_ < * REPORTS OF PRACTICE CASES, DETERMINED COURTS OF THE STATE OF NEW YORK: DIGEST OF ALL POINTS OF PRACTICE EMBRACED IN THE STANDARD NEW YORK REPORTS. ISSUED DURING THE PERIOD COVERED BY THIS VOLUME, WITH" REFERENCES TO THE AMENDATORY ACTS OF 1855. BY ABBOTT BROTHERS, COUNSELLORS AT LAW. VOL. I. NEW-YORK : JOHN S. VOORHIES, LAW BOOKSELLER AND PUBLISHER, 20 NASSAU-STREET. 1855. [Entered, according to Act of Congress, in the year One Thousand Eight Hundred and Fifty- five, by ABBOTT BROTHERS, in the Cleilt'a Office of the District Court for the Southern Di- .rftuoo ens&m OH ^d ivt,i< r,w bttvr^i trictof iNew York.] PREFACE. THE present volume is the first of a new series of reports of practice cases in the courts of the State of New York. Since the commencement of the changes in the system of procedure in courts of justice, which have for some time been taking place in this State, the necessity of prompt and accessible information upon the decisions of points of practice, has been much felt by the profession. It is the aim of this series to assist in supplying that want. But while decisions under the Code of Procedure form the most numerous and important class of the cases here reported, we have by no means confined the series to such. Cases illustrative of criminal practice, of practice in special proceedings, of the rules of evidence, &c., are to a considerable extent embraced in the plan. But while we have intended that these reports shall cover a tolerably broad field in this respect, we have endeavored to confine the selection of cases, principally to such as are likely to possess a permanent value and authority. We have not intended that these reports shall be a mere magazine of the current judicial news of the day, but a selection of standard cases, such as promise to be useful guides to the practitioner for many years to come. This object will be steadily kept in view in future volumes, and as we hope, with increased success. The PRACTICE DIGEST, which follows the reports of cases, differs materially from the- usual digest appended to the volumes of reports published at the present day. We have made it a digest of all practice cases contained in the standard Reports of this State, which have been issued during the period covered by the publication of this volume. This digest is an original one, studiously prepared from an exami- nation of all the cases reported. It is not a compilation of the marginal notes of other reporters, but every note has been freshly digested, and the notes fully colla- ted. It embraces also the substance of so much of the Acts of 1855 as relates to ques- tions of practice. And, while studying a suitable conciseness, we have also endea- vored to give the substance of all decisions or statutes likely to be of frequent appli- cation, so fully and accurately that the practitioner who has not the volumes refer- red to at hand, may safely act upon these notes. Should this feature of the volume be approved, it will be continued in the future volumes of the series. Those who have found these reports as they have been issued in numbers, ser- viceable, may rest assured that the series will be continued, with such improve- ments as time may suggest. IV PREFACE. For the convenience of subscribers in other States of the Union, we will add a few words of explanation in respect to the comparative authority of the different reports cited in the digest. 4 SELDEN'S COURT OF APPEALS REPORTS. [4 Seld.] 1 KERNAN'S COURT OF AP- PEALS REPORTS. [1 Kern.] The Court of Appeals is the highest court in the State, for the determination of questions of law, arising in civil or criminal actions. It has appellate jurisdiction only, and its decisions are conclusive upon all other courts of the State, until recalled by the Court of Appeals itself. The decisions in this court are reported by an official reporter. The 4 Selden terminates the series conducted by Mr. Selden ; and the 1 Kernan is the initial volume of that to be issued by his successor in office. Wherever it occurs that a decision quoted in our digest from Selden or Kernan con- flicts with one reported from another court, it is to be understood that Selden or Kernan as the case may be, states what is the law of the State ; and that the con- tradictory deci&ion is overruled. The conflict in such cases usually arises of course from the fact that the overruled decision was rendered before the decision of the Court of Appeals was published. 1 HOWARD'S COURT OF APPEALS CASES. [1 How. App., Cas.] This volume contains the opinions of the Court of Appeals in some cases which have not heretofore been reported by the official reporters of the Court. The deci- sions quoted from this volume, although few in number, are of course of equal authority with those cited from Selden and Kernan. 17 & 18 BARBOUR'S SUPREME COURT REPORTS. [17 & 18 Barb.] These are the regular reports of the New York Supreme Court. This is the most important court of original jurisdiction, in the State; and its jurisdiction extends throughout the whole State, and is of the most comprehensive character. It is or- ganized, however, into eight distinct districts, located in different portions of the State. The judges of each district hold the Supreme Court in that district only ; and are independent of those of any other. There is a very general disposition in the different districts to follow each other's decisions, for the sake of preserving a convenient uniformity, yet it not unfrequently happens, especially in respect to questions of practice, such as are within the control and discretion of the court, that different districts adopt different courses, and their decisions conflict. Where this is the case, neither district has power to overrule the decisions of the other, but the practice remains variant in different portions of the State, until in course of time a uniform rule is perhaps prescribed in the Court of Appeals. 2 DUER'S NEW YORK SUPERIOR COURT REPORTS. [2 Duer]. 1 E. D. SMITH'S COMMON PLEAS REPORTS. [1 E. D. Smith's C. P. R.] The New York Superior Court and Court of Common Pleas are two local courts established in the city of New York. The Common Pleas is considered the oldest court in the State. The Superior Court has been organized but about a quarter of a century. These two courts possess a less comprehensive jurisdiction than the Supreme Court, but within their jurisdictions the three courts may be considered as possess- ing co-ordinate authority. Neither of them possesses appellate power over the other, but appeal from the decisions of each lies directly to the Court of Appeals. The same reasons which give rise to different rulings on questions of practice in PREFACE. V the different districts of the Supreme Court occasion conflicting decisions in these three courts. When therefore contradictory decisions are cited in the digest, from Barbour, Duer, and Smith, it is to be understood that neither of them are para- mount to the other, but that the decisions of each court are of authority in that tri- bunal. 1 ABBOTT'S PRACTICE REPORTS. [Ante. ] As this volume consists of cases reported from all the various courts, the weight which is to be attached to any one case is to be determined by considering from what court it emanated. As the reader of the digest has of course the volume be- fore him, the references to it have been made as concise as possible. 10 HOWARD'S PRACTICE REPORTS. [10 How. Pr. R.~\ This volume, also, consists of cases principally but not exclusively practice cases, determined in the various courts of the State. 1 PARKER'S CRIMINAL REPORTS. [1 Parker's Cr. R.] This volume contains reports of criminal cases, tried or argued in various courts of the State. Some of them are cases in the nature of appeals, which were elabo- rately argued, and well considered, before decision. The substance of these deci- sions, so far as they relate to questions of practice, is given at considerable length, in the digest. Many of the cases in the volume, however, are only reports of rulings upon trials ; and our notes of these are very concise, being intended merely to direct attention to the case referred to. LAWS OF 1855. It was not to have been expected that so important a measure of legal reform as the Code of Procedure should be perfected at once. There has been hitherto, and probably will be for some years to come, frequent occasion for legislative modifica- tion of its details. Such changes as were introduced by our legislature at their session of this year have been fully noted. It will be noticed that some of the de- cisions are superseded by enactments. GENERAL AND SPECIAL TERMS. It may be well to add, that a decision described as the decision of the special term of any court, means the decision of a single judge holding that court. The general term is holden by several judges usually three and sits generally for the purpose of hearing appeals from decisions made at the special term. It is from the decision of the court at general term that appeal is taken to the Court of Appeals. The decisions at general term are of course entitled to the most weight. ABBOTT BROTHERS. 119 Nassau-street, New York. TABLE CASES REPORTED IN VOLUME I A. PAGE PAGE. Aldrich, Markoe a. - 55 Chemical Bank, The, a. The Mayor Allaire a. Lee, ... 125 of New York, - 19 Allen a. Smillie, - 354 Childs, Lowber a. 415 Anderson a. DePeyster, 234 Christophers a. Selden, 272 lVfm"in n 288 272 Appleby a. Strang, - 143 Clark, in the application of, 91 Arrangois, The Republic of Mexico a. 437 Cockle a. Underwood, 1 Cockroft, Drake a. - 203 Commissioners of Emigration, The, B Phoenix a. 466 Conkey, Slauson a. - 228 Babcock, The Union Rubber Co. a. 262 Coons a. Chambers, 165 Badcock, Vogel a. 176 Corlies. Fairbanks a. 150 Bard, Marks a. - 63 Cudlipp a. Whipple, 106 Barnum, Munn a. 281 Curtis a. Leavitt, - - 118, 274 Baxter, Voorhies a. - 43 Beam, Lane a. ... 65 Bennett, Fry a. - 289 D. Binney a. Le Gal, - 283 Bissell, Brady a. 76 Darrin, Jacks a. 149, 232 Blatchford, Leavitt a. 274 Davis a. Kinney, - 440 Board of Supervisors of the City of DeAgreda a. Mantel, 130 New York, The New York Life De Peyster. Anderson a. - 234 Insurance Company a. 250 \f ' iip _ 234 Boyle, Broderick a. - 319 Derby, Jones a. 458 Brady a. Bissell, - 76 Dobson a. Pearce, 97 Braisted, Tuffts a. - - - 83 Donnelly, The People a. - 459 Broderick a. Boyle, - 319 Drake a. Cockroft, - 203 Brown, in the matter of, - 108 Duel a. Spence, - 237 Duguid a. Ogilvie, - 145 Dwindle a. Howland, 87 C. Canal Bank, The a. Harris, 192 E. Carey, Gorum a. 285 Carnley, Hull a. - - - 158 Elmer, Seymour a. - 412 Chambers, Pringle a. 58 Ely a Miller. 241 , Coons a. 165 Everson a. Gehrman, 167 Till TABLE OF CASES. F. Fairbanks a. Corlies, Foster a. Poillon, Frost. Westervelt a. Fry a. Bennett, G. Gehrman, Everson a. Ginochio a. Orser, - Goedel a. Robinson, Gorum a. Carey, Greenwood, Jacques a. Gregory a. Trainer, Griffith, St. John a. Guynet, Mantel a. H. Harpell a. Irwin, Harris, The Canal Bank a. Heath, Slack a. Hilton a. Thurston, Rowland, Dwinelle a. Hudson River R. R. Company, The People a. - Hull a Carnley, Hyde a. Patterson, - Irwin, Harpell a. J. Jacks a. Darrin, Jacques a. Greenwood, James a. Oakley, Jones a. Derby, a. Palmer, Judd, Wesson a. K. Keteltas a. Myers, - Kiersted a. The People of the State of New York, - King, Thurston a. Kinney, Davis a. L. La Chaise a. Lord, - Landau a. Levy, Lane a. Beam, Leavitt a. Blatchford, - - The 149, State PAGE 150 321 74 289 167 433 116 285 230 209 39 130 144 192 321 318 87 33 158 248 144 232 230 324 458 442 254 403 385 126 440 213 376 65 274 PAGE Leavitt, Curtis a. - - 118.274 Lee, Allaire a. 125 Lefferts a. Snediker, 41 Le Gal, Binney a. - - - 283 Leroy a. Lowber, ... 67 Levy, Landau a. 376 Linn a. O'Hara, ... 360 Lord, LaChaise a. - - 213 Th*> M*trnrmlitaTi Rant n - Ift^ Lowber a. Childs, ... 415 Lowber, Leroy a. 67 M. Mahaney a Penman, - 34 Mantel, De Agreda a. - - 130 a( Iiiv net 1 QO Marks a. Bard, 63 Markoe a. Aldrich, - 55 Marryatt, Southwell a. 218 Mason, The Mayor &c. of the City of New York a. -' - 344 a Whitcly 85 Mayor &c. of the City of N.Y., The, a. Mason, - 344 nf Nrw Vnrlr Thr Thr Phf-m 01 L> ew i orK, i ne, i ne v^nem- ical Bank a. 79 n f TV rtT . ~\7~U T'U^ "\X7:i~ ~ it 01 iiew i orK, me, vv nson &. 4 McMasters a. Vernon, - - 179 McOliff, Quin a. 322 Mechanics' and Traders' Savings In- stitution a. Roberts, - - 381 Meeks a. Noxon, ... 280 Merritt a. Thompson, - - 223 Metropolitan Bank, The, a. Lord 185 Meyers a. Trimble, - - 220, 399 Meyer, Winthrop a. - - - 383 Miller, Ely a. - - - - 241 o>. Ue r eyster, 234 Monnot, Taylor a. 325 Morari a. Anderson, - 288 Munn a. Barnum, ... 281 Myers, Keteltas a. 403 N. New York Central Mills, The, Sher- man a. 187 New York Life Insurance Company a. The Board of Supervisors of the City of New York, - 250 New York and New Haven R. R. Co. a. Schuyler, - - 417 Ninety-nine plaintiffs, The, a. Van- derbilt, - - - 193 Noxon, Meeks a. - - - 280 O. Oakley. James a. ... 324 Ogilvie, Duguid a. - - - 145 TABLE OF CASES. IX O'Hara, Linn a. Orser, Ginochio a. P. Palmer, Jones a. Parker Vein Coal Co. The, The Peo- ple ex ret Jenkins a. - Patterson, Hyde a. - Partridge. Sherman a. Pearce, Dobson a. Pendleton. Weed a. Penman, Mahaney a. People, The, a. Donnelly, Kiersted a. - Restenblatt, a. ex rel. Jenkins a. The Parker Vein Coal Company, - Phoenix a. The Commissioners of Emigration, - Pinckney a. Wallace, Poillon, Foster a. Pringle a. Chambers, Purple a. The Hudson River Rail Road Company, Q. Quin a. McOliff, Quintard a. Secor, R. Republic of Mexico, The, a. Arran- gois, Restenblatt, The People a. Roberts, The Mechanics' and Traders Savings Institution a. Robinson, Goedel a. Sf Scherpf a. Szadeczky, Schuyler, The New York and New Haven R. R. Co. a. - Seaboard and Roanoake R. R. Co. a. Ward, .... Secor, Quintard a. Selden a. Christophers, , Christophers a. - Seymour a. Elmer, - Sherman a. The New York Central Mills, .... PAGE PAGE 360 'D4>J A . 256 433 Slack a. Heath. - 331 Slauson a. Conkey, - 228 Smillie, Allen a. - - 354 Smith a. Wright, ... 243 Snediker, Lefferts a. - - 41 442 Southwell a. Marryatt, 218 Spence, Duel a. 237 128 Stewart's case. ... 210 248 St. John a. Griffith, - 39 256 Strang, Appleby a. - 143 97 Szadeczky, Scherpf a. 366 51 34 459 T. 385 268 Talmadge, Tracy a. - - - 460 Taylor a. Monnot, - 325 128 Thompson, Merritt a. 223 Thurston a. King, ... 126 466 Hiltfm ft Q1Q 82 Tracy a. Talmadge, - O1O 460 321 Trainer, Gregory a. - 209 58 Trimble, Meyers a. - - 220, 399 Tuffts a. Braisted, - 83 33 U. Underwood, Cockle a. 1 322 Union Rubber Co., The, a. Babcock, 262 393 V. Vanderbilt, The ninety-nine plain- tiffs a. 193 437 Vernon, McMasters a. 179 268 Vogel a. Badcock, - 176 >' Voorhies a. Baxter, - - - 43 381 116 W. Wallace, Pinckney a. 82 Ward, Seaboard and Roanoake Rail 366 Road Company a. 46 Weed a. Pendleton, 51 417 Wesson a. Judd, - 254 Westervelt a. Frost, 74 46 Whipple, Cudlipp a. - - 106 393 Whitely. Mason a. - 85 272 Whitlock's case, - 320 272 Wilson a. The Mayor &c. of N. Y. 4 412 Winthrop a Meyer, - 383 Wright, Smith a. ... 243 187 . 8-.ll INDEX TO THE CASES KEPORTED IN VOLUME I, A. PAGE Accommodation Endorser ; what misapplication of note will discharge 237 Act of Agent ; How to be pleaded 39 Admission, distinguished from contract 58 Affirmance; Form of judgment of, on appeal from Special to General Term. 130 Affirmative Relief; cannot be granted to one defendant against co-defendant 381 Agreement ; cannot be explained by correspondence bearing prior date 165 Reformation of 67 Allowance ; may be granted in case of nonsuit 125 Alterations in Agreement ; Time of making, a question for the jury 58 Amendment ; allowed in attestation of foreign records after verdict 55 not allowable, to change action from contract to tort 65 of course. Addition of new cause of action allowed 85 Answer ; if verified, will not readily be stricken out as sham 281 which sets out no new matter cannot be stricken out as sham 116 putting in issue allegations of title to note sued on, not frivolous 185 if not palpably bad, not frivolous 187 which denies allegations of complaint conjunctively, is frivolous 187 merely denying defendant's indebtedness, will be stricken out 203 in justice's court, alleging set off admits the indebtedness alleged. . . . 209 Terms on which leave to, was granted, subsequently modified by ano- ther judge, and his order affirmed 272 How far corporation may deny knowledge of acts of agent 187 When denial of information, &c., will be stricken out as sham 251 Sham answers distinguished from frivolous 41 Appeal; from decision at general term affirming decision at special term. .. . 403 from report of referees, direct to general term 460 Discretion exercised at special term not reviewed at general term 223 Appearance ; waives irregularity in affidavits 248 Xll INDEX. PAGE Arrest ; Verified complaint may supply defect in affidavit 76 Assignee of Judgment ; may sue upon it without leave of court 83 Assignment ; Cause of action founded on injury to the person, not assignable 33 Surviving partner may assign chases in action belonging to the firm. 82 Attachment ; granted in the Common Pleas, to enforce an order that defendant satisfy a part of plaintiff's claim admitted to be just 220-399 denied in the Superior Court, except for trust moneys 443 Attorney; may be compelled to disclose names and residences of his clients. 193 When he may be compelled to exhibit authority 193437 B. Bill of Exchange ; recovered on, though lost after suit brought 148 Bills of Peace ; in what cases will lie 417 Burden of Proof ; in an action for penalty for selling liquor without license.. 344 C. Chattels; may be sold on execution against mortgagor, while i possession.. 158 Checks ; within statute authorizing recovery on lost bills of exchange 148 Complaint ; Form of, for money lent 106 on promissory note 185403 for recovery of specific personal property 176 on an undertaking given for the return of specific personal property. . 381 for breach of contract, must allege tender of performance 243 How drawn on several distinct causes of action 376 Old forms of declaring in indeb'tatus assumpsit, when sufficient 106 Multifariousness of complaint 417 One cause of action set up in two different counts, allowable 442 Statutory requirement a sufficient consideration 381 Contempt ; Of punishment as for contempt 399-443 Conviction of Vagrancy ; Record of, how filed to support commitment 210 Corporation; cannot deny knowledge sufficient, &c., as to acts of agent. . . . 187 Costs ; in suits, commenced before the Code, how taxed 118-179 in case of interpleader 234 of appeal to the Court of Appeals, how taxed, &c 262 Appellant from justice's judgment, entitled to costs of court below. . . 232 Taxation not. stayed by appeal 118 Counter-claim ; When it prevents a discontinuance 146 Court ; Powers of general term and special term compared 460 D. Damages ; Vindictive, may be given for malicious libel 289 Date ; of instrument undated, a question of fact 165 Decree ; of Court of Equity of another State, held conclusive here 97 Default ; When excusable 412 Manifest injustice shown by defendant's affidavit 412 Deposition on commission ; How returned 87 INDEX. Xlll PAGE Deposition de bene esse ; Evidence of witness' inability to attend 289 When admissible 4 55 Discontinuance; Pendency of suit in another State, no reason for ordering. . 437 E. Escape ; Defences in action against sheriff 433 Evidence ; A defendant in an indictment is not a witness for or against his co-defendant until discharged from the record 459 Assignor of chose in action not rendered incompetent by covenant that the amount claimed is really due 383 Defect of proof; objection when obviated 344 Guest competent against innkeeper to prove value of baggage 325 in an action for libel 289 Motion to supply defect in proof after new trial granted denied 289 Pnma facie proof of marriage when sufficient 366 Foreign records how proved 55 Examination of Parties ; Counter-claim proved by defendant on his own be- half, admits plaintiff. 144 Co-defendant cannot prove defence of usury 241 Execution; cannot issue after death of judgment creditor 126 Sale of chattels on, against mortgagor, passes only his interest 158 F. Factors; may bring action for conversion of goods consigned to them 285 Fee-bill ; not repealed by the Code 118 Foreign Records ; How proved f>5 Fraud ; Any number of parties combining in a fraud may be joined as defend- ants in an action relating to it 417 in entering judgment, good defence to action on it 97 H. Habeas Corpus ; Officer cannot go behind commitment for vagrancy 210 Habitual Drunkards; Judicial custody of their persons and property 108 I. Indemnity Bond ; given to sheriff, although after sale, valid 74 Indictment ; should be quashed if found without adequate evidence 268 Injunction and Receiver ; When granted against insolvent firm 213 Injunction; will not lie to restrain collection of taxes illegally imposed. ..4-79-250 What is sufficient ground for injunction against nuisance 460 lies to restrain suit upon judgment on ground of fraud 97 Innkeeper; The extent of his liability for the property of his guest 325 Interpleader ; In what cases allowable 417 costs in action of 234 When order of, under 122 of the Code, may be made 256 Irregularity ; in affidavits waived by general appearance 248 INDEX. PACK J. Joinder of Actions; Claims against defendant personally, and as trustee, can- not be joined 376 Joinder ; of representatives of deceased party to a suit 130 Joint liability on Contract; continues in joint liability on judgment 34 Joint Debtors : Judgments against, can only be entered after all defendants served have had full time to answer 230 Joint Stock Corporation; is not a trustee for individual corporators 417 Judgment ; of courts of one State, how far conclusive in others 97 on appeal from Special to General Term , 130 Test of the right to docket 130 against two partners on accepted offer by one, irregular 167-283 Form of, upon remittitur from the Court of Appeals 262 When vacated for non-service of summons 218-318 When presumed to be for $25 exclusive of costs 320 What is a judgment directing payment of money 274 Judgment upon Confession ; Form of entering 354 Judgment Record; will not be vacated for irregularity, inequitably 51 Jurisdiction ; in an action against the State 385 of District Court where neither party resides within district 150 of Superior Court; Personal objection waived by appearance 34 Jurors; in District Courts, how summoned, empanelled, and challenged. . . . 344 Justice; cannot entertain a motion to strike out a pleading 344 may proceed with cause at the hour mentioned in summons 143 cannot open his judgment regularly rendered 143 Suspension of trial by 150 His finding is conclusive where evidence is conflicting 150 L. Limitations, Statute of; as to joint debtors 440 Lunacy ; Commission of, will not be issued by the Superior Court 108 M. ^Mandamus ; will not be granted to compel transfers of stock 128 Marine Court ; may cause a necessary party to be brought in 415 'Mechanic's Lien ; Service on the owner alone gives jurisdiction 415 -Requisites of complaint 319-321-322 Rights of sub-contractors where contractor has thrown up work on discovery of fraud on the part of the owner 360 Misjoinder ; Proper form of judgment in case of misjoinder of defendants . . . 63 No cause of demurrer by defendant properly joined 82 Complaint joining guilty holders of over-issued stock with innocent holders without notice, in an action to have certificates delivered up to be cancelled, is bad 417 Motions ; must not be made in the First District in an action in which the venue is laid in another district. . 192 INDEX. XV PAGE N. Naturalization ; Powers and duties of State Courts 90 O. Offer to allow Judgment ; Section 385 of the Code limited 443 P. Parties; When representatives of deceased party to a suit, should be joined. 130 How far the executors of a deceased partner are liable with surviving partners 43 Partner ; not authorized to confess judgment against the firm 167-283 Partnership ; held to exist between two mercantile firms 243 Payment; of prior indebtedness presumed from making and paying note. . . 145 Payment of Money ; What is a judgment directing 274 Pleading; Objection to amount of claim must be by answer, not demurrer.. 288 Defendant cannot demur and answer to the same matter 281 Objection that complaint does not contain facts sufficient to constitute cause of action, should not be set up in answer 331 Remedy for indefinite and uncertain complaint in Justices' Court .... <544 A special plea still admits matters stated in declaration 209 Recitals in an instrument set out in a pleading, equivalent to averments . . 331 Variance between averment and proof of title 285 Variance between plea and proof of usury 237 Tenant cannot set up as counter-claim, trespass by the landlord on the demised premises, in an action for rent. 203 How to plead act of agent 39 Pleadings ; t be liberally construed 39 R. Receiver; Special receiver entitled to instructions from the Court 274 Duties and obligations of 460 Recoupment ; Query, whether the doctrine of, has been extended by the Code 203 Referee ; may open cause after submission 145 S. Satisfaction of part of plaintiff's claim ; When ordered. .220-223-228-393-399-443 Scire Facias ; abolished by the Code 126 Service of Summons ; on election day, void 280 When judgment will be set aside for want of 218 under the " Act to facilitate service of process in certain cases". ..... 458 Sheriff; not liable to mortgagee of chattels for having sold them absolutely on execution against mortgagor 158 of another State. His affidavit to service of process necessary 126 Specific personal property ; Right to immediate delivery may be waived 176 State ; Action against the, cannot be maintained in a State court except as authorized by statute 385 may be enjoined from the erection of a nuisance upon its lands 4!>5 INDEX. PAG* T. Taxation of costs : is not stayed by appeal 118 Taxes ; cannot be legally assessed on personal property of non-residents. ... 4 illegally imposed, what remedies for at law 4 Injunction to restrain collection of, will not lie 479 Testimony ; taken conditionally. When admissible 55 taken on commission. How to be returned 87 Torts ; Rule in respect to assignment of, not altered by the Code.. 33 Trial; has been had, where plaintiff submits to nonsuit after evidence heard on both sides 125 U. Undertaking; held good notwithstanding misrecital 248 for the return of specific personal property, not avoided by being given to plaintiff instead of sheriff. 331 Usury ; Right to set up usury in a mortgage of chattels, extinguished by sale of them subject to the mortgage 324 V. Verdict ; When, will not be set aside for excessive damages 866 ABBOTTS' PRACTICE REPORTS. NEW-YOKE. COCKLE a. UNDERWOOD. New York /Superior Court : Special Term, September, 1854. DISCONTINUANCE. COUNTEK-CLAIM. After a counter-claim has been set up, and is admitted of record, the plaintiff will not be allowed to discontinue as a matter of course.* Special grounds must be shown in such case, in favor of an application for leave to discontinue. Motion for leave to discontinue. The answer to the complaint in this action denied the in- debtedness alleged in the complaint, and also set up a counter- claim. It was served June 10, 1854. The plaintiff examined both of the defendants as witnesses, and then, on the 13th September following, no reply having been meanwhile put in, he served written notice of discontinuance of the action, ten- dering defendants' costs, which they refused to accept. He * Upon an appeal to the General Term, this decision was unanimously affirmed. See also on this subject, Seaboard and Roanoke R R. Co. a. Ward, post. 1 ABBOTTS' PRACTICE REPORTS. Cockle a. Underwood. forthwith served an order to show cause why the action should not be discontinued on payment of defendants' costs. 