of the printer, or his foreman, or principal clerk, showing the same; and an affidavit of a deposit of a copy of the summons in the post-office, as required by law, if the same shall have been deposited ; or, 4. The written admission of the defendant. In case of service, otherwise than by publication, the certificate, affi- davit, or admission, must state the time and place of the service. Sheriff's Certificate.'] — It is essential that the sheriff's certifi- cate should identify the summons and complaint served by him, as being the summons and complaint in the cause, or the service will be defective. Litchfield v. Bunvell, 5 How. 341 ; 9 L. O. 182; 1 C. E. (N. S.) 42. With respect to the conclusiveness of the sheriff's certificate, see sec. 44 in the prior portion of the chapter, and the various cases there cited. The sheriff's fees, in respect of service of process and papers as above, are as follows : For service of the summons, or sum- mons and complaint, 50 cents; for service of notice of object of suit, 37^ cents in addition ; and for his certificate of the service of both summons and notice, one fee of 12^ cents onty, in ad- dition to those for mileage, at 6 cents per mile, for going only, to which he is entitled under the Eevised Statutes, 2 E. S. 644. See Gallagher v. Fgan, 2 Sandf. 742. 140 SUMMONS, AND ITS SERVICE. Affidavits, Admissions, Sc] — The necessary particulars of the affidavit of service, when made by a person in the ordinary form, are fully prescribed by Eule 90 of the Supreme Court : see Form, in Appendix. The forms of affidavits in cases of service by publication are also there given. Where the written admission of the defendant is relied upon, it would seem from Litchfield v. Burwell, above cited, that it is absolutely essential that his signature to such admission, and the fact that he is the party to the cause, should be proved by independent evidence. The court will take judicial notice of the signatures of its officers, because they are such, but they cannot be presumed to know that of a party defendant, who has not appeared in the cause. § 48. Appearance of Defendant. The provision in sec. 139, with regard to the voluntary appearance of a defendant being equivalent to due service upon him, is one of the amendments of 1851, and is of course highly calculated to promote the convenience of suitors, though per- haps, in strictness, only declaratory of the previous law upon the subject. As a general rule, it holds good that a voluntary appear- ance in an action waives all objection to the process by which it was commenced. See Webb v. Mott, 6 How. 439 ; Hewitt v. Howell, 8 How. 346, above cited. See also Watson v. Cabot Bank, 5 Sandf. 423 ; Flynn v. Hudson River Railroad Company, 6 How. 308 ; 10 L. 0. 158. This rule, though sound in general, is not, however, of conclusive application. Thus, in Voorhies v. Scofield, 7 How. 51, it was considered that where the summons is served alone, and the defendant is obliged to demand a copy of the complaint, in order to see what it contains, he might still, un- der these circumstances, object to the summons for irregularity, on a manifest variance thus becoming apparent; and the general principle to the contrary, as broadly laid down in Webb v. Mott, above cited, was so far doubted. In Grainger v. Schwartz, also, 11 L. < ).?,-\<',. it w.'i held that a general appearance on the part of the defendant will not effect a waiver of a jurisdictional defect in the plaintiff's proceedings. One of several defendants, who has not yet been served with process, cannot voluntarily appear and move to dismiss the SUMMONS, AND ITS SERVICE 14L complaint, under sec. 274, where his rights are not affected. He must be contented to remain quiet out of court, until invited to appear there, unless he has some right to protect, rendering such appearance necessary. Tracy v. Reynolds, 7 How. 327. The periods, at which an action will be held to have been commenced by service or delivery of process to the sheriff, and also with reference to publication, or the allowance of a pro- visional remedy, have already been considered, under the head of Limitations. See ante, sec. 37 ; Code, sees. 99 and 139. § 49. Closing Remarks on above head. Before entering upon the general proceedings in a suit, the appointment of a guardian ad litem, and his duties, may advan- tageously be considered at the present juncture; as, where suit is brought in the name of an infant, such appointment must, of necessity, take place as a preliminary to any other proceeding in the action, and, in fact, to the bringing of the action itself. The subject of a similar appointment on behalf of an infant defendant, and that of the appointment of a general guardian under the old practice, and the duties of the latter, bear so close a relation to that last proposed, that, although the former pro- perly belongs to a later period of the action, and the latter is, in strictness, referable to the head of special proceedings, the pre- sent seems evidently the most convenient stage of the work for a separate consideration of these subjects, as one connected whole ; which course will accordingly be pursued in the succeeding chapter, references being made to it, in the subsequent portions of the work, where requisite. 142 APPOINTMENT OF GUARDIAN. CHAPTER IV. OF THE APPOINTMENT OF GUARDIAN, AND HIS DUTIES. § 50. General Remarks. This proceeding is one of those provided for by the Code, and the rules of the Supreme Court, and is necessary to be taken at the outset of any suit whatsoever, to which an infant is a party, whether plaintiff or defendant. The question has also a general aspect, in relation to the guardianship of infants holding property, irrespective of any suit brought by or against them ; and the consideration of it has therefore been reserved for the present juncture. The subject divides itself accordingly into two separate, though connected heads, viz; 1. The appointment of a general guard- ian; and 2. That of a guardian ad litem. The provisions of the Code itself have only reference to the latter subject ; those of the rules, however, embrace both. § 51. General Guardian. The questions in relation to the appointment and duties of a general guardian, 'depend entirely and exclusively upon the provisions of the Revised Statutes, and are in all respects gov- erned by the old practice. Any thing beyond a mere general reference to them, would therefore be clearly incompatible with the present work, and will not, accordingly, be attempted. The appointment of a guardian of this nature, rests with the father of the infant, in the first instance; and, in default of appointmenl by him, with the courts. The rights of the former in this respect, are specially saved by sees. 1, 2, and 3, of title III. chap. VIII. part II. of the Revised Statutes, 2 R. S. L50, .'Hid are exercisable by deed or will. The rights and powers of ;i guardian so appointed are absolute, and prevail over those of the guardian in socage under the common law, as saved by sees. to 7, of art. I. title I. chap. I. part II. of the APPOINTMENT OF GUARDIAN. 143 same statutes, 1 R. S. 718. The latter are, in fact, little- better than illusory, as, under sec. 7, of that article, they are to be superseded, in all cases where a special appointment shall have taken place. In default of nomination by the father as above, the appoint- ment of a guardian rests with the courts, either by inherent or special authority. The inherent authority in this respect was vested in the chancellor, before the abolition of that high office, and now rests with the Supreme Court, as exercising its duties by substitution. The practice of the latter tribunal, in this respect, is fully defined by the recent rules, Nos. 54 to 62 in- clusive, which should be carefully consulted accordingly. A special statutory authority is also exercisable by the surrogate, under title III. chap. VIII. part II. of the Ee vised Statutes before referred to, which title, together with the works on the practice of those tribunals, should therefore be fully looked into, though even a notice of them would be beyond the province of the present work. The rules of the Supreme Court above alluded to, provide shortly as follows : The general guardian of an infant is to be appointed on petition of the infant himself, if fourteen or up- wards ; or if under that age, then of some relative or friend. Rule 57. The petition must state full particulars; and the court, under rule 58, are to examine into all the circumstances, and name a proper person. The security to be given by such guardian on his appoint- ment, is prescribed by rule 55 ; and no moneys arising from the sale of real estate of an infant, on mortgage or partition sale, or under a decree or judgment, except any portion of principal or income allowed for maintenance of the infant, are to be paid over to him, unless he have given sufficient security on unin- cumbered real property, rule 56; and a general guardian al- ready appointed, may, under rule 54, be required to give fur- ther security in cases of this nature. Provision is made by art. VII. title II. chap. I. part III. of the Revised Statutes, 2 R. S. 194 to 197, in relation to the sale of the real estates of infants on special application; and the practice to be adopted in this respect, the nature of the petition, the security to be given, the form of order to be made, and the proceedings thereon, will be found fully prescribed by rules 59 to 62 inclusive. 144 APPOINTMENT OF GUARDIAN. The following anonymous case is reported at 4 How. 414, with reference to the security to be given under rale 59. A guardian having been appointed, under rule 61, to sell a piece of real estate belonging to live infants, and the order having directed separate surety bonds to be given to each infant, in the sums thereby expressed, five bonds were given accordingly, Avith a separate affidavit on each, the same persons being sureties in all. It was held that, to make such parties competent as sureties, they must justify in the aggregate amount of all the bonds given. One only of such bonds was therefore approved ; and, as to the other four, it was held there must be other sureties, or a further justification. In White v. Parker, 8 Barb. 48, the general relations of guardian and ward, and the duties and responsibilities of the former, are very fully reviewed, and the following conclusions were come to by the court : It is the duty of a guardian to get possession and control of his ward's personal property, and the rents and profits of his real estate ; to keep and protect the same ; to keep it invested ; and to render a just and true account thereof, on the ward's becoming of age. He cannot trade with it himself, on account of his ward, nor buy or use his ward's property for his own benefit. All advantageous bargains which a guardian makes with the ward's funds, will enure to the benefit of the ward, at his election. He cannot convert the personal property of his ward into real estate, or buy land with the ward's money. If he does so, his ward, when he arrives at full age, will be entitled, at his election, to take the land or the money with interest. He should keep his ward's property separate from his own; otherwise be will make it his own, so far as to be accountable for it, if lost. If he takes notes or other securities, for money beloi i his ward, in his own name, he converts the pro- pert? to bis own use, and is prima facie accountable for it. Thus, if the guardian surrenders contracts for land, and takes deeda in bis own name, and pledges his personal responsibility for :i part of the purchase-money, this will be held a conversion of the contracts to bis own use; and the ward may adopt the transact ion, or claim from the guardian the value of the land contracts, at bis election. APPOINTMENT OF GUARDIAN. ^45 A guardian acting within the scope of his powers, is bound only to fidelity, and ordinary diligence and prudence, in the execution of his trust. And his acts, in the absence of fraud, will be liberally construed. A guardian is not responsible for open propositions made by him, in a preliminary talk or friendly conversation, before he assumes the duties of his trust. Nor is his surety liable for the conversations, or open propositions of his principal, before he became his surety. The liability of a guardian and his sureties, are simultaneous in their commencement, and coextensive in their object and duration. A guardian has no authority to make any improvements on the land of his ward without the authority of the Court. If he does so, and advances the amount out of his own pocket, he cannot recover it from his ward. Hassard v. Rowe, 11 Bar- bour, 22. Where special authority had been given to a guardian to cancel a bond and mortgage, on specific counter security being executed, and he had done the former, without receiving the lat- ter, it was held that his authority was conditional, and that the discharge so executed by him was void, and did not protect subsequent mortgagees, without actual notice, against the claim of the infants, the condition not having been performed. Swart- hout v. Curtis, 1 Seld. 301. A similarly strict view was held in Gale v. Wells, 12 Barb. 84, where a promissory note signed by the ward as surety for the guardian's debt, soon after the former came of age, was held to be void by a majority of the judges in the first district ; the holders of that note having been aware of the previous relations of those parties ; Edwards, J., however, dissenting, on the ground that the ward, being of age, was competent to contract, there being no evidence of actual fraud. Where a guardian had been appointed by the Surrogate under the provisions of the Eevised Statutes above cited, and the proceedings had been regular, it was held that the exercise of the Surrogate's jurisdiction could not be impeached collater- ally, and that a suit, in order to remove such guardian on the ground of fraud in the original proceedings, could not be main- tained, but that the proper course was to make a fresh applica- tion to the Surrogate to vacate the previous proceeding. Dutton v. Dutton, 8 How. 99. 10 146 APPOINTMENT OF GUARDIAN In cases where the infant is seized of an undivided share of lands, sought to be partitioned by the other parties interested, the general guardian possesses peculiar and extensive powers of concurring therein, or in a sale for such purposes on behalf of the infant, under the provisions of the Eevised Statutes in this respect. See this subject fully noticed, under the head of Partition. § 52. Guardian ad litem. The relations and duties of a general guardian having thus been shortly considered, though in strictness extraneous to the subjects treated of in the present volume, the question as to the appointment of a guardian ad litem, remains to be considered, which forms the subject of special provision in the Code, and is a necessary concomitant of proceedings under that measure, in all cases where infants are parties to those proceedings. The guardian ad litem is an officer specially appointed by the court, to take charge of the interests of any infant party, whether plaintiff or defendant. The sections of the Code in reference to this subject, are Nos. 115 and 116, which run as follows : § 115. When an infant is a party, he must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge. § 116. The guardian shall be appointed as follows: 1 . When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or, if under that age, upon the appli- cation of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must 6rst be given to such guardian, if he has one ; if he lias none, then to the person with whom such infant resides. '2. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons. If he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamantary guardian of Bttch infant, if he has one within this State ; if he has none, then to the infant himielf, if over fourteen years of age and within the State, or, if under thai age and within the State, to the person with whom Bucn infant, reaidi ■ APPOINTMENT OF GUARDIAN. 1 47 The latter of these sections is considerably modified by the two last amendments. In the act of 1849, the application for the appointment of the guardian of an infant plaintiff might, if under fourteen, be made by any other party to the suit. These words are now stricken out, and the power of application given instead to the general or testamentary guardian, if any ; and the provisions as to the notice to be given, if the application be made by a relative or friend, in any case, or by a party to the action, in the case of an infant defendant, are likewise new. In the measures of 1848 and 1849, the applications for this purpose were expressly directed to be made by petition, which word is now stricken out, and the general term application substituted. It seems to follow, as a necessary consequence, that this proceeding may now be taken by motion in all cases ; and such might very probably be the construction adopted, with regard to the appointment on behalf of an infant defendant, where the substantive facts in relation to the infant's interest in the subject-matter in controversy appear already on the plead- ings, and the facts in relation to the actual appointment, and its preliminaries, are merely collateral, and may, therefore, with propriety be shown by affidavit. The form of application by petition may, however, be adopted under any circumstances; and it seems by far the most expedient in all, especially when the appointment is made on behalf of an infant plaintiff, and therefore before suit commenced, rendering it necessary that the facts in relation to the infant's interest should be substantively shown, in order to form a groundwork for any order at all in the matter. See this question more fully considered under the head of Interlocutory Proceedings. See also the Eules of the Supreme Court, as below cited. The form of a petition for this purpose will be found in the Appendix, being substantially the same as that under the former practice. Similar provisions to those above cited are contained in title II., chap. VIII., part III. of the Revised Statutes, 2 R. S. 446 and 447 ; they may, however, be looked upon as mainly super- seded by those of the Code now under consideration. Stringent restrictions are laid by the Supreme Court upon appointments of this description under the recent rules. By Rule 53, it is provided that 148 APPOINTMENT OF GUARDIAN. No person shall be appointed guardian ad litem, either on the appli- cation of the infant, or otherwise, unless he be the general guardian of such infant, or an attorney or other officer of this court, who is fully com- petent to understand and protect the rights of the infant, and who has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party. And no person shall be appointed such guardian, who is not of sufficient ability to answer to the infant for any damage which may be sustained by his negligence or misconduct in the defence of the suit. In Cook v. Bawdon, however, 6 How. 233, 1 C. R (N. S.) 382, it was held that the restrictions imposed by this rule, in relation to the guardian being of necessity the general guardian, or an attorney or officer of the court, are not applicable to a guardian for an infant plaintiff, but only as regards defendants. The guardian for an infant plaintiff must, however, be a re- sponsible person, for he is liable for costs, and this should be shown before his appointment. If the court clearly discovers that the interests of the infant are committed to a guardian who is not likely to protect them, he should be removed, and a proper one appointed. Litchfield v. Burwell, 5 How. 341 ; 9 L. 0. 182 ; ICE. (N. S.) 42. An attorney or officer of the court, when so appointed on be- half of an infant defendant, is bound to act ; and must examine into the circumstances, with a view to making a proper defence, when necessary ; for which services he is to receive such com- pensation as the court may deem reasonable. Rule 52. Course on Appointment in Partition.] — The appointment of a guardian ad litem, in partition cases, takes place under the spe- cial directions for that purpose, in sec. II., title III., chap. V., part III. of the llevised Statutes, 2 11. S. 317, under which it is com- petent for any party interested, to apply and obtain such an order, on ten days' notice served upon the minor, or upon his general guardian, if resident within the State, but otherwise without notice ; such guardian to represent, and his acts to bind the minor, (sec. 3,) and to give security as the court shall direct, (sec. 4.) In case no proper parties shall be willing to become security, the Court of Chancery might, in a suit, appoint its own officer without security, on notice to the minor or his guardian in all cases; Laws of 1833, chap. 277: and such power is doubtless now exercisable by the Supreme Court. APPOINTMENT OF GUARDIAN. ^49 Under Code.] — The course pointed out by the Code is so sim- ple and easy, that it evidently appears to be the most advisable in all cases, and that, notwithstanding the alteration in sec. 116> above alluded to. The petition must, in the first instance, be duly signed and verified, and the written consent of the pro- posed guardian to serve must be subjoined. What is called the usual affidavit must accompany it, speaking to the particulars required by Ruje 53, and likewise as to the solvency of the guardian proposed. See Cook v. Rawdon, 6 How. 233, 1 C. R. (N. S.) 382, above cited. Where the infant is plaintiff, and money is sought to be recovered, a bond, in double the amount, according to the form prescribed by Rule 55, should be prepared, and should accompany the other papers. On these papers an order should be applied for and entered in the usual manner. The application is almost necessarily ex parte, and, under the Rules as they stood before the recent revision, the order might be entered by the clerk as of course, under a judge's certificate, but this course of proceeding is now abrogated. Where, how- ever, there is any contest or doubt on the subject of the appoint- ment, or where the court or judge applied to, thinks fit to pre- scribe that notice should be given, the same course of proceed- ing must be adopted, and the application be made, in the same manner as in other motions in the cause. The guardian, when appointed on behalf of a sole infant plain- tiff, is responsible to the defendant for the costs of the suit, if the latter prevails. The contrary is the case as regards the guardian of an infant defendant, unless he be specially charged, by order of the court, for some personal misconduct in the cause. See 2 R. S. 446 and 447, sections 2 and 12. He may, however, receive costs and expenses allowed by the court to him out of the fund, or recovered by the infant in the suit — Rule 54 — but, beyond this, he cannot receive any money or property belong- ing to the infant, or awarded to him in the suit, without having first given security as above referred to. It is not necessary to serve a copy of the order appointing a guardian on the opposite party, though it is competent so to do. The fact will of course appear on the pleadings by substantive allegation, either in the title or otherwise. The guardian for an infant plaintiff must be appointed before summons issued. Where, accordingly, such appointment had been made, after issuing, but before service of summons and 150 APPOINTMENT OF GUARDIAN. complaint, the latter were set aside as irregular. Hill v. Thac- ter, 3 How. 407; 2 C. K. 3. A judgment against an infant defendant by default, without the previous appointment of a guardian ad litem, was set aside on motion, without imposing terms, and with costs, in Kellogg v. Klock, 2 C. E. 28. No consent of a guardian, on behalf of infants, will render valid a judgment against them, in the absence of legal proof, or any other irregular proceeding in the cause. Litchfield v. Bur- well, above cited. Nor is the responsibility of the guardian to the infant, any answer to the objection. In the same case it was held, as above noticed, that, where the court discovers that the interests of the infants are committed to a guardian who is not likely to protect them, he should be removed, and a proper one appointed. Where a husband and an infant wife sue in respect of joint property, no appointment of guardian ad litem in respect of the latter is necessary, the husband appointing an attorney for both, and being responsible for the costs. Cook v. Bawdon, 6 How. 233 ; 1 C. R (N. S.) 382. See also Hulbert v. Newell, 4 How. 93. Where, however, the suit is in respect of the wife's separate property, it would seem that the reverse is the case. Cook v. Rawdon, 6 How. 233 ; 1 C. R (N. S. 382, and Coitv. Coit, 6 How. 53, as before referred to. (See this subject heretofore examined under the head of Parties.) INTERLOCUTORY PROCEEDINGS. 151 BOOK IV OF THE FORMAL MACHINERY OF AN ACTION. § 53. Preliminary Remarks. Proceedings in a regular action may be classified under two general divisions, viz. — First, the ordinary, and Second, the extraordinary: the former incident to all proceedings without distinction; the latter collateral, and adoptable or not, at the discretion of the parties. The ordinary proceedings in a suit will not be entered upon here, but will be considered in the following portions of the work, in due order; and, with them, the essential characteristics of any interlocutory or extraordinary applications that may be necessary from time to time, will also be noticed. The pre- sent chapter will be exclusively confined to the mere formal proceedings incident to all such applications, and also to the progress of the cause, in a general point of view only, without regard to the merits, or the particular proceedings involved. In most, if not all, of the practical works of a similar nature to the present, this dissociation of matters of pure form from matters of substance, has been more or less attempted, but with various differences in the mode of arrangement. In some, the consideration of interlocutory applications, in particular, is de- ferred to a supplemental chapter: in others, the same matter is treated of in an introductory form. Each method presents certain relative advantages. By the one, the student is enabled to enter upon the regular march of a suit, at once, without being detained by preliminary considerations; the other places him at once in preliminary possession of the required information on various points, for which he must otherwise be continually looking forward. Allusions to different speeies of interlocutory remedies or 152 INTERLOCUTORY PROCEEDINGS. formal proceedings occur, of necessity, in almost every page, in treating of the general progress of a suit ; and it seems, therefore, of the two, the more conducive to convenience, to introduce the necessary information as to the forms required in these cases, at an earlier stage of the work. Interlocutory proceedings may be reduced under the two general heads of Motions and Orders, and their necessary pre- liminaries. The merely formal machinery of a suit includes a variety of subjects of general application. The latter will be taken first, and the former treated of at the conclusion of the chapter. § 54. Notices, and Service of Papers. Written notices to the adverse party are, in the first place, necessary in connection with almost every proceeding, in every stage of the cause. The essentials of such notices will be treat- ed of hereafter, in connection with each subject. All must, however, under sec. 408, be in writing, and be duly served on the adverse party or attorney. The mode of service of notices, of whatever nature, and of papers in the suit in general, is thus prescribed by section 409:— § 409. The service may be personal, or by delivery to the party or attorney on whom the service is required to be made : or it may be as follows : 1. If upon an attorney, it may be made during his absence from his office, by leaving the paper with his clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving it, between the hours of six in the morning and nine in the evening, in a conspicuous place in the office ; or, if it be not open, so as to admit of such service, then by leaving it at the attorney's residence, with some person of suitable age and discretion. 2. If upon a party, it may be made by leaving the paper at his resi- dence, between the hours of six in the morning and nine in the even- ing, with some person of suitable age and discretion. Where, however, the party has already appeared by attor- ney, service of all papers whatsoever must be made on the lat- ter. The provisions of sec. 417 arc express on the subject, as follows: INTERLOCUTORY PROCEEDINGS. 153 § 417. Where a party shall have an attorney in the action, the service of papers shall be made upon the attornejr, instead of the party. Service on the party of the ordinary papers in a suit, after an attorney has appeared for him, will not be good. In Tripp v. Be Bow, 5 How. 114, 3 C. E. 163, a notice of appeal served on the party, instead of the attorney, was decided to be bad, and such appeal was accordingly held to be a nullity. It was also held that the objection might be taken advantage of at any time, provided the party served had not appeared and answered, or proceeded in such a manner as to waive the defect, and give the court jurisdiction. The attorney of the party must, of course, be the attorney of record. Service on a mere agent will not be available. See Weave v. Slocum, 3 How. 397 ; 1 C. R 105. The following exception from the above provision is effected by sec. 418 : § 418. The provisions of this chapter shall not apply to the service of a summons or other process, or of any paper to bring a party into contempt. Whenever, therefore, a proceeding is of a penal nature, or any specific act is commanded or forbidden to be done, the service must be personal. In a large proportion of these cases, it may, however, be prudent to notify the opposite attorney also. Where a defendant has not demurred or answered, service of notices or papers, in the ordinary proceedings in an action, need not, under sec. 414, be made upon him at all, unless he be imprisoned for want of bail, or unless a regular notice of ap- pearance has been given. In this latter case, service must be made on him or his attorney in the usual manner. The mode of service being so clearly prescribed by sec. 409, as before cited, it would be useless to repeat the directions there given. The form of an affidavit of service adapted to the different states of circumstances mentioned in that section, will be found in the Appendix. Service may also be proved by the admission of the attorney, to procure which is an usual and convenient practice. One signed by the party would also be valid, but is less unobjectionable, inasmuch as the court cannot take judicial notice, but may, on the contrary, require actual proof of his signature. 154 INTERLOCUTORY PROCEEDINGS. In order to the due regularity of service on a clerk, or person in charge, it should be ascertained that the attorney is absent from his office at the time, as, if not, it may be questionable whether service upon any other party will be strictly regular. It is clear that a notice cannot be properly served when the office is not open, by passing it under the door, or otherwise, and clear also that service upon a clerk, or person in charge, is not regular, if made elsewhere than in the office itself. The limita- tions as to hours, in cases of service at the residence of either party or attorney, should likewise be carefully noted. Although, in strictness, a paper must be served within due time, or other- wise the service will be null ; still, where due diligence has been used, and that service has been rendered impossible by the act of the intended recipient, the court will not allow him to take advantage of his own wrong, and will hold subsequent service at the earliest possible period, to be regular. Thus, in Falconer v. Ucoppell, 2 C. R 71, where, on the last day for serving an amended answer, the defendant endeavored, in office hours, to make the service, both at the plaintiffs office and dwelling ; but both were closed, and no one could be found to receive it, but, on the following day, the same was served personally, with notice of the attempted service of the day before ; it was held that, in making the best possible service, the defendant was. regular, and the plaintiff was fixed with the costs of the motion. Of course this doctrine is only adapted to extreme cases, where full diligence has been used, and the conduct of the other side has been evidently evasive. Unless the moving party has made every possible effort, and fails, not from want of any exertion of his own, but from the absence or bad faith of the opposite party, it would, on the contrary, be most unsafe for him to rely on ob- taining relief of this description. Where a paper has been re- fused by an attorney as served out of due time, a subsequent service on his clerk, in ignorance of the refusal of his principal was held of no avail; O'Brien v. Catlin, 1 C. K. (N. S.) 273. In sec. 415, provision is made for the case of a party who has appeared in the: action, but who resides out of the State, and has no attorney within it. In this case, the service may be made by mail, if his residence be known ; if not, on the clerk for the party. The last, clause is somewhat obscure, and seems, in fact, contradictory to previous portions of the Code, which expressly provide that, as regards the summons on the one hand, (sec. 128,) INTERLOCUTORY PROCEEDINGS. 155 or the notice of appearance on the other, (sec 130,) a place for service within the State must be named ; service at which place would doubtless, under such circumstances, be held as regular ; both generally, and under Kule 5 of the Supreme Court. It is clear that service on a Sunday is not admissible under any circumstances, and, if made, will be irregular. See Pulling v. The People, 8 Barb. 384 ; Field v. Park, 20 Johns. K. 140 ; and other cases hereafter cited in the present chapter under s. 46. With a view to the affording all proper facilities in relation to service of papers, Eule 5 of the Snpreme Court provides as fol- lows : On process or papers to be served, the attorney, besides subscribing or endorsing his name, shall add thereto his place of residence ; and if he shall neglect so to do, papers may be served on him through the mail, by directing them according to the best information which can conveni- ently be obtained concerning his residence. This rule shall apply to a party who prosecutes or defends in person, whether he be an attorney of not. See remarks in relation to service by mail under the next sec- tion. It is clear that when an attorney, or party acting in person, changes his residence pending the suit, he ought to notify the opposite party, and such is the usual practice. When the attorney is changed during the progress of the ac- tion, notice of the substitution must of course be served on his opponent as heretofore. This notice must be in writing, and must give, the residence of the substituted party, in compliance with the above rule. No particular form need however be ob- served. It need not be explanatory as to how the substitution was effected, the bare fact being all that is necessary to be shown. Dorlon v. Lewis, 7 How. 132. § 55. Service by Mail. The above observations are applicable to those cases in which the parties or attorneys on both sides reside in the same place. When this is not the case, service by mail becomes admissible, except as regards process or papers to bring a party into con- tempt. Sec. 418. 156 INTERLOCUTORY PROCEEDINGS. The mode in which service by mail may be made, is thus prescribed by sections 410, 411, and 412 : § 410. Service by mail may be made, where the person making the service and the person on whom it is to be made reside in different places, between which there is a regular communication by mail. § 411. In case of service by mail, the paper must be deposited in the post-office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid. § 412. Where the service is by mail, it shall be double the time required in cases of personal service. The cases in relation to service of this description are nu- merous. In Schenck v. McKie, 4 How. 246, 3 C. E. 24, the following principles are laid down : 1. That such service must be made by the attorney himself, and that he cannot employ an intermediate agent. 2. That the paper must be posted at the residence of the attorney, and not elsewhere ; properly addressed, and the post- age paid. 3. That, if these requisitions be duly complied with, the ser- vice will be deemed regular, and the party to whom the notice is addressed, will then take the risk of the failure of the mail. On these principles, a copy answer deposited by the agent of the attorney, in a post-office in a different town from that in which the attorney resided, was held not to be regularly served, and it was decided that the plaintiff had a right to enter up judgment in the meantime, and to disregard its subsequent arrival. Where, however, the papers, though unduly mailed, were actually received within time by the attorney for the oppo- site party, the service was held to be good. Peebles v. Rogers, 5 Eow. 208; 3 0. R. 213. The third of the above principles, as laid down in Schenck v. McKie, was fully sustained by the court, in the subsequent ease of Ghadwick v. Brother, 4 How. 283, in which a notice of adjustment of COStfl, and the adjustment under it, were' decided to have been regular, when the former was posted by the defendant's attorney in due time; and this, not- withstanding such notice was not actually received by the plaintiff's attorney, until the day after such adjustment had taken place, owing to some irregularity on the part of the post- INTERLOCUTORY PROCEEDINGS. 157 office authorities. The same conclusion was come to in Van Home v. Montgomery, 5 How. 238. In Noble v. Trotter, 4 How. 322, it was further decided that, where a copy of an answer had been posted by the defendant's attorney on the very last day allowed for its service, and after the mail had left on that day, in consequence of which the plaintiff's attorney did not receive it till two days after the time had expired, such service was nevertheless good : a judgment entered up, in the meantime, by the plaintiff's attorney, was accordingly set aside. The case of Maker v. Comstoch, 1 How. 87, to the contrary effect, is over- ruled ; and the cases of Broivn v. Briggs, 1 How. 152 ; Radcliff v. Van Benthuysen, 3 How. 67 ; and Jacobs v. Hooker, 1 Barb. 71. under the old practice, are cited in the course of the decision, in support of the view so taken. The same doctrine was also distinctly held in Gibson v. Mur- doch, 1 C. E. 103, with the addition that any party taking judg- ment, between the expiration of the time and the actual arrival of the answer, would take his order for such judgment "at his peril, and liable to be made irregular by its subsequently appear- ing that an answer had been previously served by putting it in the post-office ;" nor would it seem that any specified limit will be imposed by the court on the period during which a plaintiff's remedy may thus be suspended, though probably, in an extreme case, relief might be extended. The authority of the last de- cision is confirmed by that in Lawler v. The Saratoga Mutual Fire Insurance Company, 2 C. E. 114. A notice of appeal may be served, by depositing it in the post-office, on the last day allowed, so far as regards the oppo- site party. Such service on the clerk of the court will not, however, be in time, but will, on the contrary, be irregular. The provisions in relation to service by mail do not apply to the latter, by whom the notice must be actually received, within the time allowed by sec. 332. Crittenden v. Adams, 3 C. E. 145 ; 5 How. 310; 1 C. E. (N. S.) 21. Eelief was, however, granted to the party, under sec. 173. In Dorlon v. Lewis, 7 How. 132, it was held that the rules as to service by mail were applicable to the time to appeal as well as to other cases; and that where notice of a judgment had been so served, the party had double time wherein to appeal. An appeal taken on the thirty-first day after the entry of judg- ment was accordingly sustained, the notice of that judgment 158 INTERLOCUTORY PROCEEDINGS. having been served by mail, and not personally. As a general rule, however, it will not be safe to rely on this privilege in practice. The doctrine seems very doubtful. See subject con- sidered and cases cited hereafter, under the head of Appeals. In Dresser v. Brooks, 5 How. 75, it was held, that service of notice of justification, under sec. 341, when made by mail, must be for ten, not five days ; although the effect of this construc- tion will be to render service of that nature practically impossi- ble, without an extension of the time by order. Where the defendant's attorney has named his place of resi- dence, on his notice of appearance, or otherwise as required by Rule 5, any papers served on him by mail must be directed in exact accordance with the address so given, or the service will be void. The words " place of residence" in the rule in ques- tion must, in such cases, be understood with reference to the post-office to which papers are to be directed. Roivell v. Mc- Cormick, 1 C. R (N. S.) 73 ; 5 How. 337. Service of papers directed to another post-office in the same town was there held to be irregular. In Montgomery County Bank v. Marsh, 11 Barb. 645, affirmed by the Court of Appeals, 30th December, 1852, it was held, with reference to the service of notice of pro- test, that, where the notice had been addressed to a party at his principal place of business, it would be good, although he resided in another town in which there was a post-office, and his resi- dence was nearer to that office, than to the place to which the letter had been directed. The principle of the double time to be allowed under sec. 412, was applied to the case of an answer, served by mail, in Washburn v. IIerrick,4: How. 15; 2 C. R. 2 ; and the same was treated us an admitted principle, in Cusson v. Whalon, 5 How. 302, 1 C. R. (N. S.) 27, with reference to an amended pleading so served. The law laid down in these cases seems, however, to be questionable ; and in several of the others above cited, the plead- in"-, though received after the expiration of the twenty days allowed to answer, were mailed within that period. Service of a pleading by mail, if posted within the twenty days, is unques- tioni I ; but whether forty days' time to answer, instead of twenty, may be claimed as of right in all cases where an answer may 1"' served by mail, seems at least extremely doubt- ful. S<-c. I 18 is express that an answer must be served within twenty days after the service of the copy of the complaint — a INTERLOCUTORY PROCEEDINGS. 159 provision in direct conflict with the above, if the view taken in the two cases in question is to prevail. The true distinction would seem to be this: if the complaint is served with the sum- mons, or personally, it would be most imprudent to defer serv- ing the answer beyond the twenty days allowed by sec. 143. If, on the contrary, the summons is served alone, and the com- plaint is afterwards demanded, and served, not personally, but by mail, there seems no reason why the rule as to the allow- ance of double time should not then apply to the service of the answer. Dorlon v. Lewis, 7 How. 132, contains an "obiter dic- tum 11 to this effect, as follows : " Thus, the 143d section declares that a demurrer or answer must be served within twenty days after the service of the complaint. The time begins to run from the service. If, instead of serving the complaint personally, the plaintiff elects to serve it by mail, the time which thus begins to run against the defendant, is forty days, instead of the twenty days otherwise allowed." The omission to pay the postage on a service of this nature would seem to be a fatal defect, and that the opposite party may in such case return the pleading, which will be a nullity. Van Benthuysen v. Lyle, 8 How. 312. Any irregularity in service, whether by mail or otherwise, will however be cured, if the paper in question is retained and acted upon. It should, in such case, be returned forthwith, and within the course of the same day, at farthest. See cases to this effect cited in a subsequent chapter, under the head of Pro- ceedings before Answer. See, also, Georgia Lumber Company v. Strong, 3 How. 246 ; Gilmore v. Hempstead, 4 How. 153. Substituted Service in certain Cases.~\ — By the recent statute, c. 511 of the Laws of 1853, it is provided, that where it shall ap- pear by the return or affidavit of any sheriff, deputy sheriff, or constable, authorized to serve any process or paper for the com- mencement, or in the prosecution of any action or other pro- ceeding, that proper and diligent effort has been made to serve such paper, and that the defendant cannot be found, or, if found, avoids or evades such service, an order may be made author- izing service by leaving the paper at such defendant's house; or, if admittance cannot be obtained, by affixing a copy on the outer-door, and mailing another, directed to such defendant, in the post-office of the town in which he resides ; on proof of 160 INTERLOCUTORY PROCEEDINGS. which, the paper is to be deemed served, and ulterior proceed- ings may be taken, as on personal service, but with, liberty for the defendant to come in and make application for leave to de- fend, or for such other relief as the case may require. This enactment being new, no reported case as yet appears under its provisions. The main object appears clearly to be with reference to the service of summons, and as a species of substitute for publication in certain cases; and the subject has already been more fully considered, and the provision cited in extenso under that head. At the same time, the statute clearly applies in terms to other proceedings, when taken against a de- fendant, and when the attempt at service has been made by an authorized officer. It seems, however, equally clear, that where the service is against a plaintiff, or where the attempt has been made by the attorney, or by his clerk or agent, in the ordinary manner, no additional facilities are given. It is not likely, therefore, that this provision will be much acted upon, as regards interlocutory applications. § 56. Comptitation of Time. The computation of time in the different proceedings in a suit, as regards the service of notices, pleadings, and the per- formance of any conditions whatever, is thus specially provided for by sec. 407. § 407. The time within which an act is to be done, as herein pro- vided, shall be computed, by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. In Judd v. Fulton, 4 How. 298, 10 Barb. 117, the practice of the courts, with reference to this section, is fully laid down as follows : "The rule is well settled, that, in computing time, the first day, or the day when the time begins to run, is to be excluded. [f the defendant bad been required to do an act, within thirty days from the happening of an event, which had occurred on 2Gth August, be could have had the whole of the thirtieth day, that is, of the 25th of September, for that purpose. But, if he was prohibited doing an act until after the expiration of the thirty days, he oould QOt do it until the next day, that is, the 26th of September." INTERLOCUTORY PROCEEDINGS. IQ\ A notice of trial, served on the 9th for the 19th of the same month, was held to be good, in Easton v. Chamberlain, 3 How. 412, and Dayton v. Mclntyre, 5 How. 117, 3 C. E. 164. In Truax v. Clute, 7 L. 0. 163, the doctrine of the exclusion of Sunday was fully carried out in practice. Service of an affidavit on the 12th of March, under an order extending the time to do so to ten days from the first, was held to be sufficient ; the 11th, in strictness the last of the ten days allowed, having fallen on a Sunday. In Whipple v. Williams, 4 How. 28, it was even held, that in notices under any statute, for less than a week, Sunday should be excluded altogether from the computation. This case is, however, clearly overruled by Easton v. Chamberlain, above cited ; King v. Dowdall, 2 Sandf. 131 ; Bissell v. Bissell, 11 Barb. 96 ; and Taylor v. Coroiere, 8 How. 385 ; in all of which it is held, that, where Sunday is an intermediate day, there is no rule or principle by which it is to be excluded from the computation ; though otherwise, of course, when it is the last day of the period. In relation to the nullity of any legal proceedings on a Sunday, see Pulling v. The People, 8 Barb. 384. With regard to the construction of statutes, the rule is how- ever otherwise ; and the act must be done within the time thus provided. Thus, where the last of the four days allowed to a justice for rendering his judgment expired on the following Sunday, a judgment rendered by him on the Monday morning was held to be void. Bissell v. Bissell, 11 Barb. 96. See also Judd v. Fulton, above cited. In Schenck v. McKie, 4 How. 246, 3 C. E. 24, it was held that, where additional time to plead is granted by order, such addi- tional time is irrespective of the date of the order itself, and does not commence to run until the time thereby extended would have expired, had no order been made. The same principle as to the computation of time is also spe- cially applied to the publication of legal notices by sec. 425, which provides that the time, in these cases, shall be computed "so as to exclude the first day of publication, and include the day on which the act or event, of which notice is given, is to happen, or which completes the full period required for publi- cation." See this principle applied to the case of foreclosure by advertisement, in Westgate v. Handlin, 7 How. 372. 11 162 INTERLOCUTORY PROCEEDINGS. § 57. Papers in Cause — Marking Folios. The preparation of the papers, in a suit of whatsoever nature, is made a subject of special provision by Rule 41 of the Supreme Court, which runs as follows : The attorney or other officer of the court who draws any pleading deposition, case, bill of exceptions, or report, or enters any judgment exceeding two folios in length, shall distinctly number and mark each folio in the margin thereof ; and all copies, either for the parties or the court, shall be numbered or marked in the margin, so as to conform to the original draft or entry, and to each other. And all the pleadings and other proceedings, and copies thereof, shall be fairly and legibly written ; and, if not so written, the clerk shall not file such as may be offered to him for that purpose. There can be no question but that both of these regulations ought to be strictly observed, and that any party who neglects them does so at his peril, though such is too often the case. On the other hand, the wisdom of insisting on such an objection is somewhat questionable, as it is one of those which the court will infallibly disregard, unless the case be very flagrant indeed. See this disposition strongly evinced in Sawyer v. Schoonmaker, 8 How. 198, where a motion to set aside a complaint on this ground was denied, the defendant's affidavits being open to the same objection. It was also considered that the party objecting should have returned the papers, with the objections stated. Use of Copies, where Originals lost.'] — Under sec. 422, a copy of any pleading or paper, lost or withheld by any person, may, by authority of the court, be filed and used instead of the ■ iiiginal. An application will, of course, be necessary under these circumstances, and, unless the proceeding be merely formal, the opposite party will be entitled to notice, either in the usual form, or by way of order to show cause. § 58. Consents, or Admissions. The giving of consents or admissions is a matter of frequent occurrence in the ordinary proceedings in a cause, when those proceedings are carried on between the opposite attorneys in a fitting and proper Bpirit. The following provisions are made upon the subject by Rule 87 of the Supreme Court: INTERLOCUTORY PROCEEDINGS. 1(53 No private agreement or consent between the parties or their at- torneys, in respect to the proceedings in a cause, shall be binding, un- less the same shall have been reduced to the form of an order by con- sent, and entered ; or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel. It will be observed that when such consent is reduced to the form of an order, such order must be entered with the clerk. The mere signature of the judge, and service of a copy on the opposite party, as in ordinary ex parte proceedings, will not ac- cordingly be sufficient, without such actual entry. To give any general forms for consents or admissions, will of course be impracticable, as they must necessarily vary in each particular case, according to the circumstances. The only necessary remark appears to be, that the title of the cause ought properly to be prefixed in all cases. Where, however, a verbal agreement be- tween the attorneys has been relied upon, and action taken by the opposite party in consequence of such reliance, the courts will not hold this rule to be applicable, but will compel the party who has obtained an advantage by means of the verbal stipulation, to perform it on his part. Montgomery v. Ellis, 6 How. 326. § 59. Undertakings. In various proceedings in the course of a cause, undertakings by way of security, are required by the Code, or may become necessary. As a general rule, they must, under sec. 423, be filed with the clerk, unless the court expressly provides for a different disposition thereof, or unless such disposition be point- ed out by the Code. See observations hereafter, in connection with the different proceedings to which these documents relate. All, of whatever nature, must, under Eule 72, be duly proved or acknowledged, in like manner as deeds of real estate, before they can be received or filed. The residence of the sureties should appear on the face of the undertaking. Blood v. Wilder. 6 How. 446. § 60. Affidavits. The due proof of collateral matters, either with reference to points of form, or to the establishment of a title to collateral 164 INTERLOCUTORY PROCEEDINGS. relief, is a matter of continual necessity, pending the progress of an action. This proof is supplied by means of an affidavit, a proceeding of constant recurrence. Where an affidavit refers either wholly or partially to any document, in relation to which the witness testifies, it is usual, and is clearly advisable, if not necessary, to identify that do- cument, by marking it with some letter or number, and referring to that designation in the affidavit itself. If the proving of the document be a matter of importance, it will be prudent to add to that identifying mark, the initials or signature of the officer before whom the affidavit is taken, and, in special cases, an express reference to the affidavit itself, as thus: "This is the paper writing marked A., referred to in the affidavit of B. C, sworn this day of before me." The document thus becomes what is termed an exhibit, and may then be read in evidence with, and as forming part of the affidavit. Several of the more formal of these documents will be found in different parts of the Appendix, in connection with the pro- ceedings to which they relate. To give any precedent for statements of special facts in connection with particular cases, would of course be useless to attempt. As a general rule, every affidavit, of whatever nature, must intelligibly refer to the proceeding in which it is made, or it will be bad altogether. The following provision on the subject is made by sec. 406 : It shall not be necessary to entitle an affidavit in the action ; but an affidavit made without a title, or with a defective title, shall be as valid and effectual, for every purpose, as if it were duly entitled, if it intelli- gibly refer to the action or proceeding in which it is made. In Pindar v. Black, 4 How. 95. the principles of the above section were fully carried out, and an affidavit, entitled in a cause which as yet had no existence, and referring to an unknown party, designated by the title of the "real defendant," under the authority of sec. 175, was received, as sufficient to ground an order for the arrest of such party. Win!'-, however, an affidavit is made in an actually existent cause, the cornet and proper practice will be to entitle it in that cause, in all cases, precisely as is necessary with reference to Other proceedings therein. The name of the court, in parti- cular, ought, in every instance, to be properly and correctly INTERLOCUTORY PROCEEDINGS. 165 stated. In Clickman v. Clichnan, 1 Comst. 611, 1 C. E. 98, 3 How. 365, it was even doubted by the Court of Appeals, whether the entitling an affidavit in the wrong court, was not a fatal objection to its reception, notwithstanding the provision above cited. At all events, the mistake is one so easily guarded against, that no prudent practitioner will ever run the risk. In Blake v. Locey, 6 How. 108, it was held, on the contrary, that the objection as to an affidavit being wrongly entitled, is un- tenable. In Bowman v. SJieldon, 5 Sandf. 357, 10 L. 0. 338, this latter view was supported. The test is whether the affida- vit "refers intelligibly to the action or proceeding in which it is made." If, too, the fact appears collaterally, so that the defend- ant could not have been misled, the affidavit will be received. In that case the notice of motion was correct, and the wrong heading of the affidavit was clearly a clerical error ; in Clickman v. Clickman, all the papers were incorrect, which distinction is taken by Duer, J., in delivering his opinion. In the People v. Dikeman, 7 How. 124, it was considered, however, that the above section did not apply to proceedings on mandamus, and that, in such cases, an affidavit wrongly entitled, or, as was there the case, entitled in a suit, when in fact there was none pending, could not properly be received. The affidavit, when drawn up and approved by the party making it, must be signed and sworn to by him, before a proper offieer for that purpose. By sec. 49, art. II., title II., chap. III. of part III. of the Eevised Statutes, 2 E. S. 284, the officers pointed out for this purpose are, " any judge of any court of record, any circuit judge, Supreme Court commissioner, commis- sioner of deeds, or clerk of any court of record;" and affidavits to be used in the Supreme Court may also, under that section, be taken by " any commissioner appointed for that purpose by the justices of that court." Affidavits may also be taken out of the State, and within the United States, by commissioners of deeds, specially appointed for that purpose, under the powers of the act of 10th April, 1850, c. 270 of Laws of 1850 ; and this will, under ordinary circumstances, be found the most convenient way of obtaining them, in these cases. It may not be superfluous, though not strictly necessary, to remark, in this connection, that similar provisions exist in the laws of most, if not all, the other States in the Union ; and also, with regard to proceedings in the 166 INTERLOCUTORY PROCEEDINGS. federal courts, that affidavits to be used in those States may be taken before commissioners, in this and others, appointed by the proper authority for that purpose. In relation to taking- affidavits out of the State, see infra, at close of present section. Although great latitude is given, as above noticed, as regards the entitling of affidavits, the same is not the case with refer- ence to the jurat. "When the affidavit is taken before a commissioner of deeds, it is essential that the venue should be stated, to show that he had jurisdiction to take it. If omitted, it will be a nullity. Lane v. Morse, 6 How. 394. The same rule, of course, holds good as to other officers whose jurisdiction to administer an oath is limited to as place. The signatures both of the party and of the officer taking the affidavit are essential, and, without either, the document will be a nullity. Vide Laimbeer v. Allen, 2 Sandf. 648, 2 C. E. 15 ; Graham v. McCoun, 5 How. 353, 1 C. E. (N. S.) 43 ; George v. McAvoy, 6 How. 200, 1 C. E. (N. S.) 318, and various other cases subsequently cited under the head of Verification of Pleadings. The mere omission of the date of the jurat was, however, considered not to be a fatal objection in Schoolcraft v. TJiompson, 7 How. 446. In cases where the affidavit cannot be taken before one of the officers before mentioned, or where it is required to be sworn in some foreign country, it may be taken before the judge of any court having a seal, under sec. 25, art. III., title III., chap. VII., part III. of the Eevised Statutes, 2 E. S. 396! By the statute in question it is provided that the caption must, in this case, be certified by such judge; and his powers, and the genuineness of his signature, must be further certified by the clerk of the court, under its seal, in the manner specially prescribed. The above restrictions are, however, greatly modi- fied, and great additional facilities given by the recent statute, c. 206 of 1854, Laws of 1854, p. 475, by which it is provided M follows: § 1. The officers authorized by the fifth and sixth sections of chap- ter three, part second, of tin; Revised Statutes, to take the proof and acknowledgment of deeds conveying real estate, and also any other consul or vice-eonsul or minister resident of the United States, appointed to reside at any foreign port or place, are hereby authorized to admin- INTERLOCUTORY PROCEEDINGS. 167 ister oaths or affirmations to any person or persons who may desire to make such oath or affirmation ; and any affidavit or affirmation made before any such officer, and certified and authenticated as provided in the seventh section of said chapter, in respect to the proof and acknow- ledgment of a deed conveying real estate, may be read in evidence, and shall be as good and effectual, to all intents and purposes, as if taken and certified by an officer authorized to administer oaths, resid- ing in this State ; and no other proof of the official character of such officer, than the certificate annexed to such affidavit or affirmation, shall be required. § 2. This act shall take effect immediately. Evidence of Foreign Records, &c.~] — With reference to the subject of collateral evidence in general, it may be remarked, in passing, that the practice in relation to the due proof of foreign records, &c, remains as heretofore. The law on the subject of the printed statutes or reports, and also to the unwritten law of other states or countries, is specially declared by sec. 426 of the Code, in accordance with the previous provision on the subject. It may be a matter of interest to notice that affidavits, for the purpose of being used in the courts in England, may be sworn before a British consul, or vice-consul, under special statutory authority. See this subject noticed in 11 L. 0. 192-224. § 61. Motions and Orders — General Definitions. The above observations conclude that portion of this chapter in relation to the formal proceedings in a suit, as generally ap- plicable. Those following bear more peculiar reference to the subject of interlocutory applications therein ; which applications must, in all cases, be presented to the court by means of a motion, and carried out, if granted, in the shape of an order. The fol- lowing are the definitions of these proceedings, as given by sections 400 and 401 of the Code. § 400. Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. § 401. An application for an order is a motion. 168 INTERLOCUTORY PROCEEDINGS. § 62. Motions, General Classification of. An order is, as above stated, obtainable on motion only. Mo- tions are again divisible into two grand classes, the enumerated, and the non-enumerated. Enumerated Motions^ — With motions of this class, the present chapter has no concern, as they cannot properly be looked upon as of an interlocutory nature, but are, on the contrary, regular and most important proceedings in the progress of the case. As such, they will be treated of hereafter, and more especially under the head of Appeals. An enumeration of the questions falling under this head, will be found in Eule 27 of the Supreme Court. Non-enumerated Motions.] — By the same rule, it is laid down that " Non-enumerated motions include all other questions sub- mitted to the court, and shall be heard at special term, except where otherwise directed by law." The large class of applications falling within the above defi- nition, may be classified as, 1. Motions made on notice to the adverse* party, and 2. Ex parte applications. And the latter head is again subdivisible into Motions of course, and Motions, ex parte at the first, but involving a subsequent argu- ment upon notice ; which latter species of proceeding is gene- rally carried out by means of an order to show cause. Before entering, however, upon these different heads, it may be as well to consider, in the first instance, the limits within which, and the officers by whom, motions in general may be entertained. § 03. Where and before whom Motions may be made. The following :ire the general provisions of the Code on this abject, as contained in sec. 401: Motions may be made in Hi" first judicial district, to a judge or jus- tice out of court, except for a new trial on the merits. Motions must be made within the district in which the action is tri- INTERLOCUTORY PROCEEDINGS. 169 able, or in a county adjoining that inwhich it is triable, except that, where the action is triable in the first judicial district, the motion must be made therein, and no motion can be made in the first district in any action tri- able elsewhere. Orders made out of court without notice, may be made by any judge of the court in any part of the Stale, and they may also be made by a county judge of the county where the action is triable, except to stay proceedings after verdict. It will be convenient, and indeed necessary for practical pur- poses, to analyze and subdivide the provisions contained in the section above cited. The following distinctions should therefore be made between 1. Motions in the first district. 2. Motions elsewhere. 3. Motions made ex parte and out of court, and, 4. Opposed motions, and which it will be important to bear in mind, in order to avoid confusion on the subject. The two former of these heads will be considered in this section, the latter in those following. First District.'] — The peculiar characteristics of this district are that, as above — 1. All motions in actions there triable, must be made, and, 2. Motions in actions triable elsewhere cannot be made within that district. This rule however only holds good as regards contested applications: as regards those made "out of court, without notice," a judge of the First District is not by the above section denuded of his general powers, wherever the action may be triable ; on the contrary, they are expressly saved, and remain the same as before. An application for an order of this descrip- tion, cannot be considered as " a motion" in this aspect of the question. The rule is otherwise, however, where notice in any shape is to be given to the opposite party. Under these circum- stances, the application becomes a motion in the most extended sense of the word, and, as such, is embraced within the above restrictions. An order to show cause falls too within the same category, as, though ex parte in its inception, it becomes to all intents and purposes a motion, and a motion on notice, on the return of that order. It therefore cannot properly be granted, or, if granted, will in effect be nugatory. See these principles laid down by Edwards, J., in Baldwin v. City of Brooklyn, unre- ported, but noticed in Yoorhies' Code, note to sec. 400. 170 INTERLOCUTORY PROCEEDINGS. In Oeller v. Hoyt, however, 7 How. 265, it was held that the hearing of a motion, contrary to the above restriction, is not a question of jurisdiction, so as to render an order so obtained " ipso facto'' 1 void. Any Supreme Court justice, it was there ruled, had jurisdiction to hear the motion and to make the order, "although, if objection were made, he should not hear the mo- tion ; the order when made is the order of the Supreme Court.' See also Blachnar v. Van Inwager, 5 How. 867, 1 C. E. (1ST. S.) 80; Hempstead v. Hempstead, 7 How. 8. It seems clear however that it would scarcely be prudent to rest too extensively on this doctrine, and that the only safe course in practice will be to com- ply strictly with the directions of the Code in this respect. The motion in Geller v. Hoyt was merely to correct a clerical error, and therefore was one in which there was no pretence of inj ury from the informality of the notice. Where however a ques- tion of real merits arises, there can be no doubt that an order obtained in defiance of this section, though possibly not void, would be clearly voidable, and voidable as of course, upon a proper application. Another important characteristic of the First District is the increased facility for making motions ; any applications of that nature, whether ex parte or contested, with the single exception of one for a new trial on the merits, being there cognizable by a judge, at chambers, or out of court. In the Superior Court and the Court of Common Pleas, this principle is carried out to its full extent; and the judges, sitting at chambers, hear all motions, without distinction. In the Supreme Court, however, it is usual to confine the chamber business to the less important class of applications, and, as a general rule, to hear such as are opposed at the Special Term, for which purpose a special order has been made. A note, simi- lar to a note of issue, is required to be filed in these cases. A regular calendar of the motions so noticed, is made out, and they are regularly called as they stand on that calendar. A county judge has no power whatever to make an injunc- tion order, or any other order, except mere orders of court in < -:i ea pending within this district. Eddy v. Hoiulett, 2 C. 11. 76. Olh'-r hi: //-/V/.s-.'l In these districts, the facilities for making mol 1 as to the places, but diminished as to the modi.', of making the application, as follows: INTERLOCUTORY PROCEEDINGS. 171 1. A motion may be made in any county within the district in which the action is triable ; or, in any county, though in another district, (the first excepted,) which adjoins the county in which the venue is laid ; but, 2. A motion, on notice, cannot be made before a judge, at chambers, or out of court, or otherwise than "at Special Term." See Eule 27. See, also, Bedell v. Powell, 3 C. E. 61, and Schenck y. McKie, 4 How. 246 ; 3 C. E. 24. The affidavits in support of a motion, must show affirmatively that it is made in the proper district, or it will be denied. Schermerhom v. Develin, 1 C. E. 13 ; Dodge v. Pose, 1 C. E. 123. In Peebles v. Rogers, 5 How. 208, 3 C. E. 213, it was held that the words, "the county where the action is triable," include any county in which, under sections 123 to 125, the plaintiff is at liberty to have it tried. Under the Code of 1849, it was doubtful whether, when the place of trial was changed on spe- cial application, that change carried with it a change of venue for other purposes, and particularly with reference to interlo- cutory applications. (See this subject fully considered, and the cases cited, in a subsequent chapter, under that head.) Under the last amendment of sec. 126, the point is now no longer doubtful, it being there expressly provided that, "when the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed." This county will, therefore, now become the county of venue for all pur- poses, and will necessarily carry with it, where applicable, a change of the district for the purposes of interlocutory appli- cations. Where a summons had been served, stating that the com- plaint would be filed in a particular county, it was held that a motion for j udgment for not serving a copy of the complaint, could not be made in another district, unless in a county imme- diately adjoining the county named. Johnston v. Bryan, 5 How. 355 ; 1 C. E. (N. S.) 46 ; Inglehart v. Johnson, 6 How. 80. Where, therefore, a county is situated in the middle, and not on the borders of a judicial district, the motion cannot be made out of the latter. The same conclusion is come to in Blackmar v. Van Imuager, 5 How. 367; 1 C. E. (N. S.) 80. It is, however, held in that case, that, though irregularly made, as being in a wrong county, the order on a motion, by a judge of the Supreme Court, cannot be 172 INTERLOCUTORY PROCEEDINGS. treated as a nullity and disregarded. It is binding until set aside, and the party aggrieved must proceed accordingly. See also as to this last point, Geller v. Hoyt, 7 How. 265 ; Hempstead v. Hempstead, 7 How. 8. Where a cross action had been brought, in respect of matter originally set up, by way of defence, in one pending in another district, it was held that the motion, for the purpose of compel- ling a consolidation of the two proceedings, could only be made in the cross action, and in the proper district in which such motion was cognizable ; and an application of that nature in the original proceeding was accordingly denied, but without pre- judice to its renewal in regular form. Farmers' Loan and Trust Company v. Hunt, 1 C. E. (N. S.) 1. The above local limitations are, however, exclusively confined to cases where notice is required, and are not applicable to or- ders of course. These, as above noticed, may be made by a judge of the court in any part of the State. County Judge.] — This last class of orders may also, as provided by the section now in question, be made " by a county judge of the county in which the action is triable. In addition to which power, the following further authority is conferred on the county judge, by sec. 403: § 403. In an action in the Supreme Court, a county judge, in addi- tion to the powers conferred upon him by this act, may exercise, within his county, the powers of a judge of the Supreme Court at chambers, according to the existing practice, except as otherwise provided in this act. And, in all cases where an order is made by a county judge, it may be reviewed in the same manner as if it had been made by a judge of the Supreme Court. In Trover v. Sdvernail, 2 C. R. 76, it was considered that the time to make a case, on a motion for a new trial, could not be extended by a county judge, as involving a stay of proceedings gfter Verdict. This case seems, however, clearly inconsistent with the provisions of sec. 405, which confer on the county judge the fullest powers of enlarging the time within Which any proceeding in the action must be had, except only the time to appeal; and also with the general authority conferred by sec. •101. The powei $ officers to extend the time to answer, and also their general powers under sec. 29 of the Judiciary Act INTERLOCUTORY PROCEEDINGS. 173 of 1847, as to motions made without notice, which the court there held to be still subsisting, are fully asserted in Peebles v. Rogers, 5 How. 208, 3 C. E. 213 ; and, in Otis v. Spencer, 8 How. 171, it was even held that they possessed power to stay proceedings on a judgment entered on a referees' report, a distinction beipg drawn between such a judgment, and one entered on the verdict, which would clearly fall within the exception in sec. 401. See also Sale v. Lawson, 4 Sandf. 718 ; Bank of Lansingburg v. McKie, 7 How. 3'60 ; and Conway v. Hitchins, 9 Barb. 378. The above principle would seem, however, not to hold good with relation to ex parte orders, in cases triable in the first district. The order must there be made within that district, or by a judge of the court, if applied for elsewhere. A county judge has, it seems, no power to act under these circumstances. Eddy v. .Hoivlett, 2 C. K. 76. Although the power of the county judge to make ex parts orders, except in cases triable in the First District, is thus almost unrestricted, it is equally clear that, where the application is in any manner contested, he has no jurisdiction at all. Thus, in Merritt v. Shewn, 3 How. 309, 1 C. E. 68, an ex parte order by a county judge, giving leave to defendants to file a supplemental answer, was decided to be void for want of jurisdiction, on the ground that he had no power to hear a motion, as such, in an action in the Supreme Court. Sec. 401 does not enlarge his powers ; it only gives him authority to exercise those which, under "the existing practice," he possessed before the Code. A similar conclusion was come to in Otis v. Spencer, 8 How. 171, where it was held that an order, directing what security should be given on appeal to the general term of the Supreme Court, and made by a county judge, was void for want of juris- diction. The powers of the county judge do not extend to motions upon notice ; Peebles v. Rogers, above cited ; see also Truax v. Glide, 7 L. 0. 163, and likewise Schenck v. McKie, 4 How. 246, 3 C. E. 24, in relation to orders of this nature in general. In Ghubbuck v. Morrison, 6 How. 367, it was considered that the county judge of one county, although that within which the applicant resides, has no authority to make an order, in an action triable in another. In Peebles v. Rogers, 5 How. 208 ; 3 C. E. 213, it was held, on the contrary, that sec. 401 of the Code does not take away the power given to those judges, by sec. 29 of 174 INTERLOCUTORY PROCEEDINGS. the Judiciary Act of 1847, in those cases where the motion is made without notice. The words, " the county where the action is triable," in section 401, include any county in which, under sees. 123, 124, and 125, the plaintiff is at liberty to have the action tried. The powers of the county judge do not ex- tend, however, to motions upon notice. The latter seems the sounder, as it is certainly the more convenient view, especially with reference to the saving of th former powers of the officer in question, effected by sec. 402, and the general authority with reference to orders for time conferred by sec. 405. The jurisdiction of the county judge, in relation to these and other matters, has been already considered in the introductory chapters. As in all cases of a limited statutory authority, the presumption will lie against that jurisdiction, unless it be made clearly apparent. See The People ex ret. Williams v. Hul- bert, 5 How. 446 ; 9 L. 0. 245 ; ICE. (K S.) 75. The fore- going observations are of course applicable to the proceedings of the county judge, in actions in the Supreme Court. In those pending in his own jurisdiction, his powers are of course unfettered, and he possesses, within the limits of that jurisdic- tion, the same general authority as other judicial officers. In Griffin v. Griffith, 6 How. 428, it was held that the act of the Legislature, conferring the powers of a county judge on the Recorder of Troy, Sess. Laws of 1849, p. 164, sec. 4, was unconstitutional, and all the acts of that officer, as such, void. If the principle of this decision be sustainable, it of course embraces the judges of any other cities or towns, who may claim or assume to exercise jurisdiction of this nature, by statute or otherwise. § 64. Ex parte Motions. Proceeding in the order before laid down, the first point to be idered, is, as to the obtaining of ex parte orders, without notice; which, under sec. 401, may be made out of court, in all :i judge of the court., in any part of the State. These are, as before stated, of two natures, viz., — orders of course, and orders to sho , ea parte in the first instance, but not final, unlet "n a failure t" i how such cause on the return. 'rip- differenl circumstances under which orders of course are obtainable, and should be applied fur, will be considered here- INTERLOCUTORY PROCEEDINGS. 175 after, under the heads of the different proceedings to which they reter. No notice, of any description, is required ; nor is an affidavit necessary, in any of these cases ; unless, of course, some independent fact requires to be proved, as a condition precedent to granting the order. No particular form is necessary, in relation to orders of this description. Where separately made, the title of the cause should, of course, be prefixed; where made on affidavit, an usual practice is to add the order at the end of that paper, to which, if approved, the judge affixes his signature. A copy of the order, and also of the affidavit, on which it is grounded, where such is the case, must then be served upon the opposite party, whereupon the proceeding is complete. An application for a writ of assistance, by the purchaser under a judgment of foreclosure, and who has obtained his deed, and been ordered to be let into possession, is an ex parte order, to which the applicant is entitled as of right, without notice, and without power for the adverse party to oppose. A grantee of the purchaser is similarly entitled. New York Life Insurance and Trust Company v. Hand, 8 How. 35. Orders of this description need not, in general, be entered, nor need the affidavits be filed with the clerk ; (Savage v. Relyea, 3 How. 276 ; 1 C. R. 42 ; Vernam v. Holbrooh, 5 How. 3 ;) though it may often be more prudent to do so. That no appeal lies to the general term, from the decision of a judge, granting or refusing an ex parte order, was held in Savage v. Relyea, above cited. Orders made at chambers, upon notice, are, however, appeal- able. Nicholson v. Dunham, 1 C. R. 119. A number of ex parte proceedings are connected with the granting of provisional remedies, of different descriptions. They are all of a special nature, and must be grounded on affi- davits of the circumstances ; the details of which, and of the nature of such proceedings in general, will be separately con- sidered hereafter, under their proper heads, and forms given in the Appendix. An application to a judge to vacate or modify his own order, under sec. 32-4, is also a proceeding of this description. See this subject hereafter considered under the head of Appeals. An application to remove a mere technical difficulty in a special proceeding, is addressed to the discretion of the court, 176 INTERLOCUTORY PROCEEDINGS. and may be made either ex parte or on notice, as the court may direct. In re Patterson, 4 How. 34. To a certain extent, the taking of an order by consent, may be looked upon in the light of an ex parte motion. The mode of proceeding in this case will be found considered in a subse- quent section of this chapter, under the head of Orders. Extension of 2'ime.'] — Special provision is made as follows, by sec. 405, in relation to a large class of orders of this descrip- tion, viz., those in which the time for taking different proceed- ings is extended : § 405. The time within which any proceeding in an action must be had, after its commencement, except the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds therefor, by a judge of the court, or if the action be in the Supreme Court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded. By sec. 401 it is, however, provided that " No order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except upon previous notice to the adverse party." It has been held that the latter provision is not applicable to an order, enlarging the time to make a case, or bill of exceptions, when made by the judge who tried the cause. Thompson v. Blancliard, 1 C. E. 105. Nor need such last-mentioned order be grounded on an affidavit, but may be made by such judge on his own knowledge. If, however, an order of this description be made by another judge, it must then, of course, be grounded on an affidavit of the facts, and a copy of that affidavit must be served in the usual manner. Same case. In Mitchell v. J fall, 7 How. 490, it was doubted, however, whether an order, granting an indefinite extension of time, until the decision of the court had been given on a bill of exceptions, was good lor the excess beyond twenty days, though made in effect by the judge who tried the cause, that order having been mad'; nearly I WO months after the trial, and apparently ex parte. The opinion is, however, doubtfully expressed, nor does the point appeal to have been directly raised, whilst the remedy is clearly Ll La the following sentence: "The safest and best practice undoubtedly is, when the first order is applied for, INTERLOCUTOKY PROCEEDINGS. 177 to make it an order of the court, which will give it a vitality commensurate with the necessities of the case." An order, extending the time for the above purpose, beyond the twenty days, may, it would seem, be made by any judge other than the one who tried the cause ; and, if made, will be good, as regards the extension of time. See also Mitchell v. Hall, supra. It will, however, be void, in so far as proceedings are thereby stayed, and may be so far disregarded. Huff v. Bennett, 2 Sandf. 703; 2 C. B. 139. It appears clear, however, that an order extending time to make a case cannot be granted ex parte, after the time originally allowed for that purpose has run out. The party must then apply to the court on notice. Doty v. Brown, 4 How. 429; 2 C. K. 3; Stephens v. Moore, 4 Sandf. 674. Oakley v. Aspinwall, 1 Sandf. 694, is authority that the mere making a case, or bill of exceptions, is not, of itself, a stay of proceedings, unless an order be obtained. In Langdon v. Wilkes, 1 C. B,. (N. S.) 10, it was held that any number of orders, staying different proceedings, might be made under sec. 401 ; though, collectively, they might stay the pro- ceedings for more than twenty days. See, however, decisions below cited. In the same case, it was held that the affidavits on which a mere stay is granted, need not accompany the order. Such order does not necessarily enlarge the time within which the party obtaining it must take proceedings, on his part, and the Code only requires the affidavit to be served, where that is the case. The point as to whether the time within which an appeal may be taken, can or cannot be enlarged, has been the subject of considerable discussion; though it may now be considered as settled, that it cannot. See cases cited hereafter, under the head of Appeals. The point, as to the extent of the power of the Court to grant ex parte extensions of time to answer, or successive orders to stay proceedings in relation to the same matter, has remained doubtful, and been the subject of much discussion. In Wilcock v. Curtis, 1 C. R. 96, it was considered that the twenty days' restric- tion, above noticed, did not apply to an order extending the time to answer, on the ground that such an order was not, in effect, a stay of proceedings. This view seems very questionable. A practice, however, sprung up and became very prevalent, of obtaining a series of separate orders, each extending the time to 12 178 INTERLOCUTORY PROCEEDINGS. answer for twenty days, and thus, in effect, gaining, by a succes- sion of ex parte proceedings, a longer period than that allowed as above, each particular order, nevertheless, when obtained, not transcending that limitation. See, too, a similar view as taken in Langdon v. Wilkes, above cited. This practice has, however, been distinctly disapproved, and a second application for time has been, in subsequent cases, de- nied, on the ground that, in effect, it was an indefinite extension of time beyond the twenty days, and could only be granted on notice. Anon., 5 Sandf. 656 ; Sales v. Woodin, 8 How. 349. These cases maybe considered as settling the question, in oppo- sition to the previously prevalent practice, and the views there taken seem, on examination, to be unanswerable. Although, in effect, a sta} 7 of proceedings may be actually intended to apply to a shorter period than twenty days, it can- not be applied for in an indefinite form. An indefinite stay of proceedings until the hearing of a motion, cannot be granted ex parte, or otherwise than on notice, or order to show cause. Schenck v. McKie, 4 How. 246, 3 C. R. 24. See also Mitchell v. Hall, 8 How. 490, above cited. To be obtainable ex parte, an extension of time must also be applied for, before the applicant is actually in default. If delayed until that is the case, it cannot then be obtained, unless upon notice, or order to show cause. Stephens v. Moore, 4 Sandf. 674. See Doty v. Brown, supra. An agreement, signed hj a plaintiff in person, extending the time to answer, on payment of part of his demand, was held to be a valid and binding extension, and a judgment, taken by his attorney within the extended period, though apparently with- out knowledge of the extension, was set aside as irregular in ' d v. Johnson, 5 Sandf. 671. Tin- i ;' an extension of time to answer, however made, is t<> waive nil right to object to the complaint, unless expressly rved. Bon man v. Sheldon, . r > Sandf. 6C7; 10 L. O. 338. It would seem from Graham v. McOoun, 5 How. 353, 1 C. E. < N. .'.) LS, that iln: omission of the jurat <>n the copy of an affi- rved under the above provisions, will not render the irregular; but no prudent practitioner will ever omit to include it, bo aa to make the copy a complete one. INTERLOCUTORY PROCEEDINGS. 179 § 65. Order to show Cause. The other ex parte proceeding above alluded to, is the order to show cause, which, though obtainable out of court, and with- out notice in the first instance, is, in fact, only another form of giving notice to the opposite party, of an adverse application. It is peculiarly applicable to those cases in which a shorter period of notice, than that required in ordinary motions, is desirable, and, as such, is specially provided for by sec. 402 ; or, where an immediate stay of proceedings pending the dis- cussion of an interlocutory question is wished for. It must, of course, be served precisely in the same form as an ordinary notice, and the service proved in the same manner. In these cases, the affidavits on which the application is grounded, should, in the first instance, be drawn up, and appli- cation made thereon to a judge, out of court. A sketch of the order to be asked for, will be found in the Appendix. In the first district, that order may be made returnable before a judge, out of court; in the others, it must be so at a special term, within the limits before prescribed in relation to motions in general ; and, if a stay be asked for, the return should, in these cases, be within twenty days, or, under the authority of cases above cited, the stay may be void, as granted out of court without notice. In relation to applications in this form, in order to bring on the motion at an earlier period than according to the ordinary notice, see Merritt v. Slocum, below cited. In the New York Common Pleas the following restriction is imposed upon appli- cations, with the latter view, by Order of March 24, 1850 : Ordered, that orders to show cause on non - enumerated motions will not hereafter be granted, except upon affidavit, showing the neces- sity of making the time of notice shorter than is required in the Code • and, where such order is returnable on any other day than the first day of the special term, the reason therefor must be stated in the affidavit on which the motion is founded. In that court, therefore, attention must be paid to the above requisites, in framing the affidavits where necessary; in the others, this is not essential. The argument, on the return of the order to show cause, 180 INTERLOCUTORY PROCEEDINGS. assumes substantially the shape of that upon an ordinary mo- tion, and is disposed of as such. It is now expressly provided by Eule 25, as amended on the last revision, that, where the motion is for irregularity, the irre- gularity complained of must be specified ; see below, under the head of Notice ; this of course holds good as to an order to show cause. It is equally essential, that the papers intended to be read on the motion, should be distinctly referred to on the face of the order itself. See observations on this head in the succeeding section. This form of proceeding, though throughout unquestioned in practice, was not formally recognized in the Supreme Court Rules of 1849. It is now expressly provided for, and placed on the same footing as a motion, by the recent amendment in Rule 25, formerly 28. In relation to an order to show cause, obtained under the provisions of the Revised Statutes, in certain cases of abate- ment of suit, see Williamson v. Moore, 5 Sandf. 647. See also infra , under head of Revivor. § 66. Notice of Motion. We now proceed to the consideration of motions in general, brought on in the ordinary form, and on the usual notice. The period for which notice must be given is thus prescribed by sec. 402 : § 402. When a notice of a motion is necessary, it must be served eight days before the time appointed for the hearing ; but the court or judge may, by an order to show cause, prescribe a shorter time. The service must, of course, be made and proved in the usual manner; the papers served with the notice, being also expressly referred to in the affidavit. See heretofore, under the head of Service. in M , nil v. Shewn, 6 IIow. 350, the words "court or judge" in the foregoing section, were held to mean the court or the judge before whom the motion is to be heard; and it was de- cided that another judge;, sitting at chambers, cannot make an order to show cause of the above nature. If the hearing is to be out of court, the judge who is to hear the application, and he alone, may, if lie thinks right, make such an order; but, if INTERLOCUTORY PROCEEDINGS. 181 the application is not to be made out of court, then no judge, out of court, possesses the power to do so. Provision is likewise made in relation to the noticing and hearing of motions, by Eules 32 and 33 of the Supreme Court, as follows : Rule 32. — Non-enumerated motions, except in the first district, shall be noticed for the first day of the term, or sitting of the court, accompanied with copies of the affidavits and papers on which the same shall be made, and the notice shall not be for a later day, unless suffi- cient cause be shown, (and contained in the affidavits served,) for not giving notice for the first day. Rule 33. — Non-enumerated motions made in term time, at a general term, will be heard on the first day /and Thursday of the first week, and Friday of the second week of the term, immediately after the opening of the court on that day. Motions in criminal cases may be heard on any day in term. • The notice of motion must be served on all parties to the suit, who have any interest in the result of the application ; and copies of the affidavits and papers, on which such motion is proposed to be made, must be served with the notice. Papers omitted to be so served cannot be read. Where, however, a motion is made on the pleadings alone, this is not necessary, but a simple reference to those pleadings will be all that is required ; Newbury v. Newbury, 6 How. 182. See also Darrow v. Miller, 5 How. 247; 3 C. E. 241. Nor will formal proof of the exist- ence of the suit be necessary, that fact being presupposed by the pleadings themselves. See same cases, overruling Osborn v. Lobdell, 2 C. E. 77. In all instances, however, it is essential that the papers intended to be used on the motion should be distinctly and positively indicated on the face of the notice, or order to show cause ; a vitally essential precaution, and one that should never be omitted under any circumstances, as the ad- verse party has a clear and indisputable right to object to the reading of any paper not so referred to, expressly, or by unavoidable implication; and, if taken, that objection must prevail. Where any exhibits are proposed to be read or referred to, they should be indicated in'like manner, and, if not communicated already or known to the opposite party, copies should be served. The exception as to the First District was only formally in- 182 INTERLOCUTORY PROCEEDINGS. serted in Eule 33, on the last revision. Before that amendment it was held, that that rule, as it stood before, was inconsistent with sec. 401 of the Code, and this view was acted upon by the New York Common Pleas in Lahey v. Cogswell, 3 C. E. 116. Although, as regards the other districts, as a general rule, a notice of motion should be given for the first day of term, yet, provided a sufficient excuse appears upon the moving pa- pers, it may be given for a later day. Wliipple v. Williams, 4 How. 28. It is now expressly provided by Kule 25, as amended on the last revision, that, " When the motion is for irregularity, the notice or order shall specify the irregularity complained of." Previous to this amendment, the point was a contested one, it having been held in Burns v. Bobbins, 1 C. E. 62, and Blake v. Locy, 6 How. 108, that, where the errors relied on were suf- ficiently indicated on the accompanying papers, it was not ne- cessary to state them upon the notice itself; the contrary con- clusion being come to in Coit v. Lambeer, 2 C. E. 79. The rule, as now amended, settles the question, and the course recom- mended in the former edition of this work has now become im- perative. The above rule was acted upon, and a motion on a notice defective in the above particular denied, in Bowman v. Sheldon. 5 Sandf. 657, 10 L. 0. 338. See also, Whitehead v. Pecare, 9 How. 35, and, likewise, The Broadway Bank v. Danforth, 7 How. 264, holding that when a party returns a pleading on the ground of an insufficient verification, he is bound not merely to do so, but to point out the alleged irregularity. A party moving on merely technical grounds, must see that his own papers are not open to the same objection as his adversary's; or his application may be refused, on that ground. Sawyer v. Sclioonmaker, 8 How. 198. A party moving on the ground of irregularity must apply too at the earliesl opportunity ; he will not be held, however, guilty of laches in nol moving at a special term connected with a circuit, ai ! at which it is not certain that his motion can be made; E ddy v. Wil on t 9 Now. 3 L The entitling the notice of motion in a wrong court is a fatal defect, and one thai cannot be amended; Clichnan v. Click- Sri, 1 C. I-'. 91 : 8 How. 365; I Comst. 611. A contrary view was held in Blah v. Locy x 6 How. 108. See prior observation INTERLOCUTORY PROCEEDINGS. 133 on the subject of the entitling of affidavits, which came into question in the same cases. Bowman v. /Sheldon, there cited as to the latter point, does not apply to this branch of the subject, and the authority of Clickman v. Clichnan is, of course, of greater weight. The objection is one that may always be ob- viated. In Northrop v. Van Dusen, 3 C. E. 140, 5 How. 134, it was held that, where costs are omitted to be asked for in the notice of motion, they cannot be given by the court ; the usual words asking for such further order, &c, as the court may deem meet, are not sufficient to carry them. This easy precaution should therefore never be omitted. In Bates v. James, 1 Duer, 668, it was held that a notice of motion, once given, cannot be afterwards countermanded by the party who has given it. so as to deprive his adversary of the right to attend on the day specified, and have the application dismissed with costs. In practice, however, this is rarely in- sisted on, when the countermand is made in due time, and with good faith. As a general rule, the notice of motion must be served upon every party who has been served or has appeared in the case, and is in any wise interested in the application. It would seem,' however, that, as regards parties who have been merely served with process, and have not appeared, this rule will not be in- sisted upon. Thus, where two defendants had been originally served with process, but neither had appeared, and one of those defendants had subsequently removed from the State to parts unknown, it was held that service on the latter was not neces- sary, and an order, obtained by service on the other, was sus- tained by the Court of Appeals, in Suydam v. Holden, Court of Appeals, 7 Oct., 1853. A notice of an application to exonerate the sheriff as bail, signed by a person neither an attorney, nor a party to the action, and not authenticated, so as to apprise the plaintiff distinctly that the sheriff himself was seeking relief, was held not to be sufficient notice of a motion on the sheriff's behalf, in Buchnan v. Carnley, 9 How. 180. A form of notice of motion will be found in the Appendix. It contains only the formal portions of that proceeding. The part by which the relief itself is asked, will of course vary ac- cording to the nature of that relief, and, as such, will be noticed 184 INTERLOCUTORY PROCEEDINGS. hereafter as applicable to each individual proceeding. As a general rule, the demand of relief, where grounded on, or aris- ing out of any section of the Code, or any other statutory pro- vision, should folloAV the exact wording of that provision, as far as practicable. The demand for further or other relief should, under no circumstances, be omitted. It should not, however, be relied on, to sustain matters extrinsic to those specially called for. Thus, the granting a feigned issue, as a matter of further relief on a motion to set aside a judgment, was considered as matter beyond the scope of the general de- mand for further relief, in Mann v. Brooks, 7 How. 449. See likewise Bellinger v. Marlindale, 8 How. 113, as to leave to re- new a motion already decided. In relation to the general incidents of motions, and under what circumstances they may be held to be noticed, prema- turely on the one hand, or too late on the other, and also in what cases the court will, or will not interfere on interlocutory application, see hereafter, in the course of the present chapter, under sec. 68. Motions, in general, are grounded either on the papers or pro- ceedings in the cause, or on voluntary affidavits. "Where, how- ever, the evidence of involuntary witnesses is essential, that testimony is procurable under the special statutory provisions mentioned in sec. 69 of this chapter, to which the reader is ac- cordingly referred. § 67. Petitio?is. The usual mode of making motions is on affidavit. They may, however, be grounded on petition. Eule 39 of the Su- preme Court, provides on this subject as follows: Motions in actions, made after the commencement thereof, may be founded upon petition duly verified, or by affidavit, or by both, at the election of the party making such motions, except when otherwise pro- vided by law. To the ordinary applications in the progress of a suit, the proceeding by petition is inapplicable, and the motion should, in tl. grounded either on the pleadings or proceed- ings themselves, or on affidavit, as before mentioned. In those INTERLOCUTORY PROCEEDINGS. 185 where the relief is applied for under a special statutory pro- ceeding, petition is, on the contrary, the proper form. Under certain circumstances, it may also be proper to make application in this form in the course of a suit, as, for instance, when such suit is sought to be continued or revived against new parties, under sec. 121. See Williamson v. Moore, 5 Sandf. 647, prescrib- ing this course as indispensable, where the application was made in a suit commenced before the Code. The relief asked for in such a case being of a direct, and not of a collateral nature, cannot be properly obtained on a proceeding of a col- lateral description. The circumstances on which the court acts ought, on the contrary, to appear directly on the document itself by which relief is sought ; and a petition, filed with the order, and forming as it were a component part of it, is accord- ingly the more proper form in these and similar cases. The petition, when prepared, should be verified by affidavit of the petitioner, wherever practicable, or, if not, then by that of his agent, acquainted with the facts of the case ; the reason why such verification is made by the agent, and not by the principal, being satisfactorily shown, precisely as hereafter prescribed in relation to the verification of a complaint. A copy of the peti- tion, thus verified, and of any collateral affidavits, if any, on which the application is proposed to be grounded, should be served on the adverse party, or, if the petition arise out of matter extrinsic to the pleadings as they stand, then, upon every party interested in, or sought to be affected by the relief to be granted, the usual form of notice of a motion grounded on that petition, being also served at the same time. In Bole v. Fellows, 5 How. 451, 1 C.R.(N.S.) 146, it was held that an order for discovery of books, &c, under sec. 888, can only be applied for on petition : overruling a dictum in The Exchange Bank v. Monteath, 4 How. 280 ; 2 C. E. 148, to the contrary effect. See also Folletl v. Weed, 3 How. 303, 360; 1 C. R. 65. See this subject hereafter considered under the head of pro- ceedings between issue and trial, the point being clearly settled, that petition is the only proper form of application in such cases. See, likewise, Bovell v. Clarke, 7 How. 158, there cited. Special provision is made by Rule 38 of the Supreme Court, in relation to the framing of orders on petitions, to the effect that such petition must be referred to in the order, without setting forth the tenor or substance unnecessarily. To do so Ig6 INTERLOCUTORY PROCEEDINGS. would be clearly a work of supererogation, as the petition should in all cases be filed with the order, and, as such, explains itself. The same rule provides, that orders or judgments granted on petitions, where no complaint is filed, may be dock- eted as judgments, where the payment of money is directed, or the title to property affected by them. The formal constituents of a petition are unaffected by the Code or Eules, and remain as under the old practice. Those constituents may be gathered, however, from the forms in the Appendix, under the heads of Appointment of Guardian and Discovery. The petition should commence with the title of the cause, or a description of the matter in which it is presented. It must be duly addressed to the court applied to, as thus: To the Supreme Court of the State of New York : The petition of A. B. (the above-named plaintiff, or defend- ant, if such be the case, " mutatis mutandis") respectfully sheweth. The allegations on which the court is called upon to inter- fere then follow, and the document concludes with the prayer for the relief sought, commencing with the words, "Your petitioner, therefore, prays, &c." This document should be signed, in all practicable cases, by the party petitioning, in the presence of a witness. The party signing must also verify it by affidavit; and his signature must likewise be proved by the affidavit of the witness thereto, to be further subjoined. See forms of these affidavits and general sketch of petition as above, as given in Appendix of Forms. § 08. Opposed Motions — where Cognizable. Dnder this denomination will fall all applications whatsoever, of which notice has previously been given under the provisions befon d ; and, likewise, the whole class of orders to show cause, on their arriving at thai stage of the proceeding at which cause is to be shown, pursuant to the terms of the original order. Ghambei or Special Term.'] — In all other districts, except the First, Hi I cription, as noticed in a previous sec- INTERLOCUTORY PROCEEDINGS. 187 lion of this chapter, are only cognizable by a judge sitting at special term, and not otherwise. In the First District, however, it "would seem that, under sec. 401, any motions whatever can be heard out of court or at chambers, with the one exception of an application for a new trial on the merits. A more restricted practice has, however, been adopted, one of the distinctions drawn, being that between interlocutory applications, and those which involve a decision of the whole case, with the one excep- tion below noticed. Thus, in Aymar v. Chase, 1 C. E. (N. S.) 330 ; 12 Barb. 301, it was considered that an order granting judgment for want of a reply could not be made at chambers. The only case, it was there held, in which a judgment can be granted by a judge out of court, is, on an application under sec. 247, in respect of a frivolous pleading, where the power is ex- pressly given to apply to a judge, either in or out of court. " In all other cases judgment can be rendered only by the court, when sitting as such, and not by a judge at his lodgings, in the street, or even in chambers." The provisions authorizing motions to be heard out of court, as above, do not either seem to extend to proceedings which are not strictly actions under the Code. Thus, In the matter of H. Hicks's Will, 4 How. 316, 2 C. R. 128, it was decided that the provisions of section 401 do not extend to authorize motions to be heard at chambers, in suits existing at the time the Code passed, nor in special statutory proceedings, as in an appeal from the Surrogate's Court, the point there at issue. A question of this nature would seem, however, not to be positively jurisdictional, so as to render the order ipso facto void. See Geller v. Hoyt, 7 How. 265, before cited. "With reference to the applications specially excepted by the Code from the class of motions that may be made out of court, in Duel v. Agan, 1 C. R. 134, it was held that a motion in arrest of judgment cannot be made at chambers. It is in the nature of a motion for a new trial, and must be made to the court accordingly. In the Supreme Court for the First District, the practice pre- vails to hear all seriously contested motions at Special Term, and, as a general rule, to take cognizance at chambers of those only which are unopposed, or which do not require any length- ened discussion. For this purpose, a regular calendar of mo- tions is accordingly made out each month, and the motions 188 INTERLOCUTORY PROCEEDINGS. entered on that calendar are called and brought on in their order accordingly. A note of the motion should accordingly be filed with the clerk in these cases. The motion is then placed on the Special Term calendar, and brought on in due course. In the other courts this rule does not obtain. In the court in question, every Saturday in term is set apart for the hearing of motions so noticed for the Special Term, and other days are occasionally appointed for the purpose. Superior Court and New York Common Pleas.'] — In the New York local courts, greater facilities are afforded for the hearing of motions. In the Common Pleas, under the Eules of June 1848, and 29th November 1851, motions that may be made out of court, and chamber business, will be heard before a judge at chambers daily, between 10 and 12 A. M., in the months of January, February, April, May, June, September, October, and December; and from 10 to 11, during the General Term, in March, July, and November. Special terms for motions are also, underthe provisions of the Eules of November 1851, to be held on the first Mondays of the months first above referred to, and likewise, (except only as regards the hearing of motions for new trials,) on the first Mondays of March, July, August, and November. If the first day of term should not suffice for these purposes, the hearing of such applications may, of course, be continued at the discretion of the court until those noticed for the term have been duly disposed of. Appeal motions are to be heard on the Saturday of the General Term. See Eule 4 of 1848. In the Superior Court, the arrangements for the hearing of motions arc, under the late rules, still more comprehensive. The following provisions in relation thereto are made by Eules o, 6, and 7: Ri i.i: ~). — Non-enumerated motions will be heard by one of the justices, at tin; Special Term room and the chambers, daily, at 10 A.M., throughout the year; except on New-Year's Day, Good Friday, the Fourth <>f . I uly, tin- day of the Annual Election, Thanksgiving Day, and Christmas. For Mich motions, and for the purpose of making all neces- sary orders, and giving judgments in causes under chapter first of title i <>f the econd part of the Code, a special term will be held, every day during the vacations, at lo o'clock A.M. Rule G. — The justices designated to hold the General Terras will INTERLOCUTORY PROCEEDINGS. 189 attend at chambers, daily, during their respective terms, from 10 to 11 A. M., to dispose of ex parte applications, and of non-enumerated mo- tions, in which all the parties are present or represented. All applica- tions for ex parte orders, and for a judgment upon failure to answer, during the General Terms, must be made before 11 o'clock A. M. Rule 7. — Appeals from all orders made on non-enumerated mo- tions, will be heard on each Saturday during the General Terms, at 11 o'clock, A. M., and must be noticed for that time. The court, at the conclusion of the June Term, will appoint General Terms, for hearing such appeals only, to be held during the vacation. General Term. — It will be seen that in the above rules special provision is made for the hearing of appeal motions by the General Term, and that, in both tribunals, the Saturday of each week is set apart for that purpose. In the Supreme Court the provisions for the hearing of mo- tions of this description are less summary. Under Eule 36, non-enumerated motions to the General Term are, as regards the Supreme Court in general, without reference to any pecu- liar district, to be heard on the first day of term, or on the Thursday of the first week, or Friday of the second week, im- mediately after the opening of the court. The class of applications which fall within the cognizance of the General Terms of the different courts, consists of appeal motions, as above noticed ; of motions relative to appeals from judgments, and the proceedings connected therewith ; and of some few other matters, chiefly of statutory jurisdiction, such as applications in relation to the misconduct of an attorney or counsel, &c. The powers of the judges sitting at General Term are, however, if they choose to extend them, of wider scope, as was asserted in Drake v. The Hudson River Railroad Company r , 2 C. E. 67, with reference to the granting of an injunction. They will rarely, however, be disposed to assume jurisdiction in this respect. It may be safely stated that, as a general rule, interlocutory applications are primarily cognizable by a single judge only, at Special Term, or at chambers, according to the circumstances. General Remarks. — As a matter of course, the regulations in relation to the hearing of motions, rest peculiarly within the discretion of the court, and are changeable, from time to time, 190 INTERLOCUTORY PROCEEDINGS. according to the state of the business, or the convenience of the judges in any peculiar district. Motions in criminal cases may be brought on any day in term ; and certain other cases, in which the rights of the public are involved, arq.also entitled to precedence, as will be hereafter noticed. The hearing of motions in the Court of Appeals will be considered, in the chapters devoted to the consideration of the practice of that court. By sec. 40-1, the following provision is made with reference to the possible inability of the regular judge to hear a motion, at the time for which it is noticed. " When notice of a motion is given, or an order to show cause is returnable before a judge out of court, and, at the time fixed for the motion, he is absent or unable to hear it, the same may be transferred by his order to some other judge, before whom the motion might originally have been made." The same contingency would also seem to fall within the previous provisions made in sec. 27, with reference to justices of the Supreme Court : " The judges shall at all reasonable times, when not engaged in holding court, transact such other business as may be done out of court. Every proceeding commenced before one of the judges in the First Judicial District, may be continued before another, with the same effect as if commenced before him." § 09. Opposed Motions — Course on Hearing, and Inci- dents of Papers used on. The moving party, on opening his motion, can only read the affid: papers served with, his notice or order to show e, (Rule 32,) < >r those previously served, and therein referred to. He cannot introduce evidence, of his intention to rely on which be ha iven due notice to his adversary. In general the evid used is voluntary. The; case of an unwilling witi. r pi cially provided Cor, and the testimony of a party standing under such circumstances, is procurable for the pur] a motion, under special provisions contained in the Revised Stal ds the Supreme Court, and under spe- itment for thai purpose in the New York local jurisdic- tion. INTERLOCUTORY PROCEEDINGS. 191 The provision in the Eevised Statutes will be found at 2 E. S. 554, sees. 24 and 25, and runs as follows : § 24. When there shall be any motion or other proceeding in the Su- preme Court, in which it shall be necessary for either party to have the deposition of any witness, who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony. § 25. Such witness'may be subpoenaed to attend and testify before such commissioners, in the same manner as before referees, and with the like effect ; and obedience to such subpoena may be enforced in the same manner. The statutory provision in relation to similar proceedings as regards the Superior Court, is contained in sec. 3, chap. 276 of Laws of 1840, (see 2 E. S. 316, in third edition,) and runs thus : When there shall be a motion or proceeding in the s;ud Court, in which it shall be necessary for either party to have the deposition of any witness, who may be within the jurisdiction of said court, and who shall have refused to make his deposition voluntarily, the said court may issue a summons, requiring such witness to attend before a judge thereof, to make his said deposition ; and obedience to such summons may be enforced, as in case of a subpoena issued by said court. By sec. 4 of the same statute, the above powers are likewise given to the New York Court of Common Pleas in like man- ner, and to the same extent, as to the Superior Court. The same remedy is therefore obtainable in all the courts of higher jurisdiction, though with some differences in form. In all those courts, the motion must be grounded on an affidavit to the same effect, viz., that the deposition is necessary, and that the witness has refused to make it; the fact that such witness is within the jurisdiction being further superadded, when the ap- plication is in the Superior Court or Common Pleas. The form of order to be applied for is, however, different in the different jurisdictions, the examination taking place before a judge in the New York tribunals, and before special commissioners in the Supreme Court. In the latter, a subpoena must be issued and served on the witness; in the former, the order itself consti- tutes the process on which his attendance is compellable. In 192 INTERLOCUTORY PROCEEDINGS. both, the usual witness's fee ought, as a precaution, to be paid to him at the time of service. The examination then proceeds in the ordinary form of an examination u de bene esse," or of that of a party before trial under the Code, and the deposition, when taken, may be used on the motion, and should be filed in like manner. Forms of the affidavit and order, as applicable to both classes of tribunals, will be found in the Appendix. The party opposing the motion, is entitled to use the papers served by his adversary, the pleadings, and any previous proceedings in the action, and likewise any papers previously served by him upon his adversary, which bear directly upon the question at issue. He is also entitled to bring in, and to read on the hearing, any affidavits which he may consider necessary, and may have ob- tained, in order to rebut the case made by his adversary, or to strengthen that made out by him in opposition, and likewise any exhibits there referred to. It would seem also that, if the judge grant the permission, vivd voce evidence may be intro- duced on a motion, though the practice would be highly incon- venient, and is rarely, if ever, adopted. In general, matters sud- denly arising in the course of the hearing of a motion, are put on the spot into the form of an affidavit, and introduced accord- ingly. When the opposer's case is closed, it is open to the moving party to introduce counter evidence, if he have any ; and his lati- tude in this last respect is clearty the same as that of his adver- sary. If the matter in the affidavits in opposition show a state of things of which he was not previously aware, it is competent for him to ask that the motion may stand over, for some limited period, to enable him to bring evidence in reply, and likewise that lie be furnished with copies of the opposing testimony ; and ? if the case be of sufficient importance, and the matter requiring to be rebutted is clearly new matter, the application will, in all probability, be granted, and the above condition imposed. Un- der a State of things calling for such an interposition on the pari of tin' court, an adjournment on that ground would appear almost, if not entirely, a matter of right, and the legislature has madeexpre provision for the right of a plaintiff to introduce affidavits in reply, and oven for the purpose of strengthening Kith reference to the provisional remedies of arrest and injunction by sec. 205 and 226, us hereafter noticed, "ii considering those remedies. In general, however, the ori- INTERLOCUTORY PROCEEDINGS. 193 ginal statement and counter statement of the parties suffices for the purposes of an ordinary motion, and an adjournment for the above purpose is a matter of comparatively rare occurrence. Affidavit of Service] — The moving party should of course be prepared with the usual affidavit of service of the notice or order to show cause, and the papers on which it is grounded, unless he has obtained, or can clearly rely upon an admission on the part of his adversary. If this precaution be neglected, he cannot take a default, if the opposite party fail to appear, and the proceeding may thus become nugatory. Default on Motion.'] — Where, on the return of the notice or order, the opposite party " does not appear to oppose, the party making the motion, or obtaining the order, shall be entitled to the rule or judgment moved for, on proof of due service of the notice or order and papers required to be served by him, unless the Court shall otherwise direct." Rule 25. In this case, the counsel obtaining such order, must, under Rule 26, endorse his name as counsel, on the paper containing the proof of notice. If, however, the moving party fail to bring on his motion on the day specified, it seems he cannot take an order on any subsequent day. Vernovy v. Tauney, 3 How. 359. If, on the contrary, the moving party fail to appear, his adversary may move, on a subsequent day, for a denial of the motion, as abandoned. The doctrine of Vernovy v. Tauney, seems, how- ever, doubtful. Where the party becomes "entitled" to take an order, under certain circumstances, it may well be argued that the mere delay to take it, can scarcely avail to deprive him of it, provided the subsequent application be made within a rea- sonable time and in good faith. See Moffatt v. Ford, 14 Barb. 577, wherein the contrary doctrine is sustained, with referncee to a cause passed at the circuit. It is directly incumbent on the moving party to be in attend- ance at the time and place prescribed in the notice, and thereto remain until his adversary appear, or the default is taken. This is an absolutely necessary precaution, and one which cannot safely be omitted. The usual practice of the courts is to wait for some short time, generally half an hour, before the order by default is granted, though this accommodation to the absent party is not a matter of right but of courtesy. At the expiration of the time usually allowed, the matter is then mentioned to the 13 194 INTERLOCUTORY PROCEEDINGS. judge, the form of calling the opposite party, (generally by the crier of the court,) is gone through, and, on his failing to ap- pear, the order is taken as of course, unless, as provided for b} T Rule 25, the Court shall otherwise direct. This power the judge possesses under any circumstances, provided he consider the order applied for to be objectionable in itself, or otherwise improper to be granted, either per se, or without a reiterated notice to the opposite party. In case of the failure of the counsel for the moving party to appear on the return of his motion, the opposing counsel will, after waiting the usual time, be entitled to take an order dis- missing the motion, and usually with costs, the ceremony of a call and failure being gone through as above noticed. If ap- plied for at the time, no affidavit will be necessary on which to ground this application, the fact of the counsel's attendance being patent, and within the knowledge of the judge. Should the application be delayed, and the motion to dismiss be made on any subsequent day, it should be grounded on an affidavit, proving the attendance on the one hand, and the non-appear- ance on the other, at the time appointed. With a view to an application of this nature, it seems equally essential, for the opposing as well as for the moving counsel to be in attendance at the precise hour appointed. If this pre- caution be omitted, neither party can be assured but that his adversary may have been in attendance during the period when he himself was absent, and that an application to vacate any order he may take, may not be made' and granted, on proof of that fact. The denial of a motion by default, taken as above, is no bar to its renewal, on that default being duly excused. Bowman v. Sheldon, 5 Sandf. 657, 10 L. 0. 338. ( 'ourse of Hi <"'i'"J, where both Parties apjjear.'} — A motion, when lUght on in regular course, is heard and argued in the usual manner; the affidavits on both sides, or any other papers or Oil which the motion is grounded, arc first read, after which, counsel are heard on bothsides, insupport, opposi- tion, and reply, as in other cases, the right to commence and i jument, resting, of course, with the moving party. Incidental Points.'] — A motion must not be made premature- INTERLOCUTORY PROCEEDINGS. 195 ly. Thus, in divorce, a motion for alimony, pendente lite, no- ticed before service of a copy of the complaint, after demand, was adjourned, to give the defendant time to put in his answer ; Reese v. Reese, 2 C. R. 81. So likewise with reference to an application to appoint a committee of a lunatic, before a commission of lunacy has been issued and returned. The court possess no jurisdiction to make such an order, however pressing may be the circumstances. In re Payn, 8 How. 220. Nor can a motion be made too late, under certain circum- stances, as, for instance, to strike out portions of a pleading for irrelevancy. See Rule 40, of Supreme Court, and cases cited hereafter under the head of Pleading. Objections to one pleading cannot be split up into several motions — they must all be taken at once, or a second applica- tion will be denied. Desmond v. Wool/, 1 C. R. 49 ; 6 L. 0. 389. The proper way of raising objections to the imperfect ser- vice of process, is by motion, and not by answer or demurrer. Nones v. The Hope Mutual Life Insurance Company, 5 How. 96, 3 C. R. 161. Objections for irrelevancy or redundancy also, can only pro- perly be taken by motion. Esmond v. Van Benschoten, 5 How. 44 ; Howell v. Fraser, 6 How. 221, 1 C. R. (N. S.) 270. See the above points more fully considered, and other cases cited here- after, under the different heads as to pleading. When a reference has been granted, and a report obtained under any order made on motion or petition, that report cannot be acted upon by the court, until it has been previously con- firmed, by motion at Special Term, or on petition. Gr/fjing v. Slate, 5 How. 205, 3 C. R. 213. The order for this purpose is, however, a matter of form, and is always entered ex parte, and almost as of course. See hereafter, under the head of Refer- ences. See likewise Belmont v. Smith, 1 Duer, 675; 11 L. O. 216. The review of a report, on a collateral reference, can only be obtained on motion, and not on appeal, though the refer- ence be to carry a judgment into effect. The court will not interfere on motion, in a matter within the discretion of a referee, pending the reference, and before his report, even though the referee himself be desirous of obtaining the decision of the court, on a point raised in the course of the proceedings. The parties must wait for the report, and then review it in the usual mode. Schermerhorn v. Develin, 1 C. R. 28. 196 INTERLOCUTORY PROCEEDINGS. When, however, the report has been made, and appears de- fective, the court will then interfere on motion. Poke v. Peek, 1 0. R. 54; Deming v. Post, 1 C. R. 121. This proceeding is, however, only applicable to the curing of formal defects, and not to the review of the conclusions come to, however erroneous they may be. See hereafter, under the heads of Trial by Re- ferees and Appeals. A motion to set aside an appeal for irregularity, cannot be made to the tribunal appealed from ; it must be to the appel- late court. Bradley v. Van Zandt, 3 C. R. 217 ; Barman v. The Seneca County Bank, 6 How. 82. The powers of the court do not extend so far as to enable it to correct a final decree, regularly entered, though not enrolled, upon motion, except on consent, or as to matters quite of course. It can only be done by means of a rehearing, or, if the decree have been enrolled, by bill of review. Picabia v. Everard, 4 How. 113. Corrections may, however, be made as to provi- sions merely consequent on directions already given, such as, for instance, the correction of an insufficient notice of sale in partition. Romaine v. McMillen, 5 How. 318. The decisions of Commissioners of Appraisement, under the General Railroad Act of 2d April, 1850, cannot be reviewed upon motion, but only on appeal in the manner there pre- scribed. In the matter of the Albany Northern Railroad v. Cra- mer, 7 How. 164. See likewise as to commissioners similarly appointed under a special charter, Visscher v. The Hudson River Railroad Company, 15 Barb. 37. Nor is an application to compel the delivery of books, &c, by a public officer, under the Revised Statutes, and sec. 438 of the Code, a motion within the provisions above noticed, but a special statutory proceeding, with reference both to its incidents and the jurisdiction of the officer applied to. Welch v. Cook, 7 How. 282. A doubtful question in relation to a mandamus, will not be entertained on ;i motion to quash it; but the mandamus will be allowed to go, that the matter may come up in due form on the return. People v. College of Physicians, 7 How. 290. Although the powers of the court are theoretically unlimited, in relation to granting any relief incident to the matter in ques- tion, under the usual demand for that purpose, there are never- theless bounds to the extent to which their exercise may be INTERLOCUTORY PROCEEDINGS. 197 practically relied on. See ante, sec. 66 of this chapter, and the cases of Northrop v. Van Dusen, Mann v. Brooks, and Bellinger v. Martindale, there cited. A purely technical objection to a motion may not be allowed, if, on examining them, the papers of the objecting party are obnoxious to the same defect with which he charges those of his adversary. Sawyer v. Schoonmaker, 8 How. 198. A variety of special points, applicable to different classes of motions as such, will be hereafter considered under their appro- priate heads, and in connection with the proceedings to which such motions relate. In Burnham v. Be Bevoise, 8 How. 159, it was held that an incurable defect in a complaint is not waived by pleading, and can be taken advantage of by motion, at any time, in any stage of the action. Denial of Motion, Consequences of.'] — An application once made and refused, or granted conditionally, cannot be subsequently made on the same state of facts to another justice. The provisions of Rule 83 are express on this subject, as fol- lows: "If any application for an order be made to any justice of this court, and such order be refused in whole or in part, or be granted conditionally, or on terms, no subsequent application, upon the same state of facts, shall be made to any other justice ; and if, upon such subsequent application, any order be made, it shall be revoked." In Bellinger v. Martindale, 8 How. 113, it was held that, where a motion is made and denied, without any leave to renew it, it cannot be heard again, without obtaining leave from the court. Nor can such leave be granted under the general prayer for further relief in the notice. The necessary facts must be shown, and the special relief asked for. The denial of a motion, on the default of the moving party, is, however, no bar to its renewal, if that default be sufficiently excused. Bowman v. Sheldon, 5 Sandf. 657; 10 L. O. 338. The decision of a motion is never regarded in the light of a res adjudicata," although, as a matter of orderly practice, the court will not usually allow a motion once made and decided, to be renewed on the same facts, nor upon additional facts, without leave first obtained. Snyder v. White, 6 How. 321. 198 INTERLOCUTORY PROCEEDINGS. § 70. Orders. General Remarks. The decision of the court or judge on a motion, being pronounced, is carried into effect by means of an order. The distinction between an order and a judgment is so broad, that, in ordinary cases, there is little risk of the one being con- founded with the other. This distinction is laid down in Bent- ley v. Jones, 4 How. 335, 3 C. E. 37, in the following terms: "An order is the decision of a motion. A judgment is the de- cision of a trial." In a certain class of cases, however, in relation to decisions upon demurrers, or in respect of a frivolous pleading, the limits approach more closely, and have given rise to some dis- cussion, which will be hereafter considered under the heads of the proceedings in question. The true rule would seem to be that laid down in Drummond v. Uusson, 8 How. 246, 1 Duer, 633, that, where the demurrer or objection goes to the whole pleading, the decision on it is a judgment: where, on the con- trary, the objection is of a partial nature, so that some portion of the pleading stands unaffected by the result, it is an order. See Reynolds v. Freeman, 4 Sandf. 702, and other cases cited hereafter, under the heads to which those forms of proceeding- are applicable. A warrant of attachment was held to be a direction of the judge in writing, falling within the definition of an order in sec. 400, in Couklln v. Butcher, 5 How. 386, 1 C. K. (K S.) 49, and Bank of Lansingburgh v. McKie, 7 How. 360. An order made by an officer having jurisdiction in the pre- mises, however irregular it may appear to be, cannot be disre- garded or treated as a nullity ; the only course will be to move to vacate or set it aside. Sec Blackmar v. Van Lnvager, 5 How. 367, 1 C. R. (N. S.) 80; Hempstead v. Hempstead, 7 How. 8; Oeller v. Jloyt, 7 How. 265. Id a certain class of motions, such as those for a change of venue, it is usual to direct that the costs of the motion should abide the event of the action, according to the old prac- iii similar cases. In Johnson v. Jillitt, however, 8 How. 486, it 'a:i- distinctly held that this cannot, be done, under the Code, and that the costs of a, motion cannot be taxed in, and enforced as part of a recovery on judgment, but must be given at the time, and separately enforced. This decision has not INTERLOCUTORY PROCEEDINGS. 199 been followed, however, but is daily disregarded in practice, and the principles laid down in it seem overstrained and. un- sustainable. It seems clear that the retention of the old system in this respect, is clearly within the powers of the court, as given by sec. 469, and, if admissible, that retention seems as clearly expedient in this particular instance. Orders, Form of.'] — The form in which an order thus obtain- ed, is to be drawn up and enforced, is next to be considered. The course to be pursued in respect of orders of course has been before pointed out. That on opposed motions, and ex parte proceedings of the more important nature, is drawn up in more formal terms. A skeleton form of the usual commencement of orders of these descriptions, will be found in the Appendix. The actual order itself, will, of course, depend upon the cir- cumstances of each individual case. In all, however, it must be in strict accordance with the terms of the notice of motion, unless different directions be given by the court, in which case, those directions must be strictly followed. An order,. duly made, binds all parties to the suit who have been properly served. It is not, however, it would, seem, con- clusive upon a person not a party, even though he appear by counsel to oppose. See Acker v. Ledyard, 8 Barb. 514. On ex parte applications, or, where the order applied for is of an ordinary nature, and, if granted at all, will probably be granted in the terms of the application, the usual and most convenient practice is to prepare the order beforehand. If, on the contrary, the relief granted vary from the terms of the ap- plication, the form will then have to be settled, after the deci- sion of the judge is pronounced. Where the counsel on both sides are in court, this is usually done at once, and the terms of the order, when settled between them, are submitted to the judge forthwith, while the subject is fresh in his memory. Where, on the contrary, the decision is deferred, and subse- quently delivered, in the absence of the counsel or either of them, the prevailing party then draws up the form of order, and usually, as a matter of courtesy, submits it to the opposite counsel, before applying to the judge for his signature. If any question arise on the terms of the document so drawn up, an appointment must be made for attendance before the judge who heard the application, in order that he may finally decide 200 INTERLOCUTORY PROCEEDINGS. as to the exact terms in which his direction is to be formally carried into effect. Occasionally, when the form of the pro- posed order has been handed up to the judge with the papers, or where, in his own discretion, the latter thinks fit to draw one up in his own terms, it is signed by him, without subse- quent communication with the parties, or delivery of a decision in open court; in which case, the order may, of course, be entered by the prevailing party without further preliminary. Where the order is made at chambers, and as of course, the usual course is for the judge to sign his name at the foot of it. Where, however, it is made at special term, or is otherwise of such a nature as to require entry with the clerk, the practice is for him to endorse upon the document a direction for the clerk to enter it, and which constitutes the latter's authority for that purpose. Entry of] — The form of the order having been settled, and the judge's signature or endorsement obtained in all cases, the order so signed, if not one of course, as before alluded to, must be entered with the clerk of the court. The practice in this respect is distinctly laid down in Savage v. Belyea, 3 How. 276, 1 C. R. 42, as follows: "When a motion is made to a justice, out of term, upon notice," (and, of course, the same principles apply a fortiori to cases where the order is made at special term,) "as well the papers on which the motion is founded, as those used in opposition thereto, should be filed with the clerk of the county in which the venue is laid, or, in case the place of trial has been changed, in the county to which the other papers in the cause are transferred. The Code evidently contemplates that the order, or decision made by the justice, should also be entered with the clerk — all the papers and orders in a cause, should be filed and entered in the same clerk's office, and, if not so entered originally, should be transferred and filed, and the orders reentered in the office of the clerk of the county designated as tin- place of trial." In a subsequent part of the decision, it is laid down that the doing of this is incumbent upon tin: prevailing party, and that, in ordinary cases, the papers may be safely confided to him by the judge for that purpose. The principle that ex parte orders made at chambers, need not, in most case , be entered with the clerk, is also distinctly enounced. The prevailing party must accordingly sec that the order is INTERLOCUTORY PROCEEDINGS. 