12. E. Jfount, for plaintiff. Wm. BlisSj for defendants. BOSWORTH, J. This motion is made on the theory, that the plaintiff is entitled, on paying defendants' costs of the action, to such an order as he moves for, as a matter of course. Under the old system, a plaintiff could enter a rule, in the hook of common rules, discontinuing the action on payment of costs. Such a rule, in an action at law, could be entered at any time before trial, without an application to the Court. Graham's Pr., 663-4. In the Court of Chancery, the complainant might move to dismiss his own bill, with costs, as a matter of course, at any time before the decree. This is stated in the books of practice to be the rule. 1 Barb. Ch. Pr., 228. The practice of the Courts, as it existed when the Code took effect, consistent with the Code itself, is continued, subject to the power of the Courts to relax, modify or alter the same. Code, 469. The plaintiff insists that the pre-existing practice, in relation to discontinuing actions, is consistent with the provisions of the Code, and that it has not been modified by any rule of the Su- preme Court, or of this Court. The defendants on the other hand contend, that the practice allowing a plaintiff to dismiss his action before trial, as a matter of course, on payment of costs, is inconsistent with certain provisions of the Code. Sections 149 and 150, allow a defendant to set up a counter- claim, and recover upon it ; if admitted by failing to reply to it, or on proof of it, if it is controverted. 168 and 274. If the action of the plaintiff arises on contract, the defendant may set up as a counter-claim, any cause of action arising on contract, whether the damages are liquidated or not. This could not have been done before the Code. The defendant may notice the action for trial, prove his claim when the cause is reached, or take judgment for it, if admitted by the plead- NEW-YORK Cockle a. Underwood. ings. 258. In this respect the practice, in suits at law, has been altered. The object of the Code seems to be, that a de- fendant sued on contract and having causes of action against the plaintiff, arising on contract, may litigate them in that action, and have a judgment, if entitled to it. The costs of an independent action are avoided ; one claim may be used to satisfy another, to the extent due upon it ; the one having the larger claim may have a judgment for the excess ; each party is made an actor and may bring the action to trial. There would seem to be no reason for permitting a plaintiff to discontinue on the mere ground of his disinclination to pro- ceed further in his action, especially when a counter-claim has been set up in the answer, and no reply has been made, and liberty to reply is not asked. Cases may occur which would justify a court in making such an order. But such cases must present some grounds to justify the inference that the plaintiff would suffer some sub- stantial prejudice if the order was not granted. On the other hand, it is obvious that the granting of such an order might deprive a defendant of a substantial right. If a counter-claim should be outlawed, at the date of such an order, it would be manifestly unjust to grant it. Other cases readily suggest themselves in which it would be improper to grant such an order as a matter of course. It is unnecessary to undertake to state any rule by which all applications may be determined. It is sufficient to say, that after a counter-claim has been set up, and admitted of record, the court will not allow the plain- tiff to discontinue his action, as a matter of course ; special grounds must be shown in favor of the application ; they must make a case, rendering such an inference proper, to prevent a plaintiff from being inequitably prejudiced in his rights or remedies, and which, at the same time, will not work any practical wrong to the defendant. The motion must be denied. ABBOTTS' PRACTICE REPORTS. Wilson a. The Mayor of New-York. WILSON a. THE MAYOR OF NEW-YORK. New- York Common Pleas ; Special Term, July, 1854. ILLEGAL TAXATION. REMEDIES AT LAW. DENIAL OF INJUNCTION. The power to determine what description of persons shall be taxed, is vested solely in the legislature. They might have imposed taxes on the personal property within the State, of non- residents. But they have not done so. A non-resident illegally assessed, has several remedies at law. 1. He may apply upon affidavit to the assessors to rectify their assessment. 2. There are some cases where a certiorari will lie. 3. So of a mandamus. 4. So also of a writ of prohibition. 5. There are other modes, depending upon the circumstances of each particular case, in which an illegal assessment may be redressed. 6. In some cases the assessors themselves, and the parties issuing the original warrant for collecting the tax, will be personally liable. 7. Illegal taxes paid under duress of goods, and with protest, may be recovered back at law. An injunction to restrain the collection of a tax illegally laid upon personal estate, will not be granted. This action was brought to restrain the collection of a tax imposed, illegally, as was contended, upon the plaintiff. The facts sufficiently appear in the opinion. A. F. Smith, for plaintiff. It. J. Dillon, for defendants. WOODRUFF, J. The complaint in this action is addressed to this court as a court of equity, and prays a perpetual injunc- tion to restrain the collection of a tax for the year 1850, imposed upon the defendant as the owner of personal property within the city and county of New- York, for the collection of which a warrant has been issued by the defendant, Hart, as Receiver of Taxes for the city and county of New- York, directed to the defendant, Jenkins, a constable ; in pursuance NEW-YORK. Wilson a. The Mayor of New- York. of which, the latter has distrained certain property of the defendant, and is proceeding to sell the same for the collection of such tax. The facts which the plaintiif avers entitle him to the relief sought, are, that he is' illegally assessed in the city and county ; that the plaintiff, during the whole of the year 1850, and for eight years last past, has resided in Norwalk, in the State of Connecticut, and has not resided within the State of New-York, and that as such resident of Connecticut, and a taxable inhabitant therein, he has been duly assessed upon his personal property, and has paid taxes thereon in that state ; that the assessors of the city and county of New- York made the assessment of the amount authorized by law to be raised by tax upon the real and personal property in the city, and under the pretence that the plaintiff was a taxable inhabitant in the said city, did, in 1850, assess him as the owner of per- sonal property in the third ward of the said city ; that the assessment roll containing such assessment, was afterwards delivered to the tax commissioners and to the board of super- visors, and submitted to their action, and afterwards the cor- rected assessment rolls of each ward were delivered to the receiver of taxes, with the usual warrant to collect the tax, and pay the same to the chamberlain of the city ; that the name of the plaintiff was inserted in such roll, and he was charged therein with $568^, as a tax upon personal prop- erty ; that the plaintiff received no notice, and did not know that he was to be assessed, nor that any tax had been imposed upon him or his property until long after such assessment roll had been delivered to the said receiver ; that soon after the plaintiff learned that such tax had been imposed, in May, 1851, he applied by petition, verified by his oath, to the com- mon council, stating the fact of his non-residence, and praying the remission of the said tax, which they refused ; that previ- ous to this petition, to wit, in January, 1851, the defendant, Hart, (receiver of taxes,) issued his warrant to the defendant, Jenkins, (a constable,) commanding him to levy the amount of the said tax, with interest and costs, by distress and sale of the goods and chattels of the plaintiff, and such distress has been made, and sale thereof will be made, unless restrained by order of the court. ABBOTTS' PKACTICE REPORTS. Wilson a. The Mavor of New-York. The complainant then avers, that it will be the duty of the defendants, Hart and Jenkins, to pay the money, if collected, to the city chamberlain ; that he has notified Jenkins of his non-residence ; that Jenkins persists in his levy ; that neither Hart nor Jenkins are of sufficient responsibility to answer for the damages he will sustain by a sale of his property under such warrant ; that the plaintiff cannot have adequate relief except in a court of equity ; that such tax, so attempted to be imposed, is illegal and void ; that such illegality does not appear on the face of the proceedings, but that the evidence of the want of jurisdiction in such assessors to impose the tax, and of the illegality of such imposition, must be given, out of the record of the proceedings, by proof of extrinsic facts, upon proving which, the plaintiff is entitled to have the assessment declared illegal as to him, and the collection of the tax re- strained, &c. The defendants have interposed separate demurrers to the complaint, " for that the said complaint does not state facts sufficient to constitute a cause of action." It was insisted by the counsel for the defendants, on the argument of the demurrers herein, that the plaintiff is liable to taxation in this state in respect of his personal property found here when the assessment was made ; and that inasmuch as the plaintiff does not aver that he had at that time no per- sonal property within the city and county of New York, he has not shown that the assessment was either illegal or erro- neous. I. The power of the State to tax all property within its lim- its, whether real or personal, cannot be denied. Taxation itself, for the purpose of maintaining and upholding the government, is essential to the idea of its existence, and the power to im- pose such taxation, is said to reside in the government, as a part of itself. In this State, while the constitution recognizes the existence of the power to impose taxes, it leaves its exercise- to the legislature, and, save only by prescribing certain rules regarding the mode of enacting laws imposing taxes, it has left the extent of taxation and the manner of its apportion- ment, solely and exclusively to the wisdom and justice of the legislature. In one section of the constitution, ( 5, art. 7,) NEW-YORK. Wilson a. The Mayor of New-York. the particular taxes mentioned, (for the increase of the sinking fund of the State,) are authorized in these terms, viz : " The legislature shall, by equitable taxes, so increase the revenues," &c. And it may be assumed as within the spirit and meaning of the constitution, that all taxes should be equitable. But I apprehend, that in the apportionment of taxes, and the assign- ing to persons or to property the portion which each shall con- tribute to the public burthens, the legislature have the sole and exclusive power of determining what is just and equitable, and upon what description of persons, and upon what property within the State, and in what ratio, the imposition shall be made. (See Providence Bank v. Billings, 4 Peters, 514 ; McCul- lough v. Maryland, 4 Wheat. 428 ; cited in The People v. The Mayor, &c., 4 Comstock, 427".) II. And there is nothing inequitable in requiring of the owners of personal property found in this State, and kept here protected by our laws it may be, acquiring enhanced value from our institutions and government, our public works, the large development of public and private enterprise within our limits, and various other circumstances, which give value and usefulness to property, and hold out to non-residents an induce- ment to bring or send their property or funds to be used or sold here, that they may derive enhanced prices or larger income therefrom, to render to our government a just equiva- lent to bear the same burthen, in respect of such property, as the citizen himself bears, in respect of his own estate, in the like condition. On the contrary, if the question be judged of upon the sim- ple inquiry, what is equitable, as between those who bring their wealth to our State and city, and here avail themselves of our facilities for trade, commerce and enterprise of every kind, seek and obtain our protection, become competitors for the gains and profits of that business which we have done so much to facilitate and promote, and bear away the enhanced income, which (by reason of the advantages of our location, the character of our institutions, the encouragement we give to private enterprise, and the facilities which our public works aiford) they have been able to acquire ; if what is equitable between them, be the sole guide in the apportionment of taxa- ABBOTTS' PEACTICE REPORTS. Wilson a. The Mayor of New-York. tion, it may be said with great truth, that they should share in proportion to the benefits enjoyed, and no fairer criterion could be devised, than the amount of property so employed and so protected. To say that, because one of them, after the heat and labor of the day after the accomplishment of the purpose for which he is employing his property here, crosses the river, or the Connecticut line, to seek the sleep necessary to restore his vigor for the next day's contest with his citizen rival, though he leaves his property secure and protected tinder the efficient guardianship we provide, he, nevertheless, ought to pay nothing, and his resident competitor in the strife for wealth, should pay all ; or, to say that his contribution shall only be given to the sovereignty that protects him in his sleeping hours, is plainly inequitable, and if no other consid- erations but such as respect those individuals be taken into view, is unjust. And the present plaintiff, in this aspect of the case, would have no just ground of complaint, if engaged in business in this city, and employing his capital, and enjoying the advan- tages above suggested, our government should require from him an equivalent therefor, by levying upon his capital the same contributions which our own citizens are required to pay for the common benefit, notwithstanding it suits his conve- nience or pleasure to fix his domicil just without our borders. But in the exercise of the power of taxation, and in its apportionment, considerations of expediency do and may prop- erly influence the legislature in their enactments ; and it is eminently desirable that while equality is to a certain degree sought, uniformity in the rule of taxation should obtain ; and it may often be enio, 119,) and Sheldon v. Van Buskirk, (2 Comst. 473,) the making of the assessment is declared to be a judicial act; and although it is within the power of k the court, and the province of the writ of certiorari, to bring such proceedings under review, it is manifestly ac- cording to the course of the decisions referred to, to confine the exercise of the power of the court, in such cases, within very narrow limits, and in general to withhold it. So far as this branch of the discussion bears upon the case before me, it is manifest that a certiorari could be of no avail to the present plaintiff. His complaint avers, that he had no notice of the assessment before a warrant to the receiver of taxes to collect the tax was issued- and not being a resident of the State, he was not chargeable with any notice by reason of any posting of notices by the assessors,- in the ward in which he was taxed. If the proceedings were removed by certiorari, no want of jurisdiction would appear "on their face, and the cases above referred to, seem to show that no proof of extrin- sic facts could be taken in the court of review, for the purpose of showing the want of jurisdiction of other illegality.* And * NOTE. See an elaborate opinion on the office of a common law certiorari, by Ch. J. Kinsey, in The State v. Middlesex, Coxe Rep. 244, in which the Supreme Court of New Jersey received evidence of facts not appearing on the record. And in the case of the New Jersey Railroad Co. v. Suydam, 2 Harr. 25, and cases therein cited, it is held that where a certiorari issues to Commissioners, or other quasi judicial officers, the court may order or permit proofs to be taken of extrinsic facts, showing the proceedings to be illegal, though they will not inquire info the merits of any matter within the jurisdiction of the subordinate tribunal. I did not, however, think it necessary to pursue that inquiry further than to report what is said in the cases in our own State, and yet the practice in New Jersey seems to me calculated to secure the ends of justice, and to be quite consistent with the proper office of this writ. W. 2 ABBOTTS' PRACTICE REPORTS. Wilson a. The Mayor of New- York. besides, according to the opinions in the above two cases cited from 15 Wend. 198, and 1 Hill, 196, such certiorari would not operate to prevent the execution of the warrant which issued before the plaintiff had notice, and therefore, before the certi- orari could have been obtained. 3. However imperfect or inadequate the remedy by certio- rari may be, it is said that a mandamus is proper where a party has a legal right, and there is no other appropriate legal rem- edy, and where, in justice, there ought to be one ; (See 12 Johns. 12. 414, The People v. The Supervisors of Albany ; ex parte Nelson, 1 Cow. 417; Hull v. Supervisors of Oneida, 19 Johns. It. 260 ; Bright v. Supervisors of Chenango, 18 Johns. H. 242.) In these cases, jurisdiction by mandamus was enter- tained, to compel the supervisors to allow county charges ; in one of them made peremptory, and in two denied on the merits showing that those bodies who control the subject to which this suit relates, may properly be reached by manda- mus, and in a matter of strict right, not resting in their dis- cretion, may be compelled to conform their proceedings to such strict legal right of the party applying, to prevent injus- tice. In the People v. The Mayor, &c. of New- York, 10 Wend. 393, a mandamus was applied for to compel the defendants to execute and deliver a lease on a sale of land for assessments, and the court held the remedy appropriate, although upon the merits of that case they refused it. In the Bank of Utica v. City of Utica, in which the legality of an assessment for taxes on personal property of the defen- dants, which they claimed was not liable to taxation, was the distinct matter in controversy. The Chancellor says, (4 Paige, 400,) " I think the complainants had a perfect remedy at law, by an application to the Supreme Court for a mandamus to compel the common council," (who, by their charter, have exclusive control of the assessment and collection of the city taxes,) "to correct their assessments and taxation if it was illegal." In The People i>. The Supervisors of New- York, 18 Wend. 605, a mandamus was applied for to compel the defendants to strike from the tax list and from the warrant to the collector, NEW-YOKE. 19 Wilson a. The Mayor of New- York. the names of the relators. The power of the court to order such correction of the tax list, while such list remained within the control of the defendants, seems not to have been doubted, though the application was denied on the merits, and the court intimate that under the particular statute relied upon by the plaintiffs, there was a discretion given to the defendants, or a finding, upon the sufficiency of proof to their satisfaction, to be had, in relation to which the court could not interfere. In The People v. The Assessors of Watertown, 1 Hill, 616, a mandamus to compel the assessors to strike out of the assess- ment roll for taxes, an assessment upon the personal property of the relators, no doubt of the power of the court to make the order, or of the appropriateness of the remedy was suggested, but the court denied the motion on the merits. In The People v. The Supervisors of Niagara, 4 Hill, 20, the defendants h^d struck from the roll of assessments for taxes, certain three corporations, and the relators (being tax-payers) moved for a mandamus to compel the defendants to restore those names to the assessment rolls ; the motion was heard on the merits. No objection was made to the form of the remedy, (all formal objections being waived,) and a peremptory manda- mus was ordered by the court. It appears by the report of Mooers v. Smedley, 6 Johns. Ch. JR. 27, that where the error complained of was the allow- ance, by the supervisors, of alleged improper county charges, the Supreme Court refused a mandamus, but on what ground, is not stated. It may have been upon the merits, or possibly because, the warrant having already issued, the collector, as a merely ministerial officer, could not be reached thereby. But the learned Chancellor Kent, in that case, says, " the superin- tending control in these cases has always been exercised by the Court of Kings Bench, and no where else, and that court has proceeded by certiorari, mandamus, prohibition, informa- tion," &c. In The People v. Supervisors of Queens, 1 Hill, 196, above referred to, (in which the error complained of was also the allowance of alleged improper county charges,) the motion was in the alternative for " a certiorari, prohibition, mandamus, or some other writ, process, order," &c. " for the relief of the 20 ABBOTTS' PEACTICE EEPOETS. Wilson a. The Mayor of New- York. relator and other tax-payers," &c. ; but it appearing that the warrant had issued, and was in the hands of the collector ; the subject of issuing a mandamus for the correction of the errors, was disposed of by Justice Bronson, by the remark, " I do not see what use can be made of the writ of mandamus in a case like this." And the judge, after stating that motions of this kind are addressed to the discretion of the court, proceeds to consider the propriety of allowing a certiorari, (as above stated,) and having first come to the conclusion that some of the objections to the proceedings have no foundation, and that as to the propriety of the charges objected to, the certiorari would be of no avail, because the supervisors would return, by their finding, that they are proper charges, re-affirms the deci- sion in the People v. Supervisors of Allegheny, 15 Wend. 198, " that the errors of the Supervisors, in these particulars, cannot be corrected without great public inconvenience, and denied the writ." The particular circumstances in Mooers v. Smedley and the People v. Queens, doubtless warranted the denial of the writ. But they are not inconsistent with the opinion that this writ may often be appropriately used when the assessment rolls are still within the control of the proper body, and they are exceed- ing their jurisdiction or violating the clear legal right of an individual, by imposing upon him an illegal tax, where they have no discretion to exercise. The other cases above referred to, appear to me to warrant this opinion, and where the party has no other legal remedy, his right to have such writ allowed is, I think, undeniable. See 1 Jfill, 362, Coxe R.- 250, 252. It is, however, apparent from what has been said, that the present defendant, having no notice of the assessment in this case until after the warrant issued for the collection of tax issued, could not, according to the views of Judge Bronson, have made a mandamus available to prevent the levying of the tax by the collector. The supervisors had terminated their action on the subject, and transmitted the rolls to the collecting officers ; and though they may have had a discre- tionary power to remit a tax, I apprehend that in doing so, they would have acted in no judicial character, but in the exer- NEW-YORK. 21 Wilson a. The Mayor of New- York. cise of a discretion, governed by their sense of justice, in which they could not be controlled. 4. The relator, in the case last above referred to, also asked for a writ of prohibition to the town collector to stay the levy- ing of the tax. This was denied on the ground that such writ does not lie to a ministerial 9fficer to stay the execution of process in his hands that it is directed to a court and to the jparty prosecuting an action or legal proceeding therein. (1 Hill, 205.} See the cases cited. , And yet in The People v. Works there referred to, (7 Wend. 486,) the writ of prohibition was granted commanding the collector of taxes to desist and refrain from collecting a town tax, and directing the supervisor of the town not to receive the sum assessed, and not to pay it over if received. The ground of the decision on the merits was, that the tax was ille- gally voted at a special town meeting, at which they had no power to act on the subject, and also that it was raised for an illegal purpose, and the court deemed this an appropriate remedy, and one provided by the common law against the en- croachment of jurisdiction, to keep inferior courts and tribu- nals within the limits and bounds prescribed to them. This decision, however, is regarded by Judge Bronson as no au- thority for the allowance of the writ, though the point was distinctly decided. In the cases mentioned above, as already suggested, the acts of the assessors are said to be judicial, and there would seem no reason in the nature of the proceedings for not addressing this writ to them, and in regarding them, though not a court, in name, as liable to be restrained in an excess of jurisdiction when they exceed its limits. In Breedon v. Gill, 5 Mod. 272, the Commissioners of Appeal, on the im- position of an excise, were deemed a tribunal to be restrained by such a writ, and were restrained by the Court of King's Bench. And it would seem that in South Carolina the collec- tion of a tax has been restrained in the same manner, Buyn v. Carter, 1 McMillan, 410 under what precise circumstances, I have not been able to learn. In view, however, of the decision in the Supreme Court in 1 Hill) 196, which is certainly in ac- cordance with the proper office of this writ, so far as it was then sought to address it to a ministerial officer, it is apparent 22 ABBOTTS' PRACTICE REPORTS. Wilson a. The Mayor of New-York. that the writ, if it be allowable at all, must be obtained while- there is some act to be done or omitted by the assessors them- selves or the supervisors. And in the present case, the want of notice and the fact of non-residence renders such a resort of no avail to this defendant, unless the prohibition can be made to restrain the execution of the warrant, which, accord- ing to the case last mentioned, it cannot. 5. There are other modes in which, if the injury caused by an illegal assessment cannot, in a particular case, be prevented by either of the proceedings above adverted, it may neverthe- less be fully redressed, and by action at law. Each case in- this respect, however, depending upon its own circumstances- It was argued by the defendants' counsel, that if the assess- ments be illegal, all parties attempting to enforce its collection are trespassers, and besides, that the purchaser at a sale under the warrant of distress would take no title. This proposition is wholly unwarranted, and is opposed to the best settled rules of law on this subject. When the warrant is regular, and no illegality and no want of jurisdiction in the authority by whom it was issued appears on its face, the officer is fully protected, and this is true of the warrant complained of in this action. It is only where the illegality or want of authority, appears on the face of the warrant itself, that it fails to protect the officer to whom it is directed for execution. In The People v. Albany C. P. 7 Wend. 485, the warrant is declared to authorize the taking of goods by the officer. In The Columbian Manufacturing Co. v. Vanderpool, 4 Cow. 556, trespass was brought against the collector, upon the ground that by law, the property of a manufacturer of cotton,. &c. was exempt from taxation ; no question of the liability of the collector appears to have been raised, and the action was decided upon the ground that the plaintiffs were properly taxed, which question was alone discussed. In Wheeler v. Anthony, 10 Wend. 346, which was also tres- pass against the collector, the imperfection in the tax list and warrant referring thereto, were not such as to deprive the de- fendant of his justification of the taking. In The Bank of Utica v. City of Utica, 4 Paige, 400, ther NEW-YORK. 23 Wilson a. The Mayor of New- York. the chancellor says, that where, as in that case, the illegality appears on the face of the warrant, the complainants have an adequate and certain remedy at law by an action of trespass if the warrant be enforced by a sale, &c. And in Sheldon v. Yan Buskirk, 2 Comst. 475, which was also trespass against a collector of taxes, it was held by the Court of Appeals, that the warrant being on its face in proper legal form, and issued by persons having lawful authority to make and issue a warrant for such a purpose, the officer was protected thereby. See to the like effect, Yan Rensselaer v. Cottrell, 7 Barb. 132, and same v. Whitbeck, i~b. 143. And still more recently in the same court, in Chegaray v. Jenkins, 1 Seld. 382, on appeal from the judgment of the Superior Court of this city, (3 Sand. 409,) it is held, that the warrant having been issued by the proper officers, and there being nothing on its face showing a want of authority in the assessors to make the assessment complained of, or in the supervisors in confirming it, or the receiver of taxes in issuing the warrant, and being in due form of law, it was a perfect justification to the officer, even although the tax was illegally imposed upon the plaintiffs property. 6. The assessors themselves, however, and in some cases, the parties by whom the original warrant for the collection of the tax is issued, may be liable. Their acts, so far as they exceed their jurisdiction, do not protect them from liability to make full reparation for any injury which results therefrom. It was indeed argued on the hearing, that they have exclu sive jurisdiction to determine who are taxable inhabitants, and what is taxable property, and if so, their acts are conclusive and final. Such a rule could not be tolerated, and is not at all sustained by the cases cited to support the proposition, and this sufficiently appears by a series of decisions in this State. In Saunders v. Springsteen, 4 Wend. 429, the defendants, as assessors of the town of Lewiston, assessed the plaintiff's land, which, by law, was not taxable in that town, and the tax was collected. In an action on the case against them, they were held liable, and the judgment was affirmed in the Supreme Court. In The Ontario Bank v. Bunnell, 10 Wend. 186, trespass 24 ABBOTTS' PRACTICE REPORTS. Wilson a. The Mayor of New-York. was brought against the trustees of a village. The court held, that the plaintiffs were liable to be taxed in the village, and the plaintiffs therefore failed ; but no doubt was suggested that if the plaintiffs had not been taxable, a recovery might have been had. And in this case, the true distinction between cases in which a liability does and does not exist, is alluded to, viz : that in so far as the error consisted in an over estimate of the amount, where the party is, in fact, a taxable inhabitant, such error could not avail in such an action. That matter was within the jurisdiction of the assessors, and to be otherwise corrected, if they erred. (See also 4 Wend. 223, and 18 Wend. 608.) In the matter of Mount Morris Square above referred to, (2 Hill, 29,) the court says, if there be a want of jurisdic- tion, or an excess of legal power, even though the act be ju- dicial in its nature, an action lies. In Smith v. Randall, 3 Hill, 497, the trustees of a school district were sued in trespass ; but the alleged error was in the warrant itself, under which the property was taken. In Gale v. Mead, 4 Hill, 109, 238, the defendants were sued in trover for a horse, taken by a tax collector, under a war- rant issued by them as trustees, for a school tax, and the court being of opinion that the assessment and tax list made by them was illegal, they were held liable. In Weaver v. Devendorf, 3 Den. 120, also an action against trustees, taken by a tax collector, under a warrant issued by the defendants, to collect an assessment made by them, upon the plaintiff's property ; the distinction above alluded to is maintained ; that the defendants as assessors, had jurisdiction of all the taxable inhabitants in the town, and therefore of the plaintiff and his property, and for an error in judgment in fixing its value are not responsible ; but that this exemption from liability only exists where there is jurisdiction of the par- ticular case, and if the limits of their authority be transcended, they are responsible for all the consequences. In Prosser v. Secor, 5 Barb. 607, the application of this rule, made in the last case, is questioned and condemned ; but the rule itself is even more strenuously insisted upon. And it is held that assessors have no authority to enter any person's name on the assessment roll, whose property is by law exempt NEW-YOKE. 25 Wilson a. The Mayor of New- York. from taxation, or to impose any assessment thereon ; that they have no jurisdiction whatever over such persons or their prop- erty. The court add that the assessment of the value is a judicial act, upon which a common law certiorari will lie ; and that inferior tribunals are bound to see that their acts are within the scope of their authority. They could not, by de- ciding, themselves, that the plaintiff was a taxable inhabitant, bring him within their jurisdiction. No officer can acquire jurisdiction by deciding that he has it. This was an action on the case, against the assessors of a town, and they were held responsible for the taxes illegally assessed and levied, and collected from the plaintiff. In Van Eensselaer v. Cottrell, 7 Bar!). 127, Justice Harris says the only fact necessary to the jurisdiction of the assessors, is in reference to personal property, that the owner be an inhabitant of the town or ward, and if they should assume to assess lands lying in another town, or to assess an inhabitant of another town for personal property, though it might be situated in their town, the act of the assessors would unques- tionably be void for want of jurisdiction. The case of Yan Kensselaer v. Whitbeck, ib. 133, decided by the same judge, at first perusal, seemed to conflict with the one last cited, since there, the plaintiff objected that he was assessed for rents in Greenbush as personal estate, when, in fact, he resided else- where ; and yet the assessment was sustained. But on exam- ining the statute (Laws of 1846, ch. 327) under which rents are taxed, it will be seen that though taxed as personal estate, they are directed to be taxed in the town within which the lands demised may lie, and in the same manner and to the same extent as any personal estate of the inhabitants of the town. No respect (in reference to this species of property,) is had to the residence of the owner, and so far as relates to the juris- diction of the assessors to include it in the assessment, it is treated as if it were a part of the land out of which it issues. I understand the same view of the effect of the decision of the assessors, upon the question of their own jurisdiction, to be stated by Kuggles, Chief Justice, in his opinion in the Court of Appeals, in Chegaray v. Jenkins, (1 Seld. 381.) Though he held the collector protected by the warrant, he says, "the ABBOTTS' PEACTICE EEPOKTS. Wilson a. The Mayor of New-York. decision of the assessors on a question in which their own au- thority to act was involved," (i. e. upon the question whether the property in question could by law be assessed,) " was not for all purposes conclusive;" and even "in collateral actions their judgments may be questioned and disregarded, if it ap- pear that in fact they had no authority to act in the given case." Upon this reference to the cases in this State, and in view of what I conceive to be just, as well as in conformity with sound principle, I can not doubt that assessors are liable for inserting in the assessment roll the name of a person who is not an inhabitant of the town or ward. It is their duty to ascertain who are inhabitants of the town or ward, and it is only as to such that they have any authority whatever as as- sessors of personal property. This may sometimes be difficult, but every office brings with it duties and responsibilities, and it is not just to those who may be prejudiced, nor wise as it respects the public, that an officer who exceeds his authority, should not be liable for the consequences. The insertion of the name of an individual in the assessment roll, is an affirm- ative act, and the assessor is not under any duty to make such insertion, till he knows the facts upon which the liability of such person depends ; and to hold assessors irresponsible, when, through want of proper information, they assess non- residents for personal property, might lead to great abuse. And to say, further, that the decision of the assessor himself, is conclusive, would enable a town or county to tax half the inhabitants of the United States, and so far as property of the latter could be found in the county, collect the tax by distress and sale. If assessors attempt this, I think them lia- ble for all the damages resulting from their unauthorized act. How far the supervisors are also liable for lending to such illegal act their authority, may, perhaps, depend upon the question whether they have actual notice of the illegality. Y. I apprehend that the remedy of a party illegally assessed that is, assessed when there is no legal right to impose any tax upon him does not cease here. If such tax be collected by distress and sale of his goods, or if upon the levying of- a warrant, he pays the tax to save his property, he may, I think, sue for and recover back the money so paid; and that in NEW-YOKE. 27 Wilson a. The Mayor of New- York. such case, the body to whom the tax is paid by the collector, are responsible. If this be so, the allegation in the complaint herein, that the defendants, Jenkins, the constable, and Hart, receiver of taxes, are not of sufficient responsibility, &c. does not add any material fact to the plaintiffs case. The money is obtained in such case by duress of the plain- tiff's property, which may, when paid, be recovered back. It is an illegal exaction without right, and gives the party, for whose benefit, or by whose authority it is obtained, no title. In other States, the precise proposition, that if one pays taxes that are illegally assessed upon him, he may recover back the money is adjudged. A. & 0. Manufacturing Com- pany v. Inhabitants of Amesbury, 17 Mass. 461 ; Perry v. Dover, 12 Pick. 206 ; Sumner v. Parish in Dorchester, 4= ib. 341 ; Atwater v. Woodbridge, 6 Conn. 223 ; Preston v. Bos- ton, 12 Pick. 7 ; Adams v. Litchfield, 10 Conn. 127 ; Boston and S. Glass Company v. Boston, 4 Met. 181 ; Dow v. Sud- bury, 5 Met. 73 ; Torrey v. Milbury, 21 Pick. 64 ; Joyner v. Third School District in Egremont, 3 Gush. 567. Decisions in somewhat analagous cases of payment by duress of property, may be found in Ripley v. Grilston, 9 Johns. S. 201 ; Clinton v. Strong, ib. 370 ; Elliott v. Swartwout, 10 Pet. 137 ; Bates v. New York Insurance Company, 3 Johns. C. 238 ; and see Harmony v. Bingham, 1 Duer, 209. Actions to recover back money paid for taxes alleged to be illegal, have frequently been brought in this State, and in actions brought in other forms, the right to maintain assump- sit is adverted to. Thus in Seaman v. Benson, 4 Barb. 448, where the plaintiff failed in the action of trover, the court says : " If the plaintiff's property was taken and sold for too much, his remedy was not in trespass or trover, but in case for the injury sustained, or in assumpsit against the trustees of the school district, for the excess of the moneys, &c." In Fleet- wood v. The City of New York, 2 Scmd. 481, which was brought to recover back money paid to redeem land sold for assessments, the court held the plaintiff not entitled to recover, because if the assessment was illegal, there was no lien, and therefore no duress nor compulsion ; and the court adverts to the distinction, and to the cases in which duress of personal 28 ABBOTTS' PEACTICE REPORTS. _ _ ... _. _ __ ______ _ _ _ ___ _ _ .--...,_-. _ \ Wilson a. The Mayor of New-York. property, upon seizure thereof by public, officers, .under process or warrant of law, constitutes such compulsion, that the money paid for its relief, may be recovered back. In Re Coutenix v. Supervisors of Erie, 7 Sari. 249, action was brought to recover back money paid upon an alleged illegal assessment for personal estate, and no question was made of the liability of the defendants if the tax was illegal, though the case was decided in their favor by sustaining the legality of the tax. And in the Mutual Insurance Company of Buffalo v. the Supervisors of Erie, 4 Comst. 442, the action was the same, and was decided upon the same ground. No doubt was sug- gested but that the action would lie ; and Gardiner, J. says : < " The only question in this cause is whether the appellant, as a corporation, is subject to taxation according to the laws of this State." V. This protracted review of the subject, I think, sufficiently shows that the plaintiff in this case is not without remedy at law, and that in some or one of the modes indicated he can obtain redress, or could have had a remedy adequate to his protection. There can be no pretence of irreparable mischief the pro- ceeding can only take a certain number of dollars from his pocket, or, at the worst, personal property of a definite ascer- tainable value, and in presumption of law and of equity also, a like sum will be a full compensation to him. The apprehended insolvency of Jenkins and Hart above alluded to, furnishes no ground for equitable interference, for the reason above suggested. And it is not claimed that any real estate is affected by the acts of the defendant, the title to which is affected or obscured. I cannot, therefore, perceive any ground for the interference of a court of equity as such. Nor that there is a case here which can be classed under any head of equity jurisdiction. And although there are cases in which jurisdiction in equity has in this State been entertained, so that there is not here per- fect consistency in this respect, yet the current of the decisions is, I think clearly against the relief which the plaintiff here seeks. NEW-YORK. 29 Wilson a. The Mayor of New-York. In Mooers v. Smedley, 6 John. Ch. R. p. 28, Chancellor Kent refused to enjoin the collection of an alleged illegal assessment. Whether the illegality appeared upon the face of the pro- ceedings or not, does not distinctly appear; but the alleged error consisting in the allowance of improper town charges, he wholly disclaimed any jurisdiction over the supervisors to review their determination, whether legal or not, and declares the superintending control to be in a court of law, as herein above cited. * ; lh'- J Thompson v. Ebbets, 1 Hop. It. 272, where the com- 'pl'ainant was assessed in two places ; he was permitted to inter- plead the two collectors of the taxes, and leave them to con- test the legality of their respective claims to the t;ax on his personal estate, upon the question of residence. But no objec- tion was raised to the jurisdiction, and the action was enter- tained simply as an interpleading suit. In the Mohawk & Hudson River Railroad Company v. Clute, 4 Paige, 384, where also the complainant had been taxed in two places ; the bill as a simple bill of interpleader, wae regarded as defective in form and insufficient on the merits. The chancellor, however, entertained it for the pur- pose of an injunction as to one of the defendants whose assess- ment was illegal. But no objection to his jurisdiction was made, and the subsequent decisions of the chancellor show that if he considered the question of jurisdiction at all, he must have retained the cause, upon some ground peculiar to the case of a complainant taxed in two towns on the same pro- perty. For in The Bank of Utica v. City of Utica, 4 Paige, 399, the chancellor distinctly stating that the complainants have a perfect remedy at law, finds himself bound to take jurisdic- tion, because the parties had stipulated to waive the objection, and thereupon he enjoined the defendants to prevent the col- lection of an illegal tax. In Wiggin v. the Mayor, &c. of New- York, 9 Paige, 16, the chancellor held that he would not restrain the collection of an assessment for opening a street, to correct an error in the estimate of damages. Nor if the proceedings were void on 80 ABBOTTS' PKACTICE KEPOETS. Wilson a. The Mayor of New- York. their face, would he interfere, on the claim that the proceed- ings created an apparent lien on the real estate assessed there- for, and a cloud on the title. And having, in 1840, in Meserole v. Mayor, &c. of Brook- lyn, 8 Paige, R. 198, enjoined the defendants against the col- lection of an assessment for a street, on the ground that the opening was without authority, placing his interference, how- ever, under an admitted head of equity jurisdiction, the removal of a cloud upon the defendant's title to real estate, the Court of Errors reversed his decision, (26 Wend. 132,) denying to the Court of Chancery jurisdiction over the proceedings for lay- ing out of streets, for the purpose of reviewing them or setting them aside, and declaring that such jurisdiction appertains exclusively to the Supreme Court, (then a court of law only,) admitting, however, of two exceptions, i. e. where irreparable injury or multiplicity of suits will follow, beyond the power of courts of law to redress. In The Farmers' Loan and Trust Company v. The Mayor, &c. 7 Sill, 261, on appeal from the chancellor, a bill to restrain the collection of a tax on personal property, alleged to be illegal, was entertained, on the distinct ground that the parties having stipulated to waive all objections to the jurisdiction, the Court of Chancery was "not at liberty to decline the con- sideration of a question which appropriately belongs to courts of law." In Yan Doren v. The Mayor, &c. 9 Paige, 388, the chan- cellor expresses his concurrence in the reversal of Meserole v. Brooklyn, 24 Wend, swpra, but asserts jurisdiction, where, by reason of matters not appearing upon the face of the proceed- ings, an assessment for a street was illegal ; but in such case only when a cloud upon the title to real estate was created by the assessment, citing Simpson v. Lord Howden, 3 Mylne & (7.97. In The Utica Manufacturing Company, v. The Supervisors of Oneida County, 1 Bcvrb. Ch. It. 432, on appeal from a decretal order overruling a demurrer to the bill, filed to restrain the collection of an illegal tax, the chancellor affirmed the order ; but he says expressly, that no such question being raised by defendant's counsel, he has not considered whether NEW-YOKK. 31 Wilson a. The Mayor of New- York. it is a proper case of equity cognizance, or whether the com- plainant had a perfect remedy at law, by mandamus, to com- pel the defendants to strike the name of the complainant from the assessment roll. In Livingston v. Hollenbeck, 4: Barb. R. 10, the Superior Court in Equity hold distinctly on a bill filed to restrain the collection of a tax, that they have no power to interfere, and that the plaintiff has his remedy at law ; and in Van Rensselaer v. Kidd, ib. 17", the same doctrine is repeated. In Boreel v. The Mayor, &c. 2 Sand. 552, the Superior Court of the city of New- York entertained a bill to restrain the defendants from giving a lease on a sale for taxes, and from selling for other taxes and assessing taxes in future, where the property taxed was adjudged not liable to taxation, though the bill was demurred to for want of equity. The question of jurisdiction was not discussed, but the question of exemption from taxation only. The decision is hardly consistent with that of the Court of Errors, above referred to. In The Sun Mutual Insurance Company v. The Mayor, &c. 8 Bar~b. 450, the bill was filed to restrain the collection of a tax on personal property, for which a warrant had been issued, and a levy made, an injunction was granted at special term, but dissolved, on appeal upon the merits ; but it would seem that no question of jurisdiction was intended to be raised at all events, the court do not pass upon that question. Whether it was conceded, or taken for granted by the court, does not appear. And in The Albany and Schenectady Kailroad Company v. Osborn, 12 Barb. 223, though the court entertained the ques- tion of the legality of the tax, it appears to have been con- sidered and decided, because that was agreed upon as the sole question in the case objection to the jurisdiction being thus waived. So in The Sun Mutual Insurance Company v. The Mayor, 5 Sand. 10, the question of the legality of a tax on personal estate, was considered in equity, after the warrant was issued to the collector, and decided on the merits ; but it does not appear that the question of jurisdiction was argued or consid- ered by the court. 32 ABBOTTS' PRACTICE REPORTS. Wilson a. The Mayor of New-York. And in Bartlett v. The Mayor, &c. 2 Sand. 44, where an injunction was applied for, on the distinct ground that the plaintiff was not a resident of this city, and was illegally taxed here, the case was considered upon the merits, and the plain- tiff was deemed a resident, within the meaning of the act of 1850. (Laws of 1850, ch. 92.) The jurisdiction of the court would seem to have been taken for granted. But as the question does not appear to have been raised, the case cannot be deemed an authority in support of the jurisdiction, in opposition to the previous cases. And in the case of Bouton v. The City of Brooklyn, 7 How. Pr. R. 198, where the Supreme Court of the Second District were applied to, for an injunction, to restrain the collection of an alleged illegal assessment, upon real estate for a public park, that court held on demurrer, that the plaintiff had a remedy at law, and that a court of equity would not interfere, even to remove a cloud upon the title to the lands assessed in such a case. And see also a decision, to the like effect, in Thatcher v. Dusenbury, 9 How. Pr. E. 32. Entertaining the views, which I have stated above, and believing that they are in conformity with the decisions heretofore made when the point has been presented, I am constrained to hold, that to restrain the collection of a tax upon personal estate, on the grounds alleged in the complaint herein, a court of equity has no jurisdiction. Assuming it as conceded, that the question of jurisdiction was properly raised by the demurrers, (notwithstanding the suggestions above intimated,) the defendants may have judg- ment on the demurrers, with the usual leave to the plaintiff to amend (if he deems an amendment possible) on the usual terms.* * Although this cause was decided in July, 1854, the opinion was not filed until recently. The same question has heen since mooted in the Supreme Court, in The Chemical Bank a. The Mayor, &c., (see post.) and in the New York Superior Court, in The New York Life Insurance Co. a. The Board of Supervisors, lately decided at general term. In hoth cases the injunction was denied. NEW-YOKK. 33 Purple a. The Hudson River Railroad Company. PURPLE a. THE HUDSON RIVER R. R. CO. New York Superior Court ; General Term, October, 1854. ASSIGNMENT OF CAUSE OF ACTION. TOKTS. The rule of law that a cause of action founded on injuries to the person is not as- signable, has not been altered by the Code. Demurrer to complaint. This action was instituted by S. S. Purple, assignee of Minerva Purple. The complaint alleged that the defendants contracted to carry Minerva Purple from Greenbush to Canal- street, and deliver her there in safety ; that she was violently thrown from the car when landing, by reason of its being started improperly, whereby she was severely injured : and that she had assigned the cause of action to the present plain- tiff. To this complaint the defendants demurred on the ground that the cause was not assignable. The demurrer was sustained at special term, and the plaintiff appealed to the general term. Geo. Betts, for plaintiff. W. Fullerton, for defendants. DUEK, J. We are clearly of opinion that the decision at special term is correct. It is true in all cases, as the law stood before the Code, that where an action was brought against a common carrier, or against a person engaged to transport another for hire, the party had his election whether to bring his action for assump- sit founded upon a breach of contract or an action of tort ; but whatever may have been the nature of the action where it was brought to recover for injuries to the person an injury resulting from the carelessness or negligence of the party sued we think that tort was substantially the true cause of action, and therefore it was not assignable. It seems to have been 3 34 ABBOTTS' PRACTICE REPORTS. Mabaney a. Penman. understood by many members of the bar that the Code autho- rizes an assignee to maintain an action in his own name, and that in all cases where right of action exists in a party, that right may be assigned. The law in that respect has not been altered. An assignee where an assignment is valid according to the rules of law as they formerly existed, may maintain an action in his own name, but when a cause of action is a simple tort, and for a special injury to the person, it is not more assignable under the Code than it was under the laws that formerly prevailed. Judgment, therefore, must be affirmed, with costs. MAHANEY a. PENMAN. [New York Superior Court : Special Term, October ', 1854.] JURISDICTION OF THE SUPERIOR COURT. JOINT LIABILITY UPON CONTRACT. A defendant cannot appear in the New York Superior Court, under protest to the jurisdiction, based on a purely personal objection. The proceedings authorized by the Code to be taken in suits brought against defend- ants jointly liable upon contract, may be taken in a suit brought upon a judg- ment rendered against defendants, jointly, upon a contract on which they were jointly liable. Motion for a new trial. The action was brought by Mahaney against three defend- ants, upon a judgment rendered in his favor against them in the State of Virginia. The grounds of the motion sufficiently appear in the opinion of the court. J. Livingston, for plaintiff. B. Galbraith, for defendant. HOFFMAN, J., (with concurrence of OAKLEY, C. J. and DUER, J.) On the 22d of April, 1850, the plaintiff recovered a judg- ment against the defendants, in a court, described as the NEW-YORK. 35 Mahaney a. Penman. " Circuit Superior Court of Law and Chancery, for Frederick -County, in the State of Virginia," for $800, with legal interest, until paid, and his costs. The plaintiff avers in his complaint, that such court was a Court of Kecord of the State of Virginia ; that he is the owner of the judgment, and that the defendant is indebted to him the sum of $800, with interest, for which he prays judgment. The defendant, Daniel Penman, by answer, reserves the right to object to the jurisdiction ; and, that the plaintiff shows no cause of action. He then, 1st, denies the recovery of the judgment in the court as alleged. 2d. He says that there was no such court known at the alleged time as the court described. 3d. That such described court was not a court of record. 4th. That there was not, at the time alleged, any such judgment of such court valid, in point of law, against the defendants, at the suit of the plaintiff. 5th. That the plaintiff was not the owner of such judgment in the complaint mentioned, nor does he sue as executor, administrator or trustee of an express trust, or by authority of any statute, enabling him to sue without joining the person for whose benefit he sues. 6th. That after the accruing of the cause of action, and before commencing this action, the plaintiff issued a writ of fi. fa., under the seal of the said " Circuit Superior Court of Law and Chancery, for Frederick County, in the State of Virginia," directed to the sheriff of such county, who levied under the same upon goods and chattels of the defendants, and raised money enough to satisfy the said judgment. 7th. That at the commencement of this action, there was not the sum of $800, or any sum due to the plaintiff on such judgment. The plaintiff, in his reply, denies the issuing of an execution ; avers that he is the owner of the judgment, and says, that the whole of the amount is due and owing to him. The plaintiff produced at the trial a judgment record of the county court of Frederick, from which it appears that the present defendants were returned in custody, and acknow- ledged the action against them for $2,025 68 ; that the present plaintiff was plaintiff in such action ; that judgment was ren- dered for that sum, and execution issued to recover it, of 36 ABBOTTS' PRACTICE REPORTS. Mahaney a. Penman. which there was no return. The recovery of the judgment appears to be the 22d of April, 1850. The defendants offered in evidence a deed of trust, dated the 6th of April, 1850, executed by all the defendants, for the benefit of all their creditors, and offered to show that the judg- ment was confessed after the execution of such deed and dis- solution of the firm. The judge rejected the evidence. The defendants also offered a copy of an opinion of the presiding judge of the circuit court in the county of Frederick, wherein the present plaintiff and the present defendants were parties, in which the judgment confessed was declared void. This evidence was also rejected. A case was made with liberty to turn the same into a bill of exceptions. It does not appear from the case whether all the defendants were served in this action. There is only an answer of one of them (Daniel Penman) served, although the reply is to the answer of Penman and Thompson. The cases cited in the Court of Appeals, (Frees v. Ford, 2 Selden, 176 ; and Clason v. Corley, Selden's Notes, 31,) if ap- parently inconsistent in some of the language used, are recon- cilable upon the facts. The latter case came from this court, to which it was sent by the Supreme Court, and is reported in 3 Sand. 454. At page 456 the effect of the amendment showing the residence of the defendant, so as to exhibit juris- diction after the original bill had been taken as confessed, is discussed by the court ; and the ground there taken is affirmed in the Court of Appeals. Hie possession of jurisdiction did appear on the record. The position in Frees v. Ford is therefore unaffected, and the jurisdiction of this court must appear on the record. It does so appear when it appears that one of several parties jointly liable on contract has been personally served with pro- cess, or resides within the city of New York, or where all the defendants, without regard to the nature of the action, reside, or are served within the city. Not one of these grounds of jurisdiction expressly appears on this record. Nothing tending to prove jurisdiction is shown, NEW-YOKE:. 