201 duly entered, and the necessary papers duly filed with the clerk of the proper county, according to the principles above laid down. It is of course competent to the losing party to insist upon every paper being properly filed ; and, in the event of any neglect or dereliction on the part of his adversary, he may apply to the court, either on notice, or by order to show cause. It may be very necessary to insist upon this in certain cases, where an appeal is contemplated, and in order that all the papers used on the motion in the court below, may be duly brought before the appellate tribunal. An appeal will not lie from any order, unless first entered with the clerk as above. Provision is made in this respect by section 350, under which, for the purpose of an appeal, any party affected by an order, "may require it to be entered with the clerk, and it shall be entered accordingly." See Savage v. Relyea, above cited. See, also, Nicholson v. Dunham, 1 C. B. 119. If, on the contrary, an order be improperly entered, it may be stricken out and vacated on motion. See Bedell v. Pow- ell, 3 C. K. 61. Ex parte orders, where not mere matters of course, should in most cases, be entered also, and the papers on which such orders are granted should, as a general rule, be filed with them. This is peculiarly the case with regard to those applications by which important relief is granted, under circumstances which may be contested hereafter; as, for instance, on applications for provisional remedies, or for service by publication. In Vernam v. Holbrook, 5 How. 3, it was, however, held that, on an appli- cation of the latter description, it is not imperatively necessary to file the affidavits; and an order of that nature was sustained, on an additional affidavit, omitted to be filed with two others which duly accompanied the order, on proof that such affidavit had been used before the judge, as well as those above referred to. The case is, however, of an exceptional nature, and the deci- sion evidently contemplates the filing of all the affidavits used, as the more proper course. Order by Consent'] — "Where an order is obtained on a consent signed by the parties, it must be entered in due course, and the consent annexed to, and filed with it. In the First District, the consent and order thereupon, must be submitted to the judge and his signature obtained, before entry with the clerk. In the 202 INTERLOCUTORY PROCEEDINGS. second, and others, the order may be entered at once by the latter, without the judge's signature, on the consent being pro- duced and filed. A consent signed by the attorney or counsel in the cause requires no proof, the court taking judicial notice of their sig- natures. Where, however, the consent is that of the party in person, an affidavit identifying his signature to it, as such, is necessary, and should be annexed. Certified Copy.] — The order having been duly entered, and the papers on which it was granted duly filed, a certified copy should be obtained from the clerk of the court. His fee on such copy is the usual payment of ten cents per folio, and may be charged as a disbursement. It is an usual practice to prepare the copy and examine it with the clerk, paying him the fee. This will be found a convenient method, where despatch is an object, though, of course, it is not incumbent on the party to do so, but the clerk is, on the contrary, bound to furnish the copy on pay- ment of his fee. Service of.\ — The order being thus entered, and a certified copy obtained, a copy of the latter should be served on the opposite party, with a formal notice endorsed, to the effect that it is a copy of the order so made. The same is the case with reference to orders of course, not entered with the. clerk, copies of which should be served in like manner, accompanied, where necessary, with the copies of the affidavits or papers on which they were granted, as before noticed. This service should, in all cases, be made at once, and should never be neglected or deferred, for the obvious reason, that the time within which an appeal may 1"' taken !>;, the adverse party, runs, under sec. 332, from the date of that service only, without reference to the date of mak- ing tin- order; and, if that precaution be neglected, the time for Lodging such an appeal will therefore be indefinitely postponed. It would seem however from tin 1 case of Hempstead v. Hemp- lead, 7 II- ■. . 8, that an omission to serve the whole of the papers n to be served with an order, though an irregu- larity, does oot render the proceeding absolutely void and ino- perative, until . et aside on a proper application. The certificate of a sheriff or competent officer, of the service of an order by him, would appear to be conclusive evidence of INTERLOCUTORY PROCEEDINGS. 203 that service, according to the principles laid down in the cases of The Columbus Insurance Co. v. Force, 8 How. 353 ; Vankirk v. Wilds, 11 Barb. 520 ; and Sheldon v. Paine, Court of Appeals, 30th December, 1852, heretofore cited under the head of Sum- mons. The peculiar statutory provisions, prescribing the papers to be served with orders granting the provisional remedies provided by the Code, and also on proceedings supplementary to judg- ment, will hereafter be cited in the chapters devoted to those subjects. Performance of Conditions.] — In cases where a motion has been granted, on payment of costs, or on the performance of any condition, or when the order requires such payment or per- formance, the party whose duty it is to comply therewith, is, by Rule 35 of the Supreme Court, allowed twenty days for that pur- pose, unless otherwise directed in the order. Where costs are to be taxed, the party is, by the same rule, allowed fifteen days for their payment, after taxation upon notice, unless otherwise ordered. The last words, giving the court a discretionary au- thority in relation to the payment of costs on a motion, were first inserted on the revision of the Rules in 1852, before which the period was imperative. In Sturtevant v. Fairman, 4 Sandf. 674, it was held that, where an order requires a party to amend, or the like, and directs him to pay costs; the payment of those costs is not a condition pre- cedent to the act required, unless a special provision to that effect be made or necessarily implied in the order. Where an order opening a default imposed terms that a stipu- lation should be made, which, it appeared, could not be per- formed, it was held that the party could not appeal from the order on that ground; that his proper course would have been to give the stipulation ; and that if, by reason of facts beyond his control, he could not afterwards comply with it, he should then set up such facts, in answer to the motion founded on his omission to comply. Gale v. Vernon, 4 Sandf. 709. The appeal in that case was accordingly dismissed, and a judgment for non- suit, granted in consequence of the omission to stipulate under these circumstances, sustained. Enforcement of Orders.] — This subject, both as regards the re- 204 INTERLOCUTORY PROCEEDINGS. covery of costs, and also the mode of compelling the perform- ance of an act directed to be done, by process of contempt, will be hereafter considered under the head of Execution. Review or Vacating of Orders.] — The questions as to the re- view or vacating of orders, will be likewise fully considered under the head of Appeals. Ex parte orders may be vacated or modified, without notice, by the judge who made them; or by the same, or any other judge, on notice, in the usual manner. (See Code, sec. 324.) Orders of any nature may be set aside for irregularity, on a regular application. An order may also he revoked, under Eule 83, if unduly obtained, by means of a second application, on the same state of facts on which a previ- ous motion has been refused. Orders made upon notice are, in the last place, reviewable by means of an appeal, under the provisions of the Code for that purpose, as considered in a sub- sequent division of the work. PROVISIONAL REMEDIES. 205 BOOK V OF PROVISIONAL REMEDIES § 71. General Remarks. Some difficulty has been felt by the author, in assigning the most fitting place for the consideration of the remedies falling under this particular class, and to which a separate title of the Code — Title VII., Part II. — is devoted. The difficulty arises from their being extrinsic to the regular progress of the suit, and adoptable or not, at the discretion of the parties. Another is created, by the fact that the applications in question are not universally appropriate to the same, but, in some cases, to differ- ent stages of a suit when commenced. The four first heads under this title are ordinarily, though not necessarily, prelimi- nary to, or rather, to speak more correctly, contemporaneous with the commencement; the last head is, on the contrary, more appropriate to a later period in the progress of the action. Impressed by these difficulties, the author, in his first edition, reserved the consideration of this species of relief until the con- cluding portion of the work, in order to preserve, as far as practicable, the unbroken continuity of the proceedings in a suit, from its first commencement by summons, to its final ter- mination by appeal. This arrangement, whatever may be its other advantages, presents, however, the inconvenience of dis- associating from their natural period of consideration, proceed- ings, which, under ordinary circumstances, are generally, if not universally taken, contemporaneously with the original issuing of the summons. These proceedings partake, too, in all cases of the character of interlocutory applications, and there seems, according^, an evident propriety in classifying them in con- 206 PROVISIONAL REMEDIES. nection with that branch of jurisdiction. On these grounds, after much reflection, the author has decided on altering his original arrangement, and considering this class of remedies at the present juncture, in juxtaposition with the matters treated of in the last division; the present and the preceding book forming, as it were, a species of parenthesis, in the consideration of the progress of a suit, as such, from its original inception to its final termination. As regards the first four chapters of the book, the advantages of this arrangement are obvious ; the fifth presents a little more diffi- culty, the appointment of a Eeceiver being a subject which more usually comes up for discussion, pending the preparation of the pleadings, or subsequent to the joinder of issue; and as to which it is difficult, if not impossible, to name any peculiar stage of the suit, previous to trial, to which it is more especially appropriate than to the others. In this latter view it seems, on the whole, the least inconvenient arrangement, to avoid disassoci- ating this peculiar species of remedy from those most analogous to it ; and to adopt the classification of all provisional remedies under one general head, which has already been adopted by the framers of the Code. This arrangement has accordingly been selected, and will be carried out in the five succeeding chapters, which will accordingly be devoted to the consideration of the subject, in the following order, viz. : 1. Arrest and Bail. 2. Claim and Delivery of Personal Propert}-, or Replevin, according to the former nomenclature. 3. Injunction. 4. Attachment; and, 5. Receivership, and other minor remedies. ARREST AND BAIL. 207 C HAPTER I. OF ARREST AND BAIL. § 72. Preliminary Remarks. Old Law, how far repealed. Though subjected to a complete refusion, and modified in some respects by the Code, the law on this subject remains substantially the same as under the previously existing statutes. The intentions of the framers of the former measure in this respect, are expressed by themselves as follows, in page 160 of their report: "The enactments of the Code," say they, "are intended as a substitute for all the present statutes, providing for the arrest of persons upon civil process, before execution. We have," they proceed, " adhered generally to the principle of the existing laws; although, in some respects, we have restricted the right of arrest, and particularly by requiring, in all cases, an order of a judge, and, in most, an affidavit that the defendant is not a resident of the State, or is about to remove from it. We have also provided, that, before an arrest, the plaintiff must give security to pay the defendant's costs, and whatever damages he may sustain by the arrest. We have also proposed that the defendant may make a deposit of money, in all cases, instead of giving bail." In carrying out the views thus enounced, the previous statute law upon the subject is abrogated in terms, but maintained in substance, by sec. 178, which runs as follows : § 178. No person shall be arrested in a civil action except as pre- scribed by this act ; but this provision shall not affect the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26, 1831, or any act amending the same, nor shall it applv to proceed- ings for contempts. Although, by the foregoing provision, the law of 26th April, 203 ARRE3T AND BAIL 1831, is, for the most part, either repealed or substantially reenacted ; still, it would seem from the case of Gregory v. Weiner, 1 C. E. (N. S.) 210, that, notwithstanding, a warrant may still be issued under the act of 1831, in all the cases thereby pre- scribed, so that a plaintiff may be considered as having the election to proceed under either measure. This conclusion is unequivocally supported by Corwin v. Freeland, 6 How. 241. The mode of procedure under the act of 1831 belonging exclu- sively to the old practice, does not enter within the scope of the present work. The previous law as to proceedings for contempts, is modi- fied by c. 390 of the laws of 1817, by which, imprisonment on contempt for non-payment of interlocutory costs is abolished, and the ordinary remedy of/2, fa. substituted for their reco- very, except as respects proceedings against attorneys, counsel- lors, or officers of the court, when ordered to pay costs for mis- conduct as such, and also as regards witnesses, when ordered to pay them oh attachment for non-attendance. See Buzard v. Gross, 4 How. 23. See, also, Vreeland v. Hughes, 2 C. R. 42, where the court disclaimed any power to grant an attachment for costs, even though the party liable, had obtained a postpone- ment of the trial, on the express condition of paying them. Until very recently, the most extensive powers of provisional arrest were vested in the federal courts, in almost all cases. See Gaines v. Travis, 2 C. R. 102. By a recent regulation, however, the practice in those courts has been assimilated to that now under consideration. § 73. Writ of Nc Exeat. In Fuller v. Emeric, 2 C. R. 58, 2 Sandf. 626, 7 L. 0. 300, it was decided by the Superior Court, that the writ of u ne exeat" i abolished by sec. 178, according to the declared intentions of tin; commissioners, in page 161 of their report, and that such writ was QOl saved by the reservation in sec. 244 of the Code of L849, of Hi 1 ' Other provisional remedies then existing. This view is no doubt correct, so fir as the writ is looked upon, merely as the means of enforcing payment of. 'in equitable debt; and is confirmed in Forrest v. Forre8t t 3 C. R. 121. I;i another aspect, .however, the continued existence of the writ appears to be maintainable, ami is maintained by the Gene- ARREST AND BAIL. 209 ral Term of the First District in the same case of Forrest v. Forrest, 10 Barb. 46, 3 C. R. 141, 5 How. 125, 9 L. 0. 89, with relation to those- cases in which its office is that of a prerogative writ, and its end, to insure the performance of some act by the de- fendant, to compel which, the ordinary process of execution will be insufficient, if he be allowed to leave the State. This decision was made under the Code of 1849, which con- tained the reservation above alluded to, but, on the amendment of 1851, that reservation was altogether stricken out, which might lead to an inference that all provisional remedies, except those specially retained by the Code, must be considered as abolished. In Bushnell v. Bushnell, however, 7 How. 389, (decided under the Code of 1852,) the conclusion come to in Forrest v. Forrest is adhered to, and the writ in question maintained to be still existent, as a provisional remedy, in the class of cases there alluded to ; and this conclusion is maintained at General Term in the same case, reported 15 Barb. 399, on the broad ground that a failure of justice must otherwise ensue, no substitute being- provided by the Code, to perform the office of the writ, in that aspect, and as a prerogative writ. See Code, sec. 468, by which the former practice is maintained, in cases where such a failure must otherwise ensue. The effect of the omission to include the reservation of provisional remedies then existing, on the last revision of sec. 244, with reference to other proceedings, not included within the peculiar incidents of the writ of Ne Exeat, as above noticed ; and, whether that alteration might not be held as abolishing all provisional remedies whatever, except those denned by the pre- sent Code; remains to be settled by judicial construction. As yet, there is no reported case bearing directly on the subject, except those above noticed. The proceedings on this writ, in those cases in which it may still be issuable, depend, in all respects, upon the old practice, with such modifications, of course, as are essential to the new system. Thus in Bushnell v. Bushnell, 7 How. 889, above no- ticed, it was held that, before issuing this writ, it was not neces- sary to file the complaint, that being no longer an essential to the commencement of an action. 14 210 ARREST AND BAIL. § 74. When Defendant arrestable — Statutory Provisions. The circumstances under which a defendant is arrestable under the Code, are thus defined by sec. 179 of that measure : § 1*79. The defendant may be arrested, as hereinafter prescribed, in the following cases : 1. In an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of the State, or is about to remove therefrom ; or where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property. 2. In an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled, or fraudulently misapplied by a public officer, or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation or banking absociation, in the course of his employment as such, or by any factor, agent, broker, or other per- son in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment. 3. 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 cannot 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. 4. When the defendant has been guilty of a fraud, in contracting the debt, or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, cr conversion of which the action is brought. 5. When the defendant has removed, or disposed of his property, or i3 about to do so, with intent to defraud his creditors. But no female shall be arrested, in any action, except for a wilful injury to person, character, or property. ! provisions of this portion of the Code are, by sec. 181, made applicable to all actions commenced since 30th June, 1848, and, in which, judgment shall not have been obtained. Cases falling under Subdivision 1, Nbn'residence t y s< •<•, 185. The liability of the sheriff, in respect of an escape or otherwise, is expressly provided for by sections 201 and 202. [fa deposit be made, or bail be given, and justified as hereafter noticed, the sheriff's liability is at an end; but, if not, he is, himself, liable as bail. He may, however, discharge himself from that liability, by the giving and justification of bail, in tbe same manner as provided with respect to the defend- ARREST AND BAIL. 223 ant himself, at any time before the latter is charged in execution ; but, after he has been so charged, his powers in that respect are gone, and his liability is the same as that of other bail. Beek- man v. Carnley, 9 How. 180 ; Sartos v. Ilerceques, 9 How. 188. His liability, as above, may be enforced, by proceeding against him or his sureties, in the usual manner. If, on the other hand, bail be put in on the part of the defendant, and such bail, or others, fail to justify, they will, under sec. 203, be liable to the sheriff, by action, for any damages which he may sustain by that omission. The statutory provisions, as to the granting of the liberties of the jail to prisoners, and also in relation to escapes, will be found in articles 3 and 4 of title VI., chap. II., part III. of the Eevised Statutes, 2 E. S. 432 to 439. Tanner v. Rallenbeck, 4 How. 297, is authority that the subsequent death of an escaped prisoner, even before the commencement of the action, does not operate as a discharge of the sheriff; but that, on the contrary, such cause' of action is complete when the escape takes place, liable, however, to be defeated by the voluntary return or re- capture of the debtor, before suit brought. The sheriff takes the risk of the party's death, as it had there happened. See also Hutchinson v. Brand, 6 How. 73, affirmed by Court of Appeals, 31st December, 1§53, a case of escape upon execu- tion, which holds that no defect or irregularity in the process under which a prisoner is arrested, can be alleged by the sheriff, as an excuse for an escape. Unless the process be actually void, and not merely voidable on application of the parties, he remains answerable. In the same case, it is laid down that, in an action for escape, the sheriff is liable for the whole judgment and costs, but not for interest on the former. Course, if Arrest not made within Time limited^] — If the sheriff fail to arrest the defendant within the time prescribed by the order, an amendment should be applied for on the same papers, under the powers conferred by sec. 174. § 77. Course of Defendant, when arrested. Motion to Vacate.'] — On the arrest taking place, the first point to be looked into by the defendant is, in relation to the validity of the order of arrest, and also as to the amount of the bail 224 ARREST AND BAIL. thereby required to be given; as, if the order be informal, or if the bail demanded be excessive, relief may be obtained by him, by means of a special application to the court. His powers in this respect are conferred by sec. 204, in the following terms: § 204. A defendant arrested may, at any time before the justification of bail, apply, on motion, to vacate the order of arrest, or to reduce the amount of bail. The motion for this purpose must be made upon notice in the usual manner, or upon an order to show cause. If grounded on a positive defect on the papers on which the arrest was granted, no affidavits will of course be necessary. If, on the other hand, the application be grounded on facts extrinsic to the case as made by the plaintiff, the facts so adduced must, of course, be proved on affidavit in the usual manner, and copies of such affidavits must be served with the notice or order to show cause, in due course. Affidavits on Motion. — In Martin v. Vanderlip, 3 How. 265, 1 C. K. 41, it is held that, except in matters of form, the old prac- tice still remains in force. When indebtedness is sworn to positively by the plaintiff, the counter affidavit of the defendant, denying it, will not be received, for that would lead to trial upon affidavits, of every cause in which the defendant is arrest- ed. See also Adams v. Mills, 3 How. 219. This last doctrine is, however, somewhat qualified by that laid down in Barber v. Hubbard, 3 C. R. 169, before cited. According to the doctrine as laid down in Martin v. Vander- lip, and Adams v. Mills, above cited, it seems that, if the defend- ant move for his discharge, on the ground of any defect in the original affidavit, the plaintiff cannot supply that defect by a supplementary one. Section 205, it is there held, only applies ' to cases where the motion for discharge is founded on proofs adduced by the defendant, and not when it is based upon a defect ah initio. The defendant may show any matter in avoid- ance, us an insolvent's discharge, that he was privileged from t, "i- tli'' Id.''. There seems, however, reason to doubt whether the plaintiff might not, on application, be let in to amend his affidavits. Sec Spalding v. Spalding, 3 How. 297, 1 C. It. 64, and the authori- ties there cited, on the analogous question of replevin. In Camp v. 77/,/w/v, '.) C. 11.45, also before cited, the defendant ARREST AND BAIL. 225 was let in to prove, on affidavit, that the sheriff had made an incorrect return, in stating that the property there in question had been concealed by him; and, having established that he had not made an improper disposition of it, the order for his arrest was vacated. This case must be distinguished from those before cited, as to the conclusiveness of a sheriff's return, in respect of matters falling directly within the scope of his offi- cial duties. The line of distinction would seem to be between the official acts of the sheriff, as such, and collateral facts con- nected therewith. The service of process is clearly referable to the former class ; the circumstances under which the sheriff has been unable to seize property affected by a writ in his hands, belong as clearly to the latter. In Manley v. Patterson, 3 C. E. 89, a similar conclusion was come to, and, it being established that the defendant had not removed or concealed the property there in question, so as to warrant his arrest, the order for that purpose was vacated. In Barber v. Hubbard, 3 C. E. 126, it is stated to have been held that, on a motion to discharge an order of arrest, it is com- petent "to read affidavits, denying the allegations in the affida- vits on which the order was granted, and, such denial being implicitly made, as to matters material to the arrest, the order Avill be vacated." No facts are given in the report. The case is subsequently fully reported, 3 C. E. 169, on ap- peal from the above decision at special term, on which the order was affirmed, on the point above referred to. The views taken in Martin v. Vanderlip, as to the nature of the affidavits which may be adduced, are, at first sight, overruled by this decision. The defendant, it was there held, is not arrested on an affidavit of mere indebtedness, but on the ground of something in the nature of fraud, and it is competent for him to state any cir- cumstances, tending to disprove or explain away the fraud so alleged. " The Code sets no limit to the matters to be contain- ed in the affidavits, on either side," and none, it was there held, will be imposed. The case of Morgan v. Avery, subsequently cited under the head of Attachment, is referred to in the course of the decision. The doctrines as laid down in these decisions, may, however, be reconciled to this extent, viz: that in an ac- tion on contract, the mere fact of indebtedness, as constituting the ground of the action itself, cannot be contested on affidavits, though collateral circumstances, tending to show fraud, and thus 15 226 ARREST AND BAIL. bearing not on the ultimate recovery, but on the immediate and extrinsic remedy, are contestable in that manner. By the drawing of this distinction, the fundamental doctrine of these decisions is brought into perfect harmony, and this appears to be the correct view. See the principles laid down, and the distinctions drawn, as to facts intrinsic or extrinsic to the record, in Wilmerding v. Moon, 8 How. -213. " If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may," under sec. 205, :i oppose the same by affidavits or other proofs, in addition to those upon which the order for arrest was made. See Martin v. Vanderlip, 3 How. 265, 1 C. E. 41, above cited. The questions as to the admissibility of counter affidavits in general, and as to whether a verified pleading is or is not admissible in that light, will be found fully treated under the subsequent heads of In- junction and Attachment, to which the decisions in relation to that point are primarily applicable. General Incidents of Motion."] — It appears from the case of Dun- aher v. Meyer, 1 C. E. 87, that such motion need not necessarily be made before the judge who granted the order to arrest. The defendant cannot move to vacate, on the ground that special cause for requiring bail has not been shown, as under the former practice. The setting forth a sufficient cause of ac- tion is now enough. Baker v. Swackhamer, 5 How. 251 ; 3 C. E. 248. It was also held in the same case, that the defendant might move to reduce the amount of bail, on the plaintiff's own show- ing. The amount was there reduced accordingly to $500, the case being one of libel, not of an aggravated character, and the defendants, permanent residents, and not transient persons. Several of the cases before cited are authorities as to the cir- cumstances under which, if shown, an order of arrest will be vacated. Sec, in particular, Bropliy v. llogers, and Adams v. ibove referred to. In Martin v. Vanderlip^ 3 How. 265, 1 C. E. 41, the question as to the fiicts, which may, or may not be stated, with a view to entitle tip- defendant to :i discharge of such an order, is fully entered into. That decision, as before noticed, lays down the principle that, except in matters of form, the old practice still remains in force. ARREST AND BAIL. 227 A motion of this nature must be made, before the defendant has taken any step in the matter, which amounts to an admis- sion of the legality of his arrest. The test of his privilege in this respect, is afforded by sec. 204, above cited, where this liberty is reserved to him at any time before the justification of bail. See Barber v. Hubbard, 3 C. R 169, above cited. See also similar principles, with reference to a defendant being concluded from contesting the facts on which an attachment was originally issued, by giving security under it, as laid down in Haggart v. Morgan, 1 Seld. 422. The mere putting in of bail waives all objections to the form of the plaintiff's affidavit, or on the ground of privilege from arrest. Stewart v. Howard, 15 Barb. 26. See similar principles with regard to the estoppel of the bail themselves, as laid down in Gregory v. Levy, 12 Barb. 610; 7 How. 37. See, also, generally, as to the waiver of formal objec- tions by an unconditional appearance, Webb v. Mott, 6 How. 439, and cases there cited. In Barber v. Hubbard, above cited, it was further held that the privilege of the defendant, as above, could not be con- sidered as waived by any mere inactivity on his part, or by a very long acquiescence. A more restricted view is, however, taken in Lewis v. Truesdell, 3 Sandf. 706, where it was held that if, before moving to vacate the order, the defendant allow the time within which the plaintiff may except to the bail given by him to elapse, and the bail to become perfect, it will be no longer competent for him to do so." "The defendant, by submitting to put in and perfect bail, accedes to the regularity of his arrest, and the sufficiency of the grounds for it." In Barker v. Dillon, 1 C. R. (N. S.) 206, 9 L. O. 310, the same conclusion is come to, and the same proposition enounced. In that case, however, the defendant had acquiesced for eighteen months, and allowed his bail to be sued, and then surrendered himself in discharge of their liability, before making the appli- cation; under which circumstances, his acquiescence in the proceeding was abundantly clear. The test as established by sec. 204, is fully maintained in Wilmerding v. Moon, 8 How. 213, where it was held that a mere delay of the application to vacate, was no bar to the motion; and that an order of arrest, founded on extrinsic facts, might, where bail had not been given, be vacated upon a proper application, at any time before the defendant had been charged 228 ARREST AND BAIL. in execution, even though judgment had been entered, as was there the case. The question, as to whether the application could or could not be entertained, after the defendant had been so charged, was declined by the court. In The Columbus Insurcmce Company v. Force, 8 How. 353, the court doubted whether the obtaining further time to answer, or even an actual answer, unless there had been unreasonable delay, would be a waiver of the irregularity of an arrest in the same suit. On a motion to vacate an order of arrest, founded on affi- davits denying the plaintiff's allegations, the court will weigh the evidence on both sides, to determine whether the order shall or shall not stand, and decide accordingly. Falconer v. Elias, 3 Sandf. 731 ; 1 C. E. (N. S.) 155. In Lithaner v. Turner, 1 C. E. (N. S.) 210, a motion to vacate an order of arrest was denied, though it was admitted, that an attachment in respect of the same cause of action was pending in another State. See also Fowler v. Brook, there referred to. A motion of this nature is the only proper remedy, where the action is one in which the defendant cannot be arrested. Hol- brooh v. Homer, 1 C. E. (N. S.) 406 ; 6 How. 86. § 78. Bail by Defendant. Assuming that the defendant is satisfied that no grounds exist, by means of which the order of arrest can be vacated, or the amount of bail reduced, by means of a special application as above ; or if his application for that purpose have failed, two modes are open to him, by which he may obtain his immediate release. 1st. By giving bail; or, 2d. By depositing the amount claimed. These proceedings may be taken by him, under sec. 186, "at any time before execution." After judgment, the plaintiff's remedy ceases of course to be provisional, and bc- comea absolute, under the execution, if duly issued. See sub- sequent chapter on that subject. The mode in which bail is to be given is thus prescribed by sec. 187 : § 18V. The defendant may give bail, by causing a written under- taking to be executed by two or more sufficient bail, stating their places of residence and occupations, to tlie effect that the defendant shall at ARREST AND BAIL. 229 all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein; or, if he be arrested for the cause mentioned in the third subdivision of section 179, an undertaking to the same effect as that provided by section 211. In cases of ordinary arrest, the bail will be discharged, on surrender of the defendant in due time. When, however, the arrest is in respect of fraudulent concealment of property, the sureties will not merely be responsible for the safe custody of the defendant, but also for the value of the property claimed, under the provisions of sec. 211, as above referred to. See this subject considered in the succeeding chapter. This distinction is an important one, and must not be lost sight of, with refer- ence to the liability of the sureties themselves. The disquali- fications under which various parties labor in respect of be- coming bail, are in no manner affected by the Code, and remain exactly as under the former practice, the works on which subject may accordingly be referred to when necessary. It would seem from Baker v. Swackhamer, 5 How. 251, 3 C. K. 248, that, when the defendant is a permanent resident, a less amount of bail will be required for his appearance, than when he is a transient person. The qualifications of bail under the Code are thus prescribed by sec. 194 : § 194. The qualifications of bail must be as follows: 1. Each of them must be a resident, and householder or freeholder, within the State. 2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution; but the judge, or a justice of the peace, on justification, may allow more than two bail to justify severally, in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail. Where the proceedings are taken in a court of limited juris- diction, it would seem that the sureties ought to be resident within the district embraced by its powers. See Herrick v. Taylor, 1 C. R (1ST. S.) 382. (Note.) The form of the undertaking to be signed by the bail will be found in the Appendix. Their affidavits must be subjoined, to the effect there given, and strictly following the words of the 230 ARREST AND BAIL. section. The forms ordinarily sold are deficient in one respect y as not specially excluding property exempt from execution, and are therefore unsafe, unless previously altered in this re- spect. The document must also, under Eule 72 of the Supreme Court, be acknowledged as a deed of real estate, before it can be received or filed. The above requisites must be strictly complied with, or the proceeding will be of no effect. It will be better, also, that the residences of the sureties should be stated on the undertaking. See, as to appeals, Blood v. Wilder, 6 How. 446. The undertaking, when perfected, must be delivered to the sheriff, who is bound to receive the bail, if sufficient, and to re- lease the defendant thereupon ; though of course it is competent for him to refuse an undertaking deficient in any respect, either as regards the sureties, or the form of the document itself. The sheriff must then, "within the time limited by the order, deliver the order of arrest to the plaintiff or attorney by whom it is subscribed, with his return endorsed, and a certified copy of the undertaking of the bail." See sec. 192. The original remains with him, until a failure to comply has taken place, and the subsequent directions of the court be given, as hereafter specified. It has been a practice with the sheriff to dispense with this acknowledgment, and also with the affidavit of justification, unless the bail be excepted to, and to accept, in the first in- stance, a simple undertaking, to the effect prescribed. Whether he had really power to do so seemed doubtful, even under Kule 76, now 72, as it originally stood. It seems still more so, under the recent amendment of that rule, on which the words, "This rule shall not apply to cases when the duty of the officer in taking security is prescribed by the Code of Procedure," have been stricken out; and the rule is made generally applicable, in all instances, " whenever a justice or other officer approves of tin; .security to be given in any case," without any distinction oi exception whatsoever. Under Kule 8 ( J, inserted on the last revision, the original affidavits must now be filed by the sheriff with the clerk, within ten days after the arrest. ARREST AND BAIL. 231 § 79. Exception and Justification. Exception by Plaintiff.'] — If the plaintiff' omit to except to the bail within the ten days allowed for that purpose, he is bound by the proceeding, and the sheriff will be exonerated from liability. If, on the contrary, he deem it insufficient, he may, by sec. 192, " within ten days thereafter," i. e., after the delivery of the order of arrest, with the sheriff's return as above, "serve upon the sheriff a notice that he does not accept the bail ; or he shall be deemed to have accepted it, and the sheriff shall be exonerated from liability." The notice may be simply in the words of this section, being of course properly entitled, adj dressed, and served. Notice of Justification.] — The course of proceeding to be adopt- ed by the sheriff, on the receipt of such notice, is thus prescribed by sec. 193 : § 193. On the receipt of such notice, the sheriff or defendant may, within ten days thereafter, give to the plaintiff or attorney by whom the order of arrest is subscribed, notice of the justification of the same, or other bail, (specifying the places of residence and occupation of the latter,) before a judge of the court, or county judge, at a specified time and place, the time to be not less than five, nor more than ten days thereafter. In case other bail be given, there shall be a new undertaking, in the form prescribed in section one hundred and eighty- seven. Justification.] — The mode of justification is then pointed out by sec. 195 : § 195. For the purpose of justification, each of the bail shall attend before the judge, or a justice of the peace, at the time and place men- tioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge or justice of the peace, in his discretion, may think proper. The examination shall be reduced to writing, and subscribed by the bail, if required by the plaintiff. N. B. It is evident that the words "justice of the peace," in this section, and also in sec. 194, must be read "county judge;" the correction in this respect, in analogy with the amendment in sec. 193, having escaped the attention of the Legislature. 232 ARREST AND BAIL. The period for justification by the sureties, may be extended beyond the limit prescribed in the notice, on good cause shown ; an order must, however, be duly obtained, and a fresh notice given. Burns v. Bobbins, 1 C. R. 62. A re-justification was allowed in Hees v. Snell, 8 How. 185, on a technical failure by the sureties to attend at the precise hour appointed. The justification must, under Rule 84 of the Supreme Court, take place " within the county where the defendant shall have been arrested, or where the bail reside." The plaintiff or his agent is, therefore, bound to attend, wherever notice may be given in due accordance with this provision. If, on the con- trary, the notice be given for the wrong county, it will be a nullity, and the sheriff will not be discharged, unless the plain- tiff waive the objection, by appearing on the examination, or otherwise by direct acquiescence in the proceeding. If, on the justification, more than two bail be brought forward, they may, under sec. 194, be allowed by the judge "to justify severally, in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail," i. e., equivalent to at least double the amount specified in the order. If the bail fail to justify, the plaintiff should obtain from the judge a certificate to that effect, as evidence of the fact, and in order to the establishment of the sheriff's liability, if necessary. In this case, it would seem that the sureties themselves are dis- charged from all responsibility. See Ward v. Syme, 4 Comst. 161 ; 1 C. R. (N. S.) 266. Where the contrary is the case, the course to be adopted on behalf of the sheriff or defendant, is thus prescribed by sec. 196: § 190. If the judge or justice of the peace find the bail sufficient, he shall annex Um; examination to the undertaking, endorse his allowance thereon, and cause them to be filed with the clerk; and the sheriff shall thereupon he exonerated from liability. Disposal of Undertaking.'] — It will be observed that, under these circumstances, the under taking passes from the custody of tin- sheriff into that of the clerk, in whose hands it remains, subject to the further disposition of the court. There is no report,^! deei.-'iou on the subject; but it would probably be held, that the proper clerk to be intrusted with the custody of ARREST AND BAIL 233 the instrument in question, will be the clerk of the court or county in which the action is brought ; or of that in which the venue is laid, if in the Supreme Court. The same is doubtless the case in relation to the original affidavits, which must now be filed within ten days after the arrest, under Eule 89. § 80. Surrender by Bail. The mode in which it is competent for the bail to discharge themselves from their liability, by a surrender of the defendant, is thus prescribed by sections 188 and 189 : § 188. At any time before a failure to comply with the undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested, in the following manner : 1. A certified copy of the undertaking of the hail shall be delivered to the sheriff, who shall detain the defendant in his custody thereon, as upon an order of arrest, and shall, by a certificate in writing, acknow- ledge the surrender. 2. Upon the production of a copy of the undertaking and sheriff's certificate, a judge of the court, or county judge, may, upon a notice to the plaintiff of eight days, with a copy of the certificate, order that the bail be exonerated ; and, on filing the order and the papers used on said application, they shall be exonerated accordingly. But this sec- tion shall not apply to an arrest for the cause mentioned in subdivision 3 of section 1*79, so as to discharge the bail from an undertaking, given to the effect provided by section 211. § 189. For the purpose of surrendering the defendant, the bail, at any time or place, before they are finally charged, may themselves arrest him ; or, by a written authority, endorsed on a certified copy of the undertaking, may empower any person of suitable age and dis- cretion to do so. In Re Taylor, 7 How. 212, it was considered by Humphrey, county judge, that it was competent for any one or more of several bail, to give the authority above provided, for, without the concurrence of all concerned ; and also, that though they had failed to justify, the bail in that case were competent to surren- der their principal, and authorized to take all necessary steps for that purpose. 234 ARREST AND BAIL. It will be seen that, in cases falling under subdivision 3 of sec. 179, the mere surrender of the defendant does not discharge the bail from farther pecuniary liability, as before noticed. The sheriff, when liable as bail, in consequence of the failure of the defendant's sureties to justify, is entitled to the same privileges as bail in other cases. ' At any time before the de- fendant is actually charged in execution, he may discharge himself by giving substituted bail; but, afterwards, his privi- lege in this respect is gone. It is still competent for him, how- ever, to claim the same right to relief as bail in other cases, (see sec. 191,) if, within the twenty days allowed by that section after action brought, he obtain, by any means, the lawful cus- tody of the defendant, so that he can be retained on the execu- tion. Buchnan v. Carnley, 9 How. 180 ; Sartos v. Merceques, 9 How. 188. §81. Remedies against Bail. The plaintiff's remedy against the bail, if they fail to sur- render the defendant, is thus provided for by section 190 : § 190. In case of failure to comply with the undertaking, the bail may be proceeded against, by action only. For this purpose, an application should be previously made to the court, for an order that the undertaking may be delivered out to the plaintiff, by the sheriff or cleric, as the case may be. The order may be obtained ex parte, and need not be served on the opposite party. The facts establishing the failure should, however, be shown by a short affidavit to that effect. In an action against sureties, under a bond given on the arrest ol* a defendant, the fact that the party bringing the action is the aggrieved party, must be averred on the complaint. If not, the action cannot be sustained. Raynor v. Clark, 7 Barb. 581; 3C. R.280. In an action against bail, tiny cannot impeach the legality of tlic original arrest; the undertaking imports their liability, and they are estopped from controverting it. Their only reme- dy is to surrender their principal. Gregory v. Levy, 12 Barb. 612: 7 How. 87. ARREST AND BAIL. 235 § 82. Exoneration of Bail. The following provisions are made by sec. 191, in relation to the circumstances under which the bail may be exonerated, after action so brought against them : § 191. The bail may be exonerated, either by the death of the de- fendant, or his imprisonment in a state prison, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof; within twenty days after the commencement of the action against the bail, or within such further time as may be granted by the court. In Barker v. Russell, 1 C. E. (N. S.) 5, the bail were dis- charged, on the ground, there taken, that the defendant was not liable to arrest at all, on account of an omission to aver fraud on the pleadings. This decision was, however, reversed by the General Term, Barker v. Russell, 11 Barb. 303, 1 C. E. (N. S.) 57, though a temporary stay of proceedings was granted, to enable them to surrender their principal. In Gregory v. Levy, 12 Barb. 610 ; 7 How. 37, it was held that a surrender and exoneration was the only remedy open to bail, who strove to controvert the legality of the original order of arrest, from doing which they were estopped by their under- taking. In Holbrook v. Homer, 6 How. 86, 1 C. E. (K S.) 406, it was also held, that an exoneration could not be applied for, on the ground that the defendant was not liable to be arrested. The only remedy, under such circumstances, was a motion by the defendant, under sec. 204. The case did not fall within the provisions of sec. 191. The question as to the effect of a sur- render does not appear to have come up for consideration. A sheriff, who has become liable, as bail, by the omission of the defendant's sureties to justify, is entitled to the full benefit of this section, and to the same remedies as bail in other cases. No process is necessary to enable him to arrest the defendant ; and if, during the twenty days allowed, he can by any lawful means obtain the custody of the person of the latter, so that he can be held on execution, his liability will be dis- charged. Buckman v. Carnley, 9 How. 180 ; Sartos v. Merce- ques, 9 How. 188. 236 ARREST AND BAIL. § 83. Deposit in lieu of Bail. Mode of making.'] — Where, however, the defendant is either unable or unwilling to procure bail, it lies in his power to ob- tain his discharge, at the time of his arrest, by means of a depo- sit in the hands of the sheriff. The following are the provisions on this subject, as contained in sections 197 and 198: § 197. The defendant may, at the time of his arrest, instead of giv- ing bail, deposit with the sheriff the amount mentioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged out of custody. § 198. The sheriff shall, within four days after the deposit, pay the same into court ; and shall take from the officer receiving the same, two certificates of such payment, the one of which he shall deliver to the plaintiff, and the other to the defendant. For any default in making such payment, the same proceedings may be had on the official bond of the sheriff, to collect the sum deposited, as in other cases of delinquency. Withdrawal of, on giving Bail.] — In this event, it is competent for the defendant afterwards to withdraw the amount so depo- sited, on giving bail in lieu thereof. This provision is made by section 199: § 199. If money be deposited, as provided in the last two sections, bail may be given and justified upon notice, as prescribed in sec. 193, any time before judgment ; and, thereupon, the judge before whom the jus- tification is had, shall direct, in the order of allowance, that the money deposited be refunded by the sheriff to the defendant, and it shall be refunded accordingly. Application of when not ivithdraivn .] — The application of the amount deposited as above, where bail is not subsequently given, is thus prescribed by sec. 200: g 200. Where money shall have been so deposited, if it remain on deposit at tin' time of an order or judgment for the payment of money to the plaint ill, the clerk shall, under the direction of the court, apply the same in satisfaction thereof, and, after satisfying the judgment, shall refund the arpltU, if any, to the defendant. If the judgment be in favor of the defendant, the Clerk shall refund to him the whole sum deposited and remaining unapplied. , REPLEVIN. 237 § 84. Concluding Remarks. . Execution against Person, Effect of.'] — If, on judgment being recovered, and execution issued against the person, the defendant be still in custody, the provisional arrest, will, of course be merged in that under the subsequent process. If, on the con- trary, the defendant be out on bail, his arrest on the execution may take place, and, if made, will exonerate the sureties. Discharge by Operation of Law, or otherwise.'] — It remains to consider the cases in which a defendant may be discharged from arrest, under special circumstances, or by operation of law. Insanity, either at or subsequent to the arrest, forms no ground for an unconditional discharge. The only manner in which a defendant can be removed from the legal custody, is under the act in relation to lunatic asylums, passed 7th April, 1842, and that, during his insanity only. Bush v. Pettibone, 4 Comst. 300 ; 1 C. E. (N". S.) 264. A defendant will be released from imprisonment by operation of law, on his discharge as an insolvent, under the provisions of title I., chap. V., part II. of the Eevised Statutes, particularly of articles 3, 4, 5, 6 and 7 of that title. See 2 E. S. pp. 1 to 52. The proceedings in relation to a discharge of this nature are in nowise affected by the Code, and belong entirely to the old practice. CHAPTER II, OF CLAIM AND DELIVERY OF PERSONAL PROPERTY. § 85. General Characteristics of Replevin under Code. The provisions of the Code, in this respect, are clearly intended as a substitute for the provisional relief heretofore obtained in the action of replevin, under the old practice. Roberts v. Randel, 3 Sandf. 707 ; 5 How. 327 ; 3 C. E. 190 ; 9 L. O. 144; McCurdy v. Brown, 1 Duer, 101 ; Wilson v. Wheeler, 6 How. 49 ; 1 C. E. (N. S.) 402. In the latter case, it was con- 238 REPLEVIN. sidered that the former practice on replevin was still in force, in many respects in an action of this nature, which seems clearly to be the case, inasmuch as the provisions made by the chapter of the Code now under immediate consideration, are only partial in their operation, and relate to the provisional remedy alone, without in any manner affecting the subsequent proceedings, for the decision of the controversy, as to whether the plaintiff is or is not entitled to the property itself, in respect of which the provisional remedy is sought in the first instance. The different points in relation to the action of replevin, con- sidered as an action, and apart from the provisional remedy obtainable at the outset, will be hereafter considered under their proper heads. A specific equitable lien cannot be enforced in an action for replevin ; Otis v. Sill, 8 Barb. 102 ; that remedy is only applicable to cases where the possession of the property itself is sought, not where a charge is merely claimed upon it. In this form of action, the possession of the property may be sought, with or without damages for the withholding, (sec. 167, subdivision 6;) and, under sec. 277, judgment may be taken, either for the possession of the property, or for its value, in case a delivery cannot be had, with damages for its detention. It would seem from the case of Suydam v. Jenkins, 3 Sandf. 614, that it is competent for the plaintiff to elect to take judgment for the value of the goods claimed, instead of their return, and that he can equally recover damages ; that, in such case, the assessable value of the goods will be that at the time of the replevin, and not at that of such election ; and that, if such value be an insufficient redress for the injury, the deficiency may be made good in the estimate of damages; and the law as to the measure of the latter is fully laid down. Although the claim for the recovery of the property, or judg- ment for Its value, is maintainable in the action of replevin, the provisional remedies now under consideration cannot be ob- tained in a proceeding in the nature of an action of trespass "cfe bonis asportatis" under the old practice, and in which damages only, and not the return of the property itself, are • lit, by tli" complaint. An action of that nature falls under lion 167, . tikI is incompatible with replevin, which falls, on the contrary, within subdivision 6; jSfpalding v. Spalding^ 8 How. 297; 1 0. R. 64; and it was there beld that the proa edings could not be amended, under the provisions in REPLEVIN. 239 relation to amendments, as they stood in the Code of 1848. This latter conclusion was dissented from in Dows v. Green, 3 How. 377, and an amendment was there allowed under similar circumstances ; the decision otherwise confirming the authority of Spalding v. Spalding, as to the incompatibility of obtaining the provisional remedies applicable to the action of replevin, in one in which relief for the trespass only is sought, and not the recovery of the property itself. In Maxwell v. Farnam, 7 How. 236, it was similarly held that the redelivery of property, and the payment of damages for its conversion, are claims incom- patible in their nature, and incapable of joinder in the same action. In Ghappel v. Skinner, 6 How. 338, it was, in like manner, decided that the remedy of obtaining possession of the goods, by means of replevin, was incompatible with a previous arrest under section 179. See citation of the case in the preceding chapter. The plaintiff cannot have both remedies simulta- neously, and must make his election between them. The con- clusion come to by the court is thus expressed : "The plaintiff's course was to have pursued the proceedings pointed out in chapter II. above referred to," i. e., that now under consideration, "which do not authorize the defendant's arrest ; and, if the property could not be found, and the case is within the 3d subdivision of section 179, to obtain an order, and have the defendant arrested ; but, in that case, he cannot after- wards obtain the possession of the property pending the action. "Having in this case elected to have the defendant arrested and held to bail in the first instance, under one of the subdi- visions of sec. 179, 1 think the plaintiff was bound to wait, until he was entitled by the judgment of the court to the possession of the property, before causing it to be delivered to him. I am not able to perceive that the defendant has done any thing by which he waived the right to have the property restored to him." In reference to the circumstances under which an action of this description can or cannot be maintained, when the defend- ant has parted with the possession of the property, see the last chapter, and the cases of Roberts v. Handel, Van Neste v. Conover, Merrick v. Suydam, Hem-in v. Nagle, Brockivay v. Bitmap, Pike v. Lent, and Mulvey v. Davison, there cited. It appears from these cases that replevin is not maintainable 240 • REPLEVIN. against a person who lias, bond fide, parted with the possession of the property claimed, before the suit for its recovery has been commenced ; but otherwise, in cases where such property has been removed, in expectation of a proceeding for its recovery, and in fraud of that proceeding. The plaintiff in replevin can only recover upon a legal title ; he must show, as heretofore, an absolute or special property, giving him an immediate right to the possessionof the goods claimed. Where xi lien is relied on, actual possession of the property is indispensable, and a mere equitable lien cannot be so enforced, but must be asserted in a specific suit for that pur- pose. If the title set up in the complaint be denied by the answer, the defendant is not bound to prove his right to the goods in question, till that of the plaintiff has been, prima facie, established ; and, if the latter fail to prove his title, the former is entitled to a judgment for the value of the goods, if taken. McCurdy v. Brown, 1 Duer, 101. See, also, Roberts v. Randel, above cited. To maintain an action of replevin, a previous demand of the property is not necessary, unless where the defendant is an in- nocent bailee or holder. Pringle v. Phillips, 5 Sandf. 157. The possession of a document of no value on its face, may be recovered in this form of action, and evidence to prove its actual value ma}'' be given. So held with reference to a ware- house entry, in Knehue v. Williams, 1 Duer, 597 ; 11 L. 0. 187. The recovery and collection of a judgment for value, in this form of action, transfers the title to the property itself, and will act as an estoppel on a subsequent claim of title. Russell v. Gray, 11 Barb. 541. See, also, Austin v. Chapman, 11 L. O. 103. An action of this nature will not lie, as between the owner of goods and a constable, for property in the latter's hands, by virtue of an attachment, unless such property be such as is ex- empted from attachment. ".Replevin will not lie for property in the «'n tody of the law." Keyserv. Walcrhury, 3 C. R. 233. The above doctrine must, however, be received with some qualification, as, for instance, the case of a disputed execution, or an illegal, though actual levy; in which cases, and many simi- lar ones that might be adduced, where the legality of the actual custody ed, replevin would clearly bo not only an ad- missible, but the proper remedy. The questions in relation to the action of replevin, generally REPLEVIN. ' 241 considered, having thus been adverted to, we now approach the subject of the provisional remedy immediately under consider- ation. § 86. Provisional Remedy — how obtained. This remedy may, under sec. 206, be obtained in an action of this nature, "at the time of issuing the summons, or at any time before answer." It is, therefore, only applicable to the outset of the action, and, if delayed until after the service of the complaint, may be frustated, by an answer being put in by the defendant. It is obvious, that the proper course will be to draw the sum- mons, and the necessary papers for the application for the provisional remedy, at the same time; to apply to the court thereupon; and then to serve the summons, and lodge the affidavit with the sheriff concurrently. Affidavit, Form of.'] — In order to the obtaining of the provi- sional remedy, an affidavit must be prepared as follows, in the manner prescribed by sec. 207 : § 207. Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, showing, 1. That the plaintiff is the owner of the property claimed, (particu- larly describing it,) or is lawfully entitled to the possession thereof, by virtue of a special property therein, the facts in respect to which shall be set forth. 2. That the property is wrongfully detained by the defendant. 3. The alleged cause of the detention thereof, according to his best knowledge, information and belief. 4. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute ; or seized under an execution or attachment against the property of the plaintiff; or, if so seized, that it is, by sta- tute, exempt from such seizure ; and, 5. The actual value of the property. A form of this affidavit is given in the Appendix. The pro- perty must, of course, be correctly and fully described. An allegation by the plaintiff, that he is "owner" of the property, is sufficient, under subdivision 1. The facts as to his 16 242 REPLEVIN. right need only be set forth, when he claims, in the words of the section, " a special property therein." Burns v. Bobbins, 1 C. E. 62. The same doctrine is maintained in Vanderburgh v. Van Valkenburgh, 8 Barb. 217, (reported on another point, 1 C. E. (N.S.) 169,) below cited under the head of Pleading. Where, however, a special property is claimed, the facts as to that special property must be clearly set out, as concisely as practicable, but, at the same time, with sufficient fulness. To give a general precedent would of course be impracticable, as the statement will necessarily be one of fact, applicable to the particular case only. The same remark may be made as to that of the alleged cause of detention by the defendant. The questions as to the extent to which property is exempt from seizure, will be hereafter considered under the head of Execution. That as to the form of affidavit "showing" such exemption, has given rise to two decisions directly contradictory to each other. In Spalding v. Spalding, 3 How. 297, 1 C. E. 64, the court held, that, to conform to the requirements of this section, the affidavit must show that the property claimed to be exempt from seizure, is so exempt, by a detailed statement of the facts. By Boberts v. Willard, 1 C. E. 100, the above decision was overruled in terms, the learned judge saying he doubted not that the fact of exemption might be shown, by a statement of that fact upon the advice of counsel, after a full statement of all the facts of the case to such counsel, before such advice was given ; and, per- haps, by a naked allegation of the party in his affidavit that the property was so exempt, provided that allegation be made posi- tively. A statement upon mere belief will be insufficient under any circumstances, (same case,) and a short allegation of the facts will evidently be the more expedient course in all in- stances. See in relation to the subject of exemption in general, ( ble v. Stevens, 9 Barb. 676. It is, of course, essential to the validity of the affidavit under the above provisions, that some value .should be stated on its face, 1" comply with subdivision 5. That value may, however, be arbitrary, and have reference to extrinsic circumstances. Thus, replevin was held to be maintainable for a warehouse entry, though bearing no actual value on its face. Knehue v. Willwm, I Doer, 597; ll L. O. 1*7. REPLEVIN. 243 The affidavit in these cases will be irregular, if sworn before the plaintiff's attorney. Anon., 4 How. 290. Any irregularity in that part of the proceedings will, however, be waived by the subsequent unconditional appearance of the defendant. Roberts v. Willard, 1 0. E. 100, above cited. In Spalding v. Spalding, above cited, it was held that the original affidavits, if defective, may be amended by subsequent ones, on a motion to set aside the proceedings. Rtauisition to Sheriff.] — The affidavit being prepared, an en- dorsement must be made upon it by or on behalf of the plaintiff, as directed by sec. 208, in the following terms : § 208. The plaintiff may, thereupon, by an endorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant, and deliver it to the plaintiff. The signature of the plaintiff's attorney to this requisition, though not expressly prescribed, will doubtless be held suffi- cient. Undertaking, Form of; Delivery to Sheriff — SJierijfs Duty thereon.'] — The affidavit, and notice endorsed, most then be deli- vered to the sheriff, accompanied by an undertaking, as thus prescribed by sec. 209 : § 209. Upon the receipt of the affidavit and notice, with a written undertaking, executed by one or more sufficient sureties, approved by the sheriff, to the effect that they are bound, in double the value of the property as stated in the affidavit, for the prosecution of the action ; for the return of the property to the defendant, if return thereof be adjudged ; and for the payment to him of such sum as may, for any cause, be recovered against the plaintiff; the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall also, without delay, serve on the defendant a copy of the affidavit, notice, and undertaking, by delivering the same to him personally, if he can be found, or to his agent, from whose possession the property is taken ; or, if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion. The form of this undertaking will be found in the Appendix. It is subject to the same general conditions as those treated of in the last chapter; the sureties must subjoin the usual affidavit, 244 REPLEVIN. and it must be duly proved and acknowledged under Eule 72. See, also, Anon., 4 How. 290. The sheriff must endorse his approval in writing, on the undertaking. Burns v. Bobbins, 1 C. E. 62. By the same case the following points are also decided : 1. That a party to a suit cannot be properly taken by the sheriff as a surety; 2. That, if the name of a party has been inserted jointly with that of an- other, the sheriff may erase the former, provided he approves of the undertaking with one surety only ; 3. That if he origin- ally intended to require two, then he may require another name to be inserted in the place of that of the party, before he approve; but, 4. That no change can be so made in the under- taking, unless the original surety assents to it. An undertaking duly given stands in the place of, and effects a change in the title to the property. Austin v. Chapman, 11 L. O. 103. See likewise Bussell v. Gray, 11 Barb. 541, before cited as to the similar effect of an actual recovery. Sheriffs Course of Proceeding^] — On lodgment with the sheriff of the affidavit, notice, and undertaking, as above, and, on approval by him of the latter, the proceeding is complete, no application to the court being necessary. The sheriff then seizes the property, giving notice to the defendant as above prescribed. If he seize the goods of a wrong party, he will be liable under his official bond, and is answerable for the acts of his deputies. See The People v. Schuyler, 4 Comst. 173. Nor will the fact that he was directed to take the specific goods in question, be any protection to him under these circumstances. Stimpson v. Beynolds, 14 Barb. 506. The powers of the sheriff, in relation to seizure of the pro- perty, are thus prescribed by sec. 214 : § 214. If the property, or any part thereof, be concealed in a build- ing or enclosure, the sheriff shall publicly demand its delivery. If it be not delivered, he shall cause the building or enclosure to be broken open, and take ih^ property into his possession; and, if necessary, he may call to his aid the power of his county. § 87. Defendants Course of Action, and ulterior Pro- ceedings. On seizure of the property, three courses are open to the defendant: REPLEVIN. 245 1. He may move to set aside the plaintiff' s proceedings, on the ground of irregularity. 2. He may require the plaintiff's sureties to justify ; or, 3. He may give counter security, for the purpose of retaining the property. Motion to set aside.'] — If he move to set aside, the motion must be noticed at once, and before excepting to the sureties, or taking any other proceeding, and an interim stay of proceed- ings, and extension of the time to except, or give counter security, must be at once applied for. By requiring the sure- ties to justify, his right to make a motion on the ground of irregularity will be gone. See cases cited in last chapter on the analogous question of arrest. Three days only are allowed him for the former purpose. By requiring the sureties to justify, the defendant will like- wise lose his rights to give counter security. See sec. 210. These points should, of course, be weighed well, and at once, before deciding on the precise course to be adopted. Justification by Plaintiff's ^Sureties.'] — The proceedings, where justification is demanded, are thus prescribed by sec. 210: § 210. The defendant may, within three days after the service of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them. When the defend- ant excepts, the sureties shall justify, on notice, in like manner as upon bail on arrest. And the sheriff shall be responsible for the sufficiency of the sureties, until the objection to them is either waived as above provided, or until they shall justify, or new sureties shall be substituted and justify. If the defendant except to the sureties, he cannot reclaim the property as provided in the next section. The proceedings, it will be seen, are substantially the same as those treated of in the last chapter. If the plaintiff's sureties omit to justify, it seems the defendant will be without remedy, except as against the sheriff. See Manley v. Patterson, 3 C. E. 89, there cited. The case of Burns v. Bobbins, 1 C. B. 62, above referred to, is authority, as to the power of the court to allow further time for sureties to justify, upon good cause shown ; but, it seems, 246 REPLEVIN. a new notice must be given by them, under these circum- stances. Counter Security by Defendant.'] — If| on the contrary, the de- fendant is desirous of retaining the property on counter security, it is competent for him to do so under sec. 211, which runs as follows : 8 211. At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound, in double the value of the property as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged ; and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required, within three days after the taking and service of notice to the defendant, it shall be delivered to the plaintiff, except as provided in section 216. It will be seen that, if these proceedings are not taken within the three days allowed as above, the property is to be delivered by the sheriff to the plaintiff, except in the event of a claim by a third party, as hereafter noticed. Justification by Defendant's Sureties.] — In all cases, the defend- ant's sureties must justify, as follows, under sec. 212: § 212. The defendant's sureties, upon a notice to the plaintiff of not less than two, nor more than six days, shall justify before a judge or justice of the peace, in the same manner as upon bail on arrest; upon such justification, the sheriff shall deliver the property to the defendant. The sheriff shall be responsible for the defendant's sureties, until they justify, or until justification is completed or expressly waived ; and may retain the property until that time ; but, if they, or others in their place, fail to justify, at the time and place appointed, he shall deliver the property to the plaintiff. General Qualifications of Sureties.] — The qualifications of the sureties in general, and their justification, arc the same as those on arrest, as treated of in the preceding chapter. See Code, sec. 213. Disposal of Property : Sheriff's Fees and Acts.] — If the defend- ant's sureties justify in due course, the property, as above pre- REPLEVIN. 247 scribed, must be delivered to the defendant ; if they fail to do so, then to the plaintiff. In the meantime it is to remain in the custody of the sheriff, who is entitled to be paid his fees and necessary expenses, by the party to whom it is eventually deli- vered. Sec. 215. For the fees in question, see 2 R. S. 644 to 647. The expenses must of course be reasonable, and, if any question arise, a taxation of his account may be applied for, in the usual manner. The doctrine that the return of the sheriff is, as a general rule, conclusive as to his official acts, holds good as to proceedings in replevin, as under the other circumstances previously noticed. See Russell v. Gray, before cited. Claim by Third Person.'] — The contingency of a claim to the property by a third party, and the indemnity that may be re- quired by the sheriff thereon, are thus provided for by sec. 216 : § 216. If the property taken be claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto, and right to the possession thereof, stating the grounds of such right and title, and serve the same upon the sheriff ; the sheriff shall not be bound to keep the property, or deliver it to the plaintiff, unless the plaintiff, on demand of him or his agent, shall indemnify the sheriff against such claim, by an undertaking, executed by two suffi- cient sureties, accompanied by their affidavits, that they are each worth double the value of the property, as specified in the affidavit of the plain- tiff, and freeholders and householders of the county. And no claim to such property by any other person than the defendant or his agent shall be valid against the sheriff, unless made as aforesaid ; and, not- withstanding such claim, when so made, he may retain the property a rea sonable time, to demand such indemnity. Ultimate Disposal of Undertakings.] — By section 423, the dis- posal of the different undertakings referred to in this chapter is made the subject of a special and exceptional provision, and it is directed that, after the justification of the sureties, they shall be delivered by the sheriff, to the parties respectively for whose benefit they were taken. This seems to abrogate the former doctrine, that the indemnities to be given under the old prac- tice, were for the benefit of the sheriff, and not of the party. See Russell v. Gray, 11 Barb. 541. Ultimate Disposal of Papers.] — The ultimate disposal of the papers is prescribed by sec. 217, as follows: 248 INJUNCTION. § 217. The sheriff shall file the notice and affidavit, with his pro. ceedings thereon, with the clerk of the court in which the action is pending, within twenty days after taking the property mentioned therein. Ultimate Disposal of Property.'] — The property, when disposed of in any of the above methods, remains subject to the disposi- tion of the court on the hearing of the cause ; and a delivery may be demanded, or the liability of the sureties enforced ac- cordingly, in the usual manner, on an order or decree being duly made. On Discontinuance, Property to be restored.] — The plaintiff can- not discontinue his action, without providing for the return of the property to the defendant, as well as for the payment of costs. If the defendant be in a situation to ask for a dismissal of the complaint, he should set the cause down, and take judg- ment by default, in the ordinary course. He cannot obtain a judgment for a return, on the usual motion for dismissal. Wil- son v. Wheeler, 6 How. 49 ; 1 C. R. (N. S.) 402. CHAPTER III. INJUNCTION. § 88. Preliminary Remarks : By ivhom granted. THE remedy of injunction, though in some respects altered in form, remains, in all its substantial parts, the same as under the former practice. The definition of that remedy, as now existent, and of the officers by application to whom it is obtainable, is thus con- tained in sec. 218: § 218. Tlie writ of injunction as a provisional remedy is abolished; and an injunction, by order, is substituted therefor. The order may be made by tho court in which the action is brought, or by a judge INJUNCTION. 249 thereof, or by a county judge, in the cases provided in the next sec- tion ; and, when made by a judge, may be enforced as the order of the court. In Livingston v. Hudson River Railroad Company, 3 C. R. 143, the following is stated to have been decided, though no facts are given — i. e. : " It is improper to grant an injunction, where the question involved has been already decided at a special term, a distinct suit being an irregular mode of obtaining a re- view of that decision." Such motions, in practice, are always made to the single judge. The power of the General Term to entertain them, if thought expedient, is, however, asserted in Drake v. The Hud- son River Railroad Company, 2 C. R. 67. The powers of the county judge in this respect, and the limits within which those powers are exercisable, have been before considered, in the chapter as to the general machinery of a suit, under the head of Motions. See, in particular, Eddy v. How- let, and Peebles v. Rogers, there cited. The substitution of an order for the former writ of injunction is merely formal, and calculated to simplify, instead of complicating the practice. § 89. When obtainable — General Classification. The circumstances under which an injunction is obtainable, are thus laid down in sec. 219 : § 219. Where it shall appear by the complaint, that the plaintiff is entitled to the relief demanded ; and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would pro- duce injury to the plaintiff ; or when, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or pro- curing or suffering some act to be done, in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual ; a temporary injunction may be granted, to re- strain such act. And where, during the pendency of an action, it shall appear by affidavit, that the defendant threatens, or is about to remove, or dispose of his property, with intent to defraud his creditors, a tempo- rary injunction may be granted to restrain such removal or disposition. The injunctions obtainable under this section, may be classed under the two main divisions of preliminary or subsidiary ; the 250 INJUNCTION. former arising upon the case as stated upon the complaint, and forming part of the relief originally demanded ; the latter ob- tainable in respect of subsequent acts of the defendant. A third description, which may be denominated as extraneous, arises under the last section, in respect of circumstances unconnected with the immediate controversy between the parties, but tend- ing incidentally to defeat the plaintiff's rights. This branch of the subject is closely connected with that of proceedings supple- mentary to execution, as hereafter to be considered : and the powers here conferred, when exercised, give to those provisions a species of retrospective effect, by restraining, pendente lite, any disposition of the defendant's property, which might tend to de- feat the remedy sought for by the suit, when ultimately obtained. § 90. Preliminary Injunctions. When granted.'] — Proceeding with the consideration of these remedies, in the order above prescribed, the first which presents itself is the preliminary injunction, applied for at the outset of the suit, and forming part of the relief originally demanded. It will be seen, that one main condition precedent to an application of this nature is, that the plaintiff's title ti relief, and, in parti- cular, to the injunction applied for, should appear by the com- plaint ; unless this be the case, it cannot be granted. Thus, it has been held that an injunction is only obtainable by a plaintiff. A defendant, as defendant, is not competent to move for one, except in the very improbable case of his title to do so appearing by the complaint. His only method of pro- ceeding is to serve a summons and complaint in the nature of a cross-suit, and then proceed therein as plaintiff. Thursby v. Mills, 1 C. R. 83. In Oure v. <'rawford,b How. 293, 1 C. E. (N. S.) 18, the pow- ers of the court under the code, in relation to the granting of injunctions, are asserted in the strongest and widest terms. They now extend, it was held, to the restraining any act which may produce injury to the plaintiff. The provisions of the Revised Statutes, particularly those in Vol. 2, 516, sec. 47, in conflict with these powers, arc repealed by sec. 468. "The inquiry, and the only one, it appears bo me," says the learned Judge, (Ed- monds,) "which, under the Code, can be made, is whether the INJUNCTION. 251 act which is sought to be restrained is lawful or not." The question on that particular case, was, as to the provisions of the Kevised Statutes above referred to, which enact that proceed- ings to remove a tenant, shall not be stayed or suspended, by any writ or order of any court or officer. The conclusion, so come to, was contrary to the expressed opinion of the learned judge himself, in Smith v. Moffat, 1 Barb. 65 ; his confidence in which, he said, remained unshaken, though he held that the law, as there laid down, was repealed by the Co'de. In Wbrdsivorth v. Lyon, however, 5 How. 463, 1 C. E. (N. S.) 163, the decision in Cure v. Crawford was disapproved, and it was held that an injunction cannot be granted under such circum- stances. The act of 3d April, 18-19, gives an appeal, and provides for a stay of proceedings thereon, on cases of this nature, and the remedy of the plaintiff lies under that act, and not by in- junction. The doctrines as to repeal of the provisions of the Revised Statutes, as laid down in the same case, were also con- troverted, and Smith v. Moffat maintained to be still good law, as well under the Code as under the former practice. These views are also enounced by Roosevelt, J., in Hyatt v. Burr, 8 How. 168. In Capet v. Parker, 3 Sandf. 662, 1 C. E. (N.S.) 90, the doctrine in Cure v. Crawford is supported, though in modified terms. It was held that, where the objection lies to the jurisdiction of the j ustice to proceed in the matter, or where fraud is shown, (see Jones v. Stuyvesant, note, 3 Sandf. 665,) an injunction may be granted ; the same view being held as in Cure v. Crawford, as to the virtual repeal of the section immediately in question. In Forrester v. Wilson, 1 Duer, 624, 11 L. O. 124, it was also held, that the court possessed the power of relieving a tenant, on equitable terms, where the warrant had been obtained by surprise. The payment of the rent due was there made a con- dition precedent, and the general ground taken was, that, as the magistrate, by the issuing of the warrant, was functus officio, the plaintiff, unless by the interposition of a Court of Equity, would be remediless. The two last decisions rest upon very strong grounds, and, if a proper distinction be drawn, they seem reconcilable with those previously cited. The general ground taken in Cure v. Craw- ford appears too broad. That the higher courts are still prohi- bited from interfering in this class of cases, under ordinary cir- cumstances, and within the limits of the ordinary jurisdiction of 252 INJUNCTION. the j ustice, seems to be the preferable view, so long as that jurisdiction is duly exercised. But, where the jurisdiction itself is questioned, or where fraud or surprise is shown, the general language of the Code, embracing all acts, without distinction, the commission of which would produce injury, may be fairly held to repeal pro tanto the positive prohibition before noticed. In Corning v. The Troy Iron and Nail Factory, 6 How. 89, 1 C. E. (N. S.) 405, the unlimited doctrine in relation to the pow- ers of the court, as laid down in Cure v. Crawford, is disapproved, and it was held that the law in relation to injunction is not mate- rially changed. It is not enough for a plaintiff, on a motion for a temporary injunction, to show that the continuance of the acts complained of, will do him an injury ; he must also show, that he will be entitled to final relief by injunction. The ques- tion there arose as to the obstruction of a watercourse, which was held to be a case to which the remedy of injunction was applicable, and it was accordingly granted, on modified terms. Similar relief was granted in respect of such an obstruction in Clark v. Mayor of Syracuse, 13 Barb. 32. See as to the right to maintain obstructions in a private watercourse, as protected in Curtis v. Keeler, 14 Barb. 511. An injunction will not be granted, unless it be shown that the plaintiff has some interest in the premises; and that the defendant is wrongfully in possession, and is committing actual injury. Smith v. Reno, G How. 124 ; ICE. (N. S.) 405. So, where the party has a sufficient remedy in an action for trespass, and it does not appear that the injury is irreparable, an injunction ought not to be granted. Livingston v. The Hud- son River Railroad Company, 3 C. E. 143. It will not be granted to restrain acts, in respect of which no final judgment is prayed. A temporary injunction, to restrain a defendant from committing trespasses in premises adjoining those which were the actual subject of the suit, was accordingly refused, on those grounds, in llulce v. Thompson, 8 How. 475. the same principle, as laid down in Corning v. The Troy Iron and. Xe proper to discharge the attachment, be- cause it. OOuld be "I' n<> avail to the plaintiff, unless the defend- ant voluntarily appeared. This defect is cured by the last amendment, under which, service by publication is now admis- ATTACHMENT. 279 siblc in all cases. Where, however, such an order cannot be obtained, and yet personal service cannot be made, the princi- ple here laid down might apply ; and, after a reasonable time allowed, an attachment, unaccompanied or not followed up by service of the summons, might be held to be no. longer main- tainable. The issuing of an attachment is a sufficient commencement of a suit, for the purpose of conferring jurisdiction, and an action, so commenced, will not be defeated by the subsequent death of the defendant, before the expiration of an order for publication, but may be continued against his representatives. Moore v. Thayer, 10 Barb. 258 ; 6 How. 47 ; 3 C. E. 176. See the same doctrine confirmed, and a creditors' lien under an attachment sustained ; though subsequent irregularities were alleged, but which the court held must be taken advantage of by motion, and could not be attacked collaterally. Burkhardtv. Sanford, 7 How. 329. See, likewise, Mills v. Corbett, 8 How. 500 ; Thomp- son v. Dickerson, 12 Barb. 108; In re Grisiuold, 13 Barb. 412. For this last purpose, the regularity of the attachment is not a jurisdictional question. The issuing that process is not a com- mencement of the action, so far as regards ulterior proceedings therein, but merely a provisional remedy. Against Foreign Corporations .] — The powers of the court in this respect are limited by the provisions of sec. 427. Where, therefore, both plaintiff and defendant were foreign corporations, and the cause of action arose and its subject remained else- where, an attachment was held not to be maintainable. Western Bank v. City Bank of Columbus, 7 How. 238. See, likewise, Eggleston v. Orange and Alexandria Railroad Company, 1 C. E. (N. S.) 212. Against Non-resident Debtors.'] — The cases on this subject are more numerous, and involve a greater variety of questions. Actual non-residence, without regard to the domicil of the debtor, is what is contemplated by the statute. Where, there- fore, a debtor went to a foreign state, and remained absent for three years, he was held to be a non-resident within the mean- ing of the statute, though he had all the time intended to return to the country. Haggart v. Morgan, 4 Sandf. 198, affirmed by the Court of Appeals, 1 Seld. 423. See, likewise, a similar dis- 280 ATTACHMENT. tinction between residence and domicil, as drawn in Bartlett v. The Mayor of New York, 5 Sandf. 44. See, also, Clason v. Corley, 5 Sandf. 454. "Where a party, originally a resident in the State, had after- wards emigrated to Indiana, and, having returned, was living in his father-in-law's family in New York, looking out for an opportunity to get into business, but as yet undetermined where he should finally settle ; the court, both at special and in gene- ral term, decided that he was a non-resident within the meaning of the foregoing section, and refused to discharge an attachment issued against his property. Burrows v. Miller, 4 How. 349. The question of non-residence has been already considered under the head of Service by Publication, sec. 45. See that section and the analagous cases there cited. See, also, the pre- vious division of the present section in relation to an action by one non-resident corporation against another. See, likewise, the case of Rosenfield v. Howard, 15 Barb. 546, cited in the next division of this section. An attachment against partnership property, was held to have been regularly issued as against non-resident partners, although one of the members of the firm was resident within the State, and had been there served with process. Brewster v. Honigshurger, 2 C. R. 50. In BmxI v. Walker, 12 Barb. 298 ; 1 C. R. (N. S.) 329, an attachment issued against a non-resident partner was likewise maintained. The same was done by the Superior Court in Anon., 1 Duer, 662, it being further held that, where that court had once ac- quired jurisdiction of the suit, by service on the resident part- ner, its powers in relation to the property of non-residents were the same as those of the Supreme Court. Though issuable, the effect of such an attachment is however limited, and will only be good as against the interests of the absent partner. Partnership property, in the hands of those win) are resident, cannot be seized under it. It is only the individual interest which is liable to seizure. Stoutenburgh v. Vanderiburgh, 7 How. 22!); Sears v. Gcarn, 7 How. 383. See, likewise, Travis v. ZbWew, 7 How. 90. This remedy cannot cither be maintained against the property of a joint debtor, who has not been served with process, in pro- ceedings against him as a joint debtor, founded on a judgment ATTACHMENT. 281 obtained against the partnership, by service on another of its members. An action must, in such case, be duly commenced against him personally, grounded on a proper statement of the circumstances, and not on the judgment alone. Oakley v. Aspin- wall, 4 Comst. 513. See, also, 10 L. 0. 79, 1 Duer, 1. .In relation to a statement as to a departure from the State, made on mistaken grounds, see Gilbert v. Tompkins, 1 C. E. (N. S.) 12, cited under the next division of this section. Against absconding or concealed Debtors.'] — In Morgan v. Avery, 7 Barb. 656, 2 C. E. 91, affirmed on appeal, 2 C. E. 121, the law as to the statements, which will suffice to establish that the defendant has departed with intent to defraud his creditors, or to avoid service of a summons, is laid down as follows. It is not necessary that such departure should have been made by the defendant secretly, as under the Eevised Statutes: "If he have departed ever so openly, it will be enough, if the re- quired intent is made out." After stating the facts of the case, which showed that such departure, in that instance, was not secret, but was nevertheless made under circumstances of con- siderable embarrassment, and some suspicion, the learned judge proceeds as follows: "I repeat that no imputation of an intent to defraud his creditors necessarily follows from the facts of the case, nor is it necessary to cast any such imputation, in order to sustain the attachment." "'If, finding himself irretrievably involved, so that his failure must soon happen, he has desired to be out of the way of his creditors at the time it should happen, although he had left all his property behind him, and although he was desiring to get into other business, whereby he might ultimately retrieve his affairs, the inference may very properly be drawn, that he de- parted the State with intent to avoid the service of a summons. Such, at all events, seems to me to be the highest probability in this case, and I cannot, therefore, feel myself warranted in setting aside the attachment as improvidently issued." In the Superior Court, however, a more restricted view is taken as to the propriety of granting this species of remedy, and, under very similar circumstances to those reported in Morgan v. Avery, an attachment has been refused,- but an order for service by publication granted, on an application for both remedies on the same affidavits. In Camman v. Tompkins, 1 C. E. (N. S.) 12, the law on the 282 ATTACHMENT. subject of concealment of a defendant, is laid down in extenso. The defendant, in that case, after his insolvency became mani- fest, had remained out of the way a few hours, until he had succeeded in completing a disposition of his property without molestation from his creditors, and then returned to his house, and delivered himself up to an officer who held a warrant to arrest him. The learned judge held that this was a sufficient concealment to bring the case within the provisions of this chapter. "It is not necessary that a summons should have issued, and an ineffectual attempt to serve it made. It was enough, if the party intentionally so disposed of himself, that one could not have been served." "It is concealment, to avoid the service of process, no matter whether for an hour, a day, or a week ; no matter whether with a view to defraud credit- ors, or merely to have time to make a disposition, lawful or otherwise, of his property, before his creditors got at him. It is placing himself designedly, so that his creditors cannot reach him with process ; and that, it seems to me, is clearly the con- cealment which the statute contemplates." In Genin v. Tompkins, 12 Barb. 265, the above doctrine was sustained to the full extent by the general term, on appeal from the foregoing and two other collateral decisions. In Gilbert v. Tompkins, 1 C. R. (N. S.) p. 16, where the plaintiffs had,*in their affidavits, stated the facts on which they applied for an attachment, but had drawn a wrong conclusion from those facts, inferring that the defendant had departed the State, whereas he had actually concealed himself within it, the attachment issued on those affidavits was sustained, as being warranted by the facts themselves, without the inference. In Rosenfield v. Howard, 15 Barb. 546, an affidavit, of a simi- lar nature to the above, was held to be a sufficient statement to authorize the issuing of a justices' attachment, on the ground of an intended fraudulent disposal of property, and to prevent a reversal of his proceedings for insufficiency of proof. 1" relation to the averments which would or would not have been Buflicienl to warrant the issuing of an attachment, on si- milar grounds, under the Revised Statutes,' sec Castellanos v. Jones, 1 Seld. Mil. § 98. Form of Affidavit. The skeleton form of an affidavit on which to ground an ap- plication for an attachment, will be found in the Appendix. ATTACHMENT. 283 The statement of facts will, of course, vary according to the circumstances. It must be clearly shown upon such affidavit, 1st. That a cause of action exists, specifying the amount and grounds of claim ; and 2d. That the defendant comes within some one or more of the different categories pointed out in sec. 229. The chapter on summons, and the cases there cited in relation to the analogous remedy of service by publication, may be advantageously referred to, as regards the preparation of these affidavits. Of course the utmost care must be taken, and the terms of the statute must be throughout strictly complied with, or jurisdiction will not be conferred. A mere allegation in the words of the statute will not suffice ; facts must be stated in all cases. See Frost v. Willard, 9 Barb. 440, and other cases to that effect, cited in the preceding chapters. In Conldin v. Dutcher, 5 How. 386, 1 C. E. (N. S.) 49, it was, however, held to be the rule that, "if enough is set forth in the affidavit, to call upon the officer for the exercise of his judg- ment upon' the weight and importance of the evidence, it is suf- ficient. It is only where there is a total want of evidence upon some essential point, that the officer will fail to acquire juris- diction. (4 Hill, 602 ; 20 Wendell, 77.)" See similar principles laid down with reference to a justice's attachment, in Rosen field v. Howard, 15 Barb. 546. Where, however, the affidavits were clearly insufficient to bring the case within the terms of the statute, an attachment issued under the Revised Statutes was held to be void, and to be no protection to an officer acting under it. Castellanos v. Jones, 1 Seld. 164. See, also, Staples v. Fairchild, 3 Comst. 41, and Payne v. Young, below cited. Where the application is made to a court of limited juris- diction, the facts necessary to confer that jurisdiction must be affirmatively shown, by special allegation, and not by inference only. Where therefore an attachment of the nature last alluded to had been issued against a non-resident defendant, and the plaintiffs, though described in the petition, as " of the City of New York," were not affirmatively alleged in the petition itself, or by affidavit, to be residents, it was held that jurisdiction was not conferred, and that the proceedings were void. Payne v. Young, Court of Appeals, 12th April, 1853. The sufficiency of the affidavits on which an attachment is issued under the Code is not, however, a jurisdictional question, 284 ATTACHMENT. so as to enable its regularity to be impeached in a collateral proceeding. In Re Griswold, 13 Barb. 412. See also Morgan v. Avery, above cited and there referred to. See, likewise, Burkhardt v. Sanford, Mills v. Gorbett, and Thompson v. Dicker- son, noticed in the previous section. In St. Amant v. De Beixcedon, 3 Sandf. 703, 1 C. R. (N. S.) 104, the general requisites of the affidavit on which an attach- ment may be obtained, are thus stated by the general term of the Superior Court: "We consider it proper, in a remedy of so grave a character as this ; the attachment, in effect, tying up the entire property of a party pending a suit ; that the affidavit upon which the proceeding is authorized, should be explicit, and made in general upon positive knowledge of the deponents, so far as to establish a, prima facie case. In general, there is no difficulty in obtaining the affidavits of the persons who give the information on which the plaintiff desires to proceed ; and, when such affidavits cannot be obtained, from the peculiar cir- cumstances of the case, those circumstances must be stated, with all the grounds of suspicion, so as to satisfy the judge that the facts exist on which the attachment is sought, and that the plaintiff has produced the best evidence in his power to establish them." In Camman v. Tompkins, 1 C. R. (N. S.) 12, and Gilbert v. Tompkins, 1 C. R (N. S.) 16, the same principle is thus laid down: that "The grounds of the belief of the party must be set out, so that the judge who issues the warrant may have such belief, and the court may be able to determine whether it be well grounded." If, too, sufficient facts are stated, an erroneous inference drawn from them, as to the precise complexion of those facts, will not vitiate the proceeding. Gilbert v. Tompkins, above noticed. See this subject fully considered, and various cases cited, (establishing the same principles as to the statements on which the belief of the party must be based, in order to an affidavit of that nature being receivable,) in the previous chapters of this portion of the work, under the analogous headfl of Arrest and Injunction. § 99. Security o?i Application, The plaintiff must also be prepared with security at the time of such application, under Bee. 230, as under: ATTACHMENT. 285 § 230. Before issuing the warrant, the judge shall require a writ- ten undertaking on the part of the plaintiff, with sufficient surety, to the effect, that, if the defendant recover judgment, the plaintiff will pa)' all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars. The form of this undertaking will be found in the Appendix. It will be good, even if made in the form of a penal bond, pro- vided it contain the conditions here required, and be otherwise regular; and any mere formal defects will be cured by amend- ment. Conklin v. Butcher, 5 How. 386, 1 C. K. (N. S.) 49. § 100. Warrant of Attachment. The affidavits and security being prepared, application should be made to a judge, or county judge, as above prescribed, for a warrant of attachment. The form of this document is pre- scribed by sec. 231, as follows: § 2S1. The warrant .shall be directed to the sheriff of any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county, or so much thereof as maybe sufficient to satisfy the plaintiff's demand, together with costs and expenses ; the amount of which must be stated in conformity with the complaint, together with costs and expenses. Several warrants may be issued at the same time, to the sheriffs of different counties. See Appendix for form. In Camman v. Tompkins, 1 C. R (1ST. S.) 12, it was held that the warrant is process in the progress of the cause, and must, as such, be issued in the ordinary form, and under the seal of the court. In Oenin v. Tompkins, however, 12 Barb. 265, this view was overruled by the general term of the same court, in the same and other cases, and it was held, that the signature of the judge is all that is necessary; that a formal teste, the signature of the clerk, and the seal of the court, are not requisite ; but that the signature of the plaintiff's attorney ought to be re- quired. It was also held, that no return-day need be inserted in the warrant. If more than one warrant is required, dupli- 286 ATTACHMENT. cates should be prepared, and the judge's signature obtained thereto. The warrant, when obtained, must be lodged with the sheriff of the county, the affidavits on which it was issued being filed with the clerk of the court. It is important that the former should be done with all speed, where real estate is sought to be seized, the priority of the liens, on the same property, being determined by the order in which they are lodged with the sheriff. See Learned v. Vandenburgh, below cited. § 101. Sheriff's Proceedings on Warrant. The duties of the sheriff thereon, are thus prescribed by sees. 232 to 236, inclusive : § 232. The sheriff, to whom such warrant of attachment is directed and delivered, shall proceed thereon, in all respects, in the manner lectured of him by law, in case of attachments against absent debtors ; shall make and return an inventory, and shall keep the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in such action ; and shall, subject to the direction of the court or judge, collect and receive into his posses- sion, all debts, credits, and effects of the defendant. The sheriff may also take such legal proceedings, either in his own name, or in the name of such defendant, as may be necessary for that purpose, and discon- tinue the same, at such times, and on such terms, as the court or judge may direct. § 233. If any property so seized shall be perishable, or if any part of it be claimed by any other person than such defendant, or if any part of it consist of a vessel, or of any share or interest therein, the same proceedings shall be had in all respects, as are provided by law upon attachments against absent debtors. § 234. The rights or shares which such defendant may have in the stock of any association, or corporation, together with the interest and profits thereon, and all other property, in this State, of such de- fendant, shall be liable to be attached and levied upon, and sold to fy tin- judgment and execution. i Tin' execution of the attachment upon Bny such rights, shares, or any debts or other properly' incapable of manual delivery to the sheriff, shall In; made by leaving a certified copy of the warrant of at- tachment, with the president or other head of the association or cor- poration, oi- tin: sic, liny, cashier, or managing agent thereof, or with th<- debtor or individual holding such property, with a notice showing the property levied on. ATTACHMENT. 287 § 236. Whenever the sheriff shall, with a warrant of attachment, or execution against the defendant, apply to such officer, debtor, or indivi- dual, for the purpose of attaching or levying upon such property, such officer, debtor, or individual, shall furnish him with a certificate, under his hand, designating the number of rights or shares of the defendant in the stock of such association, or corporation, with any dividend, or any incumbrance thereon, or the amount and description of the property held by such association, corporation, or individual, for the benefit of, or debt owing to, the defendant. If such officer, debtor, or individual refuse to do so. he may be required by the court or judge to attend before him, and be examined on oath concerning the same, and obedience to such orders may be enforced by attachment. The statutory provisions, under the law in cases of attach- ment against absent debtors, will be found as above, at 2 K S. 1 to 16, inclusive. See also the works on the old practice, in relation to the proceedings under these provisions, which are essentially the same as those under the Revised Statutes, with this exception, that the machinery of trustees, as thereby pro- vided, is now swept ajvay, and the sheriff alone acts in the matter. Where legal proceedings may be necessary, under the provi- sions of sec. 232, the same may be prosecuted by the plaintiff himself, if thought advisable, under the following power, con- ferred by sec. 238 : § 238. The actions herein authorized to be brought by the sheriff, may be prosecuted by the plaintiff, or under his direction, upon the delivery by him, to the sheriff, of an undertaking executed by two suf- ficient sureties, to the effect that the plaintiff will indemnify the sheriff from all damages, costs, and expenses on account thereof, not exceed- ing two hundred and fifty dollars in any one action. Such sureties shall, in all cases, when required by the sheriff, justify, by making affidavit, that each is a householder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities. The sheriff, having thus seized upon all the available property of the defendant, holds it in deposit, to abide the event of the suit, the plaintiff's lien taking precedence of any subsequent process lodged with him. If the sheriff, knowing that the defendant has sufficient pro- perty to satisfy the debt, at the time the attachment is placed in his hands, neglect to make a sufficient lev} r for that purpose, he 288 ATTACHMENT. will be liable in an action for the deficiency. Ransom v. Halcott, 9 How. 119. An equitable interest, vested in defendants, was liable to be seized under an attachment, under the act of 1812, and doubt- less is so under the Code ; nor need a mere trustee for the parties to whom such equitable interest belongs, be served with a copy of the attachment, as required by the former measure. Wright v. Douglas, Court of Appeals, 12th April, 1853, reversing the judgment of the Supreme Court to the contrary effect. In Frost v. Willardj 9 Barb. 410, an attachment, issued against goods in the hands of third parties, who had a claim to property in part thereof, and a lien on the remainder for ad- vances, was held to have been bad as against those parties, and that they were entitled to recover, to the full extent of their lien. In Learned v. Vandenburgh, 7 How. 879, the question as to the lien of attachments is fully considered, and it was held, that, as under an execution, a seizure of personal property, to be valid, must be accompanied by possession ; but the mere return of the sheriff is enough to secure the lien on the land, though the filing of a notice of Lis Pendens was considered as necessary, to make that lien available against bona fide purchases and incumbrances. It is likewise held that, on the question, whether or not property had been attached, the sheriff's return is conclusive ; and also that, when several attachments had been served on the same property, the priority of their respective liens must be deter- mined by the order in which they were delivered to the sheriff. This decision was affirmed by the General Term on appeal. See Learned v. Vandenburgh, 8 How. 77. An attachment against goods owned by absent debtors, and shipped, as directed, by them, but for which a bill of lading had not yet been given to the shippers, was held to be bad, on the ground that the right of possession had not yet passed from the shipper to the debtor in question. Jones v. Bradner, 10 Barb. The lien of a justice's attachment, in a constable's hands, was decided to hold good against surplus moneys on the sale of pro- perty, under a prior exection ; and that such surplus moneys might 1"' levied on, under a subsequent execution, under judg- ment in that suit. Wheeler v. Smith, II Barb. 845. An attachment against a non-resident partner, only holds ATTACHMENT. 289 good as regards his separate interest. Partnership property cannot be seized under it, and, if seized, will be ordered to be restored. Sears v. Gearn, 7 How. 383 ; Stoutenburgh v. Van- denburgh, 7 How. 229 ; Oakley v. Aspimvall, 4 Comst. 513 ; 10 L. 0. 79 ; 1 Duer, 1 ; and Travis v. Tobias, 7 How. 90, above cited or referred to. § 102. Discharge of Attachment on giving Security. It is, however, competent for the defendant, at any period during the pendency of the action, to appear and apply for a discharge of the attachment, on giving security to the plaintiff. The provisions of the Code, in this respect, are contained in sec- tions 240 and 241, which run as follows : § 240. Whenever the defendant shall have appeared in such action, he may apply to the officer who issued the attachment, or to the court, for an order to discharge the same ; and, if the same be granted, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered or paid by him to the defendant, or his agent, and released from the attachment. § 241. Upon such an application, the defendant shall deliver to the court or officer an undertaking, executed by at least two sureties, resi- dent and freeholders in this State, approved by such court or officer, to the effect that the sureties will, on demand, pay to the plaintiff the amount of the judgment that may be recovered against the defendant, in the action, not exceeding the sum specified in the undertaking, which, shall be, at least, double the amount claimed by plaintiff in his comr plaint. The application for this purpose must be made on the usual notice, and a copy of the undertaking should be served with the notice or order to show cause. Where, however, the attachment has been obtained upon a false statement, it seems the court will not require the security here prescribed, on moving to discharge it. Killian v. Wash- ington, 2 C. K. 78. The attachment had there been obtained on the ground of non-residence, and the defendant applied to dis- charge it, on the ground that he was, in fact, a resident, under which circumstances, the court ordered a reference, under sub- division 3 of section 271, to ascertain the fact, without requiring, any undertaking to be given. 19 290 ATTACHMENT. By giving security as above prescribed, the defendant will necessarily waive any power he might otherwise possess, of moving to set aside the plaintiff's proceedings, on the ground of irregularity. See observations below on that subject, and the cases of Haggart v. Morgan, and Cole v. Kerr, there cited. This point should, therefore, be looked to, and the moving papers carefully inspected, with that view, before any decided step is taken. On Motion for Irregularity.'] — Though not specially provided for by the Code, a motion on this ground is clearly maintain- able, though considerable discussion has arisen as to the form of the motion, and the nature of the evidence, which will be admitted in support or opposition to it. In Conklin v. Butcher, 5 How. 886, 1 C. K. (N". S.) 49, it was held by the General Term of the Sixth District, that additional affidavits cannot be read on either side, on a motion to set aside an attachment. It cannot be set aside at special term, except for irregularity ab initio. The defendant. has only "two modes of getting rid of it, where it has been improvidently granted: 1. By applying to the judge to vacate his own order, sec. 324. 2. By appeal to the General Term, under sec. 349, subdivision 1. But, in neither mode, can opposing affidavits be used by the defendant, nor can additional affidavits be used by the plaintiff. In this case, the defendant has pursued neither of these modes, and is without remedy." "The Code, in allowing the process," says the learned judge in a previous part of his decision, "evidently intended it in the nature of bail, and the defendant can, at any time before final judgment, get the property discharged, by giving an under- taking for the payment of any judgment which may be reco- vered • sec. 240, 241. The entire omission of any other mode of discharging the attachment, is quite conclusive that the legis- lature did not intend that conflicting affidavits should be received for that purpose, especially us the legislature carefully provide for the reception of such affidavits, in two of the provisional remedies in this sunn; Code-;" and sees. 204 and 205, relative to arrest, and 226 and 228, to injunction, are then cited. The views above taken are supported by-Bbrm, J., in White v /•).,//,. rstonhaugh, 7 How. 357, and likewise in Bank of Law iburgh v. Mckie, 7 How. 300; and it was held that additional ATTACHMENT. 291 affidavits could not be used on a motion to vacate, on the ground that the issuing of an attachment falls within the definition of an order, and, as such, is not reviewable on the merits, by another judge, but only by appeal, or by application to the judge who issued it to vacate his own order. This view seems, however, to be too restricted, especially as regards the review by appeal ; the point as to whether an attach- ment, considered as an order, could be reviewed at all on the merits, on appeal, seeming to be altogether lost sight of. The issuing of an attachment is a matter entirely resting in the dis- cretion of the court, and, as such, is scarcely a proper subject of an appeal, except in cases of palpable error. The carrying out the above doctrine, to the extent laid down in the foregoing cases, would, in fact, involve a denial to a defendant of all power to contradict a 'prima facie case, made out by a plaintiff, however clear the oppression on him might be, on the whole of the facts, when brought out. In the first district, the contrary proposition is strenuously supported. The first of the cases on this side of the question is Morgan v. Avery, 7 Barb. 656 ; 2 C. K. 91 ; affirmed on appeal, 2 C. R. 121 ; and therefore standing, as authority, on equal rank with Conklin v. ..Dutcher. The power of the special term to entertain a motion testing the propriety of issuing an attachment, is distinctly asserted ; and it is as dis- tinctly held that, on such an application, the plaintiff will be allowed to introduce additional affidavits, and that, not merely in answer to those of the defendant, but also in support of the original attachment; this view being grounded on the fact, that attachment is in the nature of process, and is, as such, control- lable by the court in all respects. In Cam-man v. Tompkins, and Gilbert v. Tompkins, 1 C. R. (N. S.) 12 and 16, the same conclusion is maintained, and it was distinctly held that, where the defendant moves to discharge the attachment on affidavits, counter affidavits may be used by the plaintiff to support his case. " It is only when such a motion is made on the original affidavits alone, that the plaintiff is pre- cluded from strengthening his case by amendments or additions." These cases, and the principles laid down, are also affirmed by the general term of the same district, in Genin v. Tompkins, 12 Barb. 265. In St. Amant v. Beixcedon, 3 Sandf. 703, 1 C. R. (N. S.) 104, the general term of the Superior Court fully confirmed the 292 ATTACHMENT. authority of Morgan v. Avery on these points, and stated, that "they entertain no doubt as to the right to introduce supple- mental affidavits. The cases under the Code are different from those which have arisen under the Kevised Statutes, where the jurisdiction of the court depended upon the facts set out upon the affidavits upon which the warrant was granted." The weight of authority tends therefore decidedly in favor of this conclu. sion. The principle here laid down does not extend, however, to a case in which, on the original affidavits, the attachment was void for want of jurisdiction. Under these circumstances, the plaintiff cannot be allowed to introduce evidence in reply to the defendant's affidavits, on a motion to vacate, in order to make out a new case, showing that sufficient grounds existed at the time of the issuing, but which did not appear on the original papers. Granger v. Schwartz, 11 L. 0. 31-6. As regards the defendant's power to move, on affidavits dis- proving the plaintiff's original statement, the same case is another decided authority in favor of the views last considered. Killian v. Washington, 2 C. R. 78, before noticed, is also a decision to the same effect. In that case, and also in Granger v. Schwartz, evi- dence of residence was admitted, in order to vacate an attachment issued on the ground of non-residence. Various cases, in which attachments have been vacated on different special grounds, will be found cited in the previous portions of the present chapter, as Travis v. Tobias, Stoutenburgh V. Vandenburgh, Sears v. Gearn, and Oakley v. Aspimvall, in relation to resident joint debtors; The Western Bank v. The City Bank of Columbus, and Eggleston v. Orange and Alex- andria ttullroad Company, as to non-resident corporations; Granger v. Schwartz, Fisher v. Curtis, Perry v. Montgomery, Cole v. Kerr, and Payne v. Young, as to attachments in courts of limited jurisdiction; Gastellanos v. Jones, Staples v.Fairchild, Payne v. )'""/'.'/, ami 'Jones v. Bradner, as to attachments, void for insufficiency of original allegations. An attachment cannot be impeached in a collateral proceed- ing. See Burkhardi v. Sanford, Mills v. Corbtlt, Thompson v. JKckerson, In Bt Griawold, and Morgan v. Avery, above noticed. A fatal objection t<> the original issuing of an attachment will POt be eure'l by an appearance "ii the part of the defendant. It will still be competent for him to appearand move to vacate on ATTACHMENT. 293 a proper case shown. See Granger v. Schwartz, 11 L. O. 846, above cited. As regards general jurisdiction in the suit, however, an appearance, as after noticed under that head, will be a com- plete waiver. See Watson v. Cabot Bank, 5 Sandf. 423, and other cases there cited. The giving of security, as provided by sees. 240 and 241, above cited, will, on the contrary, be a complete bar to any subsequent motion on the ground of irregularity. See Haggart v. Morgan, 4 Sandf. 198, 1 Seld. 422 ; Cole v. Kerr, 2 Sandf. 661. See, also, various cases to the same effect cited on the analogous subject of Arrest and Bail, in the first chapter of the present book. Result of Application^ — In case such an application be made and granted, the defendant becomes, of course, entitled to the return of the property, on the order discharging the attach- ment being entered, and served upon the sheriff in the usual manner. If the application fail, or if none be made, the case then comes on for trial in the usual course. § 103. Effect of Judgment, if in favor of Defendant. If the plaintiff fail in the action, and the defendant recover judgment against him, the course to be pursued by the latter is thus pointed out by sec. 239 : § 239. If the foreign corporation, or absent, or absconding, or con- cealed defendant, recover judgment against the plaintiff in such action, any bond taken by the sheriff, except such as are mentioned in the last section, all the proceeds of sales and mone} r s collected by him, and all the property attached remaining in his hands, shall be delivered by him to the defendant or his agent on request, and the warrant shall be dis- charged, and the property released therefrom. The defendant may, too, under these circumstances, be enti- tled to prosecute a claim for damages against the plaintiff, and his sureties, under the undertaking prescribed in sec. 230, by action on such undertaking in the usual manner. If in favor of Plaintiff.'] — If, on the contrary, judgment be recovered by the plaintiff, the sheriff's course thereupon is thus prescribed by sec. 237 : 294 ATTACHMENT. § 237. In case judgment be entered for the plaintiff in such action, the sheriff shall satisfy the same out of the property attached by him, if it shall be sufficient for that purpose. 1. By paying over to such plaintiff the proceeds of all sales of per- ishable property, and of any vessel, or share or interest in any vessel sold by him, or of any debts or credits collected by him, or so much as shall be necessary to satisfy such judgment. 2. If any balance remain due, and an execution shall have been issued on such judgment, he shall proceed to sell under such execution, so much of the attached property, real or personal, except as provided in subdivision four of this section, as may be necessary to satisfy the balance, if enough for that purpose shall remain in his hands ; and in case of the sale of any rights or shares in the stock of a corporate asso- ciation, the sheriff shall execute to the purchaser a certificate of sale thereof, and the purchaser shall thereupon have all the rights and pri- vileges in respect thereto, which were had by such defendant. 3. If any of the attached property belonging to the defendant shall have passed out of the hands of the sheriff without having been sold or converted into money, such sheriff shall re-possess himself of the same, and, for that purpose, shall have all the authority which he had to seize the same under the attachment ; and any person who shall wilfully con- ceal or withhold such property from the sheriff, shall be liable to double damages at the suit of the party injured. 4. Until the judgment against the defendant shall be paid, the sheriff may proceed to collect the notes, and other evidences of debt, and the debts that may have been seized or attached under the warrant of attach- ment, and to prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment. When the judgment and all costs of the proceeding shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the de- fendant, the residue of the attached property or the proceeds thereof. For the purpose of authorizing the sheriff to proceed as above, an execution should be lodged in his hands in the usual manner. It. was considered in Keyser v. Waterbwry, 3 C. R 233, that, as BOOD as an execution is so lodged, the attachment is virtually at an end; but this seems clearly inconsistent with the special directions in sec 2:}7. In Hanson v. Triple^ 8 Sandf. 7:;:;, 1 0. R. (N. S.) 154, it was held that an attachment, and supplementary proceedings on execution, might be carried on at the same time, in the same ATTACHMENT. 295 case, subject to the questions as to the relative rights of the par- ties, being settled in an action by a receiver under those pro- ceedings, in the event of a conflict arising. Question as to Rights of other Creditors.'] — In Fraser v. Green- hill, 3 C. E. 172, the powers of the court on the above subject are stretched to their utmost limit, it being held that, where an attachment has been issued, any other creditor of the same party may come in, and seek to be made co-defendant in the suit. " A complete determination of the controversy, with respect to the fund which is in court by virtue of the attach- ment, cannot," said the learned judge, "be had without the presence of the subsequent creditors, and those creditors claim and have an interest in the whole controversy, involved in the suit brought by the prior creditors," on which grounds he granted the order, under sec. 122. This decision really seems to amount to a practical repeal of the peculiar provisions of the Code, under which this proceed- ing is one for the exclusive benefit of the attaching creditor ; and to a complete practical restoration of the machinery of the proceeding under the Eevised Statutes, which was one for the benefit of creditors in general. The law, as thus laid down, seems also open to most serious objection, on the following grounds: The claims of subsequent creditors, are totally beside the controversy between the parties before the court. Any ques- tion on that subject is purely incidental, and has nothing to do with the rights, either of the plaintiff, or the defendant, as be- tween themselves. That controversy can be determined with- out bringing other parties in, and surely it seems a great hard- ship on a plaintiff to encumber his suit with unnecessary par- ties, either seeking to raise collateral issues, manifestly prejudi- cial to the rights he has obtained, by his superior diligence ; or fighting about a surplus, to which no one can have any claim whatever, until he have been first paid his debt and costs in full. To leave the subsequent creditors to their remedy as against the sheriff, and to the independent assertion of their rights as between each other, seems far more consonant to sound principles and sound practice ; and a proceeding in the nature of interpleader, would afford at once, indemnity to the sheriff, and satisfaction to the parties, without encumbering the case of 296 ATTACHMENT. the original suitor with controversies with which he has no con- cern, and difficulties, from which his superior diligence ought property to have afforded him protection, and was evidently meant to do so by the legislature. See general principles, as to a plaintiff's right to proceed, without impediment by reason of discussions between co-defendants, as laid down in Woodworth v. Bellows, 4 How. 24, 1 C. E. 129. The above views are confirmed by the case of Juddv. Young, 7 How. 79, where it was held that, in an action on contract, ex- press or implied, for the recovery of money, a person interested, cannot claim to be brought in as a party ; and such claim was there refused, on behalf of parties claiming an interest in a sur- plus in the hands of the defendant. Sec. 122 must, it was there held, be confined to actions for the recovery of real or of speci- fic personal property. The recent case of In Re Coates, 13 Barb. 452, is important, with reference to the ris-hts of non-resident creditors to share O in the proceeds of an attachment issued under the Eevised Sta- tutes, and the adjustment of the dividend under these circum- stances, though, as belonging to the old practice, it does not properly come within the scope of the present chapter. Sheriff"' 's Return, and Fees.'] — The return to be made by the sheriff, and the fees to which he is entitled, are thus provided for by sections 242 and 243 : § 242. When the warrant shall be fully executed or discharged, the sheriff shall return the same, with his proceedings thereon, to the court in which the action was brought. § 243. The sheriff shall be entitled to the same fees and compensa- tion for services, and the same disbursements, under this title, as are allowed by law for like services and disbursements, under the provisions of chapter five, title one, part two, of the Revised Statutes. RECEIVER, ; Vandcrpool v. Van Valken- burgh, 2 Seld. L90; The Chautauque County Hank v. White, 2 Seld. 236, and other decisions there cited. The statute law on the subject of receiverships of the pro- perty of insolvent or dissolved corporations, will be found in articles II- and III. of title IV., chap. VII., part III. of the Revised Statutes, 2 EL S. 466 to 472. See, also, chap. II., title RECEIVER, the affairs of an insolvent company, Van Buren v. Chenango County \futual Insurance Company, L2 Barb. 671, above cited. In relation to the sale of peal property by a receiver in a creditors' suit, see The Chautaiique County Hunk v. White,'! Seld, A person, standing in this position cannot purchase and hold property, comprised in his receivership, to his own use; a purchase by him, if made, will enure to the benefit of those for whom In- acts, at their election. Jieweti v. Miller, Court of Ap- 80th Dee., 1852. RECEIVER, Ac. 303 Before bringing or defending an action on behalf of the estate, a receiver must apply to and obtain the consent of the court ; and, if he fail to do so, he will be personally liable for the costs. Phelps v. Cole, 3 C. E. 157. In Gouverneur Y.Warner,. 2 Sandf. 624, it was decided that a plaintiff in a creditor's suit, who had obtained a receiver over the defendant's property, could not afterwards levy an alias execution, on personal property covered by such receivership. § 106. Other Remedies. By this section, as it stood in the Code of 1851, all other provisional remedies then existent, were saved. In relation to those remedies, see the works on the old practice. The ques- tions as to the writ of ne exeat have been already considered under the head of Arrest. The writ of supplicavit, it seems, had not ceased to exist as a provisional remedy, under the Code of 1849. Forrest v. Forrest, 5 How. 125 ; 10 Barb. 46. See, likewise, as to the writ of ne exeat, Bushnell v. Bushnell, 7 How. 389, before cited. How far the total omission of this reservation, from the sec- tion as recently amended, may affect the question as to the future existence of the remedies last alluded to ; and what may be the exact import of this provision henceforth, remains to be settled by judicial construction. See this subject heretofore alluded to. The remedies provided by the latter part of the section, in relation to funds or property admitted by a defendant to be iu his possession, and for the making and enforcement of an order for their deposit or delivery ; and likewise those, by which the satisfaction of an admitted portion of a partially disputed claim may be enforced, will hereafter be considered, and the cases cited, under the head of Proceedings on the part of the Plaintiff after Answer, to which reference should be made accordingly. 304 PLEADING, ESSENTIAL REQUISITES. BOOK VI. OF PLEADING, GENERALLY CONSIDERED. CHAPTER I. OF THE ESSENTIAL REQUISITES OF PLEADING. § 107. Abolition of ancient Forms. Of all the radical and searching changes effected by the Code, perhaps the most so, is that in the matter of pleading, the whole fabric of which, in actions of strictly common law cogni- zance, has been swept away in toto, and supplanted by a new system, borrowing its nomenclature, and, in some degree, its general forms, from the former equity practice; but yet, in many respects, independent of the rules by which that practice was governed. The preamble of the Code lays down this intention on the part of the Legislature, in the widest terms, as follows : " Whereas it is expedient, tliat the present forms of actions and pleadings in cases at common law should be abolished ; that the distinc- tion between legal and equitable remedies should no longer continue, and that an uniform course of proceeding, in all cases, should be estab- lished." The immediate controlling agent, by which this change is effected, is jection 69, running as follows: 8 69. The distinction between actions at law and suits in equity ;ind the forma of all Buch actions and suits, heretofore existing, are abolished ; and there shall be in this State, hereafter, but one form of action, for the enforcement or protection of private rights, and the re- of private wrongs which shall be denominated a civil action. PLEADING, ESSENTIAL REQUISITES. 305 By section 140, also, the following provision is made, the phraseology being rendered still stronger and more definite, on the recent amendments : § 140. All the forms of pleading heretofore existing, are abolished ; and, hereafter, the forms of pleading in civil actions, in courts of record, and the rules by which the sufficiency of the pleadings are to be deter- mined, are those prescribed by this act. Although the adoption of a general and uniform system of pleading, in all cases, is a most desirable object, and is, above all others, the grand alteration which it is the express design of the Code to effect; and although the formal distinctions be- tween Common Law and Equity pleadings be, as unquestion- ably they are, abolished by that alteration ; still, such is not, and cannot be the case, with reference to the essential and in- herent distinctions between Law and Equity themselves, as two separate, though connected sciences. As long as the common law, with all its attendant doctrines, remains an existent agent, so long must the essentials of the two systems, as hitherto administered, remain indestructible. The object of the legislature, doubtless, was to blend them into one harmonious and connected whole, as far as practicable, both as to matters of form and matters of substance, and much has been done in this respect ; but, to effect it wholly, was, and, as re- gards the latter especially, must ever remain*, beyond the reach of their powers. § 108. Distinctions between Law and Equity. How far abolished.'] — In abroad and general view, the former distinctions between proceedings at law and proceedings in equity, are doubtless at* an end, according to the intention of the legislature, as expressed in the preamble of the Code, above cited. In Giles v. Lyon, 4 Comst. 600, 1 C. E. (N. S.) 257, the neces- sity of keeping that preamble in view, by those who are called upon to interpret its provisions, is strongly enforced ; and the effect of the provisions above cited, is thus denned: "They," i.e., Law and Equity, "were to be blended and formed into a single system, which should combine the principles peculiar to 20 306 PLEADING, ESSENTIAL REQUISITES. each, and be administered thereafter through the same forms, and under the same appellation." In Grant v. Quick, 5 Sandf. 612, it is held that the distinction between the legal and equitable jurisdiction of all the courts of the State, except in reference to the nature of the relief de- manded, is now abolished, and it was accordingly held that the power of one court to restrain an action in another, has ceased to exist. So, too, in Gardiner v. Oliver Lee's Bank, 11 Barb. 558, it is laid down, at p. 568, that courts of law and equity are now blended together, and held by the same judges. It is decided, however, in the same case, that no new rights of action have been conferred thereby, and that an action which, under the old system, would not have been cognizable by either of the sepa- rate tribunals, cannot be maintained under the new. See, also, Bouton v. The City of Brooklyn, 7 How. 198. See affirmance of last decision, 15 Barb. 375. Similar principles are laid down in Hinman v. Judson, 13 Barb. 629, on the subject of equitable defences ; also, with great force, in the opinion of Parker, J., (p. 422,) in Marquat v. Mar- quat, 7 How. -117, in which he insists most strongly on the ex- pediency of the judiciary cooperating with the legislature, in carrying out the reforms which have been effected : and likewise in Hunt v. The Farmers' Loan and Trust Company, 8 How. 416, and Crary v. Goodman, 9 Barb. 657 ; see, also, Fay v. Grim- steed, 10 Barb. 321 ; Getty v. The Hudson River Railroad Com- pany, 6 How. 269, 10 L. O. 85 : and numerous other cases of ear- lier date might be cited, were it necessary, to maintain the same position. The abolition in question is then clearly effected, in a broad and general point of view, in so far that all distinction between the courts in which the plaintiff is at liberty to seek the remedy the law provides in each particular case, is abolished. An ac- tion, whether legal or equitable in its nature, is commenced by the same form of process; the names, offices, and general scope of the pleadings in that action (apart from matters of detail) are the same in both cases. The remedies heretofore obtain- able by separate suits in different courts, may now, as a gene- ral rule, be combined in the same action ; the proceedings in that action, when commenced, are cognizable by the same judge; and that judge, in cases of a mixed nature, is bound, PLEADING, ESSENTIAL REQUISITES. 307 whenever possible, to adapt the relief granted by him to the principles heretofore administered by two distinct and separate jurisdictions, without giving an undue preference to either. How far Existent.'] — At this point, the intended, and indeed expressed amalgamation of the two systems on the part of the legislature, has of necessity reached its limits, and the essential distinctions between law and equity, and legal and equitable relief, remain undestroyed and indestructible. Distinct and positive assertions of that indestructibility appear, it may be safely said, in every case, in which the matter has been brought seriously under the consideration of the courts throughout the State. In Shaw v. Jayne, 4 How. 119, 2 C. E. 69, the earliest case upon the subject after the passage of the Code, the position above taken is maintained in the clearest and most positive terms. In Knowles v. Gee, 4 How. 317 ; Hill v. McCarthy, 3 C. E. 49 ; Merrifield v. Cooley, 4 How. 272 ; and Floyd v. Dearborn, 2 C. E. 17, it also appears unequivocally. That, although the distinctive forms of action be abolished, the principles which always have governed them still subsist in all their force, is maintained in Hinds v. Myers, 4 How. 356, 3 C. E. 48 ; and McMaster v. Booth, 4 How. 427, 3 C. E. 111. In no case does the general principle come out with greater clearness, than in Linden v. Hepburn, 3 Sandf. 668, 5 How. 188, 3 C. E. 165, 9 L. 0. 80 ; and that clearness is, if possible, still augmented in Burget v. Bissell, 5 How. 192, 3 C. E. 215 ; The Rochester City Bank v. Suydam, 5 How. 216 ; Milliken v. Carey, 5 How. 272, 3 C. E. 250, (a case in which a restricted view of the question is taken in other respects ;) Carpenter v. West, 5 How. 53 ; Howard v. Tiffany, 3 Sandf. 695, 1 C.E. (N. S.) 99 ; and Benedict v. Seymour, 6 How. 298. The same may be said as regards Fraser v. Phelps, 4 Sandf. 682, where it is laid down as follows : "As we have frequently had occasion to say, the Code has not abolished the es- sential distinctions between suits at law and in equity, nor oughi it to be construed as limiting or abridging the powers which, in cases like the present, Courts of Equity have been accustomed to exercise." See, also, Crary v. Goodman, 9 Barb. 657; Dauchy v. Bennett, 7 How. 375 ; Le Roy v. Marshall, 8 How. 373 ; Cook v. Litchfield, 5 Sandf. 