37 Mahaney a. Penman. unless the voluntary appearance and answer of Daniel Penman, claiming, at the same time, the benefit of the objection, is sufficient. There are then two questions First. Is such an appearance and answer an implication of his residence or of his being per- sonally served within the city or of a consent to jurisdiction ? Next. Is he one of several defendants jointly liable on con- tract? I. In Burckle v. Eckhardt, 3 Comst., 132, the Court of Appeals held that where a bill was filed against persons not residing within the circuit of a vice chancellor, and the resi- dence elsewhere appeared on the face of the bill, his voluntary appearance by a solicitor did not give jurisdiction, and his allowing the bill to be taken as confessed, did not bind him. " The residence within the circuit was a jurisdictional fact which must exist before the court can act at all, either by issuing processes or accepting the appearance of a defendant. It is necessary to give jurisdiction of the cause, not of the per- son. In such case there can be no waiver. The want of jurisdiction appears on the record. (Per Gardiner, Justice.) Upon this point, the case of Bucknell v. Field and another, 8 Paige, 442, deserves much attention. A judgment had been recovered by the defendants against the complainant and one Stevens, in a court in the State of Massachusetts. An action of debt on judgment was commenced in the Supreme Court of this State by the defendants against the plaintiff. The bill was to restrain the prosecution of such action upon certain alleged equitable grounds. It was filed before the vice chan- cellor of the first circuit, neither of the defendants residing in such circuit, but one in Westchester county and the other out of the State. The chancellor held that the subject matter having no locality, the question depended upon the fact whether the suit instituted in the Supreme Court was a cause or matter of action arising within the first circuit. If a bill could have been sustained before such suit was commenced, it was evident that the vice chancellor had no jurisdiction. He inclined to the opinion that he possessed it on the ground of such suit in the Supreme Court. (See 9 Paige, 151.) The case of Burckle v, Eckhardt was decided in December, 38 ABBOTTS' PRACTICE REPORTS. Mahaney a. Penman. 1849, and in April, 1851, the 139th section of the Code was amended by adding to it the following clause : " A voluntary appearance of a defendant is equivalent to personal service of a summons upon him." In Granger v. Swartz, (11 Legal Obs. 346,) in this court, the learned justice says, that the voluntary appearance of defend- ants under this section has the same effect as a service of a summons on them upon the day of appearance would have had. The clause referred to takes away, then, the right to appear with a reservation of an objection to jurisdiction when such objection is purely personal. The defendant here cannot' appear with protest, and now say that the record does not show that he was a resident or was served personally. II. Another question then remains Is he jointly liable with the other defendants on contract ? The case of Bealey v. Palmer, (1 Jlill, 482), is referred to. Proceedings were taken by attachment under the absent debtor's act. The attachment was against the property of three persons who had been originally indebted on a joint and several pro- missory note, on which they had been sued in Indiana. One of them only was arrested, and judgment given against him alone. His property was attached in this state. It was held that the remedy did not extend to attachment on a judgment in another state ; the third section (1 J%ev. Stats. 765, 2d ed.) extending only to judgments obtained here. And next that the party could not go behind the judgment and put the case under the final section which covered a debtor on contract. The judgment extinguished the simple contract debt, as to the defendant arrested. But the arrest in that case was only of one of the parties jointly liable, and the judgment was against him alone. As to him the joint contract was gone and a separate liability was established upon the judgment. Here the original joint liability upon contract is continued in a joint liability on judg- ment. And I think that under a fair construction of the Code, this may be treated as still a joint liability on contract. As to the other points raised on the bill of exceptions, I do- not think a doubt can be entertained that the ruling of the judge was correct. Motion for a new trial denied. NEW-YORK. 39 St. John a. Griffith. ST. JOHN a. GRIFFITH. /Supreme Court, first District/ Special Term, November, 1854. PLEADING. ACT OF AGENT. Under the Code the act of an agent should not be pleaded as the act of his principal. Of the liberality in the construction of pleadings required by the Code. . Motion to strike out portions of a complaint. The complaint stated an agreement entered into by Ancel St. John, brother of the plaintiff, and claiming to act as hia agent, with Griffith and Brown the defendants ; by which St, John sold to defendants a lease and fixtures of a hotel, the defendants agreeing to give a chattel mortgage as collateral security for the payment of the purchase-money, part of which was to remain unpaid. It also alleged that the defendants with a view of defrauding him, had since made two notes upon which the holders had entered judgment and issued execution. It prayed a specific performance of the agreement to give a chattel mortgage and a stay of proceedings of the alleged fictitious executions issued against the defendants. The defendant moved to strike out certain portions of the complaint ; those alleging that Ancel St. John entered into the agreement of sale as agent of his brother, and also those relating to the fraud charged upon the defendants ; and also that the signatures to the alleged contract be annexed to the copy given. Mr. Sanxay, for the motion. , opposed. KOOSEVELT, J. This is a bill in equity to compel the speci- fic performance of an agreement to give a chattel mortgage. The plaintiff alleges that instead of giving the mortgage aa promised, the defendants Griffith and Brown had confessed a fraudulent judgment in favor of Moody and Ketch um, and that by means of an execution on the judgment, G. and B., 40 ABBOTTS' PEACTICE KEPOKTS. St. John a. Griffith. M. and 3L were endeavoring to dispose of the property, and thus defeat the plaintiff's rights. The defendants move to strike out several parts of the com- plaint as irrelevant and redundant. I. It is contended first, that it is bad pleading to aver that an agent did the act instead of averring that it was done by his principal. The Code requires facts to be stated, not fiction ; " the facts of the case," and not the mere legal conclusions. Such a statement therefore as that adopted by the plaintiff is not only admissible but necessary. At the same time I see no objection to the plaintiff's stating in addition to the fact what he considers to be its legal effect. Such a statement may or may not be an " unnecessary repetition" according to circum- stances. II. Next, as to the allegations of fraud. These are the necessary bases for relief against the judgment and execu- tion devised by the defendants to defeat the creditors. The plaintiff perhaps has rung the changes on them rather too fre- quently. No particular injury however, it seems to me can result from the few additional words. The complaint, as a pleading, compared with a majority of those which have come under the eye of the court, is remarkably concise. Although full, it is not overflowing or if so at all but very slightly not more than what the court may properly overlook. The Code indeed upon this point is imperative, making it the positive duty of the court to discard all nice objections, and to construe pleadings " liberally with a view to substantial justice between the parties." This class of motions I may add is not to be encouraged. They involve generally a very great, and in most instances, a very fruitless consumption of time, to the prejudice of matters of substance and the delay of other suitors. Tech- nical obstructions are not in harmony with the spirit of the age, either in the Old "World or the New. Courts of justice now-a-days are expected to try cases and not pleadings. And provided the parties are reasonably notified in advance of what they are expected to meet on the trial, it is all that should be required of their adversaries, and all that is of any use in written preliminary statements. A good letter and NEW-YOKE. LefTerts a. Snediker. good answer, were there no lawyers, would be the natural, as they are, in most instances, the best forms of pleading. The defendant's motion, except so far as it calls for the sig- natures of the alleged contract annexed to the complaint, must be denied. LEFFERTS a. SNEDIKER. Su/preme Court: First District, General Term, Nov. 1854. "HAM AND FRIVOLOUS ANSWEKS, DISTINGUISHED. THE EEMEDIES. A sham answer is upon its face good, but it sets up new matter which is false. A frivolous answer controverts no material allegation in the complaint, and pre- sents no tenable defence. The remedy for a sham answer, is a motion to strike it out. The remedy for a frivolous one, is an application for judgment, upon Jive days notice. Motion to strike out an answer. This action was brought upon a promissory note. The answer denied information sufficient to form a belief whether plaintiffs were the lawful owners and holders of the note, or whether the defendant was indebted to the plaintiffs, as set forth in the complaint. The plaintiffs obtained an order to show cause, returnable in two days, why the answer should not be stricken out as sham, frivolous and irrelevant, and the plaintiffs have judgment. Upon the hearing at special term it was ordered that the answer be stricken out as " sham and frivolous." The defendant appealed. C. P. EirHand, for plaintiffs. J. E. Burrill, jr., for defendant. The answer was not stricken out as irrelevant, but as "sham and frivolous." Tow it was not sham. (Caswell v. Bushnell, 14 Barb. S. C. R. 393.) And conceding that it was frivolous, the court had no right to strike it out, but should have proceeded under 247 of the Code, which allows a party prejudiced 42 ABBOTTS' PEACTICE EEPOETS. Lefferts a. Snediker. by a frivolous pleading, to apply, on a notice of five days, for judgment. A defendant has the right to have his answer remain upon the record, in order to procure a review of the decision of the court. And the only mode of getting over a frivolous answer, is to apply for judgment, under 247. (Dar- row v. Miller, 3 Code R. 241 Hill v. Smith, 1 Duer, 650.) CLEEKE, J. The Code establishes a very clear and decided distinction between sham and frivolous answers, and provides a totally different method of dealing with them. A sham answer is upon its face good, and sets up new matter, which is false ; a frivolous answer controverts no material allegation in the complaint, and presents no tenable defence. In this case the answer is not false, or, rather, it cannot be treated as false, for it sets up no new matter, and if it could be treated as false, the plaintiff could not apply for judgment, but to have it struck out, under section 152 of the Code, upon such terms as the court may deem proper. If this answer can be considered frivolous, the application should be under section 247 of the Code, on a notice of five days, for judgment. The motion was on a notice of two days to have the answer struck out, as sham, frivolous and irrelevant, and for judgment. If the notice was on five days, and if the judge decided the answer to be frivolous, he might have given judgment under section 247, disregarding the words " sham" and " irrelevant" in the notice. The order granted merely strikes out the answer as sham and frivolous, and gives no judgment. Under the notice, the application ought not to have been granted in any shape. The plaintiff's only remedy is under section 247. Order reversed. ROOSEVELT, J., dissented. NEW-YORK. 43 Voorhies a. Baxter. VOORHIES a. BAXTER. Supreme Court, First District; General Term, November, 1854. MISJOINDER OF DEFENDANTS. EXECUTORS OF DECEASED PARTNER. The executors of a deceased member of a firm cannot be sued for a debt due from the partnership, unless insolvency of the surviving partners or some other ground of special relief against them be shown. This rule, which was formerly well settled, has not been changed by the Code. Demurrer to complaint. This suit was brought by William and Peter Voorhies, upon two notes made by the firm of Baxter, Brady, Lent & Co., one of whom was H. W. Childs, since deceased. The complaint joined the executors of Childs, with the surviving partners of the firm, but stated no special grounds on which relief was claimed against the executors. The executors demurred to the complaint, on the ground that it showed no cause of action against them. The demurrer was sustained at special term, and the complaint dismissed as to the executors of Childs. From this decision the plaintiffs appealed. It. M. Harrington, for plaintiff. W. S. Rowland, for defendant. MITCHELL, J. Childs was one of a firm of six persons who made in the firm name, a note, now held by the plaintiffs ; he died, and the plaintiffs sued the five surviving partners, and with them the executors of Childs, setting forth no circum- stances to raise an equity against the executors. The execu- tors demurred, on the ground that the plaintiff showed no cause of action against them. In Lawrence v. The Trustees of the Leake & Watts Orphan House, 2 Den. 577, the Court for the Correction of Errors, affirmed unanimously the decision of the chancellor and of the vice-chancellor, holding, that (although the rule may be differ- 44 ABBOTTS' PRACTICE REPORTS. Voorhies a. Baxter. ent in recent English cases,) here, " a creditor of a co-partner- ship firm, on the death of one of its members, cannot sustain a bill against the representatives of the deceased and the sur- viving members, or against such representatives alone, without averring and proving that such surviving partners are insolvent ;" that " as the remedy at law survives, the creditor is bound to resort to his legal remedy against the surviving debtors, unless he can show a necessity for coming into a court of equity for relief against the estate of the deceased debtor :" that " such a debt is joint, and not joint and several." (P. 588 and '9.) The decision was not founded on the difference of jurisdiction between courts of law and courts of equity, for it denied the right to come even into equity, unless insolvency of the sur- vivors, or some other ground of equitable relief was established ; it therefore held that the creditor had no right of action, either at law or equity, against the executors of the deceased, until he showed insolvency in the survivors. The rule is just also; the surviving partners take all the assets of the firm, including even the share to which the deceased was entitled, and retain it and apply it to the payment of the partnership debts. They alone and not the executors of the deceased have the fund out of which the debt is primarily to be paid. The executors have only the individual property of the deceased, and that should be applied first to pay his individual debts. In Kiart v. Townsend, (6 How. Pr. R. 460,) the plaintiff made Townsend the surviving partner, and the executor of Clapp, the deceased partner, defendants ; and it seems Towii- send alone demurred for a misjoinder of parties. The demur- rer was overruled, but with a suggestion that it would be ne- cessary for the plaintiff to show what kind of relief he sought against the executors. The demurrer was properly overruled, for the Code, while it allows a demurrer for defect of parties, does not allow it for too many parties ; and that was the mean- ing of the demurrer in that case. In this, the demurrer is not by the surviving partners, who have no cause of complaint, but by the executors, and on the ground that no cause of action is shown as against them. The learned judge says, in that case, that if the action is brought to enforce the liability, both of the partnership property and of the partners individu- NEW-YOKE. 45 Voorhies a. Baxter. ally, then the surviving partners and the representatives of the deceased are necessary parties. This is so, if a case be made, giving the creditor a right as against the representatives of the deceased, and probably was intended to be confined to such cases. The Code was not intended to give a remedy under circumstances where there was no right either at law or in equity before. The plaintiff relied on 118 and 122 of the Code. Section 118 is, that " any person may be made a defendant, who has or claims an interest in the controversy adverse to the plain- tiffs, or who is a necessary party to a complete determination or settlement of the question." This section was borrowed from the chancery practice, and was intended to preserve the right and duty of a plaintiff, to make all persons parties directly inter- ested in the question or controversy stated in the complaint. In this case the complaint does not state any cause of action at law or in equity against the executors, but one against the other defendants only : the executors have and claim no interest in this controversy, and they are not necessary parties to a com- plete determination or settlement of this question. The ques- tion and the controversy only is, whether the firm made the note, not whether the estate of the deceased is to pay it. The law is, that his estate is not liable to be sued for it, if the sur- vivors are solvent and able to pay it. A different decision would be exceedingly prejudicial to creditors. The executors could object that no judgment should be entered against the estate until the insolvency of the firm should be ascertained, and could plead that it was solvent and be able to pay its debts, and judgment would then be delayed until that question should be settled. By leaving the law as it has already stood in this State, the creditor has first his prompt remedy on the note against the surviving partners, and then, if they are insolvent, his equitable relief against the executors. The judgment should be affirmed with costs. 46 ABBOTTS' PRACTICE KEPOKTS. Seaboard and Roanoake Railroad Company a. Ward. SEABOARD AND ROANOAKE R. R. CO. a. WARD. Supreme Cowrt, First District; General Term, November, 1854. RIGHT TO DISCONTINUE. COUNTER-CLAIM. Under the former practice the plaintiff had an absolute right to discontinue on pay- ment of costs at any time before judgment or decree, or the submission of the cause to the jury. This right has not been abrogated by the Code. The fact that defendant has answered, setting up a counter-claim, does not preclude the plaintiff from discontinuing before reply or demurrer or expiration of the time to reply. Motion to set aside order of discontinuance. The defendant having answered the complaint in this cause setting up a counter-claim, the plaintiff entered an ex-parte order of discontinuance ; which the defendant moved at spe- cial term to set aside. The motion was denied pro forma for the purpose of presenting the question involved, to the general term in the first instance. Wm. C. Noyes, for plaintiffs. P. T. Wooodbury and C. P. Kirklancl, for defendant. The counter-claim of the defendant under the Code is in fact a cross-action by defendant against plaintiff, and possesses every feature and every right of an original action. It is pleaded exactly like matter in a complaint, and issue is joined upon it in precisely the same way. The defendant is an actor in bringing the counter-claim to trial. And if the counter- claim be in fact a cross-action, possessing every feature and every right of an original action, then the plaintiff cannot of his own motion discontinue what is in fact the defendant's suit against him. The counter-claim is analogous to the cross-bill in equity ; and the dismission of the original suit in equity never worked an abatement or dismission as to the cross-bill. (2 Sorb. Ch. Pr. 129. Wickliffe v. Clay, 1 Dana, 589. 8. C. 2, Ob. 68.) NEW-YORK. 47 Seaboard and Roanoake Railroad Company a. Ward. MITCHELL, J. The plaintiffs, a foreign corporation, com- menced this action against the defendant, for moneys received as their agent. He set up a counter-claim arising out of trans- actions prior to the agency, and for which, if he has any claim, he can still commence an action. Before the time for reply- ing, the plaintiffs entered an ex-parte order, dismissing the action on payment of costs. The defendant moved to vacate that order, and the judge at special term denied the motion. The defendants appeal. The absolute right of a plaintiff to discontinue his action on payment of costs, at any time before judgment or decree, or before the case was submitted to a jury, has been the law both of this country and of England, from the earliest period to this day, unless the Code has taken away that right. It was allowed in chancery, when the cause was called on for hearing, although the defendants were ready to argue the cause on its merits, and strongly opposed the dismissal. Curtiss v. Loyd, 4: Mylne & JT., 194. Chancellor Walworth said, (Cummins v. Bennett, 8 Paige, 81,) that it is a matter of course to permit a complainant to dis- miss his bill at any time before the interlocutory or final decree has been made in the cause, upon payment of costs. It was conceded by the counsel on both sides, that this right con- tinued even if a cross-bill were filed ; but that then it did not carry the cross-bill with it. But the cross-bill was the bill of the defendant ; it remained in court until he voluntarily dis- missed it, or it was dismissed by his default, or disposed of by the judgment of the court. It was also conceded that the right existed in replevin, where the defendant is an actor and may notice the cause as well as the plaintiff; and continued in actions of contract after the law allowed a set off to the defendant, and his right to recover from the plaintiff any excess of the set-off beyond the plaintiff's claim. In replevin the effect of the discontinuance was, a judgment for the return of the property replevied, but that was only to carry out a neces- sary effect of the abandonment of the suit, viz. : that property acquired by the commencement of the suit should be returned when the suit was voluntarily abandoned, and this abandon- ment showed that the plaintiff had no right to the property, at 48 ABBOTTS' PEACTICE REPORTS. Seaboard and Roanoake Railroad Company a. Ward. least in that action ; it could be obtained only by the institu- tion of the suit, and the foundation for retaining it failed when the suit failed. Doubt is expressed, in Wilson v. Wheeler (6 Sow. Pr. It. 51, 52), whether on a discontinuance by the plaintiff, in replevin, it would be part of the judgment that the goods should be returned ; but it is there admitted that " the old cases under the English Statutes evidently favored a return," (p. 51), and the section of the Revised Statutes there quoted, (2 Rev. Stats. 530, 53,) is broad enough to include a discontinuance whether on the motion of the plaintiff or defendant. It is : " if the property specified in the suit have been delivered to the plain- tiff, and the defendant recover judgment by discontinuance or nonsuit, such judgment shall be, that the defendant have return of the goods, &c." The defendant recovers the judg- ment, although the order is made on the plaintiff's motion. The right of the plaintiff to discontinue his action having been sustained through all the changes of the law until the adoption of the Code, it must require clear and unequivocal language to take it away. It is not to be taken away by impli- cation, unless the implication be an absolutely necessary con- sequence of some of the new enactments. The parts of the Code referred to, are 274, allowing the court to grant to the defendant any affirmative relief to which he may be entitled, 256, allowing either party after issue to give notice of trial, 258, allowing either party noticing the cause for trial to proceed with the case and take a dismissal of the com- plaint, or a verdict or judgment as the case may require, 149, allowing the defendant in his answer to set up any new matter constituting a defence or counter-claim, 153, allow- ing the plaintiff to reply to an answer setting up a counter- claim, 154, allowing the defendant when the plaintiff fails to reply or demur within the time prescribed by law, to move for such judgment as he is entitled, and if the case require it to have a writ of inquiry of damages, and 168, declaring that new matter in the answer, set up as a counter-claim is to be deemed as admitted if it is not controverted. The sections allowing a defendant after issue joined to notice the cause for trial, and after noticing it, to proceed with the NEW-YORK. 49 Seaboard and Roanoake Railroad Company a. Ward. case and take such judgment as the case requires, apply to all defendants, whether they set up a counter-claim or not. Yet it is not denied that the plaintiff may discontinue except when the counter-claim is set up. Those sections do not therefore help the defendant's position ; they apply, too, only after issue is joined, not to this case, when the time to reply has not yet expired. Sections 149 and 153 only allow the counter-claim to be set up as a defence and then permit the plaintiff to reply to it. They cannot effect this question. Section 154 allows the defendants, when the plaintiff fails to reply or demur to a coun- ter-claim, to move for such judgment as he is entitled to. That does apply, and it does give a defendant an absolute right in a certain event, to have an affirmative judgment in his favor, but it is not until these events occur, that it gives any such right. It gives the right and limits it, and gives it only when the plaintiff fails to reply or demur within the time prescribed by law. Before that failure on the part of the plaintiff, he retains all the rights which he had before. After that, he loses the right to discontinue, except with the special leave of the court. If the plaintiff replies to the counter-claim, and his reply be false, or he cannot sustain it, the defendant ought not to lose any right which he would have had if the false or unsustainable reply had not been put in ; and therefore in case of a counter-claim after issue joined, the defendant notic- ing the cause for trial should, (as section 258 and 274 allow) have his affirmative relief, and such judgment as the case may require. The notes of the codifiers to their report of 1850, under chapter 4 of title 7, as to " the answer," (p. 267, 271) were referred to, to show that they intended that the plaintiff should not have leave to discontinue. Such no doubt was the inten- tion of those gentlemen in certain cases, as one of them present at the argument suggested, but as he also showed they expressed that intention not in the chapter as to answers, which was adopted by the legislature, but in chapter 1 of title 8, relating to judgments in general, which chapter was adopted in part by the legislature, but with the exclusion of the section referred to. This shows first that the codifiers deemed an express provision necessary to cut off the general 4 50 ABBOTTS' PEACTICE KEPOKTS. Seaboard and Roanoakc Railroad Company a. Ward. right of the plaintiff to dismiss his own action, and that they did not mean to cut it off by implication, and next that the legislature having the subject before them, did not choose to alter the old law. In the chapter last referred to, 748 cor- responds with 245 of the Code, sections 749 and 750 with 274 of the Code, and section 751 with section 275 of the Code. Then follows section 752, which was not adopted and which proposed to abolish all other modes of dismissing an action, except those therein specified ; one of them was " by the plain- tiff himself at any time before trial, if a provisional remedy has not been allowed, or counter-claim made." It would seem to be clear that the legislature did not intend to abolish this ancient and firmly established right of a plain- tiff, merely because a counter-claim was made, and that the codifiers did not mean so, unless their express provision for that purpose should be adopted. By clear implication they have abolished it when the plaintiff fails to reply or demur to the counter-claim, or to appear at the trial, but then only." Whether under the general power of the court to control its process and the orders made by it or in its name, it may not when the defendant will otherwise lose his redress, vacate an order of dismissal entered by the plaintiff, need not be examined. This case presents no such circumstances. The case of Cockle against Underwood^ decided by Judge Bosworth in the Superior Court, has been submitted to us since the argument of this cause. In that case the plaintiff had failed to reply to the counter-claim, within the time prescribed by law, and then we agree that the plaintiff cannot dismiss his complaint without special leave. The order appealed from is affirmed, with costs. * Ante p. 1. NEW-YOKE. 51 Weed a. Pendleton. WEED a. PENDLETON. Supreme Court, First District ; General Term, November, 1854. JUDGMENT KECORD. REGULARITY. ESTOPPEL OF JUDGMENT DEBTOK. Where a second record of judgment in the course of a suit was, by mistake, made up and filed, and execution issued thereupon, in good faith, upon the supposition that the second entry of judgment was in fact for another demand, and the- de- fendant contrived to procure satisfaction of the first entered judgment, and then moved to vacate the second for irregularity : Held, that he was, under the circumstances, estopped, by procuring the first judg- ment to be satisfied, from objecting to the regularity of the second. Motion to vacate the record of a judgment. Pendleton, the judgment debtor, brought an action in the Superior Court, to recover damages for the taking of his prop- erty upon execution, issued under the judgment now sought to be set aside, which was a judgment entered in the Supreme Court, but the Superior Court held the record conclusive to jus- tify the taking. He then moved this court at special term, upon grounds which appear in the opinion, to vacate the judg- ment and take the record from the files, in order that he might recover for the property taken upon the execution. The motion was denied, and he appealed. A, Matthews, for the motion. D. D. field, in opposition. MITCHELL, J. Pendleton endorsed to C. W. Weed three notes, each dated February, 1837 ; one at twelve months, for $4,308 97, another at fifteen months, for the same sum, and the third at eighteen months, for $2,154 48. On the first note judgment was obtained on 8th of May, 1838, for $4,450 12. On the second note an action was commenced 31st May, 1838, and judgment was entered on it 2d July, 1838, for $4,450 25. No action was ever brought on the third note for $2,154 48. The attorneys for the plaintiffs are dead, but it appears from 52. ABBOTTS' PEACTICE REPORTS. Weed a. Pendleton. their register, that they entered in it the commencement of the suit on the second note, and all the proceedings to the assessment of damages and taxation of costs, but did not enter the fact of filing the judgment record ; and that nearly a year after that, in June, 1839, a clerk of theirs filed a record on the last mentioned day, and made an entry of doing so. Thus the plaintiffs had three notes endorsed by the defendant, and three judgment records one on the first note, another on the second note, and a third, in reality, on the second note, but which, after a lapse of time, they might naturally suppose, if they did not recollect the amount of the notes, was for the third note. On the 15th June, 1839, execution was issued on this third judgment record and returned wholly unsatisfied. Nothing was done on either judgment, until 16th February, 1849, nearly ten years afterwards, an alias fi. fa. was issued on this last judgment, and Pendleton's property was taken under it. He has since commenced an action of trespass for this taking, and as the judgment record cannot be impeached in that action, he moved this court to vacate the entry of the third iudsrment. j & This is a motion addressed to the equity of the court; it is necessary, therefore, to see whether equity requires that this motion should be granted. After the levy, Pendleton discovered that the third judg- ment, as well as the second, was on the second note, and was advised that the third was a nullity. He called on Charles "W. "Weed, who was attorney for the plaintiffs, in the summer or fall of 1849, and concealing the fact that he and his counsel thought the third judgment void, and the execution under it irregular, and that he had discovered that the third judgment was not on the third note, but on the second, he commenced the conversation, as he shows, by remarks, which must have led Weed to understand that all three of the judgments were in full force, and that the execution on the third was regular ; for instead of intimating that the execution was irregular, he spoke of it as unjust to him, because it was issued for old and extinguished claims, and during his absence from the city, and in violation of an understanding before hand that he should not be molested in respect to the same ; and that he NEW-YOKK. 53 Weed a. Peridleton. -must have a statement of the disposition that had been made of the collateral paper which had been placed in the hands of the plaintiffs, which collateral was to the whole debt. He thus. suppressed facts, the knowledge of which he knew would have prevented "Weed from doing what "Weed afterwards offered to do, and also by the statements made by him led "Weed to believe that the third judgment, and the execution on it, were valid. If they were not valid, there was no need of Pendleton's having an account of the collateral paper, and they could not much molest him ; a motion to set them aside was all that he needed. Under the impression thus produced by Pendleton, "Weed promised to procure, and did procure an -assignment to a friend of Pendleton's, of the two first judg- ments. Pendleton having got them, a few days afterwards also asked for and obtained satisfaction pieces for those two judgments, and filed them. And "from that time" he says, " his counsel made various endeavors to procure satisfactory compensation to deponent for his property, which had been taken and sacrificed to the extent of about $20,000, by the sheriff's sale, under said alms execution." This seems as if he would say, that having thus procured a satisfaction to be entered of the first two judgments without payment, he from that time endeavored to defeat the third which he had led Weed to believe was valid and in force. "When Pendleton came and complained of the levy on his goods, his complaint must have been of the levy under the execution on the third judgment, for no other was issued. "Weed then stated to him that he could not satisfy the third, for it was assigned as security to his attorneys, but offered to assign the first and second, with the understanding, at least on his part, that he would retain the third and the execution on it. When Weed thus distinctly stated his views, Pendleton was bound to decline the offer, or to accept it with the condition which he knew Weed meant to attach to it, or disabuse Weed from the false impression on his mind, produced in part by Pendleton's aid. Pendleton, by the acceptance of the two assignments under the circumstances, and the concealment which he practiced, has estopped himself from setting up the invalidity of the third judgment, at least on a motion where 54: ABBOTTS' PRACTICE REPORTS. Weed a. Pendleton. he seeks affirmative relief, which the court is to grant only if equity require it. The defendant's counsel argued as if the third judgment were so irregular, that it was a matter of course, to set it aside. It is not so. That judgment-record was founded on the second note, and on the declaration actually served on it. So also was the second judgment-record. If the defendant had moved to have one of the two records cancelled, and it had been shown that he had done any act, in consequence of which, it might be difficult to sustain the second judgment, the court would have sustained the third and cancelled the second. So here, the defendant having procured a satisfaction of the second, without consideration, or by causing the belief that the third was valid, the court should now sustain the third, as the true record under that note. Or, if the second were not satisfied, the court might have awarded the fi. fa. and alias fi. fa. so as to apply them to the second judgment. But that cannot now be done, in consequence of the defendant's procuring a satisfaction of that judgment. The act of the defendant in seeking a satisfaction of that judgment, after he had obtained an assignment of it to his friend, looks as if he had laid his plan thus to defeat the power of the equitable interposition of the court. It may be that no unjust motives entered the defendant's mind until he was pursued by proceedings supplementary to the execution, and that until then he intended to let the execution remain, and this was intimated by his counsel. If so, then both parties meant the third judgment and the execution, to stand as part of the arrangement under which the first and second judgments should be satisfied; and then there was originally a good intent, but there would be a fraud in departing from that mu- tual intent. It was argued that the whole debt was paid in fact. The affidavits on that question are not very satisfactory, and the defendant, if he wishes to, may have a reference to ascertain, that fact. The order appealed from is affirmed, with costs. NEW-YOKE. 55 Markoe a. Aldrich. MARKOE a. ALDRICH. Supreme Court: First District ; General Term, Nov., 1847, TESTIMONY TAKEN CONDITIONALLY. PROOF OF FOREIGN RECORDS. AMENDMENT AFTER VERDICT. Testimony taken conditionally, is admissible upon the trial, notwithstanding that one of the original plaintiffs has died, and the suit is continued (under t) 121 of the Code,) by the survivor. It is also admissible notwithstanding the witness may have returned to the State since his examination, if he is not within the State at the time of the trial. The proper methods of proving public records of other States denned. When a record improperly attested had been admitted upon the trial, and the proper certificates were produced and filed upon the motion for a new trial Held, that a new trial would not be granted. Motion for a new trial. This action was commenced in 1848, by Braxton and Mar- koe, against Aldrich. Braxton having died in 1850, the cause was continued by Markoe, pursuant to 121 of the Code, by a supplemental complaint, filed in December, 1851. Upon the trial before Mitchell, J., 24 Nov. 1852, the plain- tiff, after having proved the absence of one Harvey Mills from the State, offered in evidence his deposition, taken condition- ally, (pursuant to Rev. Stats.] art. 1, title 3, ch. 7, Pt. III.) in April, 1851, after the death of Braxton, but before the filing of Markoe's supplemental complaint. The defendant's counsel objected to the admission of the deposition upon the ground that at the time it was taken, the cause of Braxton and Markoe a. Aldrich, in which the deposi- tion was entitled, was not pending. Also upon the ground that it appeared from the testimony offered by plaintiff rela- tive to the absence of Mills, that he had returned to the city of New- York after his conditional examination, although he did not remain until the trial. The evidence was admitted and defendant excepted. The plaintiff then offered in evidence a copy of a mortgage, purporting to have been acknowledged and recorded in Cass 56 ABBOTTS' PKACTICE KEPORTS. Markoe a. Aldrich. County, Indiana. It was accompanied by a certificate, with seal annexed, of one Douglass, as Recorder of Cass county, that the copy was a true copy of records in his office, by a certifi- cate of one Duret, as clerk of the Cass Circuit Court, with seal of that court annexed, that Douglass was at the date of his certificate, the recorder of the county, and that this signa- ture to the certificate was genuine, and by the further certifi- cate of Horace P. Biddle, as president judge of the Southern Judicial District, and of the Cass Circuit Court, that Duret was at the date of his certificate, clerk of the Cass Circuit Court, and that Duret's certificate was in due form. The defendant objected to this evidence on the ground that the certificates did not constitute the proper authentication of a mortgage to allow it to be read in evidence. But the judge overruled the objection, and admitted the evidence, and defendant excepted. The jury found a verdict for the plaintiff, and defendant moved to set aside the verdict and for a new trial. E. D. Lawton^ for plaintiff. C. P. Kirkland, for defendant. CLERKE, J. I. The proposition of defendant's counsel that the testimony was taken in a suit not pending, is entirely incon- sistent with the provisions of the Revised Statutes, and the Code declaring that no action shall abate by the death, &c. of a party, (% JRev. Stats. 387, 4, Code 121). If it did not abate notwithstanding the death of Braxton, one of the plaintiffs, it was still pending, when the testimony of Mills was taken con- ditionally ; it was taken in this suit, which according to the Code and the Revised Statutes, has been continued and not originated anew, after the death of Braxton. U. The defendant's counsel objected to this testimony also, on the 'ground that having been taken in April, 1851, the witness had not continued absent from the State, but had returned and remained until about two weeks previous to the trial. He maintains it must be an uninterrupted absence from the time of taking the testimony until the beginning of the trial. I think this would be a construction of the statute cal- NEW-YOKE. 5T Markoe a. Aldrich. culated to defeat its design, and to make the admissibility of the testimony dependent upon the movements of a person over whom the party requiring the testimony can have no control. He may go and come, but if it is shewn he is not here at the time of trial, the end of the statute is answered. It could never have been intended that every time the witness takes a new departure from the State, a new order is to be granted, and a repetition of the same examination is to be made. This would be multiplying work without an adequate object. The salutary usage of the common law, requiring in all practicable cases the presence of the witness at the trial, is sufficiently favored and conserved by excluding testimony taken conditionally, when it is not shewn that the witness is absent at the time of the trial. III. The objection that the mortgage was not properly authenticated, seems to be more tenable. It was recorded in Cass County, State of Indiana, in the office of the recorder of that county, a public office established in every county of that state, similar to that of register of the city and county of New York. The certificate of this officer was produced with that of the clerk of Cass Circuit Court, attesting that he was recorder, and that his signature was genuine with the seal of the court annexed, together with the certificate of the presid ing judge of that court attesting the clerk's certificate. By the act of Congress of 1790, it is provided that the records and judicial proceedings of the courts of any State shall be proved or admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice or presiding magistrate as the case may be, that the said attestation is in due form. The record- ing of the mortgage in this case seems to have been authenti- cated under this act; which applies only to records and judi- cial proceedings in courts. By the act of March 27, 1804, 1, however it is provided " that all records and exemplifications of office books which may be kept in any public office of any State, not a/ppertavn- ing to- a cowt, shall be proved or admitted into any other court or office in any other State by the attestation of the 58 ABBOTTS' PRACTICE REPORTS. Pringle a. Chambers. keeper of such records x or books, and the seal of his office thereto annexed, if there be a seal, together with a certificate of the presiding judge of the court of the county or district, as the case may be in which such office is or may be kept, &c., or of the governor, &c., that such attestation is in due form, and by the proper officer, and such certificate, if given by the presiding justice of a court, shall be further authenticated by the clerk of the court, who shall certify under his hand and seal of office, that the presiding justice is duly commissioned and qualified." So that the certificates of the judge and clerk are in this case reversed both in their contents and in the order in which they are presented. The judge should have certified to the genuineness and authenticity of the recorder's certificate and the clerk to that of the judge. IV. But this is an error for which the court will not grant a new trial if it can be rectified ; and the case is now amended by consent, the proper certificates being produced and filed. Judgment affirmed with costs. PRINGLE a. CHAMBERS. Supreme Court, First District ; General Term, November, 1854. ALTERATIONS IN AGREEMENT. BURDEN OF PROOF. It is a question of fact which should be submitted to the jury, whether material alterations appearing upon the face of an instrument containing an agreement inter paries, were made before or after its execution. An admission by one of two plaintiffs, embodied in his agreement with a third party, to the effect that the note now in suit was void, held admissible in favor of the present defendant. Appeal from judgment upon a verdict. The plaintiffs, against whom judgment was rendered at cir- cuit, appealed upon exceptions to the rulings of the court, allowing two written agreements, in one of which there was a material alteration, and the other of which was made between one of the plaintiffs and a third person, to be given, in evi- dence by the defendant. There were also other exceptions NEW-YORK. 59 Pringle a. Chambers. raising no important points of practice. The facts involved, sufficiently appear, in the opinion of the court. J. E. Burrill, jr., for plaintiff. I. The alteration in the agreement No. 1, was material, and beneficial to the defend- ant. The defendant was bound in some manner to explain or account for the alteration, and in the absence of such explanation, the evidence should have been rejected. Acker v. Ledyard, 8 Barb. 516 ; Tillou v. The Clinton and Essex Insurance Company, 7 Barb. 568 ; Jackson v. Osborn, 2 Wend., 555 ; Waring v. Smyth, 2 Barb. Ch. B., 123 n. Herrick v. Malen, 22 Wend., 388 ; Knight v. Clements, 8 Ad. & E., 215 \ Henman v. Dickinson, 5 Bing. 183 ; Jackson v. Jacobi, 9 Cow. 128 ; Cooper v. Becket, 4 Moore, P. P. C. 419 ; Van Buren v. Cockburn, 14, Barb. 122. II. The court erred in admitting the agreement of Jacob Prin- gle, No. 4, because there was no proof that it was entered into by J. L. Chambers, for the benefit of the defendant, and it could not inure to the benefit of defendant to defeat this action, and because there was no proof of any authority to Jacob Pringle to bind John P. Pringle under seal. Loomis, Thayer <& Smith, attorneys for defendant. I. No- proof was offered showing when the alteration was made ; and if the court was allowed in the absence of proof to indulge in any presumption as to the time of the alteration, the rule which requires all presumptions to be in favor of innocence and validity, required the court to declare that the alteration was antecedent to, or cotemporaneous with the execution. (1 Greenl. Ev. 678, 564 ; U. S. v. Spalding, 2 Mason, 478 ; Jackson v. Osborn, 2 Wend. 556 ; Jackson v. Malin 15, Johns. 296. II. The agreement of Jacob Pringle was admissible, if not as an agreement, certainly as an admission that the notes were null and void. CLEKKE, J. This was an action on an agreement given by defendant, on the assignment of a purchase of a patent right, promising to pay five hundred dollars in nine months, and one thousand dollars in twelve months, after date ; payment being contingent on his continuing to manufacture and vend the machine to which the patent right related. 60 ABBOTTS' PRACTICE REPORTS. Pringle a. Chambers. By an agreement of the same date, signed by all the parties, it was provided that if the defendant should find the business of manufacturing, vending and selling this machine unprofita- ble, he might duly notify the plaintiffs in writing, either in per- son or by a written notice, directed and duly mailed to Sumner Hill Post-Office, Pa., stating that he intended to cancel and surrender and give over the articles thereto annexed ; upon which the same should be null and void, provided the notice should be given within nine months. This action is for the first amount of $500, giving credit for $5 to defendant ; the demand of judgment being $495, with interest from August 1, 1850. The defendant proved a notice mailed and deposited in the Post-Office on the 6th of April, 1850, directed to the plaintiffs, at Sumner Hill Post-Office, Pa., notifying the plaintiffs, in compliance with the agreement, that the manufacturing of the machine was unprofitable, and that he ceased to manufacture and vend it ; requesting the plaintiffs to annul the articles of agreement. In support further of the defence, an agreement relating also to the matters, dated 1st of August, 1850, and marked Exhibit No. 1, was introduced, signed by Jacob Pringle, at the end of which, and after the words " in witness whereof I hereunto set my hand and seal," were added the words " and I further agree to return the obligation of said Chambers, dated Oct. 30, '49, at 9 and 12 mos.,for $1,500 ; all of which is null and void." Another paper was also introduced by defendant, dated July 5, 1850, and marked Exhibit No. 4, signed Jacob Pringle, acknowledging the receipt of thirty-seven dollars from J. L. Chambers, (not the defendant), which sum Pringle binds himself to use in and for the construction of this machine, to be completed before the 20th July, and to refund thirty-five dollars to said Chambers, in case he should refuse to receive the machine ; and then adding, beginning the word also with a small letter : " also, I obligate myself to refund and return Mr. Chambers' (the defendant,) notes dated 30th October, 1849, one at 9 months for $500, and one at 12 months, for $1,000, being null and void. The last two papers were introduced in confirmation of NEW-YOKK. 61 Pringle a. Chambers. the sufficiency of the notice, and to show that Jacob Pringle considered the agreement or note on which this action was brought, to have been cancelled by the notice, pursuant to the terms of the first agreement. I. The plaintiff's counsel objected to the introduction of the paper, on the ground that it was apparent on the face of the paper that it had been altered since it was executed and delivered. The judge at the trial overruled the objection, leaving the question to the jury as to the time when the altera- tion was made. The counsel, certainly, demanded more by this objection than I have noticed in any books of modern authority, with the exception of the legal novel called Ten Thousand a Y^ear, written by Mr. Warren, in which Lord "Widdrington, in the fictitious case of "Doe on the Demise of Titmouse against Jolter," is described as refusing to receive a deed in evidence, because it had an erasure in a material part of it ; and so the real defendant, Aubrey, lost ten thousand a year, and his posi- tion in society. By this objection the counsel did not, either in the case of Doe v. Jolter, or of Pringle v. Chambers, ask the court to charge the jury that the defendant was bound in some manner to explain or account for the alteration, but that the question should not go to the jury at all. Where there are erasures or interlineations, or very material alterations appearing on the face of an instrument, it becomes a question of fact for the jury whether they were made before or after execution ; and, as Mr. Evans, in his edition of Pothier, says : " The decision of that question will in a great measure depend upon the cir- cumstances of each individual case," and it is a salutary rule which I think our courts generally are disposed to adopt, though as yet not with perfect unanimity, that where the alter- ation appears to be suspicious on its face, and is not duly noted, the onus lies with the party who claims that the altera- tion was genuine. But nothing of this kind was required by the plaintiff's counsel. Both in his objection to the admissi- bility of the instrument, in the first instance, and his request how the judge should charge the jury, he insisted that the suf- ficiency as well as the adinissibility of the instrument were 62 ABBOTTS' PRACTICE REPORTS. Pringle a. Chambers. exclusively for the court. The judge left it with the jury to say when the alteration was made, and stated to them, if it was made after the delivery, it could have no effect. This ruling was perfectly correct, although it is not precisely in keeping with the decision of Lord Widdrington on the important occa- sion to which I have referred, in a case described by one who is not only celebrated as a writer of many interesting fictions, but also as the author of some useful elementary legal works. II. "Was the defendant obliged to show that the business of manufacturing and vending the machine was unprofitable in fact ; did the onus to do so lay upon him, so that he must show it before he could claim the benefit of that part of the agree- ment providing for giving the notice and rescinding the contract ? The court charged the jury that if the written notice was sent as testified by the witness, that annulled the contract as to the defendant. In the absence of any proof on the part of the plaintiffs showing that the business was profitable, this was correct. The agreement left it to the defendant to determine whether the manufacture was profitable or not ; and this was safe for all parties, for it may be taken for granted that the defendant would not relinquish the right if he found it profit- able. The plaintiffs might have been permitted to show that the statement in the notice was untrue, but he gave no evidence on the subject, and the jury have nothing to do but to decide upon the sufficiency of the notice itself, corroborated by exhi- bits No. 1 and No. 4, both of which, as I have already inti- mated, were introduced for this purpose. They were intro- duced rather as admissions than as agreements. The paper (Exhibit No. 4), dated July 5, 1850, is a paper with which the defendant has directly nothing to do. It certainly does not amount to an agreement between him and Jacob Pringle ; but that is no reason why a certain statement in it is not effectual as an admission against Pringle, made against his own interest, used as evidence in favor of the defendant. If the evidence offered by the plaintiff had been admit- ted by the court, it might have shown that the defendant manu- factured the machine after he sent the notice cancelling the agreement, but this could have no effect in determining whether NEW-YOKK. 63 Marks a. Bard. the agreement was actually cancelled or not. It could have no tendency to show whether the manufacture was profitable or unprofitable at the time the notice was sent. Neither could it have shown a waiver ; there could have been no waiver in the proper sense of the term after the notice and the acquiescence of the plaintiff as proved ; there could only be a renewal of\ the agreement ; and if this restored the parties to their original rights and liabilities, it should have been proved. No offer was made to