330, 10 L. O. 330, affirmed by Court of Appeals, 31st December, 1853; The Merchants? Mutual Insuromat 308 PLEADING, ESSENTIAL REQUISITES. Company of Buffalo v. Eaton, 11 L. 0. 140; Bouton v. The City of Brooklyn, 7 How. 198 ; same case, 15 Barb. 375 ; Spencer v. Wheelock, 11 L. O. 329; Dobson v. Pearce, 1 Duer, 142, 10 L. O. 170 ; not to mention numberless other decisions, in which the same rule has been acted upon in spirit, though not asserted in terms, and which will be found in almost every page of the dif- ferent reports. § 109. Averments of Fact, Principles as to. General Bemarks.~\ — Universal, however, as has been the assent of the judicial body to the general principle as above laid down, very great differences have prevailed amongst them, as to the minor shades of distinction in relation to its reduction into practice ; the mention of which differences introduces, as its necessary consequence, the consideration, in a general point of view, of averments of facts in pleading. The peculiar incidents to each of the different proceedings of complaint, demurrer or answer, and reply, the only modes of pleading now allowable under the Code, will be considered hereafter ; but there are, nevertheless, certain broad and general principles, common to these forms indiscriminately, and which will be now dealt with. The observations about to be made, are, of course, inapplica- ble to the proceeding of demurrer, nor will the question of merely responsive allegations be here treated; the following remarks will, on the contrary, be strictly confined to the gene- ral principles of pleading, which govern averments of the facts necessary to be put in issue, either in support, or in opposition to a claim, and to such averments only. The general principles of the Code, in relation to averments of this nature, whether in complaint, answer, or reply, are, in reality, identical. The complaint must contain "a plain and concise statement of the facts constituting a cause of action, with- out unnecessary repetition." (Sec. 142, sub. 2.) The answer, "a statement of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repe- tition." (Sec 14!), sub. 2.) And the reply " may allege, in ordi- nary and concise language, without repetition, any new matter, not inconsistent with the complaint, constituting a defence to new matter in the answer," by which a counter-claim is pleaded. Sec. 153. PLEADING, ESSENTIAL REQUISITES. 309 The omission, in the present measure, of the additional requi- sites imposed by the Codes of 1848 and 1849, that the averments above alluded to were to be made in " ordinary" language, and " in such a manner as to enable a person of common understand- ing to know what is intended," is significant. Excellent as was the meaning of that provision, to carry it out to its full extent was a matter of the utmost difficulty, if not wholly impracticable J first, because of the consequent necessity of fixing some definite gauge of what is or is not "common understanding;" and, secondly, because of the difficulty of stating a legal cause of action concisely, or even of stating it at all, without the employ- ment of legal terms, involving the consequent, and perhaps still greater difficulty, of making the statement thus framed intelli- gible to a person of "common understanding," ignorant, perhaps, of the very meaning, and, certainly, of the full import of the terms so used. To have given the extended interpretation to the words in question, of which, in strictness, they are capable, might have been the means of introducing a system of averment, so loose, and so illogical, as, in practice, to become almost intolerable; whilst a restricted construction of those words, such as has, in fact, almost universally prevailed, left the question just where the present amendments of the section have now placed it. By such a construction, a necessity of making his pleadings concise, intelligible, and explanatory of the matter really at issue, was practically imposed upon the pleader in all cases, and is now so imposed in terms. The traditionary forms of the old special pleading system are therefore, as already stated, practically abolished. Under certain circumstances, however, and with certain modifications, the sub- stantial wording of those forms may still be used, and used with advantage, especially in actions which, under the former prac- tice, were of purely common law cognizance. Thus in Shaw v. Jayne, 4 How. 119; 2 C. R 69, before cited, the mode of stating a cause of action for false imprisonment, as theretofore in use under the old practice, was held to be all that was necessary. In Dollner v. Gibson, 3 C. R. 153, 9 L. 0. 77, a most decided preference is shown for the emploj^ment of the old-established form of a count for goods sold and delivered. In Leopold v. Poppenheimer, 1 C. R. 39, a complaint for breach of promise of marriage, following the old form of declaration, was declared sufficient, with some slight modifications ; and, in The Stochbridge 310 PLEADING, ESSENTIAL REQUISITES. Iron Company v. Mellen, 5 How. 439, it was considered that a complaint against a common carrier, using the first of the old common law counts, would be good, although all the other counts, the pleader having employed the whole of the old form, were to be stricken out as redundant. See also the same general principle laid down in Howard v. Tiffany, 3 Sandf. 695, 1 C. E. (N. S.) 99; and, likewise, in Root v. Foster, 9 How. 37, and Dows v. Hotclikiss, 10 L. 0. 281. This principle has, however, only a very limited application, and is only properly applicable to those cases in which a sufficient statement of the facts on which the action is grounded, was in use under the old prac- tice: iu others, it cannot be safely applied. See Blanchard v. Strait, 8 How. 83 ; Wood v. Anthony, 9 How. 78 ; Eno v. Wood- worth, 4 Comst. 249, 1 C. E. (N. S.) 262 ; Sipperly v. Troy and Boston Railroad Company, 9 How. 83. On the other hand, in actions of an equitable nature, a decided preference ought to be given to the forms of equity pleading, so far as they are consistent with the Code. Coit v. Coit, 6 How. 53. Although the forms of common law pleading are expressly abolished by the preamble of that measure, those in equity are not, and it would seem that, so far as they are not inconsistent with the Code, they are not repealed. This principle must, however, be also kept within its due limits. It will, there is little doubt, hold good as far as regards the statement of facts an which the prayer for relief is grounded. Beyond this it cannot be carried. The former system of allegation by way of pretence and charge is altogether inadmissible, and, if adopted, will render the pleading objectionable for redundancy. The facts of the case are required, and nothing else. Clark v. Har- wood, 8 How. 470. An answer, drawn in conformity with the old chancery rules, admitting the statements in the complaint, and Stating various legal propositions and arguments in defence, was held to be bad in Gould v. Williams, 9 How. 51. As a general rule, however, all previous forms must be con- sidered as abolished, according to the express provision to that effect in section 69j and the question then arises, what is now the proper form of averments of fact for the future, both gene- rally, and with reference to the particular form of relief to be sought trader different states of circumstances. There can be no doubt but that, to a certain extent, the same principles of avermenl will, fur the future, govern the pleadings in all actions whatever, whether of common law or equitable PLEADING, ESSENTIAL REQUISITES. 3H cognizance ; and indeed such was, in many respects, the case, even under the former system, with reference to those general rules which lie at the root of all good pleading whatever whether legal or equitable. The principle as to what are or are not constitutive, as opposed to probative facts, is thus laid down in Garvey v. Fowler, 4 Sandf. 665, 10 L. 0. 16 : " The plaintiff must now state in his complaint all the facts which constitute the cause of action, and I am clearly of opinion that every fact is to be deemed con- stitutive, in the sense of the Code, upon which the right of action depends. Every fact which the plaintiff must prove, to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred, and every such averment must be understood as meaning what it says, and, consequently, is only to be sustained by evidence which corresponds with its meaning." The facts of the case must, in every form of action, be set forth with sufficient certainty, so as to give the court adequate data on which to ground a judgment, or demurrer will lie. Tollman v. Green, 3 Sandf. 437. The following general views are laid down in Mann v. More- wood, 5 Sandf. 557 : A complaint must set forth all the material and issuable facts, which are relied on as establishing the plain- tiff's right of action, and not the inferences from those facts which, under the advice of his counsel, he may deem to be con- clusions of law. The facts which are required to be stated as constituting the cause of action, can only mean real, traversable facts, as distinguished from propositions or conclusions of law, since it is the former, not the latter, that can alone, with any propriety, be said to constitute the cause of action. In Fay v. Grimsteed, 10 Barb. 321, the principles of pleading under the Code are thus stated: "It is one of the principal objects of the Code of procedure to abrogate the old forms of pleading, and to bring the parties to a plain, concise, and direct statement of the facts which constitute the cause of action, or the defence, in place of the general statement heretofore in use." In Bridge v. Payson, 5 Sandf. 210, analogous views are held, with reference to the mode of stating defences. See likewise 5 Stoddard v. Onondaga Annual Conference, 12 Barb. 573, in rela- tion to what will, or will not be held to be new matter in defence, and necessary, as such, to be alleged in the answer. 312 PLEADING, ESSENTIAL REQUISITES. In Smith v. Lockwood, 13 Barb. 209, 10 L. 0. 232, 1 C. E. (N. S.) 319, in which a complaint, based on general averments alone, was held bad, it was said: "The court must see by the facts set forth in the complaint, that the plaintiffs have sustained, or are threatened with some legal injury. The objection is fatal to the complaint, as it now stands." See also other cases to the same purport, cited under the next head. In Clark v. Harwood, 8 How. 470, in which the complaint con- tained a series of pretences and charges, according to the old equity system, the court said : " The plaintiff is to state the facts which constitute his cause of action, and nothing more." See also Gould v. Williams, 9 How. 51, holding that an answer must now either deny allegations found in the complaint, or state new matter by way of avoidance, and that the old chancery practice of stating legal propositions and arguments in defence is now inadmissible. And, it would seem that allegations of facts, though grounded on information and belief, should be positively made in terms. Truscott v. Dole, 7 How. 221 ; Milliken v. Carey, 5 How. 272, 3 C. R. 250; Dollner v. Gibson, below cited. This principle, though applicable as a general rule, is, however, open to consider- able modification. See Radway v. Mather, 5 Sandf. 654, where a statement of a portion of the facts constituting a cause of action, on belief only, was held to be sufficient, and a demurrer on that ground overruled as frivolous. Where more than one cause of action or ground of defence is relied on, it is essential to their validity that they should be "separately stated," and the safe rule is to mark the separation, by fitting and appropriate divisions, by way of commencement and conclusion. See Benedict v. /Seymour, 6 How. 298; Lippincott v. Goodivin, 8 How. 242; though it would seem, from Bridge v. Poyson, 5 Sandf. 210, that this is not absolutely essential. It is, however, laid down in that decision, that each statement must 1)0 complete in itself; and it has been decided, in numerous cases, hereafter cited in Chap. IV. of this book, that the mixing up separate grounds of action or defence in one general state- ment, without proper distinctions, will render the pleading fatally objectionable. Rule 87, also inserted on the last revision, and which provides that " In all cases of more than one distinct cause of action, defence, counter-claim, or reply, the same shall not only be separately stated, but plainly numbered," adds force PLEADING, ESSENTIAL REQUISITES. 313 to the views maintained in Benedict v. Seymour, and Lippincott v. Goodwin, although, in the former of the cases especially, these views appear to be somewhat over-rigidly laid down. It would be difficult to find a clearer or more accurate defini- tion of what pleadings ought to be under the Code, and this, in all cases, and without reference to the peculiar nature of the relief sought, than that laid down in Boyce v. Brown, 7 Barb. 80, 3 How. 391, in the following words: "The pleader may- use his own language, but the necessary matter must be there, and be stated in an intelligible and issuable form, capable of trial. Facts must still be set forth according to their legal effect and operation, and not the mere evidence of those facts, nor arguments, nor inferences, nor matter of law only." "Nor should pleadings be hypothetical, nor alternative," and many cases under the old practice are cited. " Good pleading should be material, single, true, unambiguous, consistent, and certain to a common intent, as to time, place, person, and quantity, and not redundant or argumentative." Again, "As a general rule, a pleading, to be good by the settled principles of pleading as modified by the Code, must state the facts constituting a legal cause of action or ground of defence; and these should be set forth in a plain, direct, definite, certain, and traversable manner, and according to their legal effect." To this extent, then, the pleadings in all actions, of whatso- ever nature, must conform to the same general requisites; but, from this point, the question branches out into many ramifica- tions, on which the different courts, and different branches of the same court, have held widely diverse opinions. Distinction between Legcd and Equitable Averments.'] — The grand conflict of judicial construction, has been as to whether dis* tinctions ought or ought not to be drawn, between the mode of averment of causes of action, or grounds of defence, of a strictly legal nature on the one hand, or of one strictly equitable on the other ; or whether, on the contrary, the same, and that a rigid and inflexible system of averment, is essential in all, whether legal or equitable in their nature and origin ; and not only this, but some cases have gone so far as to shadow out the doctrine, that a cause of action belonging to the one class, cannot be met by a line of defence, belonging to the other, though, on a careful comparison of the whole of the reported cases, it does not appear that this view was sound, even under the Codes of 1849 and 314 PLEADING, ESSENTIAL REQUISITES. 1851 ; see Hill v. McCarthy, 3 C. E. 49 ; Otis v. Sill, 8 Barb. 102 ; Crary v. Goodman, 9 Barb. 657. The recent amendments in sees. 150 and 167, put the point now beyond question, that such joinder is admissible, wherever appropriate. Liberal View of the /Subject — Averments may be adapted to Nature of Case.'] — In Shaw v. Jayne, 4 How. 119, 2 C. B. 69, above cited, the more liberal view on this contested point was, for the first time, asserted, and it was held, " that the pleader should adapt the form of his statement to the class," i. e., of legal or equitable actions "to which the case belongs." See, also, Otis v. Sill, 8 Barb. 102, above noticed. In Knowles v. Gee, 4 How. 317, it was admitted that "the legislature, by adopting the forms of chancery pleadings, had given unequivocal indication of a pre- ference for those forms," and that, in consolidating two distinct systems of jurisprudence, "it became indispensable to borrow something from each." In Linden v. Hepburn, 2 Sandf. 668, 5 How. 188, 3 C. B. 165, 9 L. 0. 80, the principle that the dis- tinction between legal and equitable remedies still subsists, is laid down in the clearest terms. In Burget v. Bissell, 5 How. 192, 3 C. R. 215, the general rule above referred to, i. e., that the mode of statement should be adapted to the relief claimed, is again clearly repeated, the distinction being again drawn between actions of legal and equitable cognizance; and the principle laid down, that, in cases where there was any doubt whether the action or defence was of an equitable nature, any averments adapted to the latter contingency ought to be allowed to stand ; whilst, in The Rochester Bank v. Suydam, 5 How. 216, the same conclusions are enounced with the utmost clearness, and in the following terms: "The kind of relief given by a Court of Equity, imperatively required a different mode of stating the case, from that adopted in the Common Law Courts. "The decree in chancery, with all its varied provisions, its conditions and limitations, could not be engrafted upon the record of a common law action. The two were incompatible. From the one was carefully excluded every fact, not essential to enable the court to determine for which party to give judg- ment; the other required :i consideration of all the circum- stances, bearing upon the nature of the judgment, and going to modify or v;iry its provisions." The learned judge then summed up his argument as follows: PLEADING, ESSENTIAL REQUISITES. 815 "So long as jurisdiction in equity and law are kept distinct, and courts of justice are permitted to adapt the relief thus af- forded to the facts and circumstances in one class of cases, while they are confined to a simple judgment for or against the plaintiff in all others, so long must different rules be applied to pleadings at law or in equity. " To do this, is not inconsistent with the provisions of the Code, which does not attempt to abolish the distinction between law and equity, even if the legislature had the power to do so under the Constitution. See Const., Art. 6, sees. 3 and 5. "My conclusion, therefore, is, that the statement of facts in a complaint should be in conformity with the nature of the action. If the case, and the relief sought, be of an equitable nature, then the rules of chancery pleading are to be applied ; otherwise those of the common law." The motion to strike out the averments there complained of, though embracing much circumstantial detail, and apparently many matters of mere evidence, was accordingly denied, "for the reason that the convenience of a Court of Equity is pro- moted, by having as many of the circumstances appear in the pleadings, and as few in the proofs, as possible, and for the other reasons already given." In Wooden v. Waffle, 6 How. 145, 1 C. E. (K S.) 392, the reasoning in the foregoing cases is reiterated by the same learn- ed judge at great length, in consequence of the adverse opinions in Milliken v. Carey, and Williams v. Hayes, hereafter noticed. The distinction between the necessary allegations in common law and equity pleadings is thus drawn : " The allegations in a pleading at law, consist of a chain of facts, all tending to estab- lish some definite legal right. An equity pleading, on the con- trary, frequently, if not generally, consists of an accumulation of facts and circumstances, without logical dependency, but the accumulated weight of which is claimed to be sufficient to raise ox defeat an equity. If a single link be destroyed in the for- mer, the whole conclusion falls ; but, if you abstract a fact from the latter, you have not of necessity broken the chain, but only diminished the weight of the whole." After drawing a similar distinction between what are really material issues, in legal and equitable actions, and defining the latter as "an issue upon a fact which has some bearing upon the equity, and ought to be established," but not a mere matter of evidence ; and stating 316 PLEADING, ESSENTIAL REQUISITES. as one of the reasons why chancery pleading was made more in detail, that its purpose was "to put the court in possession of all the facts, going to show, both the plaintiff's right to relief, and what that relief should be;" the learned judge proceeds to lay down, that this reason "is in no way affected by any provision of the Code. Equity jurisdiction is maintained. It is exercised upon the same principles, and to the same extent, as heretofore. The mode of trial is the same. The relief is adapted to the circumstances of the case. Every reason, there- fore, which ever existed for a full statement of the case, exists now." In Howard v. Tiffany, 3 Sandf. 695, 1 C. R. (N. S.) 99, it is also laid down that, where a portion of the relief sought is of an equitable nature, it will be often indispensable to set forth facts, which need not be stated in respect of the other relief, " and, as much at large as was formerly done in a well-drawn bill in chancery;" and also, that the "facts constituting a cause of action, include not merely the facts upon which the plaintiff's right to relief is founded," but also "all such facts as are ne- cessary to found the particular relief demanded, and to enable the court to give the proper judgment in the action." In Minor v. Terry, 6 How. 208, similar principles are sus- tained, in relation to pleading under the Code, generally con- sidered; and it is laid down that, since the abolition of forms, every action is analogous to an action on the case, under the old practice, in which the pleader was accustomed to set forth the facts of his case particularly, and at large. The rule with re- ference to the particular subject of injunction is thus laid down : "So, in a complaint in equity, in most cases, where an injunc- tion is prayed for, it is competent to set out the facts which constitute the foundation of the right, with particularity and minuteness." ( bit v. Colt, 6 How. 53, before cited, is likewise a strong authority in favor of the doctrine that, in equitable actions, the former practice and forms in equity are decidedly to be preferred. In Fay v. Grimsteed, 11 Barb. 821, it is laid down, with re- ference to the system of allegation and counter allegation pro- vided for by the Code, that, in this respect, the pleadings are similar to those whicb obtained in the courts of equity. See, likewise, us to the doctrine of parties, M<-I\cnziev. L 'Amoureux, PLEADING, ESSENTIAL REQUISITES. 317 11 Barb. 516; Conro v. Port Henry Iron Company, 12 Barb. 27, (p. 58 ;) Ricart v. Townsend, 6 How. 460. Such then is the view taken on the one side of the question, which holds that, for practical purposes, a distinction still exists between the pleadings, in actions of a purely legal or purely equitable nature ; that, in actions by which general or special relief is sought, as distinguished from those for the simple re- covery of money or of damages, a greater latitude of averment will be permitted; and that, wherever the case is one of doubt- ful cognizance, the courts will be rather disposed to allow doubt- ful averments to stand, than to strike them out, at the risk of striking out a portion of what the party himself considers to be his case, and, on the statement of which, some species of relief might possibly be grounded at the hearing. Restricted View, grounded on the old Common Law Principles. ,] — In Milliken v. Carey, 5 How. 272, 3 C. K. 250, principles in direct opposition to the above, and, in particular, in direct oppo- sition to those in Howard v. Tiffany, above cited, are enounced; and a number of averments, tending to strengthen a case for equitable relief, and, in particular, tending to show the neces- sity of an injunction being granted, were struck out as sur- plusage. Though admitting, that there are "actions of legal and equitable cognizance, between which, as heretofore, the Constitution and the laws recognize a distinction," (on which point the case has been before cited,) the learned judge con- sidered, nevertheless, that, as regards matters of pleading, that distinction does not exist ; that, under the Code, a bare and naked statement of the facts sufficient to ground a title to re- lief, is all that is admissible : and, that nothing more than this can be allowed, even in actions of equitable cognizance, under which head the case itself, (a suit to set aside a trust deed on the ground of fraud,) was clearly to be classified. A number of statements, tending to establish such fraud on the part of the persons against whom relief was sought, were accordingly considered to be irrelevant, and an injunction was denied, upon the complaint as it then stood; on the ground that those state- ments could not properly stand as part of it, but must be se- parately brought before the court on affidavit, the pleading itself being confined to a simple statement of the facts con- stituting the cause of action, to the exclusion of collateral or 318 PLEADING, ESSENTIAL REQUISITES. corroborating circumstances. See, also, on this last point, Put- nam v. Putnam, 2 C. E. 64. . In Floyd v. Dearborn, 2 C. E. 17, a rigid view on the subject is likewise taken ; and in Barton v. Sackett, 1 C. E. 96, 3 How. 358, similar principles were indirectly enounced : but the strongest authority in support of this restricted construction, is JDollner v. Gibson, 3 C. E. 153, 9 L. 0. 77, a decision which, if sustained, reestablishes the old system of common law plead- ing in all its strictness, and sets completely at naught the abolition of the forms of that system, enacted by section 140. The opinion in this case declares, in actual words, that that abolition "in reality amounted to nothing," and lays down as a rule, that, not "the facts constituting the cause of action," as provided by section 142, as those facts actually occurred ; but, on the contrary, the legal conclusions derived from those facts, form, not merely the proper, but the only admissible subjects of averment. The statement there drawn in question, was one to the effect, that a certain sale was made by one Adam Maitland, as agent on behalf of the defendant, instead of averring the sale, as doubt- less might have been done, as one by the defendant himself: and the learned judge granted a motion to strike out all the averments in relation to, or connected with, Maitland's agency, as immaterial, though, by doing so, the whole cause of action was stricken out. See the same case, as hereafter noticed, on the consideration of immaterial or redundant averments, and the measures to be pursued in relation thereto. It would ap- pear, however, that this decision has, in fact, been reversed by the General Term, though that case has not yet been formally reported. In Partisan v. Taylor, 8 Barb. 250, 1 C. E. (N. S.) 174, it was also held, that statements of circumstances, tending to establish that a mortgage, sought to be foreclosed, had been long since paid off, were immaterial; and that payment of such mortgage ought to have been pleaded, and the circumstances stated brought forward as evidence in proof of that averment. In Oahoon v. The Bank of Utica, 7 How. 134, a strictly legal view was taken with reference to the joinder of actions under the Code, both at Special and at General Term; see likewise Alger v. QcoviUe, 6 How. 131, 1 C. E. (N. S.) 303; but the for- mer decision was reversed, and that joinder admitted, on equi- PLEADING, ESSENTIAL REQUISITES. 319 table principles, by the Court of Appeals, in Cahoon v. The Bank of Utica, 7 How. 401.— Notes of Court of Appeals, 30th Dec., 1852. Remarks — Liberal View 'preferable.'] — The cases last cited are in unquestionable conflict with those in the previous division, and, it is submitted, in conflict also with the. general principle of the Code itself. The spirit of that measure, unquestionably, is to do away with all technical rules, as such — a spirit espe- cially evidenced by sec. 159, which provides that, in the con- struction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to sub- stantial justice between the parties. See also sec. 176, to a similar effect. The measure, taken as a whole, is one of a remedial, and not of a restrictive nature, and ought to be so construed ; and, whenever any doubt exists as to its proper con- struction, the preponderance ought to be in favor of enlarging, rather than derogating from the remedial provisions it contains. Construing it in this spirit, a plaintiff or defendant ought, within reasonable limits, to be allowed the privilege of stating his case in whatever manner he may choose, provided he comply with the general requisites prescribed. So far, indeed, from any tendency to contract the rules of equitable pleading, and to bind down the mode of averment in equitable cases, by the strict and rigid forms of the common law, being evinced ; a directly contrary spirit is manifested, by the positive intention to abolish those forms altogether, as expressed in the preamble, (in which those in equity are not even alluded to;) and by the fact that, in the body of the act, the usual course of equity pleading is prescribed, and the very names of equity pleadings adopted, without alteration, except in the mere substitution of the term "complaint" for the term "bill." The principles laid down in the cases last cited are, unques- tionably, if sustained to their full extent, a complete abolition of all equitable pleading whatever; and amount to a declara- tion, that the most rigid rules of averment, according to the spirit of the old common law system, are still enforceable in all their pristine strictness, in all cases, whether of legal or equita- ble origin. Facts, not Conclusions, of Law to be stated.] — This species of 320 PLEADING, ESSENTIAL REQUISITES. interpretation, especially as carried out in the last cases, seems also to militate irreconcilably with another important class of decisions, which lay down, in distinct terms, the principle that, under the Code, the actual facts of the case form, and form alone, the proper subjects of pleading, and that conclusions of law, as such, are not admissible at all, and, if standing alone, will neither suffice to establish a cause of action, nor to consti- tute a defence. Thus, in Beers v. Squire, 1 C. R. 88, a mere denial of indebted- ness, equivalent to the old plea of nil debet, unaccompanied by any allegation of facts, was held to be no defence at all to an action on a promissory note, and the answer was accordingly stricken out as frivolous, and judgment awarded on a motion for that purpose. In Pierson v. Cooley, 1 C. R. 91, and M'Mur- ray v. Giffbrd, 5 How. 14, the same point was decided; and similar views are expressed in Mier v. Cartledge, 4 How. 115 ; 8 Barb. 75, 2 C. R. 125. In Mullen v. Kearney, 2 C. R. 18, though no facts are given, the same principle is applied to all cases, in the following words, i. e.: "An answer which admits all the facts on which the plaintiff's cause of action is founded, and merely denies, generally, that the plaintiff has a cause of action, is frivolous, and will be stricken out." In Bentley v. Jones, 4 How. 202, a mere denial of interest in the premises there in controversy, without stating facts to dis- prove specific allegations, showing that such an interest existed, was again held to be bad, " because it did not involve a traversa- ble fact, but merely a conclusion of law." In Russell v. Glapp, 4 How. 347; 7 Barb. 482; 3 C. R. 64; Olenny v. Hitchins, 4 How. 98 ; 2 C. R. 56 ; Tucker v. Rushton, 2 C. R. 59 ; 7 L. O. 315 ; Neefus v. KloppenburgJt, 2 C. R. 76 ; Steivart v. Bouton, 6 How. 71 ; 9 L. 0. 353 ; 1 C. R. (N. S.) 404 ; and Eno v. Wood- worth, 4 Comst. 249; 1 C. R. (N. S.) 262, the same positions are fully sustained. Nor do the more recent cases in any manner recede from the position laid down in those above cited. In Mann v. Moomoood, 5 Sandf. 557, it is held, that inferences and conclusions of law, an; tin; province of the court, and not of the pleader; and that the complaint should state the facts, and the facts alone. The old chancery system of charge and pretence, is also entirely inad- missible In a pleading, which should state the facts, and the facts alone, ('lark v. Harwood, 8 How. 470. See likewise as to an PLEADING, ESSENTIAL REQUISITES. 321 answer framed on the old chancery mode, Gould v. Williams, 9 How. 51. A mere averment of adverse possession, without stat- ing the facts or circumstances, was held bad in Clarice v. Hughes, 13 Barb. 147. So also, a complaint in the words of a penal statute, without particularizing the offence committed. More- house v. Crilly, 8 How. 431. Nor is an express reference to a statute necessary, where facts are alleged which bring the case within its operation. Goelet v. Coiudrey, 1 Duer, 132. See too as to a restrictive statute, Smith v. Lockwood, 13 Barb. 209 ; 10 L. O. 232 ; 1 C. E. (N. S.) 319. So likewise as to a denial of liability, on a note admitted to be made, Mdson v. Dillaye, 8 How. 273 ; Gunter v. Oatlin, 1 Duer, 253 ; 11 L. O. 201. As to the defence of usury, without stating the facts relied on, Gunter v. Catlin, supra. As to the facts in relation to notes received by defendant, on which indebtedness was alleged, to show his liability to plaintiff, Lienan v. Lincoln, 12 L. O. 29. So also, as to facts to show defendant's liability to plaintiff, on a suit for use and occupation of lands, Hall v. Southmayd, 15 Barb. 32. Under the Code there is no general issue, under which proof of the facts which tend to a conclusion of law can be introduced, and they must therefore be specifically averred, when the conclusion is drawn by the court, with whom and whom alone it rests to do so. Gunter v. Catlin, Mann v. Morewood, above cited. The point, therefore, that mere conclusions of law are not admissible as matters of defensive pleading, appears to be un- questionably established. If not admissible as a defence, it seems to follow, as a necessary conclusion, that averments of this description, standing alone, are not sufficient for the estab- lishment of a cause of action ; and that the facts themselves of the case, as they really occurred, and not the legal conclusion to be drawn from them, ought, in all cases, to be pleaded. The circumstance that the party may be obliged, under the new system, to swear to every fact that he avers in his pleading, and, though willing to swear to such fact as it actually oc- curred, might most conscientiously object to swear positively to the conclusion of law to be drawn from it, is, also, a considera- tion entitled to its fall weight. It seems to follow, as a neces- sary consequence from the foregoing premises, that what is law with respect to defensive, must be law with respect to aggressive pleading; and that the principle laid down in Doll- uer v. Gibson, and Pattison v. Taylor, i. e., that the legal conclu- 21 322 PLEADING, ESSENTIAL REQUISITES. sion derived from the facts of the case, and not the facts them- selves, on which that conclusion is founded, as those facts oc- curred, ought, and ought alone, to be averred in a complaint, cannot be sound. If not, then, a fortiori, the principle that such facts cannot be pleaded at all, in the form in which they really happened, and, if so pleaded, will be actually struck out as irre- levant, seems incapable 'of standing the test of critical inquiry. Arguments, too, standing alone, are inadmissible as matters of pleading ; the material and traversable facts must be alleged, and not left to inference. Lewis v. Kendall, 6 How. 59 ; 1 C E. (N. S.) 402. See likewise Gould v. Williams, 9 How. 51, above noticed. The mere averment of the intentions of parties in executing a written instrument, without any direct allegations of mistake, or surprise, or any facts tending to such a conclusion, was, in accordance with the general principle, that facts, not conclusions, are to be averred, held to be bad pleading, in Barton v. Sach- ett, 1 C. K. 96 ; 3 How. 358. Indefiniteness, in general, is an objection which must, on all occasions, be provided against. An answer, not giving proper particulars of a demand of set- off, but following the words of the old common law counts in assumpsit, was held to be bad, in Wiggins v. Gaus, 3 Sandf. 738 ; 1 C. K. (N. S.) 117. Thus, also, a bare averment in slan- der, " that what the defendant said of the plaintiff was true," no facts being stated in support of a justification, was overruled. Anon., 3 How. 406. So, likewise, in an action on a promissory note, where the allegations in the complaint were insufficient, a mere denial that, " by reason of" the allegations in the com- plaint, the plaintiff was entitled to judgment, without specific- ally taking the objection, or traversing any point in the com- plaint, was held to be no denial. Hoxie v. Gushman, 7 L. 0. 149. Constitutive^ not Probative Facts to be averred. — Although, then, the general doctrine of the more liberal cases on the subject of equitable averments, and particularly that laid down in the cases of The Rochester City Bank V. Suydcm, Wooden v. Waffle, and Coit v. (y')it, appears to be unquestionably preferable'; still that doctrine must not be carried too far. A plaintiff seems, doubt- less, at liberty to state an equitable cause of action, in substan- tially the same manner in wljich it was formerly stated in a well-drawn bill in chancery, according to the rule laid down in PLEADING, ESSENTIAL REQUISITES. 323 Howard v. Tiffany; but still he is by no means freed from the observance of all rules whatever, in relation to .his averments of that cause of action; nor is he at liberty to wander into clearly irrelevant matter, or to introduce, as forming part of those aver- ments, matters not bearing directly upon his title to relief, but merely useful as probative facts in support of that title. Though substantially preserved under the Code, the powers of the pleader in relation to equitable averments, are not increased by it. They are, on the contrary, lessened in many respects, inas- much as the abolition of equitable pleading, as a means of ob- taining discovery, of necessity, narrows the field of admissible allegations, and confines them simply to those, directly going to establish a cause of action, or a right to relief connected with that cause. That the substantive facts of the case, and those only, form the only proper subject of averment, in all pleading whatever, and especially in pleadings under the peculiar provisions of the Code; and that merely collateral or probative circumstances, not directly tending to establish the cause of action, in common law cases, or to bear upon or modify the relief to be granted, where that relief is equitable or special, are inadmissible in all cases whatever, whether legal or equitable ; is a leading feature in every decided case upon the subject, whether taking the stricter or the more liberal view of the general question. In Boyce v. Brown, 7 Barb. 80, 3 How. 391, cited at the out- set of these observations, the above doctrine is broadly stated. That " issuable facts, essential to the cause of action or defence, and not the facts or circumstances which go to establish such essential facts;" that "facts only, and not the mere evidence of facts," should be stated ; are the principles laid down in Shaw v. Jayne, 4 How. 119, 2 C. E. 69, and Knowles v. Gee, 4 How. 317. In the case of Williams v. Hayes, 5 How. 470, 1 C. E. (N. S.) 148, the same views, especially as they are laid 'down in Knowles v. Gee, are fully concurred in ; and the authority of the last case is fully confirmed by The Rensselaer and Washing- ton Plank Road Co. v. Wetsel, 6 How. 68 ; and Stewart v. Bote, ton, 6 How. 71, 9 L. 0. 353, 1 C. E. (N. S.) 404. In Howard y Tiffany, 3 Sandf. 695, 1 C. E. (N. S.) 99, before cited as one of the strongest cases in favor of the liberal doctrine of averment, the same view is adopted, and statements of probative circum- stances were ordered to be stricken out. The same principles 324 PLEADING, ESSENTIAL REQUISITES. are distinctly stated in Milliken v. Carey, 5 How. 272 ; 3C. E. 250 ; Floyd v. Dearborn, 2 C. E. 17 ; Ingersoll v. Ingersoll, 1 C. R. 102 ; Dollner v. Gibson, 3 C. R. 153 ; 9 L. O. 77, (which, on this point, is perfectly in accordance with the other deci- sion ;) Russell v. Chpp, -4 How. 347 ; 7 Barb. 482; 3 C. R. 64; Glenny v. Hitchins, 4 How. 98, 2 C. R. 56 ; Lewis v. Kendall, 6 How. 59 ; 1 C. R. (N. S.) 402 ; Wooden y. Waffle, 6 How. 145 ; 1 C. R, (N. S.) 392 ; Stone v. De Puga, 4 Sandff 681 ; Stoddard v. Onondaga Annual Conference, 12 Barb. 573 ; Harlow v. Hamilton, 6 How. 475; Leconte v. Jerome, 11 L. 0. 126. See per contra, Warren v. Struller, 11 L. 0. 94. This decision proceeds however on peculiar and special grounds, and does not go to the length of shaking the general principle as above stated. There are, besides the above, numerous other authorities, in which the principle either appears in direct terms, or is collaterally re- ferred to, or acted upon. A similar question has been raised, as to whether, in cases where the defendant is arrestable, allegations of fraud, on which to ground an execution against the person, ought or ought not to be inserted in the complaint ; and much discussion has arisen on the subject. The cases in favor of, and against the admissi- bility of such allegations, are very nicely balanced. The pre- vailing opinion would seem to be, that such allegations are admissible, if going to the cause of action itself, and stated in a direct and not a probative form, so as to present a distinct issue, without wandering into collateral circumstances. See this point fully considered heretofore, under the head of Ar- rest. Hypothetical Pleading."] — Hypothetical pleading is also clearly bad. Facts, when pleaded, must be pleaded directly and to the point,, and neither hypothetically nor alternatively. This is so clear a point, that it seems almost unnecessary to cite author- ities on the .subject. MrMnrnt;/ v. Gifford, 5 How. 14; Sayles v. Wooden^ 8 Sow. 84: 1 (J. R. (N. S.) L09 ; Porter v. McCreedy, 1 c. I:. (N. S.)88; and Lewis v. Kendal^ '• bad, as being, amongst many other objections, hypothetical. See, also, Williams v. Eayt . '■> H"w. 170; I (J. It. (N. S.) 148; Arthur v. Brooks, 14 PLEADING, ESSENTIAL REQUISITES. 325 Barb. 533 ; Clark v. Harwood, 8 How. 470 ; Gould v. Williams, 9 How. 51. See likewise numerous cases cited below, under the head of Answer, in relation to the defences admissible in cases of libel. General Remarks.'] — The above remarks sum up that portion of the general consideration of essentials in pleading, which treats of averments, inadmissible in their nature, and therefore proper to be stricken out on the ground of their irrelevancy or redundancy. The particular considerations on this subject, in relation to each pleading separately viewed, will be treated of hereafter. The remedies of the party aggrieved, in this respect, are either by a motion to strike out the redundant portions under sec. 160 ; or, as regards defensive pleadings, by an appli- cation for judgment, under sec. 152, or sec. 247, if such plead- ing be wholly irrelevant or frivolous ; subjects which will be severally considered hereafter. Insufficiency. ,] — The grounds of redundant, or mistaken aver- ments, are, however, not the only ones on which pleadings, generally considered, may be impeached ; insufficiency is, on the other hand, an objection equally fatal, or even still more so, and one which may, moreover, be taken at any stage of the action. Under this classification may be placed the averment of a bare legal conclusion, unsupported by any statement of facts whatever, as before noticed ; but the more common form of defect is the omission to state facts sufficient to constitute a cause of action, or a valid ground of defence. On this subject, it is more difficult to lay down any rules of universal application ; every case must, in fact, depend upon its own circumstances, and each step in pleading has its own pecu- liar rules as to sufficiency or insufficiency. These questions will therefore be more conveniently considered, as applicable to each distinct stage in the pleadings themselves, and especially under the head of Demurrer, the proper medium, in all cases, for the taking of objections of this nature. § 110. Observations in Conclusion. Before quitting, however, the subject of the essential, and entering upon that of the formal requisites of pleadings, gene- 326 PLEADING, ESSENTIAL REQUISITES. rally considered, one or two general remarks, in the nature rather of cautions than of rules of practice, seem expedient. In any pleading whatsoever, no greater mistake can be com- mitted, than to aver too much ; or, in fact, to aver more than is absolutely necessary, for the purpose of establishing, either the cause of action, or ground of defence. Every known " circumstance of the case must, of course, be well and maturely weighed at the outset. No more dangerous error can, in fact, be committed than to defer a complete inves- tigation in this respect, until the cause approaches a hearing. The probable defence, or probable reply, to be put in, must be realized in the mind of the pleader, whilst framing his original statements, as far as practicable, and his case shaped accord- ingly. The insertion of conjectural allegations is, however, on the other hand, a most perilous course, and one to be avoided, under almost every possible state of circumstances, both as afford- ing evidence of a sense of weakness, and also as calculated to suggest the taking of objections that might otherwise have escaped notice. The grand object in all pleadings, should be to state exactly enough to maintain the party's own case, and to furnish a ground for the introduction of the evidence by which it is proposed to be established ; to state every thing ne- cessary for these purposes, and to state not one word, not one syllable more. Every unnecessary allegation, however appa- rently trivial, gives, pro tanto, an advantage to the adversary. In every case, too, whilst alleging the necessary facts, care must be taken to allege them, or rather to allege the conclusion founded upon them, in such general terms as to afford ground for the introduction of every species of evidence whatever, either direct or collateral, which may possibly bear upon the issue to be tried. The judicious employment of terms, and even the substitution of one word for another, of almost the same general import, may often accomplish this, and may per- haps Lead to the most important ultimate results. Another general consideration, or rather general caution, and that, a cant ion not applicable to pleading alone, but to every proceeding in a cause, from its outset to its close, is this, i.e., that wherever the relief claimed, or the statement adapted to the demand of that relief, is grounded upon any special statu- tory provision, either as contained in the Code itself, or in any PLEADING, FORMAL REQUISITES. 327 other measure, the exact words of the provision acted upon should, in every case, be followed, and the statutory provision specially referred to ; although possibly, in many, the sentence might seem to have a better turn, if some slight deviation were made in the phraseology. If the actual words of the statute are departed from, the party so framing his pleading or pro- ceeding, can never be certain but that the ingenuity of his adversary may detect, and when detected, may avail himself of some latent irregularity or latent defect in his mode of state- ment ; but, if those words be strictly followed, his proceedings must at least be regular in form, and, if he fail in success, it will not be through any omission of his own in that respect. To the judge, too, before whom the matter is to come, a rigorous compliance with this rule cannot but be highly acceptable, because it relieves him from the necessity of an extra consider- ation of the subject, and also from the liability of having his time wasted, and his attention distracted, with minor and tech- nical points, wholly unconnected with the real merits of the controversy. See the case of Schroeppell v. Corning, 2 Comst. 132, decided in accordance with these views. CHAPTER II. OF THE FORMAL REQUISITES OF PLEADING. § 111. Numbering Folios, <$fc. All pleadings, or copies of pleadings, of whatever nature, are required, by Rule 41 of the Supreme Court, to be fairly and legibly written, and, where exceeding two folios in length, they must have the folios distinctly marked in the margin. A strict compliance with this rule seems to be very generally dispensed with, but still the rule exists, and, as it may at any moment, or on any occasion, be enforced, the only perfectly safe course will be a literal compliance with it on all occasions. The courts regard, however, an objection of this nature with little favor. Thus, in Sawyer v. Schoonmaker, 8 How. 198, a 328 PLEADING, FORMAL REQUISITES. motion on this ground was denied, with costs, the papers of the moving party being obnoxious to the same objection. The name and residence of the attorney, or party prosecuting in person, must also be endorsed on any copies served. See Eule 5. Numbering Causes of Action, cfrc] — By rule 87, inserted on the last revision, it is provided, that "In all cases of more than one distinct cause of action, defence, counter-claim, or reply, the same shall not only be separately stated, but plainly num- bered." An omission to comply with this rule will clearly be an irregularity. See Getty v. Hudson River Railroad Company, 8 How. 177 ; Blanchard v. Strait, 8 How. 83 ; Benedict v. Bake, 6 How. 352 ; Lippincott v. Goodwin, 8 How. 242 ; White v. Low, 7 Barb. 204 ; Spencer v. Wheehch, 11 L. 0. 329 ; Burlcee v. Sara- toga and Washington Railroad Company, 4 How. 226 ; Pike v. Van Worner, 5 How. 171. See this subject hereafter consi- dered under the different heads of Pleading. It seems, how- ever, that this provision is only imperative in relation to a de- fence, in those cases where that defence consists of new matter, and not to an answer, merely denying the plaintiffs allegations. Otis v. Ross, 8 How. 193 ; 11 L. 0. 343. In Blanchard v. Strait, above cited, it was considered that an omission in this respect might constitute a ground for setting a complaint aside. In Wood v. Anthony, however, 9 How. 78, this position is denied, and it is held that a motion on the ground of uncertainty is the proper course under these circum- stances, and that the court will not grant relief beyond that extent ; and an application to set aside was accordingly denied, with costs. § 112. Subscription and Verification. Subscription.'] — The first requisite essential in every pleading, LB that of subscription by the party or by his attorney — sec. 156. Tin iarv in all cases, and can never be dispensed with. In practice, the attorney almost universally subscribes, even when the pleading is verified by the party. In JIubhell v. Living. ><>; 1 0. li. (N. S.) 818, above cited. The omission of theoffic lature itself will, of course, be a fatal objection. PLEADING, FORMAL REQUISITES. 333 In HiUv. Theater, 3 How. 407, 2 C. E. 3, it seems to have been considered that the guardian of an infant might properly verify the complaint, in an action brought in his name. Verification by Attorney.'] — A greater latitude is, as before observed, given by the recent amendments, in relation to the verification of pleadings by the agent or attorney. It is, how- ever, absolutely essential that the reasons why the affidavit is not made by the party should be set out, on verification by the attorney or agent ; if omitted, that verification will be a nul- lity. Fitch v. Bigelow, 5 How. 237 ; 3 C. E. 216. See also Webb v. Clark, 2 Sandf. 647 ; 2 C. E. 16. In Dixwell v. Wordsworth, 2 C. E. 1, a verification by an attorney, to the effect that the party was absent from the county, and that "from the information furnished this deponent by said defendant, and from his representations, (which are the grounds of this deponent's knowledge and belief in the matter,) he believes the foregoing answer to be true," was sustained by the court. This case was prior to the recent amendments of the section, by which the powers of the attorney to verify, instead of the party, are greatly enlarged. There is some little ambiguity in the provision, as it stands, unexplained, with reference to the attorney's power to verify in the absence of the party, and for that sole reason ; but that ambiguity is fast clearing up, under the interpretation that has been given to these provisions. In Hunt v. Meacham, 6 How. 400, it was at first held that, although the defendants were absent from the State, the verifi- cation of the attorney, stating his knowledge to be solely de- rived from the statements of his clients, was insufficient, because the statements were not derived from his own personal know- ledge, or from an instrument in his possession. Where, however, either of these latter conditions is fulfilled, the verification will be good without a question. Mason v. Brown, 6 How. 481. The doctrine as laid down in Hunt v. Meacham, seems, how- ever, to be too restricted, and has not been sustained. In Stannard v. Mattice, 7 How. 4, it was held that, where a party is not within the county in which the attorney resides, the latter may verify, though in the absence of. a written instrument, or of his own personal knowledge. " The intention is, that the pleading shall 334 PLEADING, FORMAL REQUISITES. be verified by the party, if within the county where the attor- ney resides. If not, it may be verified by the attorney. It may also be verified by the attorney, whether the party is within the county or not, when it rests on a written instru- ment in the possession of the attorney, or when the attorney has personal knowledge of all the material allegations of the pleadings; and, in all cases, the attorney must state in his affidavit of verification, his knowledge or the grounds of his belief, and the reason why it is not made by the party." This conclusion is supported in Roscoe v. Maison, 7 How. 121, it being held that the absence of the part}' from the county is, in itself, a sufficient reason. In Lefevre v. Latson, 5 Sandf. 650, 10 L. 0. 246, the above views, as laid down in Stannard v. Mattice, are supported to the full extent ; and the doctrine as laid down in Hunt v. Meacham is disapproved of in both cases. In the Appendix various forms of verification will be found, adapted to the different states of circumstances likely to arise under the present provisions. Ho w Answer sworn to out of State.] — In relation to the verifi- cation of answers out of the State, where deemed necessary, see heretofore, Book IV., sec. 60, pages 165 and 166, under the head of Affidavits. The officers before whom an answer may be sworn to in these cases, are there clearly pointed out. It may also be taken by commission, in the same manner as the evidence of witnesses out of the State, if thought expedient. See hereafter under that head. It is clear, however, that, under these circumstances, the attorney may now verify instead of the party, and such, therefore, is the course generally, if not uni- versally pursued. § 113. Return of defective Pleading. A pleading, defective in form in any of the foregoing, or Other respects, should be immediately returned by the opposite party, if be retain it, he will be held to have waived the irre- gularity, and cannot afterwards take advantage of it; Lahnbeer v. Attn/, 2 Sandf. 648; 2 C. K. 15; Knickerbocker v. Louc/cs, 3 How. 61 ; Leviv.Jakeways, 4 How. 126; 2 C. 11. 69; McGown v. lieavenworthf '■> 0. R. 151, (in which a return within the same day was held to be a reasonable time;) White v. Cummings, 3 Sandf. 716; 1 C. B. (N. S.) 107; Williams v. Sholto, 4 Sandf. PLEADING, FORMAL REQUISITES. 335 641 ; Sawyer v. Schoonmaker, 8 How. 198 ; and, even if he re- turn the paper, he is bound, in doing so, to point out the nature of the alleged defect; Broadway Bank v. Banforth, 7 How. 264; Sawyer v. Schoonmaker, above cited. See likewise, Rogers v. Rathbun, 8 How. 466 ; Hollister v. Livingston, 9 How. 140. Although a pleading not duly verified is, in effect a nullity, (see Siuift v. Hosmer, 6 L. O. 317, 1 C. E. 26,) it cannot be disre- garded altogether as such by the opposite party. The proper course is to move to set it aside for irregularity, and such motion must be made on the very first opportunity after the service, or the irregularity will be held to have been waived ; Gilmore v. Hempstead, 4 How. 153; Laimbeer v. Allen, and Gra- ham v. McGoun, above cited; Webb v. Clark, 2 Sandf. 647 ; 2 C. R. 16. The last case is also authority, that an objection of this nature cannot be taken by way of demurrer. In FitcliY. Bigelow, 5 How. 237, 3 C. E. 216, above cited, the case of a complaint irregularly verified, a motion of this nature was however denied, but without costs ; and it was held that the proper course for a defendant to pursue under such circum- stances, was to put in his answer without oath, treating the complaint as if not verified at all. The authority of this case seems, however, to be more than doubtful, in view of the con- trary decisions above cited. § 114. Other Formalities. The following formal provisions are made by the Code, with respect to matters forming the subject of pleading, either offen- sive or defensive. The items of an account alleged, need not be set forth in any pleading, but a verified copy must be delivered to the opposite party, if demanded. See sec. 158. In pleading a judgment, or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction, but it maybe stated as having been duly made : sec. 161. If controverted, however, by the oppo- site party, proof of that jurisdiction will then be necessary on the trial. The jurisdiction of the United States courts is in- tended, without being specially proved. Bement v. Wisner, 1 C. E. (N. S.) 143. The due performance of a condition precedent, may be 336 PLEADINGS, AMENDMENT OF BY MOVING PARTY. pleaded generally, without stating the facts which show it, and, in an action or defence founded on an instrument for payment of money only, it is sufficient to give a copy of the instrument, and state the sum due under it: sec. 162. See, however, subse- quent observations on this clause, under the head of Complaint. A reference to the title, and date of passage of a private statute, is sufficient for the purposes of pleading it: sec. 163. The question of irrelevant or redundant matter, and also the provisions of the Code, applicable to any one stage of pleading exclusively considered, will be treated of hereafter. The pro- visions of sec. 168, under which, every material allegation, not specifically controverted by the opposite party, is to be taken as true, are of course most essential to be attended to on all occasions. The detailed consideration of this branch of the subject belongs, however, more exclusively to the heads of Answer and Keply. CHAPTER III.* OF THE CORRECTION OF PLEADINGS BY THE MOVING PARTY. General Remarks. Although, in a great measure, this branch of the subject is of special application, still many considerations of a general nature arise out of it, and will, therefore, be so considered. Pleadings may be corrected either, 1. By amendment, as of course. 2. By amendment, on leave obtained from the court. :;. By the striking out of improper matter, on the application of the adverse party. These three subjects will, accordingly, be successively con- iv. 1; the two first in the present, the last in the succeeding chapter. § L15. Amendments (ts of Course. Statutory Provi ion."] The provision of the Code on the sub- ject of amendments as of coarse, is as follows: PLEADINGS, AMENDMENT OF BY MOVING PARTY. 337 § 172. Any pleading- may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it expires ; or it can be so amended, at any time within twenty days after the service of the answer or demurrer to such pleading ; unless it be made to appear to the court that it was done for the purposes of delay, and the plaintiff or defend- ant will thereby lose the benefit of a circuit or term for which the cause is or may be noticed : and, if it appear to the court that such amend- ment was made for such purpose, the same may be stricken out, and such terms imposed as to the court may seem just. In such case a copy of the amended pleading must be served on the adverse party. Time allowed.'] — On the first head, it will be seen that twenty days is the time allowed to amend in all cases ; but the period from which this time is to be computed is variable, according to the varying circumstances of each case. The weight of authority runs at present, that, in all cases in which service by mail is admissible, the time allowed to amend is doubled in practice, and the party has forty days, instead of twenty, for that purpose. Washburn v. Herrick, 4 How. 15 ; 2 C. R. 2 ; Cusson v. Whalon, 5 How. 302 ; 1 C. R (N. S.) 27. This conclusion seems, nevertheless, to be somewhat doubtful ; although these cases stand, for the present, alone and uncontradicted. The provisions as to service by mail, occur in that portion of the Code more peculiarly applicable to purely interlocutory pro- ceedings. The date within which a pleading must be served is, in fact, "otherwise provided for," (see sec. 408,) and is impera- tively fixed by sections 143 and 153. Under the former, the demurrer or answer must be served within twenty days after the service of the copy of the complaint. Under the latter, the plaintiff may, within twenty days, reply to new matter in the answer. It may well be contended, that these positive limita- tions cannot be repealed, by implication from other provisions, not directly applicable to the subject of pleading, but inserted, on the contrary, with peculiar reference to the ordinary notices in a suit, and to the subject of interlocutory motions or other applications during its progress. This construction seems the sounder, and works, in fact, no practical hardship, because it is always in the power of the party, if he require it, to obtain farther time to plead, by means of an application in the ordi- nary manner. It may probably be held, however, that, if duly posted within the twenty days, a pleading may be served by 22 338 PLEADINGS, AMENDMENT OF BY MOVING PARTY. mail, in cases where such service is applicable ; and therefore it would, perhaps, be imprudent to enter up judgment by de- fault, on the non-receipt of an answer, until sufficient time has been allowed for its transmission by due course of post. Where, too, the complaint has been served by mail, it seems clear that this mode of service, with all its incidents, and, amongst others, the extension of time, will be applicable to the answer. See, in affirmance of this view, Plumb v. Whipples, 7 How. 411. No proceeding whatever on the part of his adversary, can prejudice the right of a party to amend within the time allowed to him. Washburn v. Herrick, above cited ; Dicker son v. Beards- ley, 1 C. E. 37 ; 6 L. 0. 389 ; Morgan v. Leland, 1 C. E. 123. See, likewise, Carrie v. Baldwin, 4 Sandf. 690; Cooper v. Jones, 4 Sandf. 699 ; Griffin v. Cohen, 8 How. 451 ; Rogers v. Ratlibun, 8 How. 466. That right is absolute, subject only to the power of the court to strike out for good cause shown. See, however, the qualifications of this doctrine laid down in Plumb v. Whip- pies, 7 How. 411, before cited. The service of an answer does not preclude the plaintiff from amending his complaint within the time allowed him. Clor v. Mallory, 1 C. E. 126. To a certain extent, the right to amend is a stay of proceedings ; and, during its continuance, the ad- verse party, if he proceed during that time, proceeds at his peril. Washburn v. Herrick, above cited. Plumb v. W hippies, 7 How. 411. See, however, restrictions on the doctrine below noticed. Thus, if the plaintiff take judgment within the period allowed to the defendant to amend, that judgment will be set aside, if the defendant afterwards does so, and applies to the court. Dicherson v. JBeardsley, 1 C. E. 37 ; 6 L. 0. 389 ; Morgan v. Leland, 1 C. E. 123 ; Griffin v. Cohen, 8 How. 451 ; Sogers v. Eathbun, 8 Hew. 466. See, likewise, Carrie v. Baldwin, 4 Sandf. 690. Although neither party will be permitted to take judgment, except at his peril, during the time allowed to his adversary to amend ; still the right of the latter to do so is not, j»r se, a stay of proceedings for nil purposes. Thus, the cause may be noticed for trial immediately on the service of reply, without waiting until the period within which tbedefendant may amend his answer bas elapsed. If the defi t waive that right, which he. may do, either expressly, or imself noticing the cause, the plaintiff will be bound to pr< • • d. Cassonv. Whalon, PLEADINGS, AMENDMENT OF BY MOVING PARTY. 339 5 How. 302 ; ICE. (N. S.) 27. In Enos v. Thomas, 4 How. 290, it was held, on a similar principle, that, immediately on reply, the plaintiff may move to refer the cause, under sec. 271, without waiting till the defendant's time to amend shall have expired. Of course, however, he will do so, to a certain degree, at his peril, in the event of an amended pleading being subse- quently served, by which the subject-matter of the original reference may undergo alteration. The rights of the party entitled to amend are considerably restricted, and those of his adversary enlarged, by the recent alteration in sec. 172 ; see this subject noticed below, and the case of Plumb v. Whipples, there cited. An amended pleading takes the place of and supersedes the original, with regard to the time allowed to the opposite party to amend, as well as in other respects. Thus, in The Seneca County Bank v. Gfarlinghouse, 4 How. 174, a plaintiff was al- lowed to amend his complaint, in due time after the service of an amended answer, although a reply had even been served by him to the defendant's original answer in the cause. The right to do so, involved, of course, a practical recommencement of the pleadings in the cause ab initio, although issue had already been joined therein, had not the defendant subsequently amended. It would seem, therefore, from this case, and from those of Enos v. Thomas, and Cusson v. Whalon, also above cited, that the defendant has, in all cases, the right to amend his answer, within twenty days after the service of the plaintiff's reply, although, in the section, the words "answer or demurrer" only appear. Of course, by amending his complaint, the plaintiff alters t he- period within which the defendant must answer, and he cannot take judgment with reference to the date of the original service. Dicker son v. Beardsley, 1 C. R. 37, 6 L. 0. 389, above cited. How and when Amendment admissible.] — Pleadings in cases transferred from a justice's court, under sec. 60, have been, held not to be amendable at all ; but this proposition seems to be overruled by the more recent decisions, before cited under the head of the jurisdiction of those tribunals. In Plumb v. Whipple*, 7 How. 411, it was held that the powers of amendment, conferred by sec. 172^ do not extend to pleadings which do not admit of an answer or reply, and that 340 PLEADINGS, AMENDMENT OF BY MOVING PARTY. an answer merely traversing the allegations in the complaint, and not containing new matter, was not amendable at all. Where an answer had been stricken out as sham, it was held that the defendant had no right to amend, and a judgment en- tered up for want of an answer was refused to be vacated. Aymar v. Chase, 1 C. R. (N. S.) 141. An amended answer, the same in its legal effect, though dif- fering in its phraseology from the original one put in, was stricken out in /Snyder v. White, 6 How. 321. It was held in the same case that, if the time to amend, as of course, be allowed to elapse, no amendment can take place afterwards unless by leave of the court. In George v. McAvoy, 6 How. 200, 1 C. R. (K S.) 318, it was held that the verification is no part of a pleading, and that, therefore, a second copy of the original complaint, with the veri- fication merely added, was no amended complaint, and might be disregarded. A judgment entered up for want of an answer to the second complaint, the original one having been an- swered without oath, was accordingly set aside. Where the opposite party has already given notice of a mo- tion to set aside a pleading as irregular, his costs of that motion must, in all cases, be paid before an amendment can be allowed. The power to amend, as of course, extends only to cases where the proceedings have been regular, or where the amendment is made before any steps have been taken by the opposite party, in consequence of the irregularity sought to be cured. Williams v. Wilkinson, 5 How. 357 ; 1 C. R. (N. S.) 20. See also Hall v. Hunil'ij, 1 C. R. (N. S.) 21, (Note.) This principle is, however, to some extent departed from, in Currie v. Baldwin, 4 Sandf. 690, where it was held that, if a party amend a frivolous de- murrer within due time, a motion for judgment on the demurrer, as it stood, will be denied without costs. Amendments must be confined to matter in existence at the com : '-ill of the suit. Allegations of subsequent occur- rences are irregular, and will be stricken out. The remedy in such a ci " i a supplemental pleading. Hdrnfager v. Rornfager, 6 Eow. L3, l C. R. (N. S.) LOO. An amendment which involves a change of parties in the action, cannot ! e made at all, as of course, or without the spe- cial leaveofthe court. Russell v. Spear, 5 How. 142; 3C. R. 189. Nor can a substantially new cause of action be introduced by PLEADINGS, AMENDMENT OF BY MOVING PARTY. 341 amendment, without the express leave of the court. Hollister v. Livingston, 9 How. 140 ; Field v. Morse, 8 How. 47. An amendment, claiming "equitable" relief, in addition to legal relief claimed by the original complaint, under the same state of circumstances, was held to be regular, in Getty v. The Hudson River Railroad Company, 6 How. 269; 10 L. 0. 85. An order directing a complaint to be amended in certain par- ticulars, will not preclude the plaintiff from amending, as of course, by the inserting new and material allegations, provided his time for doing so has not expired. The complaint so amended, must not, however, contain any matter directed by the order to be stricken out. It seems, though, that when an amended complaint has been served in conformity with an order, it cannot again be amended without leave of the court, although the time for amending, as of course, may not have expired. Jeroliman v. Cohen, 1 Duer, 029. Restrictions on power to amend.'] — The provision at the close of the portion of sec. 172, as above cited, is new, and was not in the Code of 1849. It affords a valuable safeguard against the abuse of the power to amend as of course. The portion of that section which provides that such an amendment shall not be permitted, where made for'the purposes of delay, has come up for consideration in the following cases, decided since its in- sertion as above noticed. The provision in question was acted upon, and the relative rights of the opposing parties defined, in Plumb v. Whiptples, 7 How. 411. The plaintiff, on service of the answer, noticed the cause for trial, and took an inquest, within the time allowed the defendant to amend; which inquest the court sustained, both because the answer was in itself unamendable, (see same case above noticed,) and also on the following grounds. After notic- ing the defendant's right to amend, the court proceeds: "But the right so to amend is not to prejudice the proceedings already had. Effect is to be given to this provision, and I understand it to have been intended for a case like this under consideration. The plaintiff had a right, when the cause was at issue, to notice it for trial. If the issue noticed for trial still remained, when the time for trial arrived, then he might try the cause, and, if successful, perfect judgment. None of these proceedings are to be prejudiced by a subsequent amendment, even although it 342 PLEADINGS, AMENDMENT OF BY MOVING PARTY. should be made within the time prescribed by the statute. The plaintiff may notice his cause for trial before the time for amend- ing the answer expires. He does so at his peril. That peril is the contingency, that, before he can bring it to trial, the defend- ant may amend, and thus destroy the issue he had intended to try. On the other hand, the defendant takes the time allowed to him to amend, at the peril of all regular proceedings which may be taken against him before he amends. Such proceedings, whatever they may be, are not to be prejudiced by the amend- ment." In Allen v. Compton, 8 How. 251, the above doctrine is car- ried still further, and it was held that an amended answer, served for delay, and at so late a period as to throw the plain- tiff over the circuit, was a nullity, and might be treated as such. An inquest was taken in that case, and the plaintiff's attorney subsequently moved to strike out the amended answer, as pro- vided for in sec. 172, which motion was granted, and that mode of practice sustained, and laid down to be the only mode the plaintiff could take to save the circuit. This latter conclusion is however denied, and it is held that an amended pleading, if served within the proper time, cannot, under any circumstances, be disregarded, in Griffin v. Cohen, 8 How. 451, which lays down the law as follows: "The right to amend is absolute, subject only to the power of the court to strike out for good cause shown. If the amendment is made in good faith, and not for the purpose of delay, it cannot be stricken out, although the effect may be to deprive the opposite party of the benefit of a circuit or term." The court must first pass upon the intent. The proper course of practice is then laid down as follows: "If the amended pleading shall be served during a circuit or term, the court can, upon a proper case being made, require the party amending to show cause, at a shorl day, why the amended pleading should not be stricken Out -Code, sec. 402 — or if, Tor any reason, this cannot be done before the adjournment of the circuit, application may be made at a special term; and, if the case is brought within the pro- vision authorizing the court to strike out, it can be done, and such terms imposed upon the party thus attempting to avail himself of the i tatute of amendments in bad faith, as will pre- vent injury to the adverse party." An inquest taken in that case was thi el aside, under similar circumstances to TLEADINGS, AMENDMENT OF BY MOVING PARTY. 343 those in Allen v. Compton, except that the defendant, and not the plaintiff, was the moving party in this case. In Rogers v. Rathbun, 8 How. 466, a similar view was taken with reference to an amended complaint, and a dismissal taken by the defendant, treating the amendment as a nullit}^ set aside in like manner. Griffin v. Cohen is expressly referred to, and it is held that the decision in Allen v. Compton is not necessarily inconsistent with that practice. The distinction drawn is, that, in the latter case, the plaintiff did not rely solely on the inquest, but expressly moved to strike out the answer, which gave the defendant an opportunity to repel the charge, and explain the suspicious circumstances. The doctrine in Griffin v. Cohen, and Rogers v. Rathbun, seems, on examination, to be preferable. The inquest taken in Allen v. Compton, amounted in fact to little more than surplus- age. It was evidently not relied upon, per se, or the subsequent motion would not have been made ; and, if the motion to strike out be granted, though made after the circuit, it in effect gives the defendant all the benefit, which the species of inchoate in- quest, like that in Allen v. Compton, could have afforded. The case presents a close analogy to the motion for judgment on a frivolous pleading, under sec. 247, in which, the motion, when- ever made, affords all the relief that is requisite, and the prac- tice may well be considered as analogous in all respects. The remedy of striking out seems too to be only appropriate in very gross cases, and the imposition of proper terms to be the more usual course contemplated by the section, as it now stands. This form of proceeding seems also to be clearly in view in Cooper v. Jones, 4 Sandf. 699, in which, after laying down that the right of the party to amend, as of course, after the receipt of a demurrer, is absolute, the court proceeds as follows : " The only exception made by the Code is, that the party shall not amend for the purpose of delay. If it be made for delay, the court will strike it out, or impose terms on the party." § 116. Service of Amended Pleading. It will be observed, that, on the amendment in sec. 172, above noticed, an oversight has been committed by the legislature. As the sentences now run, it might seem that the service of a copy of the amended pleading is only obligatory, in cases where the 344 PLEADINGS, AMENDMENT OF BY MOVING PARTY. power to amend has been abused, and not in those where the pleading is bona fide amended. There can be no question but that the section in general must be construed in this respect, according to its purport, as it stood in the Code of 1849. In every case, therefore, in which a pleading is amended, a full and complete copy must be forthwith served upon the op- posite party; and, if it be not served within the time allowed, the bare amendment of the pleading itself will be an utter nullity. Where, after taking judgment by default against one of several defendants, the plaintiff afterwards amended his com- plaint, in matter of substance, and not of mere form, it was held that he must serve a copy on the defendant in question, and give him an opportunity of defending, if so advised. The People ex rel. Rumsey v. Woods, 2 Sandf. 652, 2 C. K. 18. The fact that, by a subsequent amendment, a previous judgment by default is practically set aside, should therefore be borne in mind by all plaintiffs in similar cases. The above rule as to service is, of course, applicable to all cases whatsoever, whether falling under the principles of the previous, or of the succeeding section. § 117. Amendments by leave of the Court. We now come to consider, in the second place, the nature of the. amendments which will be permitted, on special application to the court for that purpose. The section peculiarly relating to these applications is sec. 173, which runs as follows : § 173. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, pro- cess, or proceeding, by adding or striking out Lite name of any party, or by correcting a mistake in the name of a party, or a mistake in any other re pect, or by inserting other allegations material to the case, or, •when the amendment does nol change substantially the claim or defence, by conforming the pleading <>r proceeding to the facts proved. See Chapman v. Webb, 6 How. 390, 1 C. R. (N. S.) 388, as to word "or," in tin- Last place in which it appears in this section. It will be observed that this provision, though, in its general PLEADINGS, AMENDMENT OF BY MOVING TARTY. 345 scope, it bears reference to the subject now under consideration, is also of wider operation. Whether an amendment of this nature should or should not be allowed at the circuit, is a question addressed to the discre- tion of the judge, and his decision is not the subject of review ; Phincle v. Vaughan, 12 Barb. 215; nor is it a'subject of excep- tion; Brown v. McCune, 5 Sandf. 224. The test as to changing the cause of action or defence, was first inserted in general terms on the amendment of 1841 ; but, by a trifling change in the wording, on its revision in 1852, its operation is now greatly restricted. As it stood on its first in- sertion, the condition precedent, that an amendment should not change substantially the claim or defence, was applicable to all cases whatsoever ; but, by the present language of the section, that condition is expressly confined to amendments after trial, for the purpose of conforming the pleading or proceeding to the facts proved, and is applicable under no other circumstances. In all other cases, it would seem from Beardsley v. Stover, 7 How. 294, that the court, in its discretion, may allow "any alle- gations material to the case" to be inserted in the pleading, even though the effect may be to change entirely the cause of action or defence ; and, in that case, such an amendment was granted, allowing the defendant to add to his answer a counterclaim, pending a reference on the original issue, on proper terms as to time to reply, and a stay of proceedings. Although it rests in the discretion of the court to grant amend- ments in all cases, except the one specified, even though they may have the effect of changing the cause of action or defence ; still, that test has been, and will probably be still imposed in all ordinary cases, not calling for special relief, under special circumstances. It had been already imposed under the Code of 1849, which was silent on the subject. See Brown v. Babcock, 3 How. 305 ; 1 C. E. 66. An amendment, involving an entire change of parties, plain- tiff" and defendant, so as to constitute, in fact, a new suit, was refused in Wright v. Storms, 3 C. E. 138. Where, too, the plain- tiff had first served a complaint for the recovery of goods in replevin, and afterwards amended, making the action as in as- sumpsit, and the defendant had served two separate answers, one to each complaint, and entitled accordingly ; it was held that both the first answer and the amended complaint were bad, and 346 PLEADINGS, AMENDMENT OF BY MOVING PARTY. a motion to strike out the former was granted, leave being given to move to set aside the amended complaint ; in which case, if granted, the first answer was to stand and the second to be set aside. Though irregular, the defendant had no right to treat the amended complaint as a new suit, and to answer in both ; he ought to have moved to set it aside in the first in- stance. See Megrath v. VanWyck, 2 Sandf. 651. See also Spal- ding v. Spalding, 8 How. 297; 1 C. R. 64 ; sed vide, per contra, Dows v. Green, 3 How. 377, where an amendment was allowed, changing the form of action from a claim for damages to one in replevin, on the ground that the cause of action was not changed, but remained the same. The same relief was granted in Furniss v. Brown, 8 How. 59. See also these last views enforced, and applied to the provision as it now stands, in Chapman v. Webb, 6 How. 390 ; ICE. (N. S.) 388, the change being there from contract to tort, on the same cause of action. See likewise Field v. Morse, 8 How. 47, where an amendment to the contrary effect was also sustained. In Houghton v. Latson, 10 L. 0. 82, an amendment, by adding an entirely new ground of defence, was refused, on the ground that such amendment " substantially changed the defence," and was therefore inadmissible, under sec. 178, as last amended. With reference to amendments made for the express purpose of conforming the pleading to the facts proved, it is laid down in Fayv. Grimsteed, 10 Barb. 321, that a fatal variance must leave the case unproved in its entire scope and meaning. If left un- proved in some particulars, it is a subject for amendment upon terms, if the adverse party has been misled by it, otherwise amendments may be made at the trial, and without any condi- tions whatever. An amendment, for the purpose of averring words, on which slander was 1 nought, in the original language, was held not to be, a subi tantial change of the cause of action, and to be admis- sible, in Debada v. Lehind, 1 C. R (N. S.) 235. Where the cause of action is not substantially changed, the courts are disposed to show great liberality on the subject of amendments, involving a change of parties. See Jhitcher v. Slack, 8 11" . 322, I < '. I!. L13; Vanderwerker v. Vanderwerker, 7 Barb. 221 ; Brown v. Babcock, 3 How. 805; 1 C. U. 66; Bemis v. Branson, 1 ( ". R. 27: the two former being cases of adding the names of nee ary plaintiffs, the two latter of striking out PLEADINGS, AMENDMENT OF BY MOVING PARTY. 347 unnecessary defendants. In Barnes v. Ferine, 9 Barb. 202, it was held that a mistake in the names of the plaintiffs, (who in that ease were trustees of a religious incorporation,) was not a ground of nonsuit, and that such mistake could be corrected, on the trial, or afterwards by amendment. In Travis v. Tobias, 8 How. 333, it was held, however, that an amendment striking out a plaintiff, ought properly not to be made instanter on the trial, but on motion, and on just terms. One plaintiff may be substituted for another by amendment, where the interest of the latter has passed entirely to the former, during the action ; and this, even when the matter is actually, at the time of such application, in the course of hearing before a referee. Davis Y.Schermerhorn, 5 How. 440. Objections on the ground of misjoinder of parties, will be, in many cases, disregarded at the trial, but with leave to the parties to apply afterwards for an amendment, in case they should think it prudent, with reference to future proceedings. De Peyster v. Wheeler, 1 C. E. 93 ; 1 Sandf. 719. Where, however, the defect of parties is not merely formal, but actual and important, an amendment of this nature will only be allowed, on payment of all costs since the filing of the original bill. Johnson v. Snyder, 8 How. 498. The name of a next friend was allowed to be inserted in a complaint by amendment, on its being decided that the suit in that case could not be brought by a wife in her own name alone. Forrest v. Forrest, 3 C. E. 254. See also Willis v. Underhill, 6 How. 396. With respect, also, to the subject-matter of the action, and the time within which an amendment will be granted, the courts have shown great liberality ; thus, where, after a reply had been served, the plaintiff, on subsequent investigation, dis- covered that a larger sum was due to him than that originally claimed, he was allowed to amend his complaint in that respect. Merchant v. The N. Y. Life Insurance Company, 2 Sandf. 669; 2 C. E. 66, 87. So, too, where, after answer put in, and after the taking of the testimony of a witness, u de bene esse, ,} it was shown by affidavit of the plaintiff's attorney, that, in drawing the complaint, he, the attorney, had misunderstood the nature and effect of his claim ; an amendment was allowed, on payment of costs. Hare v. White, 3 How. 296, 1 C. E. 70. In Jackson v. Sanders, 1 348 PLEADINGS, AMENDMENT OF BY MOVING PARTY. C. R. 27, a count on a special contract was allowed to be introduced on amendment, in lieu of the common count on two promissory notes ; and, in The Executors of Keese v. Fullerton, 1 C. R. 52, a material averment was allowed to be so introduced on payment of costs, which will be in general, it might indeed be said universally imposed, on the allowance of amendments of this nature. The court, too, will be disposed to allow such amendment, on the adversary's motion to impeach the defective pleading, without putting the party to the expense and delay of a sub- stantive motion for that purpose. /Spalding v. /Spalding, before cited. See also, Weare v. Slocum, 3 How. 397; 1 C. R. 105. Supplemental matter, occurring after the commencement of the suit, cannot be introduced by amendment at all. A supple- mental pleading will be necessary. Homfager v. Hornfoger, 6 How. 13; 1 C. R. (N. S.) 180. In Raynor v. Clark, 7 Barb. 581, 3 C. R. 230, the plaintiff was allowed to amend his complaint, on the reversal of a judg- ment erroneously taken by him. In Lettman v. JRitz, 3 Sandf. 73-4, an amendment of the complaint was allowed after the trial, the object of it being formal, and the defendant not com- plaining of surprise; but terms were imposed. In Clasonv. Corley, 5 Sandf. 454, 10 L. O. 237, it was held that a formal amendment of a bill in equity, which had been already taken pro confesso, not altering the title of the plaintiff to the relief sought, nor the nature or terms of that relief, though made without notice to the defendant, did not render a subsequent decree against him irregular and void. This species of relief, however, will, under ordinary circumstances, be cau- tiously administered. See Field v. Hawxhurst, 9 How. 75. In Fidd v. Morse, 8 How. 47, an amendment, striking out allegations of fraud, inserted in an action on contract, on motion made by the plaintiff, after judgment by default entered on the original complaint was set aside, was held to be admissible and proper. In Balcom v. Woodruff, 7 Barb. 13, a plaintiff was allowed to amend his declaration, after be had been nonsuited, and to do BO nunc />/■•> tunc, as otherwise the statute would have run out; although the court expressly guarded against their decision drawn into a precedent; and In Bu/rnap v. Halhran, 1 ('. It. 51, leave was granted to tho PLEADINGS, AMENDMENT OF BY MOVING PARTY. 349 plaintiff to amend, by adding a new count to Lis declaration, even after two trials had been had, resulting in the defendant's favor; it not appearing that the defendant had been misled, or that the plaintiff sought to introduce a new cause of action. It would not be safe, however, to calculate, in other instances, upon the extent of liberality evinced in the two last decisions. That there is some limit to it, is evinced by the case of Hough- ton v. Skinner, 5 How. 420, where, two trials having already been had, the court refused leave to amend, by pleading a former judgment against a co-defendant, (the suit being one against joint contractors,) the matter sought to be so pleaded having been known to the defendant, before issue was originally joined in the cause, so that it might have been pleaded in the first instance. So in Malcom v. Baker, 8 How. 301, leave to amend an answer, after an appeal from a judgment affirmed at General Term, was refused; though, on that affirmance, leave had been given to the defendants to make the application. It was held that the judgment must first be set aside, before such leave could be given, and that such a motion could not be entertained by the Special Term. Even if this could be done, it should not only appear that the party has been surprised or misled, after the exercise of ordinary care and skill, but also, that the amend- ment asked for is clearly required, in order to promote the ends of justice, before such a stretch of the power of amendment can be consented to. Leave to amend will not be granted for the sole purpose of setting up an unconscientious defence, as that of usury. Bates v. Voorhies, 7 How. 234. See too, Guriter v. CatUn, 1 Duer, 253, 11 L. O. 201. So also, as to setting up a re-sale of property for which notes had been given, as a defence in an action on those notes. Davis v. Garr, 7 How. 311. The subject of amendments on the trial will be reconsidered in the subsequent chapter, devoted to that stage of the action. It is essential, in order to the power of the courts to amend, that the application for that purpose should be made in a suit duly existent. Thus, where, in a suit transferred from a jus- tices' court, the plaintiff had deposited a summons and complaint with the justice; and the defendant, in ignorance of his having done so, had omitted to give an admission of service, within the time prescribed by sec. 56, the court disclaimed any power to 350 PLEADINGS, AMENDMENT OF BY MOVING PARTY. grant relief under those circumstances. No summons had been served, and consequently, no action was pending, in which they could exercise jurisdiction. Davis v. Jones, 4 How. 340; 3 C. R. 63. This objection is, however, capable of waiver, by any proceeding, such as the acceptance of an answer, which recog- nizes the matter as pending. Wiggins v. Tallmadge, 7 How. 404. An amendment, if allowed at all, should be allowed to be made complete, for all the purposes for which it is required. See Tuvck v. Richmond, 13 Barb. 533, in relation to the practice in justices' courts. Amendments of the foregoing nature are, as a general rule, only allowable on payment of costs. See Hare v. White, and Exe- cutors of Keese v. Fidlerton, above cited. In Johnson v. Snyder, 8 How. 498, an essential amendment was only granted, on the terms of the payment of all costs since the filing of the original bill. In Chapman v. Well, 6 How. 390, 1 C. R. (N. S.) 388, it is laid down that an ordinary amendment of the complaint will be allowed, as heretofore, on payment of the costs of the term, and costs of motion, unless the defendant has to change his defence, in which case, he is entitled to the payment of the whole of his costs, up to the time of the amendment. The subject of supplemental pleadings, in respect of matters arising after the commencement of the suit, will be hereafter considered. The amendment of a pleading does notrendcr it a subsequent pleading, so far as verification is considered. Hempstead v. Hempstead^ 7 How. 8. See supra, under the head of Verifica- tion. An order, directing a complaint to be amended in certain particulars, does not debar the plaintiff from amending, as of course, in other respects, within the time allowed for that pur- ; but he will be precluded from inserting any matter directed to be stricken out by the order. When, however, an aded complaint has been actually served under the order, his ii lii to amend, as of course, will be gone, and he can only do so by leave of the court. Jerolvman v. Oohen f 1 Ducr, 629. PLEADING, CORRECTION OF, ON ADVERSE MOTION. 351 CHAPTER IV. OF THE CORRECTION OF PLEADINGS, ON MOTION OF THE ADVERSE PARTY. § 118. Preliminary Remarks. Although, as was the case with regard to the matters treated of in the last chapter, a variety of considerations, arising out of the subject above proposed, are more peculiarly cognizable with reference to particular stages of pleading ; still many also arise, in relation to the subject, when generally considered, in which point of view it will accordingly be here treated. Objections of this nature most usually arise with reference to the insertion of surplus matter. The ordinary remedy, with respect to deficiency in necessary allegations, is by demurrer. On one point alone, is the proceeding by motion applicable in this latter state of circumstances, and that is with respect to indefinite and uncertain allegations. The provisions of the Code on this subject, are as follows : § 1G0. If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defence is not apparent, the court may require the pleading to be made definite and certain, by amendment. § 119. When Motion proper Remedy, or the reverse. The general practice on motions of this nature is thus laid down by the Superior Court in 2 Sandf. 682, Anon. : " On an appeal from chambers, the court decided that, on a motion to strike matter out of a pleading as irrelevant, redundant, or fri- volous, it would be governed by the consideration whether it was in any wise questionable as to the matter being good in point of law. If there were any reasonable doubt of the mat- ter being pertinent, the court should put the party to his de- 352 PLEADING, CORRECTION OF, ON ADVERSE MOTION. murrer. In respect to matter palpably redundant or frivolous, the court will strike it out of course." 26th Jan., 1850. The same principles had been previously laid down by the same court in Corlies v. Delaplaine, 2 Sandf. 680, 2 C. R 117. In all cases where the pleading itself, or any separate state- ment of cause of action or ground of defence therein, is irrele- vant as a whole, and not in part only, the proper mode of rais- ing the question is by demurrer, and not by motion. It then becomes a question of entire insufficiency, not of partial ir- relevancy, and a motion under the above section will, in such cases, be denied. White v. Kidd, 4 How. 68; Fabbricotti v. Launitz, 3 Sandf. 743 ; ICE. (N. S.) 121 ; Benedict v. Dale, 6 How. 352 ; Nichols v. Jones, 6 How. 355. In an unreported case of Belden v. Knowlton, in the Superior Court, the same course was taken, and allegations, refused to be stricken out upon motion, were afterwards held bad upon demurrer. See likewise Harlow v. Hamilton, 6 How. 475 ; Salinger v. Luck, 7 How. 430 ; Bailey v. Easterly, 7 How. 495 ; Reed v. Latson, 15 Barb. 9 ; Watson v.Husson, 1 Duer, 242; Miln v. Vose, 4 Sandf. 660. The same principle was applied to a motion under sec. 248, to strike out, as frivolous, an answer which answered the bill of particulars, and not the complaint, in Scovell v. Howell, 2 C. R. 33. It was held that the plaintiff's proper course would have been to demur. If there is any reasonable doubt about the matter complained of being irrelevant, the party will be left to his demurrer. See Bedell v. Stickles, 4 How. 432, 3 C. R. 105. Defects of this nature may now, however, be reached by a motion to strike out an answer or defence, as irrelevant, under sec. 152 as last amended; which subject, inasmuch as it goes rather to the annulment than to the correction of the pleading, will l»c considered hereafter, and the cases in point cited. The converse of the foregoing proposition is equally sustain- able, and, when; the objection is in any manner of a partial nature, a motion of tin; above description will be the only pro- per c and a demurrer, if resorted to, will fail. Smithy. On nin, 2 Sandf. 702; Esmond v. Van Benschoten, 5 How. 44; Fry v. Bennett, 6 Sandf. 54, 9 I.. O. 330, 1 C. R. (N. S.) 238; Bank of Briti h North America v. Suydam, 6 How. 379, 1 C. 11. "(N. S.) 825. See, al o, Bailey v. Easterly, 7 How. 495; Gray v. A'< /'V , 6 How. 200; see likewise numerous other cases below cited. PLEADING, CORRECTION OF, ON ADVERSE MOTION. 353 In Howell v. Fraser, 6 How. 221, ICE. (N. S.) 270, it was held, that where a pleading is correct in substance, but not in form, the objection, on the ground of uncertainty, should be raised by motion of the above description, and not by demur- rer. See, also, Fry v. Bennett, 5 Sandf. 54, 9 L. 0. 330 ; 1 C. R. (N. S.) 238, as before stated. § 120. When Motion to he made, and how. A motion of this nature must be made at once, and without delay. This was held in Isham v. Williamson, 7 L. O. 340, and Corlies v. Delaplaine, 2 Sandf. 680; 2 C. E. 117; overruling Stokes v.Hagar, 7 L. O. 16, 1 C. R. 84, even before the rules of the Supreme Court were made. The question is now put out of doubt by Rule 40, which expressly provides that motions of this nature, and also those on the ground of a pleading being indefinite or uncertain, " must be noticed before demurring to or answering the pleading objected to, and within twenty days from the service thereof." See also Rogers v. Rathbone, 6 How. 66. In the Appendix will be found a form of notice of motion, under the above circumstances. The notice should specify exactly the parts objected to. This motion being made on the pleading itself, no affidavit will be necessary. See Barrow v. Miller, 5 How. 247, 3 C. R. 241. In case, however, the oppo- site party does not appear, it will be expedient to be prepared with proof, that the pleading moved upon is the one actually served by him, and of the date when it was so served. In Rogers v. Rathbone, 6 How. 66, above cited, the court held that, on a motion of this description, it was incumbent on the moving party to prove affirmatively, when the pleading moved upon was served, so as to show that the motion is made in good time; and the application in that case was denied, though without costs, and without prejudice, the pleading there com- plained of being clearly objectionable. In Barber v. Bennett, however, 4 Sandf. 705, this conclusion is denied, and it was held that it is not necessary for the moving papers to show affirmatively that the motion was made in due time, but that, if such be not the case, the adverse party must show the fact, in the same way that he establishes any matter of defence not apparent in the papers ; and the authority of 23 354 PLEADING, CORRECTION OF, ON ADVERSE MOTION. this case is confirmed by that of Roosa v. The Saugerties and Woodstock Turnpike Road Company, 8 How. 237. The right to make a motion of the above description will be waived, by any proceeding recognizing the adverse pleading as sufficient for ulterior purposes. Thus, it has been held that this right is waived by the ser- vice of a reply, Corlies v. Delaplaine, 2 Sandf. 680, 2 C. E. 117 ; by the service of an answer, Goch v. Marsh, 8 How. 439 ; or even by the extension of the time to answer or reply, Bow- man v. Sheldon, 5 Sandf. 657, 10 L. O. 338 ; Isham v. William- son, 7 L. 0. 340 ; or by noticing the cause for trial, by which the party admits that his adversary's pleading is sufficient to raise an issue, either of law or of fact. Esmond v. Van Ben- schoten, 5 How. 44. Objections to a pleading must not be split up into different motions. They should all be taken at once, or a second appli- cation will not be granted after the failure of the first. Des- mond v. Wool/, 6 L. O. 389 ; 1 C. E. 49. § 121. Irrelevancy or Redundancy. The question as to what will or will not be considered as im- material averments, has already been partially gone into in the first chapter of this part, and, therefore, the cases there cited in full, will be only more slightly noticed here. As might have been anticipated, there has been some discre- pancy between the views of different judges, as to what will or will not be considered as irrelevant allegations, some inclining to a strict, and others to a more extended view of the subject. Stricter View.] — The following are in favor of a strict con- struction of the provision : Where the complaint in slander, after averring a sufficient cause of action, alleged, also, a subsequent usage of the same words <»n divrs days and times, before suit brought, and like- wise of other similar words, not specifically alleged: it was held that no evidence could be given on the latter allegations, and that, on a proper application, they might be stricken out as redundant, but that demurrei >uld not lie. dray v. Ncllis, 6 How. 290. In Benedict v. Seymour, 6 II V. 298, it was held that, unless PLEADING, CORRECTION" OF, ON ADVERSE MOTION. 355 separate causes of action in a complaint be properly distin- guished, and severed into separate allegations, every allegation not essential to a single cause of action, must, if objected to, be stricken out as redundant. Whether this principle is maintain- able to its full extent, seems, however, somewhat doubtful ; and, even if it should be held to be so, leave to amend would doubt- less be granted. The leading case on the stricter side of the question is, how- ever, Dollner v. Gibson. 3 C. E. 153, 9 L. O. 77, before com- mented on, but now reversed by the General Term, as before noticed. Floyd v. Dearborn, 2 C. R. 17, and Pattisonv. Taylor, 8 Barb. 250, 1 C. R. (N. S.) 174, are also decisions, in which the same severely technical principles were carried out, but the authority of which is now more than doubtful. More liberal Vieiv.~] — In Boyce v. Brown, 7 Barb. 80, 3 How. 391, the more liberal view was laid down in the following terms: " The pleadings are to be liberally construed, with a view to substantial justice, and the court is to disregard errors and defects, which do not affect the substantial rights of the party." "It is the duty of the courts, as far as may be, to carry that change into effect, in good faith, and in all its spirit. This must be done by liberal amendments, and by the disregard of even- thing formal." In Whitney v. Waterman, 4 How. 313, a similar tendency was shown, in holding that an order, leaving in immaterial matter, was not appealable, though an order striking it out might be so, if made to appear that such matter involved the merits. The courts have, in fact, generally shown a disposition rather to discourage motions under this section, than the reverse. An answer in which a valid defence is defectively pleaded, cannot be held to be either irrelevant or redundant, and the plaintiff is not bound to take any objection to it on either of those grounds. Gould v. Homer, 1 C.R. (N. S.) 356. In Ingersoll v. IngersoU, 1 C. R, 102, the following test is given, in relation to applications of this nature : "The true test of immateriality of averments in a complaint, is, to inquire whether such averments tend to constitute a cause of action, or would, if taken as true, be material to the cause of action; and, if they do, they will not be stricken out." 356 PLEADING, CORRECTION OF, ON ADVERSE MOTION. See, likewise, Williams v. Hayes, Stewart v. Bouton, Rensse- laer and Washington Plank JRoad Company v. Wetsel, Newman v. Otto, Harlow v. Hamilton, Brown v. Orvis, and Follett v. Jeivitt, below cited. Various Decisions.'] — In one class of cases, it lias been insisted that, in construing this section, full effect must be given to the word "aggrieved," and that, before a party can move to strike out matter from his adversary's pleading, he must show that he is "aggrieved" thereby. White v. Kidd, 4 How. 68; Hynds v. Grisicold, 4 How. 69. In the latter case, the doctrine is laid down most unequivocally, and the learned judge was also inclined to think that a defendant is at liberty to state, in his answer, any facts which it would be material for him to prove at the trial, though such facts may not constitute a complete defence. The general doctrine of these two cases is sustained by sub- sequent decisions, though with some qualifications. In Bedell v. Stickles, 4 How. 432, 3 C. E. 105, the law, as laid down in the last two cases, is mentioned with approbation, and the unfavorable disposition of the court towards these motions is strongly evinced ; it is there laid clown, that the rule, to be acted upon by the court, should be in analogy to that of the old Supreme Court in relation to frivolous demurrers, and that, therefore, in all cases where there was any question, or ground for argument about the matter being irrelevant or not, the application should be refused. The matters complained of must, therefore, under the authority of this case, be clearly and un- doubtedly irrelevant, or the party will be left to his demurrer. The doctrine of the above decisions is also strongly up- held by those of Burget v. Bissell, 5 How. 192, 3 C. R 215 ; The "Rochester City Bank v. Suydam, 5 How. 216; and Hill v. Mc- Carthy, 3 C. I.'. 49, before fully cited in the observations as to in pleading. Sec, also, Esmond v. Van Benschoten, 5 How. -I 1 ; Carpenter v. West, 5 How. 53; Rensselaer and Wash- ington Plank Road Co. v. Wetsel, 6 How. 68; Benedict v. Dake, 6 Nov,-. 852; Clark v. Earwood, 8 How. 470. In Follett v. ./,,/,//. ll L 0. L93, the rule in these oases is thus laid down, viz: that, unless it is clear that no evidence can properly be received under the allegations objected to, they will be retained until the trial. See, likewise, Root v. Foster, 9 How. 37. PLEADING, CORRECTION OF, ON ADVERSE MOTION. 357 The point, therefore, that, on motions of this nature, the old chancery rules, with reference to exceptions for impertinence, will still be substantially carried out; although with the modi- fications necessary in consequence of the fusion of law and equity into one system, (see Williams v. Hayes, 5 How. 470, 1 C. E. (N. S.) 148, below cited,) seems to be established by the above series of decisions. See, likewise, Harlow v. Hamilton, 6 How. 475. In Carpenter v. West, however, the doctrine in White v. Kidd, and Hynds v. Oriswold, as to the necessity of its being shown that the party is actually aggrieved by the matter objected to, is more strictly defined, and in some respects qualified. "My own impressions are," says the learned judge, in that case, " that, as to scandalous and impertinent, irrelevant, and redundant matter, the Code has not in any respect changed the former practice in equity cases." "Its effect upon what, before the Code, would have been cases at law, is not now under con- sideration. If this view is correct, the adverse party may always be considered aggrieved by scandalous, irrelevant, impertinent, and redundant matter, in a pleading. I think one may be considered aggrieved by the interpolation of matter into the pleadings, in a cause in which he is a party, foreign to the case; and he always had a right to have the record expur- gated for that reason, without reference to the question of costs." The learned judge then proceeds to lay down the following lim- itations of the above doctrine: " If relevant, it cannot be scan- dalous. Lord St. John v. Lady St. John, 11 Vese\ r , Jr., 526, Story P. L. 269, and a few unnecessary words will not make a pleading impertinent. Del Pontv. De Tastet, 1 Turn, and Euss. 486; Des Places v. Goris, 1 Edwd. C. E. 350: and courts should be liberal, especially until our novel system of pleading shall have become better settled and understood. Every fact, direct or collateral, tending to sustain the general allegations of the bill, maybe inserted, if done in a proper manner." "Chancellor Kent thought the best test by which to ascertain whether the matter is impertinent is, to try whether the subject of the alle- gations could be put in issue, and would be matter proper to be. given in evidence between the parties." Woods v. Morrell, 1 J. Ch. E. 106. In Williams v. Hayes, 5 How. 470, 1 C. E. (N. S.) 148, the views on this subject, as taken in Carpenter v. West, are fully 358 PLEADING, CORRECTION OF, ON ADVERSE MOTION. concurred in, and the qualifications of the doctrine in Hynds v. Griswold, assented to, by the learned judge who pronounced that decision. "It is not every unnecessary expression or redundant sentence which should be expunged on motion. But where entire statements are introduced, upon which no material issue can be taken, the opposite party may be "aggrieved" by allowing them to remain in the pleading. If not answered, it maybe claimed that such allegations are admitted, and, if denied, the record is embarrassed with immaterial issues. In such cases, it is the right of the adverse party to have the matter improperly inserted in the pleading removed, so that the record, when com- plete, shall present nothing but the issuable facts in the case. This I understand to be the true spirit and general policy of the system of pleading prescribed by the Code." In a previous part of the opinion, the learned judge laid down the general criterion in such cases as being, whether the allegation " can be made the subject of a material issue. If it can, it has a right to be found in the pleadings ; if not, it ought not to be there." See the same principles laid down in The Rensselaer and Wash- ington Plank Road Company v. Wetsel, 6 How. 68, and Stewart v. Bouton, 6 How. 71; 9 L. 0. 353 ; 1 C. E. (N. S.) 404. The converse of this last proposition is laid down in Averill v. Taylor, 5 How. 476, where it was held that no part of a pleading ought to be stricken out, if it can in any event become material. A prayer for relief introduced into the answer in that case, was, on those grounds, refused to be stricken out. The plaintiff could not be prejudiced by it, inasmuch as it did not require a reply, and no issue could be taken on it. In Fabbricotti v. Launitz, 3 Sandf. 743; 1 C. K. (N. S.) 121, before cited, irrelevant matter is defined to be, that "which has no bearing on the subject of the controversy, and cannot affect the decision of the court." See, also, Bright v. Currie, 10 L. 0. loi. 5 Sand£ 433. The grand test of relevancy or irrelevancy would seem, then to be, with some few qualifications, that laid down in various of the above oases, and especially in Williams v. I. f ayes, viz: whether the allegation sought to be impeached can, or cannot, be made the suljcc.l of a material issue. This principle is distinctly and posi lively laid down in New- man v. Olio, I Sandf. 668, with reference to the materiality of allegations in pleading, and how far they will, or will not, be PLEADING, CORRECTION OF, ON ADVERSE MOTION. 359 considered as admitted by non-denial, under sec. 168. See, also, to the same effect, Harlow v. Hamilton, 6 How. 475, above noticed. See, likewise, Brown v. Orvis, 6 How. 376, and Follett v. Jewitt, 11 L. 0. 193. Another general principle is clear, that, in actions formerly of strictly legal cognizance, averments of probative facts are improper, and will, as a general rule, be stricken out as redun- dant. In actions of an equitable nature, greater latitude will be permitted, but, even in these, unnecessary averments of this nature, only going to collateral circumstances, and not tending to establish the main cause of action, will also be objectionable. See in particular this doctrine, as laid down in Wooden v. Waffle, 1 C. E. (N. S.) 392, 6 How. 145, before cited. Statements in pleading may be redundant, and stricken out as such, without being either impertinent or irrelevant. In Howard v. Tiffany, 3 Sandf. 695; 1 C. E. (N. S.) 99, although the. principles as to the latitude of averment in equi- table actions are liberally laid down, still, certain statements of probative facts appear to have been stricken out as irrelevant, though the particulars of those statements are not given in the report: thus showing that the same general rules prevail in equitable as in legal cases ; though wider in their general scope, in those falling under the former category. The doctrine that, in suits for legal relief, facts, and not the evidence of facts, are alone admissible, is positively laid down in Stone v. Be Puga, 4 Sandf. 681 ; Harlow v. Hamilton, 6 How. 475 ; and Leconte v. Jerome, 11 L. 0. 126. A number of minor points have been made the subject of special decision, apart from the general principles above noticed. Matter inserted merely for the purpose of enabling the plain- tiff to obtain an injunetion, was held to be irrelevant, and stricken out in Putnam v. Putnam, 2 C. E. 64. See also Milli- hen v. Carey, 5 How. 272 ; 3 C. E. 250 ; but these cases seem to be overruled by Wooden v. Waffle, Howard v. Tiffany, Minor v. Terry, and others before cited in favor of the more liberal doctrine, in the present chapter, and also in a previous one, under the head of that remedy. The latter view seems clearly preferable. Averments of fraud inserted in a complaint on contract, for the express purpose of laying a foundation for an arrest, were 360 PLEADING, CORRECTION OF, ON ADVERSE MOTION. stricken out in Lee v. EUas h 3 Simdf. 736, 1 C. K. (N. S.) 116. See likewise, Field v. Morse, 8 How. 47. See this subject else- where fully considered, under the heads of Complaint and Ar- rest. The true principle seems to be, that mere collateral cir- cumstances, exclusively bearing upon the provisional remedy, and not on the main cause of action, are clearly redundant. Where, however, the circumstances which render the defendant arrestable form part of the cause of action itself, as in actions for tort, they are clearly averrable, and should unquestionably be averred. Any matter not involving a statement of fact, as, for instance, a series of pretences and charges according to the old chancery system, is clearly redundant, and will be stricken out. Clark v. Harwood, 8 How. 470. So, also, matter stated by way of argu- ment only is clearly redundant. Goiddv. Williams, 9 How. 51. . Where, too, any portion of a pleading is unnecessary, as, for instance, where matter is stated in reply to an answer not con- stituting a counterclaim, it will be held redundant and stricken out. Putnam v. De Forest, 8 How. 146. So also with regard to superfluous counts, inserted in a pleading framed on the model of a declaration under the old practice. /Stockbridge Iron Com- pany v. Mellen, 5 How. 439 ; Root v. Foster, 9 How. 37 ; Dows v. Hotchkiss, 10 L. O. 281. A joint answer by two parties severally liable, but verified by one only, was held to be void as to the party not swearing to it, and stricken out, so far as regarded his defence. Andrews v. Storms, 5 Sandf. 609. The words, " as plaintiff is informed and believes," were held to be redundant, and stricken out of an answer, in IVuscott v. Dole, 7 How. 221, it being laid down that all allegations in an answer must be positively made, the form of affidavit of verification being a suflicient qualification, where made on information and belief. See similar views in Doll- net v. CKbs<• positively made, that form of expression should be used. Matter in mere mitigation of a recovery, and not constituting an affirmative defence to the plaintiff's '-ase, is clearly redund- ant, and will be Stricken out, except in the single case of libel, where a justification is pleaded, but not otherwise. Smithv. Watte, PLEADING, CORRECTION OF, ON ADVERSE MOTION. 361 7 How. 227 ; Newman v. Otto, 4 Sandf. 668 ; Brown v. Orvis, 6 How. 376; Roe v. Rogers, 8 How. 356. See tins subject fully considered hereafter, in connection with pleadings in libel, under the head of Answer. Inconsistent claims, too, are inadmissible in the same plead- ing, and, in such case, the party may be compelled to elect, and the portion rejected will be stricken out. Smith v. Halhch, 8 How. 73 ; Roe v. Rogers, 8 How. 356. A motion in this latter form, is recognized as the proper mode of application, where a pleading is impeached for duplicity, in Gooding v. McAllister, 9 How. 123. It has been held, however, that inconsistent defences are admissible in the same answer. Stiles v. Comstoch, 9 How. 48 ; Ostrom v. Bixby, 9 How. 57. A denial on information only, as a matter within the defend- ant's knowledge, was held to be insufficient, and stricken out accordingly, in Edwards v. Lent, 8 How. 28. • A mere denial of plaintiff's ownership of a note, without alleging title in a third, person, was stricken out, and judgment granted to the plaintiff, in Fleury v. Roget, 5 Sandf. 646. See similar principles laid down in Edson v. Dillaye, 8 How. 273 ; Hull v. Smith, 1 Duer, 649, 8 How. 149. See also Quin v. Chambers, 1 Duer, 673, 11 L. O. 155, as to the partial striking out of matter of this nature. An allegation that a party had unreasonably refused to make partition by deed, with a view to charge him with costs, was held to be irrelevant in McGowan v. Morrow, 3 C. E. 9. In The Stockbridge Iron Company v. Mellen, 5 How. 439, a complaint against a common carrier, containing what amounted to the six different counts of a declaration under the old prac- tice, was held to be clearly bad ; and, unless the plaintiff amend- ed within twenty days, all the causes of action, except the first, were ordered to be stricken out as redundant or irrelevant. See Blanchard v. Strait, 8 How. 83, and Eno v. Woodworth, 4 Comst. 249; 1 C. R. (N. S.) 262, there cited. See, likewise, Wood v. Anthony, 9 How. 78, and Sipjierly v. The Troy and Boston Railroad Company, 9 How. 83, in which a whole com- plaint, defective on this account, was stricken out, to give the plaintiff the opportunity of remodelling it in proper form. In many cases, however, the courts have been less rigid in their application of the doctrine than in the foregoing. Although a defence may not be prima facie sustainable, it does not necessarily follow that it can be stricken out as irrele- 362 PLEADING, CORRECTION OF, ON ADVERSE MOTION. vant: thus, in Hill v. McCarthy, 3 C. E. 49, the setting up an equitable title in an answer in ejectment, was refused to be stricken out, though the court considered that the defence was not sustainable, and that the defendant ought to maintain a separate suit. Allegations as to the due performance of certain ministerial acts by the directors of a Mutual Insurance Company, were re- fused to be stricken out in Herkimer County Mutual Insurance Company v. Fuller, 7 How. 210. Nor will even undue prolixity, of necessity, make a statement of facts redundant. So held in Warren v. Strutter, 11 L. O. 94, Avhere the insertion of the whole of a former chancery pleading in an answer, was refused to be stricken out. This conclusion seems, however, to be open to very great doubt, as regards the circumstances of that peculiar case. The distinction between constitutive and probative fact would seem to have been lost sight of, the pleading so set forth appearing clearly to fall with- in the latter category. A similar principle appears to have been in the view of the court in Johnson v. Snyder, 7 How. 395. Where, too, matter, though clearly redundant, was not prolix, and did not tend to charge or encumber the record, it was held in Clark v. Harwood, 8 How. 470, that it will not be stricken out. With reference to prolixity, as affecting the question of costs under the old practice, see North American Fire Insurance Company v. Graham, 5 Sandf. 197. A party who has himself made distinct though immaterial allegations, cannot impeach his adversary's pleadings in answer to them for redundancy. King v. Utica Insurance Company, 6 How. 485. Nor can lie do so with reference to facts omitted to be averred by himself, but necessary to be alleged by the adverse party. Lord v. Cheeseborough, -1 Sandf. 690, 1 C. R (N. S.)322. Tin' defendant's general power to amend under a demurrer to his answer, was held to be positive; and undeniable, where the proceeding was not taken for delay, although leave granted to him to amend on terms, on granting a previous motion for re - lundancy, had been allowed by him to expire. Cooper v. Jones, -1 Sandf 699. When an appeal from an order of this description has been taken, it acts, during its pendeney, as a bar to bringing on the PLEADING, CORRECTION OF, ON ADVERSE MOTION. 363 cause for trial by the adverse party. Trustees of Penu Yan v. Forhes, 8 How. 285. § 122. Motion for Uncertainty. Objections to pleadings, on the score of indefiniteness or uncertainty, do not appear to be of such frequent occurrence. In /Smith v. Shufelt, 3 C. R. 175, a motion of this nature was refused; though the answer merely alleged, on information and belief, that the plaintiff had received something on account of his demand, and was not entitled to the whole sum claimed. The allegation there appears to have been, at all events, suffi- cient to raise an issue, on which the real question between the parties would be triable. In Wiggins v. Gaus, 3 Sandf. 738 ; 1 C. E. (N. S.) 117, a stricter view was taken, and it was held that two successive answers, pleading a set-off, the first, by mere reference to the complaint, without stating particulars, and the second, in the words of a common count for work and labor in assumpsit, under the old practice, were both of them indefinite and uncer- tain ; and the former of them was stricken out, with costs. In Tollman v. Green, 3 Sandf. 437, it was laid down that a pleading must set forth the case with sufficient certainty, so as to give the court adequate data on which to ground the judg- ment. The criterion here laid down will be useful on motions of this nature, though, in that case, the objection was raised by demurrer, and sustained by the court. The latter proceeding will, in fact, be, for the most part, the proper course under such circumstances. In Blanchard v. Strait, 8 How. 83, leave was given to the plaintiff to amend his complaint, attacked on other grounds, only on condition of his rendering it more definite and certain, the forms of the old counts having been made use of, and the complaint giving no real indication whatever of the facts relied on. See, likewise, Wood v. Anthony, 9 How. 78. In the former case, another objection was made to the com- plaint, which also savored of uncertainty, viz., the not dividing it into distinct and separate allegations, as required by Rule 87 ; and this requisite was also insisted on in Lippincott v. Goodwin, 8 How. 242. In Otis v. Boss, 8 How. 193 ; 11 L. 0. 343, it was considered 364 PLEADING, CORRECTION OF, ON ADVERSE MOTION. that a motion on the above ground does not apply to defences, which consist in mere denials of the plaintiff's allegations, but only to those consisting of new matter involving distinct af- firmative grounds of defence. In West v. Brewster, 1 Duer, 647; 11 L. 0. 157, it was held that this remedy does not apply to cases in which the action is for an account, the particulars of which are omitted to be set forth, but which can be demanded under sec. 158 ; nor to those cases in which the plaintiff demands an account from the de- fendant, of matters within his own personal knowledge, and a statement of which he is bound to furnish. Nor will a bill of particulars be ordered, of items which may enter' into the computation of damages, in an action brought under the statute, by the representatives of a deceased person, deprived of life by the negligence of the defendants. Murphy v. Kipp, 1 Duer, 659. COMPLAINT, AND COLLATERAL PROCEEDINGS. 365 BOOK VII. OF THE PLEADINGS IN AN ACTION, AND THE PROCEED- INGS IN CONNECTION THEREWITH, DOWN TO THE JOINDER OP ISSUE. CHAPTER I. OF THE COMPLAINT, AND THE PROCEEDINGS COLLATERAL THEREWITH. § 123. General Definition. This pleading answers to the declaration at common law, or the bill in chancery, under the old practice. It contains the statement of the case of the plaintiff, under which he seeks relief, and a definition of the relief sought by him. It is, therefore, the foundation of the action, and the original source of all other proceedings, down to the period of its final termi- nation. In justices' courts, as before remarked, the complaint, and all other pleadings, are verbal, except in certain cases, before ad- verted to. Statutory Provisions.'] — The provisions of the Code on the subject of this important' pleading, are as follows: § 141. The first pleading on the part of the plaintiff, is the com- plaint. § 142. The complaint shall contain: 1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant. 366 COMPLAINT, AND COLLATERAL PROCEEDINGS. 2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. 3. A demand of the relief, to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated. § 124. Formal Requisites. Titled — The first requisite, then, for the regularity of a com- plaint, is, that it should be properly entitled, a precaution which ought indeed to be observed, with reference to every pleading or proceeding in the cause. The questions as to the name of the court in which relief is sought, have already been antici- pated, and the cases thereon cited, under the head of Summons. It is peculiarly essential that this should be properly stated in the complaint, and that the names of the parties should also be correctly given. A practice has obtained of occasionally enti- tling this pleading, by the name of the plaintiff, and the name of the first defendant alone, with the words " et aV subjoined, to signify that there are others. This seems to be decidedly incorrect, and contrary to the evident meaning of the statute. It is, however, one of that species of objections which the court will, in no case, allow to be insisted upon, to the obstruction of justice. Thus, in Hill v. Thacter, 3 How. 407, 2 C. E, 3, where the complaint was entitled, "Emily Hill, &c. v. Christian Thacter, instead of Emily Hill, by Daniel Hill, her guardian, that title was sustained, inasmuch as the facts of Daniel Hill's guardianship, and the names, were correctly given in the body of the complaint itself. This is, however, one of those cases of occasional occurrence, which serve rather as beacons to point out the mistakes to be avoided, than as guides in any respect whatever. Venue.} A.nother point essential to the proper entitling of a complaint, ia the statement of " the name of the county in which the plaintiff desires the trial to be had." In courts of special jurisdiction, i uch as the New York Superior Court, and Court of Common Pleas, this precaution is not necessary. The name of the COUTt itself, points out, with certainty, the place where the trial is to be had. In all other cases, however, the precaution is absolutely essential. COMPLAINT, AND COLLATERAL PROCEEDINGS. 367 The governing sections of the Code on the subject of fixing the venue, are 123 to 125, inclusive. By sec. 123, actions in respect of real or specific personal property, must be tried in the county, in which the subject of the action, or some part of that subject, is situate, and the venue must be laid accordingly; and, by sec. 124, the venue as to actions for penalties and for- feitures, and against public officers, for acts done in the execu- tion of their offices, is also declared to be local, except as regards offences committed on rivers, &c, between two counties, in which case, the action may be brought in either. In foreclosure, the venue must be fixed in the county, or in one of the counties in which the mortgaged premises are situate, without regard to that in which the loan was actually made. Miller v. Hull, 3 How. 325 ; 1 C. E. 113. The foregoing rules do not apply, however, to actions in which the people are a party. In these, the venue may be laid in any county in the State ; so held in People v. Cook, 6 How. 448. This rule seems capable of being extended so as to create great hardship, if enforced too rigidly, and in all cases. In Auchincloss v. Nott, 12 L. O. 119, it was held by the Supe- rior Court, that a bill for specific performance of a contract was not a local action, and, accordingly, that the court had juris- diction, though the estate in question was situate in another county. In actions not of a local nature, the venue may be fixed in any county in which the parties, or any of them, reside, at the commencement of the action ; or, if none of the parties reside in the State, the plaintiff is at liberty to designate any county he may choose. • In all these cases, however, the plaintiff's power to fix the venue, is subject to the defendant's right to change it, if improperly fix'ed, or to move the court for a change on other grounds, which subjects will be treated of hereafter. In relation to actions by the People, see The People v. Cook, supra. The decision in that case proceeds on the ground that the people are resident in every county, and an action may accordingly be brought in their name in any. Other Formalities.'] — Attention must be paid to the number- ing of the folios, and the separation of causes of actions, under Rules 44 and 87, before referred to. See heretofore as to formal requisites of pleading. 368 COMPLAINT, AND COLLATERAL PROCEEDINGS. § 125. Statement of Cause of Action. General Remarks.} — The next requisite as to the due prepa- ration of the complaint, is that prescribed by subdivision 2, with reference to the proper statement of the cause of action. The observations as to the necessary averments of fact in this pleading, have, in a great measure, been anticipated in the pre- ceding chapters. It remains, then, to point out some considera- tions applicable to the proper form of complaint, separately con- sidered, in different special cases. In every instance, as before observed, the statements in it should be strictly confined to facts, establishing, or tending to establish the main cause of action, or the plaintiff's right to some peculiar relief arising out of it, and this with regard to the essence of that relief, and not to its mere form ; nothing collateral, nothing unconnected, nothing merely probative, is, strictly speaking, admissible under any circum- stances. Whatever be the state of facts to be pleaded, whether simple or complicated in its nature, those facts must be stated as plainly and as concisely as possible, without any unnecessary or avoidable repetition whatsoever ; and also with sufficient clearness,' so as to give the court adequate data on which to ground a judgment. If this last be not the case, demurrer will lie. Tollman v. Green, 8 Sandf. 437. The main grounds of objection, to be more peculiarly guarded against in the framing of the complaint, will be found collected at sec. 144 of the Code, under the head of Demurrer. See here- after on that subject. The plaintiff's counsel must be especially- careful, that the facta ou which the jurisdiction of the court, or the plaintiff's i it to sue depends, should be specially and plainly averred, in all cases which admit of any doubt as to either. All facts necessary to confer jurisdiction, must, of necessity, appear upon the record. Frees v. Ford, 2 Sold. 170. He must also direct his peculiar attention to the joinder of all proper parties, and to tli" making n clear, and, above all, a sufficient statement of of action sought to be established, taking ire to separate and classify the latter, where more than on I to be enforced in the same proceeding. The rules with reference to the pleading of judgments, pri- vate statutes, or the performance of a condition precedent, as COMPLAINT, AND COLLATERAL PROCEEDINGS. 369 contained in sees. 161, 162, and 163 of the Code, and before noticed, will, of course, be borne in mind in the framing of com- plaints where allegations of those natures are necessary. § 126. Joinder of Causes of Action. Statutory Provisions^] — By section 167, special provisions are made upon this last subject as follows : § 167. The plaintiff m-iy unite in the same complaint several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of 1. The same transaction, or transactions connected with the same subject of action ; 2. Contract, express or implied ; or 3. Injuries, with or without force, to person and property, or either ; or 4. Injuries to character ; or 5. Claims to recover real property, with or without damages for the withholding thereof, and the rents and profits of the same ; or 6. Claims to recover personal property, with or without damages for the withholding thereof; or 7. Claims against a trustee, by virtue of a contract, or by operation of law. But the causes of action, so united, must all belong to one of these classes, and must affect all the parties to the action, and not require dif- ferent places of trial, and must be separately stated. Separation of Statements. ,]— By Eule 87, inserted on the last revision, it is now prescribed that " in all cases of more than one distinct cause of action," &c. r " the same shall not only be sepa- rately stated, but plainly numbered." This practice, which had already become general, owing to its obvious advantages, is now imperative. See this subject heretofore considered, and the cases of Blanchard v. Strait; Getty v. Hudson River Railroad Company] Benedict v. Bake, and Lippincott v. Goodwin, there referred to. See likewise Sjiencer v. Wheelaclc, 11 L. 0. 329, in which the complaint was clearly bad on that ground. In Benedict v. Seymour, 6 How. 298, it is held that, where several causes of action are joined in one complaint, they must be properly separated and distinctly averred : the words, " and for a further cause of action the plaintiff complains," &c, being suggested, though not imperatively, as the proper mode of sepa- 42 370 COMPLAINT, AND COLLATERAL PROCEEDINGS. ration. If this be omitted, every allegation, not essential to a single cause of action, must, if objected to, be stricken out as redundant. Whether this severely technical view is fully sus- tainable, remains to be settled hereafter ; and doubtless, in the event of any motion under these circumstances, leave to amend would be given. There can be no question, however, but that the form of complaint here prescribed is at once the simplest and the most expedient, and that the wisest course will be to follow implicitly the directions given, when possible. The necessity of complying with the above provision, and separately stating different causes of action coming under the same head, is demonstrated by the case of Durkee v. The Sara- toga and Washington Railroad Company, 4 How. 226, subse- quently cited under the head of Demurrer, in which the com- plaint was held to be bad on that ground. In Pike v. Van Wormer, 5 How. 171, the same principle is applied to cases of slander, and it is laid down, that separate statements under the Code are equivalent to the separate counts of a declaration under the old practice. In White v. Low, 7 Barb. 204, it seems to have been consi- dered that an action could not lie, by the endorsee of a note, against the makers and endorsers jointly. The causes of action do not, in that case, appear to have been separately stated. If they had been so, there can be no doubt but that the reverse would have been held. Joinder generally considered.'] — The question as to the possibi- lity of including claims for legal and equitable relief in the same pleading, before settled, or nearly so, is now put out of doubt by the changes effected in the earlier part of the section. Subdivision 1 of sec. 167, as above cited, was inserted on the last amendment of the Code, and extends the possibility of joinder of causes of action, to an almost indefinite extent, when arising OUl of the same transaction ; except in so far as that sub- division lb controllable by the supplementary clause at the end of the section. That it is SO controlled, was held in Tompkins v. White, 8 How. 520, where tin 1 joinder of two claims, in respect of the same premises, the one against both defendants, for recovery of pos- session and damages, tin 1 other against one only, for rents re- ceived, was held to be incompatible; and a demurrer was sus- COMPLAINT, AND COLLATERAL PROCEEDINGS. 371 tained, on the above ground, and likewise on that of the incon- sistency of such causes of action. It has been likewise held that the same subdivision only com- prises such causes of action as are consistent with each other, and not such as are contradictory. Thus, in Smith v. Hallock, 8 How. 73, it was held that the plaintiff could not seek to reco- ver, in the same action, the possession of a piece of land held by the defendant under a lease, and likewise damages for ob- structing a right of way over part of it, claimed by the plain- tiff, as not comprised in the lease there in question. In Hulce v. Thompson, too, 9 How. 113, it was held that two causes of action, the one in ejectment for a house and one part of a farm, and the other for trespass on other portions of the same property, committed by the same defendant, who occupied both, were not connected with the same subject of action, and, as such, were improperly united ; and a demurrer was allowed accordingly. , The same doctrine as to the impossibility of uniting incom- patible causes of action had been held, previous to the amend- ment, in Alger y. Scoville, 6 How. 131, 1 C. E. (K S.) 303, with an express view to which decision, the amendment in question would appear to have been passed. In that case the question of demurrer, on the ground of misjoinder of causes of action, is treated at great length. The view sought to be enforced by the plaintiff's counsel was, that any number of causes of action, primarily arising out of contract, however diverse and incon- sistent the nature of the contracts sought to be enforced might be, were capable of being joined in one complaint, as all falling within the terms of subdivision 1, of 1851 ; and this, although some of such causes of action did not affect the whole of the defendants, but only some of them individually, in separate capa- cities; and although some of them were moreover classifiable under other divisions of the section, and in particular as claims against a trustee, under subdivision 7 : although all might be said, in some manner or other, to arise out of " contract, express or implied." This view was .most emphatically overruled by the court, the following principles being laid down in the course of the decision : "A legitimate construction of this section, will not permit the joining of causes ©f action, which belong to more than one class. Although many actions for the recovery of real or personal property arise out of contract, still, they are 372 COMPLAINT, AND COLLATERAL PROCEEDINGS. not to be united with a simple contract for the payment of money. Each subdivision must be interpreted with reference to the others, and the provision made in the 5th and 6th, for the recovery of real and personal property, to which title is given by contract, shows that the legislature did not intend to include those contracts in the first class; otherwise, many actions would fall under more than one head, and the different classes run into each other ; and thus the object of classification would be defeated." • The last clause of the section is then referred to, as fixing the meaning of the legislature, in terms which cannot be mis- understood, and as "equivalent to saying that every cause of action belongs but to one class, and expressly forbidding the union of causes belonging to different classes;" and the practi- cal inconvenience of different issues being joined in the same action, some triable by a jury, and. others by the court, is strongly enforced. Separate demurrers of the different defendants, on the ground of the joinder of causes of action, some arising out of ordinary money contracts, and others against trustees, as such; and like- wise on the ground that such causes did not jointly affect all the parties to the action, were therefore allowed, and judgment given accordingly. The authority of this case is unquestionably shaken, to a great extent, by the amendment of the section, and the insertion of subdivision 1, as it now stands; under which, there seems no doubt as to the power of uniting, in the same proceeding, any number of causes of action, arising out of the same transaction, however inconsistent such joinder may be with the general principles' of pleading, as theretofore established. The principles as to the impossibility of uniting causes of action, which are practically incompatible, as laid down m Alger v. Scoville, seem, on the contrary, to be sound, and to subsist still, notwithstanding the amendment; and this view is con- firmed by the recent decisions above cited. On that amendment, the word "only," on which great stress was laid in Alger v. Scoville, '..ii out, of the concluding sentence; but this alteration ■■ to be little, if at all, more than a change in ■ words, as they at present stand, seem certain- ly capable of bearing the instruction, if no more; and it WOllld, indeed, lie a matter of difficulty to contend that such is COMPLAINT, AND COLLATERAL PROCEEDINGS. 373 not still their sound interpretation. Independent of the above considerations, and even assuming that the views on which the recent amendments appear to be grounded are sustainable to their full extent, the decision in Alger v. ScovlUe seems unassail- able, under the particular circumstances of that case, on the ground that all the causes of action there joined, did not affect all the parties to the action, some of them, on the contrary, affecting some, and others, others of the defendants only, in separate capacities. In Calioon v. Bank of Utica, 7 How. 134, a still more restricted view was taken than in Alger v. Scoville, and on similar grounds; but that decision seems clearly unsustainable, and was reversed by the Court of Appeals, in Cahoon v. The Bank of Utica, Court of Appeals, 30th December, 1852, 7 How. 401, on the ground that the case was clearly one in which the different objects pro- posed might all have been combined, in one suit in equity, under the old practice. The following cases, decided prior to the amendment in ques- tion, seem clearly deprived of their authority by its terms: The first of these is Be Bidder v. iSchzrmerhorn, 10 Barb. 638, in which it was held that causes of action against a debtor, on a sealed contract, and a guarantor of the debt, by another sealed instrument, on the same paper, could not be joined. The authority of this decision seems indeed doubtful, even under the law as it stood before, and without regard to the amendment. It is in direct conflict with Enos v. Thomas, 4 How. 48. In that case, a contract had been entered into by one instrument, and a guaranty for payment of the amount due added at its foot, and both principal and surety were sued thereon in the same action; under which circumstances, a demurrer, on the ground of misjoinder, was overruled, it being held that the two instruments, taken together, were to be regarded as one trans- action, and, consequently, as forming only one cause of action. Enos v. Thomas, 4 How. 48. The next decision falling under this class. is Cobb v. Boivs, 9 Barb. 230, in which similarly restricted views to those above noticed were taken, in relation to the impossibility of suing for the value of goods converted by the defendant, on the ground that such an action sounds partly in tort, and partly in contract. The same is the case with regard to Furniss v. Brown, 8 How. 59, in which a demand for specific performance of a contract, 374 COMPLAINT, AND COLLATERAL PROCEEDINGS. and for delivery of its subject-matter, and a claim for damages in respect of a delay in that performance, were held to be incapable of joinder in the same action. See, too, Pugsley v. Aikin, 14 Barb. 114, where a complaint against executors, for the occupation of the same premises, partly by the testator, and partly by themselves, as executors, since his death, was also held bad for misjoinder. Lastly, in /Spencer v. Wheeloclc, 11 L. O. 329, the joinder of causes of action against a debtor under simple contract, and his guarantor by instrument in writing, was held to be incompatible, in a complaint framed as for a common law recovery, and on one single count, against both parties. The complaint in that case was doubtless bad, for want of separation of the distinct causes of action ; but, in other respects, the doctrine, as there laid down, seems very questionable, and entirely inconsistent with the subdivision now in question, which does not appear to have been noticed, either by counsel or by the court. In the following cases, the general principle, as laid down in that subdivision, is recognized: In Bogardus v. Parker, 7 How. 305, it was held that, in a suit for a partition, an account might be taken in respect of a defend- ant's alleged rights to a specific lien on the premises, and that claims on the property might be disputed as between co-defend- ants, and tried and settled in the same action, if those claims involved interests in, or liens on the property sought to be partitioned. In Ricart v. Townsend, 6 How. 460, it was held no misjoinder, to unite the survi ving partner with the representatives of another deceased, in an action on a contract of the former copartner- ship. In Rodger8 v. Podgers, 11 Barb. 595, it was held that a rever- sioner might combine in the same proceeding against the tenant for life, a cause of action for wrongfully cutting wood, and also one for conversion of the wood, when cut, where such causes affect the Bame parties. An action against the personal representatives, and also the devisees and heirs of the same testator, to recover a debt due from his estate, will clearly be bad, even though the same par- ties be entitled to the whole property, both real and personal. The statute is imperative, and requires the creditor, inallcases, to resort to the personalty in the first instance, and to the COMPLAINT, AND COLLATERAL PROCEEDINGS. 375 descended real estate in the second, before resorting to property in the hands of devisees. The joinder in the same pleading of causes of action against parties standing in these three several, and, as it were, successive capacities, is therefore clearly incom- patible, and cannot be effected. Stewart v. Kissarn, 11 Barb. 271. See, likewise, Roe v. Swezey, 10 Barb. 247. The fusion of subdivisions 2 and 3, of 1851, into subdivision 3 of the present measure, carries out the views previously laid down to the same effect in Howe v. Pechham, 6 How. 229, 10 Barb. 656, 1 C. K. (N. S.) 381, and Qrogan v. Lindeman, 1 C. R. (1ST. S.) 287, where claims for damages in respect of personal injury, consequential upon injuries to property forming the main subject of the suit, were held to be capable of joinder in one complaint, as forming part of one entire cause of action, and incapable of being separately asserted. See Sheldon v. Carpenter, 4 Comst. 579. In reference to subdivision 4, it has been held that a cause of action for malicious prosecution may be joined with one for slander; they are both "injuries to character." Watson v. Hazard, 3 C. R. 218. "Crim. con." has been held to be an injury to the person, and to fall, as such, within subdivision 2. Delamater v. Russell, 4 How. 234; 2 C. R. 147. The questions as to misjoinder of parties, will be found further treated of under the head of Demurrer. With reference to the above classification, the division to which the action will be ultimately held to belong, will be determined by the nature of the relief demanded in the com- plaint. Spalding v. Spalding, 3 How. 297, 1 C. R. 64; Dows v. Green, 3 How. 377. See, likewise, Rodgers v. Rodgers, 11 Barb. 595. In Maxwell v. Farnam, 7 How. 236, it was held that a plain- tiff cannot so frame his complaint to recover the possession of personal property, as that, if he fail to recover the property itself, he can obtain damages for its conversion ; and the com- plaint in that case, seeking a re-delivery, and also damages for conversion, was held bad on demurrer. In Spalding v. Spalding^ and Dows v. Green, above noticed, a similar course was attempted by the plaintiffs. In both these cases, judgment was demanded for the value of property unjustly detained, thus bringing the action under subdivision 3, but subsequent proceedings were instituted, in order to recover possession of the property itself, 376 COMPLAINT, AND COLLATERAL PROCEEDINGS. which, if allowed, would have brought the case under sub- division 6 ; such subsequent proceedings were accordingly set aside, on the principle above stated. In Otis v. Sill, 8 Barb. 102, it was, in like manner, held that a claim for a specific equitable lien upon property, could not be enforced in an action to recover possession thereof. The same principle also prevailed in the case of Cahoon v. The Bank of Utica, 4 How. 423, 3 C. E. 110, in which it was decided, that a claim for money had and received, could not be joined in the same complaint with one founded on a refusal to deliver up certain promissory notes, alleged to have been satis- fied; though both claims arose out of the same transaction ; and the case of the Commercial Bank Y.White, 3 How. 292, 1 C. R. 68, is precisely to the same effect. This last conclusion is, however, clearly overruled. It was reasserted in another case of Cahoon v.. The Bank of Utica, 7 How. 134, but distinctly reversed by the Court of Appeals, 30th December, 1852, 7 How. 401, as above noticed. The other cases above referred to, in relation to replevin, seem also open to a similar qualification, with reference to subdivision 1, as it now stands. In Pettit v. King, decided by the Court of Appeals, 31st Dec, 1852, it was held that the plaintiff could not recover in trover, when the evidence showed a rightful sale of the property in question by the defendant, as a trustee, but a detention of the surplus produce; a claim against a trustee cannot be united in the same action with one for the wrongful conversion of pro- perty. § 127. Right of Plaintiff to sue. The general aspect of this question, and the various rights of parties to commence an action, when laboring under disability, or acting in right of others, have already been fully considered, and Qumi rous ca es in relation thereto cited, in a previous chap- ter, under the bead of Parties, to which the reader is therefore referred. In addition to the instances there stated, a few more matters in this connection require consideration, which fall appro- priately under i be prei ent head. The complaint In an action must conform to the summons, COMPLAINT, AND COLLATERAL PROCEEDINGS. 377 and a variance between them will be fatal. Thus, where the plaintiff issued the summons as administrator, but framed his complaint as suing in his own right, the proceedings were set aside on the above ground. Blanchard v. Strait, 8 How. 83. It is competent for a plaintiff, if he so think fit, to waive tort, and sue upon contract in respect of the same transaction, as under the old practice. Hinds v. Tweddle, 7 How. 278. An action against both of the parties to a joint and several contract, binding them not to exercise a certain trade within certain limits, was held to be unsustainable, on allegations of a breach by one of them only, and a demurrer was allowed on that ground. Lawrence v. Kidder, 10 Barb. 641. Where two partners had agreed to dissolve copartnership, and that the concerns of the firm should be wound up by one of them only, it was held that, pending that winding up, the other partner could not institute proceedings for the appoint- ment of a receiver, no fraud being alleged. Weber v. Defor, 8 How. 502. In Costigan v. Newland, 12 Barb. 456, it was held that an agent, holding moneys in his hands, which his principal was in effect liable to pay over to a third party, was not responsible to, and could not be sued by the latter, though notified of his claim. To his principal, however, an agent who has received and neglected to pay moneys over, is directly responsible, and can be sued without any previous demand. Ilickok v. Hickok, 13 Barb. 632. One agent or servant of a common employer cannot, as a general rule, maintain an action against such employer, for injury sustained by reason of the misfeasance or negligence of other parties, standing in. the same capacity. Sherman v. Ro- chester and Syracuse Railroad Company, 15 Barb. 574. Where, though, the employer is himself chargeable with any negligence in respect of the facts out of which such injury arose, this rule will not hold good. It only applies to those cases where the accident happened without any actual fault of the principal, either in the act which caused the injury, or in the selection and employment of the agent by whose fault it hap- pens. Keegan v. The Western Railroad Company, Court of Ap- peals, 12th April, 1853. Where, however, injuries happened to third parties, through the negligence of sub-contractors, employed by the party who 378 COMPLAINT, AND COLLATERAL PROCEEDINGS. held the preceding contract, it was held that the original em- ployers were not liable. Pack v. The Mayor of New York, Court of Appeals, 12th April, 1853; Gent v. The same, same court, 18th April, 1854. In The Mutual Insurance Company of Buffalo v. Eaton, 11 L. O. 140, it was held that an Insurance Company, who had paid a loss occasioned by collision, could not maintain an action in their own name against the wrong-doer; but that such an action could only be brought in the name of the owner of the property injured; it being further held, that the company, under such circumstances, has a right to bring an action in that form, on indemnifying the actual plaintiff, and would be pro- tected against his acts. A demurrer was accordingly allowed on that ground. In Cook v. Genesee Mutual Insurance Company, 8 How. 514, it was held that one of several assignees of an entire demand, might maintain a separate action, in the nature of a suit in equity to recover his part. An administrator may sue on a promissory note, made to him as such, either in his private or his representative capacity. And, in an action under the Code, it is not necessary for him to make profert of his letters of administration. Bright v. Currie, 5 Sandf. 433 ; 10 L. O. 104. In Merritt v. Seaman, 2 Seld. 168, the same doctrine is laid down, as to the right of an executor to sue, at his election, under similar circumstances. A party, acting as next friend of a plaintiff under disability, will not be concluded as to his own rights in the premises, by reason of his allowing his name to be made use of in that capa- city. Darwin v. Hatfield, Court of Appeals, 30th Dec, 1852. An action will not lie upon a voluntary subscription paper. It is a mere nudum pactum, with no consideration to uphold such a promise. Stoddard v. Cleveland, 4 How. 148. A subscription to the stock of a company, formed for a profit- able object, and which entitles the party to shares in the under- taking, does not, however, fall within this category, and an action can be maintained upon it. Oswego and Syracuse Plank Hond, ('unifa,,!/ v. A'"-/, 5 Bow. 390. The defendants were also there beld to be precluded from questioning the plaintiffs' legal existence as :i corporation, by having subscribed for their stock. See Dutchess Cotton Manufactory v. Davis, 14 Johnson, 238. The allegation that the defendants subscribed for their shares, COMPLAINT AND COLLATERAL PROCEEDINGS. 379 was held to imply, legally, that they were the owners of and entitled to such shares, and to render a specific allegation of consideration, by virtue of the subscription, unnecessary. In Barnes v. Perine, 15 Barb. 249, it was held by the general term, that a subscription paper for the erection of a church edifice could be upheld, and an action maintained upon it, as a common law contract, on parol evidence of actual consideration having been given, though otherwise unsustainable ; and, evi- dence being given in that case, that the trustees of the church had removed and rebuilt the church in question, on the faith of the subscription paper there sued upon, an action upon it was maintained. See decision at special term, to same effect, reported 9 Barb. 202. In Dambman v. The Empire Mill, 12 Barb. 341, it was held that it was competent for a general creditor of an insolvent cor- poration to institute a suit, and to apply for a receiver of its effects, under' the general powers of the court, and without reference to the provisions of the Eevised Statutes, which give a similar remedy, on petition, to the holder of a judgment and unsatisfied execution against a body so situated. An action under the statute of 1847, in respect of the death of a party, caused by the negligence of a steamboat company, is properly brought by the personal representative, though the existence of parties who have sustained a pecuniary loss must be averred. Safford v. Drew, 12 L. 0. 150. In relation to corporations in general, the following decisions have been made : The Board of Health of the city of New York is not a body corporate, or capable of being sued as such. Gardner v. The Board of Health, 4 Sandf. 153. Affirmed by Court of Appeals, 30th Dec, 1852. A member of an incorporated association cannot maintain an action in his own name, as such, for the benefit of the associa- tion, without showing his right to sue affirmatively. The gene- ral agent of such a society is, however, competent to do so, in his character of trustee. HaLicht v. Pemberton, 4 Sandf. 657. The trustee of a company, not a corporation, to whom or to their successors in office, a note is made payable by name, may however maintain an action on it, though others may have suc- ceeded them as trustees. Davis v. Garr, 2 Seld. 124. The proceedings of an inferior tribunal of a municipal cor- 380 COMPLAINT, AND COLLATERAL PROCEEDINGS. poration cannot be reviewed in an action for that purpose, or otherwise than by certiorari, addressed to the subordinate body. Bouton v. The C ity of Brooklyn, 7 How. 198; 15 Barb. 375. One foreign corporation cannot sue another by attachment, unless the cause of action has arisen, or the subject of the action be situate within the State. The Western Bank v. The City Bank of Columbus, 7 How. 238. In relation to the doctrine of res judicata, and how far a prior recovery or award will or will not act as a bar to a subsequent suit in respect of the same, or of collateral matters, see here- after in the chapter on Answer, under the head of defensive allegations. § 128. Averments of Fact, generally considered. The question as to the joinder of causes of action, and the rights of plaintiffs to sue, having thus been disposed of, the next that presents itself for a brief notice, is that as to averments of fact in a complaint, generally considered, though this subject has, in a great measure, been anticipated in a preceding division of the Avork. Facts, not Conclusions, or Evidence.~] — The facts of the plaintiff's case form, and form alone, the proper subjects of averment in the complaint; and conclusions of law necessarily arising there- out, as, for instance, a promise to pay, in the case of goods sold and delivered, or indebtedness, where the facts themselves show the defendant to be indebted, need not be formally alleged. The general principle on this subject is laid down in Olenny v. Hitchim, A-. How. 98, 2 C. E. 5G, in the following words: "Now, the complaint is good if it contain a statement of the facts constituting the cause of action, in ordinary language. A detail of the evidence of facts on the one hand, and legal infer- ences on the other, arc to be alike avoided." The complaint in that ca e was for salt- and delivery of goods, and was demurred to as containing do allegations of liability, or of a promise to pay ; but such demurrer was overruled, inasmuch as both arc mere conclusions of law, to be drawn from tlje facts as pleaded, and are, therefore, nol n arj to I"- averred. In Tucker v. Ruehton, 2 0. R. 59, 7 L. 0.815, similar princi- are Laid down, and a pleading, omitting any allegations of value of goods furnished to the defendant, or of a promise to COMPLAINT, ATS"D COLLATERAL PROCEEDINGS. 331 pay for them, was sustained, though commented upon as care- lessly drawn. In Neefus v. Kloppenburgh, 2 C. E. 76, the com- plaint alleged that the defendant was "indebted to the plaintiff on an account for flour sold and delivered," &c, and. was de- murred to, on the ground that the legal conclusion was thereby pleaded, and not the facts. This demurrer was stricken out as frivolous, at special term ; but the general term reversed the order, on the following grounds: " The Code prescribes the form of the complaint. It is not to contain results or conclusions of law, but the facts themselves, out of which the conclusion arises. In this case, the sale and delivery are the facts which constitute the cause of action, the indebtedness is the result." The court, though refusing to pronounce the demurrer frivo- lous, gave, however, no opinion as to its ultimate fate. The view taken in the above cases, is strongly enforced in Milliken v. Oarey, 5 How. 272, 8 C. C. 250, before cited. Eno v. WoodworthyA Comst. 249, 1 C. E. (N. S.) 262, is likewise de- cisive authority to the same effect. It is also sustained in Hoxie v. Cushman, 7 L. 0. 1-19 ; Castles v. Woodhoitse, 1 C. E. 72 ; and Anon. 8 How. 406, subsequently cited under the head of Answer. "Where, however, indebtedness is stated as a fact, and not as a conclusion of law, a denial of it may form a pro- per subject of averment in the answer. See Anon. 2 C. E. 67, also there cited. In Oarvey v. Foivler, 4 Sandf. 665, 10 L. 0. 16, the following general principles are laid down, on the subject of the framing of complaints, under the Code. After laying down, as one of the merits of that measure, that the system of general aver- ments, which conveyed no information to the opposite party, is abolished, the learned judge proceeds as follows: "The plain- tiff must now state in his complaint all the facts which consti- tute the cause of action ; and I am clearly of opinion that every fact is to be deemed constitutive, in the sense of the Code, upon which the right of action depends. Every fact which the plain- tiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be dis- tinctly averred, and every such averment must be understood as meaning what it says, and, consequently, is only to be sus- tained by evidence which corresponds with its meaning." Similar principles to the above will be found enounced on the subject of Answer or Eeply, in Beers v. Squire, 1 C. E. 84; Pin-- 382 COMPLAINT, AND COLLATERAL PROCEEDINGS. son v. Cooley, 1 C. B. 91 ; McMurray v. Gifford, 5 How. 14 ; Mier v. Cartledge, 8 Barb. 75 ; 4 How. 115 ; 2 C. E. 125 ; Mullen v. Karney, 2 C. E. 18 ; Bentley v. Jones, 4 How. 202 ; Bussell v. Clapp, 4 How. 347 ; 7 Barb. 482 ; 3 C. E. 64; Barton v. Sackett, 3 How. 358 ; 1 C. E. 96 ; Benedict v. Bake, 6 How. 352 ; and other cases also before and subsequently cited. In the more recent case of Mann v. Moreioood, 5 Sandf. 557, the principle is stated as follows : "A complaint must state the facts upon which the plaintiff relies, as establishing his right to maintain the action ; not, instead of those facts, the inferences which the pleader may deem to be conclusions of law. It be- longs to the court to draw the legal conclusions from the facts, which are alleged to constitute the cause of action, and, to ena- ble the court to perform that duty, all those facts must be stated in the complaint." In Blanchard v. Strait, 8 How. 83, it is laid down that the facts constituting a cause of action, must now be set forth in a plain, direct, definite, and certain manner, or the pleading will be objectionable. In Clark v. Harwood, 8 How. 470, it is held that the plaintiff is to state the facts which constitute his cause of action, and nothing more. In Hall v. Soutlimayd, 15 Barb. 32, similar general principles are laid down. See likewise, Lienan v. Lincoln, 12 L. O. 29. In Horner v. Wood, 15 Barb. 371, it is decided that, in alleging a change of interest under a contract, the fact of such change is all that is necessary to be averred, without going into minute particulars. This last case also hvys down the principle that facts, and not the evidence of facts, form alone the proper subject of aver- ment in a complaint, as in all other pleadings. See this subject considered in extenso, and numerous cases cited, in the prelimi- nary chapter of the preceding division of the work. Obi Forms, how far adaptable.] — The old forms of counts in a declaration arc, as a general rule, inadmissible as forms of state- ment of a cause of action. "A more definite, certain, and truth- ful statement should be given." Blanphard v. Strait, 8 How. /•; : Woodworih, I Cdmst. 249; 1 0. It. (N. S.) 262; as likewise Sipperly v. The Troy and Hoy-ton Railroad Company, 9 How. 83. In a modified degree, however, and with proper cur- tailment, du< being also paid to the proposition that the proper subject of statement under the Code is, not the conclusion COMPLAINT, AND COLLATERAL PROCEEDINGS. 383 of law, but the facts from which that conclusion is derived ; the old forms may be usefully employed as partial, though never as total precedents. See Hall v. Southmayd, 15 Barb. 82 ; Bows v. Hotchkiss, 10 L. O. 281 ; Leopold v. Poppenheimer, 1 C. R. 39 ; Shaw v. Jayne, 4 How. 119; 2 C. R. 69; Stockbridge Iron Com- pany v. Mellen, 5 How. 439. General Averments abolished.'] — The old system of general aver- ments, which conveyed no information to the opposite party, is altogether abolished. See Garveyv.Foiuler, above cited. Thus, in Smith v. Lochwood, 18 Barb. 209 ; 10 L. 0. 232, 1 C. R. (N. S.) 319, a general averment, that the acts of the defendant were contrary to statute, without setting forth in what manner, was held not sufficient, and that such a complaint must set forth facts, by which the court can see that the plaintiffs have sus- tained, or will sustain some legal injury, or it will be bad on demurrer. See the same conclusion come to with respect to a penal statute, in Morehouse v. Crilhy, 8 How. 481. Although, in these proceedings, the facts which bring the case within the statute, and not a mere breach of the statute, must be avowed : still, on the other hand, it is equally essential that, in actions under any special statutory provision, the com- plaint should strictly conform to the statute sued under, and that statute should be specially referred to. Schroeppel v. Com- ing f 2 Comst. 132. In an action in respect of professional services, a general aver- ment of the render of such services previous to a specified date, without giving any details whatever, was held to be good, on the ground that it was in the defendant's power to obtain the information he wanted by demand under sec. 158, or by motion under sec. 160. Beekman v. Plainer, 15 Barb. 550. In West v. Brewster, 1 Duer, 647 ; 11 L. O. 157, the same principle was applied to an action against an attorney, for moneys collected by him, and a motion to render the complaint more definite and certain was refused. Averments on Belief, various other Decisions.'] — The question as to how far averments may or may not be made on the belief of the party, has been already considered, and the cases cited in the previous chapters. As a general rule, they should be positively made, in all cases where such a form of statement is not manifestly inadmissible. 384 COMPLAINT, AND COLLATERAL PROCEEDINGS. In actions by a receiver, it is essential that the fact and mode of his appointment should be distinctly averred. . White v. Low, 7 Barb. 204. When the plaintiff sues in his own name, but for the benefit of a numerous class of persons, under the powers given for that purpose by sec. 119, his complaint must contain a distinct aver- ment to that effect, or he cannot maintain the suit. Smith v. Lockwood, 10 L. O. 12 ; 1 C. E. (N. S.) 319. In an action against a surety, under a bond given on arrest, the fact that the person bringing the action is the party ag- grieved, must be averred in terms. Rayner v. Clark, 7 Barb. 581 ; 3 C. E. 230. In an action brought under the statute of 1817, by the repre- sentative of a party killed by accident, the fact that there are a widow, or next of kin, who have sustained pecuniary loss, must be specifically averred. Saffordv. Drew, 12 L. 0. 150. In Suits by Corporations^] — The following decisions are appli- cable to suits by corporations : In a suit by a foreign corporation, the complaint need not state the act of incorporation or charter at large, or even by refer- ence. Ilolyoke Bank v. Ilaskins, 4 Sandf. 675. The mere allega- tion that the plaintiffs sue as a corporation is sufficient; every thing beyond is matter of evidence on the trial. Stoddard v. The Onondaga Annual Conference, 12 Barb. 573 ; Union Mutual Insurance Company v. Osgood, 1 Duer, 707. It was held, how- ever, that, if the fact be controverted by the answer, it will be necessary to be proved affirmatively on the trial. Waterville Manufacturing Company v. Bryan, 14 Barb. 182. Id Bemom v. Tagnot, 5 Sandf. 153, it is, in like manner, held that it is sufficient to aver that a contract, sought to be enforced, wras in violation of a municipal ordinance, when such ordinance founded on Statute, without pleading the statute itself; and thai this rule holds good, as well concerning statutes of local, il application. Sec similar principles, as laid down in Horner \. Wood, 15 Barb. 871; sec likewise Goelet v. ' '/•//. 1 Duer, !•"■'. In The People v. The Mayor of Nop York, 7 IIow. 81, it is aver held, that this principle does not hold good with refer- to the ordinances of the Common Council of New York, and that they arc not public acts, in such a sense that they can be noticed, without being specially pleaded. COMPLAINT, AND COLLATERAL PROCEEDINGS. 385 Other Points.] — In Mason v. Jones, 13 Barb. 461, will be found the particulars of an allegation of the due making and proof of a testator's will, passed upon by the court in that case as sufficient. It is not absolutely necessary, though in all cases it will be advisable, to show affirmatively on the face of the complaint, that a debt sued for had become due before the com- mencement of the action. Maynard v. Talcott, 11 Barb. 569. The word " due," in a general sense, imparts, not merely indebt- edness, but that the time when payment should have been made has elapsed. Allen v. Patterson, Court of Appeals, 30th Decem- ber, 1852. In The Bochester City Bank v. Snydam, 5 How. 254, also no- ticed, 3 C. E. 249, a long and interesting discussion will be found on the subject of averments in a complaint, grounded on confidential communications made to an attorney, and as to the circumstances under which such communications may or may not be made use of, and the party considered as exempted from the usual obligation of secresy in such cases. Recovery must he secundum allegata, <£c] — In framing aver- ments of any kind, the fact that the plaintiff can only recover " secundum allegata" must be borne in mind, as the fundamental doctrine of all pleading whatsoever. In Livingston v. Tanner, 12 Barb. 481, it is held that this rule is as applicable to actions brought under the Code, as it was before its adoption ; that mea- sure requiring, more than ever, the true cause of action to appear upon the complaint. See likewise Field v. Morse, 7 How. 12. In Bristol v. Rensselaer and Saratoga Railroad Company, 9 Barb. 158, the doctrine that the plaintiff can only recover secun- dum allegata, is also strictly maintained. The omission of alle- gations that the defendants were common carriers, that they had received, or were to receive, compensation for carrying the goods, for the non-delivery of which the action was brought, and that they were to receive a reward for carrying those goods, were held to constitute fatal defects. No allegations having been made of those facts, it was accordingly decided that they could not be proved. If, too, a demand of the goods be necessary, to show the plaintiff's right of action, it ought also to be alleged in the complaint. The referee's report in that case was accord- ingly set aside, on the above grounds. 25 386 COMPLAINT, AND COLLATERAL PROCEEDINGS. In Bailey v. Ryder, Court of Appeals, 30th Dec, 1852, it is distinctly laid down that no decree can be made in favor of a complainant, on grounds not stated in his bill. The absence of allegations of fraud in a proceeding in equity, was therefore held to preclude all proof of that nature. In Field v. The Mayor of New York, 2 Seld. 179, it is likewise held that facts proved but not pleaded, are not available to the party proving them. In Mc Curdy v. Brown, 1 Duer, 101, the complaint was also dismissed, on the ground that the pleading did not correspond to the proof. When the complaint showed upon its face that the plaintiff's demand was barred by the Sta- tute of Limitations, a mere allegation that the trustees against whom the suit was brought had acted in their representative capacity, by bringing a suit within ten years, without any aver- ment that, by means of that suit, they had received any money, was held to be insufficient to avoid the statute, and that demur- rer would lie. Genet v. Tallmadge, 1 C. E. (N.S.) 346. In Bennett v. American Art Union, 5 Sandf. 614, 10 L. O. 132, the complaint was dismissed, because on its face the plaintiff had no title to relief. A defect of this nature is fatal at any stage of the action. Noxonv. Bentley, 7 How. 316. A complaint, seeking consequential damages merely, in re- spect of the performance of acts authorized by statute, cannot be maintained, and demurrer will lie. Gould v. Hudson River Railroad Company, 12 Barb. 616. See, also, Getty v. The same, 8 How. 177. § 129. Averments of Fact in special Cases. We now come to the consideration of the cases peculiarly applicable to the different forms of complaint, on different causes of action, separately considered. Averments in Tort, where Defendant arrestable.'] — Considerable discussion baa arisen as to the necessity of inserting express averments of fraud in the complaint, in cases where the defend- ant is arrestable under the conjoint provisions of sees. 179 and 288. In Barber v. Hubbard, 3 C. B. 156, the poinl was left open, and it was considered by Edmonds, J., that there vas no impro- priety in inserting averments of that nature In Oridley v. COMPLAINT, AND COLLATERAL PROCEEDINGS. og7 McCumber, 5 How. 414, 3 C. E. 211, it was positively held that, in order to warrant an execution against the person under sec- 288, such averments are indispensable ; and the same doctrine is laid down still more strongly by King, J., in Barker v. Russell, 1 C. E. (N. S.) 5. In Corvoin v. Frceland, 6 How. 241, it was likewise laid down at the general term that, where the cause of arrest exists at the time of drawing the complaint, it should be stated in it. The decision in Barker v. Russell was, however, reversed by the general term of the same court in Barker y. Russell, 11 Barb. 803, 1 C. E. (N. S.) 57, similar doctrines having been previously held in Secor v. Roome, 2 C. E. 1. In Lee v. Elias, 3 Sandf. 736 ; 1 C. E. (N. S.) 116, the like view was most strongly enounced by the Superior Court, and averments of this nature were stricken from the complaint as redundant. See also Che- ney v. Oarbutt, 5 How. 467 ; 1 C. E. (K S.) 166 ; Masten v. Scovill, 6 How. 315. This view is further confirmed, and the above conclusion, as stated in Corwin v. Freeland, dissented from, in Field v." Morse, 7 How. 12. See subsequent application in the same case, reported 8 How. 47 ; and statements of the same nature are equally inadmissible, when introduced for the first time in the reply. Brown McCune, 5 Sandf. 224. The above conflict of opinion would seem to have been since settled, and the views taken in the latter class of cases decided to prevail, by the Court of Appeals. See 8 How. 49, in report of case of Field v. Morse, 8 How. 47, where the doctrine as stated in Cheney v. Garbutt is said to have been confirmed. On a review of the practice, as now settled by these various^ decisions, the proper course to pursue will be to state the cause of arrest shortly and concisely in the complaint, as a direct, but not as a probative fact, wherever that cause exists as part of the main cause of action, and not collaterally to it, as, for instance, in actions for torts, or debts fraudulently contracted, If the cause of arrest be of a collateral nature, such as an intended removal, a statement to that effect will, on the contrary, be inadmissible, as being in its very nature a probative, and not a principal fact. See this view, as laid down in Masten v. Scovill t 6 How. 315, above cited. Slander and Libel.'] — In slander, the precise words used must be stated in the complaint, or demurrer will lie; nor will it be 388 COMPLAINT, AND COLLATERAL PROCEEDINGS. expedient to omit a statement of time and place, though, the latter omission is not demurrable. Finnerty v. Barker, 7 L. 0. 316. The words used must be alleged as having been spoken in the presence and hearing of some one, or the complaint will be defective. Wood v. Gilchrist, 1 C. E. 117 ; Anon., 3 How. 406. An averment to this effect will be the only really safe practice in all cases, though it has been held that the word "published," if used, imports an uttering in the presence and hearing of others, " ex vi termini." See Duel v. Agan, 1 C. E. 134. Where the slanderous words have been spoken in a foreign tongue, they must be averred in the original language, with an additional allegation, showing their meaning, and that the par- ties to whom they were used understood it. Lettman v. Ritz, 3 Sandf. 734. See, also, Pike v. Van Wormer, 5 How. 171 ; 6 How. 99; 1 C. E. (N. S.) 403; and Debaix v. Behind, 1 C. E. (N. S.) 235. In Phincle v. Vaughan, 12 Barb. 215, it was held that the imputation of false swearing under oath, without any averment that the words complained of were spoken in reference to a judicial proceeding, was not slanderous per se, and a nonsuit under those circumstances was maintained ; though it was con- sidered by the court that, if an amendment had been allowed, by inserting an allegation of words proved on the trial, to the effect that if the plaintiff "had had his deserts, he would have been dealt with in the time of it," the action might then have been maintained. It was held in Baker v. Williams, 12 Barb. 527, that slander would lie for an imputation of perjury, on an affidavit made before a justice of the peace, in order to obtain an attachment against a defaulting witness, though such oath was orally taken. Slander is maintainable by a husband, in respect of slander- ous words Bpoken of his wife, affecting her health and spirits. Ohn tead v. Brown, 12 Barb. 657. Words not alleged in the pleadings cannot be given in evi- lence, Rundell v. Butler, 7 Barb. 260; but insinuations, made in indirect terms, may nevertheless be actionable. In slander, allegations of a subsequent usage of the words complained of, and likewise of other defamatory expressions not cifically averred, are inadmissible, and no evidence can be given upon tie m; and, on a proper application, they might be' stricken out as redundant Gray v. NeUis, 6 How. 290. COMPLAINT, AND COLLATERAL PROCEEDINGS. 389 Where several causes of action in slander are united in the same complaint, they must be separately stated, or demurrer will lie ; Pike v. Van Wormer, 5 How. 171 ; and the same case may be consulted as to what will or will not be held as sufficient averments in cases of that nature. See also 6 How. 99 ; 1 C. R. (N. S.) 403. The imputation of insolvency against a petty trader is action- able. Carpenter v. Dennis, 3 Sandf. 305. In cases of either libel or slander, a bare allegation that the defamatory matter had application to the plaintiff, is all that is necessary to be pleaded. No extrinsic facts, for the purpose of showing that application, need be stated ; though, of course, if the allegation be controverted, those facts must be proved at the trial. See Code, sec. 164. Where, however, a statement of extrinsic circumstances is necessary to show the meaning of the words themselves, that statement must be introduced. Pike v. Van Wormer, above cited. Nor is it necessary to aver malice in terms, where the publication complained of is libellous on its face. The law will imply it on proof of the facts. Fry v. Bennett, 5 Sandf. 54, 9 L. O. 330; 1 C. R. (N. S.) 238; How- ard v. Sexton, 4 Comst. 167; Buddington v. Davis, 6 How. 401. In Stanley v. Webb, 4 Sandf. 21, 3 C. R. 79, the law of privi- leged communications in cases of libel will also be found fully considered, and a number of authorities cited. Snyder v. 'Andrews, 6 Barb. 43, contains also a long discussion on the law of libel in general, and both cases may be referred to with advantage. See also Cook v. Hill, 3 Sandf. 341, subsequently cited, and Howard v. Sexton, 4 Comst. 157. In Cook v. Hill, 3 Sandf. 341, it was held that no action would lie in respect of a memorial to the Postmaster-General, charging fraud against a successful candidate for a government contract. The communication was held to be a privileged one, if the statements contained in that memorial were true; but other- wise, if they were false. See, likewise, Buddington v. Davis, 6 How. 401. Although a full, fair, and correct report of a. trial in a court of justice is privileged, the report must be confined to the actual proceedings, and must contain nothing in addition, nor does the privilege extend to ex parte preliminary proceedings before a magistrate. The publisher must find his justification, not in the privilege, but in the truth of the publication. Stanley v. Webb, 390 COMPLAINT, AND COLLATERAL PROCEEDINGS. above cited. See similar principles laid down in Huffy. Bennett, 4 Sandf. 120. An act has recently been passed by the legislature on this subject, (Laws of 1854, c. 130, p. 314,) by which it is provided as follows: § 1. No reporter, editor or proprietor of any newspaper, shall be liable to any action or prosecution, civil or criminal, for a fair and true report in such newspaper of any judicial, legislative, or other public official proceedings, of any statement, speech, argument or debate in the course of the same, except upon actual proof of malice in making such report, which shall in no case be implied from the fact of the publica- tion. § 2. Nothing in the preceding section contained shall be so construed as to protect any such reporter, editor or proprietor, from an action or indictment for any libellous comments or remarks superadded to, and interspersed, or connected with such report. § 3. This act shall take effect immediately. In Streeter v. Wood, 15 Barb. 105, the preferring of charges by one member of a lodge against another, in due form, was held prima facie to be a privileged communication, and, if made in good faith, no action would lie. In relation to the general privilege of an attorney, in reference to communications between him and his client, see The Rochester City Bank v. Suydam, 5 How. 254, 3 C. R 249. In Weed v. Foster, 11 Barb. 203, an imputation of the receipt of money for procuring a public appointment, made against an influential politician, was held to be libellous per se. In libel, it is not necessary to aver express malice, or want of probable cause ; these points rather belong to the measure of proof, than to the form of pleading. Purdy v. Carpenter, 6 How. 301. In Bennett v. Williamson, 4 Sandf. GO, it was held that an imputation of pleading the Statute of Limitations unfairly, was not libellous per se, there lieing no charge that the plaintiff made that plea dishonestly. In the same case, a distinction is drawn between tg or writing the same words, and it is held that libel in such cases may lie, w here slander will not. Slander of Utile.] -In bindenv, Graham, 1 Duer. 670, 11 L. O. it, was held, with reference to the cognate subject of Slan- der of Title, that it is essential, in these cases, to name the per- COMPLAINT, AND COLLATERAL PROCEEDINGS. 391 sons who refused to loan or purchase in consequence of the act complained of, and that, if not, the complaint will be demur- rable. Breach of Promise of Marriage, &c.~] — In cases of breach of promise of marriage, the form of the old declaration in such cases may be substantially followed, with some few necessary abbreviations. See Leopold v. Poppenheimer, 1 C. K. 39. In relation to an action for seduction, see Knight v. Wilcox, 15 Barb. 279. An action of the former nature sounds clearly in tort, and is not a debt within the meaning of the Homestead Exemption Act of 1850. Newman v. Cook, 11 L. 0. 62. False Imprisonment.'] — In actions for false imprisonment, the complaint must be confined to a simple pleading of the fact, according to the old practice ; and any statements of the attend- ant circumstances, will, if objected to, be stricken out as frivo- lous. Shaw v. Jayne, 4 How. 119 ; 2 C. E. 69. In relation to the powers of a justice in issuing a warrant upon slight cause, and the extent to which such warrant will afford protection to the parties acting under it, see Wilson v. Robinson, 6 How. 110, holding a strict, and Campbell v. Ewalt, 7 How. 399, a very liberal view of the question. Assault and Battery.'] — In assault and battery, and other ac- tions of a like nature, the old forms of declaration may also advantageously be consulted, with a view to framing the com- plaint in concise and legal language, of course pruning away all unnecessary repetitions. In Root v. Foster, 9 How. 37, statements as to the intent of the defendant, and the ridicule brought upon the plaintiff by his conduct, were refused to be stricken out. Though not essen- tial to entitle the plaintiff to sustain his action, they were mate- rial on the question of damages, and might be proved. Actions against Common Carrier. — The first count of the former declaration in these cases has also been held to be a proper form of averment in a case of this nature, Stockbridge Iron Company v. Mellen, 5 How. 439, but the succeeding ones were there stricken out as redundant. In relation to a carrier's power to restrict his common law liability, see the recent case of Moore v. Evans, 14 Barb. 524. 392 COMPLAINT, AND COLLATERAL PROCEEDINGS. § 130. Averments of Fact in special Cases continued. 2. Averments in Contract. Suits on written Instruments, Performance of Conditions prece- dent.'] — With reference to the numerous class of actions arising upon written instruments, or in which, in a general point of view, the performance of some condition precedent has to be pleaded, the provisions of the Code have been greatly extended by the amendments of 1851. The section in reference thereto, sec. 162, now stands as follows : § 162. In pleading the performance of conditions precedent in a contract, it shall not be necessary to state the facts, showing such performance, but it may be stated generally, that the party duly per- formed all the conditions on his part; and, if such allegation be contro- verted, the party pleading shall be bound to establish on the trial the facts showing such performance. In an action or defence, founded upon an instrument, for the payment of money only, it shall be suffi- cient for the party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party, a specified sum, which he claims. The whole of the last section is new, and it seems obvious that this provision must be construed with considerable limita- tions. Taken by itself, and without reference to other provi- sions, or to general principles of law, it would seem to author- ize a party, who founds his action upon a written instrument for payment of money only, simply to give a copy of that in- strument, and to state what is due to him, and to do no more. According to this rule, if so carried out, a party suing on a policy of insurance, or the plaintiff in an action against an endorser or guarantor of a promissory note, need only give a copy of the instrument on which he makes his claim, without alleging, on t tie one band, the Loss claimed upon, or due present- ment and due notice to the endorser or guarantor on the other ; although, in the former case, the Loaa itself would form, in fact, the whole cause of action, and, in the latter, the facts thus left out are positive conditions precedent, essential to be performed, before tin; party sought to be charged is liable to be sued at all. it would be easy to multiply similar instances, but the two COMPLAINT, AND COLLATERAL PROCEEDINGS. 393 above given will suffice to show that such a construction, if carried out to its full extent, would involve a practical ab- surdity, if not an utter impossibility in practice. It seems obvious that the utmost limit to which the powers of this section can legitimately extend, is with reference to ac- tions brought directly by the party in whose favor a written instrument is made, against the party making it: and this, only where the claim sued on arises solely under the terms of that instrument itself, without reference to external circumstances, or to the performance of external conditions. The provision in question appears, then, really to amount to little more than permission to the party pleading to give a copy of the instru- ment sued upon, instead of an abstract of its contents, a per- mission which practically existed before. It might possibly, indeed, be held as dispensing with the necessity of making the ordinary allegations as to the making and delivery of the in- strument in question ; but even with regard to these, the wis- dom of omitting such allegations seems more than doubtful under any circumstances, or, at all events, until the courts have finally and decidedly pronounced on the true construction of the words employed. The clause then, when scrutinized closely, seems so wide and so loose, that, until its actual scope has been clearly and accurately defined, it would be unsafe to rely upon it in any case, or in any respect whatever ; especially as the adoption of this course is, at the best, entirely optional, and the old established forms of allegation in such cases are in no manner impeached or abolished. It might even be contended that, instead of giving parties increased facilities of averment, it rather tends to diminish those they already possess, and to impose upon the pleader a sort of quasi necessity of giving a copy of the instrument sued upon in all cases, or rather, strictly speaking, to render this the more advisable course. The legis- lature, no doubt, meant to give increased facilities, but it seems somewhat questionable whether they may not, in fact, have imposed increased restrictions, to be observed, as a matter of prudence, at least, if no more. Bills or Notes — Observations on last Point] — The above obser- vations have peculiar application to the different questions which have arisen, with respect to the proper form of averment in actions upon bills or promissory notes. Until the proper con- 394 COMPLAINT, AND COLLATERAL PROCEEDINGS. struction of section 162 has been settled, and firmly settled by judicial construction, it would, in the writer's opinion, be a matter of the gravest imprudence to depart, in any essential particular, from the forms as now established, or to omit any one allegation which is now looked upon as essential, except in so far as it may now be looked upon as advisable, in some cases, to give an actual copy of the bill or note sued on, with all its endorsements. In Lord v. Checseborough, 4 Sandf. 696 ; 1 C. K. (N. S.) 322, principles are laid down in exact accordance with the views above stated. The complaint in that case was on a promissory note, and was framed in precise compliance with sec. 162, as now amended. There was, accordingly, no allegation that the plaintiffs were the holders or owners of the note there in ques- tion, or that the note was ever delivered to the plaintiffs, or to any one, by the defendants, or any thing, except the allegation that a specified sum was due to them on the note, which they claimed from the defendants. An answer, taking issue on the transfer and delivery of the note, and the ownership of the plaintiffs, and objecting to the complaint as not stating facts sufficient to constitute a cause of action, was refused to be stricken out as frivolous, and the complaint held to be defect- ive, on the ground of the above omission ; leave being given to amend. See also The Bank of Geneva v. Gulick, 8 How. 51 ; and the same doctrine had been previously shadowed out in Ranney v. Smith, 6 How. 420, in relation to the statement of a set-off of this description. In Alder' v. Bloomwgdcde, 1 Duer, 601 ; 10 L. O. 363, such a complaint was held bad upon demurrer, it being held that, when not only the instrument itself, but ex- trinsic facts are necessary to be proved to enable the plaintiff to recover, the existence of those facts, as constituting part of the cause of action, must be averred on the complaint; demand of payment and notice of refusal being held to be facts of this description, as regards the endorser's liability. On in. • other hand, the Genera] Term of the First District have beld, in Roberta v. Morrison^ 11 L. 0. 60, that, under the above ciroumsf;in<-i . :i complaint, merely giving a copy of the note and endorsement, was sufficient to charge an endorser. The point, therefore, still remains unsettled by any dominant authority, and the cautions above given remain worthy of, at least, serious consideration, if no more. COMPLAINT, AND COLLATERAL PROCEEDINGS. 395 Endorser's Liability, Protest, Notice.'] — The following decisions, made partly before, and partly after the insertion of the clause above noticed, have reference to the endorser's liability, and the proper mode of averment, in order to an action against him being duly sustained. Taken together, they constitute an addi- tional inducement to act upon the doctrine laid down in the majority of the cases last cited, by taking, in all cases, the safer course of laying a sufficient basis in the allegations, for the unquestioned introduction of evidence of all the facts necessary to be proved for the above purposes. In Spellman v. Weider, 5 How. 5, where a complaint had been made against both the maker and the endorser of a promissory note, the following rules were laid down by the court as neces- sary to sustain a proceeding of that nature: "The complaint, in order to conform to the Code, should state facts enough against the maker to show his liability to pay, and enough against the endorser to charge him with the debt. In the latter case, not only the making and endorsement of the note should be stated, but also the demand of the maker at the time and place prescribed for that purpose, and notice of such demand, and of non-payment, to the endorser." After going further into detail on the subject of these requisites, and showing vari- ous omissions in the complaint in these respects, the court said : "As against the maker, this was of no consequence ; but, as the plaintiffs have chosen to unite both maker and endorser in the same action, their statement of facts should have been full enough to show the liability of both." Both parties having been irregular, the difficulty was there solved by a Rule allow- ing the plaintiffs to amend, and the defendants to put in a new answer or demurrer, without costs to either. The details as to presentation and demand of payment, need not be specially set forth, in order to charge an endorser. It will be sufficient to allege that the note was "duly" presented, and payment "duly" demanded. The facts must, however, be proved, as of course, on the trial. Gay v. Paine, 5 How. 107 ; 3 C. R. 162. A long discussion on the contract of endorsement, and on the. subjects of protest and notice of dishonor, will be found at 9 L. O. 226, where the bill of exceptions, in a case of Beats v. Peck, is given in full, but no decision is reported. On the law of bills and notes, in general, see Van Namee v. The Bank of Troy, 5 How. 161. 396 COMPLAINT, AND COLLATERAL PROCEEDINGS. In The Montgomery County Bank v. Albany City Bank, 8 Barb. 396, the law as to the due presentment of bills will be found full j laid down: the conclusion being, that presentment for payment is indispensable, in order to charge the endorser, but that presentment for acceptance is not absolutely necessary, though highly advisable. This decision has since been affirmed by the Court of Appeals, 30th Dec. 1852. InWalker v. The Bank of the State of New York, 13 Barb. 636, it was held, however, that, where a bill had been presented for acceptance by the agent of the holders, and was not accepted according to its form and tenor, the agents should have treated the bill as dishonored, and given notice of non-acceptance to the endorsers ; for which neglect, the endorsers were held to be dis- charged, and the agents liable to their principal; and this deci- sion has been affirmed by the Court of Appeals, 18th April, 1854. The endorser was also held, in Kingsley v. Vernon, 4 Sandf. 361, to be discharged, by false information given to him by the holder of the bill as to its having been paid, though such infor- mation proved to be erroneous, and was honestly given. In Cook v. Litchfield, 5 Sandf. 330, 10 L. O. 330, since affirmed by the Court of Appeals, 31st Dec. 1853, as to the general princi- ple; the subject of protest and endorsement are very fully consi- dered, it being held, that mere formal omissions in the notice will not vitiate it, provided the facts stated contain all necessary in- formation. It must contain such a description of the note as may enable the endorser to ascertain its identity, and must also communicate the fact of its dishonor. See likewise Knopfel v. Senfert, 11 L. 0. 184. See also The Cayuga County Bank v. War- den, below cited. Where, however, the notice admits of any doubt as to the note referred to, the reverse will be the case. Thus, on the affirmance of Cook v. Litchfield, by the Court of Appeals, above noticed, it was held that the notice of the first note there sued on w;i- sufficient, though couched in general terms, no other note to which that notice could be applicable having at that time become due; hut that the same form of notice was insufficient to charge the endorser, as to the other note there in question, there being, at the time when each became due, two or more note-: in existence, to which the terms of that notice would equally apply. See notes of Court of Appeals, 31st Dec, 1853. On the question as to how far a notary's certificate will or will COMPLAINT, AND COLLATERAL PROCEEDINGS. 397 not be deemed conclusive as to the facts of presentment and notice, and the extent to which a presumption will lie in favor of its correctness, see Burbank v. Beach, 15 Barb. 326. The subject of protest will also be found fully considered in Tlie Cayuga County Bank v. Warden, 2 Seld. 19. See same case, 1 Comst. 413. This case establishes also the principle above referred to, that where the notice is sufficient to convey informa- tion to the endorsers of the identity of the note, and that pay- ment of it had, on due presentment, been neglected or refused by the maker, mere formal imperfections will not vitiate it. It also settles the point that the question is one of law for the court, and not of fact for the jury. See as to direction and ser- vice of notice of protest, Morris v. Ifusson, 4 Sanclf. 93, affirmed by Court of Appeals, 21st April, 1853. In Conro v. Port Henry Iron Company, 12 Barb. 27, it is held that notice to the agent of a corporation, authorized to draw drafts on its account, is notice to the corporation. In Garvey v. Foivler, 4 Sandf. 665, 10 L. 0. 16, it was held that an averment in a complamt of due notice being given to an endorser, will be construed to mean notice in fact, and not notice by construction of law. When the plaintiff relies upon facts excusing notice in fact, he must set forth those facts in his complaint. In The Bank of Vergennes v. Cameron, 7 Barb. 143, the ques- tion of the endorser's liability, and the necessary proof in such cases, will be found fully considered. See likewise, in relation to the endorser's liability in general, the decision in Bowen v. Newell, below cited under the head of Checks or Drafts. Averments in Actions on Notes generally considered.]— In Appleby v. Elkins, 2 Sandf. 673, 2 C. K. 80, it was held that, in an action by endorsee against maker, the following averments were suffi- cient: — 1st. Making; 2d. Delivery; 3d. Endorsement to plain- v tiff; 4th. Non-payment; and, 5th. Indebtedness of defendant. See similar definition in Giesson v. Oiesson, 1 C. K. (N. S.) 414; and a demurrer that the complaint did not aver that the plaintiff was lawful holder, or that the note was due, was there stricken out as frivolous, and leave to answer refused. In Loomis v. Dorshimer, 8 How. 9, it was considered that an allegation that the payee of a note endorsed it, and that it was afterwards delivered to the plaintiff, was not sufficient; but the point was not expressly passed upon. 398 COMPLAINT, AND COLLATERAL PROCEEDINGS. In Taylor v. Corbitre, however, 8 How. 385, an averment to the above effect was sustained as good, and judgment given for the plaintiff. This case likewise disapproves of the decision in Beach v. Gallup, 2 C. R. 66, where an allegation that the plaintiff was " lawful holder" was held to be insufficient, standing alone; or rather, a demurrer on that ground was held not to be frivo- lous. His lawful ownership should, it was there held, have been averre d. In Vanderpool v. Tarbox, 7 L. 0. 150, it was considered that a specific allegation of endorsement is necessary, in all cases of action by an endorsee. A mere averment of lawful ownership will not, in such case, be sufficient, standing alone. An omission to aver the fact of due protestation, in an action by endorsee against endorser, has likewise been held to be a demurrable defect. Turner v. Comstock, 1 C. E. 102 ; 7 L. 0. 23. "Where a party signed a note as surety, his having done so ought to be specially averred. It was held in Balcom v. Wood- ruff, 7 Barb. 13, that a note of this description could not be given in evidence under the common money counts. In an action by the payee against the maker of a note, a bare allegation that the defendant, by his note, promised to pay the sum sued for, and had not paid the same, but was indebted to the plaintiff therefor, was held to be sufficient, on demurrer that the delivery of the note, the date of payment, and the fact that the note was due, and that the plaintiff was owner and holder, ought to have been alleged. Peet* v. Bratt, 6 Barb. 662. The complaint is, however, commented upon as being " very loose," and, of course, ought not to be taken as a precedent. In lloxie v. Cushman, 7 L. 0. 149, it was held that the consi- deration given for a promissory note need not be specially averred in the complaint, especially where the payee had en- dorsed and put that note into circulation: and, in Benson v. Coitchman, 1 C. R. 1 li), it was also decided that the words "for vain i i" import a consideration as between endorser and endorsee, and, <-"n j .!«-< 1 with the expression "lawful holder," ufficienl cause of action. In James v. CJialmers, 5 Sam If. 52, it is held that the pre- : umption of law, that tin: holder of a note is its owner, is not repelled by showing that it came into his hands after it was due. Proof of a valuable consideration is only necessary, when ice i . '•! up, which would conclude the plaintiff, unless a purchasi r for value and without notice. COMPLAINT, AND COLLATERAL PROCEEDINGS. 399 And the purchaser of such a note, for a valuable considera- tion, before due, may maintain an action in his own name, without alleging an endorsement to him. Billings v. Jane, 11 Barb. 620. The maker of a note wrongfully taken from him, and nego- tiated for value to a bond fide holder, may recover of the wrong- doer the value of that note, though still outstanding when the action is brought. Becker v. Mathews, 5 Sandf. 439. With respect to the drawer, it was held, in Hides v. Hinde, 9 Barb. 528, 6 How. 1, that it is competent for him to restrict his liabilit} r , in like manner as may be done by an endorser. The drawer, in that case, having signed as "agent," and the fact that he was so being known to all parties, he was held not to be personally bound. The previous cases on the subject are fully cited in the report. The same was held in Conro v. Port Henry Bon Company, 12 Barb. 27, affirmed by Court of Appeals, 18th April, 1854. See, also, Walker v. Bank of the State of New York, 13 Barb. 616. In Gardner v. Oliver Bee and Company* s Bank, 11 Barb. 558, where the payee of a bill of exchange had come in under the insolvency of the acceptor, and received a dividend out of his estate, whereby the latter was discharged from all liability, it was held that, by his taking that course, the drawer was exone- rated. In Pratt v. Gulick, 13 Barb. 297, it was held that an independ- ent action could be maintained on a promissory note, uncondi- tional on its face, though given originally as part of the terms of an uncompleted contract. An instrument, informal on its face as a promissory note, as an order to pay for wheat in store at a certain price, may neverthe- less be sued upon as a special agreement. Bent v. Hodgman, 15 Barb. 274. In Conro v. The Port Henry Iron Company, 12 Barb. 27, it is held that a corporation is liable upon a draft drawn or accepted by a party authorized for that purpose, though the corporate name be not mentioned in such draft, if it be drawn or accepted under a name adopted by the corporation : and that a subsequent rati- fication of the acts of an agent of that description, will be equi- valent to an original authority. In Graves v. Friend, 5 Sandf. 568, the taking a note on " ac- count, without recourse," was held to be an absolute payment, 400 COMPLAINT, AND COLLATERAL PROCEEDINGS. and that no action could be subsequently maintained on account of the indebtedness for which that note had been taken, the maker not having paid it. It was likewise held that parol evi- dence could not be received, to show that such taking was only conditional and not absolute. Sureties and Guaranties.'] — Analogous to the question as to the liability on a bill or promissory note is that of sureties or guaranties on the same or similar instruments, and, therefore, the most convenient juncture at which to cite the recent cases on that point, will be the present. In Gardner v. Oliver Lee!s Bank, 11 Barb. 558, above cited, the acceptance of a dividend under the insolvency of the ac- ceptor, was held to be sufficient to discharge the endorser, as before noticed. See likewise various cases in relation to the endorser's liability, cited under the previous head. In Mams v, Haiglit, 14 Barb. 76, it was in like manner de- cided, with reference to a guaranty of a judgment being col- lectable, that due diligence in the attempt to collect it was a condition precedent to the guarantor's liability ; unreasonable delay in issuing ■ execution was held to be sufficient to effect a discharge of the latter, unless such delay be occasioned by his own acts, in which case he will still be liable. In Bigelow v. Benton, 14 Barb. 123, it was held, on the same principle, that the terms of a guaranty must be strictly com- plied with, or the guarantor will not be bound. It is a claim " strictissimi juris." See to the same effect Leeds v. Dunn, Notes of Court of Appeals, 31st Dec, 1853. In Enos v. Thomas, 4 How. 48, it was held that a contract, with a guaranty signed at its foot, might be considered as one instrument, and sued on as such. In Brewster v. Silence, how- ever, 11 Barb. 144, it was held, on the contrary, that such a gua- ranty, endorsed on a promissory note, must be looked upon as a separate and distinct undertaking, though made for the same object, uiid will b<- void under the Statute of Frauds, unless a consideration be expressed upon it; and this decision has been affirmed by the Court Of Appeals, 12th April, 1853. See, to the i effect, l> Ridder v. Schenw rh.urn, 10 Barb. 638, in relation to a guaranty to fulfil an agreement. Where a party signs as surety, a special averment to that effect should be made. See Balcom v. Woodruff, above cited. COMPLAINT, AND COLLATERAL PROCEEDINGS, 401 A surety who pays the debt of his principal, is entitled to a full subrogation, and to every remedy which the creditor so paid off possessed, and, for this purpose, to an assignment of the ori- ginal debt, and the securities for it ; and also to the benefit of any judgment which may have been recovered. Goodyear v. Watson, 14 Barb. 481. One of several sureties, who has paid the debt of the princi- pal, may maintain an action against the others, for their propor- tional parts of the total amount, nor is parol proof admissible to qualify such liability. Norton v. Coons, 2 Seld. 33. Checks or Drafts.'] — Actions of this nature being in close ana- logy with those founded on a bill or promissory note, and being in many respects subject to the same general principles, come up next for consideration, in the natural order of arrangement. The law as to certified checks is laid down in Willets v. The Phoenix Bank, 11 L. 0. 211, and it is held that the certi- fying a check is not a mere declaration of an existing fact, but creates a new and binding obligation on the part of the bank itself, and which is not destroyed, even by laches on the part of the holder. It is also held that a check, payable to the order of bills payable, is, in judgment of law, payable to the bearer. In Bowen v. Newell, 5 Sandf. 326, it is held by the Superior Court that a written order upon a bank in another State, for payment of a sum of money, payable on a future day, is a check, and not a bill of exchange, and, as such, is not entitled to days of grace. It was also held that the lex hci governs, not only as to the time, but the mode of presentment ; and, the order on that case being drawn on a bank in Connecticut, where no days of grace are allowed under similar circumstances, it was held that, the check having been presented and protested according to that law, the endorser was duly charged. The former conclusion has however been dissented from, and the decision has been reversed by the Court of Appeals ; Notes of Court of Appeals, 12th April, 1853; and a new trial was ordered, and has been had. The Superior Court still adhere, however, to the second point, and a decision similar to the first has been again given, and affirmed at General Term, founded on the view above taken as to the lex loci being the governing rule. This view as to the lex loci seems to be supported by the case of 26 402 COMPLAINT, AND COLLATERAL PROCEEDINGS. Cook v. Litchfield, 5 Sandf. 330, 10 L. 0. 330, affirmed by the Court of Appeals, 31st December, 1853. Actions on 3mds.~\ — To this class of actions the amendment in sec. 152, above commented upon, may seem to be more gene- rally applicable; and the complaint may, in such cases, be framed accordingly, simply averring the making of the bond, giving a copy, alleging non-payment, and claiming the amount due ; though, even in these cases, the old form of alleging the making and effect of the bond, and its non-payment, seems to be fully adequate. Where,' however, the condition of the bond is in any manner special, it would be most advisable to give a copy of the provision sued under ; the general facts of the case, and also those of the non-performance of that condition, being clearly and distinctly averred. Policies of Insurance^] — Of an analogous nature to the above, are actions upon a policy of insurance, the precise form of com- plaint in which does not appear to have been made the subject of special adjudication. It is, however, easily deducible, by inference, from general principles. The making and delivery of the policy, and payment of the premium, should, in the first place, be averred. The substance of the policy itself should then be clearly and succinctly stated ; or, if the question be one in which the proper construction of the general terms of the instrument, or of any particular clauses in it, are likely to be drawn into question, a copy of the whole document, or of the particular clauses in it, in respect of which the controversy arises, should be given ; or, which will often be found a very convenient mode of averment, a copy of the policy may be' annexed to the complaint, and referred to as forming part of it, the substance of it being shortly averred in the body. In marine cases, the facte of the voyage insured upon being in actual pro- -: at tin- time of the loss, and, where the policy is an open policy, I cessary to show that the goods claimed upon wcr> • by the risk, must appear ; and, in every instance, the fuels of the lo be distinctly and clearly, though suc- cinctly, alleged. r !'he giving ofydue notice of claim, and of due proof of and also that the time allowed to the company for the payment of the risk has fully elapsed, must, in the last instance, be distinctly pleaded; the exact COMPLAINT, AND COLLATERAL PROCEEDINGS. 403 wording of the provisions of the policy or conditions, being in these and all other respects strictly followed, in framing the necessary averments. In White v. The Hudson River Insurance Company , 7 How. 341, it was held that, though a policy of insurance must state cor- rectly what is insured, it is not necessary that the particular interest in the property, or the reason why the party insures, should also be expressed. Appeal Bondsi] — In Teall v. Van Wyclc, 10 Barb. 376, it was held that an action was maintainable on a bond of this nature, though in strictness informal ; the objection on that score not having been made when it was originally put in, but suffered to pass in silence. An action on an appeal bond to the Court of Appeals cannot be maintained, where the appeal has been dismissed for want of prosecution, and not decided on the merits. Such a dismissal is not, in law, an affirmance of the judgment appealed from. Watson v. Husson, 1 Duer, 242. § 131. Averments of Fact — Continued. Replevin and Trover.'] — The action under the Code for the claim and delivery of personal propert} 7 is analogous, in all respects, to the old action of replevin. Roberts v. Randel, & Sandf. 707, 5 How. 327, 3 C. R. 190, 9 L. 0. 144; McCurdy v, Brown, 1 Duer, 101. In this class of actions, therefore, a direct and issuable aver- ment must always be inserted, that the goods claimed are the property of the plaintiff. A mere allegation that he was entitled to the possession of those goods, and of facts affording evidence of ownership, will not, standing alone, be sufficient,. Vanden- burgh v. Van Valkenburgh, 8 Barb. 217; reported on another point, 1 C. R (N. S.) 1G9. The property claimed must, too, be in the actual possession or control of the party, sued, at the time when the action is brought, unless he has previously parted with that possession in a fraudulent manner. See Roberts v. Randel, 3 Sandf. 707, 5 How. 327, 3 C. E. 190, 9 L. O. 144, overruling Van Keste v.. Conover, 5 How. 143, 8 Barb. 509, to the contrary effect. 404 COMPLAINT, AND COLLATERAL PROCEEDINGS. The authority of JRoberts v. Handel is fully confirmed by Brock- way v. Burnap, 12 Barb. 347, 8 How. 188. The plaintiff can only recover upon a legal title; he must show an absolute or special property, giving him an immediate right to possession. The burden of proof, in this respect, lies upon him ; and, if he fail, the defendant will be entitled to judgment, without proving the title set up in his answer. McCurdy v. Brown, 1 Duer, 101. A distinct allegation should, therefore, in all cases, be made, that the property is then in the defendant's possession; or, if he has parted with it, in fraud of the action, that point must be distinctly pleaded. Similar principles are laid clown, with reference to an action in the nature of trover, in The Matteaivan Company v. Bentley, 13 Barb. 611. An action of this nature cannot be brought against a party not guilty of an actual conversion, and who has never had possession of the property, but merely claims a lien upon it. . The pleader must, of course, take care that his prayer corre- sponds with his statement. If he demand judgment for the value of the property, or damages for its conversion, he cannot proceed to recover the property itself in replevin. The reme- dies are incompatible, and cannot be joined; and the nature of the relief demanded in the prayer of the complaint, will deter- mine the class of the action. See Maxwell v. Farnam, 7 How. 236; Spalding v. Spalding, 3 How. 297, 1 C. E. 61; Bows v. Green, 3 How. 377 ; and other cases, before cited, under the head of Misjoinder of Causes of Action. Goods sold, <£c] — Forms will be found in the Appendix, for the complaint, in cases of goods sold and delivered, and work and labor dime. In the former case, allegations of sale and delivery will be sufficient; a promise to pay will be implied^ and need riot bo pleaded in form. See Gknny v. Hitchins, 4 How. 98, 2 C R. 56; Tucker v. Eushtcm, 2 C.B. 59, 7L. 0.815; and Nee/us v. Khppenburgh % 2 ('. R. 7(5, above referred to. The word "due," as used in a complaint of this nature, imports, not merely indebtedness, but, that the time when payment should have be<-.n made has elapsed, and will be sufficient to sustain the action. Allen \. Patterson^ Court of Appeals, 30th December, 1852. Where, tOO, a. .'-ale has been made to an agent, it should be averred as one to the principal. Dollner v. Gibson, before COMPLAINT, AND COLLATERAL PROCEEDINGS. 405 cited. On the form of the complaint for work and labor, no question as yet seems to have arisen. In cases of the above nature, a copy of the account alleged need not, as before referred to, be stated at length in the complaint. It will be sufficient, if the plaintiff afterwards deliver a verified copy to the defendant, in the manner prescribed by sec. 158 of the Code. General Remarks.] — Of course, the above remarks, though embracing many, do not profess to include, still less to give forms for every species of complaint, which will be necessary in practice. The same general principles, however, apply to all, and all must now be framed upon the same model, mutatis mutandis . The foregoing observations have more peculiar reference to actions, where the relief demanded would, under the old system, have been more peculiarly of common law cognizance. The class of equitable actions, if they may so be termed, remains to be noticed, and likewise those with reference to real estate, which will be separately treated. § 132. Averments of Fact — Continued. Equitable Actions — Averments in General.'] — The considerations with respect to the general form of averment in these cases, have already been most fully entered upon, and the cases fully cited, in chapter I. of the last division of this work. The safest guide which can be taken with reference to the averments of this nature, will, perhaps, be a well-drawn bill in chancery under the old practice : carefully retrenching, in the process of adapting that form to the present requisites, every verbal surplusage, and every merely probative allegation. Thus framed, the com- plaint will conform to the law, as laid down by a large majority of the cases above referred to, and particularly in Howard v. Tiffany, 3 Sandf. 695, 1 C. E. (N. S.) 99; Coit v. Coit, 6 How. 53; Minor v. Terry, 6 How. 208, 1 C. E. (N. S.) 384; and Getty v. The Hudson River Railroad Company, 6 How. 269, 10 L. 0. 85. Creditor's Bill.'] — The old proceeding by a creditor's bill, remains, in effect, unchanged; but such proceeding must be brought in the ordinary form of a complaint under the Code, and not according to the former practice. Rogers v. Hern, 2 C. E. 79. 406 COMPLAINT, AND COLLATERAL PROCEEDINGS. Before a creditor's bill can be filed, it is essential that execu- tion should have been issued into every county in which any one of the defendants resides, and returned unsatisfied, and also into every county in which they, or any of them, own real estate; a transcript of the plaintiff's judgment being previously filed in each such county, in order to render the execution effec- tual : and the facts should be alleged accordingly — Millard v. Shaw, 4 How. 137; but, if the defendant have consented to waive any of the above prerequisites, a simple allegation of that consent will be sufficient, without giving all the details. An action of this nature is maintainable, upon an execution issued, and returned unsatisfied, before the passing of the Code, without special leave of the court. It is not, in its nature, an action upon a judgment, but rather a supplementary proceeding, for the purpose of carrying that judgment into effect. Dunham v. Nicholson, 2 Sandf. 686. Nor are the special provisions of the Code, in relation to supplementary proceedings, a bar to the assertion of this description of remedy, for the purpose of obtaining specific equi- table relief. Goodyear v. Beits, 7 How. 187. The provisions of the Kevised Statutes, (see 2 R. S. 173,) made it a condition precedent to a proceeding of this nature, that the plaintiff should have an equitable interest, to the value of $100. In Quick v. Keeler, 2 Sandf. 231, it is held that this restriction is superseded by the Code, and that any creditor may now take that measure, on complying with its provisions, and with those of the Kevised Statutes upon the subject. In Shepard v. Waller, 7 How. 46, the contrary conclusion is come to. The question, therefore, remains unsettled by positive au- thority, though the more liberal view appears preferable. In Tripp v. Child*, 14 Barb. 85, it was held that this descrip- tion of remedy was obtainable by a judgment creditor, with a V I'v. to enforce a claim against his debtor's future earnings, and to avoid an agreement entered into for the purpose of depriving tin-, creditors of that benefit. In Conro v. Port Henry Iron Company, 12 Barb. 27, it was I that different creditors of a corporation, having a common interest ID the relief SOUght, may properly unite in a proceed ing- ot' this nature. In the same case, the doctrine of multifarious- will be found fully considered, both generally and with relation to this class of .suits in particular. COMPLAINT, AND COLLATERAL PROCEEDINGS. 407 A creditor at large, cannot maintain an action to set aside an assignment as void and fraudulent. The rule that such an action can only be brought by a judgment creditor, has not been altered by the Code. Neustadt v. Joel, 12 L. O. 148. In Hazard v.McFarland, Court of Appeals, 18th April, 1854, a personal decree, against creditors at large, who had unduly obtained possession of goods belonging to the debtor, and were, therefore, charged with their value as trustees for the payment of creditors, was affirmed in a suit of this kind, instituted by one of the latter class. The subject of proceedings of this kind will be found more fully entered upon in a subsequent chapter, under the head of Supplementary Proceedings. Injunction.'] — "With reference to injunction, a distinction may probably be drawn between those cases where that remedy is the main object of the suit, and others where it is merely sought collaterally. Where the latter is the case, it may well be con- tended that the insertion of matter, bearing solely upon that injunction, as a collateral remedy, and not going to the estab- lishment of the main cause of action, is, pro tanto, irrelevant, and ought not to appear on the pleadings at all, but to be sub- stantiated by separate affidavit, according to the principles laid down in Putnam v. Putnam, 2 C. E. 64 ; Milliken v. Carey, 5 How. 272 ; 3 C. K. 250 ; and other cases to the same effect, before cited. Where, however, the granting of an injunction forms either the sole object of the suit, or a substantial part of the relief expressly sought in it, it would seem that this cannot be so ; and, in cases of this description, averments of the facts, showing the plaintiff's right to that remedy, seem not merely advisable, but, in some instances, even indispensable. See, to this effect, Howard v. Tiffany, and Minor v. Terry, before referred to. The subject of injunction in general, involving of necessity the question of the proper averments in such cases, has been already considered. Partnership Accounts.] — A complaint of this nature, setting forth a partnership, a dissolution, the existence of unsettled accounts, and a balance in favor of the plaintiff, is prima facie ood, as showing a sufficient cause of action. Ludington v. Taft % 10 Barb. 447. • 408 COMPLAINT, AND COLLATERAL PROCEEDINGS. A suit of this nature is maintainable in respect of a special partnership, as well after as before the dissolution of that rela- tion. Hogg v. Ellis, 8 How. 473. Where one partner had made an assignment, it was held that creditors claiming under it were indispensable parties to a suit by the other for an account. Johnson v. Snyder, 8 How. 498. Specific Performance.'] — As a general rule, the specific per- formance of the contract of an adult for personal services, will not be enforced. Haight v. Badgeley, 15 Barb. 499. The contract of a married woman, having power to dispose of property, under an ante-nuptial contract, made prior to the law of 1848, is binding, and may be enforced against a pur- chaser, by her assignee. Van Allen v. Humphrey, 15 Barb. 555. The rule with regard to the extent of the vendor's duty to disclose material facts in relation to the subject-matter of the contract, will be found fully considered in Bench v. Sheldon, 14 Barb. 66. A parol contract, void by the Statute of Frauds, cannot be enforced in a direct action for that purpose; though, if the vendor have fully performed his part, he may recover the bal- ance of the purchase-money. Thomas v. Dickinson, 14 Barb. 90. In relation to the extent to which an offer, made by mail, is binding, and may be enforced as a contract, if accepted by the opposite party, see Vassar v. Camp, 14 Barb. 841. The rule of law that, where one party designs to rescind a contract, he must do whatever is necessary to restore the other to his original condition, in respect to the thing sold and the consideration paid, and that, before suit; and, also, that he cannot affirm in part and rescind in part, will be found fully considered in The Matteawan Company v.Bentley, 13 Barb. 641. Thia pule is, however, inapplicable to a case where the vendor has performed hie part of an invalid contract, and sues for the balance of pun-lmse-moncy. It holds good in relation to valid contracts only. See Thomas v. Dickinson, 14 Barb. 90, before cited. Divorce^ A complaint for divorce on the ground of adultery will be insufficient, where it contains no specification of the person with whom, or the place where the offence was commit- ted, if the former be unknown, ttfb latter should be specific- COMPLAINT, AND COLLATERAL PROCEEDINGS. 409 ally stated, Heyde v. Heyde, 4 Sandf. 692. The same principle as to the necessity of giving a full and definite statement in re- lation to the acts complained of is equally applicable to cases where separation only is sought ; the elements of time, place, and circumstances, must be equally borne in mind, in framing allegations under these circumstances. Where the husband is plaintiff, he cannot proceed, after the service of the summons, until a next friend has been appointed for the wife. If she neglect to apply, it will be competent for him to do so. Meldora v. Meldora, 4 Sandf. 721. General Remarks—The, Code and Rules make no special pro- vision, with reference to the proper form of complaint in actions of an equitable nature ; nor do the decided cases lay down any positive rules on the subject, with the exception of the few points adverted to. Under these circumstances, the remark before made holds good, that, in this class of cases, a well- drawn bill in chancery, under the old practice, will form the safest guide, with the retrenchments and precautions before al- luded to. The exact provisions of any instrument, sought to be either specifically enforced, or duly interpreted, should be set forth in all cases ; verbatim, where those provisions are either short or special ; or else, with sufficient detail and cer- tainty to enable the court to arrive at the exact facts in con- troversy, from the pleadings themselves, without the necessity of having recourse to statements out of the record. § 133. Averments of Fact , continued : Real Estate Cases. The proper form of complaint, in those cases having peculiar reference to real estate, or to matters arising out of it, remains to be treated of, before quitting the subject of the proper aver- ments in complaint, separately considered. In most instances, remedies of this nature are matters spe- cially provided for by the Eevised Statutes; and, at first, doubts were entertained as to whether this class of actions could be brought at all under the Code. See Traver v. Traver, 3 How. 851, 1 C. E. 112. The contrary, however, has been settled by the following series of decisions: — Watson v. Brig- ham, 3 How. 290, 1 C. R. 67; Backus v. Strtwell, 3 How. 318, 1 C. R. 70 ; Myers v. Basbaclc, 4 How. 83, 2 C. R. 13 ; Bow v. 410 COMPLAINT, AND COLLATERAL PROCEEDINGS. Row, 4 How. 133; Townsend v. Townsend, 2 Sandf. 711; Reed v. Child, 4 How. 125, 2 C. E. 69 ; Hammersley v. Hammersley, 7 L. 0. 127; Vanderwerker v. Vanderwerker, 7 Barb. 221. These authorities establish, beyond a doubt, that, in all cases where, under the old practice, a party was at liberty to proceed, either at equity, or by petition, or otherwise under the special provisions of the Eevised Statutes, he has still the same option; an action under the regular forms of the Code being substituted for the former bill in equity in such cases. In all real property actions, brought under the Code, the law of the case is to be governed by the Revised Statutes, the practice by the present mode of procedure. The saving of the former is effected by sec. 455 of the present measure, as follows : § 455. The general provisions of the Revised Statutes relating to actions concerning real property, shall apply to actions brought under this act, according to the subject-matter of the action, aud without regard to its form. Ejectment.~] — The first proceeding to be considered, is the action under the Code, which stands in place of ejectment under the old practice. At 1 C. R. 19, will be found an essay on this subject. The conclusion is clear, i. e., that all the old formalities on the subject are entirely swept away, and that the action must hereafter be conducted in strict accordance with the new practice, the remedy for mesne profits being joined in the same proceeding. The old practice of proceeding against the tenant alone is swept away by the recent alterations; and, as a general rule, it will be proper to join, as defendants, all persons having an interest in the property, which will be affected by a re- covery. Wu/dorph v. Bort/e,4: How. 358; Townsend v. Townsend, 2 Sandf. 711 ; Fosgate v. Herkimer Mann/, and Hydr. Qompanyi L2 Barb. 852. This is however not strictly necessary, though erallj proper, with regard to persons not in possession of the premises, though claiming as interest therein. Van Buren v. Cochburn, 11 Barb. 1 is. A joint action of this nature brought by the wife, owner of the fee, and the husband, as tenant by the curtesy initiate, was sustained in Tngraham v. Baldwin, 12 Barb. 9; affirmed by the Court of Appeals, 7th Oct., 1853. Sec, likewise, Ripple COMPLAINT, AND COLLATERAL PROCEEDINGS. 4H v. Gilborn, 8 How. 456, below cited, under the head of Partition, as to an inchoate right of dower. Ejectment to recover dower will lie against a tenant for an estate less than freehold, and before dower has been assigned, or admeasured; provision being made in the judgment record, for the appointment of commissioners to admeasure, as regards the lands in the possession of the defendant. Ellicott v. Mosier, 11 Barb. 574. The acceptance of an assignment of rents, will not bar the widow, unless it appear they will endure for her life. The rule that the plaintiff in ejectment is bound to strict proof of his title, holds good under the new as under the old practice. Fosgate v. Herkimer Man. and Hyd. Company, 12 Barb. 352. In order to ground a recovery for mesne rents and profits, as well as for the land itself, the joinder of which causes of action is now allowable, the complaint, in addition to the allegations necessary to sustain a strict ejectment, should also contain, in substance, the same allegations which the Eevised Statutes required to be inserted in the suggestion for recovery of mesne profits. Livingston v. Tanner, 12 Barb. 481. If omit- ted, the recovery on that ground will be barred, in that parti- cular proceeding, though it seems that it is still competent for the plaintiff to bring a separate action, as heretofore. In Tompkins v. White, 8 How. 520, it was held, that a claim against one of two defendants, seeking to recover moneys al- leged to have been received by him on account of rents of a joint estate, without specifying any particulars, could not be joined with a Cause of action in ejectment, for the recovery of the estate itself, against both ; and a demurrer was allowed on that ground. They were not shown to be " mesne profits." The form of a complaint, under the hew practice, will be found in the Appendix. The plaintiff should, of course, make a distinct and positive averment as to his title, and will have to prove it at the trial, as formerly, unless admitted or not denied by the answer. On this account it would be well, in all cases, to make that averment as specific as possible ; and so to frame it, as that an admission or non-denial of it by the defendant, will amount to an admission of the whole case. The points above noticed as to the recovery of mesne profits should also be carefully looked to. The plaintiff can only recover " secun- 412 COMPLAINT, AND COLLATERAL PROCEEDINGS. dum allegata" and will be bound to strict proof in all cases. See Fosgate v. Herkimer Manufacturing and Hydraulic Company, and Livingston v. Tanner, above cited. The subject of the notices which, are requisite, on the com- mencement of this and other real estate actions, will be found treated of at the end of the present chapter. Partition.'] — The next real estate action to be mentioned is that for partition of an estate — a proceeding of a peculiarly spe- cial and important nature. Precisely the same provision on this subject as that above cited with reference to real actions in general, is effected by sec. 448. The law in partition cases is still to be sought for in the Revised Statutes ; the practice, in all cases where the proceeding is by action, is to be governed by the Code. The form of a complaint in partition, will be found in the Appendix. Every party directly or indirectly interested in the corpus of the estate itself which is sought to be divided, at the time when the action is brought, must, of necessity, be joined; except encumbrancers, who may or may not be so, at the plaintiff's election. Parties, however, who have parted with their title before the action is commenced, need not, and cannot be joined; and, if they are, the proceeding so taken cannot properly be sustained. Vanderwerker v.Vanderiverker, 7 Barb. 221. In Bogardus v. Parker, 7 How. 305, it was held, that a ques- tion as to the claim of a defendant to a specific lien on the es- tate itself, might properly be raised by the complaint in a suit of this nature, and an account prayed for and taken in respect of such claim. In Brovmson v. Gifford, 8 How. 389, it was held, that the husband of the married woman, entitled to a separate estate in the premises sought to be partitioned, could not properly be joiuf •' I with her as plaintiff An executor and trustee, as such, but who had cot qualified, was also held to have been unneces- !y joined as defendant. The wife of another defendant entitled to an interest, was held to have been properly joined in re pect of her inchoate right of dower: and many other points in relation to parties in this form of action, will be found con- sidered in the report. J u Ripple v. GHlborn, 8 How. 450, the wife of a plaintiff was COMPLAINT, AND COLLATERAL PROCEEDINGS. 413 held to be a proper and necessary party as co-plaintiff, in re- spect of her inchoate right of dower. See, also, Ingraham v. Baldwin, above cited under the head of Ejectment, in relation to the interest of a husband, as tenant by the curtesy initiate. The plaintiff in this form of suit must be in actual or con- structive possession of his undivided share; and, therefore, when the complaint shows that the legal title is in a third per- son, as trustee, the defect will be fatal. Stryker v. Lynch, 11 L. 0. 116. In the same case it was held that it is not sufficient, in this proceeding, to allege that a defendant claims some adverse interest, and is therefore a proper party. The rule that ad- verse titles are not to be tried in partition is not changed by the Code, and the nature of every claim against the estate must, of necessity, be stated. The complaint in partition must state, distinctly and accu- rately, the exact circumstances in relation to the interests of all parties ; and, where those interests are derived under any pe- culiar or doubtful provision, it will be far better to set forth that provision verbatim, instead of merely abstracting it : which may be done with reference to instruments or circumstances of an ordinary nature. Although every necessary party must be joined in a suit of this description, and it will often be expedient to make encum- brancers defendants, with a view to the due adjustment and apportionment of their charges, the plaintiff, in the latter case, should, if possible, obtain the consent of the other parties to such introduction ; for, if he be held to have made it unnecessa- rily, he will otherwise be liable for the additional costs; Ham- inersley v. Hammersley, 7 L. O. 127. Admeasurement of Dower. .] — Of a very similar nature to parti- tion, is an action brought by a widow for the admeasurement of her dower. Relief of this nature was granted by the Su- perior Court, in Townsend v. Townsend, 2 Sandf. 711, and, ob- jections having been taken that the defendants were not then in actual possession of the lands there in question, and also that the action was brought within six months after the hus- band's death, those objections were overruled. . The widow's right to this peculiar remedy, does not however preclude her from maintaining ejectment against a tenant, before her dower has been assigned or admeasured, though, 414 COMPLAINT, AND COLLATERAL PROCEEDINGS. in a judgment taken by her under such circumstances, pro- vision will be made for the latter purpose. See Ellicott v. Mosier, before cited under the head of Ejectment. The complaint in this case, should contain a full description of the land on which the dower attaches, with definite and positive averments of the husband's seisin and death, and of the widow's right to dower ; and, also, that such right has not been barred, either by express provision made for her, or re- lease or consent on her part ; or, if she have exercised her election between her dower and a provision made for her, that election should be specially pleaded. The prayer for relief should be in precise analogy to that given in the form of com- plaint in partition, " mutatis mutandis." By the recent amendment in sec. 307, a previous demand and refusal is made a necessary condition precedent to an action of this nature, as far as regards the recovery of costs, which cannot otherwise be claimed. Nuisance and Waste!] — The former action of waste, and writ of nuisance, are abolished by sections 450 and 453. The pro- per form of proceeding in these cases, is now by an action for relief and damages, under the present forms. In waste, the relief demanded may include forfeiture of the estate of the party offending, and eviction from the premises ; and, by section 451, the law in those cases, as laid down in the Revised Statutes, irrespective of the provisions which prescribe the form of the action to be brought, is specially saved. A limita- tion is, however, imposed by sec. 452, on the remedy of for- feiture and eviction, which cannot be obtained, unless the in- jury to the reversion shall be adjudged to be equal to the value of the tenant's estate, or to have been done in malice. A distinct averment to this effect should, therefore, be inserted in the complaint, in all cases where relief of this nature is sought, in order to ground the introduction of evidence upon the sub- ject. In A idem v. Hepburn, 3 Sandf. 668, 3 C. E. 1G5, 9 L. 0. 80, 5 How. L88, where the plaintiff sought a judgment of this ire in connection with equitable relief, it was held that he could not obtain both in the same proceeding, but must be put to his election. The complaint should, therefore, under similar ances, be framed accordingly. Of course, the nature of the waste complained of, and the title of the party seeking COMPLAINT, AND COLLATERAL PROCEEDINGS. 415 the remedy, must be distinctly and positively stated, in order to ground the right to any relief at all. And, in an action for a nuisance, the nature and extent of the act complained of, and of the injury resulting therefrom to the plaintiffs, must also be clearly and positively averred ; in order at once to ground a claim for adequate damages, and also for the guidance of the court, in making a. proper order for its cessation or removal. Determination of Claims.] — By section 449, it is provided that proceedings to compel the determination of claims upon real property, under the provisions of the Eevised Statutes, (2 E. S. 313,) may be prosecuted by action under the Code. The very nature, however, of these proceedings, commencing as they do with the service of a special notice, and carried on, as they are, in a manner totally inconsistent with the ordinary forms of an action, seems to render this impossible in practice, and it was accordingly so held in Crane v. Sawyer, 5 How. 372 ; I 0. R F (N. S.) 30. The remedy, therefore, iu these cases, seems to be exclusively under the forms of the Kevised Sta- tutes, and not to be otherwise obtainable. In Stryker v. Lynch, II L. 0. 116, above cited, there is an "obiter dictum" that this remedy is obtainable by an action; but the reasoning in Crane v. Sawyer seems unanswerable. By the recent statute, Laws of 1854, -c. 116, p. 276, the 2?owers in this respect, conferred by the Eevised Statutes, in relation to proceedings taken by individual claimants, are ex- tended to corporations, so far as they can be applied, and bodies of that nature are, accordingly, authorized to proceed in the same manner; it being made a prerequisite, that the notice re- quired by the Eevised Statutes should be subscribed with the name and place of residence of the agent or attorney of the corporation seeking such relief. This provision affords strong corroboration of the correctness of the view taken in Crane v. Saiuyer, as above noticed; the proceeding under the forms of the Eevised Statutes being, not merely recognized, but in part prescribed. Foreclosure.'] — The last proceeding of the above nature is that of foreclosure. A form of complaint in this proceeding is given in the Appendix. 416 COMPLAINT, AND COLLATERAL PROCEEDINGS. It is essential that the nature of the security, its due record, and the defendant's failure to pay the amount of principal and interest, shoul.d be distinctly averred, and a full description of the premises must be given, in order to form an adequate ground for the relief to be obtained on the decree. See Kule 46 and 47 of the Supreme Court. Every junior encumbrancer, known at the time of the bill, should be made a party, and, for this purpose, the records should be carefully searched; if not, the whole proceeding will be nugatory, as far as regards the rights of the parties omitted. The wife of the party entitled to the equity of redemption, and also the widow of any deceased party so entitled, must also be joined, or the decree will be -of no force pro tanto. Denton v. Nanny, 8 Barb. 618. Where, too, a widow had actually been made a party in another capacity, no issue being raised as to her right of dower, and, in that capacity, suffered judgment to be taken against her pro confesso, her right to dower was held not to be affected. Her claim in that respect was paramount to the mortgage, and, therefore, she had no right to suppose that that claim would be called into question, whatever might be the case as regarded her subsequent interest. Lewis v. Smith, 11 Barb. 151, 7 L. 0. 292; affirmed by Court of Appeals, 18th April, 1851; 12 L. 0.193. In no case are senior encumbrancers necessarjr parties, and it would seem from the last case, that they are not even proper ones, unless for the purpose of ascertaining the amount of their incumbrances, in order that the same may be duly provided for on a sale taking place. They cannot be made parties, for the purpose of contesting the validity of their prior claims. See likewise Corning v. Smith, 2 Sold. 82, and cases there cited. In the city of New York, a mortgagee acquires a right to redeem the premises, as soon as they are assessed for city pur- l>v such payment he acquires a lien on the premises, which he may add to his mortgage debt, and collect by fore- closure. Brevoort v. Randolph, 7 How. 398. Jn framing the complaint in foreclosure, care must be taken conditions of repayment, as contained in the morl elf, and not merely by reference to the bond; or the defendant may tender an issue on the point, and delay the entry of judgment. Dimon v. Bridges, 8 How. l<>. Where infants are Lnt< rested in the estate sought to be fore- COMPLAINT, AND COLLATERAL PROCEEDINGS. 417 closed, the nature of their interest, and whether it is paramount or subordinate to that of the plaintiff, must be shown by specific allegation. The ordinary allegation, that such infants claim some interest in the premises, is not sufficient, as the facts cannot be taken as admitted as against them, and there must be some averment to sustain the requisite proof. Aldrich v. Lapham, 6 How. 129, 1 C. E. (N. S.) 408. It seems that a plaintiff is not required to allege or to estab- lish beforehand, and in the # first instance, any claims he may have upon the mortgaged premises, independent of the mort- gage he seeks to enforce. He has the same right as any other person, to present and establish a claim to the surplus moneys after sale ; and, if necessary, his complaint may then be amended, on an application made after that surplus has been ascertained. Field v. Hawxhurst, 9 How. 75. The above points must, of course, be carefully borne in mind in preparing the complaint in cases of this nature; and, in gene- ral, where any party is interested in more than one capacity, care must be taken to frame the statements so comprehensively, as to include every possible interest which such party may possess. Of course, too, any peculiar circumstances connected with the securit} r , as, for instance, if the mortgagee have been in possession, must be distinctly averred ; and, in the latter case, the results of any accounts between the parties, which will tend to show the exact sum then due in respect of the security, must be correctly stated; and it may be expedient to annex copies of the accounts themselves to the complaint, with a view to obtain an admission or non-denial of their correctness. The observation made in a previous part of the chapter, with regard to fixing, the venue in these cases, will have been noticed. It must be in the county, or one of the counties, where the premises are situate, irrespective of that in which the loan itself may have been actually transacted. § 134. Prayer for Relief. The long and complicated question, as to the proper aver- ments in the different forms of complaint, having thus been disposed of, we arrive, in the third place, at a subject of even greater importance, though not of equal complexity, i. e., the proper demand of the relief sought for. The observations on 27 418 COMPLAINT, AND COLLATERAL PROCEEDINGS. this subject have, however, been in a great measure anticipated, by the considerations upon sec. 167, stated at the outset of the chapter. It has there been shown, that the nature of the action will be determined by this part of the complaint ; and that, how- ever the statements in the body of the pleading may show a title to any peculiar species of relief, apart from that formally demanded, the relief so omitted to be asked for cannot be obtained. See, especially, Spalding v. /Spalding, 3 How. 297, 1 C. R. 64; Bows v. Green, 3 How. 377; Chapman y. Webb, 6 How. 390, 1 C. E. (N. S.) 388; Otis v. SOI, 8 Barb. 102 : Cahoon v. The Bank of Utica, 4 How. 423, 3 0. R 110; Badgers v. Badgers, 11 Barb. 595, before cited. In The Commercial Bank v. White, 3 How. 292, 1 C. R. 68, it was considered that alter- native relief could not be demanded in respect of the same transaction, where the two forms of relief asked for fall under two distinct classes of the actions enumerated in sec. 167, inca- pable of being joined under the provisions of that section. The proper classification of the action is, therefore, above all, most important to be attended to by the pleader, in framing his prayer, where there is either any doubt as to the exact remedy obtainable, or where any election has to be made between different forms of remedy, obtainable under the same state of circumstances. In this latter case, above all, the most careful exercise of judgment will be found necessary. Objec- tions of this nature fall, however, more peculiarly under the head of Demurrer, and, therefore, it would be premature to enu- merate them here in detail. In the chapter devoted to that branch of pleading, the subject in general, and the decisions in reference thereto, will be found fully entered upon. Where a simple money recovery is sought, the demand of judgment for the amount claimed, with interest from the date of the original claim, or last settlement of account, is all that is neces tary. In actions where pecuniary damages are alone I for, unaccompanied by other relief, the form is even simpler, the demand of interest being, of course, incompatible; where, however, as in actions in respect of waste or nuisance, relief i required, as weU as damages, it must not be forgotten to be asked for. It is in actions for relief, as such, that the exercise of ingenu- ity and thought will, above all, be required, as regards this portion of the complaint, on the due framing of which every COMPLAINT, AND COLLATERAL PROCEEDINGS. 419 tiling will, in fact, depend. Every possible remedy which the court may have in its power to grant, under the peculiar cir- cumstances, should, therefore, be carefully pondered over, and every one of those remedies should be distinctly and in terms asked for; unless, under the circumstances of the case, it be thought better to waive them in any respect. Injunction, in particular, cannot be granted at all, in respect of facts existent at the date of the complaint, unless that remedy be specially prayed for; and, where the appointment of a receiver is part of the relief sought before, or as part of the judgment, a demand to that effect must also be inserted. In actions for the recovery of real or specific personal property, it must not be forgotten, that a claim for damages for withholding, and also, in the for- mer case, a claim for mesne profits, is, in all cases, compatible with a claim for the recovery of the property itself; and a prayer to this effect should always, as a general rule, be sub- joined to the main relief demanded. In fact, every species of relief which is or may be required, should be asked for specific- ally and in terms; and, in no case, should the usual concluding clause, praying "for such further or other relief as the court may direct," be omitted on any account. This last demand should not, however, be overweeningly relied on. See Marquat v. Marqua% 7 How. 417. It is most essential, nay, vital, with reference to matters subsidiary to the main demand of the plaintiff; but, in respect of those which embrace any thing in the nature of a separate and independent claim, it may, in most cases, be ineffectual, standing alone, and without any specific demand whatever. The pleader must, however, take special care that, in praying relief, he does not ask for any that is inconsistent. Thus, in Linden v. Hepburn, 3 Sandf. 668, 5 How. 188, 9 L. 0. 80, 3 C. R. 165, where the plaintiff sought to enforce a forfeiture, and also to obtain equitable relief, in respect of the same transaction, it was held that he could not ask for both conjointly, but must make his election between the two species of remedy. See, also, as to alternative relief of an inconsistent nature, the cases cited at the outset of this chapter, in reference to sec. 167. Where, however, the plaintiff is entitled to both legal and equitable relief under the facts averred, and such relief is not inconsistent in its several parts, he may obtain it by means of 420 COMPLAINT, AND COLLATERAL PROCEEDINGS. the same proceeding, and it should be prayed for accordingly. Linden v. Hepburn, above cited; Getty v. The Hudson River Railroad Company, 6 How. 269, 10 L. O. 85. It would seem from the case of Beale v. Hayes, 5 Sandf. 640 ; 10 L. 0. 166, that' the claim of judgment for a larger amount than, by the plaintiff's own showing, he is entitled to recover, will not constitute a demurrable defect. Of course the error is one that, though not fatal, it will always be expedient to avoid. § 135. Service, and other Formalities. Service.] — The general requisites of complaint, separately considered, having thus been gone through, it remains to notice the proceedings necessary for its due completion and service. This branch of the subject has, however, in a great measure, been anticipated, in the chapter as to the formal requisites of pleading. The manner in which the complaint, when prepared, must be copied, subscribed, and verified, is there fully pre- scribed; anditwould.be superfluous to enter a second time upon the same details. The only remark necessary is, that the strictest compliance with the directions there given, is virtually essential. The new Kale, No. 87, that distinct causes of action should not only be separately stated, but plainly ^umbered, should also be carefully attended to. The complaint having been perfected, a copy of it must be served upon the opposite party, either personally, as annexed to the summons, or on him or his attorney afterwards, if he give regular notice of appearance, and demand a copy. The mode of service, in this latter case, differs in no respect from that of ordinary papers in the suit, and will be found prescribed in the chapter devoted to the consideration of those subjects. The proceedings to be taken by the defendant for that purpose, the time within which the copy so demanded by him must be served, and i m- consequences to the plaintiff if he omit to do so, will be found (nil. detailed in the succeeding chapter. The questions as to where it may, or may not, be expedient to serve a copy of the complaint in company with thu summons, have also been before enlarged upon, in the chapter devoted to the considera- tion of that proceeding. As a general rule, it, will be advisable in all cases, for the obvious reason, that an omission to do so will enable the defendant, as of course, to obtain additional COMPLAINT, AND COLLATERAL PROCEEDINGS. 421 time to answer. Where, however, the defendants are numer- ous, and are likely to appear in classes, and more than one by the same attorney, service of the summons alone will usually be the more convenient course; and, when the service is by publication, that is the only advisable mode. Where a copy of the complaint is demanded, the plaintiff must serve it within due time, or the defendants' attorney will not be bound to accept it, and will be entitled to move to dis- miss. Baker v. Curtis, 7 How. 478 ; Mandeville v. Winne, 5 How. 461 ; ICE. (N. S.) 161 ; there cited. The name of the court should, on no account, be omitted. Yates v. Bhdgett, 8 How. 278. The fixing the venue, where the action is brought in the Supreme Court, is also of equal importance. See supra. In cases where service by mail is admissible, the plaintiff will, of course, be entitled to serve his complaint in that manner, after demand made, but within twenty, not forty days, unless the demand itself be served by mail. In that case, the forty days would probably be held allowable, though, until the mat- ter be settled by judicial decision on the actual point, it would perhaps be unsafe, and certainly inexpedient, unless under pecu- liar circumstances, to risk the chance. The general principle has, however, been laid down as above with reference to a notice of*appeal, in Dorian v. Lewis, 7 How. 132, where it is held that, when the service by one party has the effect of set- ting time to run as against the other, the time allowed shall be governed by the mode of the original service. Of course, where an early answer is an object, it will be inexpedient to serve the complaint in this manner. See this subject here- after considered with reference to the time allowed to answer. In Travis v. Tobias, 7 How. 90, it was considered that, in actions founded on contract, though several defendants be named in the summons, the plaintiff, on demand by one of them, may deliver to the latter a copy, with his name only inserted as defendant, omitting the others. This view seems very ques- tionable, and the case is certainly one that ought not to be followed as a precedent, when a few additional words will re- move all question on the subject. Filing.'] — As before noticed, the filing of the complaint is, at one time or other, essential. In strictness it ought, in all cases, to be filed within ten days after service; Code, sec. 416 ; and 422 COMPLAINT, AND COLLATERAL PROCEEDINGS. this was held to be obligatory in Toomey v. /Shields, 9 L. 0. 66. In practice, however, the complaint is seldom, if ever, filed before the entry of judgment ; nor does it seem necessary to do so, unless upon order obtained by the adverse parties, under the same section, (416.) The terms of the section itself clearly show, that an omission to file the complaint before the service of such an order, will not be a serious, or even an impeachable irregularity. Such an order once obtained, however, the filing then becomes imperative, and an omission to comply with the direction will, as a general rule, be fatal ; although, where the omission is unintentional and explained, the court may allow it to be rectified. See Short v. May, 2 Sandf. 639. The mere filing will be a sufficient compliance with the order, and it will not be necessary to serve the opposite parties with notice of that compliance. Douoy v. Hoyt, 1 C. E. (1ST. S.) 286. In practice, however, this is generally done, and ought to be done, as a mat- ter of fairness and courtesy. Where service takes place by publication, it is, however, ne- cessary that the complaint should be filed at once, and before the issuing of the summons, or the proceeding will be irregular. In real actions, also, it is now necessary, under the recent amendment of sec. 132, that the complaint should be filed at the outset of the suit, inasmuch as, until that is the case, the notice of pendency of action cannot be placed on record. Under the Code of 1849, this was otherwise, and it was there provided that the notice in question might be given at "the time of com- mencing the action," without reference to the complaint being or not being previously filed. § 136. Collateral Proceedings. The mention of the above subject naturally introduces the concluding topic of this chapter, i. e., the collateral proceedings advisable to be taken by the plaintiff, in certain cases, in con- ruction with, and al the lime of the preparation and service of hia first pleading. These proceedings are two-fold; the first of them being the notice of the object, and the second, the notice of the pendi '■>■■;: of the action. Notice of Object of Action.'] -Tin: following is the section of the ('ode in ! ■ to the former: COMPLAINT, AND COLLATERAL PROCEEDINGS. 423 § 131. In the case of a defendant against whom no personal claim is made, the plaintiff may deliver to such defendant, with the summons, a notice, subscribed by the plaintiff or his attorney, setting forth the gen- eral object of the action, a brief description of the property affected by it, if it affects specific real or personal property, and that no personal claim is made against such defendant; in which case no copy of the complaint need be served on such defendant, unless, within the time for answering, he shall, in writing, demand the same. If a defendant, on whom such notice is served, unreasonably defend the action, he shall pay costs to the plaintiff. Under the Code of 1849, this proceeding was confined exclu- sively to actions for partition and foreclosure, and was not ad- missible in any others. This defect is now removed, and, therefore, under any circumstances whatever, a notice of this sort may now be served upon mere formal defendants. The plaintiff must, however, be careful not to do so with respect to any party against whom substantial relief is sought. See this subject already considered, under the head of Summons. For form, see Appendix. Notice of Lis Pendens.'] — The second proceeding above alluded to, is the notice of pendency of action, commonly called notice of lis pendens, which, in all real estate cases, is admissible, and, in the case of foreclosure, indispensable. The provisions of section 132, on this subject, are as follows : § 132. In an action affecting the title to real property, the plaintiff, at the time of filing the complaint, or at any time afterwards, may file with the clerk of each county in which the property is situated, a no- tice of the pendency of the action, containing the names of the parties, the object of the action, and a description of the property in that county affected thereby ; and, if the action be for the foreclosure of a mortgage, such notice must be filed twenty days before judgment, and must contain the date of the mortgage, the parties thereto, and the time and place of recording the same. From the time of filing only, shall the pendency of the action be constructive notice to a purchaser or encumbrancer of the property affected thereby. It will be seen, then, that this proceeding is admissible at any stage of the suit, after the complaint is filed. In practice, how- ever, it is universally taken at the commencement. The advan- tages of this course are obvious, in every case, and under all circumstances; and that, not merely as regards the county where 424 COMPLAINT, AND COLLATERAL PROCEEDINGS. the action is brought, but every county in which there are any lands which can be affected by it, in case the property be scat- tered. No prudent practitioner will neglect taking this precau- tion, or will neglect taking it at the outset. By doing so, he places a stop upon the property, and prevents it from being subsequently dealt with, in prejudice of his client's rights. By omitting to do so, he leaves those rights still liable to be de- feated by subsequent acts, notwithstanding the steps taken in the suit for their actual assertion. In Oriswold v. Miller, 15 Barb. 520, it is held that actual no- tice to a purchaser, of the pendency of a proceeding affecting the property purchased, arrests all further proceedings, and, if the purchase is persisted in, it will be held to be fraudulent. The conveyance in that case was set aside, the purchaser being aware, at the time he bought, that proceedings were then actually pending against the vendor, as an habitual drunkard. It is true that, in that case, no notice of the above nature had been filed, or was relied on, but the doctrine laid down bears directly on the subject now under consideration. In foreclosure, the filing of such a notice, at least twenty days before judgment is rendered, is, as will be seen, a condition precedent to obtaining the relief demanded. See also Rule 46 of the Supreme Court, and Brandon v. McCami, 1 C. R. 38. In- asmuch as a full description of the suit in general, and particu- larly of the property alfected, is a necessary incident to the validity of a notice of this description, it seems to follow, as a necessary consequence, that, if the plaintiff, after filing his notice, subsequently amend his complaint in substantial matter, either as regards the parties to the action, the premises affected, or the relief claimed, a new notice should be filed, in accordance with the fresh matter pleaded ; and such is the general practice. In Learned v. VanderibUrgh, 7 How. 379, where lands had been seized under an attachment, it was considered by the '. that, in order to make that attachment effectual, as against bond fide purchasers and encumbrancers, a notice of this de- Bcription v.: i accessary to be filed. Form.' of thifl proceeding are given in the Appendix. The due filing of the notice may be proved, either by affida- vit, or liy tl" certificate of the countj cleri with whom it is liled. In all cases, then tore, a duplicate copy should be kept, on which that certificate may be endorsed, or which maybe annexed to the required affidavit, where that form is adopted. DEFENDANT'S COURSE, BEFORE ANSWER. 425 CHAPTER II. OF THE DEFENDANT'S COURSE OF ACTION, ON BEING SERVED WITH PROCESS. The present chapter will be devoted to the consideration of the different proceedings, which may, or which must be taken by the defendant, on being served with process, including, in the last place, the time allowed to him for the purpose of pleading in the action. § 137. Defects in Summons. In the first instance, the summons itself should be carefully examined, to see whether it be or be not in any manner defect- ive; and, if so, the objection on that ground must be taken at once. The proper proceeding for this purpose is a motion. See Nones v. The Hope Mutual Insurance Company, 8 Barb. 541 ; 5. How. 96; 3 C. R. 161; and that motion must be made at once, and, where the summons and complaint are served to- gether, without any previous notice of appearance. If such notice be given, the defendant, by taking that course, will have admitted himself to be regularly in court, and, having done so, all defects in the summons, or its service, or even the want of any summons at all, will then become immaterial. Dix v. Palmer, 5 How. 233 ; 3 C. R. 214;. Flynn v. The Hudson River Railroad Company, 6 How. 308 ; 10 L. 0. 158 ; Webb v. Mott, 6 How. 439; Voorhies v. Scqfield, 7 How. 51; Hewitt v. Howell, 8 How. 346. Where, however, the summons is served without the com- plaint, and is defective, by reason of being founded on the wrong subdivision of sec. 129, so as to mislead the defendant as to the nature of the relief demanded against him, it seems this rule will not hold good ; and the defendant may move, on a defect first made apparent to him, on service of the com- 426 DEFENDANT'S COURSE, BEFORE ANSWER. plaint, Voorhies v. Scofteld, 7 How. 51. See, also, Field v. Morse, 7 How. 12. The different points in which summons may be defective, have already been enlarged upon, in the chapter devoted to its consideration. The question as to how far the sheriff's return of service will or will not be deemed conclusive, has been also there considered. See Van Rensselaer v. Chadivick, 7 How. 297, there cited, where a motion, on the ground that the summons had been served on a wrong party, was sustained. § 138. Notice of Appearance — Demand of Copy Complaint. After any preliminary objections to the summons itself shall have been thus disposed of, the next point to be attended to, is the giving due notice of appearance by the defendant's attorney. This is a most essential precaution, and should be looked to at once, as it may often be highly advisable, even when a defence to the action is not contemplated. If omitted, the defendant will not be entitled to further notice in the suit, whilst, if he appear in due form, he must be served with such notice, in all cases, and particularly with reference to the entry of judgment under sec. 247. It will thus be in his power to supervise the plaintiff's subsequent proceedings, with reference to the amount of his demand, or otherwise. hi White v. Featherstonhaugh, 7 How. 357, it was held that such notice must be served, before the time for answering ex- pires, or the plaintiff will not be bound to delay entering judg- ment by default, for the purpose of giving notice of assessment. In Abbott v. Smith, however, 8 How. 463, this conclusion is denied, and it is held that such a notice will be effectual, if served before judgment entered, in all cases where an assess- ment of damage is necessary. The latter view seems undoubt- edly preferable. A defendant, who has not been served, is not entitled to give a notice of tin- description. Tracy v. Reynolds, 7 How. 327. Avoliini.ii, of the complaint by the plaintiff, not accompanying the summons, but subsequently, in connection with other proceedings, will, it seems, be of no operation in ending the defendant's time to answer, or preventing the DEFENDANT'S COURSE, BEFORE ANSWER. 427 plaintiff from entering up judgment, at the expiration of twenty days from the original service. Van Pelt v. Boyer, 7 How. 325. An appearance, without answer, does not however entitle the defendant to notice of an application for an injunction. That application is not an " ordinary proceeding in the cause." Becker v. Hager, 8 How. 68. Of course, if any objection exists to the summons, or on the ground of deficient service, the defendant's attorney must not give notice of appearance, till the question shall have been de- cided. See last section, and cases there cited. If, pending the motion for that purpose, the time for answering should be drawing out, he may apply for a stay of all proceedings until the decision of the motion, and some reasonable time after, but without prejudice to the questions raised upon the motion. Such an order as this, would probably be held not to be a re- cognition of the validity of the plaintiff's proceedings. Even when a copy of complaint has been served with the summons, the sooner notice of appearance is given, the better. No particular form is required for such notice, but it should be in writing, and served on the plaintiff's attorney. (See Rule 7 of the Supreme Court.) Where, however, the summons has been served alone, the notice should be accompanied by the demand of a copy of the complaint, and, in these cases, the immediate service may, or may not, be a matter of expediency. Where delay is not an object, of course the defendant will be anxious to gain an insight into his adversary's case, as soon as possible : but, where he wishes, on the contrary, to gain time, he may, under sec. 130, delay further proceedings on the part of the plaintiff, for twenty days, by serving the notice on the last day allowed for that purpose. The demand as above, must, under the special provisions of sec. 130, be in writing, and must specify a place in the State where that copy may be served. It may be made either in person or by attorney, though, if an attorney have been em- ployed in the action, the latter will be the proper person to make it in all cases ; and the party making it will, of course, take care to name his real place of residence or business, in order to insure the direct service upon him of all subsequent notices or papers in the suit. (See Eule 5 of the Supreme Court, and sec. 417 of the Code.) For form of notice and de- mand, see Appendix. 428 DEFENDANT'S COURSE, BEFORE ANSWER. Under the Code of 1849, this proceeding could only be taken within ten da} r s after service of the summons. If not demanded within that time, the plaintiff was not bound to serve a copy of his complaint afterwards, unless by special order of the court, Bennett v. Dellicker, 3 0. R. 117 ; in which case, an order, deny- ing a copy of the complaint under such circumstances, was sus- tained. As a general rule, however, the courts were disposed to grant an application for that purpose, but, of course, upon proper terms. See the same case, and also Engs v. Overing, 2 C. E. 79. In both these cases a strong bias was shown by the court in favor of the plaintiff's filing his complaint at once, in all cases where a copy is not served. In Toomey v. Shields, 9 L. 0. 66, it was even held that he was obliged to do so, within the time allowed to the defendant to answer, and a judgment obtained in the usual mode was ac- tually set aside, on the ground that this had been omitted. It seems clear, however, that the conclusion in this last case is erroneous. The Code contains no provision whatever to war- rant it. Under the recent amendment, these questions are no longer likely to arise, the defendant's power to demand a copy of the complaint being now extended to twenty days, the full period allowed him to answer. Under the Code of 1849, no period was limited, within which the copy of the complaint so demanded was to be served, and there was, in consequence, a great division of opinion among the judges upon the subject. In Littl'fidd v. Murin, 4z How. 306, 2 C. 11. 128, twenty-four hours was considered a reasonable time; and, in Walrath v. Julia; 2 C. E. 129, similar views are enounced. Forty-nine days were clearly held to be an unrea- sonable time in Echs v. Debeand, 2 C. R. 114. In Colvin v. Bragden, 6 How. 121; 3 C. E. 188, and Munson v. Wlllard, 5 How. 2*'..';. :; 0. R. 250, twenty days was fixed upon as a proper period, in analogy with the lime given to answer or reply; and it will be seen that this last period has been adopted by the lature, and is now the rule for the future. In case the plaintiff complies with the demand, and serves the copy, the defendant's time to answer runs from the date of that service, without regard t" the original service of the sum- mons. It is clearly, therefore, the plaintiff's interest to do so, DEFENDANT'S COURSE, BEFORE ANSWER. 429 as speedily as possible. An attorney, representing several defendants, is entitled to only one copy. See sec. 130. § 139. Motion to Dismiss. For want of Service, as above.'] — The service of this copy within the time demanded, is absolutely obligatory under the present measure, the term "must" being employed, instead of "shall," the term used in the Code of 1849. The defendant's attorney will not be bound to accept service of a copy, served after the time has elapsed. Mandeville v. Winne, 5 How. 461 ; 1 C. K. (N. S.) 161. He is entitled to give his notice of motion to dismiss, immediately the plaintiff is in default in this respect; and, if the copy be served after that notice, the not returning it immediately will not be considered as a waiver of the objec- tion. Baker v. Curtiss, 7 How. 478. If, however, the complaint had been served before such notice, and had been either re- tained or returned by the defendant's attorney, without giving notice of the objection to receive it, it was considered, in the same case, that the doctrine of waiver might have been applied. A defendant not served with process will not be entitled to appear voluntarily, nor can he, by such an appearance, entitle himself to make a motion of this description. Tracy v. Reynolds, 7 How. 327. Although, under the previous Code, no definite time was fixed in relation to the service, under these circumstances, a similar rule to that now prescribed with reference to the defendant's right to move for a dismissal, had been laid down in the cases of Littlefield v. Marin, Walrath v. Killer, Ecles v. Debeand, Colvin v. Bragden, and Munson v. Willard, above noticed. In the cases last alluded to, a " locus pcenitentice" was given to the plaintiff. Under the present measure that privilege can no longer be depended upon, and, therefore, special care should be taken by the plaintiff to complete and serve his complaint within the twenty days, in all cases. If he cannot do so, he should, on no account, omit to apply to the court for an order extending the time allowed, and this application should be made before the time in question has expired. If this precaution be neglected, the order cannot afterwards be obtained ex parte, or, if obtained, will be set aside. Stephens v. Moore, 4 Sandf. 674. 430 DEFENDANT'S COURSE, BEFORE ANSWER. Of course, in reference to the different periods of time above referred to, and elsewhere throughout the work, the nature and incidents of service by mail, where admissible, and the effect of that service in doubling the ordinary periods allowed, must not be lost sight of. The form of a notice of motion for the above purpose, will be found in the Appendix of Forms. It should be supported by an affidavit of service of the demand, and of the non-receipt of the copy demanded, within the twenty days now allowed. This form of motion is proper in such cases, and falls within the powers of the court, as conferred by sec. 274. Baker v. Curtiss, above cited. The motion for this purpose must be made, in the district, or in a county adjoining that in which the summons states the complaint will be filed. That county will be presumed to be the county of venue. Johnston v. Bryan, 5 How. 355 ; 1 C. R. (N. S.) 46. On other Grounds.'] — In Elliott v. Hart, 7 How. 25, it was con- sidered that the proper course to pursue in relation to the mis- nomer of defendants, was to move to set aside the summons and complaint. The application will be in the nature of the for- mer plea in abatement. See Gardiner v. Clark, 6 How. 449. A motion of this description will be proper, in relation to an action in the nature of the former creditors' bill, where the amount of the plaintiff's claim is less than the $100 prescribed by statute. Shepard v. Walker, 7 How. 46. § 110. Defendant's Course, on Service of Complaint. The following observations are of course appropriate, ab ini- tuj, to those cases in which the summons and complaint are served together. The last head of the last section is also, in strictness, more appropriate to the present, although, for the Bake of per pieuity, it, was thought better to cite the two cases there referred to, id connection with the subject of a motion to dismiss, l>v the defendant, at the outset of the cause. Examination of Complaint, Motions for structural Defect*.] — On the copy complaint being seised, it, should, at once, be examined with care, to Bee whether any inherent delects exist in its struc- DEFENDANT'S COURSE, BEFORE ANSWER. 43 1 ture, which may be made the subject of a motion under sec. 160. The nature of the different defects on the score of irrelevancy or redundancy, impeachable by this mode of proceeding, and the course to be adopted for that purpose, have been already fully detailed, in the introductory chapter on the correction of pleadings. The same remark applies to the subject of motions to compel the plaintiff to render his pleading more definite and certain, under the powers of the same section. Of a like nature are the recent amendments in section 122, in relation to the powers now given, of interpleader, and substitution of one party for another, also fully considered under the head of Parties. Demand of Particulars.'] — Although the complaint be perfect in its form, it may, in certain cases, be deficient in the necessary information for the defendant's guidance, in cases where an account is alleged, and the plaintiff avails himself of the per- mission conferred by section 158, and omits to state the items of it. In this case, the defendant should forthwith demand a copy of such account, under the powers of that section. For the form of demand, which must be in writing, and served in due form, see Appendix. In West v. Brewster, 1 Duer, 617 ; 11 L. 0. 