prove anything of the kind, and the court properly refused to receive the testimony. The judgment should be affirmed with costs. MARKS a. BARD. Supreme Court, First District ; General Term, November, 1854. JOINDER OF PARTIES. COSTS. FORM OF JUDGMENT. It appearing upon the trial of an action brought against seven defendants, that five of them only were liable, the plaintiff moved to strike out the names of the other two. Motion granted with the addition that he pay their costs ; and judgment rendered in favor of the two for their costs, and Wgainst the five for debt and costs. The allowance of costs to the two defendants severed, sustained on appeal. The proper form of judgment in such a case Appeal from an order. The facts in this case sufficiently appear in the opinion of the court. A. R. Dyett, for plaintiff. Messrs. Holden and Thayer, for defendants. MITCHELL, J. The plaintiff sued E. H. Bard, and J. Bard, jr., with five other defendants, as joint makers of a promis- sory note. These two defendants, with four of the other defendants, put in an answer in which all six denied that the defendants made the note in question, or that the defendants were partners ; and these two defendants also denied all facts stated in the complaint. At the trial the plaintiff moved to 64 ABBOTTS' PRACTICE REPORTS. Marks a. Bard. strike out the names of these two defendants from the com- plaint, and to dismiss the action as to them, and his motion was granted with the addition that he pay one bill of costs to these two defendants. From the latter part of this order the plaintiff appeals. It was a matter of course if his motion was granted, that the plaintiff should pay the costs of the judgment to be entered against him in favor of these two defendants. He himself asked to discontinue the action as to them : he thus asked to separate them from the other defendants, and became subject to the costs that would follow from that separation. If their joining with the other defendants in making a defence would ordinarily have compelled them to share the fate of those defendants, the plaintiff's own motion released them from that position. His complaint was joint as to all, and the answer followed it and was joint. His motion severed these defendants, so that his complaint was no longer to be deemed as joining them with the other defendants, and it must (to do justice) be deemed also to have severed the answers of these defendants also. If this were not so, still the permission to discontinue as to the two defendants, was in the discretion of the court, and was evidently granted only on condition that they be paid their costs. If the plaintiff had not accepted this condition, he would have been non-suited for suing as part- ners those who were not partners. Judgment should be affirmed with costs. CLEEKE, J i} concurred. ROOSEVELT, J. Technically the judgment should have been, a dismissal of the complaint with costs ; with leave reserved to plaintiff to amend by striking out the two superfluous defendants on payment of their costs ; and in that case judg- ment to be rendered against the other defendants with costs. Then, in either event the plaintiff must have paid the costs of those two defendants. Under the present judgment he does no more. The plaintiff moved. He has no substantial ground of complaint, and not being injured, he cannot appeal. NEW-YOKK. 65 Lane a. Beam. LANE a. BEAM. Supreme Court, first District; General Term, November, 1854. AMENDMENT. CHANGING NATUKE OP ACTION. Plaintiff purposely commenced his action upon contract, with a view to obtain an order for publication and warrant of attachment. Having obtained this, he applied for leave to amend the summons and complaint, so as to found the action, not upon contract, but upon tort. Held, that the application was properly denied, at special term. Motion for leave to amend summons and complaint. The plaintiff commenced an action upon contract for goods sold, and after obtaining an attachment and order for publica- tion, applied for leave to amend his summons and complaint, so as to make the action "substantially the common law action of trover and conversion" of the goods. D. Evans, for plaintiff. W. S. Rowland, for defendant. MITCHELL, J. As this case was stated by the counsel for the plaintiff, and as may be conjectured from the affidavits, the plaintiff commenced his action as in contract, purposely and deliberately, that he might be sure not only of an attachment against the defendant as a non-resident, but also of being able to procure an order for publication against him, which he could not obtain if he proceeded for a tort. Having by this means procured the appearance of the defendant, he moved at special term to change his summons and complaint, so that they should not be on contract, but on tort, for converting the plaintiff's goods. The 173d section of the Code allows an amendment, by cor- recting a mistake in the name of a party, or a mistake in any other respect. But then there was no mistake there was a 66 ABBOTTS' PEACTICE REPORTS. Lane a. Beam. deliberate purpose in making the statement of the action as it is. That section, therefore, does not aid the plaintiff. The power of the court to amend proceedings before it, is a result of the control which it has over its process and plead- ings, and is not conferred by the Code. The legislature has steadily shown its desire that this power should be liberally exercised, and has never (it is believed) curtailed it. The court are disposed to conform to this exhibition of legislative will, and to allow any amendment that justice may require. Does justice call for this amendment ? The plaintiff has played his game with an object in view, and succeeded in that, and he should not be allowed now to seek another advan- tage inconsistent with his first successful scheme. The rights of the defendant, and of the sureties, who entered into bonds on the discharge of the attachment, would be materially changed by the proposed alteration. In this action on con- tract, no more could be recovered than the price for which the goods were sold in the action for the conversion, the value of the goods and damages for the conversion, might be recov- ered, the last being somewhat in the discretion of the jury, and the whole might exceed the price of the sale. It was said, that under the old system, the court allowed an ac etiam in a capias to be changed from covenant to assumpsit, and said the bail had no right to object to the amendment. (Blue v. Stout, 3 Cow. 354:.) The damages to be recovered, would be the same, whether the action were covenant or assumpsit, and so the bail would not be damaged by the change ; and the bail have no right to object to an amendment in the original suit, their time to object is when they are sued. Under the cir- cumstances, there is no ground for disturbing the decision at special term, refusing to allow the amendment. Order affirmed, with costs. NEW-YOKE. 67 Le Roy a. Lowber. LEROY a. LOWBEft. Supreine Court, First District General Term, November, 1854. REFORMATION OF AGREEMENT PKOPEE RELIEF. -Upon a dissolution of partnership Lowber offered that Le Roy should take all the assets, excepting certain machinery, upon conditions, that he would pay all the debts of the firm, and that whatever amount should be realized above $20,000 should belong to Lowber ; also promising to furnish a list of assets. This offer was accepted. Lowber subsequently delivered to Le Roy the promised list of assets, in which the condition of the partnership affairs being more unfavorable than he had supposed, he voluntarily included the machinery excepted in his original proposition. Held, at special term, upon application as to a court of equity to reform the agree- ment, so that it should vest the machinery in Le Roy, that his proper remedy lay in treating the transactions subsequent to his acceptance of Lowber's offer as a new and distinct agreement substituted for and superseding the original one. Held, by the general term, overruling this decision, that the proper relief was a decree that the exception in the original agreement reserving the machinery to Lowber was founded in mistake, and should be stricken out ; and that the agree- ment should be reformed accordingly. Appeal from a dismissal of complaint. This action was brought to have a certain agreement of dissolution of partnership between the plaintiff and the defend- ant, construed as if a certain list of assets were a part of it, or so reformed as to carry into effect the alleged intention of the parties to have the list of assets so considered ; also to have the defendant enjoined from enforcing a certain judgment recovered by him at law in the New York Superior Court against the plaintiff. The principal facts upon which the application for this equitable relief was granted were as follows : In July, 1845, Lowber was manufacturing and dealing in lead pipe, and entered into partnership with Jacob Le Roy and his son, Thomas Otis Le Roy, for the continuance of that business. Jacob Le Roy was special partner, and contributed $25,000 in cash. 68 ABBOTTS' PEACTICE REPORTS. Le Roy a. Lowber. Lowber was a general partner, and contributed $23,032 50, of which about $1200 was in cash, and the balance in notes* accounts, stocks, and certain machinery and fixtures. He also immediately drew out from the partnership funds above $8,000. In March or April, 1846, Lowber informed Jacob Le Roy that the partnership had become embarrassed, and solicited a further advance. Le Roy then made an examination into the accounts, for the first time, as appeared, expressed himself dissatisfied with the management of aifairs, refused to go on, and demanded a dissolution. Lowber then offered to pay the elder Le Roy $20,000 for his interest in the firm, and to secure the debts of the firm. This offer Le Roy accepted. But Lowber not having means to perform it, sent to him a letter dated April 4, 1846, proposing a dissolution upon terms, in substance, that Le Roy should take all the assets of the firm, not appertaining to the machinery, and pay the debts of the firm, among which were several claims upon the mill and engine used in the manufacturing ; and that defendant should take all machinery and appurte- nances then on hand, the arrangement to go into effect Monday, April 6 ; stipulating in a postscript that all amounts over and above $20,000 which might be realized by Le Roy should be paid over to Lowber. By the messenger who conveyed this letter to Le Roy, Lowber also sent a verbal message promising to furnish him with a schedule of assets which were to come to Le Roy under the proposed arrangement. Le Roy accepted this proposal. Upon the 5th of April, which was Sunday, Lowber, in com- pany with his brother, E. J. Lowber, and Smith, an employee of the firm, proceeded to make out a list of assets to go to plaintiff'. It then appeared that so far from realizing twenty thousand dollars, it was not probable that Le Roy could realize more than six or eight thousand, taking both debts and assets to be good ; provided the mill and engine employed in the manufacture should be reserved to Lowber as proposed by him. It was then determined upon, as the balance of evidence showed, with Lowber's consent, that the mill and engine should be added to the assets to be transferred to Le Roy. They were accordingly included in the list of assets, which wa& NEW-YORK. 69 Le Roy a Lowber. subsequently delivered to Le Roy ; and on Monday, April 6, Le Roy was placed in possession of the assets, the mill and engine being included. Thomas O. Le Roy and Smith then formed a partnership to continue the business, taking Lowber into their employ to manufacture for them. Their agreement with him treated the mill and engine as belonging to Lowber ; but they undertook to pay off the claims upon the machinery which had been assumed by Jacob Le Roy, they to be secured for their advances by a mortgage upon the machinery. They paid off the claims ; and Lowber not being able to repay them, they took the mill and engine. So that the claims were not paid by Jacob Le Roy directly, but out of the machinery. Lowber then sued Le Roy in the New York Superior Court for breach of his agreement of 4th April, to pay those claims. Le Roy offered the list of assets furnished to him by Lowber, in evidence to explain the agreement, and show that the machin- ery reserved to Lowber was not intended to include the mill and engine. But the court rejected the evidence, as no part of the agreement, and incompetent to vary or explain it, and ren- dered judgment for the then plaintiff, Lowber. Le Roy now commenced this action in the Supreme Court, praying a reformation of the agreement, and injunction against any steps to enforce the judgment of the Superior Court. A temporary injunction was granted, and testimony taken before Lucius Robinson, referee, and the cause was tried before Mitchell, J., at special term, in September, 1852. An opinion was rendered by Mr. Justice Mitchell, in which, after reviewing the evidence at length, he arrived at the fol- lowing conclusions : That it was the original agreement that plaintiff should pay the debts of the firm, including the claims upon the machinery referred to, and that defendant should take the mill and engine. That the subsequent transactions showed that it was after- wards independently agreed that plaintiff should have the mill and engine also ; that he transferred them to the firm of Le Roy & Smith ; that they sold them to defendant, he assum- ing to pay the claims to which the machinery was still subject ; that, as he had not means to do so, they advanced the funds, 70 ABBOTTS' PRACTICE REPORTS. Le Roy a. Lowber. taking the mortgage under which they subsequently took the property. That the list of assets and the transactions connected there- with should have been offered before the Superior Court as evidence of a new agreement, substituted for that originally made, and not by way of explanation of the original one. That the plaintiff's proper remedy \vas, by motion for a new trial before the Superior Court. That plaintiff was not entitled to have the agreement of the fourth of April reformed as desired, because it was not the real intent of that agreement that the mill and engine should be transferred to him. That the complaint must be dismissed and the injunction dis- solved. From this decision the plaintiffs appealed to the general term. Hiram Ketchum and C. Tracy, for plaintiff. O. C? Conor, for defendant. ROOSEVELT, J. The leading object of this suit is, to correct an alleged mistake in a certain agreement between Lowber and Le Roy, set forth in the complaint. Lowber, it seems, before the new Code, sued Le Roy for an alleged breach of the agree- ment, in the Superior Court, and the latter sought in that court and under the old system of practice, to reform the agreement by way of defence, which, as the law then stood, not being allowed, he now files an affirmative bill in equity for the sama purpose, praying also for a temporary, to be followed in the end by a perpetual injunction to stay all further proceedings at law in the action in the Superior Court. The controversy arises out of the dissolution of partnership ; Lowber claiming that Le Roy, by the agreement, was to have paid certain debts ; that he left them unpaid ; and that he, Lowber, was made to pay them, and is entitled, as a consequence, to be reimbursed. Whereas Le Roy insists that the property which went to make the payment, although Lowber's by the original letter of their agreement, was his, Le Roy's, by justice of the case, and by the true ultimate understanding of the parties. The articles of dissolution are in the form of letters : one NEW-YOKE. 71 Le Roy a. Lowber. from Lowber, containing his proposition to Le Roy ; and the other from Le Roy, containing his answer to Lowber, and both dated the 4th April (Saturday), 1846. Without reciting all the terms of settlement, it is sufficient to say, that under any interpretation, they were grossly unjust to Le Roy, and (himself being judge) exceedingly liberal to Lowber. Le Roy, who had put in most and taken out nothing, was in general to assume the debts, taking the assets except such as appertained to the machinery, while Lowber, who had put in least (and that in sundries instead of cash,) and already drawn nearly as much as he had advanced, was not only to be discharged from general liability, but to keep the machinery and its appurtenances for himself. " This arrangement," using the language of Lowber's letter, " to take effect on Monday the 6th instant, when all books and assets, will be given into your (Le Roy's) hands." Le Roy, it should be remembered, was not a general partner, but had put in the spe- cific sum of $25,000. The concern had been in operation about nine months, and Lowber, as he said, " deeply, most deeply regretted, that they should have made such losses in so early a stage of the partnership." He nevertheless, from motives which he, of course is estopped from saying were not bo?ia fide, on the same day, and to the same letter which contained his proposal, appended a postscript apprizing Le Roy, that "the arrangement was upon the express condition that all amounts over and above seventy thousand dollars, which might be realized out of the assets, &c., were to be paid to him, Lowber." This certainly was a pretty strong intimation, and coming from a general to a special partner, almost a guaranteed assurance, that while he, Lowber, was to lose nothing, the loss of his associate under the present arrange- ment, would and should be limited to five thousand dollars. Even under this assumption, it was a hard bargain, and one which Lowber had no right to impose upon his good-natured friend. Indeed, he appears to have soon became sensible of this himself, for on the very same day he writes another letter to Le Roy, in which he marks out for himself in the future, a course of labor and self-denial : " until I have made up (as he says) my share of the losses of Lowber and Le Roy, so as to 72 ABBOTTS' PRACTICE REPORTS. Le Roy a. Lowber. make good the twenty-five thousand dollars invested by yourself." The arrangement thus explained by Lowber, although insti- tuted on Saturday the 4th, was not to " take effect," it will be recollected, until Monday the 6th. It was inchoate, and so expressly agreed to be, during the interval of the Sab- bath. That interval, it appears, the conscience of some of the parties not being perfectly at ease, was devoted, and in this view very properly devoted to self-examination; which resulted in the discovery that a great mistake, and perhaps a great wrong, had been committed, and in a declaration by Lowber, that before the arrangement took effect, it should be rectified and redressed. The mistake was one of fact. The assets, instead of being as he, Lowber, had given Le Roy to understand, " over and above twenty thousand dollars" without the machinery, were found, after exhausting a large portion of the Sabbath in their detailed investigation, at their highest valuation to be under and below fifteen thousand, with the machinery. Here then, while the matter was still in fieri, before its consummation, was a discovered undisputed error of over $10,000. To rectify it, required, if not a reformation of the party, at least, a refor- mation of the agreement. The machinery, it was obvious, consistently with any decent regard to fairness or even honesty, could not under those circumstances, be taken by Lowber, and the stipulation to that effect must be stricken out or abandoned. Accordingly on the following day, the Monday on which the assets were to be given into Le Roy's hands, a schedule was furnished on behalf of Lowber, consisting of twelve separate items of property on hand, and among them the " machinery (mill and engine) $5,300." Le Roy, it seems, was the owner of the premises ; the delivery therefore of some of the articles, accompanied by the delivery of the schedule, was a delivery of the whole ; and in my judgment, it was clearly, at the time, intended so to be, as well by Lowber as Le Roy. The opposite ground assumed by him a year afterwards, was merely an afterthought. And although it may serve to cancel on his part, all claims to credit for an honest amend- ment, it cannot, without the grossest injustice, deprive Le Roy NEW-YORK. 73 Le Roy a. Lowber. of the small modification, which Lowber's previous repentance, (afterwards repented of) had actually conceded. The agree- ment, it seems to me, was actually reformed by the parties themselves in its execution. It " took effect," not as originally written, but as reformed. It was either a new agreement superseding and incorporating in part only, the letter of the previous day, and made wholly on the day of the consumma- tion and delivery ; or it was the correction of a mistake of fact in the previous agreement, and related back to the day of its inception. As a new substituted agreement, it was admis- sible, (although partly in parol) and was a perfect defence at law to the action in the Superior Court. That court, however, viewed it in a different light, and excluded the evidence as an attempt to vary the legal import of a written instrument by parol proof, or to reform a contract, on the ground of mistake, which as the practice then stood, could only be done by a direct bill in equity. The decision therefore placed in effect, as it was on the ground of a want of jurisdiction adapted to the relief sought, cannot now be invoked, as an estoppel, with- out manifest injustice. And on the whole merits of the case developed as they have been in the present suit, the judge at special term was himself of the opinion, in which we fully concur, that Lowber, after the discovery and acknowledgment of his mistake, had no just claim to the machinery ; that he had indubitably and properly relinquished it to Le Roy ; and that in doing so, instead of making a gift, he had only done what a court of equity would then have compelled him to do, and what, having done it voluntarily, a court of equity will now compel him to ratify, and not permit him to recall. Instead therefore of dismissing the plaintiff's complaint, a decree should be entered, declaring that the provision con- tained in the agreement of dissolution, that Lowber should take the machinery and its appurtenances, was founded in mistake, and should be stricken out, and the agreement reformed accordingly, and that Lowber be perpetually enjoined from taking any further steps in this action at law referred to in the pleadings, and that he pay the costs of this suit, including the costs of the appeal. MITCHELL, J. I remain of the opinion expressed at the special term. 74 ABBOTTS' PRACTICE REPORTS. Westervelt a. Frost. WESTERVELT a. FROST. Supreme Court, First District ; General Term, November, 1854. INDEMNITY BOND. VALIDITY. A bond of indemnity given to the sheriff, upon execution, is not invalidated by the fact that it was given after levy and sale. Motion for a new trial. Jacob Frost having recovered a judgment against J. W. Post, and one Crawford, his attorney issued execution thereon, to Westervelt, then sheriff. The sheriff levied the execution upon property appearing to belong to the execution debtors, but claimed by S. P. Post, and sold it. Before paying over the proceeds, ke required a bond of indemnity, which was given by the present defendants, Frost, the execution creditor, and Asa Stebbins. It was in the usual form, in the penalty of one thousand dollars, and was ante-dated, appearing to have been given before the sale. S. P. Post having recovered judgment for twelve hundred dollars and upwards, against sheriff Westervelt, in an action instituted in the Superior Court, for the taking of the property in question, that officer brought the present suit upon the indemnity bond. The cause was tried before Mitchell, J., and a jury, 15 June, 1853, and a verdict rendered for the plaintiff, for one thousand dollars. A motion on the part of the defendants, for a new trial, was denied, and judgment rendered for plaintiff. The defendants appealed. Lewis and Brown for defendants, contended that the bond was void, having been taken by the sheriff after, and not before he had committed the acts complained of. It was taken by color and not by virtue of his office. A. J. Vanderpool, for plaintiff. Defendants as obligors, are estopped from denying the facts recited in the instrument itself, and nothing but fraud or an illegal purpose can be NEW-YORK. 75 Westervelt a. Frost. shown. Hurlstone on Bonds, 32. Bowman v. Taylor, 2 Ad. & E. 278. Lee v. Clark, l.Hill, 65. KOOSEVELT, J. Frost, it appears, was a judgment creditor. His debtors, although not in possession, were supposed by him to be the owners of certain goods. Another person, however, of the name of Post, claimed the ownership, and the sheriff accordingly before completing his execution, demanded of Frost a bond of indemnity, which was given. Post sued the sheriff for trespass in making a levy on the goods, and recov- ered a judgment for $1228 04, which the sheriff had to pay, besides $268 63, the costs of his defence. He now brings this- action on the bond of indemnity, to reimburse his loss. The defendants insist that the bonds under the circumstan- ces, was unlawfully exacted. The goods it seems had actually been sold by the sheriff before he demanded the bond ; but he refused (having received notice of the adverse claim) to pay over the proceeds without the bond of indemnity. Frost gave the indemnity, and demanded and received the avails of the sale, with full knowledge of the claim of Post. He thus not only ratified, but insisted on the sale ; and having adopted the act of the sheriff which it is not pretended was other than T)on()L fide, and his own attorney in the execution having even attended the sale, he was both legally and morally bound to abide by the consequences of a levy and sale made with his approbation and for his benefit. He should therefore be estopped from denying either the date of the bond which is before the sale, or the recitals in it, which are in conformity with the right of the case. There is hardship either way. It was a great seeming folly on the one side to incur a liability of $1000, on a judgment of less than $100, and great seeming wrong on the other, to subject a public officer, acting in good faith, to the undivided loss of fifteen hundred dollars, for a commission perhaps not exceeding fifteen. On the whole, the verdict for $1000 in' favor of the sheriff, (the extent of the penalty of the bond) would seem to do no more than justice to that officer. The sale was no doubt a most unfortunate one. Such was the damaged appearance of the 76 ABBOTTS' PKACTICE REPORTS. Brady a. Bissell. goods in consequence of the fire, that although nearly one hundred persons attended the auction, scarcely one tenth the actual value of the goods was realized. Sheriff's sales, however, are never expected to come up to the standard of private bar- gains. The law requires them to be made by public auction, and of course assumes that the articles levied on, are to be disposed of at auction prices. Judgment affirmed, with costs. b BRADY a. BISSELL. New- York Superior Court ; Special Term, November, 1854. ARKEST. VERIFIED COMPLAINT. Where the summons and complaint have been served, and were before the judge upon an application for an order of arrest, based upon affidavit, the plaintiff is entitled to refer to the complaint, if verified, in support of the order, where the affidavit proves defective. Certain allegations of fraud inserted in a complaint, sustained. Allegations of fraud in a complaint upon contract, do not change the substantial nature of the cause of action, nor render it non-assignable. The facts sufficiently appear in the opinion of the court. J. Livingston^ for plaintiff. G. Schufeldt) for defendant. HOFFMAN, J. An order of arrest was granted on the 6th of October, 1854, reciting that it appeared by affidavit that a sufficient cause of action existed, and that the case was one of those mentioned in the 179th section of the Code. The defendant was ordered to be held to bail in $600. The affida- vit was made by one Charles Jackson, stating that he had been a soldier in the Mexican war, had received a wound, and became entitled to a pension ; that the defendant had adver- tised he was an agent or attorney to collect pensions, and that at the defendant's solicitation, he (Jackson) had employed him to prepare the papers to obtain it, for which the defendant was to receive $100 ; that defendant forwarded such papers to Washington. That on the 3d of June, 1854, defendant, by