157, it was held that, where the particulars required by the defendant are within his own personal knowledge, as in that case, where the plaintiff's action was for an account of mo- neys collected by defendant himself, as attorney of the plaintiff, the latter will not be bound to furnish a bill of particulars, unless under special order. If the complaint be verified, the copy account or bill of par- ticulars furnished by the plaintiff must be verified also ; (see same section :) and, if this be omitted by the plaintiff, the de- fendant should give immediate notice of the defect to the plaintiff's attorney, and return the defective paper. See Laim- beer v. Allen, and other cases previously cited with reference to the return of defective papers, in the introductory chapter, as to the formal requisites of pleading. If the plaintiff omit, in such case, to serve a properly verified C0 Pyi or if the copy regularly served, be deficient in the neces- sary information, the defendant should apply, in the usual manner, for an order, requiring the plaintiff to render a further and more definite account. See same section. The case of Wiggins v. Gaus, 3 Sandf. 738, 1 C. E. (N. S.) 117, though not 432 DEFENDANT'S COURSE, BEFORE ANSWER. directly in point, will afford an indication as to what the court will consider as clearly an insufficient compliance with such a demand. If the plaintiff omit to comply with the demand at all, and the exclusion of evidence of the account be not suffi- cient for the defendant's purpose, he should then apply to the court for a special order upon the subject, under the last clause of the section above referred to ; which order would doubtless be made, as of course, on proof of the demand, and of the plaintiff's non-compliance, and it would be wise to make a general stay of proceedings a part of the order so asked for. In Yates v. Bigelow, 9 How. 186, it was held that a further account of this nature may be enforced by motion, after all the pleadings have been put in, its chief object being to enable the defendant to prepare for the trial. The Code of 1849 was defective, in confining the defendant's right, in such respects, to cases in which an account was alleged in the complaint. The recent amendment cures this defect, and the defendant may now, in all cases, apply to the court, that the plaintiff may be ordered to furnish a bill of particulars. Whenever, therefore, the statement of the plaintiff's case is too general, and the details require to be given, in order to enable the defendant to meet that case in a proper manner, he should apply forthwith for an order of this description, which may be obtained ex parte, and without any further evidence than that afforded by the pleading itself; and, if the plaintiff meet this requisition evasively, a second order, for a farther and more particular bill, should be obtained. The plaintiff possesses similar rights as against the defendant, in cases where a set-off is claimed by the latter. In case of non-compliance with these provisions, and espe- cially with those in relation to the verification of the bill so delivered, the plaintiff will be precluded from giving evidence of the account omitted to be furnished. One point, in relation to this remedy, seems to have been left unprovided i'or in the rules <>f tip' court, Mini thai is, with reference to delay, on the part of the plaintiff, in furnishing the bill so required. By analogy with the provisions of Rule LI, in relation to the dis- covery of books and papers, an order for furnishing a bill of particulars ought to operate as a stay of proceedings, and as an extrusion of the time, to answer, until such order shall have been complied with or vacated. The reasons for the one ap- DEFENDANT'S COURSE, BEFORE ANSWER. 433 pear to be equally forcible with respect to the other, but no ex- press provision seems to have been made upon the subject. In the event, therefore, of any delay or evasiveness, on the part of the plaintiff, in complying with the demand, the defendant should apply for an order staying all proceedings, and extend- ing the time to answer, until after due compliance on the part of the plaintiff. This order would, doubtless, be considered as of course, on the facts being made apparent. Discovery, &c.~] — The next point to be considered is, as to whether the inspection of any books, papers or documents, in the possession or under the control of the plaintiff, is necessary or advisable, on the part of the defendant, for the purpose of enabling him to prepare his answer, in the action. If so, he possesses, under sec. 388 of the Code, the power of enforcing that inspection, and obtaining a copy, or permission to take a copy of the documents inspected, by means of an order of the court, which order, as before remarked, stays all pro- ceedings, and extends the time to answer until it is either com- plied with or vacated. The measures for this purpose, and the cases on the subject, will be found fully treated of hereafter, in connection with the proceedings between issue and trial. Of a similar nature are the powers conferred by the chapter of the Code in reference to the examination of parties, c. VI. of title XII. of part II., and particularly by sec. 391, in that chapter. In Chichester v. Livingston, 3 Sandf. 718, 1 C. R. (N. S.) 108, doubts were entertained as to whether this proceeding could be taken before issue joined, unless upon leave specially obtained from the court. This opinion is, however, expressed very doubtfully, and with an express reservation, that cases might arise, where the ends of justice required such examination, be- fore answer or reply; and Miller v. Mather, 2 C. R. 101, is direct authority to the contrary. It was there held that "such exami- nation being provided by the Code as a substitute for the for- mer bill of discovery, is governed by the rules applicable to such bills ; and a discovery, by bill of discovery, might be had at any time during the progress of the suit." The latter view seems the correct one. Under sec. 391, the examination may be had " at any time before the trial, at the option of the party claiming it;" and all that is there prescribed, is a previous notice to the party to be examined, and any other adverse party, 28 434 DEFENDANT'S COURSE, BEFORE ANSWER. of at least five days, unless by special order of the court. There is nothing in this section, or in any other part of the chapter above referred to, to qualify the above provision ; and therefore, it appears to be clear, that, in cases where an exami- nation of the plaintiff is absolutely essential for the purposes of the defence, that examination may be had in this manner, be- fore answer put in, and for the purposes of that answer. Of course, this proceeding will not be taken without due delibera- tion, because the chapter in question appears to contain no pro- vision enabling the defendant to repeat such examination, when once had. At the actual trial, however, the adverse party may? it would seem, be called as a witness, in all cases; though, if so called, his previous examination cannot then be used. The proceedings in relation to the above measure, on the part of the defendant, will also be found fully considered, and the cases cited in detail, in connection with the proceedings be- tween issue and trial. § 141. Precautionary Proceedings of Defendant on his own behalf The above precautionary measures have reference to the eli- citing of information from the adverse party, with a view to the due preparation of the defensive pleading. The following relate to precautions on the part of the defendant himself. Tender.] — In cases where a tender was admissible under the old practice, that tender may still be made. The law on this subject is, however, in no manner affected by the Code ; and, irdingly, the plan adopted at the outset of the work, forbids any lengthened consideration as to its details. The statutory pro\ i. i' mi-, on the subject will be found at 2 .R S. 553, and all other necessary information maybe obtained from the old books of practice. The following recent cases, in relation u> what will or will not Lstitute a sufficient tender, and the circumstances attendant thereon, may be advantageously looked to; viz: Wilderv. Seeh/e, I Barb, fc08; Hull v. Peters, 7 Barb. 831, 3 0. li. 255; Holmes v. Holiru , L2 Barb. L37, affirmed by the Court of Appeals,. 18th April, L854. A tender, t<> he of any effect, must be complete in DEFENDANT'S COURSE, BEFORE ANSWER. 435 all its parts, and, to be available as a defence, it must be fully and specifically pleaded, or it will be of no effect. Thus, in The People v. Banker, 8 How. 258, a tender, made after suit brought, in which the costs up to that time were not included, was held to be fatally defective; and, in Brevoort v. Randolph, 7 How. 398, a tender of his principal and interest to a mortgagee in the city of New York, without including an assessment paid by him, and interest on that assessment, was held to be unavailing to extinguish his lien. The old practice of paying money into court seems also to be still admissible, in cases where that course may be thought advisable, though, in most instances, an offer under the pro- vision next commented upon would answer the same purpose. Offer to compromised] — The Code provides an analogous re- medy to the above, by section 385, under which the defendant is empowered to make an offer to compromise the cause, with- out prejudice, if refused. That section runs as follows: § 385. The defendant may, at any time before the trial or verdict, serve upon the plaintiff an offer in writing, to allow judgment to be taken against him, for the sum or property, or to the effect therein specified, with costs. If the plaintiff accept the offer, and give notice thereof in writing within ten days, he may file the summons, complaint and offer, with an affidavit of notice of acceptance, and the clerk must,, thereupon, enter judgment accordingly. If the notice of acceptance be not given, the offer is to be deemed withdrawn, and cannot be given in evidence ; and, if the plaintiff fail to obtain a more favorable judg- ment, he cannot recover costs, but must pay the defendant's costs, from the time of the offer. It is obvious that, wherever admissible, i. e., in all cases where the defendant cannot dispute the correctness of a part of the plaintiff's demand, but contests it as to the residue, this course is highly expedient to be pursued, both in respect to its bearing on the eventual costs of the suit, and also as regards the possibility of its bringing about a compromise on some other terms, even if those actually tendered by the offer be not accepted. Under the Code of 1849, this remedy was confined to actions "arising on contract," but, by the recent amendments,, the defendant's right to do so is extended to all cases whatso- ever, of every nature. It is therefore probable that, for the 436 DEFENDANT'S COURSE, BEFORE ANSWER. future, this provision will be more extensively acted upon in practice than heretofore. In actions for damages, where an injury has really been committed, and the defendant is ready to pay a moderate sum, but not the amount demanded, and there is a fair probability that a jury might be found to concur in his estimate of the actual compensation due, it might be a most advantageous course, especially as, if not accepted, it in nowise prejudices the ulterior prosecution of his defence; and many other instances might be given. The signature of the defendant's attorney to an offer as above, is sufficient, as being equivalent to the signature of the defendant himself. Sterne v. Bentley, 1 C. R. 109; 3 How. 331. It is not necessary that the offer should contain any special statement on the subject of costs. The allowance of them follows, as of course, if it be accepted. Megraih v. Van Wyck, 3 Sandf. 750, 1 C. R. (N. S.) 157. In an action against defend- ants jointly liable, an offer by one defendant, the other making no defence, will subject the plaintiff to costs, if he fail to recover more than the sum mentioned. Laforge v. Chilson, 3 Sandf. 752, 1 C. R. (1ST. S.) 159. See, also, case of Lippman v. Jbekon, to same effect, cited in note, 1 C. R. (N. S.) 161- The above cases proceed upon the ground that it is competent to the plain- tiff to enter judgment against both parties, as joint debtors, under the offer so made. In Olwell v. McLaugJdin, 10 L. 0. 310, it was held that an offer made by one partner in a firm will bind their joint property. See, likewise, Emery v. Emery, 9 How. 130. Although the defendant, on a verdict being given for less than the offer, is entitled to his costs, he cannot recover an extra allowance, under sees. 308 and 309. McLees v. Avery, 4 J low. 411, 3 C. R. 104. The ordinary costs, however, will, in all cases, be quite a sufficient inducement to the adoption of this course, wherever admissible. Tl:<- :idv:nit.agcs of this course bring pursued, wherever admissible, are demonstrated by the case of Smith, v. Olssen, 4 Sandf. 711, when: an application for the defendant to satisfy an admitted portion of the plaintiff's olaim, under see. 244, was refused, on the ground that q previous offer, to the same effect, had been made, and refused bv the plaintiff. An offer of this description precludes the defendant from taking any steps in the cause, until the ten days allowed to the DEFENDANT'S COURSE, BEFORE ANSWER. 437 plaintiff have expired, or his written acceptance or refusal of it be received. The election to be made by the latter must be made in writing; evidence of one made by parol, will not avail the defendant, or render any proceedings regular, which he may take within the period in question. Walker v. Johnson, 8 How. 240 ; Pomeroyy. Hulvn, 7 How. 161. Nor can the defendant, by taking this course, deprive the plaintiff of his right to proceed. He must make the offer at such a time that the plaintiff may also have the full benefit of his clection^and if it is served too late, so that the cause can be reached and tried within the ten clays, the rights of the parties are in all respects as if no offer had been made. Pomeroy v. Hulin, above cited. The virtual result of the cause, and not the actual amount recovered by the plaintiff, will govern the question as to the defendant's right to costs. Thus, in Rvggles v. Fogg, 7 How, 324, where the plaintiff failed to recover a more favorable judg- ment in amount than that offered by defendant, but, on the trial, extinguished a counter-claim which, with the verdict, exceeded the defendant's offer, it was held that he was entitled to full costs. Where, however, the verdict is in any measure less than the sum offered, with subsequent interest to the date of trial, the reverse will be the case, and the defendant entitled to the bene- fit of the proceeding. The acceptance of the offer, and entry of judgment thereon, extinguish the counter-claim. Schneider v. Jacobi, 1 Duer, 694; 11 L. O. 220. In relation to an offer to take judgment, entitling the plaintiff to the performance of a specific act, and the mode in which that performance may be enforced, see Fero v. Van Evra, 9 How- ard, 148. With reference to compromise in general, the enabling pro- visions of c. 257, of the Laws of 1838, as amended by c. 348, of those of 1845, see vol. II. of third edition of the Eevised Statutes, p. 61, with reference to compromises or compositions, effected by one out of several partners or joint debtors, should not be lost sight of, where a defendant, desirous of compromising, stands in either of those positions. To enter into any detailed con^ sideration of the subject would, as before stated, be inconsistent with the plan of this work, it being, strictly speaking, a remedy under the old practice. Assuming such a compromise to be effected 438 DEFENDANT'S COURSE, BEFORE ANSWER. during the progress of the suit, and before judgment, by one of several defendants, desirous of getting rid of his individual lia- bility, a consent to dismiss the action, as against him, should be obtained from the plaintiff's solicitor, as part of the arrange- ment, and a judgment of dismissal, without costs, entered there- upon. If that consent be refused, the proper course will then be to plead the memorandum to be taken under the statute, or, if issue be already joined, to apply to the court for leave to file a supplemental answer for that purpose, and then apply to the court for judgment thereon, by motion, or order to show cause, in the ordinary form. § 142. Defendant's Proceedings with reference to Plaintiff. The questions as to the eliciting of necessary information, and also as to the precautionary proceedings of the defendant, in relation to the defence to be put in, and the incidental subject of compromise, having thus been treated of; the next point to be noticed is that as to certain precautionary proceedings, which such defendant is at liberty to take, with reference to the fur- ther prosecution of the suit by the plaintiff. Security for Costs.'] — The first of these is the defendant's power to require security for costs, in certain cases. This is a matter in which the old system still subsists, without alteration by the Code ; and the old books of practice should, accordingly, be referred to. The statutory provisions on the subject are contained in title II., chapter X., part III. of the Revised Statutes, 2 R S. 620. The instances in which the de- lant is thereby entitled to this security, are as follows: 1. Who, the suit is commenced on behalf of a plaintiff, not residing within the jurisdiction of the court, or on behalf of al plaintifls, who are all non-residents. 2. When it is commenced for, or in the name of the trustees of any debtor. .",. Winn it is commenced for, or in the name of any person being insolvent, who shall have been discharged from his debts, <>r whose person shall have }>rcu exonerated from imprison- ment pursuant to any law, and that, for tin' collection of any debt contracted before the assignment of his estate. DEFENDANT'S COURSE, BEFORE ANSWER. 439 4. When it is commenced for, or in the name of, any person committed in execution for any crime ; or, 5. When it is commenced for, or in the name of, any infant, whose next friend has not given security for costs. If, too, after the commencement of the suit, the plaintiff, or plaintiffs, shall subsequently become classifiable under Nos. 1, 3, or 4 of the above provisions, the defendant may likewise re- quire such security. In addition to the provisions above noticed, there is also a special power contained in sec. 317 of the Code, empowering the court to require the plaintiff to give security for costs, in actions prosecuted or defended by executors, or other parties standing in a fiduciary relation. The security to be so given, is to be in the form of a surety- bond, in at least $250; the sureties to justify, if excepted to: and the mode of compelling the plaintiff to give it, is by appli- cation to the court, upon affidavit, for an order to the effect that the plaintiff give such security within twenty days, or show cause, at a period named in the order, why such security should not be given, with an interim stay of proceedings. In cases of the above nature, the plaintiff's attorney is tem- porarily liable for costs, to an amount not exceeding $100, until security shall have been given ; and this, whether it have been required by the defendant or not ; but such attorney may dis- charge himself from that liability, by filing security of his own motion, giving notice thereof to the defendant. The mere ob- taining of an order by the defendant, does not discharge the attorney from such liability, in case the security required be not perfected, even though the defendant proceed, without wait- ing the result. The demand of such costs does not, however, entitle the defendant to process against the attorney in the first instance. That process can only be founded on a demand after the order is made, and after service of a certified copy, and is not obtainable until the expiration of the twenty days allowed by Rule 35 for that purpose. Boyce v. Bates, 8 How. 495. In the proceedings for this purpose, the original right to require secu- rity, must be affirmatively shown. Moir v. Brown, 9 How. 270. In Gardner v. Kelly, 2 Sandf. 632, 1 C. E. 120, it was con- tended, in opposition to a motion for this purpose, that the above provisions were repealed by sec. 303 of the Code. The court held, however, that such was not the case, that those pro- 440 DEFENDANT'S COURSE, BEFORE ANSWER. visions were still subsisting, and that the defendant was accord- ingly entitled to such security under them. In Abbott v. Smith, 8 How. 463, it was held that a motion for this purpose is sustainable, after default suffered, but before judgment entered. In Gardner v. Kelly, above cited, this species of relief was even granted, after judgment by default against the defendant had been actually entered, on leave being subsequently given to him to answer. " If, however," the learned judge said, "the plaintiff had required that restriction to be imposed upon the defendant, when he applied for leave to open his default, it would probably have been granted." It is not, however, imperative to grant the application, if un- reasonably delayed. Thus, in Florence v. Bulkley, 1 Duer, 705, 12 L. 0. 28, where the application, as against an infant, was not made till after the cause had been referred and noticed for trial, the attorney and guardian being both responsible, the applica- tion was refused. In the same case it was laid down that, if the plaintiff is permitted to sue in forma pauperis, he cannot be required to give security for costs, nor can he be permitted to sue in that character, on application made after he has been required to file such security. If the defendant, having obtained such an order, afterwards proceed in the cause before it is complied with, it will effect a waiver of the stay of proceedings, and the plaintiff will be at liberty to appear and prosecute the cause. The defendant's claim against the attorney will not, however, be prejudiced by his adopting this course. Boyce v. Bates, 8 How. 495, above cited. The order to file security for costs should be in the alterna- tive, according to the old practice. When the plaintiff gives security, with justification, in the first instance, and the defend- ant excepts, the justification must be repeated, and until that is done, time will not commence to run as against the defendant. /.' v. Freeman t 8 How. 492. A non-resident administratrix, though prosecuting in the right of t!ii- i , is bound to give Beeurity, if required, for such costs, [f any, as may be awarded against her, li de bonis pro}>rii.. 86. Tin power "I' requiring security from an executor, adminis- trator, or trustee, under Bee. 817, is, however, strictly discre- tionary. It will not be required, merely upon the ground that DEFENDANT'S COURSE, BEFORE ANSWER. 441 the estate he represents is insolvent. Darby v. Condit, 1 Duer, 599, 11 L. O. 154. The bond as security for costs need not follow the exact words of the statute. It will be a sufficient compliance with it, if it be equally favorable to the defendant, and if the spirit of the statute is carried out by it. Smith v. Norval, 2 Sandf. 653, 2 C. E. 14. Where the plaintiff is non-resident, the defendant's right to require security subsists, notwithstanding that the former may have subsequently assigned the alleged cause of action to a resident, so that the latter has, in fact, become the real party in interest. The plaintiff on the record cannot, by his own act, divest himself of his liability to the defendant for costs. Phe- nix v. Townshend, 2 0. E. 2 ; see also note, 2 Sandf. 634. A plaintiff resident at Brooklyn, must give security for costs in proceedings in the Superior Court. Blossom v. Adams, 2 C. E. 59; 7 L. 0. 314. The same point is decided in Ahsbahs v. Cousin, 2 Sandf. 632. An infant joint plaintiff cannot be required to give security for costs, nor is the attorney liable, under the Revised Statutes, in such case, or in others where defendant cannot require such security. Hulbert v. Newell, 4 How. 93. It would seem that, in cases pending in courts of limited ju- risdiction, the security must be given by some person residing within the jurisdiction of the court. See Merrick v. Taylor, 1 C. R, (N. S.) 382, (note.) Where security has been filed pursuant to an order, and twenty daj-s have elapsed without objection as to the amount of the bond, the court will not entertain an application to in- crease the amount. Castellanos v. Jones, 4 Sandf. 679. Change of Venue — Demand of Trial in proper County.] — With reference to the forum in which the cause is to be tried, the de- fendant possesses, under sec. 33, the power of removing any transitory action from the New York Superior Court, or Court of Common Pleas, into the Supreme Court, as before noticed in the introductory chapters as to the jurisdiction of those tribu- nals. The application is to be made to the Supreme Court, upon motion ; and, on the order being obtained, a certified copy is to be filed in the office of the clerk of the court from which the action is removed. On filing of such copy, the cause is to be deemed as removed, and all process and proceedings on file 442 DEFENDANT'S COURSE, BEFORE ANSWER. are to be forthwith delivered to the clerk of the county in which the trial is ordered to be had. In certain cases, also, the de- fendant possesses the power of removing the case into the United States' courts. See introductory remarks on the subject. See, also, Field v. Blair, 1 C. R. (K S.) 292, 361 ; Suydam v. Swing, Id. 294. When, too, the county designated by the plaintiff in his com- plaint, is not the proper county, it is in the power of the defend- ant to obtain a change, under the provisions of sec. 126. This proceeding must not be confounded with the ordinary motion to change the venue on grounds of convenience, the proper time for making which is after issue, and which will accordingly be treated of hereafter, at that point in the progress of the cause. The proceeding for the former purpose is prescribed by the above section, and consists of a demand, in writing, that the trial be had in the proper county. This demand must be made before the time for answering expires ; and the consent of the opposite party, or the order of the court for such removal, must be thereupon obtained. If these proceedings be not taken on the part of the defendant, the case may still be tried by the plaintiff in the county originally named, though not the proper one. Under the Code of 1819, this section did not in terms pre- scribe that the demand of a change should be followed up by an order for that purpose, but it was, nevertheless, held in Has- brouck v. McAdam, 4 How. 812, 3 C. R 39, that, under that measure, a bare demand in writing was not sufficient, unless followed up by an application to the court by one part} r or the other, and that cither party might make it; and it was likewise laid down that if, after receiving such notice, the plaintiff neg- lected or refused to take the necessary measures, the defend- ant rnighl avail himself of such omission on the trial, by appli- cation for the dismissal of the complaint. See also Moore v. Gardner, 5 Eow 243; 3 C. R. 224; and Main v. Remsen, 3 C. |,\ L88; Vermont Central Railroad Company v. The Northern Railroad Company, Q Eow. 106. The cecent amendments of the Code pul thii beyond a doubt, and the defendant's course is clear under it. viz., to apply to the plaintiff's attorney for a consent founded on his demand, al the time of making it, and, if such consent be refused, then to apply to ihc court himself for that purpose. The necessary forms will be found in the Appendix. DEFENDANT'S COURSE, BEFORE ANSWER. 443 The demand should be in the terms of the act, i. e., " that the trial should be had" in the " proper county ;" if these words be omitted, and a county simply named, it would seem that the demand would not be good. Beardsley v. Dickerson, 4 How. 81. If one county be named in the demand, a motion to change the venue into another cannot be grounded upon it, but a fresh demand must be made. Vermont Central Railroad Company v. The Northern Railroad Company, 6 How. 106. The proper county in actions falling within sections 123 and 124, i. e., real estate or local actions, is the county in which the premises affected, or some part thereof, are situate, or, as regards the latter, in that in which the cause of action arose. See also Miller v. Hull, 3 How. 325 ; ICE. 113, with reference to the proper county in foreclosure cases ; and likewise Beardsley v. Dickerson, 4 How. 81. An action for specific performance of a contract is not, how- ever, a local action, and maybe tried in another count} r , or even in a court of limited jurisdiction elsewhere, as, for instance, in the Superior Court, provided the jurisdiction of such court be otherwise completely acquired. See Auckincloss v. Nott, 12 L. 0. 119. In actions of a strictly local nature, the demand that the trial be had in the proper county is as of right, and cannot be resisted on general grounds. See Parkv.Carnley, 7 How. 355. Where the action is not of a local nature, any county in which one at least of the parties resides, is a proper county. See Hinchman v. Butler, 7 How. 462. In actions brought by the People, any county in the State may be the proper county. People v. Cook, 6 How. 448. An action brought against a public officer, for an act done by him by virtue of his office, ought, however, to be tried in the county where the cause of action arose. See Code, sec. 124, subd. 2 ; The People v. Hayes, 7 How. 248. In Goodrich v. Vanderbilt, 7 How. 467, it is laid down as a general, though not an imperative rule, that the place of trial, in a transitory action, should be in the county where the prin- cipal transactions between the parties occurred ; and the incon- venience of a trial in New York itself, was obviated, by grant- ing an election to the parties, to substitute some neighboring county in its stead. The above provisions do not, in any way, restrict the power 444 DEFENDANT'S COUKSE, BEFORE ANSWER. of the court to grant a change of venue on other grounds, on a proper application for that purpose. Nor is the power of the opposite party to make such an application in clue time, impaired by his having previously complied with a demand to change the venue into the proper county, under the above provision. See Moore v. Gardner, 5 How. 243 ; 3 C. E. 224. The same case is authority that, on applications on the foregoing ground, the venue is to be fixed irrespective of the convenience of wit- nesses, but subject, of course, to the power of the court to change it subsequently on that ground, as above alluded to. In Mason v. Brown, 6 How. 481, this last conclusion is doubt- ed, on the ground that, where it is manifestly shown that the convenience of witnesses will eventually require the trial in another, it would be an idle ceremony to transfer the venue to the proper county in the first instance. This case was, however, one of conflicting motions, and is altogether " sui generis" and characterized as such in Park v. Camley, 7 How. 355, where it is laid down that, in actions of a local nature, the demand is of right, and the change a matter of course. The parties must first be put right, after which, either has the privilege, at the proper time, of coming in and being heard, on the ground of the convenience of witnesses. It is indeed admitted in Mason v. Brown, that if the motion to change the venue into the pro- per county had been made before issue joined, which is clearly the proper time for making it, it must have been granted. The difficulty there arose from the defendant's delay, which gave the plaintiff an opportunity of making a counter motion, and bring- ing in counter evidence, which would otherwise have been inad- missible. The demand of a change into the proper county, and the ap- plication thereon, may be made by one of several defendants. The consent of the others should, however, be obtained, or notice of the application given to them. Hairs v. Remsen, 3 C. R. LS8. The defendant must be careful to make his demand in due time, or hia right to do so will be gone, and he may also waive that right, by acta inconsistent with its assertion. Thus, where a defendant had served his answer before the expiration of the time allowed, and afterwards, within that time, demanded a change of venue under this section, it was held that the application was made too late. Milligan v.Brophy, 2C. B. 1.18. DEFENDANT'S COURSE, BEFORE ANSWER. 445 Such demand may, however, be made simultaneously with the putting in of the answer. Mairs v. Remsen, 3 C. K. 138, above cited. It seems that, in all motions to change the place of trial, costs to abide the event will be allowed, if they are asked for in the notice, but, if not, the court has no power to make such order. Northrop v. Van Dusen, 5 How. 134, 3 C. E. 140. The power of the court to give costs of this description under any circum- stances, has however been doubted. See Johnson v. Jillitt, 7 How. 485. See hereafter under the head of Costs. Under the Code of 1849, it was held that an order, changing the place of trial, as regarded the issue of fact, did not change the venue for other purposes. See Gould v. C hatpin, 4 How. 186, 2 C. R. 107 ; Barnard v. Wheeler, 3 How. 71 ; Beardsley v. Dickerson, 4 How. 81 ; Lynch v. Mosher, 4 How. 86, 2 C. R. 54. But a change of trial into the proper county, always carried the venue with it, for all purposes. See Rule 3 of the Supreme Court on that subject. The question is now, however, put be- yond doubt, in all cases, by the recent amendment. For further considerations on the subject of the change of venue, see subsequent chapter, where the subject is generally considered, in reference to motions made for that purpose, on general grounds, and after issue joined. § 143. Proceedings preliminary to Answer. Appointment of Guardian, next Friend, <£c] — The following precautions apply to particular cases: Where an infant is defendant, the first proceeding to be taken is the appointment of a guardian ad litem. Until this is done, no answer can properly be put in, or act properly done in the suit, on behalf of such infant. See previous chapter, in re- lation to the proceedings necessary for that purpose. Of a like nature is the case of a wife defendant. As a ge- neral rule, she can only prosecute or defend by her next friend, and her husband, where their interests are not adverse, should be joined with her as a party. See this subject heretofore con- sidered, and numerous cases cited under the head of Parties, in section 29, subdivision " husband and wife" In an anonymous 446 DEFENDANT'S COURSE, BEFORE ANSWER. case, reported 11 L. 0. 350, it was held that, where a wife de- fendant had commenced a cross action against her husband, she could not require him to furnish money for the prosecution of that action; on the ground that she might have obtained the same relief by her answer, properly interposed. In certain cases, however, 1. Where the husband's interest is adverse to hers ; 2. Where he is a defendant in her right, and she disapproves of the intended defence ; 3. Where she lives separate from him; or, 1. Where he is out of the jurisdiction, or an alien anemy ; the wife may answer separately, as under the old practice. See also as to real estate actions, 2 R. S. 310, sees. 1 and 5. In all these cases, however, the leave of the court to enable her to answer separately, must first be obtained. See Newcomb v. Ketdtas, 2 C. R. 152. The proceeding is in all respects as under the old practice. Application for Leave to defend, after Judgment, obtained by Publication^] — Where the summons has been served by publi- cation, and, before judgment has been entered up, the defend- ant have notice of and decide upon defending the action, he must apply to the court for leave for that purpose. See Code, sec. 135, last clause. The application should be made upon the summons and complaint, if the same have been received, or else, upon proof of the publication of the summons; and such application should be accompanied by the usual affidavit of merits, or by other proof that the defendant has a real defence to the action, so as to show "sufficient cause" for making the application. When such cause is shown, the order would seem to be of course, as the section expressly provides that he "must be allowed to defend the action;" and the application may therefore be made ex parte, and not by special motion, or order to show cause. ( 'aution } where Notice of Object of Suit served.] — Where the de- fendant baa been served, under sec. 131, with notice of object of suit, and that no personal demand is made against him by the plaintiff, and he then defends, be does so at his peril, as far Is the quesl ion of costs, [f, therefore, he be convinced that the suil is one of this nature, and that, although a formal party, be really baa no personal interesl in the controversy, his Caking any further steps in the matter will not merely be un- necessary, but unwise. DEFENDANT'S COURSE, BEFORE ANSWER. 447 § 144. Time to plead. The different preliminary proceedings admissible on the part of the defendant, before pleading to the complaint, having thus been considered, the last point to be entered upon in the pre- sent chapter, is with reference to the time allowed to him for that purpose. The section of the Code providing for this subject is No. 143, and runs as follows : § 143. The only pleading on the part of the defendant, is either a demurrer or an answer. It must be served within twenty days after the service of the copy of the complaint. Precisely the same period is fixed by section 153, with refer- ence to the reply to be put in by the plaintiff, where necessary, and the cases applicable to one description of pleading, are equally in point as regards the other. The subject of time to plead will, therefore, be here entered upon, as a whole; and all the cases upon the subject cited, whether applicable to de- murrer, answer, or reply. The first remark essential to be made on this head, is with reference to the effect of an order for discovery of papers, &c. ; which order, under Rule 11 of the Supreme Court, operates as an entire stay of proceedings, until it is either complied with or vacated. The party obtaining such order, it is expressly pro- vided by that rule, "shall have the like time to prepare his complaint, answer, reply, or demurrer, to which he was entitled at the making of the order." Such order, therefore, operates as a positive stay of proceedings, and extension of the time to plead, pending its operation. The same may possibly be held with reference to the demand of a bill of particulars, though, in this case, until the point is definitely settled, it will be more prudent to obtain an extension by order. Computation of Time ; from, and to what Periods.'] — With re- ference to the mode in which the twenty days allowed to plead, and any extensions, are to be computed, provision is made by sec. 407, which runs as follows : § 40V. The time within which an act is to be done, as herein pro- 448 DEFENDANT'S COURSE, BEFORE ANSWER. vided, shall be computed by excluding the first day and including the last. If the last day be Sunday, it shall be excluded. This provision, being of general application, has been al- ready fully considered, and the cases generally applicable cited, under the head of Formal Proceedings. It is clearly settled that, with reference to the limitation of time in all cases, the party has the whole of the last day to perform the act required ; so that, for instance, where the summons and complaint are served on the first of the month, the defendant will have the whole of the 21st in which to plead : but, if he omit to do so on that day, the plaintiff may take his default on the morning of the 22d. See Schenck v. McKie, 4 How. 246, 3 C. K. 24 ; Truax v. Clute, 7 L. 0. 163; Judd v. Fulton, 4 How. 298, 10 Barb. 117; and other cases there cited. See also O'Brien v. Catlln, 1 C. R (N. S.) 273. The possible effect of service by mail, in doubling the time to plead, in cases where it is admissible, must not be lost sight of. See this subject treated heretofore, and the various cases cited in sec. 55 under the head of Service by Mail. Where the summons was served separately, and a copy of the complaint afterwards delivered to the defendant, but not on his demand, and merely as part of the proceedings on an arrest, it was held that the time to answer ran from the service of the summons, not of the complaint, and a judgment entered on the expiration of the former period, was held to be regular. Van Pelt v. Buyer, 7 How. 325. In relation to the time which will be allowed in cases of service by publication, see that subject heretofore treated under tii'' head of Summons. The safer course for a defendant will be i' i adopt the view taken in Dyhers v. Woodward, there cited; though whether that view is sustainable seems more than doubtful; : 1 1 1 < 1 in arrange, if possible, to put in his answer, within twenty days after he receives actual notice of the summons ; the irse for tin', plaintiff, to defer entering his judgment until tin; publication is complete, at all events, if not, till twenty days afi completion. See Tomlinson v. Van Vechlen, there also cited, :i case which seems to tend in tin; opposite direction. The time of actual completion of service seems to be the preferable period, as the defendant's rights to come in and defend afterwards an' fully saved by the Code, and there DEFENDANT'S COURSE, BEFORE ANSWER. 449 seems no adequate reason why the plaintiff's proceedings should be hung up for any longer period than the six weeks required by the section in question. Extension of Time by Consent.'] — If the party, or his attorney, from any reason, finds himself unable to prepare his pleading within the time allowed by the above sections, the usual course is to apply to the adverse attorney for a consent enlarging the time, unless, for other reasons, the request be unadvisable. This consent must, of course, be in writing, and signed by such attorney, or else, under Rule 37 of the Supreme Court, it will not be binding; but, within these conditions, no particular form is necessary. The party obtaining it will, of course, take care that the period allowed is distinctly expressed, and that the cause in which the consent is given, is distinctly referred to. Extension of Time by Order.] — If, for any reason, this course be unadvisable, or if time be refused, application may then be made for an order extending the time to plead. This proceed- ing is specially provided for by sec. 405 of the Code, which runs as follows : § 405. The time within which any proceeding in an action must be had, after its commencement, except the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds therefor, by a judge of the court, or, if the action be in the Supreme Court, by a county judge. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded. This provision is, as will be seen, general ; and, in its other aspects, will be hereafter considered. Under the powers here conferred, in connection with those of sec. 401, and the other provisions before referred to, (particularly in the introductory chapters relative to the jurisdiction of the Supreme Court,) any judge of that court, or any county judge, in any part of the State 5 (the latter, of course, within the limits of his jurisdic- tion,) may make orders of this description, in suits falling within his cognizance, without reference to the district in which the cause is actually pending. In Wilcoch v. Curtis, 1 C. R 96, it was held that the restric- tion in sec. 401, that "no order to stay proceedings, for a longer time than twenty days, shall be granted by a judge out of court, 29 450 DEFENDANT'S COURSE, BEFORE ANSWER. except upon previous notice to the adverse party," did not comprise an order extending the time to answer, inasmuch as it did not effect a general stay; and this case does not appear to have been directly overruled. The doctrine is one, however, not to be depended upon. A practice sprung up, instead, of obtaining ex parte a series of twenty-day orders, where more than the original period was required; but, in several recent cases, this mode of proceeding has been held irregular. The only safe course of proceeding will be to answer within the original period, if possible; if not, to obtain an ex parte extension for twen- ty days, and, if that period should not be sufficient, then to apply to the court, on notice, for such further period as may be actu- ally requisite. See this subject heretofore treated, and various cases cited in sec. 64, under the head of Ex parte Motions. The application for an order of this nature is, in the first instance, strictly ex parte, and must be made on affidavit, either of the party or his attorney. The managing clerk of the latter will also, in most cases, be competent to make it. To give any positive form for the affidavit would be superfluous, since in no two cases is it probable that the circumstances will be exactly alike. The following general observations seem, however, to be applicable : 1. The date at which the current time expires, either with reference to the original service of the summons, or the expira- tion of the last extension granted, should be stated; and, under the latter circumstances, the fact that the time has already been extended must appear, or the court will feel strongly disposed in favor of granting an application to vacate the order, unless it be clearly shown that such omission was not made with.any view to concealment or misrepresentation. 2. The circumstances under which the indulgence is required, should be clearly, though concisely shown, care being taken by the party swearing to the affidavit, to lay bare his own case as little ;is possible, whilst .slating enough to induce the court to. act. The order obtained or this application is generally endorsed on the affidavit, and in such case, runs merely in the words, or to the effect, "let the defendant A. B. have days additional time to an wer in the cause," the date being added. An order in this form extends the time to demur. See Brodhead v. Broadhead, 1 Eow. ^ ( 'S, 8 (J. U. 8. Of course, when the order DEFENDANT'S COURSE, BEFORE ANSWER. 4.5 1 is for time to reply, this wording must be changed. The judge's signature being obtained to this memorandum, a copy of it, and also of the affidavit on which it was granted, (which last is indispensable,) must be served on the opposite party, and then the proceeding is complete. Neither order nor affidavit need be filed, or entered with the clerk of the court. See Savage v. Belyea, 3 How. 276 ; ICE. 42. In Schench v. McKie, 4 How. 246, 3 C. E, 24, it was held that an order, granting additional time to answer, does not commence to run until the then cur- rent time shall have expired. The order in that case was made on the 1st, but the time to answer expired on the 8th October, and it was held that such order, nevertheless, extended the time till the 28th. Of course, the above precautions, or one of them, must be taken before the time to plead has actually expired, and, at the very latest, on the last day allowed for that purpose. If delayed until afterwards, the application can no longer be made to the court ex parte. See Snyder v. White, 6 How. 321. The opposite party having then become actually entitled to take a default, that right cannot be properly taken from him, unless on an ap- plication on notice, either by way of motion or order to show cause. The latter will, probably, be found the most convenient course, an interim stay of proceedings being asked for as part of the order. The emergency is one, however, that ought never to occur, with proper vigilance. It would seem from the case of The Columbus Insurance Company v. Force, 8 How. 353, that an extension of the time to answer does not, per se, deprive the defendant of his right to object to the legality of an arrest, though any laches on his part will, doubt- less, do so. An extension of the time to answer is, however, a waiver of all objections to the complaint, and a bar to the de- fendant's right to move to strike out irrelevant matter, unless the right to make the motion is expressly given. Bowman v* Sheldon, 5 Sandf. 651, 10 L. 0. 338; Hollister v. Livingston, 9 How. 141. Extension of Time, by Effect of Amendment.'] — Lastly, in relation to the time allowed to plead, the effect of an amendment by the adverse party must not be forgotten. The consequence of such an amendment is, to establish a new period altogether, in lieu of that current before the service of the amended pleading. 452 DEFENDANT'S COURSE, BEFORE ANSWER. The time will then run in the usual manner, as from the date of such service, without any reference whatever to the proceed- ings prior thereto. See this subject previously considered, and the cases thereon cited in sections 114 and 116, under the head of Amendments as of course, or by leave of the court. § 145. Relief where Default suffered. Positive as is, in terms, the limitation on pleading imposed by the above provisions, the courts have throughout shown a very strong disposition to relax the strictness of this rule in practice, though, of course, only upon the existence of a bond fide defence being shown, and on conditions imposed. The fol- lowing general principle runs, too, through all the cases upon the subject,- i. e., that, where a defendant, already in default, applies for leave to be allowed to come in and defend, his pro- posed answer should be drawn and sworn to, and a copy thereof served, with the notice of motion or order to show cause by which such relief is asked : in order that the court may judge, as to whether the case is a proper one in which to grant relief of that nature, and as to the proper terms to be imposed, as conditions on granting it. See this last principle, as held under the old practice, in McGaffigan v. Jenkins, 1 Barb. 31. The earliest case on the above subject, as applicable to pro- ceedings under the Code, is Lynde v. Verity, 8 How. 350, 1 C. R. 97, where the whole of the different principles, as above stated, are distinctly laid down. In Salutat v. Dowries, 1 C. R. 120, the same indulgence was granted, after a discussion as to whether the court had, or had not, power to enlarge the time at all. By Allen v. Achley, however, 4 How. 5, the doctrine was carried to the fullest extent, two defendants having, in that . been let in to defend, after judgment had been taken ;.-ist them by default; one of them only making what the court pronounced to be a \a\ne excuse for nol answering, and the other making no excuse at all. The court, however, im- posed strict terms and conditions ; in particular, that the Statute of Limitations should not be pleaded, and also that the judgment ild tand s security to the plaintiff. In Grant v. AfcCaughin, I I low. 216, the defendant was al- lowed to come in and defend, alter judgment had been entered DEFENDANT'S COURSE, BEFORE ANSWER. 453 against him, in consequence of a misapprehension, as to the effect of a stipulation given, extending his time to answer; and, under these circumstances, the court, though enforcing the payment of costs, and directing the judgment to stand as secu- rity, refused to impose any condition as to the nature of the defence sought to be set up, which in that case was usury. Where, however, an unconscientious or dishonest defence is sought to be set up, after default, the court will not open that default, or relieve the party from the consequences of his own neglect. See James 0. King v. TJie Merchants' Exchange Com- pany, 2 Sandf. 693. In Foster v. Udell, 2 C. E. 30, the New York Common Pleas decided that a delay on the part of the plaintiff in taking judg- ment, was equivalent to a consent to give the defendant further time to answer; and they set aside, as irregular, a judgment so obtained ; the defendant, long after his time had expired, but before judgment was entered, having served an answer, but which the plaintiff's attorney had refused to receive. The doc- trine of this case has, however, been since overruled. A de- cision exactly contrary to it was given by the Supreme Court, in the case of Dudley v. Hubbard, 2 C. E. 70 ; and a motion to set aside a judgment thus entered, was denied, with costs. In McGown v. Leavenworth, 3 C. E. 151, the same principle is laid down ; and this, being a decision of the general term of the same court by which Foster v. Udell was decided, directly over- rules it. It was also held, in the same case, that an order staying the plaintiff's proceedings, does not, per se, enlarge the defendant's time to answer. It can only be so by order specially obtained for that purpose. The stay of proceedings only pre- cludes the plaintiff from taking advantage of the omission, until that stay is vacated, or at an end. The defendant had there, on the last day, obtained an order to show cause why he should not have further time to plead, with an interim stay of proceed- ings as usual, which order was discharged on the return. Pend- ing that stay, but after the time actually allowed had expired, the defendant had served his answer, which service was held to be irregular, and was set aside. In Mandeville v. Winne, 5 How. 461, 1 C. E. (N. S.) 161, the doctrine of the above cases, and particularly as laid down in Dudley v. Hubbard, was distinctly confirmed; and the same seems to be implied in Graham v. McCoun, 5 How. 353 ; ICE. 454 DEMURRER. (1ST. S.) 43. It ma}', therefore, be looked upon as settled, that, if the defendant allow his time to plead to go by without obtain- ing an extension, he cannot afterwards serve his pleading, in ordinary form, or without leave of the court, specially obtained on notice to the plaintiff; and this, although the latter may not at the time have taken any steps to avail himself of the default suffered. See, likewise, a Brim v. CatUn, 1 C. K. (N. S.) 273. Of course, however, if the plaintiff's solicitor expressly receive, or do not return the pleading thus irregularly served, within a reasonable time, the defect will then be waived, and the an- swer may be sufficient. See introductory chapter on formal requisites of pleading, and various cases, including Laimbeer v. Allen, 2 Sandf. 648 ; 2 C. E. 15, there cited. The same, too, is implied in McGown v. Leavemvortli, above mentioned; and a return within the same day in which the pleading was served, was held to be a reasonable time. The plaintiff, too, cannot take advantage of a default occa- sioned by the laches or bad faith of his own attorney, where the defendant's pleading has been ready, and attempted to be served within due time. Thus, in Falconer y. Ucoppel, 2 C. R. 71, on the last day of service, the defendant endeavored, in office hours, to serve his answer at the plaintiff's office, and also at his dwelling, but both were closed, and no one was there to receive it; but, on the following day, such defendant succeeded in serving the answer on the plaintiff personally, with notice of the attempted service on the day before: under which circum- stances it was held that the service was regular, and costs were given. C II A P T E \l III. I) KM UIIRER. § 146. General Nature and Office of Demurrer. THE office of this species of pleading is the formal impeach- ment of defects in the plaintiff's case, apparent upon his own DEMURRER. 455 showing. It is, therefore, a measure of comparative infrequency, as, in a well-drawn pleading, it rarely happens that any such salient points of attack are left uncovered. If the defects objected to require any statement or proof of facts to make them apparent, demurrer will not lie. The objection, in that case, can only be taken by answer, and the defendant's rights, in that respect, are specially saved by section 147. In practice, therefore, this will be the most usual course. In Humphreys v. Chamberlain, 1 C. R. (N. S.) 387, it was accordingly held that a demurrer to an action on a contract, on the ground that such contract was void by the laws of the State in which it was made, was bad, and that the objection could only be taken by answer; inasmuch as the contents of foreign statutes are a matter of evidence, which must be set up in the pleadings as a fact, and proved at the trial accord- ingly. In Carroll v. Carroll, 11 Barb. 293, the rule is laid down thus: "A demurrer must generally depend on that which appears on the complaint, and not on that quod non constat, unless this last is essential to a prima facie cause of action." In Getty v. Hudson River Railroad Company, 8 How. 177, it is also laid down that a demurrer is only appropriate, when the ground of objection appears on the face of the pleading demurred to. The same doctrine, and that, where such is the case, the objection on that ground can only be taken by answer, is distinctly laid down in The Union Mutual Insurance Company v. Osgood, 1 Duer, 707. Where the complaint in an action showed a title to sue, but contained insufficient averments on the subject of that title, answer, not demurrer, was held to be the proper form of raising the question. Millard v. Shaw, 4 How. 137. Demurrer will only lie to an entire pleading, or to an entire cause of action, or ground of defence therein stated. Redun- dant or immaterial matter, of which a portion is relevant, cannot be so impeached ; the proper course in such cases is a motion to strike out such matter. See this subject very fully consi- dered, and numerous cases in point cited, in a prior chapter, under the head of Correction of Pleadings, on motion of the adverse party. The converse of this proposition is equally true, and, wher- ever the pleading itself, or any separate statement of a cause of 456 DEMURRER. action, or a ground of defence, is irrelevant, as a whole, and not in part only, the proper mode of raising the question will be by demurrer, and not by motion. White v. Kidd, 4 How. 68; Fabbricottiv. Launitz, 3 Sandf. 743; 1 0. E. (N. S.) 121; Bene- dict v. DaJce, 6 How. 352; Nichols v. Jones, 6 How. 355; Belden v. Knowlton, Superior Court, unreported; Harlow v. Hamilton, 6 How. 475 ; Seivard v. Miller, 6 How. 312 ; Salinger v. Lusk, 7 How. 430 ; Bailey v. Easterly, 7 How. 495 ; Miln v. Vose, 4 Sandf. 660; Reed v. Latson, 15 Barb. 9; Scovell v. Howell, 2 C. E. 33; Bedell v. Stickles, 4 How. 432; 3 C. E. 105; all before noticed, in the chapter last referred to. See, likewise, decision of New York Common Pleas, in Brien v. Clay, a case of mechanic's lien, published by the clerk of that court. See also Van Namee v. Peoble, 9 How. 198. In relation to insufficient statements, demurrer is the proper course. Hoxie v. Cushman, 7 L. 0. 149. A defect in the complaint demurred to, must be made clearly apparent. AYhere a complaint was objected to, on the ground that it did not show affirmatively that the debt sued for was due when the action was commenced, the court refused to infer that such was not the case, for the purpose of supporting a demurrer. The presumption, if any, would lie the other way. Mdynardv. Talcott, 11 Barb. 569. See Foster v. Hazen, 12 Barb. 547, as to a similar presumption, in favor of the regularity of the proceedings of an inferior court. Nor will a demurrer, as a general rule, be sustained on a matter of mere form, if there are any merits in the case. Howell v. Fraser, 6 How. 221; 1 C. E. (X. S.)270. Where a portion of a pleading was sufficient, a demurrer to the whole was held too broad, and overruled, in Cooper v. Clason, 1 C. II. | X. S.) 347. See, also, Newman v. Otto, 10 L. O. 14, •I Sandf. 668. Where, however, a demurrer was sufficiently bro.-id in part, oilier portions of it, objecting to irrelevant mat- ter, and therefore in themselves inadmissible, were refused to be "ii out. Smith v. Brown, 6 How. 383. In Beale v. Hayes^ 5 Sandf. 640, 10 L. O. 66, the fact that the plaintiff demanded judgment lorn larger amount than, by his own showing, he was entitled to recover, was held not to be a ground of demurrer. Nor will unnecessary prolixity in the plaintiff's I be bo. Johnson v. Snyder, 7 How. 395. 'I'll- demurrer ami answer are essentially separate pleadings, and do not lose their distinctive character by being made out DEMURRER. 457 in one paper, and connected in form. See Howard v. The Michigan Southern Railroad Company, 5 How. 206, 3 C. II. 213, below cited. This form of pleading was held by the New York Common Pleas to be applicable to proceedings under the Mechanics' Lien Law, where otherwise appropriate. See Doughty v. Develin, decision published by the clerk of that court. The demurrer under the Code, coupled with the provisions for striking out irrelevant matter, have swept away entirely the old chancery practice of exceptions. Boyce v. Brown, 7 Barb. 80 ; 3 How. 391 ; Cobb v. Frazee, 4 How. 413 ; 3 C. E. 43. It is a new species of pleading, created, and its character and office defined by the Code, and the old rules on the subject exist no longer. Many objections under the old practice are now no longer cognizable, whilst many others, which formerly were waived, unless pleaded in abatement, can now be taken by means of this pleading.. Swift v. Be Witt, 3 How. 280; 1 C. E. 25 ; 6 L. O. 314 ; Manchester v. Storrs, 3 How. 401. The old rules on the subject of the effect of a demurrer, as necessarily involving an admission of the facts of the plaintiff's case, hold good under the Code. Thus, in Hall v. Bartlett, 9 Barb. 297, it is held that " a demurrer admits the facts which are relevant and well pleaded, but not conclusions of law. Ford v. Peering, 1 Ves. Jun. 71, Story's PI. 452, and the cases there cited." The purchase of a mortgage by an attorney, followed up by proceedings on his part to foreclose by advertisement, was held not to be a purchase with intent to sue, within the meaning of 2 E. S. 288, sec. 71, and judgment was given for him accordingly, on his demurrer on that ground. See likewise as to the necessity of the fact, out of which the demurrer arises, being admitted, Clark v. Van Beusen, 3 C. E. 219. In Fry v. Bennett, 5 Sandf. 54 ; 9 L. O. 330, 1 C. E. (N. S.) 238, although, strictly speaking, a demurrer to answer, several important principles are laid down, in reference to the law of demurrer in general. They are as follows : Mere irrelevancy or surplusage are not, as above stated, legitimate grounds of demurrer. Malice, in libel, on a publication libellous on its face, is a conclusion in law ; unless where the publication would be privileged, if not in fact malicious. So, likewise, with respect to inuendoes, the sole office of which is explanation. On neither of the above can material issues be raised ; but the latter, when 458 DEMURRER. improperly framed, may, in some cases, justify a demurrer. The principle is laid down, that " an answer is insufficient, in the sense of the Code, and, therefore, bad upon demurrer, not only when it sets up a defence groundless in law, but when, in the mode of stating a defence, otherwise valid, it violates the essen- tial rules of pleading, which the Code has retained ;" and, doubt- less, the same principles would be held, in relation to averments of a cause of action. Whether a publication, libellous on its face, may be excused as privileged, is a question of law that may properly be raised by demurrer. Where, however, privi- lege is claimed, on the ground that the animadversions com- plained of were fair and legitimate criticism, the defences of truth and privilege are inseparable; and, if justification be not duly pleaded, privilege cannot be so. Justification, and matter in mitigation, are likewise inseparable as defences, and if the latter be pleaded without the former, demurrer will lie. See cita- tion of this case hereafter, under the head of Answer. Although, as a general rule, a demurrer must cover the whole of the plead- ing demurred to, it need not do so with respect to matter rais- ing immaterial issues, such as on malice, or inuendo, as above stated ; and only those allegations in a complaint are to be deemed material in the sense of the Code, which the plaintiff must prove upon the trial, in order to maintain his action. A demurrer, omitting to notice allegations of the above nature, was accordingly there sustained. A demurrer to the Code itself, as unconstitutional, inasmuch as it abolished the distinction between law and equity, has been, as might have been expected, overruled as frivolous. Anon., 1 C. E. 49. M7. Grounds of Demurrer under Code. General Provisions.] — The points on which demurrer will lie. and the nature of that pleading in general, are strictly defined actions 144 and .145 of the Code, which run as follows: 8 144. The defendant m;iy demur to the complaint, when it shall appear upon the face thereof, either — 1. That the court lias no jurisdiction <>( the person of the defendant, or the subject of the action ; or, 2. That, the plaintiff has not legal capacity to sue ; or, :?. That there is another action pending between the same parlies, for the same cause ; or, DEMURRER. 459 4. That there is a defect of parties, plaintiff or defendant ; or. 5. That several causes of action have been improperly united ; or, 6. That the complaint does not state facts sufficient to constitute a cause of action. § 145. The demurrer shall distinctly specify the grounds of objec- tion to the complaint. Unless it do so^it may be disregarded. It may be taken to the whole complaint, or (o any of the alleged causes of action stated therein. It follows, as a matter of course, that no description of objec- tion which does not fall within one or other of the foregoing- classes, will now form ground of demurrer. Distinctness in stating the grounds of demurrer, is, as will be seen, made a positive requisite by sec. 145. The observa- tions in a foregoing chapter, in reference to making use of the exact words of any statutory provision, are peculiarly applica- ble to demurrer ; in framing which, the precise phraseology of the subdivision of sec. 144, under which the objection is taken, should, on no account, be omitted in any instance, either as preliminary to the statement of the different special grounds, or as part of that statement. See form in Appendix. It is now provided by Eule 87, inserted on the last revision, that, in all cases of more than one distinct cause of defence, the same shall not only be separately stated, but plainly numbered. This provision should be attended to in the statement of grounds of demurrer. We now proceed to take up the different causes of demurrer, as prescribed by section 144, seriatim, and in their order. 1. Want of Jurisdiction.] — The objection to the jurisdiction of the court must be substantial, not formal, and must arise upon the pleading itself demurred to, and not under facts extrinsic to that pleading. Where, therefore, the summons had been improperly served, a demurrer that the court had no jurisdiction of the person of the defendant was overruled. The proper course for him to have pursued on such occasion was, to have moved to set the service aside for irregularity. Nones v. The Hope Mutual Insurance Company , 8 Barb. 541 ; 5 How. 96; 3C.E. 161. An objection of this description must be fully made out. The court will not assume the existence of facts not actually alleged, in order to render void the proceedings of an inferior tribunal ; nor will any presumption be indulged in such a case 460 DEMURRER. to oust the jurisdiction of such tribunal, where enough is shown to bring the case within the general language of the statute which confers it. Foster v. Hazen, 12 Barb. 547. Jurisdiction is intended of the judgments of the United States courts, with- out specific allegation. Bement v. Wisner, 1 C. R. (N. S.) 143. A demurrer on the above ground is, doubtless, the proper course to be adopted, in taking objections on the ground of personal privilege, as in the case of ambassadors, consuls, &c, •exempted from suit in the State courts, in cases where that privilege is apparent on the plaintiff's own showing. If other- wise, demurrer by answer will be the proper course to pursue. In Flynn v. Stoughton, 5 Barb. 115, it was held that the pri- vilege of a foreign consul to be exempt from suit in the State courts, might be waived by an answer to the merits. See, however, previous remarks on this decision, which seems to be clearly wrong, and to be overruled by the cases before cited under the head of Parties. The case of Hodgman v. The Western Railroad Company, 7 How. 492, with reference to a cause of action in tort not being assignable, so as to enable the assignee to maintain an action, seems to bear on this head, though the demurrer was there taken under subdivision 6. 2. Want of Capacity to sue.~\ — This subject has been in a great measure anticipated in a previous chapter, under the head of Parties. A demurrer on this ground was sustained in Fitzhvgh v. Wilcox, 12 Barb. 238, in relation to the contracts of a lunatic, and an attempt of his committee to sue thereon, without the special direction of the court; and, likewise, in Hall v. Taylor, ■s Mow. 428, in relation to a legal action, brought, in like man- ner, by the creditor of an habitual drunkard against his com- mittee. In Stryleer v. Lynch, 1 1 L. 0. 1 L6, it was held that the plain- till' in partition must be in actual or constructive possession of bis share of the subject-matter of the suit; and that, where the complain! shows the legal title to be in a third person as trustee, the defect? will be fatal. Sec this Bubjecl previously considered in the chapter on com- plaint, under the head of the Plaintiff's Right to sue. Autre Action pendant."] — Subdivision 8, is equivalent to the DEMURRER. 461 former plea of autre action pendant. It will rarely happen, however, that demurrer pure will be the proper remedy in this case. Unless the fact of such other action pending appear by the complaint, a specific averment will be requisite, and de- murrer by answer will then be the proper form. See Hornfager v. Hornfager, 6 How. 279, 1 C. R (N. S.) 412. To be pleadable in bar, in either of these modes, the action forming the subject of that pleading, must be pending in some other court of the same State. Another action, for the same cause in the courts of another State, constitutes no bar. Bur- rowes v. Miller, 2 C. K. 101; 5 How. 51. "The intention of subdivision 3, of sec. 144, was merely to affect the form of as- serting a defence already available by law, and not to alter the nature of such defence." The defendant is not, however, remediless in this last matter. The court will, in a clear case, prevent oppression, by forcing the jolaintiff to elect in which action he will proceed, and will suspend proceedings until he has done so. Hammond v. Baker, 3 Sandf. 704 ; ICE. (N. S.) 105. Jurisdiction being intended of the judgments of the United States' courts, (see Bement v. Wisner, 1 C K. (N. S.) 143,) it might probably be held that the plea of another action, pending in those courts, in whatever district of the United States, would be sufficient. Defect of Parties.] — The subject of nonjoinder of parties has been anticipated in the previous chapter, under the heads of Parties and Complaint. In cases of demurrer on this ground, the first clause of section 122, or, rather, the whole of that section as it stood in the Code of 1849, will be held to be the controlling provision. Where the court cannot determine the controversy before it, without prejudice to the rights of others, or by saving those rights, de- murrer will lie, and the court must cause those parties to be brought in. If the contrary be the case, and the controversy can be decided as above, the demurrer will not be well taken. Wallace v. Eaton, 5 How. 99 ; 3 0. K. 161. A demurrer on this ground will not lie for an excess of parties, but only for a deficiency. Stryker v. Lynch, 11 L. 0. 116. Misjoinder of Causes of Action.] — The improper joinder of causes of action, is a defect which must be carefully avoided. 462 DEMURRER. In respect to matters of this nature, sec. 167 is the controlling provision. This question has been already very fully con- sidered, and numerous cases cited, under the head of Joinder in the chapter on Complaint, to which, therefore, the reader is referred. "Where objection is taken to the complaint on this ground, demurrer, not motion, is the proper remedy. Stannard v. Mattice, 7 How. 5. See Bailey v. Easterly, 7 How. 495. The objection of improper joinder of causes of action is, however, of wider scope, and will include the mixing up of different causes of action of the same class, in one general state- ment. See this subject also heretofore considered, and several cases cited, in the chapter on Complaint, under the head of Joinder, and in that as to the essential requisites of pleading. In accordance with this principle, it was held in The Ogdens- burgh Bank v. Paige, 2 C. E. 75, that where, by the complaint, several distinct acts were separately averred, in support of the same cause of action, separate demurrers might be interposed to each of such averments. 6. Insufficiency.'] — The consideration of this head has been anticipated, and the numerous cases in point cited in the chap- ter devoted to the consideration of complaint. See that chapter, passim, and especially under the heads of the Plaintiff's Right to sue, and Averments in Complaint, generally and specially considered. § 148. Mode of Statement of Grounds as above. The point as to whether a demurrer, simply following the words of the statute, is, or is not, a sufficient pleading, has given rise to considerable and somewhat doubtful discussion. A general demurrer, objecting only, "That the complaint does Dot Btate I '. i < ■ t s sufficient to constitute a cause of action," has beeo objected to ami held bad on the ground that, to render a demurrer valid, it, must, under sec. 145, distinctly spe- cify ili'- grounds of objection, so as to enable the opposing party to ascertain what, is the alleged omission or defect com- plained of, iii order that, if thought fit', he may amend. Grant v. Lasher^ 2 0. I:. 2; Hunter v. Frisbee, 2 6. R. 59, 7 L. 0. 319; White v. Low t 7 Barb. 204 ; Qlenny v. Hitchins, 4 How. 98; 2 DEMURRER. 463 C. E. 56, and Surifk v. Dewitt, 3 How. 280 ; 1 C. B. 25 ; 6 L. O. 314. And this same view has been strenously supported in the more recent cases of Purdy v. Carpenter, 6 How. 361, and Hinds v. Tiveddle, 7 How. 278, the last being, however, a case of de- murrer for misjoinder. In Swift v. Dewitt, however, above noticed, the learned judge doubted whether a specification of the above nature could or ought to be required in all cases, and stated, he was inclined to think it was enough to state that the complaint did not show a sufficient cause of action. In Durhee v. The Saratoga and Washington Railroad Company, 4 How. 226, the above doubt was adopted, and full}'' confirmed ; and it was distinctly and positively held, that the objection in question was well raised, by a demurrer which merely specified that ground of objection in the words of the statute. This doctrine is absolutely confirmed by Johnson v. Wetmore, 12 Barb. 433 '; Dauchy v. Bennett, 7 How. 375 ; Hoogland v. Hudson, 8 How. 343; Getty v. The Hudson River Railroad Company, 8 How. 177, and likewise by the Court of Appeals in Haire v. Baker, 1 Seld. 357. It is also supported, with reference to de- murrer to answer, by Hyde v. Conrad, 5 How. 112, 3 C. E. 162; Anibal v. Hunter, 6 How. 255, 1 C. E. (N. S.) 403; Arthur v. Brooks, 14 Barb. 533, and Noxon v. Bentley, 7 How. 316. The authority of these cases seems to be preponderating, and to settle the question that a demurrer for insumcienc}^, under sec. 144, subdivision 6, can properly be taken in the words of the statute, without further specification. In Getty v. The Hudson River Railroad Company, above cited, an exception was made, in favor of demurrers for want of jurisdiction and defect of parties, as to which, it was considered, that a further specification ought to be made, so far as to point out, in the former case, whether the alleged want of jurisdiction related to the person of the defendant, or the subject of the action; and, in the latter, whether the defect of parties com- plained of was in respect of parties plaintiff, or defendant; it being held, as above, that, in all other cases, a statement in the words of the statute is sufficient. In the same case it is laid down, that it is enough to sustain a demurrer, if any of the objections specified appear on the face of the complaint. Al- though the point seems thus definitively settled, it may never- theless be not inexpedient, to state shortly, upon the face of the 464 DEMURRER. demurrer, the points on which it is contended that the com- plaint does not show a sufficient cause of action, taking care to raise every objection which can be properly taken. See Kneiss v. Seligman, below cited. No inconvenience whatever can re- sult from this practice, which will, moreover, be more consonant with the principles laid down by the framers of the statute, in their report, p. 141, viz., "that the defendant shall, by his answer, point out his defence distinctly." In the districts in which an adverse view on the question of a general demurrer has been recently held, this may be especially advisable, though perhaps not necessary. § 149. Omission to demur. The demurrer must not only distinctly specify the grounds of objection to the complaint, but, if any such ground be omitted, it cannot afterwards be taken on the argument. There can be no doubt but that the principle laid down in this respect in Kneiss v. Seligman, 5 How. 425, 8 Barb. 439, is sound, although that case more directly refers to demurrer to answer. This latter subject will be treated of hereafter, in the chapter de. voted to the consideration of reply. Provision is, in fact, expressly made by sec. 148, that any objections to the complaint, not expressly taken either by de- murrer or answer, will be deemed to be waived, excepting only those to the jurisdiction of the court, or that the complaint does not state facts sufficient to constitute a cause of action. These two objections may be asserted for the first time, at any period during the progress of the cause, even on an appeal to the ge- neral term against a judgment entered under sec. 247 ; although in this last case, a defendant cannot take a judgment in his favor, having ('ailed to raise the objection in proper time and form for that purpose. Raynor v. Cleric, 7 Barb. 581; 3 C. R. 230. Objections as to insufficiency or defect in the complaint, must, however, bi at erted in due form, and in due time. Thus, where a d< fendant had failed to demur on the ground of an evident defect in the complaint, or to objeot to the evidence offered thereon before the referee to whom the cause was refer- red, or i" excepl to that referee's decision; it was held that he COtlld not raise the objection, on the hearing of a case for the DEMURRER. 465 review of the latter's report. It was not properly before the court at that time. Carley v. Wilkins, 6 Barb. 557. In Ludington v. Taft, 10 Barb. 447, the doctrine that the ob- jection for insufficiency is not waived by an omission to take it on the pleadings, is maintained. It is held, however, that, under such circumstances, the question will be, not whether the complaint is perfect, and embraces all necessary matters, but only, whether there are facts enough set forth to show a cause of action. In Spencer v. Wheelock, 11 L. 0. 329, it was considered that an objection, that parties, severally liable, under different con- tracts, were jointly sued, fell under the head of insufficiency, as against the defendants, in the form in which they were sued, not under those of misjoinder, or of defect of parties, and therefore, that such objection was not waived by the omission to demur. This case seems, however, adverse to those next cited, and also to White v. Low, 7 Barb. 204, and Montgomery County Bank v. Albany City Bank, 8 Barb. 896. In lngraham v. Baldwin, 12 Barb. 9, it was held that the ob- jection of the improper joinder of parties plaintiffs, will be waived by an omission to demur. In King v. Vanderbilt, 7 How. 385, it was likewise held, that the nonjoinder of defendants was waived by such an omission. See also Gardner v. Clark, 6 How. 449, in relation to the waiver of a plea in abatement, by answering to the merits. See like- wise Howland v. Fort Edward Paper Mill Company, 8 How. 505 ; Tripp v. Riley, 15 Barb. 388 ; Dennison v. Dennison, 9 How. 246. § 1 50. Demurrer and Answer, how far admissible in con- nection. By sec. 151, it is provided that "the defendant may demur to one or more of several causes of action stated in the com- plaint, and answer the residue." This provision was not in the Code- of 1848, and, accordingly, the case of Manchester v. /Storrs, 3 How. 401, which held that a demurrer could only be inter- posed to the entire complaint, is no longer applicable to the existing practice. The question as to how far a defendant may both demur and answer to the same ground of complaint, has been the subject of contradictory decisions. The cases of The People ex rel. Fal- 30 466 DEMURRER. coner v. Meyer, 2 C. R, 49, and Gilbert v. Davies, 2 C. R. 50, are authority in favor of his right to do so ; but, in Shewn v. Wheeler, 4 How. 373, it was held, on the other hand, that a de- fendant cannot both demur and answer, at the same time, to a single cause of action, and the two last cases are both com- mented upon and formally overruled. In Spellman v. Wieder, 5 How. 5, the same doctrine was positively held, and the authority of Slocum v. Wheeler confirmed in terms, in a case where the defendants had both demurred and answered to the whole complaint. A like decision was come to in Cobb v. Frazee, 4 How. 413, 3 C. R. 43, (a demurrer to answer,) where it was held that demurrer will not lie to part of an entire defence. The plaintiff had, in that case, selected from the answer several sentences, forming a part of one entire ground of defence, and demurred thereto, replying to the residue, under which circum- stances his demurrer was overruled. Similar views were laid down in Howard v. The Michigan Southern Railroad Company, 5 How. 206, 3 C. R. 213, where the defendant had both de- murred and answered to the complaint ; but it was held that the plaintiff could not treat such pleading as a nullity, or move for judgment; but should move to strike out the answer and demurrer, or that the defendant elect by which he will abide: and the like doctrine is implied in Clark v. Van Deusen, 3 C. R. 219. It is also reasserted in the most positive terms, and the authority of Slocum v. Wheeler, Spellman v. Wieder, and Cobb v. Frazee, fully confirmed, in the more recent case of Ingraham v. Baldwin, 12 Barb. 9, and the point may therefore be looked upon as settled accordingly. Where, however, the causes of action in a complaint, or the defences in an answer, are separately stated, in compliance with the directions to that effect in sees. 167 and 150, there can be no doubt that the opposing party may both demur, and also answer <>r reply by the same pleading: provided he does not do both to the same ground of action or defence, but separates, on the contrary, his objections or answers l<> his adversary's pleading, int.. distinct classes, in the same manner in which the undfl of action or defence in that pleading have been sepa- rate!. § If) I. Frivolous Demurrer. Demurrer, with all its advantages, is, however, a proceeding DEMURRER. 467 attended with some risk, as, if it be adjudged to be clearly fri- volous, and to have been put in for the purposes of delay, leave to answer may be, and has been, in many cases, refused. A demurrer for misjoinder of both husband and wife as par- ties, in a case where it appeared that both had actual, though different interests, in the subject - matter of the action, was accordingly stricken out as frivolous, aud judgment given for the plaintiff, in Concle v. Skepqrd, 4 How. 75; 2 C. R 58, (as Conde v. Nelson.) A demurrer on the ground that profert of his letters of admin- istration was not made by an administrator suing as such, was stricken out as frivolous, in Bright v. Currie, 5 Sandf. 433, 10 L. 0. 104. See also, Welles v. Webster, 9 How. 251. In an action brought by a bank, on a note payable to the order of their cashier, a demurrer that such action was not brought by the proper party having been taken, it was held that the plaintiffs were entitled to judgment, on account of its frivolousness, though leave was given to the defendants to answer on terms. The Camden Bank v. Rodyers, 4 How. G3 ; 2 C. R 45. Where the plaintiffs sued in a corporate name, a demurrer on the ground that the complaint contained no averment that they sued as a corporation, was adjudged frivolous, but leave given to defend, on service of an affidavit of merits. The Union Mutual Insurance Company v. Osgood, 1 Duer, 707. An omission to aver a default in the purchaser of goods intrusted to a commission merchant for sale and collection, in an action against the latter, on his guaranty, was held not to be a ground of demurrer, the complaint averring that the amount was due from him. Millihen v. Byerly, 6 How. 214. A demurrer that the complaint in an action for goods sold and delivered, did not state any legal liability, or any promise to pay, was in like manner held to be frivolous, and judgment given for the plaintiff, in Olenny v. Ilitchins, 4 How. 98 ; 2 C. R56. In Appleby v. Elkins, 3 Sandf. 673, 2 C. E. 80, where the . complaint stated the making, endorsement, and delivery of a promissory note to the plaintiff, the non-payment thereof when due, and the defendant's indebtedness — a demurrer that the complaint did not show the plaintiff to be owner, or that the note was due, was stricken out as frivolous, and leave to answer 468 DEMURRER. denied, there being no affidavit of merits. An omission to aver the fact of due protestation, in an action by endorsee against endorser, is, on the contrar}', a demurrable defect. Turner v. Comstock, 1 C. K. 102; 7 L. O. 23. In Beach v. Gallup, 2 C. E. 66, where the complaint alleged the plaintiffs to be holders of the note sued on, but did not aver ownership, or facts amounting thereto, a demurrer on the latter ground was refused to be stricken out; but, in the recent case of Taylor v. Corbiere, 8 How. 385, the doctrine in Beach v. Gal- lup is disapproved, and that of Appleby v. Elkins confirmed. The latter may therefore be considered as the settled practice. In Radway v. Mather, 5 Sandf. 654, a demurrer on the ground that the necessary allegations of presentment and notice were made on belief only, and not on information, was declared fri- volous, both on the objection itself, and also because, if that objection had any force, it was not proper to be raised on demurrer. It is only, however, in gross cases, that the court will feel disposed to exercise their summary power in the above respect. Thus, in Nee/us v. Kloppenburgh, 2 C. E. 76, a demurrer to a complaint, alleging that "the defendant was indebted" to the plaintiff on an account for goods sold and delivered, on the ground that the conclusion of law, and not the facts, were pleaded, was likewise refused to be stricken out, and the general principle laid down, that it was only in cases where the demurrer was palpably groundless and untenable, and put in for the purposes of vexation and delay, that the court would - exercise the power of expunging it from the record. Similar principles are laid down in Rae v. The Washington Mutual Insurance Company, 6 How. 21, 1 C. E. (N. S.) 185, where it was held that, to warrant a judgment on a frivolous demurrer, "the case should be entirely clear, palpable on the statement of the facts, and requiring no argument to make it apparent;" and a motion to strike out a demurrer to the reply was accordingly denied, the questions raised being real and important. [£ any portion of the demurrer be sustainable, the insertion of redundant or immaterial matter will not render it impeach- able as a pleading, aor, it would seem, will such matter be even stricken out. Smith v. Jirown, 6 How. 383. ANSWER. 4g9 § 152. Concluding Remarks. Forms and Formal Proceedings.'] — For form of demurrer, see Appendix. This pleading requires no verification. It should, however, be signed by the attorney or ..counsel of the defendant, and a copy served upon- the adverse party, in the usual manner. Demurrer by Answer.'] — The subject of demurrer by answer, so far as relates to any independent considerations in relation thereto, will be treated of in a succeeding chapter. CHAPTER IV. ANSWER. § 153. Office and Requisites of Answer. The office of this most important pleading is, to present the case of the defendant, in opposition to that attempted to be made out by the plaintiff, upon the facts of the case alone, or upon the law and the facts conjointly, according to the circum- stances. It is, accordingly, the form of defence most usually adopted. The requisites of Answer are thus prescribed by the Code, in sees. 149 and 150: § 149. The answer of the defendant must contain, 1. A general or specific denial of each material allegation of the complaint, controverted by the defendant, or of any knowledge or in- formation thereof sufficient to form a belief. 2. A statement of any new matter, constituting a defence or counter- claim, in ordinary and concise language, without repetition. § 150. The counter-claim mentioned in the last section, must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action : 1. A cause of action, arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or con- nected with the subject of the action. 470 ANSWER. 2. Id an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth, by answer, as many defences and counter-claims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner tnat th-&y,majr be intelligibly dis- tinguished. These sections have been altered in several most important particulars, upon the recent amendment. The power of making a general as well as a specific denial of the plaintiff's allega- tions, existent under the Codes of 1848 aH3^L849, but abolished by that of 1851, is again restored; the power of joining legal and equitable defences in the same pleading, which had been, to some extent, a subject of doubt, is now expressly declared ; and special provisions are made on the subject of counter- claim, the substituted definition for the formerly established term of set-off, which were not in the former measures. The phraseology of the sections is likewise altered in several com- paratively unimportant particulars. The different cases bear- ing on the above subjects, will be cited in the course of the chapter. The defendant has four courses open to him by means of an answer, when put in, any one or more of which he may adopt at his election, or all, if the circumstances admit. 1. He may demur to the complaint for defects in law, latent in that pleading itself, but made patent by statements contained in the answer. 2. lie may put the plaintiff to proof of his case, by traversing the facts alleged. 3. lie may present new matter, wholly or partially avoiding tip' plaintiff's claim. •1. 11>- ni;i\ seek to establish a counter-claim, either wholly or partially extinguishing the plaintiff's demand: which subjects will accordingly be treated of in the above order. In certain cases a supplemental answer will be necessary, and, as such, allowable. See tin 1 subject hereafter fully con- sidered in the corn-biding eleipter el' the present book, under the bead of Revivor. See, also, Drought v. Curtis*, 8 How. 56 t there cited. ANSWER. 471 § 154. Preliminary Considerations. What may be an Answer.'] — The following general considera- tions, however, demand notice in the first instance. In Didier v. Warner, 1 C. E. 42, it was laid down that a mere memorandum endorsed on the complaint, might possibly, in some cases, be held to be a sufficient answer. It is obvious, however, that the case is one " sui generis" and not a precedent to be followed under any circumstances. Objections not sustainable by Answer.] — Objections on the ground of irregular service of process, can neither be taken by answer nor demurrer ; the only course open in such cases, is a motion to set aside such service for irregularity. See Nones v. Hope Mutual Insurance Company, 5 How. 96, 3 C. E. 161, 8 Barb. 541 ; Bridge v. Payson, 1 Duer, 614. Verification and other Formalities.] — This question has already been fully considered, and the cases in point cited, under the general head of Formal Eequisites of Pleading. It may, how- ever, be convenient to allude to one or two of them in this place, as more peculiarly applicable to this form of pleading. Where two parties, severally interested, put in a joint answer, it must be verified by both, or it will be a nullity as to the party who omits to verify. Andrews v. Stonns, 5 Sandf. 609. The statutory form of affidavit relieves the defendant from the necessity of distinguishing in the answer, what he states on knowledge, and what on belief, and imposes on him the neces- sity of making his allegations positive in all cases. Truscott v. Dole, 7 How. 221; Hackett v. Richards, 11 L. 0. 815. Where the verification in the complaint is manifestly defect- ive, it relieves the defendant from the necessity of verifying his answer at all. Waggoner v . Brown, 8 How. 212; see like- wise Lane v. Morse, 6 How. 394. This course of proceeding, though admissible in a clear case, is somewhat hazardous in those in which any doubt exists. See this subject heretofore considered, and cases in point cited, in the chapter last alluded to. In the same chapter, the provision to the effect that a party may decline to verify his answer at all, in those cases where such verification might subject him to a criminal proceeding; will be also found fully considered, and the cases cited. 472 ANSWER. The questions as to the mode of service, the effect of an amend- ment of an answer, and the other formal proceedings connected therewith, have also been previously considered. It will be remembered that, by service of an answer, all objections to the complaint for structural defects are positively waived. Ooch v. Marsh, 8 How. 439. Answer, and demurrer proper, are two separate pleadings, and, though they may be made out on one paper, and in con- nected form, they do not lose their distinctive character. Where, therefore, the defendant had thus framed his defence, and afterwards amended his pleading, by striking out a general demurrer subjoined to his answer, leaving the latter unim- paired, as far as regarded the issue of fact tendered by it; it was held that this was nothing more than service of a second copy of the original answer, and that a second reply was not requisite. Howard v. The Michigan Southern Railroad Company, 5 How. 206; 8 0. R. 213. The provision of Rule 87, that, in all cases where more than one distinct defence is set up, they must not only be separately stated, but plainly numbered, must be borne in mind in the framing of answers, of whatever nature. Relief as between Co- Defendants^ — The answer must be directed to meet the plaintiff's case only ; and all matter, solely relating to the adjustment of controversies between co-defendants, is immaterial, as regards the case of the plaintiff, and, if its effect be to delay or prejudice the latter, it will be stricken out on his application. Thus, where the answer stated no facts amounting to a defence as against the plaintiff, but was solely directed to the adjudication of equities as between co-defend- ants, the whole was stricken out, and judgment ordered for the plaintiff. Woodworth v. Bellows, 4 How. 24 ; 1 C. R. 129. This rule is, however, inapplicable to proceedings in parti- tion. Thus, in Bogardus v. Parker, 7 How. 305, it was held that the mutual claims of co-defendants may be tried and set- tled in a suit of this nature, provided they involve interests in, or liens on the property sought to be partitioned. Oa i removed from Justice's Court.] — In an action removed from a justice's court, under the provisions of sections 56 to 61 of the Oode, inclusive, on the ground of the title to real estate being in question, the answer in the court above must set up the same defence. Considerable discussion has arisen on this ANSWER. 473 subject, and as to whether the defendant is not bound, in these cases, to put in the same answer in form, as well as in sub- stance; and also, whether it is competent for the plaintiff to reply to such answer. See chapter on the jurisdiction of jus- tices' courts, and the cases of McNamara v. Bitely, 4 How. 44, and Cusson v. Whabn, 5 How. 302; 1 C. E. (N. S.) 27, there cited. In Wendell v. Mitchell, however, 5 How. 424, it was held that answers of this description were amendable, on points of form ; and the more recent decisions of Jewett v. Jewett, 6 How. 185, and Kiddle v. De Groot, 1 C K. (N. S.) 202, 272, established that both an answer, and a reply, may be put in in these cases, in the usual manner, and without any other restriction than that of setting up the same defence in the former, as that in the justices' court. The latter view has since been confirmed, and the law on this point settled by the Court of Appeals, in Wiggins v. Tall- madge, 7 How. 404, which holds that the defendant is not required to use the identical words in his second answer, but only to make the same substantive defence, and, likewise, that he is at liberty to abandon part of that defence, if so advised, provided he does not alter the remainder by which he abides. Answer by Joint Debtors, &c.~\ — In cases where judgment has been taken against several joint defendants, on service of pro- cess against one only, under the provisions of chapter II. of title XII. of the Code, before and hereinafter referred to; and where the plaintiff subsequently takes out a summons against the defendants not served, to show cause why they should not be bound by such judgment, under the enabling provisions of the chapter in question : the defendants so summoned, may put in an answer in the usual form, and the matter, if defended, becomes in fact a regular action in all its parts, from the service of such summons, with this single exception, that the Statute of Limitations cannot be pleaded. See sec. 379. In the analogous proceeding, given by sec. 376 of the same chapter, as against the heirs, devisees, or legatees of a judg- ment debtor, dying after judgment, or as against his personal representatives, or the tenants of real property owned by him and affected by such judgment, the power of defence is much more limited. Parties standing in this situation, are precluded from making any of the ordinary defences; the only lines open 474 ANSWER. to them being, either denial of the judgment itself, or subse- quently arisen matter, in bar of the plaintiff's right to relief under it. If neither of these points can be raised, it will be useless to contest the claim, or to put in any answer at all. § 155. Demurrer by Answer. The subject of demurrer to part of a pleading, and answer to the residue, has already been treated of, and the cases cited, in the last chapter. The law on the subject of demurrer by answer is, in sub- stance, the same as that contained in the last chapter. It would seem, from Clark v. Van Deusen, 3 C. K. 219, that, in order to sustain this line of defence, the complaint, or portion of the complaint, so objected to, must be admitted; and not traversed, so as to create an issue of fact, on the same point on which the demurrer is taken. This would, indeed, be to put in both de- murrer and answer to the same cause of action, which, as shown in the last chapter, is not admissible. The only difference be- tween demurrer proper and demurrer by answer, is in the form of the latter, by which, the facts necessary to show the exist- ence of the objection so taken, must be averred in the usual mode, the grounds of demurrer arising on those facts being subjoined, in the usual forms of expression. In relation to the necessity of admitting the facts of the plaintiff's case, on raising an issue of law, see Hall v. Bartletl, 9 Barb. 297, before cited ; see, too, the same general principle laid down, with reference to the incompatibility of a plea in abatement, or in bar, with an answer on the merits, in Gardner v. Clark, 6 How. 449. The general nature and form of demurrer by answer is thus laid down in Hornfager v. Hornfager, G How. 279; 1 C. E. ( X. S.) 112 : " When it appears by the complaint, that there is another actios pending between the same parties for the same cause, the remedy is by demurrer. When any of the matters enumerated in section 111, do not appear upon the face of the complaint, the objection may be taken by answer." A motion having been made in thatcase, to set aside the proceedings in an action for partition commenced by the defendant, on the ground that a similar action bad been previously commenced by the plaintiff; it was held that " the remedy was to set forth, by answer in the Buii la. -i, • ■ 1 ,ininrnoed, the pendency of the prior proceeding." ANSWER. 475 A similar view as to demurrer by answer being the proper mode of taking an objection for want of proper parties, is taken in Ripple v. Gilborn, 8 How. 456. An objection of this nature, on the ground of misjoinder, will be waived, by omitting to take it by way of demurrer, in the one or the other form. Ingra- ham v. Baldwin. 12 Barb. 9. See, likewise, as to nonjoinder, Tripp v. Riley, 15 Barb. 333. An objection, which goes to the ground of the complaint, will not, however, be waived by such an omission. Ludington v. Taft, 10 Barb. 447. See before, under the head of Demurrer. The objection of jurisdiction, when taken by answer, must show, affirmatively, that the court had no jurisdiction when the suit was commenced, or it will be overruled on demurrer by the plaintiff. Bridge v. Payson, 1 Duer, 614. In The Union Mutual Insurance Company v. Osgood, 1 Duer, 707, a demurrer, on the ground of want of a legal capacity to sue on the part of the plaintiff, was held to be frivolous, the objection not being apparent on the face of the complaint, and demurrer by answer was held to be the only admissible course under these circumstances. The misnomer of defendants is an objection which cannot properly be taken by answer ; motion will be the proper course. Elliott v. Hart, 7 How. 25. In replevin, brought by alleged joint owners of property, an averment that such parties were not joint owners, as alleged, was held to be material, and to require a reply. Walrod v. Ben- nett, 6 Barb. 144. Of an analogous nature is the case of Corning v. Haighi, 1 C. E. 72, where an answer, simply denying copart- nership with the other defendants, was held to be a sufficient defence, to a complaint, for goods sold and delivered to all of such defendants "partners in business." Where the complaint against the endorsers of a promissory note was framed according to the recent amendments, merely giving a copy of that instrument, and omitting any allegations of transfer, delivery, or ownership of the plaintiffs, a demurrer by answer, on the ground of the omission of those allegations, was refused to be stricken out as frivolous. Lord v. Cheese- borough, 4 Sandf. 696 ; ICE. (N. S.) 322. In Humphreys v. Chamberlain, 1 C. E. (N. S.) 387, it was held, that demurrer by answer was the only proper form of raising an objection, on the ground that the contract there sued upon 476 ANSWER. was void by the laws of the State in which it was made, and that such question could not be raised by demurrer proper, inasmuch as the courts of this State are not presumed to have judicial acquaintance with foreign statutes, but the contents of such statutes are matters of evidence, which must be alleged, and put in proof as such. A form of demurrer by answer is given in the Appendix. It will, however, vary in various cases. When taken on the ground of a defect in parties, the names of the parties omitted to be joined must be given, in order that the plaintiff may be enabled to amend his complaint, if so advised. The defendant must, however, be careful not to trust to his answer, for the purpose of raising demurrable objections, when those objections can be raised by demurrer proper. Where the averments of the complaint are, on the face of it, insuffi- cient, the point cannot be raised by answer, simply taking the objection, and averring no facts in defence. Hoxie v. Cushman, 7 L. 0. 149. § 156. Traverse of Plaintiff's Case. General Principles.'] — The next head above laid down, was the power possessed by the defendant, of putting the plaintiff to proof of his case, by traversing the facts averred in the complaint. This precaution must, in fact, be taken in all cases, whether new matter be set up in the answer or not. If neg- lected, every allegation omitted to be traversed will, under sec. 168, be taken as true, and cannot afterwards be controverted. See Tracy v. Humphrey, below cited ; see, also, Walrod v. Bennett, 6 Barb. 144, which establishes this last doctrine; and also, that evidence cannot be given at the trial, for the purpose of con- tradicting an allegation thus admitted, or, rather, omitted to be denied on the pleadings. See, per contra, similar principles laid down, in reference to the omission of necessary allegations on the part of the plaintiff, in Bristol v. Rensselaer and Saratoga Railroad Company, 9 Barb. L58; and see the subject of the re- striction of proof, secundum f < !omphiint, and General Principles of Pleading. By the amendment of L851, a most important change was temporarily made, in relation to allegations traversing the plaintiff's case. Under the measures of 1848 and .1819, a ge- ANSWER. 477 neral or specific denial of the statements in the complaint was admissible ; the Code of 1851 prescribed a specific denial in all cases, rendering it necessary to traverse every allegation seria- tim, and verbatim also in most cases. It was accordingly held in Rosenthal v. Brush, 1 C. R (N. S.) 228, and Seward v. Miller, 6 How. 312, that a general denial, however sweeping or emphatic, was bad ; and that every material allegation in the complaint must be specifically, and in terms, denied by the answer. See, also, Kettletas v. Maybee, 1 C. E. (N. S.) 363. The inconveni- ences of this strict rule being manifest, it will be seen that, by the last amendment, the old phraseology is restored, and that a " general or specific denial" is again admissible in all cases. In almost every case, except those in which the defendant really has no defence, and knows it, it will be found easy to frame a traverse of the plaintiff's case in general, by denying the allegations sought to be controverted, on "knowledge, in- formation, or belief," or by denying any "knowledge or infor- mation" of those allegations "sufficient to form a belief," as provided by sec. 149. This phraseology gives the utmost license to the defendant in this respect, under any circum- stances where such traverse is not grossly improper, and con- trary to good faith. Even where responsive matter is pleaded, the defendant, as before remarked, should also traverse the plaintiff's case, unless his defence be consistent with a total or partial admission of it, as stated in the complaint. He should also be careful to do so in the very words of the complaint it- self, as regards every material allegation. It is impossible to be too particular in complying with this last requisite. If strictly observed, no question can afterwards arise as to whether such allegations have, or have not been admitted, by non-denial in the answer; if not, any omission to deny, unobserved at the time, may possibly lead to serious results at the hearing. See Walrod v. Bennett, 6 Barb. 14-4, before cited. Benedict v. Seymour, 6 How. 298, contains a long and subtle disquisition on the subject of defences, and the mode in which they should be framed under the Code; the necessity of stating every separate defence in a separate and distinct form being strongly insisted on, in analogy to the principles thereby laid down in reference to complaint also. See citation of the case under that head. The observations which there follow, are in reference to a strictly legal action, and are stated as not having 478 ANSWER. any bearing upon those which are equitable in their nature. In reference to the former, it was there considered that it is not competent for a defendant, first to traverse, and then to state matter in disproof of an allegation of the plaintiff; and that matter of the latter description ought, if so pleaded, to be stricken out. The views on this subject are most strictly laid down, and their result stated as follows : " Whenever an an- swer contains a traverse or denial of any one or more of the material allegations of the complaint, every thing else which it may contain, whatever it may be, is redundant, and must be stricken out on motion, unless it belongs to a separate and dis- tinct defence." The views so stated appear to be mainly based upon the fact that, on a general traverse of the plaintiff's case, any matter in disproof is admissible in evidence ; but, if car- ried beyond this, they seem open to doubt. What will be sufficient.'] — In Kellogg v. Church, 4 How. 339, it was held that an answer, simply denying " each and every allegation alleged in the plaintiff's complaint," would do. This case, which was no longer of authority under the Code of 1851, has again become so, under the recent amendments. A specific denial to each specific allegation, will, however, be by far the inost expedient form, in most, if not in all cases. Where the allegation in the complaint was, "that the de- fendant " was indebted to the plaintiff," in a certain sum, on a settled account; an answer that the defendant " was not indebt- ed as stated in the complaint," was sustained, inasmuch as the complaint stated indebtedness as a fact, and not as a conclusion of law. A nun., 2 C. R. 67. As a general rule, however, the denial of a conclusion of law, without any allegation of facts, in opposition to those out of which the conclusion arises, will be wholly unavailable. Allegations in the complaint which are wholly immaterial, need nol be traversed :it :ill. Fry v. Bennett, 5 Sandf. 54, 9 L. O. 880, I C. I.'. (X. S.) 238. See likewise Tsham v. Williamson, 7 L o. 840; Newman v. Otto, 1 Sandf. 668, L0 L. O. 14, and Barton v. Sackett, '■'> Bow. 358, 1 C. R. 96, with reference to reply to an immaterial defence. It is only material allegations which, if not controverted, will be taken as true. A traverse of such on , however, if made, cannot be objected to as immaterial in itself, l>y the party whose original mispleader has ANSWER. 479 caused the defect; King v. Utica Insurance Company, 6 How. 485 ; and, where there is any, even the slightest doubt, as to whether the matter in question is material or not, it will be in- expedient to omit this precaution. In Davis v. Potter, 4 How. 155, 2 C. E. 99, an answer that the defendant "verily believed, and therefore answered," that the plaintiff's demand was unfounded, was sustained as amount- ing to a "denial" of the facts. It is clear, however, and was so stated by the learned judge, that the same intent would have been more satisfactorily expressed, by a denial on knowledge, information, or belief, following the words of the section; and the case cannot, therefore, be safely drawn into a precedent, especially under the provisions of the Code as since amended. In Fry v. Bennett, above cited, an averment that certain facts were true, "as the defendant had been informed and believed," was sustained as an averment, on information and belief, of the existence of those facts, sufficient to raise an issue. See, how- ever, the doctrine as laid down in Truscott v. Dole, 7 How. 221, and Hackett v. Richards, 11 L. 0. 315, that allegations of this nature ought to be made positively in all cases, the reservation as to information and belief, being implied in the ordinary affi- davit of verification. In Sawyer v. Warner, 15 Barb. 282, an allegation, that the defendant never gave the plaintiff the note declared on, with a denial of indebtedness, was held sufficient to raise a complete issue as to its making and delivery. In Dickerson v. Kimball, 1 C. E. 49, an answer, stating that the defendant " had not information" as to the facts of present- ment, and non-payment of the promissory note, on which the action was brought, "sufficient to form a belief on the subject," was held to be enough to raise an issue, and a motion for leave to enter up judgment, notwithstanding such answer, was de- nied, without costs. See also, Lord v. Gheeseborough, 4 Sandf. 696, 1 C. E. (N. S.) 322. Of a similar nature is the case of the Genesee Mutual In- surance Company v. Moynihen, 5 How. 321, where an answer, admitting some of the main facts alleged, but denying "know- ledge sufficient to form a belief" of other allegations, which were also material, was held sufficient to put the plaintiff to proof of his case, and a motion for judgment was there denied with costs. The authority of this case is confirmed by Snyder 480 ANSWER. v. White, 6 How. 321, and Temple v. Murray, 6 How. 329. Thus, also, in Smith v. Shafelt, 3 C. R. 175, an allegation of the defendant, that "he was informed and believed that the plain- tiff had received something on account of the demand in suit, and that the plaintiff was "not entitled to the whole of the sum claimed," would seem to have been held sufficient, and a mo- tion to strike it out as frivolous denied ; no facts or opinion of the court are however given. In Robinson v. Frost, 14 Barb. 536, an answer which contained a general denial of each and every allegation of the complaint, was sustained as a sufficient traverse, not merely of the con- version of property there sued on, but also of the plaintiff's title, and that, under it, evidence of want of title on his part was admissible. In Dennison v. Dennison, 9 How. 246, a very strict view is taken on the subject of denials, and it is held that, if the defend- ant commences his answer by a general denial, he will not afterwards be permitted to traverse specific allegations. He cannot answer in both modes; and the specific denials in that case were accordingly stricken out as redundant. This view seems inconsistent with the general principles of the Code, and with the permission to set forth, by answer, as many defences as the party may have. It is difficult, too, to conceive in what manner a plaintiff can be aggrieved, by the possibly superfluous, but at all events harmless, insertion of mere denials of allegations comprehended in a general traverse, but not involving any new matter. In Sherman v. Bushnell, 7 How. 171, an answer, denying knowledge or information sufficient to form a belief that the payee of a note endorsed it to the plaintiff, was held sufficient to raise an issue, and sustained, on appeal from an order striking it out as sham. Although, by omitting to make a specific denial of each of the plaintiff's allegations, the defendant will be held as admit- ting them; yet, if he traverse any one allegation, forming a component part of the right to recover, such traverse will be sufficient to raise an issue, and to prevent the plaintiff from taking judgment upon the case as admitted. In Lordv. Oheeseborough, 4 Sandf. 696, L C. R. (N. S.) 322, it was held competent for adefendant to raise an issue upon a fact essential to the plaintiff's recovery, though such fact be not averred in the complaint. ANSWER. 481 In traversing the plaintiff's case, it is not necessary to sepa- rate the different denials. The provision in s. 150, requiring several defences to be separately stated, applies only to affirm- ative defences. Otis v. Boss, 8 How. 19,3, 11 L. 0. 343. Where a fact controverted is presumptively within the defend- ant's knowledge, he cannot, as a general rule, be permitted to controvert it by a qualified denial. If he does not know or remember the facts alleged, he must state the lapse of time, or other circumstances, which he supposes will warrant his making a denial in that form, in the answer itself, or in the affidavit of verification. Richardson v. Wilton, 4 Sandf. 708. What will be 'insufficient as a Traverse.'] — The last decision naturally introduces this branch of the subject, the answer in that case having been stricken out as frivolous, by reason of the absence of the explanatory statements there alluded to. The mere denial of a conclusion of law, arising out of the facts averred by the plaintiff, without any allegation of facts, in opposition to those stated in the complaint, is no answer at all, and will be stricken out as frivolous. The cases establish- ing this proposition, have already been cited in the chapter as to the essential requisites of pleading. It is obvious that, if such objection to the law of the case be really sustainable, demurrer will be the proper form to take it, and not answer, according to the principle laid down in Hoxie v. Gushman, before cited. Although a denial may be made as above, on information and belief, or of knowledge sufficient to form either, a mere allegation of ignorance of the facts of the plaintiff's case, is not sufficient. The traverse of those facts must be in one of the forms as prescribed by the Code, and will not be admissible in any other. Thus, in Wood v. Staniels, 3 C. R. 152, an allegation in an answer, that the defendant was "ignorant whether" the facts set forth by the plaintiffs were or were not true, and leaving them "to offer such proofs thereof as they might be advised," was held to be an insufficient denial; and the facts in question were accordingly decided to be admitted, and a verdict taken for the plaintiffs accordingly, which verdict was sustained, on appeal to the general term. The court will prevent the right of a defendant to make a traverse of this description from being abused. Thus, in Mott v. Burnett, 1 C. K (N. S.) 225. where the defendant, sued as the 31 482 ANSWER. joint maker of a promissory note, denied any knowledge as to whether such note was made by tbe defendants, or either of them, the eourt held the answer to be bad, the averment of want of knowledge being false upon its face. The court were also disposed to hold the defendants to the strict phraseology of the Code, in the form of the denial, and to reject an averment, containing substantially the same words, though in another arrangement. In Hance v. Hemming, 1 C. K. (N. S.) 204, the principle laid down in the last case was still more strongly asserted, and an answer, traversing on information and belief a fact within the means of knowledge of the party, had he only chosen to ask his own attorney, when preparing his answer, was stricken out as sham. The court held that to permit such an answer, under such circumstances, would be to sanction a palpable evasion. The same principle is decisively laid down in Nichols v. Jones, 6 How. 855. In Edwards v. Lent, 8 How. 28, the above doctrine is fully confirmed, and it is also held that a denial of sufficient know- ledge, &c, without reference to information, will also be insuffi- cient. It is only when a defendaut has neither knowledge nor information, that be will be permitted to controvert in that form. See Richardson v. Wilton, above noticed. In Truscott v. Dole, 7 How. 221, and Ilackett v. Richards, 11 L. 0. 315, a very strict view is taken on the subject of denials in general, and it is held that a material allegation in the com- plaint must be controverted positively, and not on information and belief, and, if not so controverted, must be taken as true. A general or specific denial is now required, and the defendant must do so absolutely, unless he has neither knowledge nor information sufficient to form a belief. Whether this doctrine prevail to the full extent, or. not, there can be no question but that this mode; of averment will always be most expedient, where practicable. In Flewry v. Roget, 5 Sandf. 646, a denial in an answer, that the plaintiff was lawful owner and holder of a promissory note sued on, was Stricken out as frivolous, and an allegation of an agreement that such note should be renewed on request, shared the same liit'-. The same ca e i also reported, 9 How. 215. And similar de- cisions were pronounced by the same tribunal in Flammcrv. King, : i How. 216, and Fleury v. Brown, 8 How. 217. ANSWER. 433 A mere denial that the plaintiff had any interest in the pre- mises, without any specific statement of the facts on which the defendant relied to sustain such allegation, was also held to be bad in Russell v. Chpp, 7 Barb. 482 ; 4 How. 347 ; 3 C. E. 64 : so, likewise, in Anon., 3 How. 406, with respect to an answer in slander, merely stating "that what defendant said of the plaintiff was true," without any statement of facts in support of such allegations. In McMurray v. Gifford, 5 How. 14, an answer, merely alleg- ing that a note sued upon was obtained by fraud, without show- ing facts to prove the existence of that fraud, was held to be bad. See, also, Bentley v. Jones, 4 How. 202, subsequently cited under the head of Eeply. So, likewise, in Dyhers v. Woodtvard, 7 How. 313, it was held that an admission of facts constituting a fraud, must prevail over a mere unexplained denial of fraudulent intention. And the same principles are laid down, and a similar conclusion come to, in Churchill v. Bennett, 8 How. 309 ; and, likewise, in Robinson v. Stewart, Court of Appeals, 18th April, 1854. Where the facts alleged by the plaintiff were sufficient to> prove ownership of a promissory note, a denial of that owner- ship by the defendant, without alleging title in a third person, was held to be frivolous. Catlin v. Gunter, 1 Duer, 253, 11 L. 0. 201. In libel, where the publication is libellous on its face, it will be needless to put in any denial of malice, nor will the defend- ant be permitted to do so. The law implies malice in such cases, and no issue can be raised on the subject, unless where the publication would be privileged, if not in fact malicious, Allegations to that effect in the complaint are immaterial, and need not be controverted. Those only are material, in the sense of the Code, which the plaintiff must prove on the trial 7 in order to maintain his action. Fry v. Bennett, 5 Sandf. 54 ; 9 L. O. 336 ; 1 C. K. (N. S.) 238. Where a bill of particulars has been delivered, the answer must not be to that bill, but to the complaint itself. An answer, avowedly answering the former, was held to be insufficient, though not frivolous, in Scovell v. Howard, 2 C. E. 33. The same doc- trine is distinctly enounced in Kneiss v. Seligman, 8 Barb. 439;. 5 How. 425. It is there laid down as " well settled," that the only effect of a bill of particulars is to limit the testimony on 484 ANSWER. the trial ; and that a party cannot plead or answer to such a bill. The Code has not changed the law in this respect. See, also, Yates v. Bigelow, 9 How. 186. Even before the amendment of 1851, in a case where the complaint was for three separate bills of goods, and the answer disputed only one out of the three bills, but was silent as to the two others, judgment was given at once, for the amount of the two bills which were undisputed, leaving the action to proceed as to the other. Tracy v. Humphrey, 5 How. 155 ; 3 C. R. 190. The doctrine of this case has been adopted, and the se- rious objection, that it involved two judgments upon one re- cord, obviated by the amendment in sec. 244, which gives the plaintiff power to apply to the court under such circumstances, that the defendant may be ordered to satisfy the admitted por- tion of the claim. If, therefore, the defendant wish to contest the plaintiffs claim in toto, he must be especially careful on this point, in framing his traverse of that claim. Although a separate specific denial of any one material alle- gation on the part of the plaintiff, will avail to raise an issue, a conjunctive denial of separate allegations will, on the contrary, be insufficient for that purpose. See Hopkins v. Everett, 6 How. 159 ; 3 C. R. 150, where such an answer was held bad on demur- rer. "The denial in this case," it is said by the court, "should have .been of each charge disjunctively, if the defendant in- tended to put the whole of them in issue." The same conclu- sion is come to in Salinger v. Lush, 7 How. 430. And a denial in this form will not render the answer liable to the objection that the defences so made arc not separately stated. The pro- visions of the Code on that subject relate only to new matter. ,. v . 8 How. 193; 11 L. O. 343. . A hypothetical denial of the plaintiff's case, will not either Buffice. This i expressly held in McMurray v. Qifford, 5 Eow. 1 1 j Eoyce v. Brown, 7 Barb. 89, 3 How. 391; Porter v. McCreedy, I 0. R. (N. S.) 88; Lewis v. Kendall, 6 How. 59; 1 0. B. (N. S.) K)2; Sayl v. Wooden, 6 How. 84; 1 C. R. (N. S.) 409. In all these oases a pleading of this description was held to be bad. In Cnririn v. ('oruun, 9 Barb. 219, it was held that where, in an action t er the possession of land, the complaint charged, in substance, a lawful title in the plaintiff; this is a ANSWER. 435 material allegation, which the defendant is bound to deny spe- cifically, if he designs to put the title in issue. It will not be enough for him to spread out certain portions of what may be evidence in the cause, and rely upon that as an answer. He may either controvert the plaintiff's allegations in express words, or may set out the existence of facts which, if true, would show that the plaintiff has no title. By taking the latter course, however, and omitting to put the title in issue by a dis- tinct and specific denial, he takes upon himself the burden of stating facts, which, taken to be true, are sufficient of them- selves to show that the plaintiff has no title. If he fail in doing this, his defence will be nugatory. A specific denial should therefore never be omitted, whatever the affirmative facts may be, which tend to establish a superior right in the defendant. In Plumb v. Whipples, 7 How. 411, it was held that an an- swer, consisting of denials only, cannot be amended under s. 172, because there is no matter in it requiring a reply; and an inquest taken upon the original answer was there sustained, notwithstanding the service of an amended one, putting in an affirmative defence. In Coriklin v. Yandervoort, 7 How. 483, it is held that an un- verified answer, consisting of denials only, may be stricken out as false. In Livingston v. Finkle, 8 How. 485, the contrary con- clusion is come to, on the ground that a negative pleading can- not be held to be sham, because it merely takes issue on the plaintiff's allegations, or false, when it does not assert any thing. Where the answer is verified, it is clearly not obnoxious to a motion of this description. See hereafter, under the head of Sham Answers and Defences. § 157. Defensive Allegations, in Bar or in Abatement. Estoppel — Res Adjudicata.] — In Russell v. Gray, 11 Barb. 541, a judgment in favor of defendants, for the value of property in replevin, and the subsequent collection of -that judgment, was held to transfer the title to the property itself, and estop them from denying the plaintiff's title, in a subsequent action of tres- pass brought by the latter. Nor can the return of the sheriff be impeached, in a collateral proceeding of that nature. The sureties on a bail-bond are estopped from controverting 486 ANSWER. the liability of their principal to arrest, in an action founded on that instrument. Gregory v. Levy, 12 Barb. 610 ; 7 How. 37. The doctrine of estoppel is not applicable to an infant, under any circumstances, and a plea to that effect was held admissi- ble, even where such infant had obtained goods by a fraudulent representation, that he was of age at the time of obtaining them. Brown v. McCune, 5 Sandf. 221. Nor will a widow be estopped, in an ejectment for dower, even though she had actually received one third of the rents of the property in question. In order to bar her claim under these circumstances, it must be proved that the rent assigned to her will endure for her life. Ellicott v. Hosier, 11 Barb. 574. A party whose own acts prevent the performance of a condi- tion precedent, cannot avail himself of such non-performance, as a defence in an action against him. Young v. Hunter, 2 Seld. 203. In Kingsley v. Vernon, 4 Sandf. 361, erroneous information given by the holder of a bill to an endorser, whereby the latter was led to believe it had been paid, and was prevented from collecting it at the time, though honestly given, was held to operate as an estoppel on the holder, and to discharge the en- dorser from liability. In Gardner v. Oliver Lee's Bank, 11 Barb. 558, where the holder of a bill had proved his debt against the acceptor's estate, under the latter's insolvency, and accepted a dividend thereon, it was held that, by such proceeding on his part, the acceptor was fully discharged, and that such discharge operated as an estoppel between him and the drawer, and gave the latter a good defence. The acts or declarations of a party bind him by way of estop- pel, only to the extent that they have been acted upon by the party setting up the estoppel. Merrill v. Tyler ,Oourt of Appeals, L2th Apnl, L853. In Anderson v. Broad, 12 L. 0. 187, it was doubted whether declaration! made by a sub-agent, might not have the effect of estopping the principal, wince such sub-agent had merely fol- lowed instructions given to the primary agent, and the princi- pal had adopted the transaction, by receipt of its proceeds. The doctrine of ''//< Judicata" has been already considered in the chapter on complaint, to which the reader is therefore referred. It may be convenient, however, to notice some of the oases in point under this head also. ANSWER. 487 A mere submission to arbitration, where the proceeding has failed without the fault of either party, will not avail in bar of a fresh action. Haggart v. Morgan, 1 Seld. 422 ; same case, 4 Sandf. 198. Nor will a dismissal of a complaint by a referee, for a default to appear. Salter v. Malcolm, 1 Duer, 596. A valid and complete award by arbitrators will however be con- clusive. Coleman v. Wade, 2 Seld. 44. An action cannot be brought to remove a guardian appointed by a surrogate, even though fraud be shown. The proper course is to apply to the surrogate for an order. Dutton v. Dxdton, 8 How. 99. A surrogate's decree in favor of a will of personal property, will be conclusive in a collateral proceeding, even though there be evidence of error in it. Vanderpool v. Van Valkenburgh, 2 Seld. 190. It will not, however, be conclusive as against cre- ditors of the estate, who do not come in and prove before him ; Bank of Poughkeepsie v. Hasbrouck, 2 Seld. 216 ; nor will a sur- rogate's decree be held a bar to executors, in an action against their co-executor for a debt due to the estate, not embraced in the prior accounting- Wurts v. Jenkins, 11 Barb. 546. A letter, agreeing to become security, and sign a guaranty for rent, is an entire contract, and no more than one action can be maintained upon it, even for rent accruing at different pe- riods. A prior recovery under that contract, will form a bar to any subsequent suit founded on it. Waterbury v, Graham, 4 Sandf. 215. A judgment against the trustees of a village, upon confirm- ing an assessment, was held to be final and conclusive, and not to be impeachable, except for want of jurisdiction apparent on the record, or by some matter dehors, which can be shown with- out contradicting it. Buell v. Trustees of Lockport, 11 Barb. 602, affirmed by the Court of Appeals, 12th April, 1853- The judgment of a court of competent jurisdiction, on the question involved in a suit, is conclusive in a second suit be- tween the same parties, depending on the same question, though the subject-matter of the two actions be different ; and parol proof will be admissible, to show what was really in contro- versy. Under circumstances of this description, the answer should, therefore, be framed accordingly. Doty v. Brown, 4 Comst. 71. A decree, dismissing a complaint on the merits, on an actual 488 ANSWER. hearing, was likewise held to be conclusive in any subsequent litigation, between the same parties, or those claiming under them. Burhaus v. Van Zandt, Court of Appeals, 80th Dec. 1852. See general principles as to the doctrine of res judicata, as laid down to the same effect, in White v. Coatsworth, 2 Seld. 137, and Bates v. Stanton, 1 Duer, 79 ; and likewise, very fully and widely, in Birckhead v. Brown, 5 Sandf. 134. The doctrine of res adjudicata' applies to a judgment on the same facts, pronounced in another State. Dobson v. Pearce, 1 Duer, 144; 10 L. O. 170, where it was held that a properly authenticated record of such judgment, ought to be admitted, as conclusive evidence of the facts on which it was founded. A judgment recovered by one assignee of part of an entire demand, will, however, be no bar to a suit instituted by another in respect to his proportion. Cook v. Genesee Mutual Insurance Company, 8 How. 514. A judgment or decree concludes the parties, only as to the grounds covered by it, and the facts necessary to uphold it, and no further. It forms no bar to a subsequent suit, on facts not passed upon. Jones v. Alston, Court of Appeals, 7th October, 1853. See also Burdick v. Post, 12 Barb. 168. Tender.'] — An allegation of a tender and payment into court made by the defendant, must be full and specific, and complete in all its parts, or it will be unavailable as a defence. The People v. Banker, 8 How. 258 ; see however Holmes v. Holmes, 12 Barb. 187, affirmed by Court of Appeals, 18th April, 1854. Statute of Limitations, etc.] — The defence of the Statute of Limitations can only, as a general rule, be properly taken by answer. See Code, sec. 74. In Genet v. Tallmadge, 1 C. E. (N. S.) 346, it was, however, held that, where an objection of this nature is apparent on the face of the complaint, demurrer would lie. This conclusion, though not without plausibility, 1 1 .-. untenable, in view of the positive wording of that sec- tion. Tin- Bubjei i "I' Limitations, intrinsically considered, has been already treated of, and the cases in point cited, in chap- ter III. of Book II., especially devoted to that subject. The objection is one that, unless specifically pleaded, cannot be taken. Sewn v. Shaft ■■/•. 2 Seld. 268. In Hickok v. Ilnl.nl., |:; Barb. 682, it was held that a person ANSWER. 489 intrusted with a note for collection, and who had received the amount, but neglected to pay it over, did not stand in the rela- tion of a trustee, so as to deprive him of the benefit of the statute. In pleading a public statute, an express reference to it, by its title or otherwise, is not necessary. It is sufficient to set forth the facts which render its provisions applicable, leaving the court to determine whether they apply or not. Goelet v. Cow- drey, 1 Duer, 182. This doctrine is clearly applicable to the Statute of Limitations, as well as to the Statute of Frauds, the enactment there in question. In an action, brought by the State to recover the possession of lands, it has been held that an answer, merely alleging non- receipt of rents on the part of the people, in the words of sub- division 2 of section 75 of the Code, was insufficient, and de- murrable to as such ; on the ground that, as against the people, no presumption will lie, and that the defendant, in such cases, must plead the facts of his title, and show by specific allegation a documentary title in himself, or a continuous adverse posses- sion. The People v. Van Rensselaer, 8 Barb. 189. The same doctrine is laid down in The People v. Livingston, 8 Barb. 253, though there, a grant from the Crown of Great Britain having been shown by the defendant, judgment was given in his favor. See these two cases fully cited in a previous chapter, under the head of Limitations of Actions relative to Eeal Estate. The doctrine of these two cases is, however, overruled by the recent decision of The People v. Arnold, 4 Comst. 508, where it was held that an answer to the above effect, following the precise words of the subdivision before re- ferred to, was good, inasmuch as it pleaded the facts of the case, and not the evidence in support of those facts ; though, of course, upon the actual trial, a positive adverse possession must be shown. The plea of the Statute of Limitations is compatible, until a traverse of the plaintiff's case on other points, and cannot be stricken out for inconsistency under these circumstances. Os- trom v. Bixby, 9 How. 57. Plea of u Plene Administravit."'] — In actions against an execu- tor or administrator, allegations, analogous to the old plea of plene administrauit, are inadmissible; and, if made, the answer 490 ANSWER. will be held bad upon demurrer, and judgment given for the plaintiff, for future assets, " quando acciderintP The plea of plene administravit was not even a good plea under the Revised Statutes. Hyde v. Conrad, 5 How. 112 ; 8 C. R. 162 ; Belden v. Knowlton, unreported decision of Superior Court. In the latter case, however, allegations of this nature were refused to be stricken out upon motion, though subsequently held bad upon demurrer. Other Matters.'] — The plea of justification in libel and slander, and the point which has been raised, as to how far the assertion of an equitable title in the defendant may be considered as a bar to the plaintiff's right to recover in ejectment, will be con- sidered under the succeeding heads, with reference to those par- ticular forms of action. In pleading a bankrupt's discharge by a court of the United States, the facts on which j urisdiction depends must be averred. When averred, however, that jurisdiction will be presumed, until the contrary appears. Morse v. Cloyes, 11 Barb. 100. § 158. Defensive Allegations Continued, Averment of Facts. General Principles^] — The next head to be considered, is the allegation of new matter, going, either partially or wholly, to defeat the plaintiff's claim. The general principles in relation to averments of facts, as laid down in the introductory chapter as to the essential requi- sites of pleading, are, of course, specially applicable to the sub- ject of answer. The facts alone of the defendant's case form, as there laid down, the proper subjects of allegation. The pleading of a bare conclusion of law, unsupported by state- ments of (acts, on the one hand, and allegations of the evidence <>f foots, and not of the facts themselves, on the other, are equally inadmisi ible. Allegations of the. former nature, stand- ing alone, constitute no defence at nil: and those of the latter le cription will, if objected to, be Btricken out ns redundant. A full, BUmmary, and long discussion of almost every defect which fan exist, with reference to statements of fact in an answer, will be found in Boyce v. Brown, 3 How. 891. The an- ANSWER. 491 swer there objected to, was held to be at once argumentative, contradictory, absurd, double, inconsistent, uncertain, incon- gruous, and, in many particulars, unintelligible, and was set aside in consequence. This decision was affirmed upon appeal. See Boyce v. Brown, 7 Barb. 80. In Bridge v. Payson, 5 Sandf. 210, the following general prin- ciples are laid down with reference to averments in answer. Each separate statement must be complete in itself, but, to mark it as a separate defence, no formal commencement or conclusion is required. The statement of facts constituting a defence, need not be accompanied with the reasons why it should ope- rate as a bar; the intent to rely upon it is a necessary infer- ence. Nor is the joinder of matter of defence and matter in abatement in the same answer a ground of objection. It may, and must properly, contain every defence, of whatever nature, on which the defendant means to rely. Where no affirmative claim is made on the part of the defendant, a demand of relief in the answer will be wholly unnecessary. Although public statutes need no special reference to them, on pleading facts which bring the case within their operation, and although this rule holds good as to statutes of local, as well as to those of general application, and to ordinances expressly founded on such statutes, (see heretofore, under the head @f Complaint,) this is not the case with reference to ordinary municipal ordinances. Such ordinances are not public acts, to the extent that they can be noticed, without being specially pleaded. The People v. Mayor of New York, 7 How. 81. Where the complaint is deficient in the necessary allegations, any fact omitted by the plaintiff, but essential to his recovery, may be denied by the answer. Lord v. Cheeseborough, 4 Sandf. 696, 1 C. B, (N. S.) 322. The principle that evidence can only be introduced "secun- dum allegata,' 1 '' holds equally good, in relation to a defence, as to a cause of action. See Catlin v. Ounter, 1 Duer, 253 ; 11 L. O. 201 ; Catlin v. Manser, 1 Duer, 309 ; Coan v. Osgood, 15 Bar- bour, 583. If the defence be imperfectly put in, the defendant will be bound by it, and cannot introduce evidence of facts not embraced by the record. Thus, in KetUetas v. Maybee, 1 C. E. (N. S.) 363, evidence that the defendant had parted with a lease, upon which he was sued as assignee, was held to be inad- 492 ANSWER. missible, under a mere denial of the execution of that lease, and of the assignment of it to him, to which his answer was confined. See analogous principles in Bristol v. The Rensselaer and Sara- toga Railroad Company, 9 Barb. 158. A portion of an answer, professing to be a defence to the whole of the complaint, but being, in fact, an answer to part only of the cause of action, was held to be bad in Thumb v. Walrath, 6 How. 196, 1 C. E. (K S.) 316. The necessity of making a separate statement of each separate ground of defence, and, under Eule 87, of numbering each separate statement, must be borne in mind in all cases. An answer, drawn according to the old chancery forms, admitting the facts, but stating legal propositions in defence, cannot be sustained under the Code. An answer, now, must either deny the allegations of the complaint, or state new matter, by way of avoidance. Goidd v. Williams, 9 How. 51. Averments in Particular Cases, — Bills and Notes, — Guaranty, &c.~\ — In Castles v. Woodhouse, 1 C. E. 72, an answer, admitting the making and delivery of a note, but alleging that the goods, for which it was given, were inferior in quality to those con- tracted for, was held to be insufficient; because it did not state what was the defect in those goods, and what the difference in value occasioned thereby. In Hicks v. Ilinde, 6 How. 1, 9 Barb. 528, it was held that it is competent for the drawer of a draft, as well as for the endorser of a promissory note, to restrict his liability, by qualifying words added to his signature. The drawer having there signed as "agent," and the principal being known, and a party to the transaction, the former was held not to be liable. In Kimjsley v. Vernon, 4 Sandf. 361, erroneous information, given by the holder of a note to the endorser, was held to dis- charge the latter from all liability, and to operate as an estoppel on the former. In Gardner v. Oliver Lee's Bad:, 11 Barb. 558, the acceptance of :i dividend out "I' the acceptor's estate, on the part of the IioM How. 406. The same is laid down in Sayles v. Wooden^ 6 How. 84; 1 C. R. (N. S.) 109 ; and Anibal v. Hunter^ 6 How. 255; 1 C. R. (N. S.)403. ANSWER. 495 A long and interesting discussion on the subject of the pro- per allegations in this description of cases, will be found in Fry v. Bennett, 9 L. 0. 330 ; 5 Sandf. 54 ; 1 C. E. (N. S.) 238, a case of demurrer to an answer of the most objectionable na- ture, and so characterized by the court. The following are amongst the numerous principles there laid down on the sub- ject: The denial of malice, in a publication libellous on its face, is inadmissible; malice, in such cases, is a conclusion of law, on which no issue can be raised, and which the plaintiff cannot be required to prove, or the defendant permitted to deny ; it is only where the publication is privileged, if not in fact malicious, that malice can be made the subject of aji issue. No issue can be taken, either, as to the truth of inuendoes in the complaint. The sole office of an inuendo is explanation, and the only question which it raises is, whether such explanation is a legitimate deduction from the premises stated, which ques- tion it belongs to the court alone to determine. The principle that, in pleading justification, the facts tending to establish such justification must be distinctly and certainly averred, (see Anon., 3 How. 406, below cited,) is clearly and positively laid down ; and a general averment, that the facts stated in the publication complained of, " were and are true," was held to be insufficient. An answer is insufficient, in the sense of the Code, not only where it sets up a defence which is groundless in law, but where, in the mode of stating a defence otherwise valid, it violates those primary and essential rules of pleading which the Code has studiously retained. The question of privilege is laid down as one properly raisable by demurrer; and it is held that, in all cases where the defence of privilege is on the ground that the animadversions complained of were a fair and legiti- mate criticism, the defences of truth and privilege are insepa- rable ; and, if the former is not duly pleaded, the latter must of necessity be rejected. The same principle is laid down as to the averment of mitigating circumstances, as that in Graham v. Stone, also below cited ; and, justification not having been suf- ficiently pleaded, a demurrer to averments of that description was allowed. Where, too, circumstances of this nature are meant to be given in evidence, they must be stated as such in the answer; otherwise the plaintiff will have a right to infer that they are meant to be relied on in bar, and, on that ground, may justly demur to them. See observations on the same case, 406 ANSWER. under the heads of Demurrer, Irrelevancy, Complaint, and De- murrer to Answer. The defence of justification is subject to the different inci- dents, and liable to the risks which attended it under the old practice. In Few v. Boscoe, 4 Comst. 162, the law on this sub- ject, in relation to pleadings under the present system, is clearly laid down. Where several charges are made, it is competent for the defendant to justify as to one only; but, on that point, his justification must be full. Failure in making out a justifi- cation, when pleaded, is still, as before, an aggravation ; and, in that case, the defendant will be entitled to no benefit from the evidence adduced by him. Unless justification be pleaded, the defendant cannot prove the truth of the charge, either in de- fence, or mitigation ; but, on a plea of the general issue, it is competent for him to introduce evidence to disprove malice on his part. In Bush v. Prosser, 13 Barb. 221, in an action of slander, where the proof of the plea of justification altogether fell short of the. offence charged, it was held that evidence of a minor offence was inadmissible, either in justification of the charge, or in mitigation of damages. See likewise Lewis v. Kendall, 6 How. 59, 1 C. E. (N. S.) 402. See also similar principles laid down in Bisbey v. Shaw, 15 Barb. 578. Nor will a mistaken impression of the law relieve the defendant from his responsi- bility in making an unsustainable charge. In Loveland v. Ilosmer, 8 How. 215, a partial justification, not going to the whole extent of the charge in the complaint, Avas held bad, upon demurrer to the answer. Where, however, the libel complained of alleged the plain- tiff to be a thief, and that she had stolen specific articles; alle- gations of various other thefts on her part, were held to be admissible in the answer, as tending to prove the general charge of theft. Jaycocks v. Ayres, 7 How. 215. An answer of juslilication, in slander, must confess the speaking of the words complained of. Anibahv. Hunter, 6 Eow. 255 L C. R. (N. S.) 403. It. must also, as before notic ; " the facts which go to constitute the crime imputed, BO that a sufficient issue may be (rained. If it merely that the words spoken were true, it will be insufficient as a justification. Although, by the above-cited section, allegations in mitiga- ANSWER. 497 tion of damages are expressly allowable, in cases where a justification is pleaded; in cases where the charge in the com- plaint is denied altogether, mitigating circumstances cannot be averred. This principle is expressly laid down by the court, and a demurrer on this ground allowed, in Graham v. Stone, 6 How. 15. The authority of this decision is confirmed by the • following series of cases, laying down the law to the same effect: Meyer v. Schultz, 4 Sandf. 664 ; Brown v. Orvis, 6 How. 376 ; Fry v. Bennett, above cited; Matthews v. Beach, 5 Sandf. 256. In Lane v. Gilbert, 9 How. 150, it was held that, where a de- fendant cannot take issue on the material allegations in the complaint, either by denial or justification, he wshould not answer at all. He can give any mitigating circumstances in evidence, before the sheriff's jury, on the assessment of damages. In Follett v. Jewiit, 11 L. O. 193, the above conclusions are sought to be impeached, and the learned judge goes to the extent of laying down that matter in mitigation may be plead- ed either with or without a justification ; and similar views are enounced in Stiles v. Comstoch, 9 How. 48. This view seems, however, to be contrary to the evident import of sec. 195, and the authority of these decisions to be wholly overruled by the series of cases to the contrary effect. Allegations in mitigation, when standing alone and unsup- ported by a sufficient plea of justification, appear to be impeach- able by way of demurrer. See various cases above cited. But, when accompanied with such a plea, they are not demurrable,, nor do they require any reply, such matter not being in these cases a direct defence to the action, but merely matter for the consideration of the jury, in their assessment of damages, upon the trial. Newman v. Otto, 4 Sandf. 668; 10 L. 0. 14. Whether matter in mitigation is provable on the trial, in this class of cases, when not pleaded, has been made the subject of question. Evidence of that description was held to be inad- missible, under a mere general denial, in Anon., 6 How. 160. In Anon., 8 How. 434, the contrary conclusion is come to, on the ground that matter of that nature does not constitute a defence, and cannot therefore be pleaded ; but that evidence in mitigation may be given on the trial, as under the former prac- tice in these cases, and that subsisting in actions of an analogous nature. See Schneider v. Schultz, 4 Sandf. 664; Smith v.Waite, 7 How. 227; Rosenthal v. Brush, 1 C. B, (N. S.)228. See, too, 32 498 ANSWER. Lane v. Gilbert, 9 How. 150. In Stiles v. Comstock, 9 How. 48, doubts were expressed on this head, but in connection with the views that matter of this nature can always be pleaded, which seem to be overruled, as above noticed. The question as to what will or will not be considered as privileged communications, and, if so, to what extent, has been already considered, under the head of Complaint. See that chapter, and various cases, and the recent statute, c. 130 of Laws of 1854, there cited under this head. See likewise, in relation to privileged communications, Taylor v. Church, 10 L. O. 87, and various other cases there referred to, as to what will or will not be considered as constituting a cause of action in slan- der or libel, in a general point of view. See, in particular, Bennett v. Williamson, 4 Sandf. 60, as to libel, and Phincle v. Vaughan, 12 Barb. 215, in relation to slander. In an action brought in respect of words spoken in a legal proceeding, and privileged on that ground, the defendant need not deny malice, in connection with the defence of privilege. Garr v. Selden, 4 Comst. 91. Similar views to those above cited in Fry v. Bennett, as to malice being implied by law, where apparent upon the facts, ■without any express averment, are likewise enounced in Howard v. Sexton, 4 Comst. 157. See, also, Purdy v. Carpenter, 6 How. 361. In cases of the foregoing description, as in others, a hypothe- tical defence is not admissible, under any circumstances. See Porter v. McCreedy, 1 C. li. (N. S.) 88; Lewis v. Kendall, 6 How. 59 ; 1 C. R. (N. S.) 402. In the former case, the objectionable portion of the answer was stricken out ; and, in the latter, a de- murrer was allowed. See, also, Sayles v. Wooden, 6 How. 84; 1 C. R (N T . S.) 409. See likewise Buddington v. Davis, 6 How. 401. ,], \ault and Battery, longer authority. The same is the case with reference t" the doctrine laid down in Cochran v. Webb f 4 Sandf. 658, that an equitable defence, looking to affirmative relief, cannot be established, otherwise than in a cross action ; ANSWER, 503 and likewise in Haire v. Baker, 1 Seld. 357, in relation to the necessity of a cross action, to enable a defendant, in an action for breach of covenant, to show mistake in the covenant itself. See the subject of the demand of affirmative relief in an answer, as treated in a subsequent section of this chapter. It may be convenient to consider the cases in point on this subject, under the separate heads of set-off or counter-claim, generally considered, and counter-claim as provided for by the Code. Set-off or Counter-claim generally considered.] — The following decisions under the previous provisions, are generally applica- ble to the present : A set-off, when pleaded, must be pleaded in definite terms, and the particulars thereof not only may, but must be alleged, with precisely the same particularity as is necessary to establish a cause of action in a complaint. The recent amendment in sec. 149, seems to put this beyond a doubt, even had it been doubtful before. An indefinite statement (such as was used in pleadings under the old system) will no longer suffice. Wig- gins v. Gaus, 3 Sandf. 738; 1 C. E. (N. S.) 117. See Ranneij v. Smith, 6 How. 420, in which the same general principles are laid down ; though, under the Code as it then stood, it was held that several causes of set-off might be included in one statement of new matter, if properly distinguished. There can be no question that, as the provisions now stand, the safe and proper manner of alleging matter by way of counter-claim, will be to allege that matter, precisely as it would have been alleged, in drawing the complaint on a cross action. This principle is fully supported by Deiveyv. Hoag, 15 Barb. 365, where it is held that, in an answer, setting up an equitable title in bar of an ejectment, the defendant must become an actor in respect of his claim ; that such answer must contain all the elements of a bill for a specific performance ; and that, by it, he must ask for and obtain affirmative relief. The answer in that case was held to be defective, because the defendant did not specifically offer to perform, nor ask that the plaintiff be required to perform, the contract there in question. The set-off or recoupment claimed, being in the nature of an affirmative remedy, the defendant cannot both plead it, and also maintain a cross action for the same cause, at the same time. If 504 ANSWER. he do so, he will be put to his election between the two modes of proceeding, and will be forced to abandon either the one or the other. Farmers' Loan and Trust Company v. Hunt, 1 C. R. (K S.) 1 ; Fabbricotti v. Launitz, 3 Sandf. 743 ; 1 C. R. (N. S.)121. In Halsey v. Carter, 1 Duer, 667, the defendant's right to make such election freely is maintained, and it is held that he is not bound, in his answer, to set up a demand, which, from its nature, is a proper subject for counter-claim. He may, as before, elect to enforce its recovery in a separate suit, and his rights in this respect have not been varied by the Code. In Deming v. Kemp, 4 Sandf. 147, it was held, with refer- ence to recoupment, that damages cannot be recouped, unless they arise in respect of the particular contract on which the action is founded. See Bogardus v. Parker, 7 How. 303, below cited. Under the Code, a partial counter-claim is admissible, and matter, short of a defence, may be pleaded by way of recoup- ment, in mitigation of damages. Willis v. Taggard, 6 How. 433 ; and not only so, but the defendant is bound to plead it in that form. Houghton v. Toionsend, 8 How. 441. The right to set off a demand against an assignee, has not been effected by the Code, but stands as it did under the old practice. When, therefore, the right of the assignee had become perfect, before the claim proposed to be set off had arisen, it was held that such set-off could not be maintained. Beckwith v. The Union Bank, 4 Sandf. 604; affirmed by the Court of Ap- peals, 31st December, 1853. See to the same effect, in relation to the doctrine that the right of set-off does not attach, till the debt in question actually becomes due, notwithstanding the intermediate insolvency of the debtor, Keep v. Lord, 11 L. 0. 178 ; see also Bradley v. Angel, 3 Comst. 475. To be pleadable at all, an equitable set-off must be such an equity as can be enforced by judicial action, not one arising from merely moral considerations. Van Pelt v. Boyer, 8-How. 819. Nor can :i fraud, practised by a person other than the plain- tin; be made the Bubjed of an equitable Bet-off, though arising in respect of the same Bubject-matter, where there is nothing to connect the actual plaintiff with such fraud. Ileedy. Latson, L5 Barb. 9. J n Smith v. Brigg , Barb. 262, the court denied a motion ANSWER. 505 that a judgment, satisfied, and discharged of record, should be set off against another, (though it was claimed that such can- celled judgment was discharged merely for a particular purpose, and had not, in fact, been paid,) on the ground that they had no power to make such an order. In Merritt v. Seaman, 2 Seld. 168, it was held that a debt, due from a testator, could not be set off, in an action brought by his executor, in his own name, on the promissory note of the defendant, though such note was given in respect of a debt due to the testator's estate. To be pleadable, a set-off must be between the same parties, and them alone. Compton v. Green, 9 How. 228. Nor can a person indebted to a bankrupt, declared such under the act of Congress of 19th August, 1841, set off, against that indebtedness, a demand against the bankrupt, purchased after he presented his petition to be discharged. Smith v. Brincker- hoff, 2 Seld. 305. A widow's claim for dower is not subject to a set-off for dam- ages, nor for moneys due from her, in respect of the rents of the estate from which she claims dower. Bogardus v. Parker, 7 How. 303. In an action in which a set-off is proper, any one or more of several defendants, jointly sued, may, severally, or individually, avail themselves of a set-off, so far as regards any one or more of them, apart from the others. Parsons v. Nash, 8 How. 454. See The People v. Crane, 8 How. 151. Set-off is a remedy of a quasi equitable nature, and rests, as such, emphatically in the discretion of the court. This prin- ciple is fully laid down in Baker v. Hoag, 6 How. 201, where the court allowed one judgment to be set off against another, although the parties to those judgments were different: it appearing that equity would be promoted, and. injustice pre- vented by that course. It is clear, from the case of Haire v. Baker, 1 Seld. 357, that, in an action to recover damages for a breach of covenant, it would now be competent for the defendant to interpose a defence, that the covenant was not binding, in that particular instance, on the ground of mistake ; though, in the then state of the law, a cross action for that purpose was held to be necessary. The principle, that the same facts which would heretofore have entitled a defendant to be relieved in equity, may be now 506 ANSWER. set up in bis answer as a full defence, is clearly laid down in Dolson v. Pearce, 1 Duer, 142; 10 L. 0. 170. In Owens v. Ackerson, 8 How. 199, it was laid down that, in proceedings under the Mechanics' Lien Law, a set-off may be pleaded, though arising out of other matters than those con- nected with the contract. By the last amendment, any claim, arising out of the contract or transaction stated in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action, can be pleaded as a set-off, or rather as a counter-claim, accord- ing to the new phraseology. The terms of this subdivision are large enough to comprise any cause of action whatever, within the above limits, and must therefore be considered as overruling, pro tanto, the previous provisions, that set-off was only admissible in actions arising out of contract, and in those where the demand was certain and liquidated. In other respects, however, and except as regards different causes of action arising out of the same transaction, the princi- ples last mentioned seem unshaken by the recent amendments. In actions sounding in tort, a set-off in contract cannot accord- ingly be pleaded, unless arising out of the same transaction. The decision, therefore, that, in an action of trespass, the defendant cannot seek to have, as a set-off, a money demand against the plaintiff, but that his only course is a cross-action, Anon., 1 C. It. 40, seems to be still authority. It has been held that a judgment in a justices' court cannot be made the subject of a set-off, within five years of its rendition. Smith v. Jones, 2 C. R. 78; see sec. 71 of Code. Counter-claim, as such.'] — The cases above cited, under the head of Set-off, are all, of necessity, applicable to a defence of this nature, when interposed in the peculiar form, or rather under the peculiar title of counter-claim, as prescribed by the Code, as it now stands. The term in question lias been made the subject of much comment, in Beveral of the cases below cited, and numerous attempts have been made fco define its exact limits. In /.'"'"' v. Maison, 7 Bow. L21, it was considered that a claim of an independent and hostile titlo to the property sued for, might be com idered as a counter-claim, within the moaning of t he amendment in question. ANSWER. 507 111 Silliman v. Eddy, 8 How. 122, a counter-claim is defined to be "an opposition claim, or demand of something due; a demand of something which of right belongs to the defendant, in opposition to the right of the plaintiff." In Gage v. Angell, 8 How. 335, it was held that the existence of an unliquidated and unsettled partnership account between the parties, and a claim of a balance due on that account, might be interposed as a counter-claim, in an action upon a promissory note for money lent. In an anonymous case, 11 L. O. 350, it was held that, in a suit for a divorce, by the husband, it was competent for the wife to set up adultery on his part, and to ask for the necessary affirmative relief in that respect, in her answer, by way of counter-claim. In Dewey v. Hoag, 15 Barb. 365, it was held that an answer in the nature of a bill for specific performance of a contract, was available as a defence in ejectment, if fully and properly pleaded. The principle, that the same facts, which would formerly have entitled a defendant to be relieved in equity, may be set up in his answer, as a full defence, is clearly laid down in Dobson V* Pearce, 1 Duer, 142, 10 L. 0. 170. In Hinman v. Judson, 13 Barb. 629, it was held that the mortgagor of personal property, when sued for a conversion, may claim his right to redeem, as matter of defence, and, where he has not been foreclosed, may mitigate the recovery against himself, by reducing the judgment to the amount actually due on the mortgage. In actions of a legal character, any defence, whether legal or equitable, may now be interposed. A suit in the nature of an injunction to restrain proceedings at law, will now therefore be not merely unnecessary, but unsustainable ; Hunt v. Farmers Loan and Trust Company v. Rogers, 8 How. 416. See likewise Dederick v. Hoysradt, 4 How. 350, before cited under the head of Injunction. The question therefore seems to be settled, 1. that any claim on the part of the defendant in the nature of a set-off, available under the former law ; 2. that any such claim, arising out of the contract or transaction sued upon by the plaintiff, or connected with the subject of the action; or, 3. that in actions on contract, any other cause of action on contract also, and existent at the 508 ANSWER. commencement of the action, are available as defences by way of counter-claim : or the proposition may be even more shortly stated, viz., that any defence which, under the old practice, might have been set up by way of set-off, or, with some slight modifi- cations, any claim which, under the same practice, might have been set up by way of cross action, will now be so available. The requisition of affirmative relief, either in partial mitigation, or in total extinguishment of the plaintiff's claim, seems to be the governing test, by which the issue of counter-claim, or no counter-claim, must in all cases be tried. The necessity and importance of such a test being strictly and rigorously applied, in considering the effect of an answer, as to whether it does, or does not require a reply, is evidenced by the long discussion that has taken place, and the numerous decisions that have been made on this particular point, and which will be found cited in the next chap.ter, under the head of Eeply. Numerous as those cases are, and contradictory as some of them appear to be, the dominant principle is, after all, simple and clear. Matter alleged by way of defence, and not looking to affirmative relief, is not matter in counter-claim, and requires no reply. Matter in any wise looking to the assertion of such relief must be replied to, and, wherever there is any, even the slightest doubt as to the nature of such matter, and whether it may not possibly fall under the latter category, a reply will be the only safe course. See the whole subject, as further consi- dered in the chapter in question. In Bogardus v. Parker, 7 How. 303, above cited, it is held that a counter-claim, in an action not arising on contract, can- not be interposed, unless it arise out of, or be connected with the subject of the transaction on which the complaint is based. See tli<' s;une case, as before cited. See likewise Deming v. Eempi 1 Sandf. 147. Tin' by way of counter-claim looking to affirmative relief, an <>n«T made by the defendant, after the service of his ■.it, for a balance admitted by that answer, will have the effect of extinguishing the counter-claim, if accepted, and, if refused, will deprive the plain till' <>!' his costs, should he sub- lently recover less than the amount of the offer. Schneider v. Jacobi, I Duer, 694, II L. 0. 220. In making ach an offer on the part of the defendant, if made before answer, be should make the discharge of his set- ANSWER. 509 off a specific portion of that offer, and apparent on its face. If he omit this precaution, the offer will be unavailing, and the plaintiff will be entitled to full costs, as though it had not been made, though the judgment he obtains be not more favorable in the actual amount. Buggies v. Fogg, 7 How. 324. § 1 60. Demand of Relief by Answer- In cases falling under the category of counter-claim, as de- fined in the last section, and where any thing in the nature of affirmative relief is sought by the answer, it seems- clearly necessary, from the cases above cited, and particularly from those of Ilaire v. Baker, Dewey v. Iloag, Gage v. Angell, and Anon., 11 L. O. 350, that such relief should be specifically and affirmatively demanded, in the same mode in which it would have been heretofore necessary to demand it, in a cross action. Nor is Cochran v. Webb, ■! Sandf. 653, an authority to the con- trary, that case having been decided before the recent amend- ment, and proceeding on the principle that affirmative relief must be affirmatively sought. The same principle is also fully recognized in Bridge v. Pay son, 5 Sandf. 210. See likewise Dobson v. Pearce, 1 Duer, 142, 10 L. O. 170. Where, however, the answer simply consists of matter in defence, and affirmative relief is not sought, a prayer for gene- ral relief will be wholly unnecessary, and even irrelevant. See Bridge v. Payson, above cited. See, also, heretofore, under the head of Irrelevant Matter in Pleading. § 161. Defects in Answer. Insufficiency.] — The pendency of a prior suit for the same cause of action, in the courts of another State, or in the federal tribu- nals, is no defence to an action. The Code has not changed the rule in this respect. Cook v. Litchfield, 5 Sandf. 330; 10 L. I ). 330. Affirmed by the Court of Appeals, 31st December, 1853. The sureties in an undertaking on bail, cannot question the liability of their principal to arrest, in an action against them ; and their answer to that effect, if put in, will be demurrable as insufficient. Gregory v. Levy, 12 Barb. 610; 7 ITow. 37. 510 ANSWER. The mere allegation that a note sued on was not made within six rears before the commencement of the action, unaccompa- nied by any allegation as to its delivery, was held to raise an immaterial issue, and that the plaintiff was entitled to judg- ment, in Mallory v. Lamphear, 8 How. 491. A partv, whose acts prevent the performance of a condition precedent, cannot avail himself of such non-performance, as a defence in an action against him. Young v. Hunter, 2 Seld. 203. A denial of the jurisdiction of the court, by answer, must show that the court had no jurisdiction when the suit was commenced, or it will be held bad upon demurrer. Bridge v. Pay son, 1 Duer, 614. A number of other cases, also bearing on this branch of objection, will be found in the different portions of the pre- ceding chapter, and also in the closing chapters of this book, under the head of Proceedings before Reply, and Demurrer to Answer. Inconsistency.'] — As a general rule, a defendant will be per- mitted to set up in his answer, as many defences as he may have, provided only those defences be plainly distinguished and separately stated. Thus, in Bridge v. Payson, 5 Sandf. 210, it was held that it is no objection to an answer that, after taking issue on the material allegations of the complaint, it alleges, as a defence, matters in abatement; and this conclusion seems clearly sustainable, notwithstanding the ruling to the contrary, in Gardiner v. Clark, 6 How. 449, which proceeds upon strict common law principles, without regard to the infu- sion of equitable rules as to pleading, which the Code has clearly introduced in all cases whatsoever. In Ostrom v. Bixby, \) Bow. 57, it was held, that a pica of the Statute of Limitations nol inconsistent with a traverse of the plaintiff's claim in other matters. :-■ the principle of inconsistency applicable to denials of the plaintiff's ca e, which it is competent for the defendant to make under any circumstances^ to tic full extent, and in con- nection with any new matter whatsoever, provided the same be not positively inconsistent with SUCh denial. Sec, infru, or, v. Ro ■. 3 How. L98, Ll-L. 0.843. VVhi i '.■■ -r. new mailer is alleged, the principle of in- applicable to averments in answers of that nature. ANSWER. 511 In an early case, it was indeed held, that the setting up of several defences inconsistent with each other, is admissible in an answer, provided only they are. separately stated. Anon., 1 C. E. 134. The complaint in that case was for assault, and the defendant had answered non cul, son assault, and accord and satisfaction ; all of which defences the court admitted, and refused to compel the defendant to elect by which he would abide; and a similar rule is broadly asserted in Stiles v. Com- stoch, 9 How. 48, and likewise in Lansingh v. Parker, 9 Plow. 288. This principle seems, however, unsustainable, and has been directly impeached by the following decisions : In Schneider v. Schultz, 4 Sandf. 664, it was held that, in a case of the same description, the defendant will not be permitted first to deny the charge, and then to set up son assault demesne. So also in Roe v. Rogers, 8 How. 356, an answer of the same description, which first denied the whole complaint, and then, as a further defence, set up matter in justification of an alleged assault and imprisonment, was stricken out as incon- sistent. See also, the general principle, that the allegation of matter in avoidance is incompatible with a general denial of the complaint, as before laid down, and other cases cited, under the heads of Slander and Libel. See likewise Arthur v. Brooks, 14 Barb. 533. The same principle as to inconsistent defences is fully carried out, and generally laid down, in Arnold v. Dimon, 4 Sandf. 680, where it was held, that a carrier by water will not be permitted to answer: 1. That he was not the owner of the vessel; and, 2. That the property shipped was delivered to the plaintiff. In the recent cases of Butler v. Wentivorth, however, 9 How. 282, the general term in the First District have decided, that a hypothetical justification, is consistent with a general denial in slander, Clerlce, J., dissenting. The doctrine here laid down seems very doubtful, and incon- sistent with a large majority of the decided cases, both as to the inconsistency of a denial and avoidance in the same plead- ing, and also as to hypothetical defences. Hypothetical, alternative, or argumentative defences, seem also, notwithstanding the last decision, to be clearly bad, and will be held so. See this principle laid down, and nume- rous cases cited, in the prior parts of this chapter, and also 512 ANSWER. in a previous one, under the head of Essential Kequisites of Pleading. It seems indeed clear that, under the rule now enforced by the Code, that the facts of every case, and nothing else, are to be pleaded ; allegations of facts, inconsistent with each other, and, therefore, in one aspect or the other, untrue, cannot properly be admissible under any circumstances. Where, however, this principle is not directly involved, it is equally clear that, under the Code, any number of separate defences may be set up, pro- vided only they are separately stated, and, under the last amendment of the rules, plainly numbered. The decision in Butler v.Wentworth, above noticed, is based upon this right of the defendant, but apparently carried too far. Irrelevancy or Frivolity .] — In the last place, and with refer- ence to answer in general, the making of either a sham, or an irrelevant, or a frivolous defence, must be carefully avoided. The powers of the court, and the rights of the plaintiff in the former of these respects, are greatly increased by the amend- ment of 1851, in sec. 152. It now stands as follows: ^j 152. Sham and irrelevant answers and defences may be stricken out on motion, and upon such terms as the court may in their discretion impose. Sec. 247 provides as follows in relation to frivolous defences : § 247. If a demurrer, answer, or reply, be frivolous, the party pre- judiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given accordingly. Under section 152, as it stood in the Code of 1849, sham de- fences only could be stricken out on motion, and a restricted con n of the section prevailed in consequence; a con- struction, in fact, so restricted, that there is no reported case of relief b ing granted under it, except one, afterwards reversed by the general term. The decisions on the subject were as follows : In !>■■■ i v. /'■ tt r, ■! Bow. L56, 2 0. R. 99, it was held that an wer, denying the plaintiff's allegations on belief only, could qoI be stricken oul a ; a sham answer, and that the section now in questi lid not necessarily include the case of a false an- r; for, if BO, the truth of an answer might be tested on ANSWER. 513 special motion. It is only, the learned judge said, " where an answer takes issue upon some immaterial averment of the com- plaint, or sets up new or irrelevant matter, that it can properly be called a sham defence." See, also, Temple v. Murray, 6 How. 329. It did not necessarily follow, either, that, under the late mea- sure, a clearly frivolous answer could be stricken out as false. It must have been shown to be put in in bad faith, and to be so impertinent or grossly frivolous, that the court could not but see that the object was to delay or perplex the plaintiff, instead of presenting a defence. Unless this could be clearly estab- lished, the only proper course, under that measure, was to move for judgment upon such answer, as frivolous, under sec. 247. Darrow v. Miller, 5 How. 247 ; 3 C. E. 241. See also Brown v. Jenison, below cited. Similar views are likewise held in Rae v. The Washington Mutual Insurance Company, 6 How. 21 ; 1 C. E. (N. S.) 185, a decision under the section last referred to. In Mier v. Cariledge, 4 How. 115, the court, at special term, somewhat departed from the principle of not testing the truth of an answer on special motion, (though fully acknowledging that principle in the main, and citing the case of Broome County Bank v. Lewis, 18 Wendell, 565, in support of it.) It appeared to the judge, in that case, that, from the wording of the answer itself, a real issue was not intended. On that ground, affidavits were allowed to be read, and it was held that the defence in the answer was a sham defence, and a motion to strike it out as such was accordingly granted, with costs, though without prejudice to the defendant's thereafter applying to the court, for leave to put in a defence in good faith. The defendants- appealed from that decision to the general term, reported 8 Barb. 75, 2 C. R. 125, and the judgment in question was re- versed, on the ground that the answer, having been verified under the Code, and there having been some ground to believe that it had been put in in good faith, ought not to be stricken out on motion. In Tracy v. Humphrey, 5 How. 155, 3 C. E. 190, the authority of the last decision was confirmed, and it was distinctly held that a verified answer could not be stricken out, as false, on affidavits. The same conclusion is likewise come to in Catlin v. McGroarty, 1 C. E, (N. S.) 291. The above decisions amounted almost to a practical prohibi- tion of motions under this section, as unamended. Now, how- 33 514 ANSWER. ever, the case is different, and relief on the ground of irrelevant, as well as sham defences, being obtainable under this provision for the future, applications under it may be expected to become more frequent. The principle, however, that a verified answer cannot be stricken out as sham, is as fully maintained under the section, as it stands now, as it was before the amendment. That prin- ciple may now be considered as fully established, by the above, in connection with the following further decisions, viz. Miln v. Vose, 4 Sandf. 660 ; Caswell v. Bushnell, 14 Barb. 393, reported, also, as Sherman v. Bushnell, 7 How. 171. And, even when the answer is unverified, the court will be indisposed to strike it out as sham, on allegation of its falsity, provided the issue taken by it be complete, and sufficient to raise, what amounted, under the old system, to the general issue. In Mier v. Cartledge, above cited, it was laid down, at special term, that an unverified answer consisting of denials only, might be stricken out as false, on its falsity being clearly shown by affidavit, and that, in this instance, the court would depart from its usual custom of not trying the main issue in the case on affidavits ; and, in the reversal of that case by the general term, this principle was not impeached. The same view has since been taken, and an unverified answer stricken out as false on affidavits of its falsity, in ConJelin v. Vandervoort, 7 How. 483. It is likewise maintained in Nichols v. Jones, 6 How. 355, in rela- tion to cases where the plaintiff's affidavits are not contradicted by the defendant, but not otherwise. See also Ostrom v. Bixby, 9 How. 57. In other cases, however, this has been doubted. In White v. Bennett, 7 How. 59, it was held that the plaintiff, by merely verifying his complaint, subsequent to the service of an unve- rified answer consisting of denials only, could not, on that veri- fication, move to strike out the answer as false. Leave was, how- ever, given to amend bis complaint, so as to obtain a fresh and verified answer from the defendant. The same principle is sup- ported by Winne v, Sickles, 9 Il<>w. 217. In Living \on v. Finkle, 8 How.485, it is distinctly laid down that .-in unverified answer, merely taking issue on the plaintiff's allegations, cannot be stricken out as sham or false. It is not sham, because it merely denies the plaintiff's case. It is not false, because it does not assert any thing. It is a mere nega- ANSWER. 515 tive pleading, and, as such, is allowable, and cannot be im- peached on affidavit, or otherwise than on a regular trial of the issue then formed. It is in the power of the plaintiff to pre- vent such a defence, by verifying his complaint. This decision has the greater force, because it is made under the expressed conviction, that the answer there in question was really false in fact, though admissible as a pleading. See also Winne v. Sickles, 9 How. 217. In Caswell v. Bushnell, and Sherman v. Bushnell, above refer- red to, it is also distinctly laid down that an answer, consisting of denials only, cannot be stricken out as sham or false, and that objections on the above ground are only applicable to state- ments of new matter. This principle appears to be clearly sus- tainable, and to be decisive of the question. Although, as above noticed, the powers of the court are now greatly extended by the amendment of sec. 152, in relation to irrelevant defences, relief of this description can seldom be counted upon, except in extreme cases. Thus, an answer, im- perfect in point of form, but the facts contained in which might have formed a valid defence, if properly stated, was refused to be stricken out. Alfred v. Watkins, 1 C. E. (N. S.) 343. Thus also, an answer similarly void under the Code of 1851, as con- taining a general, instead of a specific denial of the plaintiff's case, was likewise refused to be stricken out, in Seward v. Miller, 6 How. 312 ; and an answer, merely containing a denial of notice to the endorser, in an action on a promissory note, was similarly treated in Garvey v. Fowler, -1 Sandf. 665, 10 L. O. 16,. it being further held, in that case, that, even when manifestly put in for delay, the answer must be false in fact, and known to be so to the defendant, in order to justify its being treated as "sham." Where, however, a manifestly evasive answer is put in, de- nying knowledge or information sufficient to form a belief, of tacts within the defendant's knowledge, or means of knowledge, such answer will be bad. Mott v. .Burnett, 1 C. E. (N. S.) 225; Hance v. Bemming, 1 C. E. (N. S.) 201, both before cited; and, in the latter case, an answer of this description was expressly stricken out as sham, under the power above cited. Answers of a similar description have also been stricken out in Flcury v. Boget, 5 Sandf. 64:6, 9 How. 215 ; Flammer v. Kline, 9 How. 216, and Fleury v. Brown, 9 How. 217.' See likewise Ostrom v. Bixby, 9 How. 57. 516 ANSWER. The same result was arrived at, on similar grounds, in Nichols v. Jones, 6 How. 355 ; that decision proceeding, however, in part on the view taken in that case, .as to the power of the court to test the truth of an unverified denial, upon affidavits, the soundness of which has been questioned, and apparently over- ruled, as before stated. The following general principles, in relation to defects in pleading, are laid down in the course of the opinion pronounced : " Upon the whole, I think, the va- rious provisions of the Code on this subject are consistent, and cover the whole ground precisely, neither more nor less. If an answer, otherwise good, is loaded with unnecessary and redun- dant matters, the plaintiff's counsel should move, under section 160, to have such matters expunged. If doubts are entertained as to the sufficiency in law of the answer, and the opinion of the court is desired, it must be obtained by demurrer. If, how- ever, any defence is palpably insufficient, a motion for judg- ment, on the ground of frivolousness, is the proper course ; and, if the matters of defence can be shown to be clearly false, a motion to strike out as sham, will reach the evil. These four modes cover all defects in an answer." Similar views to the above are also laid down in Harlow v. I In mil ton, 6 How. 475. The following definition of sham and frivolous answers re- spectively, is given by the Superior Court, in the case of Brown v. Jenison, 3 Sandf. 732, 1 C.R.(K S.) 156, and will be of use, in pointing out the objectionable particulars to be guarded against, as above. "A sham answer or defence, is one that is false in fact, and not pleaded in good faith. It may be per- fectly good in form, and, to all appearance, a perfect defence. Section 152 provides for striking out such answers. A frivolous answer is one that shows no defence, conceding all that it alleges to be true. Each may be stricken out on motion, but it is under differenl provisions of the Code,." In Hull v. Smith, I Duer, 649, 8 How. Ill), the above defini- tion is fully approved by the general term of the same court, with the qualification that, when, the answer is frivolous, as a whole, and qo1 in pari only, a demurrer, or a motion for judg- ment under sec. 247 j will be the proper course; and, in the latter case, the motion must, uot be that the answer be "stricken out." It- must, on the contrary, remain on the record, with a view to the review of the decision on appeal, if taken. Where, however, there is the slightest question as to the frivolity of PLAINTIFF'S COURSE ON ANSWER. 517 the pleading, demurrer, not motion, as above, will be the only proper course. See also Miln v. Vose, 4 Sandf. 660. In Howard v. The Franklin Marine and Fire Insurance Com- pany, 9 How. 45, an answer, setting up a clearly untenable de- fence, on the defendant's own showing, was stricken out. In Lane v. Gilbert, 9 How. 150, where an answer in slander contained no direct defence, but merely stated matter in miti- gation, it was held that a motion for judgment on the ground of frivolity was the proper course. The questions as to what will or will not be considered as a frivolous defence, have been before fully entered upon, and the different cases cited, in the preceding portions of the present chapter, and also in the preceding division of the work, under the subject of the essential requisites of pleading ; and the con- siderations in relation to the proper form of the application in such cases, will hereafter be treated of, under the proper head : General Remarks.'] — It follows of course from the foregoing observations, that both immateriality and frivolity in defence, are defects against which the pleader must carefully guard. It seems scarcely possible to imagine a case, proper for defence at all, in which these objections cannot be fully obviated, by a careful attention to the phraseology employed, and by recourse to the most extensive powers of traversing the plaintiff's case on information and belief only, before alluded to in the earlier portion of the present chapter. CHAPTER V. COURSE OF THE PLAINTIFF, ON RECEIPT OF THE DEFEND- ANT'S PLEADING. General Examination of Answer.'] — The first thing to be looked to by the plaintiff, on receipt of the adverse pleading, is to see whether it be regular in point of form, and, in the case of answer, duly and properly verified. See previous chapter, as to formal requisites of pleading. The pleading, if defective 518 -PLAINTIFF'S COURSE ON ANSWER. must be returned forthwith, as there pointed out ; and any objec- tions, on that or any other formal grounds, must be taken at once, or else the right to do so may be considered as waived. § 162. Motion to satisfy admitted Part of Demand. The next point for consideration, where answer is put in, is as to whether that answer does or does not contain an admission, that part of the plaintiff's claim is just, or that the defendant has property in his hands belonging to another party, on which admission an application may be grounded, that he may be ordered to satisfy such admitted portion, or to hand over or deposit such property admitted to be in his hands, as provided by the recent amendment in sec. 244. The provisions of that section, in relation to these remedies, and the mode of their enforcement, are analogous to those pro- vided by the former practice, and run as follows : When it is admitted by the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject, of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or delivered to such party, with or without security, subject to the further direction of the court. Whenever, in the exercise of its authority, a court shall have ordered the deposit, or delivery, or conveyance, of money or other property, and the order is disobeyed, the court, besides punishing the disobedience, as for contempt, mav make an order, requiring the sheriff to take the money or thing, and deposit, deliver, or convey it, in conformity with the direction of the court. When the answer of the defendant admits part of the plaintiff 's claim to be just, the court, on motion, may order such defendant to satisfy that part of thfi claim, and may enforce the order as it enforces a pro- visional remedy. The above provisions had been, to a certain extent, antici- pated by the I Tracy v. Humphrey, before noticed, where the court bad already given judgment to a plaintiff, for portions <,f his demand Dot denied by the defendant; and the remedy then extended, in a Bomewhal questionable manner, as the law then : tood, ha aow assumed a certain .and available shape. It. is, however, only appropriate to clear and unquestionable PLAINTIFF'S COURSE ON ANSWER. 519 cases, and not to those in which there exists any doubt or con- test. Thus, in Dolan v. Petty, 4 Sandf. 673, where the answer traversed the plaintiff's claim for work and labor, adding that the work done was not worth more than a certain sum, the court refused to order the payment of that amount, because the answer did not admit a specific sum to be due. Where, too, the defendant, prior to answering, had made an offer to allow judgment for the amount admitted in the answer, which offer was refused, a motion of the above nature was denied, on the ground that the practice was still unsettled; under which circumstances, the court would leave the plaintiff to his usual and ascertained remedies. Smith v. Olssen, 4 Sandf. 611. And such seems still to be the case, to a great degree, no decisions appearing in the recent reports, which bear upon the subject. Where, however, the plaintiff's right is clear, the remedy will be both proper and available. Thus, in Roberts v. Law, 4 Sandf. 642, where the defendant admitted partnership funds to be in his hands, which, on his statement, belonged to the repre- sentatives of his deceased partner, he was ordered to pay over such funds, though the affairs of the firm were still unsettled. The plaintiffs were required, however, to give security, to con- tribute towards payment of outstanding claims, if established, and also their share of future expenses; and the defendant was allowed to retain sufficient to cover claims against the deceased partner, contested in the suit itself. In Burhaus v. Casey, 4 Sandf. 706, funds in the hands of the defendant, intrusted to his charge for payment to a third party, were ordered to be deposited in court, or paid to the third party in question, within ten days; and, in the same case, 4 Sandf. 707, the same defendant was held arrestable, in respect of his neglect to perform his required duties in that respect. § 163. Motion on ground of Defects in Answer. The answer should next be carefully examined, with a view to ascertain whether it contain any allegations liable to be stricken out for redundancy, or irrelevancy, or which the plain- tiff may require to be made more definite or certain by amend- ment, under the provisions of sec. 160. This subject has also been fully entered upon, in the introduc- 520 PLAINTIFFS COURSE ON ANSWER. tory chapter of this portion of the work. The proceeding for that purpose must, as there mentioned, be taken speedily, and before the time originally allowed for replying expires, or the right to take it will be gone. See Corlies v. Delaplaine, 2 Sandf. 680, 2 C. E, 117. The above proceeding refers more peculiarly to the insertion of irrelevant matters in a relevant defence, and to the purga- tion of the record in this respect ; but it is also possible that the whole of the answer, or the whole of any ground of defence taken therein, may be sham or irrelevant. In this case the remedy of the plaintiff is different. A motion under sec. 160 will not meet the case, but the application must be made under sec. 152, as commented upon at the close of the last chapter. If the whole answer be stricken out as irrelevant, the plaintiff's course appears to be to sign judgment thereupon, under sec. 246, as for want of an answer, on affidavit, that no answer has been received, except the one stricken out ; nor can the defend- ant put in any further defence under such circumstances, unless on leave of the court specially obtained, inasmuch as, the an- swer being stricken out, his right to amend as of course is gone. Aymar v. Chase, 1 C. E. (K S.) 141. If, though not sham or irrelevant, the demurrer or answer be frivolous, the course then to be pursued will be to move for judgment, under the provisions for that purpose contained in sec. 247, as cited in the last chapter. The form and mode of entry of judgment so obtained, will be hereafter considered, and the cases in relation thereto cited, under the head of Judgment by Default. Amotion under that section is absolutely necessary, for obtaining relief under the above state of circumstances; for, however frivolous the plead- ing may be, it cannot be disregarded as a nullity. Corning v. Eaight, 1 0. E. 72 ; Hartnessv* Bermett, 3 How. 289, ICE. Swift v. Ih Witt, 3 How. 289; 6 L. O. 314; 1 C. E. 25; Nbbl v. Trowbridge, I 0. R. 38; Stokes v. Hagar, 7 L. O. 16 ; 1 ( '. R. 84; Strout v. Outran, 7 How. 36; Griffin v. Cohen, 8 How. 451. Nor '•■in the plaintiff BO treat a demurrer, put in jointly with :hi answer to the same cause of action, though either the demurrer ox the answer, if bo put in, is clearly bad. His only course, tinder those circumstances, will be to move to strike out either the demurrer or the answer, or that the defendant may be compelled to eli 01 by which defence he will abide. Spdlnian v. Weider, 5 How. 5 ; Slocum v. Wheeler, 4 How. 373. PLAINTIFF'S COURSE ON ANSWER. 521 Although, under Eule 40 of the Supreme Court, motions on the ground of partial irrelevancy can only be made within twenty days after service of the pleading objected to, and, if not made, such objections will be considered as waived ; a motion to strike out an answer altogether, as irrelevant in toto, or as sham or frivolous, may be made at any time before trial. If it be false or frivolous, the time of the court or jury ought not to be taken up in hearing it. Miln v.Vose, 4 Sandf. 660. See likewise Stokes v. Hagar, 7 L. 0. 16, 1 C. R 84, above cited. It may be made, too, within the twenty days allowed for an amendment, though, if the pleading be subsequently amended, it will then be denied without costs. Currie v. Baldwin, 4 Sandf. 690. A motion on the ground of irrelevancy will be admissible where statements of new matter, not constituting a counter-claim, and not amounting to a defence, are made in the answer, and such matter is partial, or relates to one only of several defences. When, on the contrar} r , such new matter applies to the whole case, a motion under sec. 247 will be proper. Quin v. Chambers, 1 Duer, 673, 11 L. 0. 155; Lane v. Gilbert, 9 How. 150. De- murrer will not lie to new matter in an answer, not constituting a counter-claim. See this subject fully treated in the next chapter, and the cases there cited. A joint answer of parties, severally as well as jointly inte- rested, unless verified by all, will be no answer, as regards those who omit to verify, and will be stricken out as such. Andrews v. Storms, 5 Sandf. 609 ; Alfred v. Wathins, 1 C. R (K S.) 343. The answer of a married woman, in her own person, and not by her next friend, was also taken off the file as no answer, in Henderson Y.Easton, 8 How. 201. The questions as to what will or will not be considered a fri- volous pleading, have been before considered. Motions of the above nature, whether under sec. 152 or sec. 247, are only appli- cable to extreme cases, and not to those, in which the frivolity or irrelevancy of the pleading objected to is in any wise doubtful. A merely insufficient pleading must be demurred to, and cannot be stricken out as frivolous, though clearly bad for in- sufficiency. Scovell v. Howell, 2 0. E. 33 ; Alfred v. Waikms, 1 C. R (N. S.) 343 ; White v. Kidd, 4 How. 68 ; Miln v. Vose, 4 Sandf. 660, and various other cases before cited. It is only 522 PLAINTIFF'S COURSE ON ANSWER. where the pleading is palpably groundless and untenable, and put in for the purposes of vexation and. delay, that the court will exercise the high power of expunging it from the record. Nee/us v. Kloppenburgh, 2 C. R. 76. See also Smith v. Shufelt, 3 C. R. 175 ; Seward v. Miller, 6 How. 312. Nor will an answer be so stricken out, if it deny any one material allegation in the complaint, however insufficient it may be in other respects. See Davis v. Potter, 4 How. 155, 2 C. R. 99 ; Garvey v. Fowler, 4 Sand f. 565; 10 L, O. 16, and numerous other cases, before cited under the head of Answer. And such a denial is admissi- ble, of facts essential to the plaintiff's recovery, even though not formally alleged in the complaint. Lord v. Gheeseborough, 4 Sandf. 696, 1 C. R, (N. S.) 322. In order to ground such an applica- tion, and warrant a judgment under the above section, " the case should be entirely clear, palpable on the statement of the facts, and requiring no argument to make it more apparent." Bae v. The Washington Mutual Insurance Company, 6 How. 21, 1 C. R. (N. S.) 185. See also Miln v. Vose, above cited, and Hidl v. Smith, 1 Duer, 649, 8 How. 149. The application to strike out a pleading as frivolous, must be for "judgment," under the terms of section 247, as above cited. It cannot be granted, on a notice of motion that an "order" will be applied for. Darroiv v. Miller, 5 How. 247, 3 C. R. 241 ; JRae v. The Washington Mutual Insurance Company, above cited. See also Bentley v. Jones, 4 How. 335, 3 C. R. 37; and King v. Stafford, 5 How. 30. The motion must be for judgment, and not that the answer be stricken out. It must, on the contrary, remain upon the record. Hull v. Smith, 1 Duer, 649, 8 How. 149. No affidavit is necessary for the purpose of that application, which is made upon the pleadings alone; lli'. ugh it would be prudent to be prepared with formal proof of service of those pleadings, in order to the bringing on of the motion, in case the opposite party should not appear. See Darrow \. Miller, above cited. In Woodworth v. Bellows, 4 How. 24, 1 C. R. 129,- cited in the In. ; chapter, judgment was given for the plaintiff at once, upon an answer merely directed to the adjudication of equities be- tween co-defendants, and nol setting up any defence whatever, jainsl ili<- plaintiff's right to relief. The form of b notice of motion for judgment as above, will be found in the Appendix. Of r-ourse, the above observations, PLAINTIFF'S COURSE ON ANSWER. 523 and the cases above cited, are equally applicable to the case of a frivolous reply, and to the application for judgment thereon, as indeed expressly provided by the section in question. Objections of the above nature cannot be split up into seve- ral motions. They must all be embodied in the original notice, or relief will not be granted on a subsequent application. Thus, in Desmond v. Wool/, 6 L. O. 389, 1 C. R 49, a motion to take a demurrer off the file as frivolous, was denied, a previous motion to set it aside as irregular having been made and failed. All possible objections to a pleading should accordingly be well considered, before moving to set it aside on any one ground; and, if more than one appear, the demand for relief should be shaped accordingly, and with sufficient comprehensiveness. § 164. A?nendrne?it of Complaint, and other Proceedings before final Joinder of Issue. If none of the above objections exist to the defence set up, or if any of them be taken and fail, the plaintiff, before taking the decisive course of either demurring or replying to that defence, where admissible, or of allowing the issue to go to trial, as it stands, should carefully look over the complaint a second time, and consider whether any new matter alleged by the defendant, has so far altered the statement of circumstances under which issue will have to be joined, as to render it expe- dient for him to amend his complaint ; or whether any other reasons exist, which may render such a course advisable, such as omissions on his part to put his case in the best possible light, facts subsequently come to his knowledge, or other considera- tions of an analogous nature. The present is the point at which a full consideration of this subject is peculiarly fitting, because, if he permit the twenty days allowed for reply, after the service of his adversary's pleading, to elapse without amending, it will be no longer competent for him to do so as of course there- after, and a special application to the court for leave for that purpose will be necessary. See Snyder v. White, 6 How. 321, and other cases before cited. Of course the above period of twenty days is spoken of, with the necessary reservation as to the effect of service by mail, where admissible, in doubling that period. The effect of an amendment, in putting back the 524 TLAINTIFF'S COURSE ON ANSWER. case, as it were, to the period of the original service of the complaint, and reopening it, both with reference to the nature of the answer which may be put in by the defendant, and the time which will be allowed to him for that purpose, will not be forgotten. If the defendant make an offer to the plaintiff, after the ser- vice of his answer, it gives the latter an absolute right to the ten days allowed to him by the Code; and no proceedings can be taken against him, until the ten days expire, or notice of acceptance be served. Walker v. Johnson, 8 How. 240. See also Pomroy v. Hulin, 7 How. 161. The right of a party to amend his pleading is, as a general rule, absolute, unless it be palpably apparent that the amend- ment is made for the purpose of delay. See this subject fully treated, and numerous cases cited in a previous chapter, treating of amendment of pleadings by the moving party. Other Proceedings, before Reply or final Joinder of Issued] — In Groshons v. Lyons, 1 C. K. (N. S.) 348, it was held that, where an answer of another action pending has been put in by the defendant, it will be irregular for the plaintiff to reply to such answer ; and that the proper practice will be for him to apply at once for a reference upon that particular point, the result of which will dispose of the preliminary question. See also Farm- ers' Loan and Trust Company v. Hunt, 1 C. R. (N. S.) 1. If the plaintiff do not consider any amendment to be neces- sary, and is satisfied to let the cause go to issue, on the plead- ings, as they are, the defendant's demurrer, when ta'ken, will have to come on for argument as an issue of law, in due course, and in the first instance, and before the trial of issues of fact, if such issues be raised collaterally in other portions of the pleadings. The measures for this purpose will be hereafter considered. A question is raised in the Farmers' Loan and Trust Company v. //"/r information thereof sufficient to forma belief; and I llege,in i i din \ and concise language, without repetition, any new matter, ool incon istent with the complaint constituting a de- fence to uch new matter in the answer ; it he may demur to ihe same f or insufficiency, tating in his demurrer the grounds thereof, and the plaintiff may di mur to one oi more of everal counter-claims s-ct up in the answer, and reply to the residn , The alteration effected by the last amendment in this respect REPLY, AND CONSEQUENT PROCEEDINGS. 527 is important, as, under the previous Codes, including that of 1851, the statement of any new matter whatever in the answer, constituting a defence, involved the necessity of a reply on the part of the plaintiff, in order to the due joinder of issue in regard to such new matter. Under the present section, such reply is only necessary, where the new matter so set up con- stitutes a counter-claim. In relation to other matter set up in the answer, it is provided by sec. 168, as now amended, that "the allegation of new matter in the answer, not relating to a coun- ter-claim, is to be deemed controverted by the adverse party, as upon a direct denial or avoidance, as the case may require." The letter of this last section seems clearly to relieve the plain- tiff from the necessity of a reply, in any case where no counter- claim is made, and to provide for the trial of an implied, instead of an expressed issue, upon any new matter, first raised by the answer ; and, that such is the practice, seems now settled by a preponderating series of decisions below cited. The question as to what will or will not be considered a counter-claim, has been already fully considered in the chapter on answer. In Roscoe v. Maison, 7 How. 121, the court held that, where a reply had been actually put in, and impeached for want of proper verification, the plaintiff, on the motion for that purpose, could not deny that he was bound to reply. In the same case, a disposition was shown, to consider every allega- tion hostile to the plaintiff's claim, as being in the nature of a counter-claim. In Malinger v. Lusk, 6 How. 480, the same learned judge contended at great length, and with great elabo- ration, that a demurrer for insufficiency would lie to an answer consisting of denials only, (the form of denial used being clearly objectionable,) and that an answer of that nature might and ought properly to be so disposed of; and Noxon v. Bentley, 7 How. 316; and Seward v. Miller, 6 How. 312, seem to favor the same construction. See also Hopkins v. Everett, 6 How. 159 ; 3 C. R. 150. Wisner v. Todd., 9 How. 143, lays down too the same doctrine, in relation to new matter not constituting a counter-claim. Bogardus v. Parker, 7 How. 303, is also referred to in the opinion in Salinger v. Lush, but, when examined, that case seems to be clearly dis- tinguishable from the latter, the allegations there demurred to, and which demurrer was allowed, being practically in the nature of a counter-claim. 528 REPLY, AND CONSEQUENT PROCEEDINGS. The counter propositions, viz., that an answer, consisting of denials only, or which merely alleges matter in defence not constituting a counter-claim, according to the definitions before given, effects a complete joinder of issue, express as to the mat- ters denied, and implied, as to those alleged by way of defence ; that an answer of this nature can neither be demurred nor re- plied to : and that, if interposed, such a demurrer or reply will be stricken out ; are distinctly laid down, and appear to be conclusively settled by the following series of decisions, viz. : Thomas v. Ilarrop, 7 How. 57 ; Bogardus v. Parker, 7 How. 303 ; Loomis v. Borshvmer, 8 How. 9 ; SilUman v. Eddy, 8 How. 122. (in which the doctrine laid down in Roscoe v. Maison, viz., that. on a question of verification, the plaintiff is precluded from de- nying that he was bound to reply, is expressly dissented from ;) Putnam v. Be Forest, 8 How. 146; Williams v. Upton, 8 How. 205 ; /Simpson v. Loft, 8 How. 231 ; Roosa v. Saugerties and Woodstock Turnpike Road Company, 8 How. 238 ; Quin v. Cham- bers, 1 Duer, 673 ; 11 L. O. 155. The practice in this respect may therefore be fairly considered as settled. There are, however, many cases, in which the exact limits, as to what will or will not constitute a counter-claim, may still be looked upon as doubtful. The governing test under these circumstances, would seem to be that, as to whether affirmative relief is or is not claimable by the defendant. Where such is the case, directly or indirectly, or even when there is any doubt on the subject, the omission to reply will be unadvisable, if not unsafe. Where, on the contrary, the allegations of the defendant are clearly and exclusively defensive, and their ten- dency is merely to abate the plaintiffs title to relief, and no fur- ther, the putting in a reply will clearly be as inexpedient as it would Id' unnecessary. Whether the operation of the amended section as it now ids, is, in all oases, beneficial, admits of more doubt. It amounts, in fact, t" b complete departure from the system so positively insisted <>n in other portions of the Code, viz.: that every question should now he tried on an express, and not an implied, issue; and it presents the additional inconsistency of abolishing the general issue ;it once, and enforcing it by actual statutory enactment, at another stage of the pleadings in the same action, There are many cases, in which these peculiar provisions may work very unequally, and even be productive of actual hardship. REPLY, AND CONSEQUENT PROCEEDINGS. 529 The Code provides, and most beneficially provides, that, where the plaintiffs allegations in his complaint are not controverted by the answer, he is relieved from the necessity of proving them on the trial ; a rule, equitable in itself, and of the greatest con- venience, with regard to the due and speedy administration of justice. There are, however, numerous instances, in which the defendant, though not making any thing strictly in the nature of a counter-claim, may yet by his answer set up an affirmative defence, which, if proved, will wholly extinguish the plaintiff's title as to relief; for instance, pleas of payment, accord and satisfaction, a release by deed, &c. &c. Under the Code, as it stood before the last amendment, both parties were put upon equal terms ; under this state of circumstances, both plaintiff and defendant were equally bound to admit or deny the facts in the adverse pleading ; and if, when the latter stated in his answer a complete affirmative defence, the former omitted to controvert that defence, the controversy was at an end pro tanto, and the defendant was then relieved from the necessity of proving facts that his adversary was unable to controvert. The amendment wholly abolishes this convenient and highly equitable rule, and places the two parties, under these circum- stances, on an unequal and somewhat unfair footing, relieving the one from the burden of proving, and holding the other to strict proof of facts which his adversary is unable to controvert. Another instance may be mentioned, in which, in practice the system has been found to work unequally. A suit was brought, in the case alluded to, for the price of goods sold and delivered. The vendors, in that case, had agreed to take the note of a third party in payment for those goods, being induced to do so by representations on the part of the purchaser, which turned out to be untrue, and which, as they contended, were fraudulently made. It was heretofore, and still is, clearly competent for parties standing in this position, to waive the tort, and sue on the con- tract of the purchaser, reserving their right to introduce evidence of the fraud alleged to have been practised upon them, in avoid- ance of the defendant's plea of payment, if made. It is clear that the measure of proof, in such a case, would be less strict than in one where the fraud itself, and not the con- tract out of which that fraud arose, was made the gravamen of the action ; and that an equitable view of the whole transactioa 34 530 REPLY, AND CONSEQUENT PROCEEDINGS. might, under these circumstances, be fairly taken, both by the court and the jury, on evidence which, in strictness, would be insufficient to sustain a verdict in tort. The case now in question stood in this position, and presented the peculiar and anomalous feature, that the main issue, upon which the whole case, in fact, turned, was not merely not expressed, huh could not be expressed, upon the pleadings, under the Code, as it now stands, as interpreted by the decisions before cited ; and the case, had it proceeded to trial, would have been, necessarily and unavoidably, tried on an issue, which nowhere appeared, and which could not appear, on the actual pleadings. It is singular, too, that, on the last amendment, section 154, which clearly points to the pleadings being brought to a final and definite issue, by allegations admitted or denied on both sides, according to the Code, as it stood before the recent changes, has been left wholly unamended. In Williams v. Upton, 8 How. 205, and Quin v. Chambers, 1 Duer, 673, 11 L. 0. 155, the courts have supplied that defect, by a construction of s. 154 in harmony with the last amendment. In the latter case, the rule is laid down as follows: "Section 154, to be sensible, must now be construed as speaking of new matter, to which the plaintiff has a right to reply or demur at his election. It must be construed and applied, as if the word counter-claim, instead of the word defence, was contained in it." In Wisner v. Teed, 9 How. 143, this section was considered by the court as controlling s. 153, and as authorizing a demurrer to new matter in an answer, of any description ; but this case seems clearly overruled by those before considered. In cases of gross insufficiency in the answer, a motion for judgment under s. 247, may possibly afford relief, under this state of circumstances. § 107. Demurrer to Answer. The law on the subject of demurrer to answer is, in a general point of view, the same us thai, as of demurrer to complaint, the chapter on which head should accordingly be referred to. The scope of the former is, however, of a more restricted nature, inasmuch as it will only lie for insufficiency; the other five head.-: of objection, pointed out in section 141, as cited in that chapter, being inapplicable to this stage of the action. REPLY, AND CONSEQUENT PROCEEDINGS. 531 Demurrer, at this stage, is subject to precisely the same general conditions as demurrer on the part of the defendant. The grounds must be distinctly stated, and the facts in relation to the answer, or particular ground of defence demurred to, must not be traversed, so as to create an issue of fact on the same allegation. Thus, in Clark v. Van Beusen, 3 C. R. 219, averments, first, that the plaintiff had no knowledge or infor- mation as to allegations contained in the answer; and, second, that such allegations contained no fact, constituting any defence; were held to be bad, as regarded the latter portion of the sen- tence, such portion being in effect a demurrer, without admit- ting the allegations demurred to, but, on the contrary, raising an issue of fact thereon, and thus falling within the general principles on that subject, as before laid down. If a demurrer of this description be partial in its nature, intrinsically considered, its being entitled at the commencement as a demurrer to the whole answer, will not have the effect of extending its operation to portions of that answer not comprised within the objections actually taken, by way of admission of facts, or otherwise. Matthews v. Beach, Court of Appeals, 12th April, 1853; reversing 5 Sandf. 256. The cases in which a demurrer to answer will now be wholly inapplicable, under the recent amendment of s. 153, have been cited, and the matter fully considered, in the last section. The question of what will or will not be considered an insufficient answer, has also been previously discussed, and authorities adduced, in the chapter on that pleading, under the head of Insufficiency, and likewise under the general head of Essential Requisites of Pleading. The following cases were chiefly decided under the Code of 1849, and, therefore, do not affect the principle above laid down, that a demurrer to answer will no longer lie', except in respect of new matter constituting a counter-claim ; or, where those decisions are more recent, the point appears not to have been raised, and the parties to have been content to have the judgment of the court with regard to the intrinsic merits of the objection taken, without regard to the formal mode of its taking : Demurrer will not lie to part of an entire ground of defence. Cobb v. Frazee, 4 How. 413, 3 C. R. 43, before cited, under the head of Demurrer. See, likewise, Watson v. Husson, 1 Duer, 532 REPLY, AND CONSEQUENT PROCEEDINGS. 242. So, also, in Smith v. Greenin, 2 Saudf. 702, it is laid down that a plaintiff can demur to an answer, only for defects in re- spect of the new matter set up by way of avoidance. He can- not demur thereto in respect of irrelevant and redundant matter, or in respect of indefinite or uncertain allegations. His remedy, in those cases, is by motion under sec. 160 : nor will a demurrer lie, in respect of an omission to deny allegations in a complaint, as prescribed by sec. 149. If not denied, the matter must, under sec. 168, be taken as true. Of course, in both these cases, a motion, under sec. 160, to strike out the matter objected to, would have been the defendant's proper remedy. See other decisions to a similar effect cited in the previous chapters. A long and elaborate discussion on the subject of demurrer to answer, will be found in the recent case of Fry v. Bennett, 5 Sandf. 54, 9 L. 0. 330, 1 C. E. (N. S.) 238, decided by the general term of the Superior Court, and by which the au- thority of Smith v. Greenin, above cited, is fully confirmed. In the course of the opinion of the court, delivered by Duer, J., the following general principles are laid down: " If those parts of the answer which are covered by the demurrer, tender a plain issue on any material allegation in the complaint, or set up a valid defence, the demurrer must be overruled ; while, on the other hand, it must be allowed, if the issues which are formed are wholly immaterial, or the defences set up are insuffi- cient in law." "An answer is deemed insufficient in the sense of the Code, not only where it sets up a defence which is groundless in law, but when, in the mode of stating a defence, otherwise valid, it violates those primary and essential rules of pleading, which the Code has studiously retained. Allegations of mitigating circumstances were held to be demurrable in that particular case, such allegations forming part of an attempted justification, not sufficiently pleaded. If matter of this last de- scription 1"' pleaded, it ought distinctly to appear that it was introduced for that purpose onlyj and not relied on in bar to the action, otherwise demurrer will lie It was also held that the omission t>> demur to portions of the answer, containing matter of this nature, hut no defence to the action in general, formed no ground of objection to the demurrer as put in; and, likewise, that the que tion as to whether a publication is, or is not privi- leged, may properly be raised on demurrer. REPLY, AND CONSEQUENT PROCEEDINGS. 533 In Newman v. Otto, 4 Sandf. 668, 10 L. 0. 14, it was held, on similar grounds to those laid down in Fry v. Bennett, as above cited, that matter pleaded in mitigation only, is not a defence, either in whole or in part, and is therefore not a subject of de- murrer, nor is the plaintiff bound to traverse such matter in his reply. See, likewise, to the same effect, Matthews v. Beach, 5 Sandf, 256. Nor is this ground affected by the reversal of that decision by the Court of Appeals, 12th April, 1853, which proceeds on others, wholly independent of it. In Hyde v. Conrad, 5 How. 112, 3 C. E. 162, a general de- murrer, that " the facts stated in the answer did not constitute a sufficient defence," was upheld, as a sufficient statement of the grounds of demurrer for insufficiency. The answer in that case, was simply the old plea of "plene administravit," which, as before stated under the head of Answer, was held in that ease, and also in Belden v. Knowlton, unreported, to be no de- fence at all. The same doctrine is laid down in Anibal v. Hun- ter, 6 How. 255 ; 1 C. E. (N. S.) 403 ; and Arthur v. Brooks, 14 Barb. 533. If, however, an objection exist to the answer, and be not stated amongst the grounds of demurrer, it cannot be raised on the argument; the plaintiff will, on the contrar}', be confined to the objections specifically taken. Kneiss v. Seligman, 5 How. 425 ; 8 Barb. 439. Before the recent amendment of sec. 153, it was held to be competent for the plaintiff to demur to a denial in the answer. Hopkins v. Everett, 6 How. 159 ; 3 C. E. 150. A conjunctive denial of three separate allegations was there held to be bad: "The denial should have been of each charge disjunctively, if the defendant intended to put the whole of them in issue." See also to the same effect, Salinger v. Lush, 7 How. 430 ; and Wisner v. Teed, 9 How. 143. Under the amended section, this course is now inadmissible, as above shown. A motion for judgment, under sec. 247, would seem, therefore, to be the proper course under a similar state of circumstances. In Lewis v. Kendall, 6 How. 59 ; 1 C. E. (N. S.) 402, a de- murrer to answer in slander was allowed, on the ground of such answer being hypothetical. See, likewise, Sayles v. Wooden, 6 How. 84; 1 C. E. (N. S.) 409; Buddington v. Davis, 6 How. 401 ; Arthur v. Brooks, 14 Barb. 533. In the same cases, argu- mentative statements, and, in the last of them, the setting up 534 REPLY, AND CONSEQUENT PROCEEDINGS. matter in avoidance, without admitting that, but for such avoid- ance, the action could be sustained, were likewise held to be demurrable defects. In The People v. Van Rensselaer, 8 Barb. 189, a demurrer to answer was allowed, on the ground that a simple allegation of adverse possession was bad, as against the people, in an action brought by them for recovery of real property ; and that the facts of such adverse possession, or of an adverse title, must be specially pleaded. This case is, however, overruled by The People v. Arnold, 4 Comst. 508. See heretofore, under the heads of Answer, and Limitations. In Seivard v. Miller, 6 How. 312, it was held that an answer, containing a general, instead of a specific denial of the plaintiff's case, as required by the Code of 1851, was insufficient, and demurrable as such. The former practice is, however, restored by the last amendment, and a general denial is now admissible, as before noticed. An answer, assuming to answer the whole complaint, but which only showed a defence to part, was held bad upon de- murrer, in Thumb v. Walrath, 6 How. 196 ; ICE. (N. S.) 316. In Wilson v. Robinson, 6 How. 110, a demurrer was allowed to an answer in false imprisonment, it appearing that the arrest complained of had been made, without jurisdiction having been duly acquired by the officer who issued the warrant. In Gregory v. Levy, 12 Barb. 610 ; 7 How. 37, it was held that the sureties on a bail - bond were estopped from denying the liability of their principal to arrest, and a demurrer to an- swer was allowed on that ground. Where a material issue is tendered by the pleadings, as they stand, a demurrer cannot be allowed, however improbable the defence may appear, in relation to the proofs to be adduced on the trial. Dimon v. Bridges, 8 How. 16. In Tlr People v. Banker, 8 How. 258, a demurrer to an an- swer alleging a tender, was allowed; the allegations in relation to the amount and nature of such tender being defective. On the argument of a demurrer to answer, it is competent for the defendant to go behind it, and attack the complaint as defective J but the grounds of his attack must be such, as would have entitled bim to a judgment, had he elected to demur in- stead of answering. If they fall short of this, he cannot do so. Fry v. Bennett, above cited ; Schwab v. Fumiss, 4 Sandf. 704, 1 REPLY, AND CONSEQUENT PROCEEDINGS. 535 C. K. (N. S.) 342. See likewise The People v. Clarke, 10 Barb. 120, affirmed by Court of Appeals, 31st Dec.,' 1853 ; /Stoddard v. Onondaga Annual Conference, 12 Barb. 573 ; Noxon v. Bentley, 7 How. 316; The People v. Banker, 8 How. 258. It was held, however, in the last case, that, under these circumstances, the defendant must be held to have waived all objections to the complaint, except those for want of jurisdiction, or insufficiency, as provided in sec. 148. After the allowance of a demurrer to an answer, the defend- ant has a right to amend, as of course, except only when such amendment is made for delay, in which case, the court will strike it out, or impose terms. Cooper v. Jones, 4 Sandf. 699. § 168. Reply. In relation to the subject of reply, it must be borne in mind that, under the Codes, whether original or amended, this plead- ing has never been necessary, where the answer did not con- tain allegations of new matter. If such answer amount to nothing more than a mere denial or traverse of the plaintiff's case", a sufficient issue is joined on the pleadings as they stand. See observations at the commencement of the chapter, on the effect of the recent amendment, extending this same principle, to all defensive allegations whatsoever, where no counter-claim is set up, and numerous cases there cited. The following decisions are, for the most part, more peculiarly referable to the law on this subject, as it stood before the amendment in question. The main principles laid down in them, are, however, usually of general application; embracing the mode of pleading under the present, as well as under the recently repealed system. In Isham v. Williamson, 7 L. 0. 340, after deciding that the plaintiff's right to take objections to irrelevant matter in the answer was gone by delay, the learned judge proceeded as fo 1 - lows: "The plaintiff, however, need not be embarrassed in his reply, by reason of any irrelevant matter in the answer. State- ments which have nothing to do with the case, and are, there- fore, immaterial, expressions of opinion merely, and insinuations tending to throw discredit on the motives of the plaintiff, if found in the answer, need not be replied to." "It is only a 536 REPLY, AND CONSEQUENT PROCEEDINGS. material allegation, which, if not controverted by the answer or reply, is to be taken as true." Sec. 168. See, also, Barton v. Sackett, 3 How. 358, 1 C. E. 96, below cited. It is obvious that the proper course would, in the cases last cited, have been to move under sec. 160. See, likewise, this subject considered, and other cases cited heretofore, in relation to demurrer. Nor, if the defendant himself present immaterial matter in his an- swer, can he object to the plaintiff's reply thereto as immaterial, though it may be unnecessary. King v. Utica Insurance Com- pany, 6 How. 485. In Van Gieson v. Van Gieson, 12 Barb. 520, 1 C. E. (N. S.) 414, it was held that where, in an action on a promissory note, payment was alleged by the answer, the latter allegation was not one of new matter, requiring a reply, to prevent its truth from being considered as admitted. It has also been held that an answer, merely denying the plaintiff's case, and containing no new matter, need not be re- plied to. The defendant, in this case, cannot move for judg- ment under sec. 154 ; his remedy is to notice the cause for trial. Brown v. Spear, 5 How. 146, 3 C. E. 192, 9 L. O. 97. Where the defendant served an answer, and a demurrer annexed to it, and subsequently, after reply, served what was called an amended answer, but which was in fact another copy of the former answer, without the demurrer, it was held that the plaintiff was not bound to serve a second reply, and the de- fendant's motion for judgment was denfed with costs. Howard v. The Michigan Southern Railroad Company, 5 How. 206, 3 C. R. 213. The plaintiff, as respects reply, has the same power to tra- verse new matter, by denial of knowledge, &c, sufficient to form a belief, as the defendant has with regard to answer. Such a reply controverts specifically, and is sufficient to raise an issue. Doremns v. Lewis, 8 Barb. 124; Gilchrist v. Stevenson, 9 Barb. 9. In BeaU v. Cameron, 3 How. 414, where the defendant plead- ed that another suit was pending for the same cause of action, and tlic plaintiff replied that that suit was discontinued, such reply was held to be good, it being true at the time when it was put in. In order, however, to such diseontinuance being effectual, an order must be duly entered, and notice served upon the defendant. A reply merely alleging that the suit was discontinued by notice to that effect, will be insufficient. Averill REPLY, AND CONSEQUENT PROCEEDINGS. 537 v. Patterson, Court of Appeals, 7th Oct., 1853. Nor, if omitted at the time, can the order for that purpose be properly entered " nunc pro tunc' 1 after the trial, so as in effect to overrule the defence of the pendency of another suit, and which, by reason of such omission, was then valid. Bedell v. Powell, 13 Barb. 183. The questions which have arisen as to real estate cases re- moved from a justices' court, have been already noticed, and the conflicting cases on the subject cited, under the heads of Answer, and of the jurisdiction of those tribunals. It is now settled, that the pleadings in these cases must follow the ordi- nary form, and that a reply, where requisite, is admissible, which at first was doubted. An answer, merely denying joint ownership on the part of plaintiffs who sued as partners, was held in Walrod v. Bennett, 6 Barb. 144, to be material, and necessary to be replied to. Under the recent amendment, no reply would be necessary, a sufficient issue being already raised. Where a lien claimed by the defendants, was denied by the reply, such denial was held to be sufficient to warrant the in- troduction of evidence of fraud in relation to such lien, though none was specifically alleged. Wager v. Ide, 14 Barb. 468. Allegations in reply, setting up the incorporation of the de- fendants, in order to controvert a denial of that incorporation in the answer, need not be more specific than those in a com- plaint, in a suit brought by such corporation. They need not show any thing beyond the general fact of incorporation, every thing beyond being mere matter of evidence, and the subject of proof, and not of pleading. Stoddard v. Onondaga Annual Conference, 12 Barb. 573. In Barton v. Sachett, 3 How. 358, 1 C. B. 96, it was, under the original Code, held unnecessary to reply to allegations as to the legal construction and effect of written instruments, or as to the intent and meaning of parties in executing a written con- tract. The adverse party's right to treat uncontradicted aver- ments as admitted, was there held to be confined to averments of fact, and not to extend to allegations of the nature above referred to, though, of course, an averment of mistake or sur- prise in executing such agreement, would have been different. The cause of action stated in the complaint cannot be altered by the reply, nor will the objection be waived, by the party's pro- 538 REPLY, AND CONSEQUENT PROCEEDINGS. ceeding to trial without demurring. Brown v. McCune, 5 Sand- ford, 224:. In Merritt v. Slocurn, 1 0. E. 68, 3 How. 309, the plaintiff was allowed to reply upon terms, after the cause had been actu- ally heard before a referee, on an allegation that his attorney had omitted to do so through mistake. If the plaintiff omit to reply to a set-off claimed by the de- fendant, he cannot take an inquest for the whole of his claim, without deducting the amount of that set-off. Potter v. Smith, 9 How. 262. No particular form is necessary with respect to the reply to be put in. The allegations in it, as directed to the new matter necessary to be traversed or met by counter allegations, are, "mutatis mutandis" precisely similar to those in answer, and are subject to all the same incidents, as to form of averment or otherwise. Of course, the utmost attention will be paid to leave no material averment in relation to a counter-claim uncontra- dicted, especially as it seems very doubtful whether a reply can be amended at all, without special leave of the court. The pro- visions in sec. 172, do not seem to reach the case, inasmuch as, no answer being required or admissible, there can be no " pe- riod for answering," within which, as there prescribed, an amendment may be made as of course. Eule 87, inserted on the recent revision, which provides that, in all cases of more than one distinct cause of reply, the same shall not only be separately stated, but plainly numbered, must be carefully observed for the future. It would seem that, in certain cases, a reply may be unad- visable, without previous proceedings, in the nature of a refer- ence, or otherwise. See Groshons v. Lyons, 1 C. R. (N. S.) 348. If such a case should occur in practice, of course an order, extending the time to reply until after the result of the proceed- ing, should be applied for; a notice to the adverse party may probably !><•, necessary. § 1G9. Defendant's Course on Service of Reply. Motion to : irikc out, &c. Demurrer in /ieply.'] — On service of the reply, the defendant has two courses open to him for test- ing the sufficiency of that pleading. REPLY, AND CONSEQUENT PROCEEDINGS. . 539 The first of these courses, is the power to move to strike out irrelevant or redundant matter, which has been before treated of, and the cases cited, in the introductory chapter, and in those as to complaint and answer. The second of these courses, is a demurrer to such reply as insufficient, as especially provided for by sec. 155. It will be seen, that this power is precisely analogous to the plaintiff's right to demur to the answer, as commented upon in the earlier portion of this chapter, and that the observations there made, or referred to, are equally applicable. The following cases have especial reference to the subject of demurrer, as above : A reply, not involving a traversable fact, but merely stating a conclusion of law, will be held bad upon demurrer. Beniley v. Jones, 4 How. 202 ; in which case the plaintiff merely denied "that the defendant had any interest in the premises," without showing how he became divested of an interest, alleged by his answer to be vested in him. In Iiae v. The Washington Mutual Insurance Company, 6 How. 21, 1 C. E. (N. S.) 185, a demurrer to reply for insufficiency, stating various grounds of objection, and pleading that the reply was insufficient on the ground of those defects, was re- fused to be stricken out as frivolous, though no opinion was given as to the ultimate result of such demurrer. The motion there made, i. e., that the demurrer should be stricken out, was held not to be for judgment on the demurrer, under sec. 247, and that, therefore, such motion could not be granted under that section, or on the short notice of five days thereby prescribed. See Darroio v. Miller, 5 How. 247, 3 C. E. 241, before cited. In Shewn v. Hooker, 12 Barb. 563 ; 6 How. 167 ; 10 L. 0. 49, an action brought against two adult joint contractors, and de- fended on the ground of a third not having been joined, a reply that such third joint contractor was an infant, was held to be good, and that the action was well brought ; and, the defend- ant having demurred, judgment was given for the plaintiff upon the demurrer. This judgment was, however, subsequently reversed, and the reply held to be bad, in Slocum v. Hooker, 13 Barb. 536. It might possibly be held that it is also competent for the defendant to move, under sec. 152, to strike out an objectionable 540 REPLY, AND CONSEQUEOT PROCEEDINGS. reply, as a " sham or irrelevant defence." See Rae v. Washing- ton Mutual Insurance Company, above cited ; though it may per- haps admit of a doubt, whether that section can be legitimately extended, so as to include other defences than those made by answer. Another proceeding open to the defendant, if the circum- stances admit, is to move for judgment on the reply as frivo- lous, under section 247. See previous observations as to this remedy, both generally, and in reference to a frivolous demur- rer or answer. Motion for Judgment on Failure to Reply .] — An important re- medy is also given to the defendant by sec. 154, which runs as follows : § 154. If the answer contain a statement of new matter constituting a defence, and the plaintiff fail to reply or demur thereto within the time prescribed by law, the defendant may move, on a notice of not less than ten days, for such judgment as he is entitled to upon such statement, and, if the case require it, a writ of inquiry of damages may be issued. Though, in terms, somewhat inconsistent with section 153, as it now stands amended, no doubt this section will be held to be controlled by that amendment, and that, where new matter in the answer goes to defence only, and does not constitute a counter-claim, a motion of this description will be inadmissible. See Williams v. Upton, 8 How. 205 ; Quin v. Chambers, 1 Duer, 673 ; 11 L. 0. 155, before cited. See, however, per contra, Wisner v. Teed, 9 How. 143, also above noticed, but apparently overruled. In Brown v. Spear, 5 How. 146, 3 C. R 192, 9 L. 0. 97, it was held, that the above section clearly relates only to an an- swer which relies on new matter constituting a defence, and not to an answer by which the plaintiff's case was merely tra- versed, qo material additional matter being stated. It was held that all the papers needed on such a motion are the summons, complaint, answer, and notice of motion. Where, however, the plaintiff is not likely to appear, it would be advisable to be prepared with formal proof of the service of the pleadings, on which to ground the order bv default. See Darrow v. Miller i 6 How. 217 ; 8 ( '. Ii'. 241. For form of notice of motion, see Appendix. REPLY, AND CONSEQUENT PROCEEDINGS. 54I It seems clear that, if any allegation in the answer constitute, if admitted, a complete defence, the defendant, on the plaintiff's failure to plead thereto, may proceed under the above section. The test as to the admissibility of a motion of this descrip- tion would seem to be, whether the defence set up in the an- swer is, in its nature, integral or collateral. In Corn-stock v. Hal- lock, 1 C. K. (N. S.) 200, it was held that " when an answer sets up as a distinct and substantive defence, a denial of the cause of action ; and also, as may be done, sets up new matter in avoid- ance or bar, it will not be proper to give judgment for the de- fendant on motion, because of the want of a reply to such new matter, for the reason that there still remains an issue of fact, which is still to be disposed of, and which may yet terminate the suit in favor of the plaintiff. But, when the distinct cause of defence is substantially new matter, and, in pleading it, it becomes necessary to deny some of the allegations in the com- plaint, and there is no other denial in the pleading than such denial, forming, as it does, part of the defence of new matter ; if the plaintiff omits all reply, the case comes within the 154th section of the Code, and judgment may be given for want of a reply." A motion for that purpose was accordingly granted in that case, the facts bringing it within the principle above laid down. The observations above made have reference to the Code of 1851, and the previous measures. Under the recent amend- ments, a motion of this description would seem to be impracti- cable, except in the case of a counter-claim, exceeding the plaintiff's demand, and omitted to be replied to. If the plaintiff omit to reply to a counter-claim in part, he cannot take an inquest for the whole of his claim, without allowing that counter-claim. Potter v. Smith, 9 How. 262. A motion of the above description cannot be made at cham- bers. A judge has no power, out of court, to render a judgment on this ground. Aymar v. Chase, 12 Barb. 801, 1 C. R. (N. S.) 330. An omission, at the time, to make a motion of this description, does not preclude the defendant from demanding such a judg- ment, on the actual trial of the cause. Bridge v. Payson, 5 Sand- ford, 210. Amendment of Answer, .] — If none of the above courses be taken by the defendant, and the reply disclose new facts, neces- 542 REPLY, AND CONSEQUENT PROCEEDINGS. sary to be met by counter-allegations on his part, before issue can be properly joined on the pleadings as they stand, it is com- petent for him to amend his answer as of course, within the usual period after service of the reply. Cusson v. Whalon, 5 How. 302, 1 C. R. (N. S.) 27 ; Seneca County Bank v. Garling- house, 4 How. 174, and other cases before cited, under the head of Correction of Pleadings. Of course, if he take that step, he does so, subject to the contingency of the plaintiff's amending his complaint in consequence, and of the whole circle. of plead- ing having to be gone through a second time. From the time of the service of the reply, issue is to be con- sidered as finally joined, subject, during the period allowed him for that purpose, to the defendant's right to amend. Notwith- standing the temporary existence of that right, the plaintiff is, nevertheless, at liberty to proceed with the cause, by serving notices of trial, &c, &c, immediately after the reply is served, and is bound to do so at once, if the defendant waives his right to amend, either by express notice, or by noticing the cause himself. Cusson v. Whalon, 5 How. 302, 1 C. R. (N. S.) 27, above cited. If, however, he take judgment within such period, and without such waiver on the part of the defendant as above, he does so at his peril, and under the risk of having such judg- ment set aside, if the defendant serve an amended pleading in time. Washburn v. Herrick, 4 How. 15, 2 C. R. 2 ; Dickerson v. Beardsley, 1 C. R. 37, 6 L. 0. 389. § 170. Final Joinder of Issue. Effect of on Pleadings. Admission of Facts not controverted. The above proceedings being exhausted, issue is now joined, and the effect of the completion of the pleadings, as regards spe- cific allegations <>f fact, is laid down by section 168, as follows : §108 Every materia] allegation of the complaint, not controverted by the answer, as prescribed in section one hundred and forty-nine; and every material allegation of new matter in the answer, constituting a counter-claim, nut controverted by (lie reply, as prescribed in section one hundred and fifty-three, shall, for tli<- purposes of the action, be taken as true. Hat, the allegation of new matter in the answer, not relating to a counter claim, or of new matter in a reply, is to be deemed controverted by the adverse party* aa upon a direct denial or avoidance, as the ca-e may leijuire. REPLY, AND CONSEQUENT PROCEEDINGS. 543 The effect of the recent amendments in this section, in rela- tion to averments in answer, assimilating the practice to that already existent as regards reply, in cases where no counter- claim is set up, has been already noticed. It will be seen that, by this section, and also by the corre- sponding provisions in the previous measures, any new matter alleged in the reply, need not be specifically traversed by any subsequent pleading, and does not conclude the defendant in any manner. Unless, therefore, such new matter constitute a feature in the case, which necessitates an attempt to join issue in some other form than that presented by the existent plead- ings, it will be scarcely worth while for the defendant to amend his answer as above, inasmuch as his power of bringing in any -description of evidence, not entirely impertinent to the issue, as joined by the pleadings as they stand, is thus specially saved, without the necessity of any further measures on his part. An omission to reply to a complete defence will be a fatal objection, and one that may be taken on the trial, notwithstand- ing the party may have neglected to make a previous motion on the subject, as allowed by s. 154. Bridge v. Pay son, 5 Sandf. 210. Such an omission, and the consequent admission of the fact not controverted, is conclusive, in every stage of the suit, and is sufficient ground for the court to disregard either the report of a referee, or the verdict of a jury to the contrary. A reply or answer may, however, be allowed, nunc pro tunc, if otherwise proper. Willis v. Underhill, 6 How. 396. If the plaintiff omit to reply to a partial counter-claim, he cannot take an inquest for his whole claim, without allowing that amount. Potter v. Smith, 9 How. 262. Nothing, however, will be held to be admitted by an omission to controvert it, except what is well pleaded. See Harlow v. Hamilton, 6 How. 475 ; Stoddard v. Onondaga Annual Confer- ence, 12 Barb. 573; Fry v. Bennett; Isham v. Williamson, and numerous other cases, heretofore cited, in this and the preceding chapters. Of course, co-defendants, possessing several interests, are not bound by each other's answers, or by any admissions contained therein. Still less is a defendant, who has not answered at all, bound by the ■ pleading of one who has. See Woodworth v. Bellows, 4 How. 24, 1 C. R. 129. 544 REVIVOR, AND SUPPLEMENTAL PLEADING. CHAPTER VII. REVIVOR AND SUPPLEMENTAL PLEADING. Before passing on to the ulterior proceedings consequent on the joinder of issue, the subjects treated of in this chapter require notice, because, where admissible, the steps in question involve in all cases a formal, and in some, a material change of the issue to be tried, as joined by the original pleadings. The subjects so requiring to be treated at this juncture are twofold, viz: 1. Revivor; and, 2. Supplemental Pleading. § 171. Revivor, <$fc. The provision of the Code on this subject is contained in sec. 121, and runs as follows: § 121. No action shall abate by the death, marriage, or other disa- bility of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the court, on motion, at any lime within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued, by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party ; or the court may allow the person to whom the transfer is made, to be substituted in the action. It will <>(' course be observed, that a premium is here given to diligence, and that, if the plaintiff move at once in the mat- ter, his course i easier and simpler than that which he will be obliged to pursue, in case he delay his application fur more than one year after the Buil has abated. In the latter case, a supple- mental complaint must be filed, and the whole course of pro- Qeeding will be precisely analogous to that on a bill of revivor REVIVOR, AND SUPPLEMENTAL PLEADING. 545 and supplement under the old chancery practice. The works on that subject may therefore be referred to, and the directions there given followed, both as to the form and mode of proceed- ing; and likewise as to obtaining the leave of the court in the first instance. See Greene v. Bates, 7 How. 296, confirming the view here taken. Of course, the filing of a bill of revivor and supplement, in- volves, as of necessity, the service of fresh process, and implies a power to the defendant to put the fresh matter in issue, in the usual form. It will be remarked that the provision, that actions shall not abate by death, marriage, disability, or transfer of interest, is only applicable to those cases where the cause of action survives or continues. The rule of " actio personalis moritur cum per- sona, 11 still holds good as to all others not falling under this de- scription: such as actions for personal torts, and others of a like nature. It will be seen also, that transfer of interest does not, per se, create an abatement, but that the action may still be continued in the name of the original party, if thought expe- dient, notwithstanding such transfer. See Sheldon v. Havens, 7 How. 268. The contrary course was, however, pursued, and sustained by the Court of Appeals, in Hastings v. McKinley, 7th Oct., 1853. The case is otherwise as to death, marriage, or any other disability, by the occurrence of which, the person entitled to sue or to be sued becomes either non-existent, or personally incapacitated from continuing or defending the action, as origi- nally brought. Of course, in almost all cases, the parties entitled to revive, will avail themselves of the short and speedy method here pointed out, in the event of the application being made within one year from abatement. The provision in question pre- scribes that the application for this purpose shall be made upon motion; but, for obvious reasons, it seems expedient that such motion should be grounded upon a petition, duly verified. See Rules 38 and 39. The facts necessary to induce the court to grant an order of this description being substantive facts, going directly to the right of the substituted party to sue, it is- most important that the statement of those facts should appear fully and directly upon, and should, in fact, form part of the record. No doubt they might be shown by affidavit, without petition ; and there seems no positive obstacle to an order being 35 546 REVIVOR, AND SUPPLEMENTAL PLEADING. granted on an ordinary notice of motion, as was done in Wal- dorph v. Bortlc, 4 How. 358 ; but still, for the reasons above cited, petition will be the more convenient form. See, too, William- son v. Moore, 5 Sandf. 647, below cited, with reference to peti- tion being, in some cases, the necessary form of application. When the application is made by the representatives of a deceased plaintiff alone, they are the proper petitioners ; but, if there be other co-plaintiffs, those co-plaintiffs should be joined. This appears clearly necessary, though no provision is made upon the subject; and, inasmuch as all the plaintiffs to an action must, of necessity, act in concert, and be represented by the same party, it can, for the most part, involve no practical incon- venience. Where the suit has abated by the death of a defend- ant, the former plaintiffs should be the petitioners. Where the application is by the transferee of an interest, he is of course the proper applicant. A clear prima facie right to continue must be shown, or the order cannot be granted. See St. John v. West, below cited. The Code being entirely silent as to the course of proceeding in relation to an order of this description, the practice upon the subject can only be gathered by induction, or by analogy with the course pursued on a bill of revivor and supplement, under the old practice. Where an order of this description is made for the mere con- tinuation of the suit by a new plaintiff, the order is almost as of course, on a proper prima facie case being shown, but not, where the right to revive is in any manner doubtful. It would seem that, in clear cases, this application may be made ex parte, especially where the defendant has not appeared. See Thayer v. Mead) below cited. The better practice will, however, be to give notice to all the defendants, in all except the very simplest cases, either in the ordinary form, or by means of an order to show causa A copy of the order for revivor, or continuation, when made, should be served on every defendant, and, where made on affidavit, copies of the affidavits should be served also. Witli this service the proceeding would seem to be complete. An issue us to the right of the substituted party to sue, being tendered by the order itself, and the proceedings on which it is ground' 1 !, no amendment of the complaint seems to be required. The substantive allegations of that pleading, and the relief de- manded by it, remain as before, and the mere substitution of REVIVOR, AND SUPPLEMENTAL PLEADING. 547 one name for another, works no real change in the position of the defendants. If it do so, or if the right of the party to con- tinue be doubtful, it will then be competent for the former, either to oppose the granting of the order in the first instance or to move to vacate it afterwards, on affidavit showing it to have been improvidently granted. Where a supplemental com- plaint is necessary, of course a copy of it must be served in the usual manner. Such would seem to be the proper course, where the order is to revive or continue, by the substitution of a fresh plaintiff: where the application is against the representatives or success- ors in interest of a deceased defendant, the points to be pro- vided for are more in number. In this case, service of notice of the application, on the parties proposed to be substituted, is absolutely necessary, and, of course, such service must be per- sonal, there being no attorney in the action, as regards those parties. The better mode of doing this would be by servino- a copy of the petition, with a notice of motion subjoined, or, if the parties be. merely formal, and if no substantive relief be de- manded against them, an ordinary notice might suffice. It may be questionable, whether the remaining original defendants if any, are not entitled to notice also ; and the safer course will be to give it in all cases, and likewise to serve a copy of the order, when made, upon the parties in question. The motion having been made in due course, a copy of the order thereon should be personally served upon each new defendant, and, with it, should be served a copy of the original summons and complaint, or a copy of the summons and notice of object of suit, in cases where no personal relief is demanded. Where, however, such party has formally appeared by attorney on the motion, and such attorney be willing to accept service in the usual manner, personal service may be dispensed with. If such new defendant have any personal interest in the matter, it would seem to be competent for him to put it in a fresh an- swer, if so advised. If so, the cause will then have to go through the ordinary forms, from that point, in relation to any new issue tendered by him ; but where, on the contrary, such defendant is a mere representative, without any personal interest, and his testator or intestate has already answered, it will be neither ne- cessary nor advisable for him to plead afresh. Of course, where any of the new defendants are infants, the usual forms as to 548 REVIVOR, AND SUPPLEMENTAL PLEADING. the appointment of a guardian ad litem must be complied with, before'the plaintiff will be in a situation to proceed against them. See Putnam v. Van Buren, 7 How. 31, below cited. Forms of petition for the above purposes, and of the order thereupon, will be found in the Appendix. In cases of disability, by marriage, lunacy, or otherwise, supervening after issue joined, an application, under sec. 122, for the purpose of bringing in the additional parties rendered necessary, such as, for instance, the husband of a marrying party, or the committee of one becoming lunatic, &c., &c, will afford the proper remedy. The following decisions have been made under the Code, in relation to the above subject: In O'Brien v. Hagan, 1 Duer, 664, it was held that, when the plaintiff or defendant in a civil suit is sentenced to imprison- ment in the State Prison, though only for a term of years, the suit is thereby abated, and a revivor will be necessary. The provisions of sec. 121 were expressly rendered retro- spective, by sec. 2 of the supplemental acts of 1848 and 1849, but, notwithstanding, the following difficulties have been sug- gested : In Phillips v. Brake, 1 C. R. 63, the court appears to have considered, that an order could not be granted, to revive a suit commenced before the passage of the Code, unless the defend- ant consented to such course; and that the only proper remedy, in such case, was a bill of revivor and supplement, under the old practice. It may probably be held, however, that the sub- sequent amendment in section 459 has obviated this objection. In Vrooman v. Jones, 5 How. 369, 1 C. R. (N. S.) 80, it was held, that the above section, notwithstanding that it is in terms made retrospective by section 2 of the supplemental act, cannot be 80 considered, with reference to transfers of interest, which took place, previous to the passage of the Code. It would, if so, be unconstitutional, as tending to lix upon the transferees of such interei t, the general costs of the suit, for which, under the old pra tice, they were not liable This seems, on the con- trary, to be a permanent objection, wherever the circumstances admit of it.- being taken. In Sheldon v. Havens, 7 Sow. 268, where one of two plaintiffs had assigned to the other, and died subsequently, and an appli- cation was made, by the administrator of the latter, that the REVIVOR, AND SUPPLEMENTAL PLEADING. 549 suit should be continued in his own sole name, the court con- sidered, that the interests of the defendant, with a view to .the costs of the action, should be taken into account; and an order was made, that the original co-plaintiff should be continued, the administrator being also let in. Where the right to revive is, prima facie, of course, it seems that no counter allegation will avail to deprive the party of it. Thus, in Wing v. Ketcham, 3 How. 385, 2 C. E. 7, it was held that the administrator of a deceased plaintiff might continue an action under a money contract, notwithstanding an affidavit by the defendant, that such deceased plaintiff had assigned his demand before the commencement of the suit; the court refused to try, upon affidavits, a point which involved the merits of the action. Leave was, however, given to the defendant, to amend his answer accordingly. Although, where such an application is made by the admi- nistrator of a'deceased plaintiff, in ordinary cases, it may proba- bly be made ex parte, still, where there is any thing unusual in the application, notice ought to be given. Thus, in Thayer v. Mead, 2 C. E. 18, it was held that, where an administrator had been changed, it was irregular to revive the suit in the name of the new administrator, by an ex parte application, the defendant having appeared; but that such application could only be made upon notice. The order removing the adminis- trator appears, in that case, to have been under appeal, at the time when the ex parte application was made by the substituted party. Where a non-resident defendant dies, pending service by pub- lication, and before the expiration of the period prescribed for that service, no action is pending, that can be revived against his representatives. McEicen's Executor v. Public Administrator, 3 C. E. 139. In Moore v. Thaye^, 10 Barb. 258, 6 How. 47, 3 C. E. 176, the doctrine here laid down was so far confirmed. An attachment having, however, been granted in that case, during the lifetime of the deceased, it was held that the suit was thereby commenced, notwithstanding that the service of the summons remained incomplete; and the decision in Mc- Eiverfs Executor v. The Public Administrator, was reversed on that ground. In Waldorph v. Bortle, 4 How. 358, it was decided, that a motion, to continue an action of ejectment against the heirs of 550 REVIVOR, AND SUPPLEMENTAL PLEADING. a deceased defendant, was correct: the court throwing out a dic- tum, (though that question was not at issue,) that, if there were a third person in the occupation of the premises, he ought also to be made a -defendant. In Putnam v. Van Buren, 7 How. 31, it was considered, on the contrary, that the heirs of a deceased defendant are not his successors, or rather, as expressed in the opinion, his survivors, in interest ; and that an order could not be made against infant heirs under those circumstances. This conclusion is, however, doubtfully expressed, and seems, when examined, more than doubtful. The order there made was, though, clearly sustain- able, on other grounds. It did not appear by the petition in that case, that the heirs there in question were in possession, or that they asserted any hostile claims; nor had the petition been duly served on the proper parties, but only on the attorney for the ancestor, who had no authority to appear. It was, there- fore, held, and, doubtless, correctly held, that the plaintiff should have shown, affirmatively, that he could not obtain possession without making the heirs parties, and that the latter should have had an opportunity to elect, whether they would continue or abandon the action. A guardian should have been first appointed, and then the papers for the motion should have been served on him. On the death of one of several plaintiffs in ejectment, leaving a will, under which three points were doubtful, 1. Whether the trustee under that will would take the title to the lands, or only a power in trust; 2. Whether the devisee could or could not be regarded as a citizen capable of inheriting real estate ; and, 3. Whether, under these circumstances, the title had not passed to the State by escheat; A motion to add the names of the trustee, the devisee, and the people, as plaintiffs in the place of the testator, was denied, and that denial sustained upon appeal. It was held, that the party applying to continue a suit, must make out a clear prima fade ease, showing bimself to have succeeded to the title with- out question; and /ioi/nton v. //"///, 1 Dcnio, 53, was cited to that effect. It was further held that, if a mere case of doubt were made OUt, the right secured by the statute did not attach, and that that statute g;ive no right of experimenting as to the proper party. It was, however, conceded, in the course of the REVIVOR, AND SUPPLEMENTAL PLEADING. 551 opinion, that, if tlie application had been for the court to deter- mine, upon the facts presented, which of the three parties had succeeded, and to substitute such party, it might probably have been entertained. A doubt was also thrown out as to whether the people, claiming under escheat, could continue an action at all, as "successors" to a deceased party; and it was held, on the contrary, that theirs is a prior right, become paramount by the extinction of that upon which the action is founded, and there- fore not coming within the terms of the statute. St. JoJui v. -West, 4 How. 329, 3 C. E. 85. In Hatfield v. Bloodgood, 1 C. E. (N. S.) 212, it was held that the provision of the Code, authorizing a suit to be revived against the executor of a deceased party, applies as well to the defendant in a cross bill, as to the original suit. In AveH.il v. Patterson, Court of Appeals, 7th Oct., 1853, it was considered, with reference to the necessity of a formal order of discontinuance, that a suit may be revived after any lapse of time, there being no Statute of Limitations upon the subject. In Hastings v. McKinley, 8 How. 175, it was held, that the provisions of sec. 121 do not apply to cases pending in the Court of Appeals, and that the necessary relief, to enable the representatives of a deceased party to continue an appeal, may be granted on motion, according to the former practice of the court, without the necessity of any application to the court be- . low, or of any supplemental complaint being filed. The question as to what is the effect of such an order on any ulterior proceed- ings in the cause, in the event of a new trial being granted,and the cause being remitted to the court below, does not appear to have arisen. It might well be argued that, in that state of cir- cumstances, a supplemental complaint would become necessary, with reference to the second trial ; and, in case of such a state of circumstances arising, an application to obtain the further relief, or settle the question, would appear unquestionably pru- dent, if not necessary, though, of course, after the decision in the court above, and not pending the appeal. In Ridgeway v. Bulkley, 7 How. 269, it was held that the de- fendant, in case of the decease of the plaintiff, is entitled, as of right, to an order that it be continued in the name of his repre- sentative. In Miller v. Gunn, 7 How. 159, the representatives of a de- 552 REVIVOR, AND SUPPLEMENTAL PLEADING. fendant, who died after judgment in the plaintiff's favor, and pending an appeal to the general term, were held entitled to have the suit revived against them, though the action itself was a personal action ; on the ground that, though such revivor was not essential for the purposes of the then pending appeal, their right to appeal farther, if advised, was necessary to be secured to them. The death of a party, after judgment, and pending an appeal, does not, however, create an abatement, or render a revivor ne- cessary, so far as that specific appeal is concerned. Same case. Nor will the death of the party, after the hearing of a cause by the court, but before its actual decision, work an abatement. An order may, on the contrary, be obtained for the entry of the judgment nunc pro tunc, as of the day of the trial, and the re- medy of the representative will be by appeal from that judg- ment. It is not analogous to the case where the plaintiff dies after trial, and before verdict. Elite v. Moyer, 8 How. 244. See likewise, Diefendorf v. Howe, 9 How. 243. Where one of several joint plaintiffs dies, pending an action, the cause of which, survives, the defendant cannot take judg- ment against the survivors, without an order that the action proceed in favor of the surviving plaintiff. That order is ob- tainable on the motion of either party, and is an absolute pre- requisite. If omitted, the judgment will be irregular, and must be set aside. Holmes v. Honie, 9 How. 383. In Greene v. Bates, 7 How. 296, it was held, in accordance with the views before laid down, that the proper course to be pursued by a defendant, in the event of a neglect on the part of the plaintiff's representative to revive, after abatement by the hitter's decease, was to obtain an order, requiring the repre- sentative to file and serve a supplemental complaint of revivor within thirty days, or that the original complaint should be dismissed with costs. In Williamson v. Moore, 5 Sandf. 647, the same course was i to be both admissible and proper, with reference to the representatives of deceased co-plaintiffs, with a view to secure, either a revivor or a dismissal of the complaint, so far as their into ■, re conci mi d, the cause of action in that case being one that merely continued, but did not survive. It was held that Buch an order was only obtainable on petition, and not on motion in the ordinary form. Such an order cannot however REVIVOR, AND SUITLEMENTAL PLEADING. 553 be obtained, as against the other surviving co-plaintiffs. They, as such, had a right to proceed with the suit, without regard to the collateral interests. The suit, as to them, might be dismissed for want of prosecution, but not for a neglect to revive. In Taylor v. Church, 9 How. 190, 12 L. O. 156, it was held that, where one of several joint plaintiffs, suing as partners, died, pending the suit, it was not necessary to obtain an order under sec. 121, to enable that suit to be continued by the sur- vivors, but that the old course of entering a suggestion on the record, as provided by the Revised Statutes, was both admis- sible and proper to be pursued. The proceeding by motion, it was there held, was more peculiarly applicable to those cases where, under the old practice, the remedy was by scire facias. The course of obtaining an order under sec. 121, is, however, clearly admissible in all cases, and seems that most calculated to avoid ulterior difficulty. § 172. Supplemental Pleading. The Code provides on this subject as follows: § 177. The plaintiff and defendant respectively, may be allowed, on motion, to make a supplemental complaint, answer, or reply ; alleging facts material to the case, occurring after the former complaint, answer, or reply ; or of which the party was ignorant when his former pleading was made. This provision is, as will be seen, in direct analogy to the plea "puis darrein continuance," under the old practice. Proceed- ings in the nature of a bill of revivor under the last section, fall necessarily under this section also, when the application is made more than one year after abatement. A supplemental complaint, is not an addition to the origi- nal, but in the nature of another original complaint, which, in its consequences, may draw to itself the advantages of the former. Furniss v. Brown, not reported, per Edmonds, J. Where the original assignee of trust property, made a defend- ant as such, had died before appearance, and a new trustee had been appointed in his stead by the court, it was held that the proper mode of making such new trustee a party, was by sup- plemental complaint. If he had been the only party defendant, a new original complaint would have been proper. Johnson v. 554 REVIVOR, AND SUPPLEMENTAL PLEADING. Snyder, 7 How. 395. It was also held, in that case, that the set- ting out the contents of the original, in the supplemental com- plaint, though perhaps unnecessary, was not a demurrable objection. "Where new matter, occurring subsequent to the service. of the original complaint, requires to be pleaded, a supplemental complaint will, in all cases, be necessary. Such new matter can- not be introduced, bj T way of amendment of the original plead- ing ; and, if so introduced, will be stricken out. Hornfager v. Hornfager, 6 How. 13, 1 C. E. (N. S.) 180. This defect is, however, capable of waiver, by a defendant made a party by amendment, in case he appear generally. The insertion of allegations of this nature by amendment, is an irre- gularity, but does not render the pleading an absolute nullity, where no substantial rights are affected. Beck v. Stephani, 9 How. 193. When cross actions, the one for assault, and the other for slander, had been brought between the same parties, and the de- fendant in slander had pleaded the assault of his adversary in mitigation of damages, and that action had been first tried, and a verdict for six cents damages found in consequence; the defend- ant in assault was allowed to put in a supplemental answer, pleading the facts of the former trial. Bradley v. Houtaling, 4 How. 251. Although a supplemental answer is clearly a substitute for the old plea of "puis darrein continuance" it differs from it in this respect, that it may be put in at any time, and not, as for- merly, with reference to the last continuance. When the facts sought to be pleaded, amount to an entire satisfaction of the cause of action, and, if established, will utterly extinguish the rights of the plaintiff, it is the duty of the court to allow the application, without regard to the time of its making. Brought v. CurtU8 t 8 How. 66. Where, however, the facts sought to be pleaded, were known to the defendanl at the time of his former answer, leave to file a supplemental one w;ts refused. Houghton v. Skinner, 5 How- ard, 420. A plaintiff who has continued an equity cause by bill of re- vivor and supplement, cannot afterwards discontinue, without payment of tlie costs of both suits from the beginning. Fisher v. Hall 9 How. 269. REVIVOR, AND SUPPLEMENTAL PLEADING. 555 Applications to be brought in, by Persons not Parties.] — Analo- gous to the subject of supplemental pleading, is the power of persons, not parties to the suit, but interested in its result, to apply for leave to be brought in as such, under sec. 122. This subject has, however, been already fully considered in the pre- vious chapter on parties. See that chapter, sec. 31, and the cases there cited. 556 JOINDER OF ISSUE, CONSOLIDATION, &c. BOOK VIII. OF PROCEEDINGS BETWEEN ISSUE AND TRIAL. CHAPTER I . joinder op issue, general consequences of, including Consolidation of causes. The pleadings having thus been brought to a close, issue be- tween the parties is now definitively joined, and ready for trial. § 173. Issue, generally considered. Principal Issues.] — The issues so joined are thus defined by the Code, in sees. 248 to 251 inclusive: § 248. Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party, and controverted by the other. They are of two kinds: 1. Of law ; and, 2. Of fact. fcj i.'l!». An issue of law arises, J. Upon a demurrer to the complaint, answer, or reply, or to some part thereof. § 250. An issue <»f fact arises, 1. Upon a material allegation in the complaint controverted by the answer ; or, 2. Upon new matter in the answer controverted) either by the reply, or by the Bpecia] provisions <>f Bee. L68; or, .'). I '[ion new ni;il ler in the reply. § 251. [siuei, both "f law and of fact, may ari^e upon different parts of the pleadings in the Bame action. In such eases, the issues of law must be first tried, unless the court otherwise direct. JOINDER OF ISSUE, CONSOLIDATION, Ac. 557 In Van Gieson v. Van Gieson, 12 Barb. 520, 1 C. R. (N. S.) 414, it was held that a sufficient issue was taken, by an answer averring payment of a promissory note sued upon, without any reply being put in ; and the following definition of an issue is given: "An issue is joined, where there is a direct affirmation or denial of the fact in dispute; and it makes no difference whether the affirmative or the negative is first averred." It will be seen that, by the above clauses, three distinct spe- cies of issue are created : 1. The issue of law pure : arising where the defendant de- murs alone to the adverse pleading, without answering or reply- ing to it, as to the facts. 2. The issue of- fact : where the defendant simply answers or replies to such adverse pleading, without taking any separate objection in law thereto, or to any part thereof; and, 3. The mixed issue ; where the defendant demurs to part, and answers part of the complaint, or demurs thereto by answer, in respect of latent defects ; or, where, in like manner, the reply demurs in part to the answer, and alleges new matter in avoid- ance as to the residue. The mode in which an issue, when joined, is brought to trial, and the preliminaries necessary for that purpose, will form the subject of the succeeding chapters. Characteristics of.~\ — The issue of law being complete upon the pleadings, no preparation is necessary for the purpose of bringing it to trial, except the ordinary proceedings of noticing and setting down the cause. In issues of fact, however, or mixed issues, various preliminary proceedings may be required, before the cause is in a fit state for submission to the court or jury; to the consideration of which, the chapters immediately succeeding will be devoted. Though belonging more peculiarly to that portion of the work which treats of Trial, the case of Warner v. Wigers, 2 Sandf. 635, may be here noticed, as applicable to the provision that the issues of law shall be first tried, unless the court shall otherwise direct. The Superior Court there held that, where the issue of fact had been actually tried before the issues of law, without objection at the time, and on regular notice by both par- ties, it was to be deemed as having been first tried by order of the court ; and the future practice of that tribunal was then an- 55S JOINDER OF ISSUE, CONSOLIDATION. Ac. nounced to be as follows, viz. : — " That whenever a cause was moved on the trial calendar, in which there was an issue of law pending, the court would then determine whether the issue of fact should be first tried, or not, and it should not be necessary to obtain a previous order on the subject.'' Another observation may be made with respect to mixed is- sues. In the case of demurrer by answer, where the facts in respect of which the demurrer arises, are, of necessity, contro- verted by the plaintiff under the statutory general issue, pro- vided for by the last amendment of sec. 168, a conjoint trial of the issues of law and fact is now inevitable, however the ques- tion might have stood previous to that enactment ; unless the coarse sugg ssted in the d< cisi osl I >w cited be adopted. In T7(i Fan ■:■■-' Loan and Trust Cvmjxiny v. Hunt, 1 C. R. (N. S.) 1. (a ease where the on raised was the pendency of ss action for relief, which the defendant was entitled to . m, under his answer as put in.") it was considered that a re- ference, to inquire whether the two proceedings were for the same sause, agreeably to the former chancery practice, would be the prop - :. The point was not, however, directly decided , the motion having ienied on other grounds. This conclu- sion is supported ' • v. I is, 1 C. K. (N. St) 34S. where the same doctrine is held, with I ! to the defence of another ction pending, set up by answer. The practice is one of ob- vious convenience, and, in the event of a question of this nature arising, an application in the above form may be safely recom- mended. The principle that issues of law should be first tried, I in Cochr.i i v. Webb, -i Sandf. 658. ' p.] — In addition to the above, another descrip- tion ss may be noti i. . . issue upon a collateral feet, not joined upon the pleadings, but triable by 3S rder of the cour', in place of the fei .. - le under the former | The provision of the Code in this r - - contained in 7. - Hows: — insl ! r ".in ihe sue, or wi '. jury, an order for 1 plainly, the tHr &1 all be the only .1. JOINDER OF ISSUE, CONSOLIDATION, Ac. 559 This form of issue is peculiarly applicable in divorce cases. See Eules 67, 68 and 69 of Supreme Court. In cases not falling under section 253, and therefore primarily triable by the court, a special issue of an analogous nature may be obtained. See Eule 70. In this case, a motion must be made for the purpose, within ten days after issue joined, and the court or judge may then settle the issues, or refer it to a referee to do so, as there pre- scribed. "When once joined, this form of issue is triable in the ordinary manner. Preliminary Proceedings between Issue and Trial. General Notice.'] — Before an issue of fact, either simple or mixed, can advantageously be brought to trial, several interlocutory pro- ceedings may often be necessary or advisable. They may be divided into three general classes : 1. Proceedings with a view to bring on the trial of the issues joined, at onCe, without going through the ordinary forms. 2. Proceedings with a view to the more convenient or advan- tageous trial of those issues, in the ordinary mode. 3. Proceedings with a view to the preservation of the subject- matter of the controversy, pendente lite, or to the satisfaction of admitted portions of the plaintiff's demand : Which will, accordingly, be treated of in the above order. § 174. Consolidation of Causes. When more than one suit has been commenced by the same plaintiff against the same defendant, in respect of causes of action which may be joined, the latter possesses the power of moving that such proceedings be consolidated; and, where one of such suits is pending in the Supreme Court, that tribunal may order the proceedings in other courts to be consolidated with that within its own cognizance. This is a proceeding under the old practice. The statutory provisions on the subject will be found at 2 K. S. 383 ; the two first sections of art. IV., chap. VI. of Part III. The application should be made in the second suit commenced; if made in the first, it cannot be entertained. Farmers 1 Loan and Trust Company v. Hunt, 1 C. E. (N. S.) 1. The plaintiff also possesses the power of consolidating suits 560 JOINDER OF ISSUE, CONSOLIDATION, Ac. commenced against joint and several debtors. See third section of same article. Where two suits for the same cause of action are pending in the courts of different States, although the pen- dency of such other suit in another State is not a ground of demurrer, (see Burrowes v. Miller, 2 C. R. 101, 5 How. 51,) nor can any order be made interfering with the jurisdiction of the sister tribunal ; still, on manifest oppression being shown, the court will so far grant relief, as to suspend all proceedings in the New York cause, until the plaintiff shall have elected in which suit to proceed, and shall have suspended the other accordingly. Hammond v. Ba7cer, 3 Sandf. 