NEW-YORK. 77 Brady a. Bissell. false representations of the difficulties in getting the pension, and the doubtfulness of the plaintiff's claim, obtained from him a paper which was read to him by defendant, and purported to be an assignment of all arrears of pension to defendant, for which the sum of $200 was paid. That on the same day. and within an hour after such interview, Vanburgh Livingston, pension agent of the United States, paid to one Simeon Ward, who purported to be the attorney of plaintiff, the sum of $559 73, the arrears of pension due the plaintiff. That the plaintiff never authorized Ward to receive such pension ; but if he had any letter of attorney, the signature must have been obtained by fraud, and by Bissell's reading to him a different paper. It is then stated, that previous to the transaction with defendant on the 3d of June, the latter had obtained positive information that the pension had been allowed ; that Bissell conspired with Ward to cheat him, and that defendant, through Ward, received the 559 73, and converted the same to his own use. This affi- davit was sworn to on the 4th of October, and the order of arrest was dated the 6th. The complaint was sworn to on the 29th of September. Although it appears from the sheriff's cer- tificate that the summons and complaint were not served by him with the order of arrest and affidavit^et it is admitted that such service had been made on the 7th of October. It is now admitted that the summons and complaint were before the judge when he granted the order of arrest. It is objected, that on the affidavit it does not appear that the plaintiff has any cause of action ; and that the fact of the com- plaint being before the judge, cannot make a difference. It is stated in the complaint that Jackson, the pensioner, had assigned all his interest to him, the plaintiff, and the complaint demands judgment for the sum of $559 73, and interest; but on the affidavit that does not appear. The 181st section provides that the arrest may be ordered in the cases in which it is at all allowed, upon the affidavit of the plaintiff, or of any other person, showing a sufficient cause of action to exist. It is reasonable to construe this as meaning a cause of action to exist in the plaintiff. By section 183, the order may be made to accompany the summons, or at any time afterwards, before judgment ; so that the arrest would be void if made without 78 ABBOTTS' PRACTICE REPOETS. Brady a. Bissell. service of a summons at the time, unless the suit had been commenced by a service previously. By section 184, the affidavit and order of arrest shall be delivered to the. sheriff, who shall deliver a copy to the defendant. If the defendant had not been served with the complaint, he would have been arrested upon an affidavit which did not show any title to sue him, in the plaintiff. But the complaint was served on the 29th of September previous, and is now shown to have been before the Judge, although not referred to in the order, as one ground of its being granted. A sworn complaint is equivalent to an affidavit. In a late case, where the affidavit was in one point defective, but the defect was supplied by the complaint, I granted the order reciting that it appeared by affidavit, and the complaint duly sworn to, that a cause of action existed, &c. I am of opinion that where the summons and complaint has been served, and is laid before the judge, upon an application for an arrest upon an affidavit, the plaintiff is entitled to refer to it, in order to sustain the order where the affidavit itself is defective. In other words, both documents may be treated as forming the ground of the order, although but one of them is mentioned. Upon the merits, if this difficulty is obviated, I should sustain the order of arrest. In the first place, the affidavit of Simeon Ward, produced by the defendant, states that Jackson exe- cuted, on the 30th May, nominally to him, but in fact for Manuel de Puga, a power of attorney and sale and assignment of all arrears of pension due on any pension certificate that might have been issued to Jackson. Under this, he states he received from Livingston on the 3d of June, 1854, $559 48, as arrears of pension on Jackson's pension certificate up to the 4th of March, 1854. And yet it appears that on the 3d of June, 1854, he swore that he had no interest in the money to be received, either by any pledge, sale, assignment or transfer, and that he did not know or believe that the same had been so disposed of to any persons whatever. Again, he says, he is informed and believes, that the purchase, sale and assign- ment of the said Jackson's pension arrearages were made by said defendant on account of said Manuel de Puga. So Bissell says that Jackson offered to sell his claim for $200, to NEW-YORK. T9 The Chemical Bank a. The Mayor of New- York. be paid by De Puga, through defendant, as his agent, and for money paid and services rendered by the defendant as agent, in or about his (Jackson's) business ; and said Jackson did then and there sell and assign in part to De Puga, although nomi- nally to ward all such arrears of pension, and the proposition was by the defendant, as such agent, agreed to, and a contract between the parties then and there agreed. It is remarkable that Bissell no where explicitly denies having read some paper to Jackson, in his office, and getting him to sign it, purporting to transfer his pension claim ; nor is there any explicit or intel- ligible denial of his having then some information that the pension had been allowed. I think there is enough in the case to sustain the arrest. The frame of the complaint, and of the order, is an employment of the defendant as agent to collect the pension, and fraudulent representations and acts by him, through which the pensioner was induced to transfer it to him for a small amount, and hence that the original cause of action is unaffected by any such transfer, and the defendant must be adjudged to pay the amount. If the complaint had stated the employment and reception of the money merely, and the answer had set up an assignment or transfer, no reply would have been allowed to state facts to set it aside. I see no objec- tion to make allegations to that effect in the complaint, and they will not change the real nature of the action as one upon contract. This view answers the objection that the claim is not assignable, and also the motion to amend the complaint. Both motions are denied, with five dollars costs in each motion. THE CHEMICAL BANK a. THE MAYOR OF NEW- YORK. Supreme Court, First District ; Special Term, November, 1854. ILLEGAL TAXATION. DENIAL OF INJUNCTION. An injunction to restrain the collection of a tax illegally assessed, cannot be granted. The case of Wilson a. The Mayor, (ante p. 4,) cited and approved. Queer e ; whether an action for an injunction would not be the most convenient mode of calling in question the legality of a tax. Application for an injunction. 80 ABBOTTS' PRACTICE REPORTS. The Chemical Bank a. The Mayor of New-York. The Chemical Bank applied for an injunction to restrain the collection of a portion of a tax imposed npon their capital. S. W. fioosevelt, for plaintiffs. B. J. Dillon, for defendant. MITCHELL, J. The complaint shows, that the bank has sur- plus funds beyond its capital, amounting to $426,000, of which nearly $180,000 consists of investments in U. S. stocks ; that these facts were duly established before the commissioner of taxes and the supervisor of the county, but were disregarded by them, and that the bank was taxed on the U. S. stocks as well as on its other surplus funds. The complaint then asks for leave to pay the rest of the tax, and that an injunction be granted to restrain the defendants from collecting the tax assessed on the U. S. stocks. There can be no need of an order of the court for the bank to pay or tender such tax as it admits to be due, and if more be then unlawfully collected, the bank will have its remedy for that excess. The other remedy, by injunction, the defendant's counsel insist cannot be granted. Judge "Woodruff, of the Common Pleas, has, in an elaborate opinion, ably explained the deci- sions on the subject. (Wilson v. Mayor of N. Y.) The cases of Meserole v. Brooklyn, 26 Wend. 132, (reversing 8 Paige, 198 ;) Van Doren v. Mayor of K Y., 9 Paige, 388 ; Living- ston v. Hollenbeck, 4 Barb. S. C. S., 10 ; and Bowker v. Brooklyn, 7 How. Pr. JR. 198, fully sustain the defendant's counsel, as the law stood before the Code was adopted ; and the last case adopts the same rule under the Code. Justice Strong, who decided the last case, sums up his reasoning by saying, in substance, that a court of law only provides a redress for a wrong after it is committed : a court of equity grants its preventive relief before the wrong is done, but under certain limits, which exclude a case like this ; that a court, in which the functions of both are joined, (as is the case now, under the Code,) cannot extend its power beyond what was formerly possessed by one court or the other previous to the junction of the powers of both courts in one. NEW-YOKE. 81 The Chemical Bank a.. The Mayor of New- York. The Code allows an injunction when it appears by the com- plaint that the plaintiff is entitled to the relief demanded, and snch relief or part of it, consists in restraining the commission or continuation of an act, the commission or continuation of which during the litigation, would produce injury to the plaintiffs. (Code, 219.) It is not when the plaintiff is entitled to any relief, but to the relief demanded. If, by the law, as it stood before, the plaintiff had no right to the relief sought in a suit in his own name, he has none now ; : as the section does not profess to extend the relief which the plaintiff might claim in such a suit. If the only final relief which he demands is a judgment for an injunction, then he must show that by the law as it stood before, he was entitled to that relief. If the Code allowed the injunction wherever the plaintiff was entitled to any relief, either in his own name, or as relator in the name of the people ; then if a mandamus or certiorari would lie, the preliminary injunction might be allowable, but such is not its language. If the plaintiff will have a right of action against the col- lector or supervisors, after the tax shall be collected, that does not entitle him to the injunction, as in that case his cause of action will not accrue until the money shall be collected. At the same time, it is very evident that there could be no simpler mode of settling such questions than by an action for an injunction. It brings up the precise merits of the case, as applicable to the individual aggressor alone, and does not involve in the suit the other tax-payers ; it is subject to the equitable control of the court, and in that has a great advan- tage over an action brought for a trespass, when in some cases the whole assessment might be declared void, and he who was liable to pay a part be discharged from paying anything on account of an informality in the proceedings. But the strict law seems to favor the objection made by the defendants, and the motion for an injunction is denied, without costs. 82 ABBOTTS' PRACTICE REPORTS. Pinckney a. Wallace. PINCKNEY a. WALLACE. New York Common Pleas ; General Term, November ', 1854. FORECLOSURE OF MORTGAGE. POWERS OF SURVIVING PARTNER. MISJOINDER OF DEFENDANTS. A surviving partner has the power to assign any chose in action, e. g. a bond and mortgage belonging to the late firm. A defendant properly joined cannot demur to the complaint for the misjoinder of another defendant. Demurrer to" complaint. The facts sufficiently appear in the opinion of the court. We are not informed of the names of the respective counsel. INGRAHAM, J. From the complaint it appears that the action is to foreclose a mortgage given to secure a bond payable to Pierce and Peck as co-partners ; that Peck is dead, and Pierce, as surviving partner, assigned the claim to Pinckney. The defendant demurs to the complaint for two reasons. First For defect of parties in omitting the representatives of Peck. Second. For error in making Mary Wallace a .party without showing any right to make her a party. I. The defect of parties can only be taken advantage of by demurrer when it appears on the face of the complaint. In this case no such defect appears. The bond is averred to be payable to Pierce and Peck as co-partners, and upon the death of either, the title to the bond vests in the surviving partner. He has a right to collect all debts due to the firm, and to sell the property. His responsibility to the representa- tives of the deceased partner only exists after the partnership affairs are settled. Having the right to collect and dispose of the property, he has the power for that purpose of assigning any chose in action belonging to the estate. There is nothing on the face of the complaint to warrant the NEW-YORK. 83 Tuffls a. Braisted. conclusion that the representatives of Peck should be made parties to this action, and the demurrer cannot be sustained on that ground. If in fact this bond and mortgage did not belong to the partnership, such fact may be shown upon the trial, and the plaintiff must then fail ; but no such fact appears on the face of the complaint. II. As to the second cause of demurrer, it is sufficient to say that a misjoinder of defendants is no ground of demurrer. The complaint, however, must show that any person named as defendant has, or claims, an interest in the matter in contro- versy, or is a necessary party to a complete determination of the questions involved in it. It is not averred that Mary Wallace is the wife of William Wallace. If it were so, that would show sufficient cause for making her a party. Even without that averment, the alle- gation that she has or claims an interest in the mortgaged premises, is sufficient to warrant making her a defendant. She is not under any necessity to appear, as no claim is made against her, and she can incur no liability by her non-appearance. There would be much more cause of complaint if she had been omitted, than the defendant can have to her being made a party. Judgment for plaintiff on demurrer. TUFFTS a. BRAISTED. New York Superior Court ; General Term, November, 1854. JUDGMENT. ACTION BY ASSIGNEE. Section 71 of the Code, does not prohibit a bona fide assignee of a judgment from bringing an action upon it, without first obtaining leave of the court. Appeal from an order dismissing summons and complaint. 'The plaintiff, as assignee, brought an action upon a judg- ment recovered in this court, April 5, 1852, by A. D. Sage, against Braisted and Averill, the defendants. The defendants 84: ABBOTTS' PRACTICE REPORTS. TufTts a. Braisted. moved to dismiss the summons and complaint upon the ground that the court had not granted leave to the plaintiff to bring the action, as required by section 71 of the Code. The motion was granted, and the plaintiff appealed to the general term. BreckenridgC) for plaintiff. H. W. Genet, for defendants. OAKLEY, C. J. Prior to the Code, a plaintiff, in a judg- ment, could bring an action upon it, as a matter of course, and of strict right. An assignee of a judgment could do the same, only he was obliged to sue in the name of the assignor. The only way in which a judgment-debtor could arrest such a pro- ceeding, was by paying the judgment. The Code not only allows, but requires the assignee of any demand, to prosecute any action that may be brought upon it, in his own name, (111.) Omitting what is said of judgments in justices' courts, 71 declares that " no action shall be brought upon a judgment ren- dered in any court of this State, between the same parties, without leave of the court, on good cause shown, on notice to the adverse party." Whether the order appealed from is erro- neous, depends upon the construction that should be put on the words " between the same parties." We think the natural meaning of the words is, that no party in whose favor a judgment is rendered, shall bring an action upon it against those against whom it is rendered, without leave of the court. The Code did not intend to prohibit the bringing of an action on a judgment by any and every person, without the express permission of the court. If it had, it would have omitted the words " between the same parties." This is not nominally, nor in substance, an action between the same parties. The plaintiff was not interested in, nor privy to, the recovery of the judgment. He has become the owner of it, by purchase and assignment. We suppose the object of the statute was to prohibit suing upon a judgment, when there could be no motive for it, except to accumulate costs. But the reason of the statute, if that was the sole reason for it, would seem to apply with as much force to the assignee as to the assignor of a judgment. NEW-YOKE. 85 Mason a. Whitely. We are not aware, however, of any complaints, that suits have brought, with such motives, at the instance of the assignees of judgments. The advantages to an assignee, in recovering a judgment in his own name, are obvious. Such a recovery furnishes record-evidence, that no equities existed between the assignor and the judgment-debtor, at the time of the assignment, which entitle the latter to exemption from praying the debt. It puts it out of the power of the assignor to discharge the judgment, or affect the rights or remedies, of his assignee. The latter is not subjected to the necessity of relying on the uncertainty of human memory, to prove notice to the judgment-debtors of the fact of the assignment, nor of the time when such notice was given. We do not feel at liberty to extend, by construction under such circumstances, the common and natural meaning of the words, " between the same parties." As the Code only prohibits an action between such parties, we do not feel authorized to hold that parties, not prohibited by that section from bringing an action, shall not bring one. Under this view of that section of the Code, the order appealed from must be reversed, but without costs. MASON a. WHITELY. New York Superior Court ; Special Term, December, 1854. AMENDMENT OF COMPLAINT. NEW COUNTS. On amending a complaint when it is done under 172 of the Code, as a matter of course and of right, a plaintiff may add a new cause of action. The only restrictions imposed on a plaintiff are, that he shall not amend for the pur- poses of delay, nor to prevent a trial at a term for which the action is or may be noticed to be tried ; and that the cause of action added be one that may properly be united with the one contained in the original complaint. Motion to strike out an amended complaint. The original complaint in this action was by husband and wife, for an assault and battery, alleged to have been com- mitted by defendant upon the wife ; and was drawn substantially in the common form. The defendant answered without await- ing the expiration of the twenty days, making a general denial. Subsequently, and within twenty days from the service of the original complaint, the plaintiffs served an amended com- 86 ABBOTTS' PRACTICE KEPOKTS. Mason a. Whitely. plaint. The amendment consisted in the addition of a second count, setting forth that at the time and place of the alleged assault and battery averred in the original complaint, and repeated in the amended one, the defendant also unlawfully restrained the female plaintiff of her liberty, &c. The defendant moved at special term before the Ch. Justice,, to strike out the amended complaint, upon the ground that the amendment amounted to the addition of a new and distinct cause of action. B. Skaats, in support of the motion, cited Hollister a. Living- ston, 9 Row. Pr. B. 140. B. V. Abbott, in opposition. It has been understood in this court, that the plaintiff may thus amend, as of course. (Penny v. Van Cleef, 1 Hall, 165. Magrath v. Van Wyck, 2 Sandf. 651. Jeroliman v. Cohen, 1 Duer, 629.) This practice 'is upon the whole supported by the practice of the Supreme Court, as adopted since the Code. 1 Mon. Pr. 2 ed. 371. Getty v. Hudson River R. R. Co. 6 How. Pr. R. 269. OAKLEY, CH. J. The complaint was amended under 172 of the Code. The motion is made on the ground, that under that section a plaintiff cannot amend, by adding a new and distinct cause of action. Thence is no such restriction imposed by that section of the Code. The only limitation upon the right to amend, on the nature of the amendments to be made is, that it shall not be done for the purpose of delay, nor under such circumstances as to prevent a trial at a " term for which the cause is, or may, be noticed." Neither of these objections are alleged to exist. Under the rules and practice of the courts, as they existed prior to the Code, a party, on amending as a matter of course, could add new counts or pleas. Supreme Court. Rules of 1829. Nos. 20 and 21. Superior Court, Rules of 1834. .No. 33. New York Com. Pleas. Rules of 1834. Nos. 28 and 29. The Code allows, on an amendment made under 172, the insertion of any new causes of action that can properly be- united in a complaint. The motion must be denied. (J)uEB, CAMPBELL and BOSWOKTH, J. J., concurred.) NEW-YORK. 8T Dwindle a. Howland. DWINELLE a. HOWLAND. Supreme Court Circuit, New York County ; December, 1854. TESTIMONY TAKEN UPON COMMISSION. PROPER MODE OF RETURN. The power to issue a commission to examine witnesses abroad, is an innovation upon the common law, and should be strictly exercised. Where a commission is returned by an agent, his affidavit, as prescribed by statute, that he received it from the hands of the commissioners, and that it has not been opened or altered since he received it, is indispensable, unless waived by consent. A commission returned by express and unaccompanied by such affidavit, held, inad- missible ; although so returned pursuant to the order awarding the commission. This was a ruling at circuit, rejecting certain evidence. The plaintiff, ou the 22d of December, 1853, applied to the special term of this court, for leave to issue a commission in this action on the part of the plaintiff, to be directed to certain commissioners in Sun Francisco in California, authorizing them to examine on oath upon interrogatories and cross inter- rogatories, certain witnesses on behalf of the plaintiff, residing in California. The court made an order awarding the com- mission. This order provided that the commission and the return thereto when taken, might be transmitted either by mail, or ~by either of the Express Companies doing business between New York and San Francisco, and that the return to such commission, be directed to Richard B. Connolly, clerk of the City and County of New York, at the City of New York. The commission was not returned by mail, but had an endorsement upon it, in the following words : " Deposited in the letter bag of Adams & Co. Express, at San Francisco, this 31st of May, 1854, by me, " B. F. VOORHEES, Commissioner." On the trial, the plaintiff offered to read in evidence certain depositions annexed to the commission. The defendants objected to the reading of the depositions in evidence, on the ground that there was no affidavit of any agent, to whom the commission and return were delivered in San Francisco, showing that the agent received the commission and return from the commissioners, and that tlie same had not 88 ABBOTTS' PRACTICE EEPORTS. Dwindle a. Rowland. been opened or altered, since he so received it and because it did not appear how, or in what manner the commission and return had been transmitted from California to the clerk of this court in New York. The plaintiff, for the purpose of obviating the objection, offered to prove by a witness, that the uniform course of business on the part of Adams & Co., and all other Express Companies doing business between San Francisco and New York, is, that letters are deposited at San Francisco, by the parties sending them, in the letter bags of the Express Com- panies ; that the letters thus deposited are taken care of by the office agents at San Francisco, and that when the steamers are ready to sail, the letter bag is closed, and put in charge of a messenger, not one of the office agents who receives letters ; that such messenger generally accompanies the bags contain- ing the letters to New York, but some times delivers them to another messenger at Panama or Aspinwall ; that the bags are brought to the office of Adams & Co., in New York, when the duty of the messenger is at an end ; that then the uniform course of business is, that some other agent or clerk of the Express Company, delivers the letters to the persons to whom they are addressed ; that the firm of Adams & Co., is composed of three persons, one residing in San Francisco, one in New York, and one in Boston, and that by the uniform course of business, neither of the partners attend to the recep- tion or delivery of letters sent by their Express. The defend- ants objected to the testimony, and the judge sustained the objection, and excluded it, and held that the depositions could not be read in evidence. The plaintiff was permitted to withdraw a juror. The reasons for rejecting the evidence were afterwards reduced to writing by Mr. Justice Clerke. C. P. JKirTdand, for plaintiff. N. Chase, for defendants. CLERKE, J. I. At common law, no commission to examine witnesses abroad on interrogatories could issue without consent ; although a court of equity could, in aid of an action in a common law-court, compel an obstinate party to consent. NEW-YOKE. 89 Dwinelle a. Rowland. In England, the common law-courts had no general power to issue commissions, until the Act passed as recently as the reign of William IV. (1 W. IV., C. 22). Our courts have possessed this power for more than sixty- years ; but, it was always considered an innovation, which should be exactly dealt with, as a departure from a mode of presenting evidence, which has ever been justly considered one of the best safeguards in the trial of facts. The presence of the witness at the trial, and his oral examin- ation before the jury, is, under our system, a favorite and almost indispensable requisite ; and, among numerous other usages, distinguishes the common from the civil law. Any statute encroaching upon this usage, like any other in deroga- tion of the practice of the common law, must be strictly observed. IL The Rev. Statutes (2 v. 394) prescribe only two methods of returning a commission : either 1, by depositing it in the nearest post-office ; or 2, returning it by an agent of the party who has sued out the order or writ, according to the direction made by the judge or court no other mode is contemplated. In this case, it was provided that the commission might be returned either by mail, or by an agent, an express company. Section 25 of the statute provides, that, if the packet be deliv- ered to an agent, he, on delivering it to the clerk or judge, shall make an affidavit, that he received the same from the hands of one of the commissioners, and that it has not been opened or altered since he so received it. Indeed, the whole article is very exact and minute in its precautions to prevent abuse, and to insure the genuineness of the evidence. A rigorous com- pliance with its provisions was evidently intended, particularly in regard to the return of the commission. The affidavit, that it has not been opened or altered, is indispensable, unless expressly dispensed with by the written consent of the adverse party. It is no answer to say, that, in this case, after the order was so made at special term, allowing the commission, and directing the mode in which it should be returned, both parties signed a similar direction in the body of the commission. At the most, the adverse party, in doing this, consented to the appointment of the agent designated by the party suing it out ; 90 ABBOTTS' PEACTICE REPORTS. In the Application of Clark. it was no waiver of the provisions of the law requiring full proof of the authenticity of the evidence. Nor is it any answer to say, that according to the practice of the express companies this provision could not be complied with, inasmuch as no one person employed in any of those companies accom- panied the express the whole route. If the party suing out the commission knew this, he ought to have communicated it to the other party, if he thought this mode of transmission was preferable to the mail ; if the other party refused to dispense with the affidavit verifying the return, the only course left was, to have the return made by mail. III. It does not appear that anything was suggested to the