704 ; 1C.R. (N. S.) 105. The principle of compelling the defendant to elect was ex- tended, in the Farmers'' Loan and Trust Company, v. Hunt, 1 C. R. (N. S.) 1, and Fabbrieotti v. Launiiz, 3 Sandf. 743, 1 C. R. (N. S.) 121, to the case of a party, seeking to avail himself of matter pleaded by way of recoupment, and in respect of which he had likewise brought a cross action. It was decided that, on a proper application, (which, it was held in the former case, ought to be made in the cross action,) he might be put to his election, either to proceed in his suit, or to confine himself to his recoup- ment. " If he elect the former, then he maybe prohibited from setting up the matter in this suit; if the latter, then the pro- ceedings in the former action may be stayed." Where, too, several suits against the same defendant depend upon one question, the court will stay those subsequent to the first, the defendant stipulating, if unsuccessful therein, to contest only the question of damages in the others. Mac Farlan v. Clark, 2 Sandf. 699. In Clark v. The Metropolitan Bank, 5 Sandf. 065, where the plaintiff had commenced sixty-four separate suits for penalties, and which suits wen; divisible into two main classes, the motion for an actual consolidation was denied, in the first instance, but, on terms that the plaintiff was to notice and bring to trial one suit of< and that the proceedings in the other suite were to be stayed until after the trial of those selected: with liberty to the defendants in the regaining causes, after such trials, to renew their motion for b consolidation, or further stay; and alike liberty to the plaintiff to move for a consolidation, unless the defendants in the remaining causes should consent to abide the ultimate result of the proceedings in the former; in which event, the plaintiff was not to be entitled to any further costs, for putting the subsequent causes on the calendar. PROCEEDINGS TO ACCELERATE DECISION. 561 The court, however, will not grant a remedy of this descrip- tion, when the effect would be to prejudice the rights of any of the parties. Thus, when a receiver of the property of an in- solvent corporation had been obtained, at the suit of a judgment creditor, under the statute, proceedings for the appointment of a receiver, at the suit of a creditor at large, were refused to be stayed; because, though the proceedings in the judgment creditors' action might be amended, so as to make it a proceed- ing for the benefit of all interested, it was in the option of the plaintiff whether he would amend or not ; and, because a re- striction imposed on the receiver in the proceedings under the statute, that he should do nothing in hostility to rights of the judgment creditor, deprived him of a power most essential to the doing complete justice in the premises. Dambman v. The Empire Mill, 12 Barb. 441. The proper period for a motion of this description, is after answer put in; and, if the plaintiff amend his complaint, it should be deferred until after the second answer. Leroy v. Be- dell, ICE. (N. S.) 201. The form of notice for that purpose will be found in the Appendix. CHAPTER II. OF PROCEEDINGS FOR THE PURPOSE OF BRINGING THE CAUSE TO A SPEEDIER DECISION. § 175. Motion for Reference. The proceeding for the above purpose, more peculiarly appli- cable to this stage of the action, is the motion for a reference ; which, in effect, brings on the cause for immediate trial, without the necessity of its awaiting its turn, or taking its place upon the regular calendar of the court ; and accordingly, when this course is admissible, it presents obvious advantages. Keferences may be defined, as consisting of three kinds : 1. Eeference of the whole issue, or of any one or more of the issues in the action, for decision by the referee. 36 562 PROCEEDINGS TO ACCELERATE DECISION. 2. Keference to take an account, for the information of the court. 3. Interlocutory references, of questions not bearing upon the main issue. The succeeding observations will be confined more peculiarly to the subject of obtaining an order for any of the above pur- poses, at the stage of the action now under consideration; and the general incidents of the order thus obtained. The proceed- ings before the referees, when duly appointed, will be entered upon hereafter, in the chapter entitled Trial by Keferees. The reference, at this stage of the cause, may be either by consent, or on special application. The following are the pro- visions of the Code upon the subject, as contained in sections 270 and 271: § 270. All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties. §271. Where the parties do not consent, the court may, upon the application of either, or of its own motion, except where the investiga- tion will lequire the decision of difficult questions of law, direct a refer- ence in the following cases : 1. Where the trial of an issue of fact shall require the examination of a long account on either side ; in which case, the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein ; or, 2. Where the taking of an account shall be necessary for the infor- mation of the court, before judgment, or for carrying a judgment or order into effect; or, 3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in. any stage of the action. Bij (foment.] — When the reference is by consent, of course there will be no difficulty in obtaining the sanction of the court to this proceeding. All that is required will be to obtain a regular order, upon the consent thus given. This can be done ex j)unih<- liwoisc, 8 How. 159. Voluntary Dismissal In/ I'luiiitiJJ.'] — It is, of course, competent for a plaintiff to move to dismiss his own complaint, at any time PROCEEDINGS TO ACCELERATE DECISION. 573 before trial, on payment of costs to the defendants who have appeared, and possibly without such payment, under circum- stances of hardship, where he has been taken by surprise by the defence ; as, for instance, by the pleading of an insolvent's discharge, when the fact of such insolvency was unknown to him at the time the suit was first brought. A plaintiff, however, who has once obtained a decree, cannot afterwards obtain an order to dismiss his own bill, unless with the consent of all the defendants. Picabia v. Everard, 4 How. 113. Short Causes, Hearing of, in First District.] — The following special Rule has been made by the judges of the Supreme Court in this district, in analogy to the English practice in Chancery, of setting apart one day in each week, for the hearing of short causes, certified as such by counsel. It has been and is exten- sively acted upon, and is eminently calculated to obviate, in part, the inconvenience occasioned by the great pressure on the Circuit Calendar in that district. A plaintiff, adopting this course, adopts it, however, at the risk of his cause losing its original priority, in the event of the application being made, in a case really and properly contested by the defendant, and not capable of being fitly disposed of within the limited time al- lowed. The courts are strict in enforcing this penalty under these circumstances, and the result of such an application, so made, will be delay, instead of acceleration. The following is the order in question : SPECIAL CIRCUIT CALENDAR. At any circuit, until further orders, any causes belonging to either of the two following classes, may be placed on a special circuit calen- dar, unless the trial is likely to occupy more than one hour : 1st. Where the action is on contract, and the answer merely denies the allegations in the complaint, without setting up any new matter. 2d. Where the actionis on contract, and new matter is set up in the answer, and there shall be reason to believe that the defence is made only for the purposes of delay. To entitle the cause to be placed on such calendar, the plaintiff's at- torney must give notice, four days before any Monday in the circuit, that he will move on such Monday to have the cause placed on such calendar; and the motion will be heard on such Monday, and, if granted, the cause may be heard on the following Friday. 574 CHANGE OF VENUE. If the motion be founded on the belief that the defence is for delay, affidavits must be served at the time of notice. The plaintiffs attorney must also deliver to the clerk of the circuit, a like notice also, four days before such Friday, containing also the number of the cause on the general circuit calendar. The same motion may be made on any day before the judge at chambers, on notice of four days. If the cause shall actually occupy more than one hour on the trial, the trial may be suspended at the discretion of the court, and the cause be put down at the foot of the calendar. CHAPTER III. OF THE CHANGE OF VENUE. This subject has been partially entered upon in a previous chapter, in reference to the ordinary application, on the ground of the venue being laid in a wrong county, on demand to that effect under section 125 ; that form of proceeding can only, however, be adopted before answer, as there provided. See that chapter and the cases there cited, as respects that form of application, and likewise as to the question as to what will or will not be considered the "proper county," with reference to the nature of the proceeding, the residence of the parties, or the jurisdiction of the court. It will be there seen that, in actions of a strictly local nature, the demand that the trial be had in the proper county is a matter of right ; and, likewise, that the convenience <»i' witnesses will form no bar to applica- tion on the preliminary ground in the first instance, it' made in due time. Tin; application now in question is of a totally different na- ture, and is inadmissible altogether at the stage of the action at which ili'' other is appropriate, resting, as it does, on wholly different grounds. CHANGE OF VENUE 575 § 177. Motion to Change Venue. Powers of the Court.'] — In the Codes of 1848 and 1849, no pro- vision whatever was made, as regards this branch of the subject, though relief of that nature was uninterruptedly administered by the courts, under their former powers. Express provision is, however, now made by the amendment of 1851, in the latter portion of section 126, which runs as follows : The court may change the place of trial in the following cases : 1. When the county designated for that purpose in the complaint is not the proper county. 2. When there is reason to believe that an impartial trial cannot be had therein. 3. When the convenience of witnesses and the ends of justice would be promoted by the change. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed, unless other- wise provided by the consent of the parties, in writing, duly Bled, or order of the court; and the papers shall be filed or transferred accord- ingly. It would seem by this section as it now stands, that the court possesses power to change the venue at any time, on the ground that it has been laid in the wrong county, even though the defendant may have omitted to make a demand to that effect in the first instance, as provided for by the preceding clause. The more usual grounds, however, on which an application of this nature will have to be made, will be those named in the second and third subdivisions. The practice on motions of this description is now distinctly defined by Rules 44 and 45 of the Supreme Court, which run as follows : Rule 44. — No order to stay proceedings for the purpose of moving to change the place of trial shall be granted, unless it shall appear from the papers, that the defendant has used due diligence in preparing for the earliest practicable day after issue joined. Such order shall not stay the plaintiff from taking any step, except giving notice and subpoe- naing witnesses for the trial, without a special clause to that effect. On presenting to and filing with the officer granting the order, an affidavit, showing such facts as will entitle the plaintiff, according to the settled practice of the court, to retain the place of trial, the officer shall revoke 576 CHANGE OF VENUE. the order to stay proceedings; and the plaintiff shall give immediate notice of such revocation to the defendant's attorney. Rulk 45. — In addition to what has usually been stated in affidavits concerning venue, either party may state the nature of the controversy, and show how his witnesses are material ; and may also show where the cause of action, or the defence, or both of them, arose. Addi- ditional facts will be taken into consideration by the court, in fixing the place of trial. Mode of Application.'] — The above rules settle the question as to the proper time of making a motion this description. It is only appropriate after issue joined, but then it must be made at once and without delay, or the remedy will be lost. Before the adoption of those rules, the question as to the proper period for making this peculiar application was much debated. In one class of cases it was held that it was only ap- propriate at the outset of the cause, and before issue joined. See Beardsley v. Dickerson, 4 How. 81 ; Schenck v. McKie, Id. 246, 3 C. R. 24, and Myers v. Feeter, Id. 240. In another, the view was taken which has since been carried out in the rules above cited, viz.: that immediately upon the joinder of issue will be the fitting period. See Lynch v. Mbsher, 4 How. 86, 2 C. R. 54 ; Clark v. Pettibone, 2 C. R. 78 ; Barnard v. Wheeler, 8 How. 71 ; Mixer v. Kuhn, 4 How. 409, 3 C. R. 106 ; Hartman v. Spencer, 5 How. 135. See likewise, Mason v. Broivn, 6 How. 481 ; Hinchman v. Butler, 7 How. 462. The actual joinder of issue will govern, without regard to any objections that may have been informally made: as, for instance, in relation to a reply objected to, but unsustainably, on the ground of imperfect verification. The application must be made upon notice of motion, which should be in the usual form, following the exact words of the subdivision on which the application is grounded, and it should include in its terms an interim stay of proceedings, if such stay be requisite, as, otherwise, no measure on the part of the plain- till' will be suspended, except only the actual preparations for trial. See Rule I 1. A form is given in the Appendix. The mo- tion niii.-i. as before stated, be made with all possible diligence. The proceeding is, in all respects, similar to that under the old practice, tin: books as to which, and the eases there cited, may be consulted. See, in particular, Note at 4 Hill, 62, (Brittan v. /' abody.) It must be grounded on affidavit made by the party himself, CHANGE OF VENUE. 577 or reasons shown why it is not so made, in the same form as was usual under the former practice ; and, as heretofore, it is absolutely essential that the usual affidavit of merits should either be incorporated in, or should accompany that moved on. See Lynch v. Mbsher, 4 How. 86 ; 2 C. K. 54 ; and Mixer v. Kuhn, 4 How. 409, 3 C. E. 106, before referred to. See also, Jordan v. Garrison, 6 How. 6, 1 C. R. (N. S.) 400. The affida- vit of merits, and its requisites, will be found considered here- after, under the head of Preparations for Trial. The affidavit itself must conform in all respects to Rule 44, as above cited. See form in Appendix. Though couched in lan- guage of permission, the wording of that rule amounts, in fact, to a requisition that the affidavits on such an occasion should be explicit on the points there referred to. It is not necessary to make any formal demand whatever, preliminary to a motion of this description, as in the case of an application under subdivision 1 of the section in question. Hinchman v.' Butler, 7 How. 462. Prior to the making of the rules above cited, it was held that the delay of a term would not be a positive bar to a motion to change the venue, unless the defendant had been clearly guilty of laches in not moving earlier : if such were the case, it would form a sufficient ground for denying the motion. Lynch v. Mosher, 4 How. 85, 2 C. R. 54, before cited. In that case, however, although laches had been committed, in not moving at once, the plaintiff had not suffered by it, in consequence of an accidental circumstance, which would have prevented the cause from being tried, if it had been regularly on the calendar. Under these circumstances, liberty was given to the defendant to renew the motion, (which was denied on other grounds,) pro- vided he did so at once, and so as not to delay the plaintiff. It seems doubtful whether this doctrine holds good, under the rules, as they now stand. Motion on ground of Prejudice.'] — On the motion under subdi- vision 2, it will evidently be necessary to make out a very clear case, showing that an impartial trial cannot be had, in the dis- trict nominated by the plaintiff. The bias of the courts will be strongly in favor of retaining the place of trial, unless "the inability to obtain a fair and unprejudiced jury be clearly estab- lished." The People v. Wright, 5 How. 23 ; 3 C. R. 75. The 37 578 CHANGE OF VENUE. mere existence of excitement in the county, and of the matter in question having been the subject of newspaper discussion, and the expression of the belief of the witnesses who swore to those facts, that it was "very doubtful" whether a fair and im- partial trial could be had in the county of venue, were there considered insufficient grounds for a change, on the ground of local prejudice. The cases under the old practice will be found collected in the opinion. The exertion of undue or improper influence on the part of one of the parties, if sworn to, would, however, in all probability form a sufficient ground for such a motion. See The People v. Webb, 1 Hill, 179, as there com- mented upon. Convenience of Witnesses.] — The same case, i. e., The People v. Wright, is very explicit on the subject of motions under subdi- vision 3, i. e., for a change on the ground of the convenience of witnesses. The county in which the majority of the witnesses reside, irrespective of the distance which those witnesses might have to travel, was there held to be the governing principle in all instances; and the case of Hall v. Hull, 1 Hill, 671, is refer- red to as settling the practice in this respect. The conclusion of the court is laid down in the following terms: " It appears, then, that there is a very large number of witnesses residing in the county of Eensselaer, whose convenience will be best pro- moted by trying the cause there, and that all the facts to be inquired into arose in that county. That is, therefore, empha- tically the proper place for trial." These views require some qualification, as appears by the cases below cited. If, however, it is patent upon the pleadings, that the issue, on which witnesses, resident in another county, arc alleged to be requisite, is obviously untenable, the motion will be denied. Hartiiian v. Spencer, 5 How. 135. The earlier cases on the subject of the change of venue will be found collected, 1 Hill, p. 629, et scq., in the note to the case of Brittain v. Peabody t above referred to. It is clear from them that, if the defendants positively swear to a greater number of material viritnesses than the plaintiff, the change of venue is, cceteru paribus^ almost as of course. The plaintiff, in opposing such a motion, must make, too, an unqualified affidavit. Slier- wood v. Steele, L2 Wend., p. 294. [n that case plaintiff swore to one more witness than the defendant, but in a qualified man- ner, under which circumstances the motion was granted. CHANGE OF VENUE. 579 Although the greater number of witnesses is the more usual element which will govern the decision, it will not do so as of course in all cases. The value of their testimony, to be shown under the advice of counsel, will also be taken into considera- tion, with reference to the granting or denying such a motion. Anon., 1 Hill, 668. This last principle was fully carried out by Harris, J., in Bernard v. Wheeler, 3 How. p. 71, who states the law as follows: "In determining the question between the par- ties, a preponderance of witnesses, to say the least, should not be regarded as a controlling circumstance. The experience of the entire legal profession, for many years, has painfully proved, that very little can be learned from affidavits, made upon a mo- tion to change the venue, as to the real number of witnesses who will, in fact, be required to attend upon the trial of a cause. The courts are authorized to order the cause to be tried in an- other court, on good cause shown therefor. In determining whe- ther such cause has been shown, the court can generally relv more safely, upon the nature of the case to be tried, and upon the facts and circumstances, connected with the transactions which are the subject of investigation in the cause, than the number of witnesses sworn to be material by either party." The advantage of the affidavit on which the motion is ground- ed being full and explanatory, is evidenced by the case of Jordan v. Garrison, 6 How. 6, 1 C. E. (N. S.) 400. The defendant there named sixteen witnesses, and swore specifically as to the testimo- ny to be given by them. The plaintiff swore to eighteen witnesses in the county of venue, and also stated the effect of their proba- ble testimony. Only one of those witnesses, however, appeared to be clearly necessary, and the plaintiff had not denied or ex. plained away any of the statements in the defendant's affidavit. The court, under these circumstances, laid down the principle that the place of trial of a transitory action, should be in the county where the principal transactions between the parties occurred, and where it appears the largest number of witnesses who know any thing of the transaction sued upon reside. A bare majority of witnesses sworn to will not necessarily con- trol, unless their testimony be shown to be material and neces- sar}^. A clearly exaggerated statement as to the number of witnesses will not avail either party ; and will even be looked upon as a fraud on the court. See Wallace v. Bond, 4 Hill, 536. In The People v. Hayes, 7 How. 248, it is laid down that 580 CHANGE OF VENUE. "Very little reliance can be placed upon an allegation of the materiality of witnesses, unless it be shown wherein they are material." See, likewise, to the same effect as the above, Ilinch- man v. Butter, 7 How. 462. Similar principles to the above are held in King v. Vander- bilt, 7 How. 385. In deciding motions of this description, courts now, it is said, look beyond the affidavits of the parties, and the advice of their counsel, to the pleadings, and the issues to be tried, and determine from the whole case, in which county the trial will accommodate the greatest number of witnesses, whose attendance it will be necessary for the parties to secure, in the reasonable exercise of care and prudence in preparing for trial. The convenience of witnesses is the main consideration, but the mere excess of numbers does not always control. The possible delay, arising from a change of venue, as asked for, will also not be overlooked. In Goodrich v. Vanderbilt, 7 How. 467, it is held, however, that, where the transaction arose in the county to which the venue is sought to be changed, the rule will be to change the venue, unless the preponderance of witnesses is so great, as to warrant the court in retaining the original place of trial. The suggestion of inconvenience with regard to the overcrowded calendar of the proposed county, was there obviated, by granting the plaintiff an election, within twenty days, to have the trial in one of the neighboring counties to New York, the one there in question, subject to which election, the order was granted. In Mason v. Broivn, 6 How. 481, it was held that the actual county of the residence of the witnesses, does not govern, so much as their real and practical convenience. Thus, where four wit- nsses for the plaintiff resided within one mile of the actual place of trial, and the transaction in question had arisen at that very place, whilst the defendants' witnesses, six in number, were re- quired to prove general facts which occurred at a distance from their actual residence, the venue was retained. The strict doc- trim- as 1'' 'he residence of witnesses, as laid down in the cases under the "Id practice, and also in The P<'<>plc v. Wright, before referred to, is therefore qualified to that extent. Tt is evident, from the most of the foregoing cases, and espe- cially from Mason v. Brown, Hinchman v. Butler, and Goodrich v. Vanderbilt, that the place where the cause of action arose, forms a very important element in questions of this nature, and, CHANGE OF VENUE. 581 where the other grounds for asking or opposing a change are nearl}'- balanced, will, as a general rule, be decisive of the ques- tion. The courts will not, though, be necessarily governed by this consideration, if it be shown that there are more witnesses ne- cessary to be called upon the trial, residing in another county. Beardsley v. Dickerson, 4 How. 81. The place of trial was accordingly changed in that case, on those grounds. Both parties, too, resided in the county in which there was a majority of witnesses, which was stated by the court, as one amongst the reasons for granting the change asked for. The convenience of witnesses cannot, however, be brought forward, as an objection to the formal motion for a change of venue into the proper county. The consideration of that ques- tion belongs to a different stage of the cause. Park v. Carnley, 7 How. 357. The plaintiff may oppose a motion of this description, on the ground that he has himself material and necessary witnesses in the county of venue, or near it, within the State ; and, if he swears unqualifiedly to a number, equal to or greater than that brought forward by the defendant, and it appears that such statement is made bona fide, and the balance of material testimony is really in his favor, it seems that the venue will be retained al- most as of course, though not of necessity. See the different cases above cited, and the views there held on the subject. Under the Code of 1849, it was held that a change of the place of trial did not carry with it a change of the venue for other purposes, but that, on the contrary, all interlocutory ap- plications must still be made in the county originally fixed. See Gould v. Chapin, 4 How. 185; 2C. E. 107; Barnard v. Wheeler, 3 How. 71 ; Beardsley v. Dickerson, 4 How. 81 ; Lynch v. Mosher, 4 How. 86; 2 C. E.54 ; and Moore v. Gardner, 5 How. 243; 3 C. R. 224. The same also was held with reference to the trial of an issue of law, in Gould y. Ohaptn, above cited, and WardY. Davis, 6 How. 274. The same is likewise implied in Clark v. Van Deusen, 3 C. R. 219; though, in that case, the court looked into the materiality of such issue, and, on its clearly appearing to be untenable, refused to entertain the objection. The recent amendment provides against this inconvenience, and effects a change of venue, and the consequent transfer of 582 CHANGE OF VENUE. all papers and proceedings accordingly, in all cases where a change of place of trial has been granted, unless express pro- vision be made to the contrary, either by consent of the parties, or order of the court. See likewise, Mason v. Broion, and Hinchman v. Butler, above cited. In Northrop v. Van Dusen, 5 How. 134, 3 C. R. 140, it is held that, in motions of this description, costs to abide the event will, as a general rule, be allowed, if asked for in the notice, but, if not, the court has no power to make the order. This precaution should therefore be taken in all cases. See form in Appendix. The power of the court to give costs of that nature on such a motion, or indeed under any circumstances, has how- ever been doubted. See Johnson v. Jillitt, 7 How. 485. Defendant's Course, on Order.] — On a change being granted, the defendant's attorney will, of course, see that all papers and proceedings are duly transferred to the clerk of the substituted county, according to the provision above referred to. In strict- ness, this is the duty of the clerk of the court, on the order being filed with him, (which must of course be done,) and he is the responsible party in all cases; but still it should always be looked to, both as regards the transmission and the due filing of the proceedings in the substituted county, when trans- mitted ; in order to insure regularity, and avoid future incon- venience. Revocation of Stay, on Plaintiff's Application.'] — The plaintiff's remed}'', in respect of a stay of proceedings, unduly obtained by the defendant, for the purposes of a motion as above, is pointed out by Rule 44. On affidavit, showing such facts as will entitle him to retain the venue according to the settled practice, he may obtain a revocation of the order to stay, from the officer who grunted it. This application may be made ex parte, but immediate, notice of the order of revocation must be given to the defendant's attorney. Of course, this revocation only ope- rates u regards the interim stay of proceedings, and the motion itself will still come on, and be decided on its merits, in due course, [fthe defendant consider himself aggrieved by a revo- cation so obtained, his better course would be to obtain a fresh order, to show cause why the stay should not still be granted, with the usual clause, suspending proceedings until the return PRECAUTIONARY PROCEEDINGS. 583 of that order. It would, doubtless, be competent to him, in such a proceeding, to meet the affidavit, on which the plaintiff has obtained the revocation, by counter-affidavits on his part either evidencing his own right to require a change, or im- peaching the plaintiff's statement. Disqualification of Judge, Change for.'] — The last point to be noticed, is the change of venue, in consequence of the justices of the district in which the action is triable, being disqualified, on the ground of interest, relationship to the parties, or em- ployment as counsel in the matter. This subject is specially provided for by c. 15 of the Laws of 1850, p. 20, as regards actions in the Supreme Court : which enacts that, in such cases, the court may, upon special motion, order the action to be brought to argument in any adjoining district to be specified in such order, and then, such cause shall be heard and decided in such district. This measure is, of course, inapplicable to courts of strictly local jurisdiction, the disqualifications as to which, where existent, are positive and irremovable. CHAPTER IV. OF PROCEEDINGS FOR OBTAINING AN INSIGHT INTO THE ADVER- SARY'S CASE, OR FORTIFYING THAT OF TEE MOVING PARTY. The measures for the above purposes, are mainly remedies existent under the old practice, and unaffected by the Code, or else more properly referable to the class of special proceedings. The latter will be considered in the present division of the work, such being the more convenient arrangement ; a detailed notice of the former is incompatible with the plan proposed at the outset. All, however, may be conveniently alluded to at this juncture, in order that the attention of the practitioner may be directed to all the different measures peculiarly applicable to this stage of the action, and which it may be in his power to adopt, with a view to the proper preparation of the cause for trial. 584 PRECAUTIONARY PROCEEDINGS. § 178. Enforcement of Admission. The first of the proceedings in question is one which, though associated in the Code with the provisions for enforcing the discovery of books and papers, is yet distinguishable from those provisions, inasmuch as it is in the power* of the party to act under the latter at any time, whilst the former belongs to this stage of the action exclusively, and would not be appropriate at any other. Although given by the same section as the pro- visions above alluded to, which belong unquestionably to the class of special remedies; this, on the contrary, partakes rather of the nature of an ordinary step in the cause. The enactment in question is contained in the earlier portion of sec. 388, and runs as follows : § 388. Either party may exhibit to the other, or to his attorney, at any time before the trial, any paper, material to the action, and request an admission in writing of its genuineness. If the adverse party, or his attorney, fail to give the admission, within four days after the request, and if the party exhibiting the paper be afterwards put to expense, in order to prove its genuineness, and the same be finally proved or admit* ted on the trial, such expense, to be ascertained at the trial, shall be paid by the party refusing the admission; unless it appear, to the satisfaction of the court, that there were good reasons for the refusal. Although not prescribed in terms, the more convenient course will be, to accompany the exhibition of the document with a written notice, and request for an admission as above ; the proof of the giving of which notice will, in case of refusal, be more convenient and more satisfactory to the court, than the adduc- tion of exclusively verbal evidence. In ordinary cases, a refusal is not to be anticipated, and the party applied to will consider well before he gives one; as, if he take that course, he does so at the risk of the imposition of costs. Where, however, any real question exists, aa to the genuineness of the document of which an admission is sought, such admission would clearly be imprudent; and many other eases might be suggested, in which, on a bond fide refusal, on attenuate grounds, the court would never impose c< »sts, QtJ tions extending merely to the construction or purport of the instrument adduced, apart from any as to its genuineness, or where, as must frequently 1,< ; the case, the genuineness of it is PRECAUTIONARY PROCEEDINGS. 585 not in question, though its real effect is, may easily be guarded against, by a special form of admission; and, indeed, no pro- perly drawn request will require more, than a mere dispensation from the necessity of giving technical evidence of the existence of such an instrument. In the event of an admission being refused without good reason, and expenses being incurred in consequence of that refusal, counsel should be careful to be prepared with a state- ment, and to ask for them, at the trial itself, as this course is expressly prescribed by the section; and, if omitted, it is very doubtful whether those expenses can afterwards be allowed in the taxation of costs. It seems, indeed, clear that they cannot. § 179. Discovery, <$c. Anticipatory Notice. The next proceeding for the purposes above mentioned, and which is, also, one open to either party, is the procuring an in- spection and copy, or permission to take a copy, of books, papers, or documents in the hands of his adversary. It would be need- less to enlarge upon the importance of doing this at once, if not already done at an earlier stage, in every instance where such documents exist. The subject has already been touched upon, under the head of the Defendant's Proceedings before Answer, and will be fully gone into in the chapters which close this division of the work. Not merely has the party a right to inspect the documentary evidence in his adversary's possession, but he has also a right to examine that adversary himself, upon oath, at any time before the trial, under the provisions of chapter VI., title XII., part II. of the Code. This proceeding is in evident substitution for the old chancery practice on a bill of discovery, and like- wise as to the examination of the defendant, upon interrogato- ries annexed to, or forming part of the complaint. It is one peculiarly applicable to this stage of the action, though, as before noticed, under the head of Proceedings before Answer, it may be taken earlier. See this subject fully considered in the closing chapters of this division. In numerous classes of cases, and. more especially in those which, under the old practice, would have belonged to chan- cery jurisdiction, the importance of this step is too obvious to 586 PRECAUTIONARY PROCEEDINGS. admit of doubt. In strictly common law cases, it will, on the contrary, be less generally applicable. The examination so taken, may be read upon the trial, if the party is not then called upon to testify as a witness; but, if he be so called, it then be- comes, ipso facto, a nullity, and, even if he be called to testify on one point only, the whole ground must be gone over again. When read, such examination will, of course, be open to all due exceptions, precisely as with reference to the written testimony of witnesses not produced at the trial, as next referred to. § 180. Depositions de bene esse. The means which at present exist for taking the evidence of witnesses, accessible at the time, but whose testimony may not be available at the trial, is the next point to be considered, where circumstances of this nature may exist. This may be done as heretofore, by an examination " de bene esse, 11 under the powers given for that purpose in the Revised Statutes, art. L, title III., chap. VII. of part III., 2 R S. 391 to 393. The old practice in this respect, remains perfectly unchanged by the Code, and may be gathered from the works on that subject. The order for this purpose is obtainable from a judge of the court in which the action is pending, if a court of record, ex parte, on affidavit of the facts ; and copies of both the order and the affidavit must be served upon the opposite party. The omission to give proper notice to him will be sufficient to prevent the reading of the deposition. 2 R. S. 393-8-9. Nixon v. Palmer ; 10 Barb. 175. The time for the proposed examination must be limited in such order, and must not exceed twenty days from its date ; but, within that limit, the appointment for that pur- pose rests in the discretion of the judge applied to. It is com- petent fur tin; adverse party to show cause against proceeding on this examination, on proof that it is unnecessary, or that the order has been collusively obtained. If he do not oppose, or fail in bringing proof <>f this nature, the officer granting the order proceeds with the examination of the witness in due form; and the written deposition, signed by the witness, and certified by such officer, must Km; filed in the office <>f the clerk of the court in which the action is pending, within ten days, and may then bo used on tin- trial, on proof previously given, that the PRECAUTIONARY PROCEEDINGS. 587 witness is unable to attend, but not otherwise ; and it is compe- tent for the adversary to prevent the reading of it, by proof that the witnesses' attendance could have been obtained on suf- ficient notice, (see Weeks v. Lowerrc, 8 Barb. 530,) or that the examination was not duly conducted, or due notice not given. The following cases have been recently decided, in relation to this proceeding. The party who exhibits the deposition on the trial, is compe- tent to prove the absence of the witness from the State. Harris v. Ely, Court of Appeals, 30th Dec, 1852 ; Nixon v. Palmer, 10 Barb. 175. The adverse party cannot, however, be exa- mined for the purpose of excluding it. He is interested in the result, and is incompetent on that ground. Nixon v. Palmer, above cited. Although, by the statute, it is provided that the deposition must be filed in the office of the clerk of the county, within ten days from its date, that provision is directory only, and, in cases calling for that indulgence, may be dispensed with. Thus, in Burdell v. Burdell, 1 Duer, 625, 11 L. 0. 189, where a copy had been filed instead of the original, and the plaintiff, on discover- ing the mistake, immediately applied for leave to file the origi- nal nunc pro tunc, the application was granted. It is obvious, however, that this indulgence cannot be calculated upon, except in extreme cases. It is, of course, competent for the parties to waive the filing, by positive stipulation, which course may be convenient, and is not unfrequently pursued. With reference to the taking of depositions in general, it may be remarked that, under the Code of 1818, those of witnesses residing in the State, but more than one hundred miles from the place of trial, were allowed to be taken, in the same mode as testimony de bene esse, and to be so read on the trial, without further proof of the inability of the witness to attend. This provision was positively repealed by the act of 1849, without any saving clause. In a case, where the depositions had been taken, pending the former measure, but the trial did not come on until after the passing of the latter, it was held that such depositions could not be read. McCotter v. Hooker, 1 C. R, (1ST. S.) 213 and 217. The subject of the perpetuation of testimony, by special pro- ceeding for that purpose, has been already alluded to. The proceedings for that purpose, belong entirely to the former 588 PRECAUTIONARY PROCEEDINGS. practice. The proceedings analogous to an examination of this nature, under which witnesses may be compelled to give evi- dence, on an interlocutory proceeding, have been already alluded to in a jorevious chapter, under the head of Motions. § 181. Commission to examine Witnesses. The testimony of witnesses out of the State may also be pro- cured, as heretofore, by means of a commission for that purpose. The Code contains no provision whatever on this subject, except that a party to the action may be so examined, (sec. 390,) and, therefore, the former practice remains totally unchanged in all its particulars, and the works on that subject may be referred to accordingly. The plan adopted at the outset forbids, as above noticed, the entering into details, in reference to this most important, and frequently necessary proceeding. The main features of the practice may, however, be stated as follows : The statute law upon the subject will be found in article II., title III., chap. VII., part. III. of the Eevised Statutes, 2 E. S. 893 to 397. The application can only be made after issue joined, and should, of course, be made as soon as practicable after such joinder. If applied for at once, a stay of proceed- ings until after the return, is obtainable, almost as of course; but, if delayed unduly, such stay may, and probably will be refused. The application may be made by either party, but the proceeding is one very usually taken by consent. See, however, Morse v. Ghyes, and Cope v. Sibley, below cited, in re- lation to the possible effect of a consent, if incautiously or too fully given. If so, the consent of the opposite party being obtained in writing, in the usual form, the order of the court is obtained upon it, as of course. Should any peculiar directions as t<> td^ iit inn of the commission be desirable, they should be made part of the consent, and be Incorporated in the order. If, however, the proceeding be taken adversely, the party, or his attorney, (bul more usually the latter,) must make an affi- davit, swearing to merits in th<' usual manner, giving the names and residences of tin- witnesses required to be examined, and averring that he cannot safely go to trial without their testi- mony. On this Affidavit, an order is obtained for the opposite PRECAUTIONARY PROCEEDINGS. 589 party to show cause, on a notice of at least ten days, why a commission should not issue accordingly, the proposed commis- sioner or commissioners on the applicant's part being named. A copy of such order, and of the affidavit, should be duly served forthwith, and the moving party should also prepare his interrogatories, and serve a copy. On receipt of this docu- ment, the adverse party should prepare and serve a copy of his cross interrogatories, and name a commissioner or commission- ers on his part. The order to show cause, comes on to be ar- gued in due course, and, if made absolute, a copy of the final order should be served. The interrogatories on both sides, if not agreed upon, are then settled by a judge, or other officer empowered to perform the functions of a judge at chambers, (see introductory chapter,) on appointment for that purpose, of which, notice must, of course, be duly served. If so settled, the interrogatories and cross interrogatories must be signed by the judge or .officer so acting. If, on the contrary, they are agreed to by consent, each is signed by both attorneys. The interrogatories being settled, the commission is drawn up, the usual printed forms being invariably used for that purpose, to which are subjoined or annexed, as specially re- quired by the provisions of the Eevised Statutes, fall instruc- tions on the subjects of its execution and return ; which in- structions must be complied with to the letter, or the execution of the commission will be invalid. If any special directions on these subjects be inserted in the order, either by consent, or by direction of the court, the instructions to the commissioners must be carefully corrected accordingly. The signature of the judge, and the seal of the court being then obtained to the commission, to which the interrogatories on both sides must be annexed before it is sealed, such commission and interrogatories must be forwarded, either by post or otherwise, as may be found most convenient, to the commissioners named, who take the de- positions of the witnesses in writing, and return it according to the directions. When returned, it remains in the custody of the clerk of the court, who furnishes copies to the parties in the usual manner ; or if, *by special agreement, it is returned to either of the attorneys, (which proceeding is allowable,) it must not be opened by him unless in the presence of the other, and a copy must be delivered to the latter with all convenient speed. The commission and depositions, when returned in the 590 PRECAUTIONARY PROCEEDINGS. latter mode, remain in the custody of the proper party until the trial of the cause, at which the latter are read in evidence in the usual course, all just exceptions as to the admissibility of testimony being then competent to be taken by either party, exactly as if the witnesses, whose depositions are read, were present and personally examined. In the event of any irregu- larity in the execution of the commission, the opposite party may move at the trial to suppress the deposition in toto. Should any portion of them, on the contrary, be objectionable on the ground of improper or non-responsive answers on the part of the witnesses, of inadmissibility of evidence, or otherwise, the motion will be that such portion of the deposition be not read. On all these different matters, the old books of practice should, as before stated, be carefully consulted, the foregoing observa- tions being a mere outline of the subject, and not pretending to be more. The plan laid down at the outset has, however, been slightly departed from, with regard to this peculiar proceeding, by the insertion of the usual forms, which will be found in the Appendix. It seems that a second commission may issue, under certain circumstances, rendering that course necessary. See Graham's Practice, page 596. The following cases have been decided since the passing of the Code, in reference to the above proceedings : In Dodge v. Rose, 1 C. E. 123, the court held that, on a motion for a commission, the moving papers must show affirmatively that such motion was made in a proper district; and, this not being the case, the application was refused. In Blachmar v. Van fnwager, 5 How. 367, 1 C. R. (N. S.) 80, this conclusion was denied ; and it was held, on the contrary, that there was no rule of practice requiring the moving papers to show the place where the trial was to be had, and that, ac- cordingly, an omission in this respect constituted no irregu- larity. The motion in that case was made in a county, adjoining the , and that the order was not void, but merely PRECAUTIONARY PROCEEDINGS. 591 irregular, and, as such, was binding until vacated or set aside; and the inquest was set aside accordingly. If, however, the motion had been opposed, and the fact shown that it was made in a wrong county, the learned judge said he would undoubt- edly have declined to hear it. In The Bank of Charleston v. Ilurlbut, 1 Sandf. 717, 1 C. R. 96, it was decided that, in analogy with the former practice, the defendant will be allowed twenty days after the service of the reply, in which to apply for a commission, with the usual stay of proceedings. If applied for with due diligence, the commission issues, and a stay will be granted, as of course; and, if the opposite party serve a notice of trial subsequent to the notice of motion for such purpose, the payment of his costs of the term will not be imposed. If, on the contrar}^, the notice of motion be not given until after notice of trial is served, the adversary's costs must be offered to be paid at the time, or the whole expenses of pre- paring for trial will be charged ; unless it appear that the papers for the motion have been served without any unnecessary delay, in which case, the moving party will be excused. BroJcaw v. Bridgman, 6 How. 114 ; ICE. (N. S.) 407. The last-mentioned principle was acted upon in Foster v. Agassiz, 3 C. R. 150, in which case, costs were not imposed, but were ordered to abide the event. The cause had there been noticed for trial seven days, and the notice of motion given on the thirteenth day after issue joined ; it being shown, moreover, on the affidavits, that due diligence had been used in preparing the papers for that purpose. The above cases refer to an application made within the ordi- nary period, according to the old practice. It by no means follows, however, that, if delayed until a later period, a com- mission will not be obtainable. On the contrary, wherever a proper case is shown, it will almost always be granted, though, of course, upon proper terms. The following principles have been laid down upon this sub- ject by the Superior Court : " The issuing of a commission is in the discretion of the court. It is usually done as of course, with or without a stay of pro- ceedings, but it is not a matter of strict right. The court must be governed in the exercise of its discretion, by what is appa- rent will be the consequences ; and, if it is evident that great 592 PRECAUTIONARY PROCEEDINGS. injustice will be likely to ensue to the adverse party, it is far from being of course to grant it. In such a case, the court will either impose terms, so as to preserve the rights of the adverse party, or will even refuse it, if no way for their protection can be devised." Ring v. Mott, 2 Sandf. 683. Under ordinary circumstances, the stay of proceedings, when granted, is absolute, until the actual return of the commission, however long may be the time necessary for that purpose. In extreme cases, however, the court will interfere. Thus : "Where sufficient time had elapsed, prima facie, to have ob- tained the return of a commission, so issued, with a stay of pro- ceedings, the Superior Court, in Voss v. Fielden, 2 Sandf. 690, laid down the rule to be pursued in future, in the following terms : " On considering the matter, we think the rule ought to be, that the parties, in a case like this, have liberty to go to trial at the next term. If the commission be not then returned, it will be incumbent on the other party to apply for a further stay. This will give to the party, desirous -to go to trial, an opportu- nity to answer the statements on which his adversary relies, for continuing the stay of proceedings, and obtaining further time to procure .the testimony. Such will be the practice in future, where it appears that sufficient time, prima facie, has elapsed for the execution and return of the commission." The questions as to the due execution and return of a com- mission of the above nature, will be found very fully entered upon, and the old authorities on the subject cited, in Fleming v. Hollenbach, 7 Barb. 271, which case should be carefully read, in connection with the works on the former practice, in relation to that subject. The course of procedure, in relation to the reading of deposi- tions so taken, on the actual trial, is fully considered in Cope v. Sibky, 12 Barb. 521, where the rule is laid down, that any points which may arise, as to the admissibility or non-admissibility of questions asked, or evidence taken, rest in the discretion of the judge, as in the case of a witness examined vlvd, voce', and the case of Williama v. Eldridge, 1. Hill, 249, ruling to the contrary, is disapproved. In tli'' same case of Cope v. Silky, the interrogatories had been selllid by consent, and it was also held, on that ground, that all objections to their form were waived by that mode of proceeding, notwithstanding it had been expressly provided in PRECAUTIONARY PROCEEDINGS. 593 the stipulation for that purpose, that it should "have the same effect as the allowance of a judge, reserving all legal rights." In Morse v. Cloyes, 11 Barb. 100, affirmed by the Court of Appeals, 80th December, 1853, where interrogatories had been settled, on a stipulation, which provided that such settlement should be without prejudice to any valid objections to the com- petency of the witness, to the admissibilty of entries in his books, or to the immateriality of the two first cross interroga- tories, it was held that, by this form of stipulation, the parties had waived all objections to form, and that neither could make such an objection on the trial. It was also held, generally, that the reservation of all competent objections, by the Eevised Sta- tutes, is not applicable to a case, in which the parties have ex- pressly stipulated and agreed upon the objections which are reserved, thus, by implication, waiving every other. The ques- tion of the admissibility or non-admissibility of specific items of testimony so taken, is also very fully considered ; and the case may be advantageously referred to. It follows, of necessity, from the view taken in the above cases, that the form of any stipulation to be given on the settle- ment of interrogatories, is a matter of great delicacy, and requires careful consideration, and that, in cases of importance, it may, perhaps, be more prudent to have the interrogatories settled by a judge, in the usual manner, and not otherwise. The issuing of a commission rests in the discretion of the court. Where, therefore, the object proposed was to obtain cumulative testimony, on a point as to which there was conflict- ing evidence, and the cost of executing the commission would exceed the amount involved in the specific point to which the evidence was directed, the application was refused. Mitchell v. Montgomery, 8 Sandf. 676. In moving for a commission, it is sufficient, if the materiality of the testimony sought to be obtained is positively sworn to. The applicant is not bound to state what he expects to prove by the witness, whose testimony he seeks to procure. Eaton v. North, 7 Barb. 631, 3 C. B. 234; and see The People v. Vermil- yea, 7 How. 369, there cited. A party to the action, residing out of the State, may be ex- amined on commission, at the instance of the adverse party, in the same manner. Brockway v. Stanton, 2 Sandf. 640; 1 C. R 128. 38 594 FORMAL PREPARATIONS FOR TRIAL. If a commission be defectively executed, in matters of mere form, the court possesses, and will exercise the power of order- ing it to be returned to the commissioners, to have the defect amended, without its being necessary to issue a second commis- sion, and examine the witnesses again. CHAPTER V. OF THE FORMAL PREPARATIONS FOR TRIAL, The above precautionary or accelerative proceedings, with a view to the ultimate trial of the issue, when joined, having thus been considered ; the ordinary measures for placing the cause on the calendar, and bringing on the trial, in due course, form the next subject for consideration. § 182. Noticing and setting down Cause. Statutory Provisions.'] — The provisions of the Code, on the subject of the notice of trial and note of issue, are contained in sections 256 and 258, and run as follows : § 256. At any time after issue, and at least ten days before the court, either party may give notice of trial. The party giving the notice, shall furnish the clerk, at least four days before the court, with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading was served ; and the clerk shall there- upon enter the cause upon the calendar, according to the date of the issue. § 258. Either party giving the notice, may bring the issue to trial, and, in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case, and take a dismis- sal of the complaint, or a verdict or judgment, as the case may require. A separate trial, between a plaintiff, and any of the several defendants, may be allowed by the court, whenever, in its opinion, justice will thereby be promoted. Justice of Trial.] — Although peculiarly incumbent upon tho FORMAL PREPARATIONS FOR TRIAL. 595 plaintiff, on whom rests the conduct of the cause, the above proceedings will, in almost every case, be equally necessary on the part of the defendant. It is true, that a notice on the part of the plaintiff will be sufficient to bring on the cause in regu- lar course, and that, if so brought on, the defendant will labor under no actual disability in respect to his defence ; still, on the other hand, the latter, if he omit to give a counter-notice, and to put the cause regularly upon the calendar on his own behalf, will be without remedy, in case of the plaintiff's change of intention, or neglect to appear when called. He will stand, in fact, in the disadvantageous position of being bound by his adversary's notice, without the power of taking any affirmative measure on his own behalf. The plaintiff has, too, under these circumstances, a positive power to stipulate under Eule 20, from which a notice on the part of the defendant will preclude him, by the terms of that rule. In no case, therefore, should this precaution be omitted on the part of the latter. When, how- ever, the defendant has given such a notice, he must move the cause in its order when called on. If he omit to do so, he can- not afterwards move for a dismissal, under Eule 21. McCarthy v. Hancock, 6 How. 28 ; 1 C. R. (N. S.) 188. He will equally be precluded in that respect, if he consent to any postponement, the effect of which may be to throw the cause over the circuit, though not intended at the time. Fuller v. Sweet, 9 How. 74. The omission to give such a notice will not, however, deprive the defendant of his right to make an independent motion for a dismissal of the complaint, on the ground of its not having been set down by the plaintiff. He will be entitled to do so, on showing, by affidavit, that the cause was at issue in time to have been noticed, and that, at the term for which it ought to have been noticed, younger issues have been tried. He cannot, however, obtain an}^ affirmative relief, on a motion of this de- scription, or otherwise than by bringing the cause on, on notice by either side. All he can obtain is, a simple dismissal of the complaint. Ray v. Thompson, 1 Duer, 636, 8 How. 283 ; see also heretofore, under the head of Motion to dismiss for want of Prosecution, and cases there cited. Where the plaintiff only has noticed the cause, and omits to bring it on, the defendant, if he attends prepared, is entitled to the costs of the circuit. He must, however, apply for them on 596 FORMAL PREPARATIONS FOR TRIAL. the first opportunity afterwards, or his right to enforce their payment will be gone. The plaintiff, on the other hand, will not be entitled to recover his, under such circumstances, though he ultimately obtain a verdict in the action. Whipple v. Wil- liams, 4 How. 28. The usual forms of notice of trial of an issue of fact, or of argument of an issue of law or appeal, before the general or special terms, which all are subject to the same general condi- tions as to time, service, and otherwise, will be found in the Appendix. In the Court of Appeals, a different period is pre- scribed, as see hereafter. Where notice of trial of an issue of fact is given by the plain- tiff, and no affidavit of merits has been served on the part of the defendant, (as to which, see subsequent portion of the chap- ter,) it is necessary that the intention to take an inquest should be expressed upon the face of that notice. If omitted, it can- not be taken. See Eule 12 of Supreme Court. Where such affidavit has been served, or where the notice is on the part of the defendant, the correct practitioner will strike these words out of the ordinary form, though the omission to do this will not vitiate the notice, and usually happens. If the plaintiff notice the cause for trial, and put it on the cal- endar in the ordinary form, he is bound to bring it on for trial when it is reached, or he will be liable to a motion for dismis- sal on . the ground of want of due prosecution. Bishop v. Morgan, 1 C. B. (N. S.) 340. The provisions of the Code on this subject extend to the case of a trial by referees, on which, it is competent for both parties to give notice in the ordinary form, and for the defendant to proceed upon his notice, by default, and take a report in his favor, in the event of the plaintiff's omission to proceed ; and such will be his proper course. Williams v. Sage, 1 C. E. (N. S.) 358; Thompson v. Krider, 8 IIow. 248. See also hereafter under the head of Trial by Referees. It is, of course, iiicuinboiit upon the plaintiff to serve notice upon every defendant, as, otherwise, he cannot bring on the cause, as against those with respect to whom he has omitted to do bo. CJnder ordinary circumstances, it will not be necessary foi a defendant to serve co-defendants. Where, however, in his answer, he seeks relief aa against them, it might be prudent. Sec- tion 258 gives bim power to take "a dismissal of the complaint, FORMAL PREPARATIONS FOR TRIAL. 597 or a verdict or judgment, as the case may require ;" and, of course, he cannot obtain affirmative relief, as against any party who has not been duly cited to appear. Cases of this descrip- tion are, however, not likely to be frequent; and it may be well doubted whether, even after notice so given, he could, in the event of a general default, do more than take a dismissal of the complaint as against the plaintiff. If the cause come on in due course, and all parties are heard, there is no question but that the court then possesses the power of passing upon the mutual claims of all parties; but the defendant's power to obtain affirm- ative relief, by default, as against parties other than the plain- tiff, seems questionable. There is no reported case upon the point, but the more consistent view seems to be, that, on the plaintiff's default, the whole case falls to the ground, and is out of court ; and that, if wished for, affirmative relief, as against other parties, can only be obtained by a party in that position, in the ordinary mode, by means of an affirmative proceeding. Allegations of equities between co-defendants, when standing alone, form no defence, as against the plaintiff's right to reco- ver. See Woodworth v. Bellows, 4 How. 24 ; 1 C. E. 129 ; and the converse of this proposition, %. c, that, if the plaintiff aban- don his case, the whole proceeding becomes inoperative, and a dismissal of the complaint the only proper course, would seem to be equally sound. The experiment appears, however, to be open for trial, if thought expedient. With reference to the time prescribed by section 256, in Boston v. Chamberlin, 3 How. 412, it was held, that the lan- guage of this section is governed by that of section 407, and, therefore, that the day of service of a notice of trial is excluded from, and the first day of term included in the computation of the ten days required under the former. The same point was decided, and a notice served on the 11th for the 21st held good, in Dayton v. Mclntyre, 5 How. 117 ; 3 C. E. 164. Where ser- vice by mail is admissible, the above time is, of course, double, and a twenty days' notice, instead of ten, must be given. See Dor-Ion v. Leivis, 7 How. 132. The notice should be for the first day of the term or circuit, on the calendar for which the cause is placed. In the Court of Common Pleas this is the subject of a special order, No. 5 of orders of 1848, but in all the others it is equally necessary. By giving notice of trial, the party admits that the pleadings 598 FORMAL PREPARATIONS FOR TRIAL. are sufficient to raise an issue, and cannot afterwards move, under sec. 160, to strike out redundant matter. Esmond v. Van Bemchoten, 5 How. 44. The plaintiff may give notice of trial, &c, immediately on the service of the reply, though, of course, at his peril, if the defendant subsequently amend under section 172. The cause is then properly at issue, notwithstanding the defendant's right to do so. The former is not, however, obliged to bring the cause on, until the expiration of a reasonable time after the time to amend has elapsed, unless the defendant waive his right to amend, by giving notice of trial, or that he shall not avail himself of that right. If the defendant so waive his right, the plaintiff is then, apparently, bound to go on ; Cusson v. Whalon, 5 How. 302, 1 C. R. (N. S.) 27 ; and it would seem that ten days after the time to amend has expired, is a reason- able time to prepare for trial. In cases where service by mail is allowable, the defendant has forty days to amend, and the plaintiff will not be in default, till after that time has elapsed. The provisions of sec. 172, allowing twenty days for that pur- pose, do not limit the period absolutely, without reference to sect. 412. Same case. Although, if either party amend in good faith, his right to do so is absolute, an amendment is inadmissible, if clearly made for purposes of delay. In Allen v. Compton, 8 How. 251, an amended answer, so served, the effect of which was to throw the cause over the circuit, was held to be a nullity, and the plaintiff's motion to strike it out was granted. An offer, too, cannot be served so late as to have that effect, as regards the plaintiff's proceedings. Where such is the case, and the cause is reached, within the ten days allowed the plaintiff to elect, the latter will be entitled to proceed, as if none had been made. Pomroy v. j/ulin, 7 How. 161. An offer of that nature will, however, preclude the defendant from taking any steps on his own behalf, within that period. The plaint iff is entitled to the full period, allowed him to make his election in writing, nor will a parol declaration on his part avail to deprive him of that right. Walker v. Johnson, 8 How. 240. An appeal from an order, striking out a portion of the de- fendant's answer, ell'rc.is ;i complete stay of proceedings, until it is decided, and the plaintiff cannot proceed to try the cause on the remaining issues, pending that appeal. The Trustees of Penn Tan v. Forbes, 8 How. 285. FORMAL PREPARATIONS FOR TRIAL. 599 The notice of trial is, in a great measure, the same as that under the old practice, and is generally subject to the same in- cidents. If insufficient, of course, no proceeding grounded on it will be valid. If one party only have given a notice, he may countermand it, but, if the opposite party have already incur- red costs in consequence, he must pay them. The party entitled to receive those costs should, however, apply for them the first opportunity, or his right may be lost. See Whipple v. Williams i before cited. The notice of trial must be served upon the opposite attor- neys, in the usual manner, (see chapter as to interlocutory and formal proceedings,) and the party doing so, must be prepared with proof of that service, in the event of the cause being called on, as, otherwise, be cannot take any step grounded there- on. The ordinary course, is to obtain the signature of the opposite attorney, to an admission endorsed on the notice itself. Where this is impracticable, the usual affidavit of service should be made, and may be endorsed on that notice, or an- nexed to it, as may be most convenient. If the service be by mail, an affidavit of the posting, and payment of the postage, will be the proper form. Note of Issue.'] — The form of the note of issue is so clearly prescribed by sec. 256, that it would be unnecessary to give one in the Appendix. Four days prior to the commencement of the term is now the legal period in all cases, and with reference to every description of issue. See Rule 34. Prior to the last revision, the Rules presented an anomaly, in requiring notes of issue for the general term, to be filed eight and not four days previous, but that anomaly is now corrected. The following special provisions have been made by the New York local tribunals in this respect. In the Common Pleas it is provided, by Rule 7 of June, 1848, that, where the parties have agreed in writing to waive a trial by jury, such consent ought to be stated on the note of issue, and the consent filed with it. In the Superior Court a distinction is made between the special and trial terms. See Rules 3 and 4 of that court of 18th January, 1851. Temporary rules have from time to time been made by the latter tribunal, to the effect that, whenever a cause has been already on the calendar, the note of issue must state that fact, and its number on the last previous calendar, or it will be dis- 600 FORMAL PREPARATIONS FOR TRIAL. regarded, and the cause lose its place. Of late, however, this rale has been abandoned. Another practice has sprung up in the New York courts, i. e., that of requiring notes of issue for the circuit or trial terms, to be filed at an earlier period than that prescribed by the Code, and, generally, nine days before the commencement of the term. This practice is no doubt highly convenient, if not necessary, in view of the crowded state of the calendar in that district, and it is accordingly generally and cheerfully assented to. Its legality, however, seems questionable, in view of the positive provisions both of the Code, and of the Rules, upon the subject. It, in effect, repeals those provisions, pro tanto ; and whether any judge or any court can do so as a matter of right, seems more than doubtful. The nature of the issue, whether of law or fact, should be stated on the face of the note, and a notice, in the former case, as to whether it arises on appeal or demurrer, would be a con- venient addition. It should also be stated whether it is filed by the plaintiff or the defendant, though this is not an absolute essential. (In the Court of Appeals a different practice prevails, as will be noticed hereafter.) "When it is forwarded to the clerk of the court by post, it must be sent in sufficient time, so that he may receive it on or before the last day appointed. If not, the cause will not, of course, be on the calendar. It seems prudent, as a general practice, to file a cross note of issue on the part of the defendant, although, if the plaintiff place the cause on the calendar, the precaution will be super- fluous, at least so far as bringing it on in its order is concerned. In Browning v. Page, 7 How. 487, a dismissal taken by de- fendants, where the cause, though noticed, had not been regularly placed on the calendar, was held to be irregular, and set aside. The proper date of an issue of law or fact, is that of the ser- vice of tin; last pleading, demurrer, answer, or reply, as the case may I"-; <>r, where Buoh pleading has been amended, then, of tin: amended pleading. Where two independent issues, one of law, and the other of fact, are raised in (ho same case, the date of the 'former will be that of tin; service of the demurrer; of the latter, that of the answer or reply, according to circumstances. Before the la t revision of the Rules, the practice, astothedate of issues for the general term, was, in some respects, uncertain. FORMAL PREPARATIONS FOR TRIAL. 601 See Gould v. Chapin, 5 How. 358; 9 L. O. 187; 1 C. E. (N. S.) 74. By Kule 34, as it now stands, they are definitively fixed, as under: The clerk shall prepare a calendar for the general term, and cause the same to be printed for each of the judges holding the court. Appeals shall be placed on the calendar, according to the date of the service of the notice of appeal ; and other cases, as of the time when the question to be reviewed arose. The necessity of the above proceedings being taken in due time, and the expediency of their not being ]3ut off till the last moment, is evidenced by the case of Wilkin v. Pearce, 4 How. 26. In that case, the sudden and violent illness of an attorney, who had waited until the last moment to take these steps, was decided to be an insufficient excuse for the omission, and the cause was refused to be placed upon the calendar. The decision is one of the .Court of Appeals, the rules of which are, as before stated, somewhat different, but the principles are of general application. According to the Code, and the general spirit of the Kales, the filing of the note of issue ought, perhaps, to be repeated every term that the cause is on the calendar, until it is finally disposed of. In the Supreme Court, however, in the First District, and in the New York Common Pleas, this is dispensed with, and, the note of issue once filed, the cause takes its place on the general calendar, and there remains, until heard in due course, without any necessity for a repetition of the proceeding. This very convenient arrangement has been partially adopted by the Superior Court, which issues special rules, from time to time, for the consolidation of a certain number of terms, gene- rally three at one time. A cause, once placed on the calendar, remains there, without farther proceeding, until called. Once called and passed, however, a fresh note of issue will be requi- site for the succeeding term, and the cause will lose its original precedence. In all the other courts throughout the State, in which no special provision is made on the subject, the note of issue must be repeated every term, until the cause is regularly called on. Although the repetition of the note of issue is, in most cases, dispensed with, as above, a fresh notice of trial must, on the contrary, be given everv term, in which the cause is on the 602 FORMAL PREPARATIONS FOR TRIAL. calendar, unless such notice be dispensed with by special order, as is now habitually done by the Superior Court, in the in- stances above alluded to. This course, however, has not been adopted by the other tribunals, and, as a general rule, the cause must be re-noticed every term; and, wherever there is the slightest doubt upon the subject, it would not be wise to omit the precaution. The parties are compensated for this extra trouble, hy the term fee allowed under subdivision 8 of sec. 307. The terms held by the different courts, will be found in their rules for the time being, and in the appointment of circuits, &c., of the Supreme Court, as published every two years, by author- ity. (See list subjoined at the end of the volume.) All issues, whether of law or of fact, must now be noticed for the special or trial terms, or circuit, in the first instance. See Code, s. 255. Under the amendments of 1851, the case was different; and an issue of law was originally cognizable by the general term, and not by the single judge, unless the court should otherwise direct. This, however, as a general rule, was done. See rule of the Superior Court on this subject, reported, 4 Sandf. 725. This anomaly is now remedied, and, by the last amendment, all original issues are placed upon the same footing, the general term taking exclusive cognizance of appellate pro- ceedings, and of them alone. § 183. Affidavit of Merits. The next proceeding to be noticed is one exclusively appli- cable to the defendant, i. e., the filing and service of the usual affidavit of merits, in order to prevent the plaintiff from taking an inquest. This is, in a great measure, a proceeding under the old practice. It was specially provided for by No. 92, and is also referred to in Nos. 86 and 31 of the Supreme Court Common Law Kulcs of 1817. By Rule 36 of those now in operation, it is prescribed that, "in addition to what has usually been inserted," (sec Rule 92, of 1847, above referred to,) "the party shall swear that he has fully and fairly stated the case to his counsel, and shall give the name and place of residence of such counsel." The usual form will be found in the Appendix, and should be complied with to the letter; the courts being extremely strict upon the subject. Should further information be required, the old books of practice may be referred to. FORMAL PREPARATIONS FOR TRIAL. 603 The original affidavit of merits must be filed with the clerk of the court in which the action is pending, on the first day of the term for which such action has been noticed, at the very latest ; and a copy of it, with a notice of the filing of the origi- nal endorsed, must be also served upon the plaintiff's attorney, so as to be received by him before the inquest is actually taken. If either be omitted, the latter will be in a situation to take an inquest, at the opening of the court on the succeeding morning, or on any day after such first day, provided his notice of trial has been framed accordingly. See Kule 12 of present Rules. It would, however, be improvident to wait till so late a period as that above mentioned, before taking this necessary measure. The more usual and advisable course is to make and serve such affidavit at an early period after issue has been joined. Where practicable, such affidavit should always be made by the party himself; but, if he be unable to do so, his attorney or counsel may make it, a sufficient excuse being shown on its face. See Rule 92 of 1847, before referred to. The affidavit must be unqualified, as to the existence of a defence on the merits, and the advice on the case sworn to must be the advice of counsel, and not merely of an attorney, or it will be insuffi- cient. Once made, filed, and served, such affidavit is available to prevent an inquest at any future time, until the cause has been finally disposed of. It should be made and filed sepa- rately, and not incorporated with other proceedings in the case. The affidavit of one of several defendants, having a joint de- fence, would seem to be sufficient to prevent an inquest, as against all ; otherwise, however, if the defences be several. By Rule 92 of 18-17, before referred to, an affidavit of merits is made necessary, in actions " upon any written instrument or record, which shall be described in, or a copy of which shall be served with the declaration ;" and the form of the affidavit was there prescribed to be as follows — i. «., that the party making it had stated the case to his counsel, and that he had a " good and substantial defence upon the merits, to the plaintiff's demand, on the bill of exchange, promissory note, or other written in- strument, or the judgment, recognizance, or other record, on which the action is brought, as he is advised by his said coun- sel, and verily believes to be true." It may, therefore, be fairly argued, that, in those cases in which the action is not founded upon a written instrument or record, such affidavit is not neces- 604 FORMAL PREPARATIONS FOR TRIAL. sary at all, and an inquest cannot be taken. Where, however, there exists any, even the slightest doubt upon the subject, so obvious, and, at the same time, so easy a precaution should never be omitted. Although provided for by the recent rules, the Code is silent upon the subject of the affidavit of merits, or of the inquest to be taken -where none has been served. It was at first con- tended that a verified answer, under the Code, was sufficient to prevent an inquest; but it was speedily settled that such was not the case, and that the former practice upon the subject re- mained unaltered. See Anderson v. Hough, 1 Sandf. 721 ; 6 L. O. 365 ; 1 C. E. 50 ; Sheldon v. Martin, 1 C. E. 81 ; Jones v. Russell, 3 How. 324 ; ICE. 113 ; Dickinson v. Kimball, 1 C. E. 83 ; Hunt v. Mails, 1 C. E. 118. The strictest compliance with the letter of the rules above cited, is enforced in all the decided cases. Thus, in Richards v. Swetzer, 3 How. 413, 1 C. E. 117, an affidavit that the defend- ant had stated to counsel the facts "of his defence,'''' instead of "the case," or "the facts of the case," was held to be defect- ive. "It may be," the learned judge goes on to say, " that there was a complete and perfect answer to his defence, of which counsel was not aware." An affidavit by the defendant, of "a defence in the action," and asserting that the answers were put in in good faith, and not for delay, has, likewise, been held to be insufficient. The defendant had not sworn to the advice of counsel, nor to a de- fence on the merits. McMurray v. Gifford, 5 How. 14. An affidavit that the party had stated to counsel "the facts of this case," though not in strict verbal compliance with Eule 39— which requires a statement of "the case" — was sustained in Jordan v. Garrison, ♦'> How. 6, 1 C. E. (N. S.) 400, in accord- ance with the reference in Richards v. Swetzer, above cited, to those two expressions, as importing the same thing. Had the statement been of the facts of "his" case, it would, doubtless, have been beld bad. An affidavit, that the defendant had stated "his case in the cause," was decided to be Insufficient, as importing merely a statement of his defence, in Etta v. Jones, 6 How. 296. In common law actions, the affidavit of merits need not, in ordinary cases, be special, as was required in chancery under tie' old practice. Where, however, the defence is attended with FORMAL PREPARATIONS FOR TRIAL. 605 suspicious circumstances, the court may require the facts to be stated. Dix v. Palmer, 5 How. 233; 3 C. E. 214; Van Home v. Montgomery, 5 How. 238. In the reports of these cases, it is said that several decisions had been cited, which held that the affidavit of merits, under the Code, should be special. None, however, appear upon the reports, and it seems difficult to con- jecture on what ground this could have been held. In cases where a demurrer is put in, an affidavit of merits may possibly be necessary. See Appleby v. Elhins, 2 Sandf. 673, 2 C. R. 80, where leave to answer was refused, on judg- ment being given on a frivolous demurrer, on the ground that there was no affidavit of merits. Where the only defence put in by the defendant consists of a partial set-off, and the plaintiff omits to reply to that defence, an affidavit of merits will be superfluous. The plaintiff, under these circumstances, must allow that set-off, in the inquest to be taken by him ; and, if he omit to do so, that inquest will be set aside. Potter v. Smith, 9 How. 262. § 184. Preparations for Trial. General Remarks.'] — The cause having thus been regularly put on the calendar, and noticed by either or both of the par- ties, and the necessary measures, in order to prevent an inquest, having been taken on behalf of the defendants, it remains to notice, shortly, the preparations for the trial itself. Enforcing attendance of Witnesses, ordinary Subpoena.'] — On an issue of law, or an appeal, no witnesses, of course, are neces- sary. The proceedings for enforcing the attendance of those required upon the trial of an issue of fact, are identically the same as under the old »practice ; and, therefore, under the gene- ral plan of the work, they will not be here entered upon in detail. The statute law on the subject of witnesses, their privi- leges, compelling their attendance, &c, will be found in art. VI., title III., chap. VII., part III. of the Eevised Statutes, 2 R. S. 400 to 403 ; and the power of courts of record to issue subpoenas, at 2 R. S. 276. The punishment for refusal or neg- lect to obey such subpoena, by process of contempt, is pre- scribed in title XIII. of chap. VIII., part III. of the same 606 FORMAL PREPARATIONS FOR TRIAL statutes, 2 R S. 534 to 541 ; the witness being also punishable by fine and imprisonment, under the article first referred to. The proceedings for obtaining the testimony of a party in prison, by means of a habeas corpus ad testificandum , will be found in the first five sections of art. I., title I., chap. IX. of part III, 2 R. S. 559. The mode of service of subpoena, is, by delivering a copy of it, or a ticket containing its substance, to the witness, showing him at the same time the original writ, under the seal of the court issuing the same. Both subpoena and ticket are ordinary forms, to be procured at any legal stationer's. The fees allowed by law to such witness, for travelling to and returning from the place where he is required to attend, and the fees allowed for one day's attendance, must be paid, or tendered to such witness at the time of service, or his attendance cannot be enforced. See 2 R S. 401, sec. 52. Those fees will be found at 2 R S. 643, sec. 49. They consist of travelling fees, at the rate of four cents per mile, going and returning, if the witness resides more than three miles from the place of attendance. "Within that distance, he is only allowed the fee for his attendance, which is fifty cents for each day during which he is engaged. One day's fee must, as before observed, be paid to him, at the time of the service of the subpoena. For further particulars, if required, see the books on the former practice. Under the Code, the evidence of the adverse party is obtainable, in the same way as that of an ordinary witness, and may be compelled in the same manner — sec. 390. He must be served with a subpoena, and his expenses tendered or paid, precisely as if he were an ordi- nary witness. The subpoena, when issued, must be legally served. If force be used in an attempt to serve one, the party using it will be responsible, and will not be in any wise protected, by the pro- cess being in his hands. Ilager v. Danforth, 8 How. 435. Documentary Evidence. Subpoena duces Tecum.'] — Iii cases where documents are in the hands of any person, :uid arc required to be produced on the trial, the usual form of subposna duces tecum should be used, and the documents required to be produced, should be distinctly and FORMAL PREPARATIONS FOR TRIAL. 607 clearly stated on its face, so as to avoid the possibility of any mistake occurring. Forms are similarly obtainable, and this pro- cess must be served in the same way as the ordinary subpoena. A party compelling the production of books upon the trial, must remember that, by so doing, he makes them evidence for both sides. See Low v. Payne, 4 Comst. 247. If a witness served with this form of subpoena, neglect to pro- duce the documents required, he is liable for all damages sus- tained by that neglect, nor will his mere appearance to give evidence protect him. And, in an action for that purpose, the plaintiff will not be required to prove that he had a good cause of action. The mere fact that he was nonsuited for want of the production of the papers, will be sufficient. Lane v. Cole, 12 Barb. 680. See likewise Bonesteel v. Lynde, below cited. In Trotter v. Latson, 7 How. 261, it was considered that a party to the action, when examined, was not compellable to produce his books and papers, under a subpoena duces tecum, but that an application, in the nature of a motion for discovery, was the proper course to pursue. In Bonesteel v. Lynde, how- ever, 8 How. 226 — affirmed on appeal, 8 How. 352 — this propo- sition is combated with great force, and with full detail, and the contrary conclusion is come to ; and this view is supported by Stalker v. Gaunt, 12 L. 0. 124, in which it is stated, that such is thereafter to be regarded as the settled practice of the Superior Court ; and there seems no doubt but that, in the other tribunals also, the decisions last cited will henceforth be the controlling authority. See likewise Wiggins v. Bishop, 12 L. 0. 127 ; Stalker v. Gaunt, 12 L. 0. 132, and Jarvis v. Clerk, 12 L. 0. 129; in which last case, and also indirectly in Stalker v. Gaunt, it is maintained that the obligations of the party in this respect, extend equally to those cases where he is examined under sec. 390 of the Code, as where that examination takes place on the actual trial. A party is therefore liable, and compellable under a subpoena of this description, precisely as a stranger witness, and is similarly punishable, if he disobey the direction for that purpose. His rights to object to the inspection or the reading of those papers as evidence, when actually produced, remain, however, intact, and are in no wise prejudiced by his obedience to the subpoena. Bonesteel v. Lynde, and Stalker v. Gaunt, above cited. Notice to produce.]— I? the documents so required are in the 608 FORMAL PREPARATIONS FOR TRIAL. . sole hands, or under the sole control of the adverse party, and evidence of their import only be requisite, the former practice may be pursued, by giving a notice to produce them, or that secondary evidence will be given of their contents. See form in Appendix. That notice must be specific in its terms, and must distinctly point out what is required. See Stalker v. Gaunt, above cited. Exclusion of adverse Evidence.'] — This proceeding is admis- sible under special provisions of the Code: 1. "With reference to evidence of an account, the particulars of which have been required under s. 158, but have not been, or have been insuffi- ciently, furnished; and, 2. With reference to a paper ordered, but refused to be produced, under s. 388. With regard to the latter, it is expressly provided, that such exclusion is to be made by the court, on motion. The mode of application, under the former state of circumstances, is left without special provision. In Kellogg v. Paine, 8 How. 329, the question came before the court; and, although it was considered that the motion might possibly be made at the trial, it was held to be the better prac- tice, to apply previously for an order to that effect. It is clear that, under these circumstances, the obtaining of such an order is proper, and will be most advisable, at the present stage of the action. It should, of course, be made on the usual notice, the facts being shown by affidavit. Papers, etc., to be used on Trial."] — The last point to be no- ticed is the preparation and furnishing of the papers neces- sary for the information of the court. This is provided for by section 259 of the Code, which runs as follows : § 259. When the issue shall be brought to trial by the plaintiff, he shall furnish the court with a copy of the summons and pleadings, with th<- offer of defendant, if any shall have been made. When the issue Bbflll be brought to trial by the defendant, and the plaintiff shall neglect or refuse to furnish the court with a copy of the sum- mons ami pleadings, and the offer of the defendant, the same may be furnished i.y the defendant. Sec as to the correctness of such copies, Wilcox v. Bennett, 1 ( » I j. O. 30. Where the defendant anticipates that the plaintiff may fail to attend, he should, of course, be prepared as above. If, on the contrary, an inquest or judgment by default be antici- FORMAL PREPARATIONS FOR TRIAL. QQQ pated, a calculation of the amount for which the verdict or judgment will have to be taken, should be prepared beforehand, so as to be ready to be sworn to, on the cause coming on. In cases of remittitur with " venire denovo" where an opinion has been pronounced by the court above, a copy of that opinion will probably be required by the judge who presides at the second trial, and should be prepared accordingly. As a general rule, where any papers are likely to be required in the course of the trial, care must be taken that they are in court, and, where practicable, copies of them should be pre- pared, ready to hand in to the court, when asked for. Of course, the moving party's attorney will take care, that any docu- mentary evidence, in the custody of the clerk or other officers of the court, such as depositions taken on commission, former records, or other documents of a like nature, are ready in court, when called for, and previous notice to that effect should be given to such officers accordingly. Postponement of Trial.'] — In case a postponement of the trial be wished for on the part of the plaintiff, the court will grant an order for that purpose in any proper case, upon sufficient cause shown, on payment of costs to the defendant, and on giv- ing a stipulation to bring the cause on at the next circuit or term, (see Kule 21,) or, perhaps, without imposing those terms, if the case be one of evident necessity, and involving no hardship on the defendant. With the latter view, it will be expedient not to delajr the motion till the last moment, when expenses may have been actually incurred, and, when necessary to be made, it must of course be so upon the usual notice. In the ordinary routine of practice, however, the necessity of an appli- cation for this purpose may generally be saved, by means of a consent on the part of the opposite party, which will rarely be refused, when the cause is conducted in a fitting spirit on both sides, and the request is really reasonable. Remarks preliminary to succeeding Chapters^] — Before entering on the consideration of the actual trial of the cause, the subject of the discovery of deeds or documents, the examination of parties, and of the changes effected by the Code in the law of evidence, will be considered in the three succeeding chapters. The two former are, in strictness, special proceedings, but 39 $tf) DISCOVERY OF DOCUMENTS. they are nevertheless so peculiarly appropriate to this stage of the cause, that the present is evidently the most fitting period for their consideration ; and the latter, though especially inci- dent to the actual trial, will be more conveniently treated of in a separate form, and dissociated from the formal machinery at the hearing. CHAPTER VI. INSPECTION AND DISCOVERY OF DOCUMENTS. § 185. General Remarks, Statutory Provisions. This proceeding is provided for by the latter portion of § 888. The former part of that section relates to the enforce- ment of the admission of documentary evidence, and has been treated of in a preceding chapter. The statutory provision runs as follows : The court before which an action is pending, or a judge or justice thereof, may, in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy of any hooks, papers, and docu- ments in Iiis possession, or under his control, containing evidence relat- ing to the merits of the action, or the defence therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both. This proceeding is, in its substantial elements, the same as that of the bill for discovery, under the former chancery sys- tem. It is also expressly provided for, by the Revised Statutes, title 111., chap. I. of part 111., sections 21 to 27 inclusive; 2 K. S. 19!), 200. By these sections, the Supreme Court are empow- ered to compel such discovery, in any proceeding therein, the practice to be prescribed by rule; but, in the meantime, to be governed by that of the Court of Chancery. The application is expressly prescribed to be made by petition, verified on oath, upon which, an order for the discovery, or to show cause why DISCOVERY OF DOCUMENTS. 611 it should not be made, may be granted by the court, or by a judge. Provisions are then made for vacating such order, on proof of compliance, or of impossibility to comply with it, or that it ought not to have been granted; but all proceedings of the party against whom it is granted, are, in the meantime, to be stayed. The penalty, in case of refusal or neglect, is next prescribed, as a non-suit on the one hand, or the striking out the defendant's pleading, or restricting him in his defence, on the other, but such penalty is not to extend to any further pro- ceedings against the person or property of the party in default; and it is lastly prescribed, that any documents produced under any such order, should have the same effect, as evidence, as if produced on notice, according to the practice of the court. Rules were made by the Supreme Court in pursuance of these provisions, by which the former practice was governed. See works on that practice. But those rules are, of course, now superseded by those of August, 1849. The present Rules in relation to this practice, are Nos. 8 to 11 inclusive, and run as follows: Rule 8. Applications may be made, in the manner provided by law, to compel the production and discovery of books, papers, and docu- ments relating to the merits of any civil action pending in this court, or of any defence in such action, in the following cases : 1. By the plaintiff, to compel the discovery of books, papers, or documents, in the possession or under the control of the defendant, which may be necessary to enable the plaintiff to frame his complaint, or to answer any pleading of the defendant. 2. The plaintiff may be compelled to make the like discovery of books, papers, or documents, when the same shall be necessary to enable the defendant to answer any pleading of the plaintiff. Rule 9. The petition for such discovery shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit, stating that the books, papers, and documents, whereof dis- covery is sought, are not in the possession, nor under the control of the party apphing therefor, and that the party making such affidavit is advised by his counsel, and verily believes, that the discovery of the books, papers, or documents mentioned in such petition, is necessary, to enable him to draw his complaint, answer, demurrer, or reply, or to prepare for trial, as the case may be. Rule 10. The order granting the discovery shall specify the mode in which the same is to be made, which may be, either by lequiring the party to deliver sworn copies of the matters to be discovered, or by re- 612 DISCOVERY OF DOCUMENTS. quiring him to produce and deposit the same with the clerk of the county in which the trial is to be had, unless otherwise directed in the order. The order shall also specify the time, within which the discovery is to be made. And, when the papers are required to be deposited, the order shall specify the time that the deposit shall continue. Rule 11. The order, directing the discovery of books, papers, or documents, shall operate as a stay of all other proceedings in the cause, until such order shall have been complied with or vacated ; and the party obtaining such order, after the same shall be complied with or vacated, shall have the like time to prepare his complaint, answer, re- ply, or demurrer, to which he was entitled at the making of the order. But the justice, in granting the order, may limit its effect, by declaring how far it shall operate as a stay of proceedings. It will be observed that these Eules only provide, in terms, for the case of a discovery sought with a view to the due fram- ing of the pleadings in the cause, and are silent as to the many other occasions, on which such a discovery may become neces- sary, during the progress of a contested suit. On the other hand, the Code and Eules, taken together, clearly extend the powers of courts of justice, in relation to discovery, to all the tribunals of superior jurisdiction, except the Court of Appeals, without exception or qualification ; and Rules 10 and 11 may be considered as in part, at least, if not generally applicable to all cases, in which a discovery is proper, under either the old or the new system. The remedies above cited are concurrent ; and the party ap- plying for relief of this nature, may shape his application, either under the provisions of the Revised Statutes, or those of the Code, at his option. Follett v. Weed, 3 How. 303, 1 C. R. 65 ; Stanton v. The Delaware Mutual Insurance Company, 2 Sandf. 662; Moore v. Pentz, Id. 664. "There is no incongruity be- tween the two systems, and they may well stand together." This was held to be the case, both generally, and specially, under sec. 469, which retains the former Rules and practice, where consistent with the Code. See, likewise, Gelston v. J\far- ehall, 6 How. 898; Brevoort v. Warner, 8 How. 321 ; Lovellr. Clarke, 7 How. L58; and Hoyt v. American Exchange Bank, 1 Duer, 652, 8 How. 89. Tt is clear that the prohibition of actions to obtain discovery under oath, effected by sec. 889, does not apply to proceedings of this nature, but only to the ordinary bill of discovery for the DISCOVERY OF DOCUMENTS. G13 examination of a defendant, under the old chancery practice. See Follett v. Weed, 3 How. 303, 1 C. R. 65, above cited. When the books of an adversary are relied on, the party who does so, must take them as evidence of charges against him. His own books cannot, on the contrary, be used by him in his own favor. Low v. Payne, 4 Comst. 247. § 186. Discovery under Rules. The two systems are, in fact, to a certain degree, not merely concurrent, but distinguishable, and the distinction seems to be this: i. e., that, where the discovery sought is for the purpose of assisting in the preparation of, or with a view to answer, any pleading in the cause, the case falls more peculiarly under the provisions of the Eevised Statutes, and of the Rules; where, on the contrary, the application is made after issue, and with a view to prepare for trial, the Code more exclusively governs. This distinction is more especially drawn in Qelston v. Mar- shall, 6 How. 398, which holds that, where the application is with a view to enable the defendant to answer, section 388 is not applicable, and the application comes under the Revised Statutes and the Rules, and especially Rule 9, which provides that the applicant shall state the facts and circumstances under which the discovery is claimed, according to the old chancery practice. The papers there sought to be discovered, being apparently matters of evidence merely, and not absolutely necessary, with a view to prepare the pleading, in the first instance, the application was accordingly denied. See, like- wise, Stanton v. The Delaiuare Mutual Insurance Company, before noticed, and Higgins v. Bishop, 12 L. O. 127, where an applica- tion was denied, because framed under the provisions of the Code, and not under those of the Revised Statutes. The same distinction is also drawn in Keeler v. Dusenbury, 1 Duer, 660; 11 L. 0. 287, where an order for a discovery was altogether refused, in a proceeding, not with a view to relief, but in order to perpetuate testimony. It is also laid down that, where the discovery is sought with a view to enable a plaintiff to frame his complaint, the discretionary powers of the court will not be exercised, without strong affidavits, showing its necessity to enable the plaintiff to obtain redress. Discovery, 614 DISCOVERY OF DOCUMENTS. under the Code, should not properly be made before issue joined; there can be no merits of the case till then. See, how- ever, Miller v. Mather, 5 How. 1G0, 2 C. E. 101, below cited. In Hoyt v. The American Exchange Bank, 1 Duer, 652; 8 How. 89, the subject of discovery, in relation to specific entries in the books of an adverse party, is treated at great length, and the views of the Superior Court on the subject, are generally and distinctly stated. The concurrence of the two systems is unequivocally laid down, and the distinction between applica- tions, under the Eevised Statutes on the one hand, and under the Code on the other, is acknowledged. With regard to the former, it is held that, if a party applies under the Revised Statutes, and makes out a case, as provided for by the Rules, he has a right to a discovery. The court will, however, exercise its discretion, as to the manner in which that discovery should be made. In ordinary cases, and unless indispensable to pro- tect the rights of the party applying, the court will not order an inspection to be given, or a deposit to be made, but sworn copies of books or entries, or of papers and documents, to the discovery of which the applicant shows a right, will be ordered to be furnished. The application, in these cases, must conform exactly to the provisions of Rule 9, and the particulars, of which a discovery is sought, must be set forth, according to the old chancery practice. The opposite party cannot be subjected to a fishing examination, whether he has or has not material evi- dence in his possession, by way of mere discovery, or unless by his examination as a witness, so that his deposition may be made evidence for, as well as against him; and if, in answer to the order, he denies, fully and explicitly^, that there are any such entries, books or papers, under his control, there is an end of the application. He cannot be subjected to a general inquisi- torial examination. (See, however, Higgins v. Bishop, and Souihart v. Dwight, below cited, as containing partial qualifica- tions of the general doctrine thus laid down.) In the case now under consideration, a referee had been appointed, t<> ascertain whether a previous order for discovery, obeyed in part, had been fully complied with; Avith power for i referee to inspect the books of the defendants, for that purpose. Tl was beld that the court had no power to grant an order of that description, either cinder the Code, or under the former system. In applications under the Code, strictly speak- DISCOVERY OF DOCUMENTS. Q\fr ing, the only discretion which the court can exercise is, in determining whether an inspection will be given at all. If it grant a discovery under that section, it has no discretion in directing the manner in which it shall be made. The inspection is to be given, at all events, and the only alternative presented to the adverse party is, either to give a copy, or to submit to the inconvenience of allowing the petitioner to make one. If a party applies under the Code, he should be required to make a case, as strong and urgent as is deemed necessary to entitle him to a production of books or documents, instead of sworn copies. See, however, several cases, below cited, in which a less restricted doctrine is maintained, with reference to this last point. In the same case the question is further considered, as to the proper course to be taken by the applicant, in the event of an incomplete discovery being made, under an order to deliver sworn copies. It is held, as above noticed, that the appoint- ment of a referee to examine the books of the party is clearly inadmissible. The proper course appears to be as follows: where the sworn copies indicate that the discovery may not be complete, the party should apply to the court, for an order for his adversary to show cause why further copies should not be given ; and, unless the control of the documents, or the exist- ence of the entries be denied, a peremptory order should be granted. In that particular case, it was also considered that such copies should be verified by the oath of the president, as well as by that of the cashier of the bank there in question. See likewise, to the same effect, Meakings v. Cromwell, 1 Sand- ford, 698. In Brevoort v. Warner, 8 How. 321, similar views in relation to discovery are entertained, and the same principle is main- tained, i. e., that applications for discovery are still governed in all respects hj the old chancery practice. The distinction between applications under the Eules, and under the Code, is still more definitely drawn, it being held, that section 388 ex- tends only to inspection, (which implies production,) and a copy, and not to discovery. It is held, as in Hoyt v. The Ameri- can Exchange Bank, that a mere discovery, properly so called, should be in no other way than by the examination of the party, on which examination, the production may be accompa- nied with a statement of every thing which is necessary to pro- tect him from consequences ; and the proceeding under the 616 DISCOVERY OF DOCUMENTS. Rules is only applicable to the production of specified docu- ments, and not to a general discovery. The subject of disco- very in general is then examined at great length, and nume- rous cases cited. Although, by a bill of discovery under the former system, and by an examination of the party now, a full and searching discovery may be obtained from a defendant, still, a mere random fishing inquiry will not be indulged, and the party calling for a disclosure, must first make out a case on his own behalf, entitling him to it. An indefinite search, too, amongst the private books and papers of an adversary, will not be permitted. Where the book or document is described, and its contents known, there can be no difficulty, and the court can determine whether there shall be production and in- spection, and to what extent, and in what manner. If the appli- cant has such an interest, that he has a right to the examina- tion of the whole of the book or document, the examination may be general ; and so, of a class of books and documents, as the books kept by the agent of a party, as such agent, or the correspondence between principal and agent, &c, or as to part- nership papers. See Higgins v. Bishop^ 12 L. 0. 127 ; and Stalker v. Gaunt, 12 L. 0. 132, below cited. In cases, however, in which there is no such relation or pri- vity, it will not be proper to compel a general and unrestricted examination ; but the remedy will be confined to matters spe- cified, and, if a book be specified, and contain entries irrelevant to the applicant's case, the same objection will apply, to that extent. In that particular case, it was held that the defendant was entitled to copies of entries in the plaintiff's books, contain- ing entries of his own credits, or set-offs, but not to copies of the charges against him, unless a strong case requiring relief of that nature be shown. It was likewise considered that, where the applicant's right to a production and inspection is clear, and the request unreasonably refused, costs of the motion may be given. In Stalker v. (hand, 12 L. 0. 132, the question of discovery under the Code is again very fully ami minutely examined, and the doctrine maintained, that applications of this nature will be governed by the former chancery practice. It is there laid down, as a gencnil rule, that, where the information sought is attainable by Other means, either by the examination of wit- nesses, or of the party himself, a discovery ought not to be granted. DISCOVERY OF DOCUMENTS. 617 The subject of discovery under the Code is also again entered into at great length, and numerous authorities cited, in Terry v. Rubel, 12 L. 0. 138, which case confirms the proposition laid down in those last referred to, i. e., that a simple discovery, as such, can- not be had, unless accompanied by the examination of the party, and that the process of subpoena duces tecum will be appropriate for that purpose. In Jarvis v. Cleric, 12 L. 0. 129, and also by implication in Stalker v. Gaunt, 12 L. 0. 124, it is held that process of the latter description is appropriate, and may be enforced, as well with reference to the examination of a party under s. 890 of the Code, as when that examination takes place on the actual trial. An application for discovery was held not to be debarred by a previous offer to allow judgment on the part of the defendant, where the plaintiff avowed his object to be an amendment of the complaint, in consequence of his having found out that he had not claimed an amount that was due to' him. Merchant v. The New York Life Ins. Co., 2 Sandf. 669, 2 C. R, 66; Id. 87. § 187. Discovery and Inspection under the Code. This subject has been in some measure entered upon under the foregoing head, and particularly in the cases of Hoyt v. The American Exchange Bank, and Br&voort v. Warner, there cited. This remedy, in contradistinction to the former, is only appli- cable, as a general rule, to those cases in which issue has been actually joined, and with a view to prepare for trial ; and the case to be made out, to entitle an applicant to this species of relief, would seem to require a higher degree of interest in the event to be shown, to warrant the exercise of the discretion of the court. Where, however, the remedy is granted, it is more summary and searching in its nature, than that considered under the previous head. In cases of this description, the powers under the Code are paramount, and are not in any wise fettered by the restrictions imposed in the Rules, with reference to the peculiar class of ap- plications which are more especially governed by them. " It certainly was not intended, by the adoption of these Rules, to confine the discovery of documentary evidence to the two cases mentioned in the 8th Rule ; on the contrary, it was intend- 618 DISCOVERY OF DOCUMENTS. ed to leave all proceedings instituted under the 388th. sec. of the Code, to be governed by its provisions, uncontrolled and unaf- fected by the Rules; such, at any rate, is the case. If, therefore, the plaintiffs have presented a case which, under the provisions of the Code, entitles them to a discovery, the Rules cannot ope- rate to deprive them of that right." Exchange Bank v. Monieath, 4 How. 280; 2 C. R. 148. In the same case, it was held that it was not necessary that the affidavit on which the application is grounded should be that of the party : " the facts may be shown by the oath of any other person." And further, that it is not necessary, in such applica- tion, for the party to swear that the documents sought to be dis- covered are not in his own possession. "It is enough for him to show what the statute requires, that they are in the posses- sion or under the control of the adverse party ; and, in this re- spect, it is sufficient if he shows a state of facts which satisfies the court or officer, that the party, against whom the application is made, has the ability to comply with the order for discovery." In the same decision it is likewise laid down, that, where the application is bond fide, the order for discovery will be consi- dered almost as of course. "It is true," says the learned judge, "that the application is addressed to the discretion of the court or judge ; but, in the exercise of that discretion, no officer would feel himself justified in withholding such a discovery, when satisfied that the application is made in good faith, and that the party against whom it is made, has the ability to comply with the order, and that the books, &c, of which a discovery is sought, contain material evidence." Such application must, "nevertheless, be bond fide in every respect, or the above rule will not apply. In a case where the circumstances presented strong ground for suspicion that the proceeding was taken for the mere purpose of delay, and the application was made, after the plaintiff had more than once been thrown over the, circuit by interlocutory orders, the same judge expressed himself as follows: "It is not a matter of course to grant .-i discovery under the statute. Some degree of diligence, :it least, should he shown ; and where, as in this case, it appears that the party making the application is chargeable with gross negligence, if not with had faith, the order for a dis- covery ought not to be granted, or, if granted, should not be upheld:" and the Order in that ease was therefore vacated by DISCOVERY OF DOCUMENTS. 619 the general term. JTooJcer v. Matthews, 3 Howard, 329 ; 1 C. R 108. In a bond fide case, however, the mere question of the time at which the application is made, is not a bar to it. Thus, in The Mechanics' Bank v. James, 2 C. E. 46, discovery was grant- ed, when the cause was in progress of hearing before a referee, when the necessity for that discovery arose from evidence then introduced by the plaintiff, of which defendant had no previous knowledge. In Miller v. Mather, 5 How. 160, 2 C. E. 101, a similar order was made before issue had been joined, on the principle laid down that relief would be granted in any case, in which, under the old law, discovery might have been obtained. As a general rule, however, an application of this description will, for obvi- ous reasons, be more properly made, after the actual joinder of issue. See Keeler v. Dusenbury, 1 Duer, 660 ; 11 L. 0. 287, before noticed. The power of the court to compel a discovery, is asserted in its fullest extent, in the case of Powers v. Elmendorf, 4 How. 60, 2 C. E. 44, where it was held, that that power is unfettered by the restrictions imposed upon it, whilst exercised by the Court of Chancery, or by the Supreme Court, under the provisions of the Eevised Statutes. The discovery now obtainable is not con- fined to the evidence which the party seeking it requires for his own title, but it extends to the enabling each party to ascertain what documentary evidence his adversary holds, and upon which such adversary is relying to maintain himself upon the trial. (See, however, Brevoort v. Warner, above referred to, by which this doctrine is partially qualified, though not denied in toto.) The order granted in Powers v. Elmendorf extended, therefore, to the production and delivery of copies by the defendants, of all papers and documents " upon which they would rely at the trial," " as containing evidence to sustain the allegation in their answers," on which they relied in opposition to the plaintiff's claim. And leave was given to the plaintiffs, should the defend- ants fail to comply, " to apply for a further order that any pa- pers or documents, of which, by the terms of the order, copies ought to have been furnished, shall be excluded as evidence upon the trial ; or for such other appropriate order as the cir- cumstances may justify. The first order may be made by a judge or justice out of court, but the second order can only be 620 DISCOVERY OF DOCUMENTS. made by the court, upon evidence of a refusal to comply with the first." The power of the court, in case of a refusal to produce, does not extend, however, to compel the defendant to make any ad- mission of the plaintiff's case, beyond what would be implied from a neglect to plead. Follett v. Weed, 3 How. 360. The plaintiff is, under such circumstances, "to be placed in the same situation in which he would have been, if the defendants had suffered default for want of a plea." " The amount of his re- covery must, of course, depend on his proof of the amount of injury sustained. Under the measure of 1848, the powers of the court extended only to papers, and not to books. See ear- lier report in same case, 3 How. 303, 1 C. R. 65, but that defect is now remedied. An offer to allow the plaintiff to take judgment for the amount of his claim, under sec. 385, was held to be no bar to a motion for discovery, where the plaintiff avowed his intention to amend his complaint, having discovered that he had not de- manded all that was due to him. Merchant v. New York Life Insurance Company, 2 Sandf. 669, 2 C. E. 66, further reported, 2 C. R. 87. § 188. Mode and Course of Application. Petition proper Form^\ — In The Exchange Bank v. Monteath, 4 How. 280, 2 C. R. 148, above cited, the court was disposed to consider that an application of this nature might be made on affidavit only, without being founded on a petition, as required by the Revised Statutes. Even if this doctrine be admitted, it is clearly only applicable to a motion under sec. 388, and not to that class of cases which fall peculiarly under the provi- sions of the Rules. Rule 9, as regards these cases, expressly provides the contrary. In any case, however, the proceeding by petition will be admissible. Sec Follett v. Weed, Lovell v. Clarke, and other cases, above cited, in reference to the pro- visions of the Code and the Rules being concurrent; and, in Dole v. Fellow, 6 How. 451, l 0. EL. (N. S.) 146, it was ex- pressly held that the application must bo grounded on peti- tion in all cases, and a motion, on affidavit only, was accord- ingly denied. DISCOVERY OF DOCUMENTS. 621 An application by petition will therefore be, at all events, the most prudent mode in all cases. For forms, see Appendix. A copy of the petition and affidavit of verification, and of any other affidavits or evidence, if any, to be used on the mo- tion, must be served on the opposite party, with the usual notice of motion grounded thereon. See Appendix. Or, the notice may be framed in the form of an order to show cause, if an interim stay of proceedings be advisable. Opposition to Motion.'] — It is, of course, competent to the party against whom relief is sought, to oppose it, on the return of the notice or order, on any of the usual grounds, and to introduce counter affidavits for that purpose. Those affidavits must, how- ever, be certain and positive. Where, therefore, a defendant swore that he had no recollection "of a receipt asked for, that he had searched for it, but without finding it, and that he be- lieved it was lost or mislaid, and, to the best of his knowledge or information, no such receipt was in his possession, or under his control," such excuse was held to-be insufficient. "A party, to excuse himself from making a discovery of any pa- pers, alleged on oath by the adverse party to be in his posses- sion, must make an affidavit in the terms prescribed by the Revised Statutes, and swear positively that the papers are not in his possession, or under his control." Souihart v. Dwight, 2 C. R. 83, 2 Sandford, 672. "He must make such an ex- amination as to enable him to do this, or state facts, with his denial, when expressed as it is here, which will show that such denial is equivalent to the positive oath required by the sta- tute." Where, however, the party makes a positive and complete denial to the latter effect, there is an end of the application. See Hoyt v. The American Exchange Bank, above cited. . See, however, Higgins v. Bishop, 12 L. O. 127, below referred to. The only course to be pursued, under those circumstances, will be an examination of the party. See same case, and also Bre- voort v. Warner, before noticed. And the production of the documents required may, under these circumstances, be com- pelled by the ordinary process of subpcma duces tecum. See Bonestecl v. Lynde, Stalker v. Gaunt, Higgins v. Bishop, and Jarvis v. Cleric, as cited in the last section, overruling Trotter v. Latson, to the contrary effect, as there detailed. 622 DISCOVERY OF DOCUMENTS. If the motion for a discovery or inspection be refused, the prevailing party will be entitled to draw up and serve the order thereupon, in the usual manner, though, unless an interim stay of proceedings have been obtained, this will scarcely be re- quisite. Course of Applicant, when Motion granted^ — If the order be granted, care must be taken, in framing it, to comply with the requisites of Rule 10, as above cited, and to specify the mode of such discovery, the time within which it is to be made, and, if a deposit be directed, the period for which such deposit is to continue, as thereby prescribed. See Appendix. It must, of course, be drawn up, and served upon the opposite party, in the usual manner. The effect of the granting of such an order, in indefinitely extending the time to plead, as regards the party by whom it is obtained, and effecting a general stay of proceedings, until com- plied with or vacated, will have been noticed under Eule 11. Of course, the stay of proceedings hereby granted expires, ipso facto, on a due compliance with the order, without any necessity for a further application to the court. The mode of enforcing a full and efficient compliance with an order of this description, and the penalty for its disobedience, have been already in part considered. See Powers v. Elmendorf Hoyt v. The American Exchange Bank, and Follettv. Weed, above cited. It will be observed that the remedy is much more sum- mary under the Code, than under the Revised Statutes. In fact, there seems no limit to which the powers of the court to "punish the party refusing," might not be carried, in an ex- treme case, though, as yet, no instance of the kind appears to have occurred. An application for a commitment for contempt, made in the ordinary form, is the evident remedy for an ex- treme case of this description, should such a case arise. Under ordinary circumstances, an order, excluding the document from being givi n in evidence, according to the course prescribed in I'm/- /. v. Elmendorf will be sufficient to insure justice between the parties. Where, however, the document retained by the adverse, is essentia] to the case of the moving party, an appli- cation for ;i commitment will be clearly appropriate, or the motion might possibly be made, that the pleading of the ad- verse party be stricken out altogether, and judgment given in DISCOVERY OF DOCUMENTS. 623 favor of the applicant. That mode of "punishment," (to use the terms of the section,) seems highly appropriate, and this view is confirmed by Bonesteel v. Lynde, 8 How. 226, affirmed 8 How. 352, above cited, in which an order of that description was granted, on the fraudulent neglect of the defendant to produce a paper, essential to the plaintiff's case, under a subpoena duces tecum ; a state of circumstances which presents an evident analogy with that here in question. Mode of Proceeding in referred Cases.] — The power to order the production of books, &c, is limited to the court, or to a justice thereof, and cannot be exercised by a referee, even of the whole issue, where there is no special provision to that effect, in the order of reference. Where, however, a referee is ordered to take accounts, his certificate that the production of books and papers is necessary, will be presumptively sufficient to warrant an order for their production, and the burden of showing the contrary will lie on the adverse party. Frazer v. Phelps, 3 Sandf. 741 ; ICE. (K S.) 214. In such a case, therefore, the referee's certificate should be obtained at once, and an application be made to the court thereon in the usual manner, either on notice or on order to show cause. As, however, the necessity of such production will usually be anticipated, at the time when the reference is actually made, an original provision to that effect will be the more advisable course, and will save trouble in the subsequent proceedings. In Fraser v. Phelps, again reported 4 Sandf. 682, it is ex- pressly held that, on a reference to take an account, in a clearly equitable suit, the court will grant express power to the referee to compel the production of such books and papers as may be necessary, and will enforce his directions in that respect, by attachment, to be granted on a previous order to show cause, on the return of which, the question of the propriety of that direction may be inquired into and passed upon. The Code does not limit or abridge the powers which Courts of Equity were accustomed to exercise, in suits for an account, and will clothe the referee with the same authority, as that of a master under the old practice. This view is confirmed by Higgins v. Bishop, 12 L. 0. 127, and it was held that, in a case of taking accounts, as regards parties, between whom a right and liability to account is estab- 624 EXAMINATION OF PARTIES. lislicd, an order of this description will be granted, notwith- standing the adverse parties may have made the statutory oath, as to the absence of material entries. The party entitled, as of right, to an examination, is not bound to be satisfied with the oath, under these circumstances. He is entitled, as under the old practice, to examine the books, and to judge for himself, whether there are entries in them material to the cause, the usual course as to sealing up other entries being observed. The application in that case being framed under the Code, and not under the Revised Statutes, was, on that ground, denied, but without costs, an election being given to the plaintiff, either to apply for an order of the above description, authorizing the referee to require the production and deposit with him of the books in question, or, to examine the defendant on a subpoena duces tecum. CHAPTER VII. EXAMINATION OP PARTIES. § 189. Nature of Remedy. General Remarks.'] — The provisions of the Code in this re- spect, are an amplification of an original measure upon the subject, c. 4G2 of the Laws of 1847, the most important pro- visions of which are incorporated in the present enactments. The views of the commissioners, in submitting those provisions to the legislature for their approval, are thus stated by them in pages 2-1 ! and 245 of their report: "One of the great benefits to be ex j h scted from the examination of parties, is the relief it will afford to the rest of the community, in exempting them, in a considerable degree, from attendance as witnesses, to prove facts which the parties respectively know, and ought never to dispute, and would not dispute, if they were put on their oaths. To effect this object, it should seem necessary to permit the examination beforehand, that the admission of the party may save the necessity of a witness." EXAMINATION OF PARTIES. 625 Substitute for Bill of Discovery.'] — This sentence seems more peculiarly to point to the relief to be afforded, in bringing an ordinary common law action to trial. Another most important object is, however, answered by the provisions in question, and that is, the fulfilment of the purposes which, in chancery cases,' were answered by a bill of discovery, and also by the ordinary interrogatories in a bill in equity, of whatever nature. The latter form no part of the system of pleading as provided for by the Code, whilst the former is expressly abolished. The only remedy, therefore, that parties now possess in these respects, will be, for the future, under the provisions about to be con- sidered. Those in the preceding chapter are inefficient, for the purpose of discovery generally considered. They only enable a party to call for specified documents or entries. Discovery, as hereto- fore obtainable in equity, can only be had by means of the present form of application, and, where the production or dis- covery of documents is sought to be collaterally obtained, the proceedings under this chapter should be accompanied by the ordinary process of subpoena duces tecum, under which the party will be compellable to produce them, in the same manner as an ordinary witness, on the trial of a cause, subject to his power to object to, and that of the court to qualify, the extent of the pro- duction and inspection by the adverse party, as heretofore exer- cised, on the production of documents, at the actual trial of a cause. See these subjects heretofore considered in the two pre- ceding chapters, under the head of Discovery under the Code and Rules, and of /Subpoena. See likewise the different cases there cited, including as follows, viz. : On the general question, Hoyt v. The American Exchange Bank, 1 Duer, 652, 8 How. 89 ; Bre- voort v. Warner, 8 How. 321 ; Stalker v. Gaunt, 12 L. 0. 124 ; Same case, 12 L. 0. 132 ; Terry v. Rubel, 12 L. 0. 138 ; Higginsv. Bishop, 12 L. 0. 127. As to the remedy by subpoena duces tecum, Bonesteel v. Lynde, 8 How. 226, affirmed 8 How. 352 ; Stalker v. Gaunt, 12 L. O. 124; Higgins v. Bishop, 12 L. 0. 127 : Jarvis v. Clerk, 12 L. 0. 129, (which is express authority, that the process of subpoena duces tecum is applicable to this peculiar mode of examination, Stalker v. Gaunt being implied authority to the same effect ;) Stalker v. Gaunt, further reported, 12 L. 0. 132 ; Terry v. Rubel, 12 L. 0. 138, overruling Trotter v. Latson } , 7 How. 261. The above cases are also in point, to the effect 40 626 ■ EXAMINATION OF PARTIES. that the examination, for the above purposes, most of necessity- be conducted, so far as the discovery of documents is concerned, on the principles in force in Courts of Equity, under the former practice, in relation to the proceeding by bill of discovery ; and 'as to the rights and liabilities of the parties respectively, in connection with that form of proceeding. The actual view taken in the above case is in fact clear, from the proviso of the Code itself, abolishing the former proceeding by bill of discovery, as thus contained in sec. 389 : § 389. No action to obtain discovery on o;ith, in aid of the prosecu- tion or defence of another action, shall be allowed, nor shall any exami- nation of a parly be had, on behalf of the adverse party, except in the manner prescribed by this chapter. In Dunham v. Nicholson, 2 Sandf. 636, it was held that the prohibition in this section does not apply to an action in the nature of a former creditors' suit, where an execution had been issued and returned unsatisfied, before the operation of the Code. " That provision does not apply to the examination of a debtor touching his property, but to the ordinary discovery, sought by bill, and made by answer. This proceeding is in aid of an exe- cution, on a judgment already obtained. The creditors' suit, in respect to existing cases, is not in terms abolished, and there is no other remedy open to the plaintiff. All existing remedies not inconsistent with the Code, were retained." See also Quick v. Keekr, Id. 231. The prohibition clearly extends, however, to all such pro- ceedings, in an actually pending action, with a view to the trial and prior to judgment. § 190. Mode of Examination. Statutory Piwisions.] — The examination of a party to the action, may take place cither at, or previous to the trial. The provisions fur this purpose are contained in sections 390 and 891, which run as follows : 8 890. A party to an action may be examined as a witness, at the rice of the adverse party, or of any one of several adverse parties, and, for that purpose, may be compelled, in the same manner, and sub- ject to the same rules of examination as any other witness, to testify, either at the trial, or conditionally, or upon commission. EXAMINATION OF PARTIES. (J27 § 391. The examination, instead of being had at the trial as pro- vided in the last section, may be had, at any time before the trial, at the option of the party claiming it, before a judge of the court or county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless, for good cause shown, the judge order otherwise. But the party to be examined, shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance. The question as to how far parties so examined, are or are not competent to testify, or how far their testimony is or is not receivable, will be considered in the succeeding chapter. The remarks in the present, will be confined to the formal proceed- ings to be adopted on such examination, when the same takes place in a preliminary form, as above provided, and to the cases immediately bearing upon that point. In Brockway v. Stanton, 2 Sandf. 640, 1 C. E. 128, it was held, that there is nothing in the remainder of the Code to qualify the above provisions, with reference to the examination of a party by commission, out of the State, and that he can accord- ingly be so examined. When Examination may be had.~\ — Considerable discrepancy of opinion has existed, as to the extent of the powers conferred, in relation to the examination of parties before trial. The point on which that discrepancy has chiefly existed, has been as to whether that examination can, or cannot be had, before issue joined. In Balbiani v. Grasheim, 2 C. E. 75, the plaintiffs requiring to examine the defendant, with a view to prepare the particulars of their demand ; the court dismissed their application for that purpose, holding " that a party could not be examined before issue joined; and that, after issue joined, he was placed on the same footing, and could only be examined under the like cir- cumstances as an ordinary witness." See, also, Bennett v. Hughes, 1 C. E. 4. If the principles here laid down be carried out to their full extent, it is obvious that they amount to a complete nullifica- tion of the remedy formerly obtainable by bill of discovery. The case in question cannot, therefore, be considered as of authority. It is, in fact, virtually overruled by the effect of the decisions below cited. (>28 EXAMINATION OF PARTIES. In Miller v. Mather, 5 How. 160, 2 C. K. 101, it was held, on the contrary, " that a party to the suit may be examined as a witness, before the joining of issue in the action. Such exami- nation being provided by the Code, as a substitute for the former bill of discovery, is governed by the rules applicable to such bills, and a discovery, by bill of discovery, might be had at any time during the progress of the suit." In Taggard v. Gardner, 2 Sandf. 669, 2 C. K. 82, it is laid down, unconditionally, that a defendant may be examined as a wit- ness, before the trial, without an order being first obtained. In Partin v. Elliott, 2 Sandf. 667, 2 C. E. 6(y, the objection was taken that a party could not be examined before the trial, unless on the grounds prescribed in the Revised Statutes for taking testimony in that manner : but such objection was over- ruled by the court, and an unconditional order for the examina- tion of the party made, the following principles being laid down : " The 391st section is positive and express, that the examination may be had before the trial, at the option of the party claiming, and that, instead of being had at the trial. The examination before the trial was designed to aid parties in pre- paring for trial, irrespective of the residence of the party sought to be examined, or the probability of his being able to attend the trial." See, also, Anderson v. Johnson, 1 Sandf. 713 ; 1 C. R. 95. In these last cases, the cause was at issue at the time of the application, and the necessity of such being the case, in order to an application of this nature, is strongly insisted upon in Chichester v. Livingston, 3 Sandf. 718; 1 C. R. (N. S.) 108. It is, however, virtually admitted that such an examination may be necessary, in order to enable the party seeking the discovery to answer or reply ; but it is held, that, in such cases, " an examination ought not to take place, unless by special order of the court, on cause shown by affidavit, as to the necessity of the examination." It is also admitted, that an examination of a party about to depart out of the jurisdiction, might be an exception, and that, on a proper application, "such examination might doubtless be had before i lie. The conclusion come to is thus summed up : "As this is an interesting and important question of practice, I have conferred with all my associates, and they are all of opinion, with me, that, where a party is examined as a witness. EXAMINATION OF PARTIES. 629 before the trial, merely for the purpose of avoiding the neces- sity of calling him at the trial, then such examination can only take place after issue joined. " I do not mean to decide, nor is it necessary to determine, in disposing of this motion, whether a party can be examined by his adversary, in order to enable the adversary to answer or reply. It is possible that a case might be presented, where it would be evident that the ends of justice required such an ex- amination before answer or reply, even under the present law, which gives the absolute right to such examination after issue joined." In Keeler v. Dusenbury, 1 Duer, 660, 11 L. 0. 287, it was held that an examination of this nature cannot be had, for the pur- pose of proceedings to perpetuate testimony. It is also held that a defendant cannot be examined, as of course, under the provisions now in question, after service of summons only, and with a view to enable the plaintiff to frame his original com- plaint ; and the propriety of granting such an application is doubted, without strong affidavits, showing its necessity to en- able the plaintiff to obtain redress. In Roche v. Farran, 12 L. 0. 121, a similar view is taken. The subject of discovery in general is entered upon at length, and it is considered that the provisions of the Code have, in effect, annulled the right of a plaintiff to have a discovery, as such, before action. The Code only gives the remedy, as above, in an action actually pending, and seems to presuppose that the complaint has been drawn, in cases where a summons for relief is proper. The application for leave to examine the defendant in the first instance, was therefore denied, on the ground that the facilities given for amendment, on the coming in of the first answer of the defend- ant, and for examination of the defendant at large, after such answer has come in, render such a mode of procedure wholly unnecessary. The conflict in opinion which exists in the above decisions seems, however, on examination, to be more apparent than real. Those in Balbiani v. Grasheirn, and Bennett v. Hughes, may be fairly laid out of the consideration. The latter was pronounced at so early a period, and is so entirely at variance with subsequent decisions, that it may be disregarded. The Code has failed to draw a distinction, between proceedings of a legal and equitable nature, and between examinations for the 630 EXAMINATION OF PARTIES. purpose of preliminary discovery, arid those intended as part of the preparations for actual trial, and instituted with a view to the examination of the party being read on that occasion, instead of his evidence being taken, viva voce. If this distinc- tion be drawn, the above cases appear, in all main points, to be reconcilable, notwithstanding their apparent discrepancy. In examinations of the latter nature, the party is, under sec. 395, at liberty to testify on his own behalf, " on any matter pertinent to the issue," and this can hardly be the case before issue is joined, a point strongly insisted on in Chichester v. Livingston. On the other hand, in proceedings taken in lieu of a bill of discovery under the old practice, a denial of the examination until after issue joined, would amount to a practical denial of any remedy in the premises, a result which could hardly be contemplated, and might even be held to be unconstitutional. In Chichester v. Livingston, the powers of the court to grant relief of this nature on a special application are not denied,'but, on the contrary, virtually admitted ; and the due exercise of that power, Avill practically obviate the inconvenience which might otherwise be experienced. The cases of Keeler v. Dusen- bury, and Roche v. Farran, are both " sui generis" and there can be little, if any doubt, that the doctrine there held is sound, and will be upheld in practice, a special application to the court being always feasible, should a special state of circum- stances arise, which may properly call for a special inter- position. Notice to Defendant, or Order in lieu thereof.] — The form of the notice prescribed by sec. 391 will be found in the Appendix. In Taggard v. Gardner, 2 Sandf. 6G9, 2 C. R. 82, it was held, that all that is necessary, in order to obtain an examination of the opposite party, under sec. 391, is to give such party a no- tice of at least five days, and that "the only case in which an order for the examination is necessary, is where the party seek- ing it wishes it to be had <>n ;i shorter notice than five days." This view seems elearly correct, and in exact conformity with the statute. It was also held, in the same case, that, in addition to the notice, In; Bhould be served with a subpoena in the usual manner, whereon to ground proceedings to compel his attend- ance, in the event of his refusing to obey the notice in the first instance. In Jarvis v. Clerk, 12 L. 0. 129, this conclusion is EXAMINATION OF PARTIES. 631 reviewed, with reference to the provision under section 392, that a party so examined may be compelled to attend, in like man- ner as a witness who is to be examined conditionally, and it is held that the proceedings in an examination of this nature, are to be substantially governed by the Eules prescribed by the Revised Statutes, in relation to the examination of witnesses de bene esse ; and that, although a subpoena is not necessary, a sum- mons on the part of the court is, and that such a summons must be obtained, and served accordingly, accompanied by the ordinal process of subpoena duces tecum, in cases where a disco- very is sought, in addition to the personal examination of the party. It was held therefore that, with a view to ulterior pro- ceedings at all events, a mere notice under the Code is not suffi- cient, but a summons of the above nature ought to be obtained and served. The result of these decisions seems to be, that, where no ma- terial opposition is expected, a simple notice under the Code will probably suffice, to insure the attendance of the party, and to render the examination, when taken, admissible for all pur- poses, in the event of his attendance, and submission to be exa- mined. The notice in question must distinctly specify the time and place of examination, and must be .duly served. It must also be served upon " any other adverse party," or the proceed- ing will be irregular, and the examination useless for all practi- cal purposes. In cases where a strenuous opposition is expected, it seems that the course prescribed in Jarvis v. Clerk will be unques- tionably prudent, if not absolutely indispensable, and that it will be the more convenient course, to obtain and serve in the first instance, an exparte order to the same effect as the notice in question. This mode of proceeding appears to be in general use, and was adopted in the majority of the cases above cited, while it presents many independent advantages, particularly with reference to ulterior proceedings, as before noticed. If an order of this description be obtained, it should point out the consequences of a non-attendance, or a second order, involving those consequences, cannot be obtained on a default taken under it. Anderson v. Johnson, 1 Sandf. 713 ; 1 C. E. 95. See form of order in Appendix. It seems advisable to take the same course on a notice also, and the form given is adapted accordingly. 632 EXAMINATION OF PARTIEa In Anderson v. Johnson, above cited, it was held that a defend- ant might be examined within a district, not his actual residence, but in which, the order, and all other papers in the cause, had been served upon him ; and, likewise, that a defendant, under such circumstances, "should be treated as a witness, and must be paid his fees, before he could be required to attend." Course of Examination.'] — The mode of procedure, and the final disposal of the deposition, when taken, is provided for by sec. 392. It is to be taken and filed by the judge, in the same manner as an examination taken de bene esse under the Revised Statutes, and may be read by either party on the trial. In prac- tice, however, the examination is rarely taken by the judge in person. It is usually conducted at the chambers of the court, or elsewhere, by consent, the evidence being taken down by the examining party, and any questions that may arise, pending that examination, submitted to the judge for his decision, either each pro re nata, or several at one time, as may be most conve- nient. The admissibility of questions asked, are clearly matters proper for decision at the time : the admissibility of the evi- dence given in answer to those questions, will, as a general rule, be reserved for consideration, when the deposition comes to be made use of at the trial, and not passed upon during the actual examination, the objection being simply noted on the deposition. When an adjournment takes place, pending the examination, it should be noted on the deposition, or, more usually, on the notice or order under which the party attends, and the judge's signature should be obtained to it. At the close of each day's proceedings, the party should sign that portion of the deposi- tion, and be sworn to it, so far, and the usual jurat annexed :md signed by the judge. The same ceremony must, of course, be observed at the conclusion of the deposition, whenever completed. The party must necessarily be sworn in the first instance, and the only correct practice will be that, before his final signature, the deposition should be read over to or by him, and any errors corrected, before he signs it. When done, it ought to be filed at once with the clerk of the court, as, if this he Omitted t<> be done within a reasonable time, it cannot be read at the trial. Ten days would appear to be a reasonable time for such purpose, by ;ina.l<> tender his own evidence, in respect to such new matter. Tin: effect of <-\ idenro, so given is, however, open to all proper comments, arising out of the peculiar position of the party who gives if. Tin- court and jury are not bound to believe the party so testifying, and to decide according to his testimony. EXAMINATION OF PARTIES. (J35 It was the intention of the Code, in giving these powers, to confer a wide discretion, as to the credit to be given to this description of evidence; and the rule, as now established, per- mits the court and jury to believe that part of an admission, which charges the party who makes it, and to disbelieve that part which discharges, where the latter is improbable on its face, or is discredited by the other testimony. Roberts v. Gee, 15 Barb. 449. Examination of Parties interested?^ — The following provision is made by section 396, as regards parties interested in the action : § 39G. A person for whc-e immediate benefit the action is piosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examina- tion, as if he were named as a party. A party may also be examined on behalf of his co-plaintiff or co-defendant, under certain restrictions, under sec. 897, as cited in the next chapter. It was held, under the Code of 1848, that co-defendants could not be examined by each other, without a special order, as pro- vided by No. 63 of the late Supreme Court Rules, in equity. Roberts v. Thompson, 1 C. R 113; Taylor v. Mairs, 1 C. R. 123. Under the present provisions, there seems to be no distinction to be drawn between this case, and that of a party adversely examined, as regards the form of the proceedings. It might, however, be the more prudent course, to obtain an order in all cases, as before noticed. The provisions for enforcing the attendance of such parties, were not in the measure of 1849, but were inserted on the amendment of 1851. The examination of an assignor of a chose in action, is also specially provided for by sec. 399, as cited in the next chapter. This provision is, however, more peculiarly applicable to an examination upon the actual trial. See this, and the foregoing subject, more fully considered, in the succeeding chapter, and the cases there cited. § 191. Refusal to testify. The effect of a refusal to attend and testify, when duly required, is thus provided for by sec. 394: 636 EXAMINATION OF PARTIES. §394. If a party refuse to attend and testify, as in the last four sections provided, he may be punished as for a contempt, and his com- plaint, answer, or reply, may be stricken out. In order to ground the taking of an order, to the effect of the last portion of this section, by default, the original notice, or order to show cause, should clearly point out that such an appli- cation will be made, or the order on default will be refused. "Good reasons might be shown, why, even on the disobedience of the party, some other penalty than striking out his defence should be imposed." Anderson v. Johnson, above cited. It was also considered, in that case, that a joint defence could not be stricken out, on the ground of such a refusal, on the part of one only of such parties. The prerequisites, in relation to service, &c, in order to obtain an order of the nature here provided, have been already treated in the previous section. See that section, and the dif- ferent cases, especially that of Jarvis v. Clerk, there cited. Under ordinary circumstances, the course adopted by the court will probably be to punish the party for a contempt. See Anderson v. Johnson, and Taggard v. Gardner, above noticed. In Bennett v. Hughes, however, 1 C. E. 4, it was considered that the court possessed no such power, and that the applicant was confined to the remedy given by the law of 1847. This decision was under the Code of 1848, and its authority appeared doubt- ful, even under that measure. Under the section, as it now stands, there can be no doubt of the power of the court in this respect. In extreme cases, however, and where actual fraud is shown, or, where the whole of the moving party's case evidently depends upon the testimony of the party sought to be examined, the remedy of striking out the pleading of that party will be appro- priate, and, on a proper application, will doubtless be granted. In Bonesteel v. Lynde, 8 How. 228, affirmed, 8 How. 352, relief of this description was given, in the analogous case of a party required to produce, <>n a suIj/hi'iki duces tecum, a document on which bis adversary's case rested, and which he had fraudulently obtained; and the same principle would necessarily govern, in the event of a refusal to testily, involving similar consequences. RULES OF EVIDENCE. 637 CHAPTER VIII. OF THE RULES OF EVIDENCE, AS AFFECTED BY THE CODE. § 192. General Outline of Subject — Statutory Provisions. To enter into any examination of the law of evidence in ge- neral, would clearly be beyond the scope of the present work. The following observations will, therefore, be confined to the provisions made by the Code upon that subject, and to the de- cisions bearing upon those provisions, without any attempt at its more extended consideration. The provisions of the Code, in the above respects, are as fol- lows: By sec. 397, it is provided as under, in relation to the exami- nation of co-plaintiffs or co-defendants : § 337. A p^rty may be examined on behalf of his co-plaintiff, or of a co defendant, as to any matter in which he is not jointly interested or liable with sucb co-plaintiff or co-defendant, and as to which a separate, and not joint verdict or judgment can be rendered. And he may be compelled to attend, in the same manner as at the instance of an adverse party, but the examination thus taken shall not be used in the behalf of the party examined. And whenever, in the cases mentioned in sec- tions three hundred and ninety and three hundred and ninety-one, one of the several plaintiffs or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action or defence, and shall be so received. The following provisions are made by sees. 398 and 399, in relation to witnesses in general : § 398. No person offered as a witness, shall be excluded by reason of his interest in the event of the action. § 399. The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended. When an assignor of a thing in action or contract is examined as a wit- ness, on behalf of any person deriving title through or from him, the 638 RULES OF EVIDENCE. adverse party may offer himself as a witness to the same matter, in his own behalf, and shall be so received. But such assignor shall not be admitted to be examined, in behalf of any person deriving title through or from him, against an assignee, or an executor or administrator, unless the other party to such contract or thing in action, whom the defend- ant or plaintiff represents, is living, and his testimony can be procured for such examination, nor unless at least ten days' notice of such in- tended examination of the assignor, specifying the points upon which he is intended to be examined, shall be given in writing to the adverse party. An analogous reform to the above has already been accom- plished in England, by the Act 6 and 7 Vict. c. 85, from which measure, the two last sections, as they stood before the last amendments, were taken almost verbatim. A collection of Eng- lish decisions upon the subject, will be found at 1 C. E, 55. The more convenient mode of treating the subject proposed, will be to consider, in the first place, the cases bearing upon the examination of parties as such, and, in the second, those in relation to witnesses in general; although the two subjects are necessarily dependent upon each other, and many of the author- ities upon either subject have a double bearing upon both. § 193. Evidence of Parties* as such. Of Co-plaintiffs and Co-defendants, how far admissible — Test of admissibility.'] — The law on this subject is now clearly defined by sec. 397, as above cited. Where parties sue, or are sued, simply and exclusively as joint debtors or joint contractors, their evidence is clearly inadmissible, to charge or discbarge other parties in the same interest. Where the right or liability La joint and several, the power or propriety of a several judg- ment being entered, will form the criterion of admissibility or non-admissibility. The cases bearing on this subject, both before and after the amendment of 1851, which defined the law, as above, will be noticed. On examining these cases, a very material distinction will be perceived, between actions on con- tracts, and those sounding in tort. In the latter, the admissi- bility of the evidence of CO-defendantS may be looked upon as the general rule; in the former, it rather constitutes the excep- tion. The analogous question, as to the evidence of interested RULES OF EVIDENCE. 639 persons, not actual parties to the action, will be entered upon in the next section. Under the Codes of 1848 and 1849, the extent to which the evidence of co-plaintiffs and co-defendants might be made use of, under the powers conferred by sec. 397, became the subject of long and doubtful discussion, and the point remained to a great degree unsettled, until provided for by the recent amend- ments in that section, although a result, in accordance with those amendments, was in process of being arrived at. In Merrifield v. Cooler/, 4 How. 272 ; and The Mechanics and Farmers 1 Bank v. Wilbur, 2 C. E. 33, the principle now ex- pressly adopted, i. e., that joint contractors or joint debtors can- not be admitted to testify on behalf of each other, and that the propriety or non-propriety of a several judgment being entered, is the proper test by which the admissibility of parties offered as witnesses is to be tried, was distinctly laid down. In Henry v. Henry, 8 Barb. 588, where a judgment confessed by fraud was sought to be set aside, and're-payment of moneys received under it obtained, as against the confessee ; the evi- dence of the party who confessed such judgment was rejected, on the ground of his having an interest in having the amount sought to be recovered, applied in extinguishment of the judg- ment against him. In Dodge v. Averill, 5 How. 8, it was held that, in an action before the Code, a defendant in tort, upon whom process had not been served, could not be examined on behalf of his co- defendant. Section 399 excludes him, said the learned judge, as being a party to the action, and also interested. In Thompson v. Blanchard, however, 4 Comst. 403, where one defendant in trover had pleaded, and the other suffered judgment by default, the latter was held to be a competent wit- ness against his co-defendant. Of course, the authority of the latter decision is dominant. A like conclusion is come to in Robinson v. Frost, 14 Barb. 536, where, in an action in tort, against two defendants, it was held that one of them, who had not been served, was no longer a party, and was therefore a competent witness for either side ; and, on the same ground, it was held that the examination of a defendant so situated, did not authorize the examination of a co-plaintiff, on behalf of the plaintiffs, under sec. 395. See like- wise Leach v. Kelsey, 7 Barb. 466, below cited. 640 RULES OF EVIDENCE. The converse of the foregoing proposition, i. e., that the sepa- rate acts of individual defendants in tort, ought not to be ad- mitted in evidence, to charge defendants not present, in the absence of any proof of conspiracy, is held in Carpenter v. Sheldon, 5 Sanclf. 77. In Parsons v. Pierce, 3 C. E. 177, 8 Barb. 655, it was held that, in actions of tort, since the Code, a defendant might be called as a witness on behalf of his co-defendant, but his testi- mony was, in that case, to be confined to facts to go in total exoneration of the party calling him, and he was not to be allowed to testify on the question of damages, in reducing which he had an interest. The decision was that of a majority at general term, Shankland, 0. J., dissenting as to the exclusion of the testimony of the particular witness there in question, but not on general grounds. In the course of his opinion, in which the law on the subject is elaborately examined, that learned judge lays down the following general principle: "Upon the fullest consideration, I have no doubt that, in actions com- menced since the Code, a plaintiff or defendant may, in all cases, call their fellow-plaintiff or defendant to testify to all questions pertinent to the cause, and that judgment may be entered in accordance with the facts, in every diversity of form, as was formerly done by decrees in the Court of Chancery." In Munson v. liegeman, 10 Barb. 112, reported as Munson v. JFagerman, 5 How. 223, it was decided that one of two de- fendants charged with a joint offence, could not be a witness for the other. The first clause of sec. 397 was intended as a substitute for the old rule in chancery on the subject, under which, co-defendants in the same interest could not be examined for each other. A similar view appears to have been taken by the New York Common Picas, in a case of Johnson v. Wilson, referred to in 1 C. R (N. S.) p. 40, in note. The decision in }funson v. liegeman, has, however, been re- versed by the Court of Appeals, 12th April, 1S53, on the ground that, as separate judgments might be entered in such cases, either defendant might avail himself of the testimony of the other. In Finch v. Cleveland, LO Barb. 200, it was held that, in an action of trover against three defendants, in which the acquittal of one did not qi ce arily lead to the discharge of the other, one defendant might be examined for his co-defendants, under this section, as it stood before amendment. RULES OF EVIDENCE. (541 In Lobar v. Koplin, 4 Corast. 547, it was held that where, on a trial for a joint assault, no evidence appeared against one of the parties, he was entitled to be discharged, for the purpose of being examined as a witness against his co-defendant. If, how- ever, there is any, even the slightest evidence against him, he cannot be so, and the case must go all together to the jury, his evidence of course being inadmissible under such circumstances. In Selkirk v. Waters, 5 How. 296, 1 C. R (N. S.) 35, the view taken in Parsons v. Pierce is confirmed ; and it was held, in op- position to the views of the court below, in Munson v. liegeman, that a defendant may be examined as a witness in behalf of his co-defendants, in all cases where a separate judgment may be entered in favor of the latter, and that such co-defendant is r therefore, a competent witness in all joint and several actions, whether on contract or on tort. He is also a competent witness- in joint actions, to prove any personal defence admitting of a separate judgment, on behalf of his co-defendant. In no case, however, can his evidence be received, on any matter in the action in which he is interested, either generally, or by way of mitigation of damages for which he is jointly liable. The evi- dence must, under any circumstances of this kind, be excluded as irrelevant, and the objection is rather to the relevancy of the evidence, than to the competency of the witness. In The Mayor of New York v. Price, 4 Sandf. 616, 9 L. O. 255, 1 C. R. (N. S.) 85, the court adopted the same principle, in hold- ing that obligees, under a jomt and several bond, might be examined as witnesses for each other, inasmuch as, under sec. 136, a several judgment might be taken as against any one of them. The same question will be found fully examined in The People v. Cram, 8 How. 151, in connection with the pro- priety of a several judgment being entered, under such circum- stances, as was there directed. In The President of the Mechanics and Farmers' 1 Bank v. Rider 5 How. 401, 1 C. R. (N. S.) 61, (an action on a joint promissory note, defended on the ground of usury,) the above conflicting doctrines were brought into full play ; and that held in Parsons v. Pierce, was confirmed by a majority of the court. The fol- lowing expressions are used by Harris, J., in delivering the opinion of the majority: "This, then, I understand to be the intent and import of the 397th section of the Code — any party to any action may be examined as a witness on behalf of any 41 g42 RULES OF EVIDENCE. other party, but, when examined on behalf of a co-plaintiff, or co-defendant, his testimony is not to have the same general effect as other testimony in the cause, but is to be applicable only to the issue between the party on whose behalf he is examined, and the adverse party. Such a witness may be ex- cluded on the ground of interest, but, as his testimony cannot affect the issue between him and the adverse party, this objec- tion can only be sustained, when the party offered as a witness is not only interested in succeeding himself, but also in having the party, by whom he is offered, succeed also. In the ordinary action against joint contractors, like that before us, the witness has no such interest: on the contrary, if he has any interest at all, it is to increase the number of those who are to assist in the payment of the recovery." " It has been said that the effect of this rule is to allow seve- ral defendants, by mutually becoming witnesses for each other, to exonerate each other from liability. There is much force in this consideration, but it goes only to the question of credibility ; it cannot affect the competency of the witness." The learned judge, after laying down that such testimony ought, however, to be received with extreme caution, held, in conclusion, that the evidence of co-defendants, in that action, had been errone- ously excluded on the circuit, and that such testimony "should have been received, and submitted to the jury, with particular instructions as to its legal effect, and proper cautions as to the weight to be attached to it;" and, this opinion being concurred in by Watson, J., a new trial was accordingly ordered. The above opinion was, however, dissented from by Parker, J., as regards the circumstances of that peculiar case, though the general doctrine, that every defendant is a competent wit; ness for a co-defendant, to prove any defence personal to that co-defendant, and in which the witness is not interested, as laid down by the same judge, in Selkirk v. Waters, before cited, is distinctly asserted. The ground of dissent was, that, in that case, tin- contracl was :i joint contract, on which no several judgment could properly he entered, and the defence a joint defence, going to the entire demand; and there seems to be irresistible force in that reasoning, as regards the particular de- fence there in question, inasmuch as usury, if proved, rendered the instrument sued on invalid and void as against all the parties, it appearing i" have been jointly made and jointly dis- counted; and, therefore, each defendant examined, had a dis- RULES OF EVIDENCE. 643 tinct and positive interest in establishing that defence, because, by doing so, he would exonerate, not merely his co-defendant, but himself also. In Holman v.Bord, 12 Barb. 336, 1 C. E. (N. S.) 331, a de- fendant in an action for a false warranty, was held to be a com- petent witness on behalf of his co-defendant. The words "interest in the event of the action," in sec. 398, do not mean, in this connection, "an interest in any event of the action, but an interest in the event, as respects the party who calls him as witness." It was considered that, in that case, the party ex- amined could not be benefited by his co-defendant's discharge, but that, on the contrary, he might have an interest the other way, as, the greater the number of parties contributing to the payment of the judgment, the better for him. The witness was accordingly held to be competent, on the above, and also on the further ground, that the case was one in which a separate judgment might be rendered. In Ladue v. Van Vechten, 8 Barb. 664, it was held that the competency or incompetency of parties to testify, will depend upon their relation to each other, by their contract, and not on that existing between them as parties to the same action. The test will be as to whether or not such parties may be sued severally. If so, their testimony will be competent, and they will not be disqualified by being joined as defendants. It was also considered that, whenever an action might be maintained without joining a party, his testimony might possibly be re- ceived. An unreported decision of Blodget v. Morris, to the same effect, is referred to. in the report. It will be seen that the law as to the examination of parties is now distinctl}'- laid down by section 397, as amended, in ac- cordance with the general spirit of the cases above cited, over- ruling, on the one hand, Munson v. Hagerrnan, and the decisions of that class, and the peculiar views of the majority in the Mechanics and Farmers'' Bank v. Rider, on the other. Co-plaintiffs and co-defendants are now, as a general rule, examinable in all cases, but in no case can their testimony be taken where they are jointly interested, or jointly liable with the party who calls them. See also Fort v. Gooding, below cited. The test by which the admissibility of their evidence will henceforth be tried, will probably be the measure of relief sought by the plaintiff, and whether such relief be joint or se- 6£4 RULES OF EVIDENCE, parate in its nature. If he seek separate relief, he seeks it sub- ject to the disadvantage of the opposite parties being competent witnesses for each other. If he confine himself to the case upon the joint relief, they cannot testify on each other's behalf. Competency of Parties, generally considered.] — It was held in Hollenbech v. Van Valkenburgh, 5 How. 281, 1 C. K. (N. S.) 33, that a defendant, in the same interest as the plaintiff, could not testify on his behalf. The disqualification on the ground of in- terest extends to such a case, as he is "a party to the action," (sec. 399,) though not, technically speaking, an adverse party. A person who is generally incompetent to testify, may, how- ever, give evidence on points which he has no interest in estab- lishing. The onus probandi in cases of objection to testimony of this description, lies upon the objector. A plaintiff is, it seems, a competent witness to prove the loss or destruction of an instrument sued on, but his affidavit to that effect cannot be received. McMullin v. Grannis, 10 L. 0.57. The testimony of a party to the suit, between whom and the plaintiff there was no issue, and who had accordingly put in no answer, was decided in Leach v. KeUey, 7 Barb. 466, to be ad- missible, as against his co-defendants. This seems clear : the great doubt has been whether he could testify for them, though this also seems to be the case. See Robinson v. Frost, 14 Barb. 536, supra. A party cannot be examined on his own behalf, to prove that he made a contract on which he is sued, as agent and not as principal. Doughty v. Busteed, 3 C. R. 187. "It is sufficient for us to say," observes the learned judge, "that we know of no change in the individual, because he has different characters ; lie is the same person still, and has no right to be a witness in all the characters he sees fit to assume." A defendant may testify, however, to prove that he made a purchase on behalf of his co-defendant, and not on his own ac- count, (iilhrrtw. An< rill, If) Barb. 20. A witness, otherwise incompetent, cannot be made the re- verse by the mere fact of being a party to the record. Thus, in Pillow v. Bushnell, 1 How. 9, 2 C. R. 19, it was held that in an action by husband and wife, the defendant cannot require the wile' to testify as a witness. "I think it is clear," RULES OF EVIDENCE. 645 the learned judge said, " that the object of this statute was simply to remove the technical objection that previously existed, under which a person could not be compelled to testify, because he was a party to the record," and that that was the only dis- qualification, intended to be removed. This can no longer be objected ; " but, if there be any other disqualification, it is not removed by the statute." "If," it is said in a subsequent part of the opinion, "the statute is to be construed as making every party a competent witness on the call of the adverse party, then it would remove the disqualification of several classes of persons, now incompetent, such as insane persons, idiots, child- ren who do not understand the moral obligation of an oath, and others. This could never have been intended." A mo- tion for a new trial was therefore granted, on the ground that the court had erred in receiving the wife as a witness. The same doctrine is maintained in Erwin v. Smaller, 2 Sandf. 840, and Hasbrouck v. Vandervoort, 4 Sandf. 596, 9 L. 0. 249, 1 C. E. (N. S.) 81, affirmed by the Court of Appeals, 31st De- cember, 1853. In the latter, the whole law upon the subject is fully gone into, and is summed up by Duer, J., at the close of an able and elaborate opinion, as follows : " The law which has prevailed in this State, and to which we feel ourselves bound to adhere," is, "That husbands and wives are not competent wit- nesses for or against each other, in any suit in which either is a party, or in which either has a direct or certain interest." The point may, therefore, be now looked upon as settled. As to the extent to which the testimony of the wife may, or may not be admissible in criminal cases, see The People v. Carpenter, 9 Barb. 580. In Arborgast v. Arborgast, 9 How. 297, the wife was held, on similar principles, to be an incompetent witness to prove the plaintiff's case, for a divorce against her, on the ground of adultery. In a suit concerning the wife's separate property, however, the above disqualification does not exist, and the husband will be a competent witness. Willis v. Underhill, 6 How. 396; Hastings v. McKinley, Court of Appeals, 7th October, 1853. In Dobson v. Racey, Court of Appeals, 12th April, 1853, the widow of a deceased mortgagee in possession, and who, pending the suit, had released her interest to her children, was held to be a competent witness on their behalf, in a suit for redemption by the heirs of the mortgagor, to show that the latter had released his equity during his life; nor did her liability to Q±Q RULES OF EVIDENCE. account for rents received by her, avail to exclude her testi- mony, because she was equally bound to do so to either party. In Armstrong v. McDonald, 10 Barb. 300, it was held that the father and mother of a minor, the former being plaintiff, were not competent witnesses to prove the legitimacy of the latter. In Fort v. Gooding, 9 Barb. 371, the evidence of a co-executor was held to be inadmissible, on behalf of co-defendants in the same capacity. In such a case, "all the defendants only re- present the testator; no one of them is liable to the plaintiff unless all are, and no evidence can be given in the case, which can operate for or against one of them, and not the others. The Code cannot apply to a case, where a co-defendant cannot give any evidence but that which must of necessity operate in his own favor, as well as in favor of his co-defendants." Where a party is called as a witness on the part of his ad- versary, he become ipso facto competent to testify on his own behalf. See this subject considered, and various cases cited, in the preceding chapter, and also in the succeeding portions of the present. In a case where A and B were alleged to be joint con- tractors, and A, being examined by the plaintiff, swore to such being the fact, it was held to be competent for B to give evi- dence on his own behalf, for the purpose of contradicting A. Comstock v. Doe, 2 C. R. 140. The examination of a defendant in tort, not served with process, does not, however, authorize the plaintiff to offer him- self as a witness. The former is not a party until actual service, and is, therefore, a competent witness for either side. Robinson v. Frost, 14 Barb. 536. The testimony of a party, called as a witness at the trial, may be contradicted by other witnesses. Sec. 393 gives sufficient authority for that purpose. Arrristrong v. Clark, 2 0. R. 143. Ef a party, directly interested in favor of one, is called and examined by the other of the parties to the suit, the objection to hie competency is thereby waived, and he becomes ipso facto a general witness. Combs v. Baieman, 10 Barb. 573. § 194. Evidence of Witnesses. General Considerations. | The cases above cited have reference to the question of the admissibility of the evidence of parties, RULES OF EVIDENCE. 647 considered as such. Those following are more peculiarly ap- plicable to testimony in general, though, in some instances, also bearing upon the former subject. To a certain degree, however, a portion of this subject has necessarily been anticipated under the preceding, many of the questions as to interest in the result, which go to affect the competency of a certain class of witnesses, being also of peculiar application, with reference to the evidence of parties, where admissible. The grand criterion of admissibility or non-admissibility, is interest in the result of the action. To exclude the testimony of a witness, as such, that interest must be direct and immediate. The action must be prosecuted for his immediate benefit, or he must be a party to it. If his interest in the event is not classi- fiable under one of these two heads, his testimony must be admitted, however strong, in other respects, his stake in the result, or his, bias in the matter may be. Of course, this only applies to the admissibility of his evidence, as evidence. It does not deprive the adverse party of the right to comment upon, or to rebut it, when given, either directly, by adverse testimony, or, indirectly, by proving the bias under which it was given. It would be needless to cite in detail, a second time, the cases in the preceding section, in which interest in the result has entered directly into the question of the competency of the evidence of parties, beyond a mere cursory reference to them, as below. The grand criterion as to the propriety or non-propriety of a several judgment, on which the former question mainly hinges, is of course referable to the criterion of a controlling interest in the result, or the reverse. The radical principle is the same, whether applied to a part}^ to the record, or to a person not technically standing in that position. No one can testify directly in his own behalf, or in support of his own direct interest. In support of the interests of others, severable from his own, his testimony is competent, and this, whether to the whole issue, or to collateral circumstances ; his power to testify in the latter case, being confined to those limits, within which his direct interest does not come into play. The test of total interest in the result will be found specially applied, as above, in Henry v. Henry, Dodge v. Averill, Lobar v. Koplin, Selkirk v. Waters, Mechanics and Farmers 1 Bank v. Rider, 648 RULES OF EVIDENCE. Holman v. Dord, Ladue v. Van Vechten, and the cases with refer- ence to the relation of husband and wife, and parent and child. That of partial interest, in Parsons v. Pierce, Selkirk v. Waters, and Hollenbeck v. Van Valkenburgh, also below cited. Test of Interest, as applied to Witness.'] — In Fitch v. Bates, 11 Barb. 471, the test of interest in the result, which will, or will not exclude the testimony of a witness, is laid down as follows: Under the Code, if the result of a cause will directly and im- mediately affect any right or interest of a person proposed as a witness, and adversely, if against the party calling him, he is inadmissible. As, where the judgment per se must necessarily create or take away a right, or enlarge or diminish a fund, in which he has a direct interest, or vest in him, or divest him of an estate. But, if the record only furnishes evidence for or against him, and the effect of the recovery is not direct and immediate, then the objection goes to his credit. Special Cases. Attorneys Agents, &c] — An attorney transacting business in the ordinary form, is a competent witness; Little v. Keon, 1 C. K 4 ; but, in a case in which his compensation is, by agreement, to depend upon the result of the action, it would seem he is not so. Agents who had executed a written contract in their own names, were held to be competent witnesses for the plaintiff, in an action against their principal, under the Code as now amend- ed, although the necessary effect of their testimony would be to charge the defendants, and discharge themselves, interest in the matter being no longer a ground of exclusion. Stewart v. Fenly, 5 Sandf. 101, 10 L. O. 40. Sec, likewise, as to the power of an agent to disprove his own liability, by fixing it on his co- defendant, as principal, Gilbert v. Averill, 15 Barb. 20, before cited. 1- dor and Purchaser.'] A purchaser under contract is incom- petent to give evidence in support of his vendor's title, in an ejectment againstthe latter. Stoffordv. Williams, 12 Barb. 240. The grantor of the realty is notj however, disqualified in an action for future rents of the premises granted, nor will his evi- RULES OF EVIDENCE. 649 dence entitle the adverse party to give testimony in his own behalf. Van Wicklen v. Paulson, 14 Barb. 654. Promissory Note — Partnership, <£c.] — Where an action on a promissory note was defended, on the ground of a fraudulent transfer to the plaintiff, and the alleged owner had given notice to the defendants not to pay, and indemnified them, it was held that such alleged owner was nevertheless a competent witness. "It would have been necessary," the judge said, "for the de- fendant to contest the suit, if Eames" — the alleged owner — "had not indemnified him. He is, therefore, the real as well as nominal defendant, and the indemnity does not substitute Eames as the party in interest, to the exclusion of the defend- ant. Eames is unquestionably interested, but that does not dis- qualify him, under our new law." Farmers' and Mechanics' Bank v. Paddock, 1 C. R. 81. In James v., Chalmers, 1 C. R. (N. S.) 413, it was held that a former holder of a promissory note, who had transferred it with- out recourse or guaranty, was a competent witness for the plaintiff; but that the declarations of such former holder, made while he stood in that character, were not competent evidence against the then owner, to whom it had been transferred in good faith. In Niass v. Mercer, 15 Barb. 318, a joint endorser, and the maker of a promissory note, loaned by the latter to a third party, who had wrongfully negotiated it, and converted the proceeds to his own use, in consequence of which, the other endorser had been compelled to pay the amount, were both held to be com- petent witnesses for the latter, in an action brought by him, against the party who had been guilty of that conversion. The decision is grounded on the view that the action was not prosecuted for their immediate benefit, upon a just construction of the first clause of section 399. In Bump v. Van Orsdale, 11 Barb. 634, an intermediate trans- feree of a note payable to bearer, was held to be a competent wit- ness for the plaintiff, in an action brought by the last holder. The allowing a judgment to be taken by default against him, will not render a party to a joint and several promissory note, a competent witness for his co-defendants, on a subsequent trial between them and the plaintiff. Austin v. Fuller, 12 Barb. 360- A similar view is taken in Rich v. Husson, 4 Sandf. 115, where 650 RULES OF EVIDENCE. it was held that one of two co-partners, sued for an alleged co-partnership debt, who had given his note for that debt, was not a competent witness for the plaintiff, though he had suffered a default. He was interested, in favor of the plaintiff against the defendant. In Bean v. Canning •, 10 L. 0. 248, a partner in a dissolved firm, was held a competent witness for his former partners, in an action against them. Immediate benefit is the criterion in these cases, not a mere interest in the result. Insolvents, Bankrupts, &c.~\ — In Fitch v. Bates, 11 Barb. 471, it was held that the assignor of property for the benefit of credit- ors, cannot be a witness for his assignees, in a suit brought by them, for the recovery of a part of that propert}^. He is inter- ested in the result. An insolvent has been decided, in a county court, to have an immediate benefit in the result of an action brought by his trustees, and must, therefore, be excluded as a witness therein, though it did not appear that any surplus was coming to him. " It is beneficial to him to have his debts paid ; and whatever is subtracted from the hands of his assignees, leaves that amount, for which his future effects are liable." Hoffman v. Stephens, 2 C. E. 16. See, however, the case of Davies v. Crab- tree, cited in a note, 2 Sandf. 690, directly opposed to this de- cision. In Davies v. Cram, 4 Sandf. 855, it is also held, that an insolvent, who has assigned his property, is a competent wit- ness, in an action brought by his assignees, for the benefit of the estate. Such a suit is not prosecuted for his immediate benefit, within the meaning of the Code. His interest, if any, in the surplus of his estate, is remote and contingent. A like view is taken in Morse v. Cloyes, 11 Barb. 100, where it is held, that a bankrupt, after his discharge, is a competent witness for his sureties, in a proceeding to avoid their joint note, on the ground of usury. To exclude the bankrupt in such a ease, it must be shown that there will be a surplus of his estate, to which he is entitled. That surplus, and a conse- quent intere t in the witness, will not be presumed. If, however, it 1"; made to appear that any surplus, however small, will arise, ;i witness, under these eireunistances, is clearly incompetent. If has been also held by the Court of Appeals, that a discharged bankrupt, who has not released his interest RULES OF EVIDENCE. 651 in the surplus of his effects, is not a competent witness, in a suit instituted by his sureties, to avoid a joint debt against the estate. Morse v. Crofoot, 4 Comst. 114. There is, as will be seen, considerable discrepancy in the above cases. The last cited is, of course, the dominant author- ity, so far as the principles there laid down extend. The real test seems to be, the probability of a surplus or the reverse; if there appear any chance of the insolvent or bankrupt deriving any benefit, however small, on the ultimate winding up of his affairs, the fact that such benefit is remote, and even uncertain, will not, it would seem, affect the question of his admissibility. He has some direct and personal interest in the event of the action, and it is for his immediate benefit, that that interest should be ascertained and provided for, however remote its ultimate realization may be. Where, on the contrary, the estate is hopelessly and irredeemably insolvent, without the chance of a surplus, it seems that the doctrine held by the Su- perior Court, and in Morse v. Cloyes, may fairly prevail, to most, at least, if not to the total extent, in which it is there laid down. It is likewise held in Davies v. Gram, above referred to, that, as a general rule, a creditor of the insolvent debtor is also a competent witness, though it is possible there may be some ex- ceptions, as where there is but a single creditor, who would be entitled to the whole proceeds of the recovery, and where the subject-matter in controversy involves the whole of the assigned estate. The objection goes to the credibility of the witness, rather than to his competency. It is true he has an interest in the result, but he has not such an immediate benefit as to dis- qualify him. The case seems to present several features of analogy with those next considered. Stockholders, Corporators, &c.~\ — A stockholder in a bank was held not to be a competent witness, in an action brought by that bank against a third party. As a member of the corporation, he was a person for whose benefit it was prosecuted. The President of the Bank of Ithaca v. Bean, 7 L. O. 225; 1 C. R. 133. The witness in that case was the president himself, and, there- fore, by name, a party to the action; but the decision is not grounded on this fact, but on the doctrine, as there held, in relation to stockholders in general. 652 RULES OF EVIDENCE. In The Washington Bank of Westerly v. Palmer, however, 2 Sandf. 686, 8 L. O. 92, a directly contrary opinion to that in the last case was pronounced. It was there held that a stockholder is neither a party to the suit, nor a person for whose immediate benefit it was prosecuted, and the case last cited is expressly referred to, and dissented from. See also Note, 2 Sandf. p. 690, where it is stated to have been decided, that the assignor, in a voluntary general assignment for the benefit of creditors, was a competent witness in a suit brought by his assignees, overruling Hoffman v. Stephens, before cited. The principles laid down in The Washington Bank of Westerly v. Palmer, as above, were still further extended in The Bank of Charleston v. Emeric, 2 Sandf. 718, where a co-defendant, primarily liable for the debt claimed, was decided to be a com- petent witness. The court, in pronouncing their opinion, state s>b follows: "That section [399] applies only to a person, into whose hands the money collected in the suit will necessarily go, when it is received, or who might take it from the sheriff or the attorney, as his own. It does not apply, where the money cannot immediately, though it may ultimately, go into his hands, as in the case of a stockholder, in a suit brought by a corporation:" and, in The New York and Erie Railroad Company v. Cook, 2 Sandf. 732, an objection having been taken to the testimony of a stockholder, Oakley, C. J., in delivering the judgment of the court, at general term, said: "We have no doubt that Mr. Ketchum" — whose testimony was objected to on the above ground — "was a competent witness, under the recent provisions of law on the subject." The point has since been effectually settled, and the doctrine established, that a stockholder or corporator, as such, is not a party for whose immediate benefit the suit is prosecuted or defended, and that he is, therefore, under the Code, a compe- tent witness for the corporation ; by the subsequent cases of. The Bank of Lansingburgh v. McKie, 7 IIo\\ r . 360; Conro v. /'nrt Henry Iron Company, 12 ISarb. 27, (p. 61;) and Montgomery County Bank \. Marsh, 11 Barb, 'if'; affirmed by the Court of Appeals, 80th December, L852. Sec, likewise, Hamilton and I) .in ville Plank />'""<- Btrictly Gomplied with, and the points on which the jnoT is f'> I*'- examined, distinctly specified, or the evidence will be excluded. Falon v. Keese, 8 How. 341; Knickerbocker v. Aid/rich^ 7 Eow. I. In Warren v. //n in ils course, and must answer to the call. Lie must, also be prepared with the notice of trial, and with due proof of service, cither by the admission of the opposite attor- TAKING DEFAULT OR INQUEST. 681 ney, or by affidavit in the ordinary form. If the default be taken on the part of the plaintiff, evidence must be ready to prove the existence of the cause of action, if not admitted upon the pleadings, (in which case no further evidence is necessary); and, if the action be upon a promissory note, or other instru- ment for payment of money, the instrument itself must be in court. A calculation of the amount due for principal and in- terest, must also, in the last case, be prepared and sworn to. Where, however, unliquidated damages are claimed, the court will order them to be assessed by a jury ; a reference cannot properly be taken for this purpose, and, if taken, will be irregular, and may be set aside, Hewitt v. IloiveU, 8 How. 346. If, on the contrary, the case is not one in which damages are claimed, and the examination of a long account be involved, a reference may either be directed, or, if the account be simple, and the proof of it ready in court, the court may act upon such proof, at their discretion, without going through the form of a reference. The above observations have respect to the taking a default on the part of the plaintiff. If, on the contrary, that measure be taken on the part of the defendant, all that, under ordinary circumstances, will be required, will be the production of the counter notice of trial, and due proof of its service. The defendant cannot, however, take such judgment as of course, unless he has himself noticed and placed the cause upon the calendar, by means of a counter note of issue. If he omit this precaution, he will be left to his motion to dismiss the com- plaint, in the ordinary course of proceedings, as before treated of. The precaution of filing a counter note of issue, and giving a counter notice, is so easy and so simple, that it ought never to be omitted. His giving the counter notice alone will be in- efficient, unless he himself place, or see that the plaintiff places the cause upon the calendar. If this be not the case, he can- not move to dismiss at the circuit, and such a dismissal, if ob- tained, will be set aside as irregular, Browning v. Paige } 7 How. 487. A judgment of dismissal may, however, be taken, on any subsequent day during the same circuit, in case the plaintiff is not ready on the first call, and subsequently fails to perform conditions then imposed. So held, with reference to a notice of discontinuance, accompanied by a tender of taxable costs, 682 TAKING DEFAULT OR INQUEST. but not of an allowance which had been made by the court, in Hoffatt v. Ford, 14 Barb. 577. Where the cause has once been passed, and set down for a future day by consent, the effect of which consent is, that it eventually goes over the circuit altogether, it will amount to a waiver on the part of the defendant, and will preclude him from moving to dismiss, on the ground that the plaintiff was not ready at the first call. Fuller v. Sweet, 9 How. 74. The above is all that will be required on the part of the de- fendant, in order to obtain the ordinary judgment of dismissal against the plaintiff. If, however, he claim affirmative relief in his answer, and his right to such relief be not admitted upon the pleadings, he should be prepared with proof of the existence of such counter-claim, and also of the amount due to him thereon, if in the nature of a set-off, exactly as if the positions of the parties were reversed, and such affirmative relief was sought by him as plaintiff. The defendant's power to move for a dismissal cannot, how- ever, be exercised in any manner, so as to prejudice the rights of the plaintiff, inherent or acquired. Thus, where the defend- ant had made an offer to take judgment, and, during the ten days allowed to the plaintiff to make his election, moved for a dismissal at the circuit, the order, so obtained, was set aside. The offer amounted to a stipulation by the defendant, that no proceedings should be taken, during the time allowed to the plaintiff, nor could the latter be barred of his right to that time, by any thing, short of a written acceptance or refusal. A mere parol declaration by his attorney, would not avail to do so. Walker v. Johnson, 8 How. 240. An amended complaint, served by the plaintiff, was, in like manner, held to preclude the defendant from taking a default. Hi: could not disregard it, as there claimed, however irregular it might appear to be, prima facie. His only course was to apply to tin: court upon motion. Rogers v. Rallibun, 8 How. 466. Sec the subject of amendments further considered in the succeeding section, in relation to inquest. Either party, attending prepared as above, is entitled to bring on the cause at once, when called, and to take his judgment, if the opposite party tail to appear. A jury is not necessary, as the very failure to appear of itself renders the action triable by the court, under sec. 266; and the affirmative right of the applicant to relief, and the amount of the relief claimable, TAKING DEFAULT OR INQUEST. 683 being shown, either by admission on the pleadings, or by ex parte evidence, if requisite, the judgment of the court follows, as of course. Attention should be paid to Rule 26, which pre- scribes that, on taking an order of this nature, the moving counsel's name should be endorsed upon the paper containing the proof of notice. Where, however, the opposite party is really and hond fide prepared for trial, and his absence at the moment the cause is called on is a mere matter of accident, the application for judg- ment by default would be not merely ungracious, but practically useless. Under these circumstances, the court will open a de- fault so taken, almost as of course, on an application for that purpose. In cases, on the contrary, of wilful or vexatious de- lay, or virtual abandonment of his case by the opposite party, the taking a default will be a fitting' and appropriate remedy. The question of opening a default or judgment, so taken, will be considered at the close of the chapter. In some tribunals, such as the New York Common Pleas, where a strict practice prevails in relation to the calling the calendar, and where, in case the parties are not ready at the time of the call, the cause may not be reserved by the court, but may lose its place altogether, the taking a default pro forma may even be a matter of accommodation to both parties. An order opening that default, by consent or otherwise, will have the effect of replacing the cause on the term calendar, and, if that course be agreed on, and the technical costs be waived, the only real expense will be the clerk's trial fee, which must of course be paid ; whilst the practical convenience, in accelerat- ing the real trial of the cause, may be very great. In general, however, the courts are not adverse to postpone causes,- from one day of the same term to another, on sufficient cause shown. It will of course be necessary for the counsel, or for one at all events, to attend for that purpose, at the sitting of the court. The accommodation rests, however, entirely with the presiding judge, whose discretion on the subject, either as to granting the request, or requiring formal proof of the reasons alleged for the postponement is, of necessity, uncontrollable. § 203. Inquest. Inquest, as before stated, is of a nature analogous to, and yet distinct from that of default, inasmuch as it is an ex parte 684 TAKING DEFAULT OR INQUEST. remedy, obtainable by the plaintiff alone, and that, only in cases virtually undefended ; and this, by bringing on the cause prema- turely, and out of its due order, instead of waiting for its being called on in ordinary course. The remedy by inquest can only be had in default of a suffi- cient affidavit of merits. If such an affidavit be duly filed and served by the defendant, at any time previous to the actual taking of such inquest, the plaintiff's right to this remedy will be gone. The nature and requisites of the affidavit of merits have been considered in a previous chapter. In applying for an inquest, the plaintiff must take care that the time allowed to the defendant, for the purpose of amending his answer, has previously elapsed. If not, and if the defend- ant afterwards serve such amended answer in good faith, and within due time, the inquest will be irregular, and will be set aside as such. Washburn v. Herrick, 2 C. E. 2 ; 4 How. 15. An inquest, so obtained, was likewise set aside upon the ser- vice of an amended answer, in Griffin v. Cohen, 8 How. 451. the good faith of the amendment being sworn to. See likewise, Rogers v. Rathbwi, before cited under the head of Default. In Allen v. Compton, on the contrary, 8 How. 251, an inquest, obtained notwithstanding the service of such an answer, was maintained, the answer appearing to have been so amended for delay only, and with a view to throw the cause over the term. In Plumb v. Whipple, 7 How. 411, an inquest was, in like manner, supported, though an amended answer had been served, the original answer consisting of denials only, and containing no new matter, and, as such, requiring no reply, and therefore, in the opinion of the court, not being amendable at all. It was held, too, that the right to amend cannot be exercised, so as to prejudice proceedings already had, and that, therefore, the judgment suffered to be taken must be allowed to stand. An inquest maybe taken at the opening of the court, on any day after the first day of the term or circuit, for which the cause shall have been duly and sufficiently noticed; for, if the inten- tion to take a?i inquest be not expressed upon the notice of trial, that notice will not avail. On the second, or any subsequent morning of term, therefore, (lie plaintiff, at the opening of the court, may apply t<> have the cause called on for that purpose, though such cause be not on the day calendar, and without re- gard to its actual position on the general list. If taken on the TAKING DEFAULT OR INQUEST. 685 first day of term, the inquest will be a nullity, and will be set aside as such. Smith v. Brown, 1 Duer, 665. It has been an usual practice to take an inquest of this de- scription before a jury, and, in Dickinson v. Kimball, 1 C. R. 83, it was held that one taken, after the jury had been discharged, the defendant not appearing, was irregular. The latter, it was said, might have waived his right to a jury by non-appearance, but, after the jury had been discharged, there was no longer any such right to waive. The inquest, it was accordingly held, should, have been taken, before the jury were discharged. At first sight, this case would seem to lead to the conclusion that inquest must be taken by a jury in all cases, but, when more closely examined, this does not appear to be the correct construction. In Haines v. Davies, 6 How. 118, 1 C. E. (1ST. S.) 407, it was decided that if, when the case is called on, the de- fendant does not appear, the plaintiff may then proceed to treat such non-appearance as a waiver of trial by a jur}', under sec. 266, and may take his inquest before the court alone ; and that there is no difference, in respect of such waiver, between those cases in which the cause is taken up out of its order, and those in which a default is taken on its being regularly called. The case must, however, be called on, and the inquest taken, before the jury are discharged, for the circuit or term, as, otherwise, there will be no right to waive, according to the doctrine laid down in Dickinson v. Kimball, which is so far confirmed. The object of this rule is to give the defendant the opportu- nity to submit the case to the jury, if, when the cause is so called on, he be in attendance and appear. He has a right, in this event, to cross-examine the plaintiff's witnesses, and break down his case, if he can succeed in doing so. He cannot, though, introduce counter evidence, or prove an affirmative defence on his own behalf, his right to do so being gone by default. It would seem, however, that he may take exceptions to the ad- missibility of the plaintiff's evidence, and appeal from the deci- sion thereon, though the question is by no means free from doubt, whether he can do so on a judgment by default. See Kanouse v. Martin, 3 Sandf. S. C. R. 653. His easier and more obvious course, where any real defence exists, will evidently be a motion to set aside the inquest. The plaintiff, on his part, may, it would seem, submit to a nonsuit, if the defendant appear, and it be thought advisable. QSQ TAKING DEFAULT OR INQUEST. He must of course be prepared with precisely the same evi- dence as hereinbefore indicated, with reference to a default taken on the cause being regularly called on. Where a partial set-off has been pleaded by the defendant, and no reply has been put in, the plaintiff cannot take an in- quest for the whole of his original demand, but must allow the set-off, and, if he omit to do so, his proceedings will be set aside. Nor is it necessary for the defendant to make an affidavit of merits, to entitle him to protection in this respect. Potter v. Smith, 9 How. 262. A remedy, analogous to inquest in some respects, though in others distinguishable, inasmuch as the case comes on in a contested form, and not ex parte, is provided as regards the first district of the Supreme Court, by the recent special Eules on the subject, already noticed under the head of proceedings with a view to a speedier decision. The proceeding is, in fact, identical with the English practice in chancery, of setting apart one morning in each week for hearing causes, certified by coun- sel to be " short causes," in preference to those on the regular calendar. The practice is highly convenient, and eminently calculated to further the ends of justice, above all in a district in which, as in that in question, the calendars are crowded. § 204. Opening Default, or Inquest. If inquest or default be taken against cither party unawares, he will, as a general rule, be admitted to prosecute or defend, under the enabling powers of sec. 174, provided he satisfies the court, of the existence of a bond fide defence or cause of action, ami, that the adverse proceeding has been obtained against him, through " mistake, inadvertence, surprise, or excusable neglect." He must, of course, in the case of inquest, swear to merits, in the usual form. The application for this purpose must be made on the usual not.ice. An order to show cause why the inquest or default should not be set aside, will probably be found the more con- venient form, as, by adopting that mode, an interim stay of proceedings on the judgment entered, or to be entered up, may be obtained, as part of the order. In this case, a copy of the affidavit on which the order has been obtained must be served TAKING DEFAULT OR INQUEST. 687 with it, in the usual manner. It is, of course, equally competent for the defendant or party, against whom judgment has been entered, upon inquest or default, to move to set aside such pro- ceeding, as irregular, on affidavit of the irregularities committed, and that, either upon a notice or order to show cause, as above. The opposite party may meet such application by counter affi- davits, in order to show that the inquest has been regular, and that no real cause had been shown for opening the order. If default or inquest, duly obtained, be opened or set aside, for the purpose of allowing the opposite party to try the case on the merits, payment of costs will be imposed on such party, as a condition precedent; and it will likewise be competent for a plaintiff who has obtained such judgment, to apply to the court, that proper restrictions may be imposed on the defence to be set up. See observations in the last chapter, in respect to the analogous case of granting of leave to plead over, after the allowance of a demurrer. If, however, the inquest or default be set aside, on the ground of irregularity, costs will, of course, fall upon the irregular party. The order to be made on the application, as above, must be duly entered, and a copy served by the prevailing party. If the inquest be set aside, or the default be opened upon terms, care must be taken that those terms are fully complied with forthwith, or, at all events, within the time limited by the court, a reasonable limitation to which effect should always be asked for by the adverse party. On compliance with these terms, the cause is restored to the position in which it previously stood, and must be noticed and brought on for trial accordingly. On failure in that compliance, the order setting aside the inquest or default becomes a nullity, and the opposite party will gain the right to proceed with the entry and enforcement of the judg- ment, as if it had never been made. 688 TRIAL BY JURY. CHAPTER IV. TRIAL BY JURY. § 205. Constitution of Jury, — General Form of Trial. The practice on this subject is but slightly affected by the Code, which merely provides as to the form of verdict and its consequences, and leaves the composition and duties of the jury, and the mode of trial before them, practically untouched. To enter, therefore, into details on these latter subjects, would mili- tate with the plan laid down at the outset. The provisions of the Eevised Statutes, as to the return and summoning of jurors, as to special or struck juries, and as to the trial before the jury, when duly impanelled, will be found in articles 2, 3, and 4, of title IV., chap. VII, part III., of those statutes, 2 K. S. 411 to 421. In connection with the summoning and impanelling, see the recent case of Porter v. Cass, 7 How. 441. The usual course in these matters has been so entirely settled, that decisions affecting any important alterations are rare, and the recent reported cases work no change in the law as to the composition and duties of the jury, in a practical point of view, and little, if any, alteration in relation to the progress of the trial before them, prior to the delivery of their verdict. In relation to the law as to challenges to jurors, &c, the recent cases of The President of the Waterford and Whitehall Turnpike v. The Peqple t U Barb. 161; and The People v. Aickinsm, 7 How. 211, may be referred to. Objections, on the above grounds, must be taken at the time, and before the trial proceeds, or they will be waived altogether. Dayharsh v. Jfinos, 1 Seld. 531. Referring, then, to the works on the old practice, for all details on these points, and assuming that the jury, whether common or special, have been duly summoned and impanelled; that, t he parties have exhausted their rights of challenge, whether peremptory or otherwise, ami either to the array or to the polls; that a taleSf if necessary, has been prayed; that all objections in relation to the composition of the jury have been raised and TRIAL BY JURY. disposed of; and that the required number of jurors have been duly chosen and sworn, according to the former and still sub- sisting practice ; we now come to consider the proceedings before the jury, so constituted. The old rules, that the counsel of the party who sustains the affirmative issue, is first heard in opening, and last in summing up the case, and also as to the general conduct of the cause during the hearing, are equally unaltered, whether by the Code, or by the recent decisions. The rules of court, restricting the arguments of counsel to two hours each, and also providing that not more than one on each side shall examine or cross-examine a witness, or sum up the cause to the jury, unless by special order of the court, and that counsel shall stand while examining a witness, and shall not take minutes of testimony, unless the court shall otherwise order, have been noticed in the preliminary chapter, as to trial in general. The circumstances under which application may be made for a postponement of the trial, when necessary, and the conditions likely to be imposed on granting such application, have been before considered. A similar application may be made at the' outset, or during the progress of the trial, when, through sur- prise or otherwise, it proves indispensable; though, of course, this privilege will not be granted, at that stage of the proceed- ing, on any other than on serious and important grounds, and on a perfectly bond fide application. The old practice, as to moving for a nonsuit, either on the plaintiff's statement, or on his proofs, when he rests his case, including the discretionary powers of the court to allow or to refuse permission to enter into further evidence, after such rest- ing ; as to the summing up, by the counsel on both sides ; as to the charge of the judge; as to the power of counsel to request him to charge upon any particular point, to any particular effect ; as to the exceptions which may be taken to such charge, and the necessity of taking them at the time of its delivery ; as to the framing of written issues, where expedient; as to the retire- ment and conduct of the jury; and, likewise, as to the powers of withdrawal of a juror, or of submitting to a nonsuit on the part of the plaintiff, before the jury have left the court, with the advantages of that course, under certain circumstances, remains entirely unaltered by the Code, or by the recent decisions. 44 690 TRIAL BY JURY. § 206. Incidental Points as to Trial. Adverse Nonsuit.'] — The granting a nonsuit, when moved for, rests entirely in the discretion of the judge, and a refusal on his part will be no ground of error, when there is any evidence whatever on a question of fact, on which to go to the jury. Thompson v. Dickevson, 12 Barb. 108. See Bvonson v. Wiman, Court of Appeals, 30th December, 1852. If, however, there is a complete failure of proof, so that, as a matter of law, the plaintiff cannot recover, it is the duty of the judge to grant the motion, and his refusal to do so will be error. Carpenter v. Smith, 10 Barb. 663. See, likewise, Having v. The New Yovk and Evie Railroad Company, 13 Barb. 9. The practice, in the English courts, of entering a verdict for the plaintiff, but with leave to the defendant to move for a non- suit, though not unknown, is unusual in this State. The taking a verdict, subject to the opinion of the court, is the more com- mon course. Downing v. Mann, 9 How. 204. In Bennett v. The Amevican Avt Union Company, 5 Sandf. 614, 10 L. 0. 132, it was held, in general terms, that objections to the right of the plaintiff to maintain a suit, cannot be so waived by the consent of the parties, as to deprive the court of the power, or release it from the duty of considering them ; which principle is doubtless capable of application to cases, in which the defendant may be entitled to move for a nonsuit, but might wish to waive his right. w One of several defendants, sued for a tort, is entitled to a verdict, before the case of his co-defendants is submitted to the jury, if the testimony be such, that, if he were sued alone, he would be entitled to a nonsuit. This is not matter of discre- tion, but of right." Dominiclc v. Eacker, 3 Barb. 17. In relation to a nonsuit for misjoinder of parties, see Spencer v. Wheelock, 1 1 L. O. 329. The correctness of this decision Beems, however, to be questionable. See heretofore, under the head of Demurrer. I 'mvin.ee of Court and Jury rcsprriiv ///.] — -The general rule is, that all matters of law rest with the court, and matters of fact with the jury, to decide: the latter acting under the direc- tion of the judge, m relation to questions of law, bearing upon the facts brought before them. TRIAL BY JURY. 691 When the facts of the case are in any wise contested, the question rests with the jury, and cannot be withdrawn from them. See Scott v. Pentz, 5 Sandf. 572 ; Thompson v. Dickerson, 12 Barb. 108, above cited; Gates v. Brower, Court of Appeals, 31st Dec, 1853. See, likewise, Borrodaile v. Leek, 9 Barb. 611. Where, on the contrary, the facts are admitted or proved without contestation, and the question is one of construction merely, or of the law as applicable to those facts, the decision rests with the judge, and the jury are bound to follow his directions. See Matthews v. Beach, 5 Sandf. 256 ; Cook v. Litch- field, 5 Sandf. 330 ; 10 L. O. 330 ; affirmed by Court of Appeals. 31st Oct., 1853. See, also, Carpenter v. Smith, and Having v. The New York and Erie Railroad Company, above cited, in rela- tion to nonsuit. If the judge allow a question, properly of law alone, to go to the jury upon the facts, it will be error. Carpenter v. Sheldon, 5 Sandf. 77; Fay v. Grimsteed, 10 Barb. 321 ; Bulkeley v. Smith, 11 L.. O. 300; Gale v. Wills, 12 Barb. 84; or, if he make a qualification in his charge, which is not authorized by the evidence. (Same cases.) Nor will a refusal to submit to the jury, a question prima facie clear, and not contradicted or ex- plained, be error on the part of the judge. The People v. Cook, Court of Appeals, 12th April, 1853. The points above taken are clearly established by numerous prior decisions ; but the above are mentioned, as being the most recent bearing upon them. With regard to the relative provinces of the judge and jury, on a mixed question of law and of fact, the judge's power to comment on the facts, and the propriety of an hypothetical charge, see Bulkeley v. Keteltas, 4 Sandf. 450. In relation to the course to be pursued, on the judge's answer to inquiries made by the jury, see Stroud v. Frith, 11 Barb. 300. It was held by the Court of Appeals, in Howland v. Willets, 31st Dec, 1853, that it is not error for the judge to allow the jury, when they retire for deliberation, to take with them a deposition read on the trial. Propositions or Bequests to charge.'] — It remains, as heretofore, an usual practice for counsel to submit to the judge, if thought expedient, either at the close of the argument or at the conclu- sion of his charge, specific propositions, with a view to their adoption by him in his instructions to the jury. If such pro- positions be sustainable, it is the judge's duty to notice and to 692 TRIAL BY JURY. charge upon them ; and, if he omit to notice them, or charge imperfectly upon the point requested, it will be error, and an exception will lie. The mode of doing so rests, however, en- tirely in his discretion ; and it is by no means positively incum- bent upon him, to submit the propositions to the jury ipsissimis verbis, or even to notice them in detail, provided he give faith- fully their general import. See Bulkeley v. Keteltas, 4 Sandf. 450 ; Sherman v. Wakeman, 11 Barb. 254, affirmed by Court of Appeals, 7th Oct., 1853. The requests made must, however, be made in such form, as that the judge may properly charge in the terms of that re- quest without qualification, or his refusal to do so will not be error. Bagley v. Smith, Court of Appeals, 13th July, 1853. If the points submitted be clearly tenable, a refusal to charge upon them, or an imperfect charge in relation to them, will be ground for a new trial. Carpenter v. Slilwell, 12 Barb. 128 ; Gale v. Wills, 12 Barb. 84. Where, however, the questions attempted to be raised are evidently untenable, the judge will be right in refusing to charge the jury, in the manner, or to the purport requested. Lyon v. Marshall, 11 Barb. 241. Nor is a judge bound to charge upon a hypothetical case, which there is no evidence to support. The Mayor of New York v. Price, 5 Sandf. 543. In the absence of positive imputation against it, the charge of the judge will, in all cases, be supported. Parsons v. Brown, 15 Barb. 590. The same case lays down, strongly, the neces- sity of propositions of the above nature, being submitted to the judge at the time. In the absence of such request, the verdict will not be disturbed, for any point of omission, or otherwise than for error, affirmatively shown. Exceptions and Objections^ — The doctrine of exceptions in general, as regards points of detail, will be considered in a sub- sequent chapter, under the head of New Trial. A few points mny, however, be noticed advantageously at the present junc- ture. I , -j >t i« >n -, as such, and objections on points of form, or as to the admissibility of evidence, must be taken at once, at the time the objection first arises. II' omitted to be so taken, they will afterwards be unavailable. Sec this subject fully consi- dered, and various cases cited, in the introductory chapter of this book, on trial in general. TRIAL BY JURY. 693 Exceptions, when taken, must be direct and specific, or they will be ineffectual for all practical purposes. A general exception to a charge, containing distinct proposi- tions, is unavailing, unless the party can show that each pro- position is erroneous, and to his prejudice. Haggart v. Morgan, 1 Seld. 422. See, to the same effect, Decker v. Mathews, 5 Sandf. 439, p. 446 ; Jones v. Osgood, 2 Seld. 233 ; Stroud v. Frith, 11 Barb. 300; Van Kirk v. Wilds, 11 Barb. 520; Wager v. Ide, 14 Barb. 468 ; Murray v. /Smith, 1 Duer, 412. Nor is the case altered, by taking the exception to the whole charge, "and to each and every part thereof." So, too, a general excep- tion will be wholly unavailing, where no error of law has been committed, and the whole dispute is on a question of fact, left to the jury. Meakim v. Anderson, 11 Barb. 215. An exception to a question put, will not be available, unless material testi- mony be given in answer to it, embraced within the objection. Howland v. Willets, Court of Appeals, 31 Dec. 1853. See 5 Sandf. 219. Where the exceptions taken are of an important nature it will be expedient to apply at the time of the trial for an order, under sec. 265, that they be heard in the first instance at the general term. See this subject hereafter considered, and the cases cited, in a subsequent chapter, under the head of New Trial. Calling the Plaintiff, &c. — Voluntary Nonsuit.'] — It is no longer necessary that the plaintiff should be called, when the jury return to the bar to deliver their verdict. See Rule 23. The same rule also debars the plaintiff from the right to submit to a nonsuit, after the jury have once gone from the bar to con- sider their verdict. At any time prior to their retirement he may do so, as under the old practice. The advantages of this course, in the event of a failure of proof, on the part of the plaintiff, are obvious, as, by so doing, his rights, if any, remain available in a fresh action, whilst, in the event of an adverse verdict, the question has become res adjudicata. § 207. Verdict, and its incidents. Thus far, the old practice on a trial by jury remains practi cally unaltered by the code. On the subject of a verdict, how 694 TRIAL BY JURY. ever, the latter contains express provisions, partly in declaration of, and partly in substitution for the former law on the subject. Statutory Provisions — General and Special Verdict, Distinction between.] — In the first place, the distinction between general and special verdicts is laid down by sec. 260 as follows : § 260. A general verdict is that, by which the jury pronounce gene- rally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that, by which the jury find the facts only, leaving the judgment to the court. Assessment of Value or Damages. Special Verdict.'] — The nature and effect of a special verdict, and the power of a jury to assess the damages of the party prevailing, whether plaintiff or defend- ant, are next denned as under, by the three following sections. § 261. In an action for the recovery of speci6c personal property, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or, if they find in favor of the defendant, and that he is entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained, by reason of the detention, or taking and withholding such property. In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special ver- dict in writing, upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written find- ing thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes. § 262. Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly. § 2G3. When a verdict is found for the plaintiff, in an action for the recovery of money, or for the defendant, when a set-off for the recovery of money is established, beyond the amount of the plaintiff's claim as established, the jury must also assesn the amount of the recovery; they may also, under the direction of the court, assess the amount of the recovery, when the court give judgment for the plaintiff on the answer. II' a set-' ill", established at the trial, exceed the plaintiff's demand so established, judgment for the defendant must be given for the excess; TRIAL BY JURY. 695 or, if it appear that the defendant is entitled to any other affirmative relief, judgment must be given accordingly. The first of these clauses appears, as it stands at present, hopelessly confused, but the erasure of a semicolon, and the substitution of "they" for "and," after the word "thereof" in the 6th line, will render it intelligible, and will doubtless express the meaning of the legislature. The erasure of the word " not," which has been suggested, seems, on the contrary, to increase, rather than obviate the present difficulty. The power given by sec. 261, to find a general or special verdict, in cases for the recovery of specific real property, is an evident modification of the provisions of the Revised Statutes, as to the verdict in ejectment, in which description of action, a verdict can now be taken, adapted to any peculiar state of the title. Wood v. Staniels, 3 C. R. 152. The trial by jury, of causes primarily triable by the court, seems to be contemplated, in the powers to direct a special ver- dict in writing, or to give instructions to find upon particular questions of fact, though, of course, both these directions are generally applicable. The difficulties in the way of a trial by jury, of causes of this description seem, however, in most instances, insurmountable, and trial by the court appears the far more expedient course in all. See these views fully enforced in Alger v. Scovffle, 6 How. 131 ; ICE. (N. S.) 303 ; and Wooden v. Waffle, 6 How. 145 ; 1 C. R. (N. S.) 392. The difficulties in the way of interposing an equitable defence to a legal claim, as regards the trial of the issues thus joined, had been previously insisted upon, in Hill v. McCarthy, 3 C. R. 49. It is evident that, however unequivocal the abolition of the distinction between actions at law and suits in equity under sec. 69, some distinction must always exist between cases of a legal, and those of an equitable nature ; and that, where legal and equitable principles are in conflict in the same case, sub- stantial justice cannot be done, without a mode of trial, adapted to the due consideration of the latter. See in particular Wooden v. Waffle, above referred to, in corroboration of this view, which has already been developed, in the chapter on the general re- quisites of pleading. The power of the jury to assess damages, in favor of a de- fendant prevailing on a set-off, to an amount exceeding the 696 TKIAL BY JURY. plaintiff's claim, and those of the court to order judgment accordingly, are made clear by the recent amendment in sec. 263. Similar relief had, however, been previously granted in these cases. It will be remarked that, in the event of the general verdict of the jury, and their special finding on any particular questions of fact submitted to them being inconsistent, the latter, under sec. 262, is always to prevail. Verdict, Subject to Opinion of the Court.] — The former power of the judge to order a verdict to be entered subject to the opinion of the court thereon, which had been swept away by the Codes of 1848 and 1849, is restored by the recent amendment of sec. 264. The ulterior proceedings under these circumstances, will be here- after considered, in chapter VIII. of the present book, under the head of proceedings by the prevailing part}'. § 208. Entry and Consequences of Verdict. Mitry.] — The mode of procedure, on the return of the jury, prepared to deliver their verdict, is thus prescribed by the earlier portion of sec. 264 : § 204. Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument, or further consideration. If a different direction be not given by the court, the clerk must enter judgment in conformity with the verdict. Corrections or Additions, where admissible.'] — If the verdict be returned in open court, and in the presence of counsel, and the jury, as is often the ease, have fallen into manifest error, the present is the proper period for its correction. By a reconsider- ation <>f such errors, under the direction of the judge, much subsequent trouble, and possibly the necessity of a new trial, may be obviated. This observation of course assumes, that the errors in question have arisen from a manifest misapprehension on the part of the jury, as to the extent of their functions, or as to the real nature of the questions submitted to them. If, however, their opinion has been regularly come to, on a TRIAL BY JURY. 697 question of fact duly submitted to them, that opinion, however manifestly erroneous, cannot be impeached, otherwise than by means of a new trial. However unsatisfactory it may be, their verdict is conclusive, until such fresh trial, if granted, shall have taken place. In Burhaus v. Tibbits, 7 How. 21, the verdict of the jury was corrected, so as to conform to the facts, and in order to form a complete record on two issues there tried, the one disposed of by the decision of the court, and the other submitted to and passed upon by the jury. Where, however, the slightest doubt exists as to what transpired, or that the whole case has been in fact disposed of, an amendment should not be allowed. Supplemental Assessment, in Replevin.'] — In actions of replevin, the plaintiff, if he recover less than $50 damages, should be careful to ask for an assessment of the value of the property recovered, with a view to the purposes of costs, and in order to bring the ' case within the following clause, forming part of sec. 304:— "And, in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which, with the damages, amounts to fifty dollars. Such value must be determined by the jury, court, or referee, by whom the action is tried." Reservation for further Argument] — The power to reserve the case "for argument or further consideration," has formed part of the Code from its original passage, but, strange to say, there is no reported case directly bearing upon its exercise, though, in cases where the judgment to be entered is of a complex nature, and in many others, which it would be superfluous to specify, it is frequently acted upon. Before the last amendment, it might be considered too, as standing in the nature of a substitute for the now restored practice, of entering a verdict subject to the opinion of the court. Concluding Observations.'] — The total omission in the two former Codes, of any provisions as to the granting of a new trial upon errors of fact, had been the occasion of much doubt and inconvenience. The cases on the subject will be cited, and 698 TRIAL BY COURT. the necessary observations made, in chapter VII. of the present portion of the work. For the present, it is only necessary to remark further, in conclusion, that, on the entry of the verdict, the court and jury fees must be paid by the prevailing party. The results of that verdict remain for future consideration. Where, on the deliver}'- of the verdict, it is manifest that a new trial will be moved for, or an appeal taken, a stay of pro- ceedings may at once be applied for, whilst in court, and may probably be granted. The more usual course is, however, to make a subsequent application for that purpose, before the actual entry of the judgment. See this subject hereafter con- sidered, in chapter VII. of the present book. If any, even the slightest intermeddling or improper inter- ference take place with the jury, during the trial, the verdict will be set aside as of course ; and this, whether that inter- meddling has or has not been productive of any actual effect. Reynolds v. Champlain Transportation Company, 9 How. 7. CHAPTER V. TRIAL BY THE COURT. § 209. Trial by Court, Nature and incidents of. Where primarily appropriate.] — All issues of fact, not pro- perly triable by a jury, [See sections 252 and 254 of Code,] and therefore, as a general rule, the whole class of equitable causes, may be considered as falling within the present category, though, as before remarked, these last may be submitted to a jury, if the parties choose, and have been so, in some few cases. By yjaiver or consent.] — Independent of the above description of cases, which more peculiarly call for the present form of trial, any issues, of whatever nature, may be so brought for- ward for decision, by consent. The following provisions, as contained in sec. 2G6, are unequivocal upon this point. TRIAL BY COURT. 699 § 266. Trial by jury may be waived by the several parties to an issue of fact, in actions on contract ; and, with the assent of the court, in other actions, in the manner following : 1. By failing to appear at the trial. 2. By written consent, in person or by attorney, filed with the clerk. 3. By oral consent in open court, entered in the minutes. It will be observed that it is only in. actions arising out of contract, that this waiver can take place as of course. In others, the assent of the court is necessary ; and, in fact, in actions sounding in tort, or where, for any cause, damages re- quire to be assessed, trial bj jury is the proper form, and the court may very possibly refuse to dispense with it. The waiver of trial by jury, by failure to appear, has already been considered, under the head of Inquest and Default. The present observations apply only to cases where an actual trial takes place, or is intended, and it is the desire of the parties that such trial should be had by the court, and not by the jury. In these cases, it will obviously be most convenient to obtain a written consent, and file it with the clerk beforehand, and then to set down and notice the cause accordingly, upon the Special Term Calendar, or otherwise, as may be the practice in the particular court or district. In the Common Pleas, this mode of setting down the cause is made the subject of special provision, by Eule 7, of June, 1848, and the causes thus set down are to be placed in a separate part of the calendar. The form of waiver by oral consent in open court, seems more pecu- liarly applicable to those cases in which the parties change their intentions at the last moment, and after the cause has actually been called on, in its order on the circuit or trial term calendar, a case of comparatively infrequent occurrence. Course of Trial.] — The general course of the trial before a single judge is practically the same as that before a jury, " mutatis mutandis." The case is opened, proved, argued, summed up, and any interlocutory objections or exceptions taken and noted in the same manner, and the general conduct of the cause is identical. The same restrictions, as to the limitation and duration of the arguments of counsel, are applicable to this mode of trial, as in other cases. See Rules of Court, as noticed in introduc- tory chapter. 700 TRIAL BY COURT. Decision of Court] — In the nature, however, of the decisions of the court, and in the mode in which that decision is given, a material distinction exists. The verdict of the jury must be simultaneous with, or, at least, immediately consequent upon the trial of the issue by them. Time for consideration is, on on the contrary, given to the court by sec. 267, which runs as follows : § 267. Upon a trial of a question of fact by the court, its decision shall be given in writing, and filed with the clerk, within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly. Of course, this power does not exclude the right of the judge who tries the cause, to give an oral opinion at the close of the trial, in case he does not require the time here allowed for deliberation ; and, although the question has been mooted, it seems now settled that his oral direction, entered in form upon the clerk's minutes, is a sufficient decision of the cause, and a sufficient authority for the consequent entry of judgment. In The People v. Dodge, 5 How. 47, it was held that the period of twenty days above prescribed, was merely directory; and, the decision in that case having been made by the judge, but accidentally prevented from being filed in due time, it was held that he had power to file such decision afterwards, and that a mandamus might issue to compel him to do so. The decision of the court, when so reserved, is not analogous to the verdict of a jury, as regards the decease of the plaintiff, subsequent to the actual hearing. In Elite v. Moyer, on the contrary, 8 How. 244, judgment was ordered in such a case, to be entered nunc pro tunc, as of the date of the original hearing; the plaintiff having died two days subsequently, and before the decision was pronounced. In giving a decision of this description, the judge is not bound to set forth, as in a special verdict, all the facts of the case. So far as questions of fact arc concerned, he fulfils his duty, by determining the issues which, in his opinion, are material. Ally. nl v. The Mayor of New York, 12 L. 0. 17. The decision of the judge, in these cases, being usually given in writing, and filed with the, clerk, instead of being de- livered in tlie, presence of the parties, the taking of exceptions to that decision at the time of its delivery, is necessarily im- TRIAL BY REFEREES. 701 practicable. By section 268, a special power of excepting, on matters of law, is, therefore, given to the parties, if exercised within ten days after notice in writing of such judgment. The decision may also be reviewed on matters of fact, by means of an appeal to the general term, on a case made in the usual manner. See the same section. It is, of course, important, with regard to the above limitation, that the prevailing party should give written notice to his adversary of the judgment pronounced, as soon as he possibly can, after the filing of the decision has come to his knowledge. In no case should this precaution be omitted. The finding of a judge, upon an issue of fact tried before him, is, in all respects, equivalent to the verdict of a jury upon the same issue, and is to be so treated. See Osborne v. Marquand, 1 Sandf. 457; Gilbert v. Luce, 11 Barb. 91 ; Masters v. Madison County Mutual Insurance Company, 11 Barb. 621, (p. 633.) It is therefore conclusive, unless the weight of evidence against it be so , great, that a verdict under similar circumstances would be set aside. See, likewise, Adsit v. Wilson, 7 How. 64, in relation to a justice's decision under similar circumstances. CHAPTER VI. TRIAL, OR HEARING BY REFEREES. § 210. General Characteristics. Two Forms of Reference.'] — Eeferences under the Code are classifiable into two grand divisions ; viz. : 1. Eeferences of the whole issue, 2. Interlocutory or consequential references. The latter bear more the character of one to the master, under the old chancery practice, the former that of a trial by the court. This distinction is clearly laid down in Graves v.' Blanchard, 4 How. 300, 3 C. R. 25, in the following terms: "A referee, under the Code, is not merely a substitute for the master under the former practice, but is clothed with the power of a judge at special term. When a specific question is referred to him, 702 TRIAL BY REFEREES. his office resembles that of a master ; when the whole issue is referred to him, he takes the place of the court; his report thereon stands as its decision, and may be reviewed in like manner." Wide though the distinction be, between these two classes of references, separately considered, the general form of proceed- ing in both is, in many respects, analogous. In both, the general form of proceeding, viz., the appointment to attend before the referee, the course of proof and argument before him, and the nature and form of the report to be made, present the same general characteristics. To treat both separately would involve much needless repetition, whilst, on the other hand, any minor distinctions are easy to be noticed, in commenting on both, in connection with each other. This course has, ac- cordingly, been adopted. Though selected by the parties, a referee cannot act until regularly appointed by the court ; and, if he assume to do so, before his regular appointment has taken place, all his acts will, as of course, be a nullity. Litchfield v. Bur well, 5 How. 341, 1 C. E. (N. S.) 42, 9 L. 0. 182. The granting of references, and under what circumstances this course of proceeding will or will not be appropriate, have been already considered in preceding portions of the work, in connection with the subject of motions for a reference, 1st. By way of accelerating the cause, and 2dly. At the actual trial. The circumstances under which a consequential reference will be the appropriate form of procedure, will be hereafter considered in chap IV. of the succeeding book. The powers and duties of referees, and the mode of proceeding before them, when duly appointed, will form the subject of the present. A reference to report as to facts, for the information of the court, is usually to one party only, of the judge's selection, (see Conway v. Hitching, 9 Barb. 378, as to his powers in this re- spect); those of the whole issue arc, on the contrary, more or- dinarily made to three, chosen by the parties, or appointed by the court, under the powers in sec. 273. In neither case, how- ever, is the i*ule imperative, Inferences of the latter nature arc frequently made to a single party : whilst, in those of the former description, three are occasionally, though more rarely nominated. The question as to the nomination and selection of referees, has been already considered, and the different cases TRIAL BY REFEREES. 703 cited, in chapter II. of book VIIL, under the head of Motion for a Reference. § 211. Provisions of Code, Powers of Referees. Statutory Provisions.'] — The proceedings considered in this chapter, are regulated by sec. 272 of the Code, in which the distinction above drawn between the two different classes of reference is clearly recognized. It runs as follows : § 272. The trial by referees is conducted in the same manner, and on a similar notice, as a trial by the court. They have the same power to grant adjournments as the court, upon such trial. They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like manner, but not otherwise ; and they may, in like manner, settle a case or ex- ceptions. The report of the referees upon the whole issue stands as the decision of the court, and judgment may be entered thereon, in the same manner as if the action had been tried by the court. When the reference is to report the facts, the report has the effect of a special verdict. In a subsequent portion of the Code, chap. XIV., title XII. of part II., sec. 421, the powers of referees are thus further de- clared : § 421. Every referee, appointed pursuant to this act, shall have power to administer oaths, in any proceeding before him, and shall have generally the powers now vested in a referee by law. Practice under Code before last Amendment. — Powers of Referees as to Costs, tkc.~] — The mode of trial before the referees when appointed, and the effect of their report upon an interlocutory reference, both which important points had been left totally un- provided for in the measures orl848 and 1849, are, for the first time, prescribed by the recent amendments. The courts had however, been already feeling their way to the conclusions come to by the legislature. All the cases under the late measures, agreed, in fact, in treating the form of trial before referees of the whole issue, as being substantially the same as that on a trial by the court. Thus, in Langley v. Hickman, 1 Sandf. 681, the court refused to entertain an application to postpone a trial before referees, on 704 TRIAL BY REFEREES. account of the non-attendance of a witness, on the ground that such postponement was a matter peculiarly within the province of the referees themselves. Their right to refuse to hear further testimony upon any particular point, on which sufficient evi- dence has already been given, is also laid down in Green v. Brown, 3 Barb. 119. In Schermerhorn v. Develin, 1 C. K. 28, the court, on similar principles, refused to interfere with the discretion of the referee as to the admission or rejection of evi- dence, even though its opinion was sought to be obtained at the latter's own request; and, in Allen v. Way, 7 Barb. 585, 3 C. E. 213, it was held that the referee was bound by the same rules in proceedings before him, as the court, upon the trial of a cause. It was accordingly laid down, that it is not compe- tent for such referee to admit objectionable evidence at the time u de bene esse" and afterwards to reject it in forming his decision. His discretion over such interlocutory questions ceased with his decision of them, or, at least, with the actual trial of the case before him. He could not review his decision on such questions afterwards, in the absence of the parties. In Graves v. Blanehard, 4 How. 300, 3 C. E. 25, before cited, the same general authority is laid down as above mentioned, in dis- tinct terms, and the right of a referee of the whole issue to pass upon the question of costs, distinctly asserted. This last power was doubted in Van Yalkenburgh v. Allendorph, 4 How. 39, but on apparently unsatisfactory grounds, whilst, in Luding- ton v. Toft, 10 Barb. 447, the authority of Graves v. Blanchard is expressly confirmed, and it is held that the decision of the referee in this respect, will not be supervised by the general term, unless for manifest error. In Gould v. Clnqrin, 4 How. 185, 2 C. E. 107, and Howe v. Muir, 4 How. 252, it was, however, held that a referee had no power to pass in any shape, upon the question as to whether an extra allowance ought or ought not to be granted, under sec. 308. This conclusion seems, however, to be unsustainable to its full extent. Under rule 82, the application for this pur- pose can only be made "to the court before which the trial is had, or the judgment rendered," and the decisions in reference to that allowance, are almost all to the effect, that the applica- tion for that purpose ought to be made to the judge who has actuallj ined the can e ; for the obvious reason that he, and he alone, is competent to form a judgment as to the propriety of TRIAL BY REFEREES. 705 that application, without what would amount to afresh hearing of the case. The reasoning in Graves v. Blanchard, above cited, on the analogous question of granting or refusing costs, where they rest in the discretion of the court, is, indeed, directly op- posed to this conclusion, and the fact that the report of the referees upon the whole issue is, by express provision, to stand as the decision of the court, and that judgment may be entered thereon as of course, without any further action on the part of the delegating tribunal, seems almost, if not entirely, decisive as to their full power, at least to certify their opinion, if not to deal with all minor and subsidiary questions, during and conse- quent upon the actual hearing. The proper course seems to be that pointed out in Fox v. Gould, 5 How. 278, 3 C. R 209, viz., to obtain the referee's certificate upon the facts, and then to apply to the court upon that certificate. Powers of Referees continued, ,] — Under sec. 421, above cited, it is provided, that a referee, under the Code, " shall have gene- rally the powers now vested in a referee by law." These powers will be found prescribed in article IV. title VI. chapter VI. of part III. of the Revised Statutes ; 2 R S. 383 to 386. The oath to be taken by such referees, previous to hearing testimony, is prescribed by sec. 44 of that article; and the party having the carriage of the reference, should, of course, see that this condi- tion precedent has been properly complied with. This last provision seems, however, to be only applicable to references of the whole issue, and not to those of an interlocu- tory nature. It may be convenient to draw the reader's atten- tion to the enactments at 2 R S. 88 to 91, with respect to the reference of claims against the estate of a deceased person, dis- puted by the executors ; although the consideration of refer- ences of this last description, in no respect falls within the plan of the present work. The powers of a referee of an issue of fact being substantially the same as those of a jury, on the trial of a similar issue, the general rules of law as to the conduct and duties of jurors, under such circumstances, are equally applicable to them. Thus, in Yale v. Gcoiaits, 4 How. 253, a referee's report was set aside for irregularity, in consequence of his having examined some machinery there in question, in company with two of the plain- tiff's witnesses, and of his having received explanations from 45 706 TRIAL BY REFEREES. such witnesses, without the knowledge or consent of the defend- ants ; and this, although there seemed no reason to doubt his perfect good faith in the matter, and his perfect unconsciousness of any impropriety or irregularity in that line of conduct. In Dorlon v. Leivis, 9 How. 1, the same principles are fully maintained, and it is held that, if it appears that the report of a referee upon questions of fact has been, even in the slightest degree, affected by any influence exercised by the successful party, it will be set aside for irregularity. A referee, when the cause is intrusted to him, should not only avoid all improper influences, but even the appearance of evil, and, whether satis- fied with his decision or not, no one should be left to question its entire fairness. The office of the referees being in its nature judicial, they cannot testify, under any circumstances, in the course of the proceedings pending before them. Morss v. Morss, 11 Barb. 510, 1 0. E. (N. S.) 374, 10 L. 0. 151. Any defect in the original appointment of a referee, will be waived by the parties proceeding before him without objection ; and, having done so, they will not be permitted to raise such objection afterwards. Renouil v. Harris, 2 Sandf. 641 ; 1 C. R. 125. The same doctrine was also held by the court in Garde v. Sheldon, 3 Barb. 232, save only as regards the point that the court had no jurisdiction to make the order of reference. That objection may be raised at any time. A reference "of this cause," without limitation, embraces all the issues, both of law or fact, therein, and the referees will have power to report upon the whole of such issues. Renouil v. /funis, 1 C. R. 125, 2 Sandf. 641, above cited. See also Graves v. Blanchard, 4 How. 300, 3 C. R. 25, before referred to. A rule of court, by consent, referring to referees, "to hear and determine the matters in controversy on legal and equita- ble principles," was, however, held, in Bluntv. Whitney, 3 Sandf. 4, to be, not a reference, but an arbitration; and a motion to set aside tin' report made, was accordingly dismissed for want of jurisdiction. The decision of questions by arbitration, is en- tirely and exclusively a proceeding under the old practice, and is in no manii'i' affected by the Code, or any of the decisions under it. On the granting of a new trial, on a referee's report, the same referee may proceed in the matter without any fresh authority TRIAL BY REFEREES. 707 from the court. The effect of the proceeding is, to replace the cause in the position in which it was before the first trial, the order of reference remaining in full force. Shuart v. Taylor, 7 How. 251. § 212. Course of Hearing. Though, in all substantial respects, similar to a trial by the court, the trial by referees is usually of more irregular continu- ance, and of longer duration. When once commenced, a trial by the court is usually carried on to its conclusion, as a conse- cutive proceeding, without any postponement or adjournment, save such as are absolutely and indispensably necessary, and then only " de die in diem." The trial before referees is, on the contrary, rarely so disposed of. It is, ordinarily, adjourned and resumed from time to time, at irregular and arbitrary intervals, according to .the convenience of the parties or of the referees, and is, in consequence, frequently spread over a comparatively prolonged period. The provisions of the Eevised Statutes, in the article above cited, remain, for the most part, practically unrepealed, and the mode of conducting the proceedings before referees is, in all essential respects, the same as under the old practice. The works on that practice may therefore, if necessary, be referred to for points of detail, according to the plan laid down at the commencement of this work. A sketch, however, of those: proceedings may be useful at this juncture. Notification to Referees — Their Duty thereupon.'] — Of course,, the first proceeding to be taken by the party having the con- duct of the reference, is to notify the referees of their appoint- ment, for which purpose, a copy of the order should be served upon each. On receiving such notification, they must proceed with diligence to hear and decide the matters in controversy, (see sec. 42 of the article of the Eevised Statutes above cited,) and they have power to make use of the process of the court, in order to enforce the attendance of the witnesses before them, ss. 44 and 45. They are bound to appoint a time and place for the hearing, and should do so in writing, though it has been held that a parol appointment is sufficient. See Stephens v. Strong, 8 How.. 708 TRIAL BY REFEREES. 339. They have full powers of adjournment of that hearing, from time to time, and, on the application of either party, and for good cause shown, they may postpone it to a time, not extending beyond the next term of the court in which the suit is pending; sec. 43. This power is extended by the Code, as above cited, and is now the same as that of the court, under similar circumstances. Any one referee may administer an oath, but all must meet together, and hear all the proofs and allegations of the parties, and an adjournment cannot be granted, except by the full number; any two, however, may make a report; sec. 46. The referees may be compelled by order to proceed, and to report on the matter submitted to them, and the court may require them to report any proceeding before them, and their reasons for allowing or disallowing any claim, if necessary; sec. 47. In references consequent upon judgment, in an action for an account, they may examine the parties upon oath, and may require the production of books, papers, or documents, in the custody, or under the control, of either, and, in case of refusal, report the same to the court, which will thereupon proceed to enforce such production, by the ordinary process of attachment; ss. 55 to 59. Production of Boohs, &c] — In other cases, they have no power to order the production of books and papers, where there is no provision to that effect in the order of reference. The power to order such production is limited to the court, or to a justice thereof. The certificate of a referee that the production of books and papers is necessary, will, however, be regarded as presump- tively sufficient to warrant an order for their production, and the burden of showing the contrary will, in such case, lie on the adverse party. Frazer v. Phelps, 3 Sandf. 741, 1 0. R. j(N, S.) 'ill. Care should, therefore, be taken, to have a direc- tion to the foregoing effect inserted in the original order, in all oases where such production is likely to be required. The court will grant to the referees a special power of this nature, as of course, in all eases in which a reference to the master would have been proper, under the old chancery prac- tice. Frcuer v. Phelps^ 4 Sandf. 682. They will then be com- petent to make sueli an order of their own authority, and the iiuestion as to the propriety of the order so made, will then TRIAL BY REFEREES. 709 come before the court, on the motion to show cause why an attachment should not issue, in the event of its being disobeyed by the parties. The above course of proceeding is proper, when, as before stated, the necessity of such production is foreseen, when the reference is originally granted. If that necessity arise subse- quently, the obtaining a certificate, as above, and an application to the court, grounded thereon, will be requisite. In case of a refusal to produce, a special application to the court appears then to be the only course. Keferees have no power, of their own authority, to issue pro- cess of contempt; nor can they make any order of that nature, such as to order the complaint of a plaintiff to be stricken out, on his fraudulent refusal to produce papers material to the defendant's case, on a subpoena duces tecum. Bonesteel v. Lynde, 8 How. 226, affirmed, 8 How. 352. Notice to adverse Party.]— Due notice should be given to the opposite part} r , of the original appointment for hearing by the referee, and of each adjournment, when such party is not pre- sent, at the time when that adjournment takes place. No time is positively prescribed, but at least the same notice ought to be given of the first hearing, as on the case being tried by the court. See Williams v. Sage, 1 C. E. (N. S.) 358. This seems, indeed, to follow, as a natural consequence, from the provision in s. 272, as it now stands, that this description of trial is to be conducted, in the same manner, and on similar notice, as a trial by the court. This view is taken, and the right of either party to bring on the case on such notice is recognized, in Thompson v. Krider, 8 How. 248. Once noticed, the pro- ceeding assumes the form of a pending trial, and no fee in the nature of a term fee can be claimed, although a renewed notice may be given, after an adjournment has taken place. See Anon., 1 Duer, 596; 8 How. 82, overruling Benton v. Bugnatt, 1 C. R (N. S.) 229. Course on Trial — General Observations.'] — On the reference coming on in due course, the form of proceeding is the same, "mutatis mutandis" as on an ordinary trial; the case is regu- larly opened, proved, and summed up, at the meeting or meet- ings, in proper form, and in a consecutive manner. All inter- 710 TRIAL BY REFEREES. locutory points should be decided at the time, and exceptions to such decisions may be taken, and should be noted precisely as in the case of trial by the court. See Deming v. Post, 1 C. R 121. The referees, in fact, stand in the place of the single judge, for all purposes ; and all that must, or may be done before or by such judge, during the hearing, ought, in regularity, to be also done before or by them. Under the Code of 1849, it was held that a referee, in the proceedings before him, is bound by the same rules as to the admission or rejection of evidence, as a judge upon the trial of a cause. He cannot admit such evi- dence de bene esse at the time, and afterwards state that he has rejected it in forming his decision. " His discretion, as well as his authority over interlocutory questions, arising in the course of the trial, ceases with his decision of them, or at least with the trial itself." He cannot review his decision on them after- wards, in the absence of the parties. Allen v. Way, 7 Barb. 585, 3 C. E. 243, above cited. This principle is fully carried out by the late amendment. See, likewise, Langley v. Hickman, Green v. Brown, Schermerhom v. Develin, and Graves v. Blanchard, be- fore cited. Divorce.'] — The practice in references for a divorce, on the ground of adultery, is laid down in Arborgast v. Arborgast, 8 How. 297. All facts material to the plaintiff's right to a decree must be fully proved, or it cannot be obtained ; nor can the testimony of the defendant be made use of in any manner for such pur- pose. Accounting.] — Where an account is directed to be taken, the former rules of practice of the court of chancery are still in full force. Where, therefore, the account of a defendant is directed to be taken in the "usual manner," it was held that he was bound to bring in before the referee a sworn account, including both debits and credits, in the manner prescribed in the 107th Rule of the late court of chancery, and to submit to such ex- amination as was allowed by that rule. Wiggins v. Gaus, 4 Sandf. 646. The rule in question will be found, in extenso, in a note at the end of the case in question, 4 Sandf. 619. Where, however, the pleadings in the cause presented a preliminary issue, as to the existence or non-existence of an TRIAL BY REFEREES. 711 alleged partnership, a special report by the referee, with a view to the decision of that question in the first instance, before pro- ceeding to take the accounts, which would be consequent on the referee's decision in the affirmative being supported, was held to be undoubtedly the correct practice. Bantes v. Brady, 8 How. 216. Nonsuit or Default.'] — By Rule 22 of the Supreme Court, it is specially provided that, at the hearing, the plaintiff may submit to a nonsuit or dismissal of his complaint, or be nonsuited ; or his complaint may be dismissed, in like manner as upon a trial, at any time before the cause has been finally submitted to the referees for their decision ; in which case, the referees shall re- port according to the fact, and judgment may thereupon be per- fected by the defendant. In the rules, as they stood previous to the last amendment, the provision above made for a dismissal had been omitted. That the defendant might obtain an adverse nonsuit, in the event of the plaintiff failing to prove his case at the hearing, has always been clear. See Brockway v. Burnap, 12 Barb. 347 ; 8 How. 188. The course to be pursued, in the event of the plaintiff's ne- glect to proceed with the cause before the referee, has given rise to more discussion. In Holmes v. Shewn, 6 How. 217, 1 C. R. (N. S.) 380, it was held that, under these circumstances, the defendant cannot take a report that he is entitled to a dismissal of the complaint, and enter up judgment on that report, as of course. This view proceeds on the assumption that the referee had no power, under the Code as it then stood, except to hear and decide the issue ; and that the proper course, under these circumstances, would be a motion to dismiss the complaint for unreasonable delay, under Rule 43 of the late rules of the Supreme Court. In Williams v. Sage, 1 C. R. (N. S.) 358, a precisely contrary conclusion is come to, and a motion to dismiss for unreasonable delay was denied; the court holding that either party may notice an action for trial before referees, and proceed upon that notice, precisely as on trial by the court ; and that the referee, in that case, should have proceeded upon the defendant's no- tice, and, in the absence of evidence on the part of the plaintiff, reported in favor of the former. 712 TRIAL BY REFEREES. This latter conclusion is supported by the subsequent deci- sions of Thompson v. Krider, 8 How. 248; and Stephens v. Strong, 8 How. 339 ; and the point may, therefore, be looked upon as settled accordingly. It seems clearly deducible indeed, from the language of Eule 22, as now amended. It is further supported by the case of Salter v. Malcolm, 1 Duer, 596, which holds that, under these circumstances, the proper judgment to be entered is a dismissal of the complaint, and not an absolute judgment, as upon verdict. The judgment ought no more to be an absolute bar in such a case, than in that of a nonsuit upon a trial. Postponement of Trial, Costs of.] — By sec. 314, referees are clothed with special power to impose the payment of costs not exceeding ten dollars, as the condition of granting any post- ponement of a trial, when applied for. § 213. Report, i be s< aled or signed, nor need a bill of exceptions be m ide. ]f the exoi prion be, in the first instance, staled in a oase, and it be afterwards necessary to separate them, the separation may be made under the direction of the court, or h jadge thereof. The judge who tries the cause, may, io Ids discretion, entertain a motion to be made on 1,h minutes to Bet a ide a verdict, and grant a new trial upon excep- tion , or for insufficient evidence, or for excessive damages ; but such NEW TRIAL. tics.~\ — We now arrive at the more usual practice of reviewing the verdict of a jury, or the decision of the court, or referees, on a question of fact, on a case made and submitted for that purpose, a practice which was fast settling down into a regular and consistent system, although, as before stated, the point was left unprovided for by the Codes of 1848 and 1849. This conclusion was, however, only arrived at, as the result of numerous and occasionally conflicting decisions. To enter into any lengthened citation of these authorities would be superfluous. They established, by a species of gra- duated progression, lstly. That such review was obtainable, and 2dly. That the special term is the proper forum for that purpose. A short notice of them may not, however, "be super- fluous. In the following cases it was held, that the verdict of a jury» or the decision of a single judge or referee, was reviewable by 726 NEW TRIAL, Ac. the general term, in respect of errors of fact, as well as of errors of law: Laimbeer v. Allen, 2 Sandf. 648, 2 C. R. 15; Pepper v. Goulding, 4 How. 310, 3 C. R. 29; Weed v. Raney, 8 L. 0. 182; Nolton v. Moses, 3 Barb. 31; Vallance v. King, Id. 548; Clark v. Crandall, Id. 612; Krorn v. Schoonmaker, Id. 647; Wilson v. Allen, 6 Barb. 542; Carley v. Wilkins, Id. 557; and J. /Zen v. Way, 7 Barb. 585, 3 C. R. 243. The chief cases establishing the contrary doctrine, i. e., that errors of fact were reviewable, and, as such, were properly cognizable by the special term, were Haight v. Prince, 2 C. R. 95; 2 Sandf. 723 (Note); Nones v. Hope Mutual Insurance Company, 5 How. 157, 2 C. R. 101, 3 C. R. 192; Enos v. Thomas, 5 How. 361, 1 C. R. (N. S.) 67; Burhaus v. Van Zandl, -7 Barb. 91; Leggett v. Matt, 4 How. 325, 2 Sandf. 720, 8 L. 0- 236, 3 0. R. 5; Choice v. Passage, 4 How. 360; Willis v. Welch, 2 C. R. 64; Droz v. (M%, (or Lalcey,) 2 Sandf. 681, 2 C. R. 83; Seely v. Chittenden, 4 How. 265; Lush v. Lusk, 4 How. 418; Graham v. Milliman, 4 How. 435; Hastings v. McKinley, 3 C. R. 10; CWs* v. 27*e Few? For^ Dry Dock Company, 3 C. R. 118; (xn'a^ v. La Wall, 3 C. R. 141, 5 How. 158; Hatfield v. Ross; Crist v. Dry Dock Bank, 3 C. R. 141 ; In re Fort Plain and Cooper stown Plank Road Company, Ex parte Ransom, 3 C. R. 148 ; Collins v. Albany and Schenectady Railroad Company, 5 How, 435 ; Benedict v. The New York and Harlem Railroad Company, 3 C. R. 15, 8 L. O. 168; to which may be added the recent case of Ball v. The Syracuse and Utica Railroad Company, 6 How. 198, 1 C. R. (N. S.) 410. The latter conclusion may, therefore, be considered as having been established; before it was made, as now, the subject of express provision by the legislature. A conflict of doctrine took place under the Code of 1849, as to whether a referee's report on the whole issue, was reviewable in respect of errors of fact, by the general, or by the special term. The former view was maintained in laimbeer v. Mott, 2 C. R. L5; Pepper v. QovMing, 4 How. 310, 3 C. R. 29; and It'"'/ v. /.'"/"'/• 8 L. 0. 182; the latter in Haight V. Prince, 2 Sandf. 728, 2 0. Et. 95; Leggett v. Mutt, 2 Sandf. 720, 4 How. 325, 8 L. O. 236, 3 C. R. 5; Nones v. Hope 1/ '" I 'ual Insurance Company, ■> I low. 157, 2 C. R. 101; Crist v. The Dry Dock Company, 8 0. Ii. L18; Origg v. La Wall, 3 C. R. 141, 5 How. U>8; Hat/ield v. Bou; Crist v. Dry Dock Hank, 3 C. R. 141; Morgan v. Bruce, 1 C. R. (N. S.) 36 1 ; which combined series of NEW TRIAL, Barb. 612. In Weeks v. Lowefte t 8 Barb. 580, the rule as to the admis- sion of objectionable evidence, is laid down in the strictest terms; and it was hold that, if any Illegal testimony goes to the jury, which might lnive weighed with them, on any ma- NEW TRIAL, pl*C6 exceptions on the record, with the view of obtaining a similar revision, on points of law, by appeal, PROCEEDINGS BETWEEN TRIAL AND JUDGMENT. 753 having thus been considered : the intermediate proceedings that are, or may be necessary, on the part of the prevailing party, remain to be dealt with, before passing on to the actual entry of judgment and its consequences, the subject of the next book. § 227. Minutes of Judgment, Amendments, <$-c. Amendment of Verdict'] — This proceeding, though admissible, is of comparatively rare occurrence. In Burhaus v. Tibbetts, 7 How. 21, an appilicaton of this nature was granted, and the following general rules are laid down. The verdict of a jury may be amended or corrected, so as to conform to the facts, where there is no doubt as to such facts, either by certificate of the judge or otherwise, and of the real intentions of the jury. Where, however, the slightest doubt exists as to what transpired at the trial, or, if any exist that the whole case has been disposed of by the court and jury, an amendment should not be allowed. A joint verdict against defendants in tort, is not amendable and, if impeachable upon any material points, it must be set aside. Carpenter v. Shelden, 5 Sandf.*77. The motion for the above purpose is usually made by the prevailing party, at or immediately consequent upon the trial, itself, and without any special notice. If, however, it be de*. layed till a later period, the opposite party must be noticed,, and the application brought on in the usual manner. Minutes of Judgment, in Equity Cases.] — In ordinary causes, no special preparation of the minutes of the judgment to be en- tered will be necessary. In equity cases, however, or in others, where the judgment embraces special relief, it may be neces- sary or convenient, for the prevailing party to prepare his mi- nutes of the decree or judgment to be entered, and serve a copy on the opposite party, with a notice to attend before the judge who tried the cause, at some specified time,, in order that such minutes may be settled by him. The opposite party may, of course, either alter the minutes served^ or prepare counter minutes on his part, with a view to such settlement. The appointment being attended, the minutes on both sides may either be submitted to and settled by the judge, at the time, or left with him for settlement at his leisure. If, on his settlement 48 754 PROCEEDINGS BETWEEN TRIAL AND JUDGMENT. of such minutes, any questions arise, it is competent for the party dissatisfied to bring such questions again before him, on an application for resettlement, notice being, of course, given to his opponent. If, on such resettlement, the judge perse- vere in the view claimed to be erroneous, there seems to be no ' further remedy, except an appeal from his decision, in due form, either in the shape of one from the judgment itself, or from his order, on the application for a resettlement, which order should be entered accordingly, where the former course cannot be pursued. These proceedings are ordinarily, and will be most conveniently taken, before such judge at chambers. There is, however, no obstacle to their being taken in actual court, and to the cause being put on the calendar for that pur- pose, according to the old practice in chancery, where that course is considered desirable, though this will rarely be neces- sary, except in cases of more than usual complication and importance. § 228. Special Verdict — Verdict subject to opinion of Court, Sfc. General Observations. ,] — The foregoing observations apply to the settlement of the minutes of a decree or judgment pro- nounced, with respect to which no further action is necessary, except the mere ministerial act, of dictating the precise terms, in which the judgment actually pronounced, is to be pro- perly entered. The questions as to special verdict, or verdict subject to the opinion of the court, fall, however, under a diffe- rent category, inasmuch as no judgment can there be entered at all, until the questions thus reserved have been duly disposed of. Of both these proceedings, the prevailing party has the conduct, and both are, in all respects, the same as under the former practice, with this distinction, that the proceeding by special verdict has never been intermitted under the Code, since its original passage, whereas the practice of entering a verdict subject to the opinion of the court, has been in abey- ance under the measures of 1848 and 1849, and was only restored in terms, by the amendment of 1851. /,'- ervation of Cause for Argument, dec] — It may be safe, when the case assumes either of these forms, to ask for the entry of PROCEEDINGS BETWEEN TRIAL AND JUDGMENT. 755 an order that " the cause be reserved for argument or further consideration" (see Ball v. The Syracuse and TJtica Railroad Company, 6 How. 198 ; ICE. (N. S.) 410) ; but it seems, in no respect, to be absolutely necessary. The very proceedings themselves, import, in their nature, a reservation of this description. This mode of reservation of the cause, though specially pro- vided for by the Code, seems to have fallen through, as re- spects its practical working. With the exception above noted, not one single case appears in direct relation to the construc- tion of this provision, or arising under it. The phraseology appears to have been retained, on the last amendment of the Code, for no particular reason, further than that it was con- tained in the amendment of 1849. To trial by jury, the con- nection by which it is placed, it seems totally inapplicable, inasmuch as the jury, once separated, cannot be reassembled. It more probably was intended to bear reference to the power of the court, on trials of equity cases, or issues of law, on which the decision is reserved, to order a re-argument on points on which doubt is entertained ; or to applications to the court in similar cases, and particularly in those of an equitable nature, for settlement of the minutes of the proper decree or order, before its actual entry. In cases of this description, it was not unusual, under the old practice, to have the cause called on afresh, for the purpose of arguing questions arising upon the proposed minutes, and having them regularly disposed of by the court, and the words in question may probably have been introduced with a view to this practice. In the Code of 1849, they may possibly have had the operation of keeping alive the old practice of entering a verdict, subject to the opinion of the court; and, in that sense, their applicability to trial by jury might well have been maintained. Under the last amendments, however, this practice being restored in terms, they seem to become surplusage, except, possibly, in so far as they may be held declaratory of the power of the court, to grant a stay of proceedings upon the trial, until any reserved questions may have been disposed of: a point of jurisdiction so obvious, that it did not seem to need any declaration whatever. Preparation and Settlement of Case or Special Verdict.'] — The opinion of the court on a verdict, can only be obtained, as under 756 PROCEEDINGS BETWEEN TRIAL AND JUDGMENT. the former practice, on a case duly made. The case, for this purpose, must be prepared and settled, like that on the part of the losing party, as detailed in the last chapter. The facts on which the opinion of the court is sought, and the questions for their consideration, must be presented in a manner precisely analogous, and no fresh observations appear, therefore, to be necessary upon the subject. The mode of settlement of a special verdict is also substan- tially the same, as respects the formal proceedings, and it is, therefore, equally unnecessary to do more than to refer to the last chapter on that head. Kule 19 should, however, be specially noticed, providing that, where a party shall be entitled to turn a case into a special verdict, and shall neglect to do so for thirty days, the prevailing party shall be at liberty to proceed as though no step had been taken, and also that, if no amendment be proposed within twenty days, the document, as prepared, shall be deemed assented to. As respects, however, the original preparation of that docu- ment, a most material distinction is to be drawn. The evidence bearing on the points, on which the opinion of the court, or a review of its decision is sought, is not only admissible but proper to be stated upon a case, exactly as that evidence was delivered ; a detailed statement of such evidence is, on the con- trary, inadmissible in the preparation of a special verdict. The facts which have been found should alone be stated on the lat- ter, so as to refer to the court the consideration of questions of law only, unmixed with discussions on points of fact. See Hill v. Covell, 1 Comst. 522 ; Sisson v. Barrett, 2 Comst. 406 ; Lang- ley v. Warner, 3 Comst. 327, before cited; also Livingston v. Raddiff, and three other cases, 2 Comst. 189, 3 How. 417. This distinction should be carefully attended to, and the statement of the facts found by the jury, made as succinct and clear as possible, on the original preparation of the document. Wearing of Case or special Verdict.'] — The case, or special ver- dict, when duly settled, must be set down for argument before the special term ; the latter in the form of a motion for judg- ment thereon. A copy of the special verdict or case must also be served upon the opposite party, at least eight days before the argument. The duty of making this service, and also of PROCEEDINGS BETWEEN TRIAL AND JUDGMENT. 757 furnishing the papers for the use of the court, falls, as regards a special verdict, upon the plaintiff, as regards a case, upon the party making the motion. See Rule 28 of the Supreme Court. At first sight, the application for judgment on a special verdict would seem, as an enumerated motion, to be cognizable by the general term, under Rules 27 and 28 ; but those rules are evi- dently controlled by sec. 265, of the Code, which provides the contrary as the rule ; with the exception, that "Where, on a trial, the case only presents questions of law, the judge may direct a verdict, subject to the opinion of the court at a general term, and, in that case, the application must be made to the general term." If the application for the above purpose be heard before the special term, it will not, of course, be necessary to print the papers. If, on the contrary, the general term be the forum prescribed, it seems evident that the papers must be printed, and points regularly prepared, according to the practice in appeals to that tribunal, as prescribed by Rule 29. This seems to follow, as an evident conclusion from the nature of such hear- ing, which, although not in the form of an appeal, is evidently, for practical purposes, a substitute for that proceeding, with the omission of the intermediate stage of a hearing at special term. Rule 28 also provides that, in cases reserved for argument or further consideration, no case need be prepared in writing, un- less by direction of the justice who tried the case ; and, that the party, on whose motion the case is reserved, shall furnish the papers for argument. A motion of this nature, where made, is of course a non-enumerated motion, and should properly be made before the judge who tried the cause, at special term, or, in the First District, at chambers. See, however, former observ- ations as to this proceeding. The decision of either special or general term, when pro- nounced, should be entered as an order by the prevailing party, who will then proceed to sign judgment accordingly, in due course. It remains shortly to notice the preliminaries to this latter proceeding. § 229. Other Proceedings. Taxation of Costs, <£c] — The bill of costs of the prevailing party must, of course, be prepared, and two days' notice of 758 PROCEEDINGS BETWEEN TRIAL AND JUDGMENT. taxation must be given to the opposite party. The application for an allowance, under sec. 808, must also be made at this stage of the cause. See both these subjects fully considered in subsequent chapters, under the heads of Judgment and Costs. They are, however, alluded to here, to draw the attention of the student, at this juncture, to the necessity of being fully prepared on the former head, and of making the application for the latter purpose in due time, where such application is admissible. References in certain Cases.'] — In cases of foreclosure and par- tition, and others of an analogous nature, such as equitable pro- ceedings for the purpose of enforcing an account, &c, a reference will probably be directed at the original hearing, to report the facts of the case, for the information of the court, before the final entry of the judgment pronounced. In strictness, these proceed- ings might be held to belong to this period of the cause, but it may be more convenient to notice them under the head of Judg- ment, to which title, accordingly, their consideration is deferred. They are, in fact, rather of a consequential, than of a prelimi- nary nature, and answer to the reference to a master, under a decree in chancery, under the former practice, and to the sub- sequent winding up of the proceedings, under his report, when made, by means of a final decree or order, on further directions. END OF VOLUME 1. ^-« % LAW LIBRA] <* UNIVERSITY OF ' >KNI* LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 851 159 4