court, or to any of the parties, that a compliance with the statute was not practicable. At all events, the court cannot dispense with this requirement, without consent. The depositions cannot be read. IN THE APPLICATION OF CLARK. Supreme Court Circuit, Duchess County, December, 1854. NATURALIZATION DUTIES OF THE COURT. The powers conferred by the General Government upon the State Courts to admit aliens to citizenship, cannot be delegated to the clerks of those courts. They must be exercised by the courts themselves, upon a judicial examination of each case. Application for admission to citizenship. The facts sufficiently appear in the opinion of the court. DEAN, J. The petitioner, a native of Scotland, applied to the clerk of this court for admission as a citizen. A number of other aliens made a like application. The clerk was pro- ceeding to administer the formal oath to the witnesses of the respective applicants when the subject was brought to my notice, and on inquiry I learned that the practice had, for many years, been for the clerk to receive and pass upon all applications for naturalization, and grant certificates without NEW-YORK. 91 In the Application of Clark. consulting the court, and that the proof on which aliens were admitted to citizenship, did not ordinarily meet any one of the requirements of the statute. On this state of facts I deemed it my duty to forbid the clerk from entertaining any applica- tions of this nature, directing that all should be made to the court. The application was then made to the court, and on examination I found that neither Clark, or any one of the other candidates for citizenship, could furnish proof of con- tinuous residence within the United States, to exceed two or three years, and that each of the applicants was unprepared with any proof as to his ^conduct or character, during even that brief period. As this decision must change the practice in naturalization cases in this court, and affect it in others, it is due to the importance of the subject, that the reasons on which it is founded should be given. There are probably no laws of a public character so imper- fectly understood and so badly administered as those for the naturalization of foreigners. Among the powers which were by the States delegated to Congress was the one " to establish a uniform rule of naturalization." This power was exercised the year after the formation of the government by an act approved by Washington, March 26, 1790. Again in 1795 and in 1798, in an act approved by President Adams. All these acts were repealed in 1802, during the presidency of Jefferson, when the act was passed, which, though it has often been modified in unimportant particulars, and in a few instances materially changed, is the one now in force, and under which the courts derive their jurisdiction to act in the premises. One reason why these laws are so imperfectly understood and so badly administered, is, that the statutes of the United States have little application to the affairs of the States, and the best lawyers of the several States are usually ignorant of their provisions. By the laws to establish a uniform rule of natu- ralization, any court in the State possessing common law jurisdiction, a seal and a clerk, can exercise the powers of admitting aliens to citizenship. The judges of these State courts, ordinarily familiar only with the laws of their own State, have their time occupied by attending to what they regard as their judicial duties, and permit, if they do not order, 92 ABBOTTS' ^PRACTICE REPORTS. In the Application of Clark. applications for naturalization to be made to the clerk, whose knowledge of the laws is derived from the printed blanks which he fills up and signs, on receiving his fees. By this practice, which, on inquiry, I find is general, if not universal, certificates of citizenship are issued indiscriminately and ille- gally, without a compliance on the part of the alien with any of the requirements of the statutes, except taking the oath of allegiance. The first section of the act of 1802, to which I have referred, contains the following provision : " Any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise : " 1st. That he shall have declared, on oath or affirmation, before the supreme, superior, district, or circuit court of some one of the States, or of the territorial districts of the United States, or a circuit or district court of the United States, three years, (this, by amendment, is now two years,) at least before his admission, that it was, bonafide, his intention to become a citizen of the United States, and to renounce forever all alle- giance and fidelity to any foreign prince, potentate, state, or sovereignty whatever, and particularly, by name, the prince, potentate, state, or sovereignty whereof such alien may, at the time, be a citizen or subject. " 2dly. That he shall, at the time of his application to be admitted, declare, on oath or affirmation, before some one of the courts aforesaid, that he will support the constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whatever, and particu- larly, by name, the prince, potentate, state, or sovereignty whereof he was before a citizen or subject ; which proceed- ings, shall be recorded by the clerk of the court. " 3dly. That the court admitting such alien shall be satisfied that he has resided within the United States five years at least, and within the State or Territory where such court is at the time held, one year at least ; and it shall further appear to their satisfaction, that during that time he has behaved as a man of a good moral character, attached to the principles of the NEW-YORK. 93 In the Application of Clark. constitution of the United States, and well-disposed to the good order and happiness of the same : Provided, That the oath of the applicant shall, in no case, be allowed to prove his residence." It will be seen that the court, and not the clerk of the court ? is to admit the alien. And that, as the court, before admitting him, is to be satisfied of certain facts, it follows that the powers conferred upon the courts are judicial and not ministerial or clerical, and consequently that these powers cannot be dele- gated to the clerks, but must be exercised by the court, and their exercise requires an examination into each case sufficient to satisfy the court of the following facts : 1. Five years continuous residence of the applicant within the United States, and one year of like residence within the State or territory where the court to which the application is made, is held. 2. That the applicant during the five years has conducted himself as a person of good moral character. 3. That the applicant is in principle attached to and well disposed towards the constitution of the United States. The "continuous" residence would not perhaps be necessary from the language of the section I have quoted ; but an amendment, approved March 3, 1813, by President Madison, provides : " That no person who shall arrive in the United States from and after the time when this act shall take effect, shall be admitted to become a citizen of the United States, who shall not for the continued term of five years next preceding his admission, as aforesaid, have resided within the United States, without being at any time during the said five years out of the territory of the United States." This amendment is now in force, except the words " without being at any time during the said five years out of the terri- tory of the United States." These words were, in 1848, in " an act for the regulation of seamen on board the public and private vessels of the United States," struck from the section. The object of the amendment of 1848 was to allow seamen who were actually engaged on any of the public or private vessels of the United States, and thus in their business were 94: ABBOTTS' PRACTICE REPORTS. In the Application of Clark. necessarily beyond the limits of our territory, to avail them- selves of the naturalization laws ; but the person drawing the repealing clause made it general instead of an exception in their favor. Whether Congress should not restore this pro- vision, making an exception in favor of the seamen and the soldier, it is not for me now to say, as I am inquiring only what the law is, that it may be administered correctly by this court. From the parts of the laws of Congress to which I have referred, I think there can be no doubt of the correctness of the position I have taken on this subject, and that the prac- tice of the clerks in issuing certificates of citizenship without any application to the court, and on proof of residence only, is an abuse which needs to be corrected. It was never intended by those who enacted the act for the naturalization of aliens, that persons who had been transported for crime that those who came over here merely because Europe was too full for them but who retained their loyalty of feeling for the monarchies they had left should, because they remained here for the period of five years, be entitled to admission to citizen- ship. The intention was to permit those who came here from abroad seeking a permanent home who, by five years of con- tinuous residence, manifested that intention and by good behavior during all that time, and an attachment to republi- can principles, which could be proved to the satisfaction of a court, had shown themselves worthy recipients of the benefits to be derived from citizenship, and safe depositories of the powers it confers, to be admitted to these rights and the exer- cise of these powers, by an order entered in open court after an examination into the facts of each case and a judicial decision upon the application an examination which should be conducted with the same care, and a decision which should be made with the same deliberation and solemnity as that which should accompany every other judicial act. Those courts which, instead of administering this law, have by their negligence and inattention practically repealed it, admitting thousands to the rights of citizenship, who want all the requi- sites to entitle them to such admission, have been guilty of a gross violation of duty, and have made the law itself odious in public estimation. Of the wisdom or propriety of our NEW-YOKK. 95 In the Application of Clark. present, or of any naturalization laws, it is not my business at this time to speak : my duty now is to administer the laws as they are. I ain compelled, for the reasons I have stated, to deny the prayer of the applicant, and also to forbid the clerk from, in any manner, exercising the powers conferred by Congress upon the courts. This is all that is necessary for me to say in deciding the case now before the court ; but there are other provisions of the naturalization laws which are loosely interpreted, or wholly misunderstood. By the act of May 26, 1824, the period between the declaration of intention and granting the certificate of citizenship is reduced from three to two years ; but this in no manner affects the require- ments of five years previous continuous residence. The first section of the same act prescribes a different rule for the naturalization of aliens who arrive in this country prior to attaining the age of eighteen ; it is : " Any alien, being a free white person, and a minor, under the age of twenty-one years, who shall have resided in the United States three years next preceding his arriving at the age of twenty-one years, and who shall have continued to reside therein to the time he may make application to be admitted a citizen thereof, may, after he arrives at the age of twenty-one years, and after he shall have resided five years within the United States, including the three years of his minority, be admitted a citizen of the United States without having made the declaration required in the first condition of the first section of the act to which this is an addition, three years previous to his admission : Provided, such alien shall make the declaration required therein at the time of his or her admission ; and shall further declare, on oath and prove, to the satisfaction of the Court, that for three years next preceding, it has been the bona fide intention of such alien to become a citizen of the United States, and shall in all other respects comply with the laws in regard to naturalization." The practical construction of this provision I am informed is for the clerks to admit aliens who will make oath they arrived during their minority, on proof of three years resi- dence. The true construction is, that it merely does away with the necessity of a previous declaration of intention to become 96 ABBOTTS' PEACTICE EEPOETS. In the Application of Clark. a citizen, on the part of those who arrive in the country prior to attaining the age of eighteen years, but requires instead of such previous declaration, the oath of the party, and also proof that for three years next preceding, it has been the intention of the alien to become a citizen, but in all other respects, the act of 1802 and its amendments are to be complied with by the person who applies under this section. The act of 1802 pro- vided that no person arriving after the passage of that act, should become a citizen, unless he had his name, birthplace, age, nation, &c. registered in the clerk's office where he arrived ; and also the place of his intended settlement, and required that the clerk should record this in his office, and grant certificates. In 1816, an act still more stringent in its requirements as to the evidence in cases of naturalization, was passed and remained in force until 1828, when these provisions were wholly repealed. There are several other statutes relating to the subject of naturalization, which are not formally repealed, but which have become obsolete for want of persons to whom they can be applied. The man who would collect and embody in a single act the operative portions of the various statutes on this subject, with such amendments as experience has shown are necessary to their due and faithful execution, would be a public benefactor. While they are, as now, scattered through the laws of Congress from 1802 down to 1848, it cannot be expected that the judges of the various courts will undertake the task of ascertaining exactly which section and line or word is in force, and which is repealed, consequently the adminis- tration of these laws will be loose and defective until such an act is passed. And when that is done, and the laws are administered in their purity, it will be apparent that the faults have been far more in the administration than in the laws themselves. NEW-YOKE. 97 Dobson a. Pearce. DOBSON a. PEARCE. Court of Appeals ; December Term, 1854. FRAUDULENT* JUDGMENTS. EFFECT OF DECREE OF A COURT OF ANOTHER STATE. It is a good defence to an action upon a judgment, whether brought by the original judgment creditor or his assignee, that the judgment was fraudulently obtained. A court of equity has jurisdiction to make a decree restraining a judgment creditor from bringing suits upon his judgment, upon the ground that it was fraudulently obtained. A duly authenticated record of such a decree, rendered in a court of equity of another State having jurisdiction of the parties, is a conclusive defence against the prosecution in a court of this State, of a suit upon the judgment referred to in the decree. Such decree is conclusive upon the parties everywhere and in every forum, where the same matters are drawn in issue ; not indeed as an injunction, but as a judg- ment of a court of another State. Appeal from judgment upon a verdict. This was an action in the nature of an action of debt on a judgment rendered in the New York Superior Court, April 17, 1847, for $612.93, in favor of one James K Olney, against Abner T. Pearce, the defendant, and afterwards assigned to Thomas Dobson, the present plaintiff. From the answer, it appeared that the judgment sued upon was fraudulently entered up by Olney. The defendant was a resident of Connecticut ; but being casually in the city of New York in 1846, Olney procured a capias to be served upon him; and by assurances that no further proceedings should be taken in the suit so commenced, induced him not to appear ; and in consequence of his non-appearance, judgment was, without his knowledge, .entered up against him by default. About two years afterwards, Olney commenced an action of debt on this judgment, in the Superior Court of the State of Connecticut. While this action was pending, the defendant commenced a suit upon the Chancery side of the Superior Court of Con- necticut, complaining that the judgment upon which he was 98 ABBOTTS' PRACTICE REPORTS. Dobson a. Pearce. sued at law, was fraudulently procured against him, and was based upon an unfounded claim ; and praying that Olney might be perpetually enjoined from prosecuting the suit upon it. On the tenth of September, 1850, an attorney having appeared for Olney in the chancery suit, and proofs having been put in, it was decreed that the facts alleged by Pearce against Olney in relation to the fraudulent entry of the judg- ment, and the character of the claim upon which it was based, were true ; and Olney was enjoined against prosecuting his action then pending against Pearce, upon the judgment. He accordingly withdrew the action, and judgment was rendered for Pearce, the defendant. But on the following day, Olney assigned the original judgment to Dobson the present plaintiff; who although acquainted with the facts above stated, com- menced this action upon it. The reply denied the allegations of the answer. The cause was three times tried % Upon the first trial, before Mr. Justice Paine, June 19, 1851, after the plaintiff had proved the judgment, and the assignment of it by Olney, to himself, the defendant offered in evidence a record duly authenticated of the proceedings in the chancery suit in Connecticut, including the decree, and moved for a dismissal of the complaint, on the ground that the plaintiff was estopped and barred from prosecuting his suit, by the adjudication of the Superior Court of Connecticut. The court decided that the decree of the Superior Court of Connecticut did not constitute any such bar or estoppel, and denied the motion ; and defendant's counsel excepted. The defendant's counsel then offered the same record in evidence, as matter of defence to the suit. The plaintiffs counsel objected, and the evidence was excluded ; the defend- ant's counsel excepting. A verdict was, by direction of the court, found for the plaintiff. The defendant moved to set this verdict aside, which motion was directed to be heard at general term. The court at general term granted the motion and ordered a new trial.* I * The proceedings in the case before the general term are reported 1 Duer, 142. See also 10 N. Y. Leg. Obs. NEW-YOKE:. 99 Dobson a. Pearce. At the second trial, before Mr. Justice Campbell, January 3, 1853, after the plaintiff's evidence was in, the defendant offered in evidence the record of the proceedings in the Superior Court of Connecticut, which was admitted, subject to exception on the part of plaintiff, and moved for a dis- missal of the complaint, on the ground as before ; that the Connecticut decree estopped the plaintiff. The plaintiff's counsel opposed this motion, and read in evidence, subject to exception by defendant, the record of the proceedings in the suit commenced by him at law in Connecticut, to recover upon the judgment now in suit. According to the record, the suit at law was withdrawn before the decree in equity restraining its prosecution was made, instead of afterwards, as intimated in defendant's answer. Plaintiff also offered evidence to prove that the decree in equity of the Connecticut Superior Court was fraudulently procured, and without any notice to Olney of the institution of the suit. The court refused to receive this evidence, deciding that the record of the proceedings in the chancery suit could not be collaterally impeached ; and dismissed the complaint, entering judgment for the defendant. The plaintiff appealed from this judgment to the general term; where it was reversed for error in the exclusion of the evidence offered by plaintiff, and a new trial ordered. This third trial was had before Mr. Justice Duer, April 5, 1853, and the evidence offered on the part of both plaintiff and defendant, at the previous trial before Justice Campbell, was put in, subject to like exceptions. The court instructed the jury that the Connecticut decree was conclusive upon the plaintiff, if the jury found that Olney appeared in the chan- cery suit by his authorized attorney ; otherwise he was not bound by it. The jury found for defendant; and judgment having been afterwards rendered in his favor at special term, the plaintiff appealed to the general term, where it was affirmed. From this judgment the plaintiff appealed to the Court of Appeals. E. Terry, for appellant. A. Childs, for respondent. 100 ABBOTTS' PRACTICE REPORTS. Dobson a. Pearce. JOHNSON, J. The questions in. this cause arise upon two exceptions taken at the trial. The first was taken to the deci- sion admitting in evidence the record of a decree in equity, made by the Superior Court of Judicature of the State of Con- necticut, between the defendant in this suit and one Olney, the immediate assignor to the plaintiff of the judgment now sued upon. The second was to the instruction of the court to the jury, that the record of the proceedings,' finding, and decree aforesaid, given in evidence by the defendant to support the allegations in his answer, was, for the purposes of this suit, con- clusive evidence upon the plaintiff, if the jury found that Olney appeared in that cause by his authorized attorney. The plaintiff is in the same position which Olney would have occupied had he been plaintiff; he is the immediate assignee of Olney, against whom, before the assignment, the decree was pronounced ; and if it be material, he had actual notice of the decree when the assignment was made to him. Giving to the plaintiff's objections to the admission of the- record the broadest effect, the first question is, whether the defence set up by the answer was available. That defence is, in substance, that the judgment sued upon was fraudulently entered up, after assurances on behalf of the plaintiff in that suit, to the defendant, that no further proceedings should be taken in the suit without notice to him, whereby he was induced not to take steps to interpose a defence, which in point of fact he could successfully have maintained. Relief against such -a judgment upon these facts would have been within the power of a court of equity in this State, upon a bill filed for that purpose. (2 Story, Eq. Jur., 887, 896. Huggins v. King, 3 Barb., S. C. 72., 616). The Code ( 69) having abolished the distinction between actions at law and suits in equity, and the forms of all such actions as heretofore existing, an equitable defence to a civil action is now as avail- able as a legal defence. The question now is, ought the plaintiff to recover ? and any- thing which shows that he ought not is available to the defend- ant, whether it was formerly of equitable or legal cognizance. The next question is, whether the record of the decree of the Superior Court of Connecticut was competent evidence upon NEW-YOKE. 101 Dobson a. Pearce. Ibis issue. Olney actually appeared by his attorney in tbat suit, and was beard upon its merits. He was, therefore, before tbe court, and it had jurisdiction of his person, if it had juris- diction of the Subject matter of the suit. The object of the suit was to restrain Olney from prosecuting a suit at law in the same court upon the judgment in suit here, and the grounds on which that relief was sought were the same which are set up as a defence here. The jurisdiction to restrain suits at law being one of the firmly established parts of the author- ity of the courts of equity, and the plaintiff in the suit which was enjoined having undertaken to prosecute that suit in a court of law in the State of Connecticut, the only conceivable grounds for denying the equitable jurisdiction which was exer- cised in the case, are either that no court of equity anywhere had power to restrain a suit upon a judgment at law upon such grounds, or that a court of equity in one State has no jurisdic- tion to restrain such a suit upon a judgment of a court of law of another State. The first of these grounds has already been considered and found unsound. The other rests either upon some ground of comity between States, or upon the force of the constitution and laws of the United States. The objection, so far as it is founded upon an assumed viola- tion of the comity which exists between the several States of the United States, does not reach to the jurisdiction of the court. The rules of comity may be a restraint upon a court in the exercise of an authority which it actually possesses, but it is self-imposed. (Bank of Augusta v. Earle, 13 Pet., 519). The courts of each State must judge for themselves exclusively how far they will be restrained, and in what cases they will exercise their power, except where the constitution of the United States and the laws made in pursuance of it. prescribe a rule ; where that is the case, the question ceases to be one of comity, and becomes one of right. The question then remains to be considered upon the consti- tution and laws of the United States, and here the decisions permit of no doubt. "Full faith and credit" are given to the judgment of a -State court, when in the court of another State it receives the 102 ABBOTTS' PKACTICE REPORTS. Dobson a. Pearce. same faith and credit to which it was entitled in the State where it was pronounced. (Hampton v. McConnell, 3 Wheat., 234). "We have then a decree of the Superior Court of Con- necticut, in a cause where they had jurisdiction of the subject matter and of the parties, and it is duly authenticated and relevant to the issue on trial. Its admissibility in evidence fol- lows, of course. By the record of that decree, it appears that the very matters in issue here were litigated .there, and were decided adversely to Olney, whom the plaintiff represents. The deter- mination is necessarily conclusive upon him as to all the mate- rial facts there litigated and determined. Judgment affirmed with costs. ALLEN, J. A judgment rendered by a court of compe- tent jurisdiction cannot be impeached collaterally for error or irregularity, but is conclusive until set aside or reversed by the same court, or some other court having appellate juris- diction. (Smith v. Lewis, 3 J. .Z?., 157 ; Homer v. Field,. 1 Pick., 488.) The jurisdiction of the court in which a judg- ment has been rendered is, however, always open to inquiry, and if it has exceeded its jurisdiction, or has not acquired jurisdiction of the parties by the due service of process, or by a voluntary appearance, the proceedings are cor am nan judice, and the judgment is void. The want of jurisdiction has always been held to be a valid defence to an action upon the judg- ment, and a good answer to it when set up for any purpose. So, fraud and imposition invalidate a judgment, as they do all acts, judicial as well as extra-judicial ; and it is not without semblance of authority that it has been suggested, that at law the fraud may be alleged whenever the party seeks to avail himself of the result of his own fraudulent conduct by setting- up the judgment, the fruits of his fraud. (See per Thompson, C. J., in Borden v. Filch, 15 Johns. It. 121, and cases cited.) But whether this be so or not, it is unquestionable that a court of chancery has power to grant relief against judgments when obtained by fraud. Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not avail himself at law, but was pre- vented by fraud or accident unmixed with any fault or negli- NEW-YORK. 103 Dobson a. Pearce. gence in himself or his agent, will justify an interference by a court of equity. (Reigal v. Wood, 1 Johns. Ch. R. 402 ; Mc- Donald v. Neilson, 2 Cow. R. 139 ; Duncan v. Lyons, 3 Johns. Ch. R. 351 ; Marine Insurance Company of Alexandria v. Hodg- son, 7 Cranch, 352 ; Shottenkirk v. Wheeler, 3 Johns. Ch. R. 275). Tinder our present judiciary system the functions of the courts of common law and of chancery are united in the same court, and the distinctions between actions at law and suits in equity, and the forms of all such actions and suits are abolished, and the defendant may set forth by answer as many defences as he may have, whether they be such as have been heretofore denominated legal or equitable, or both. (Code 69, 150). The Code also authorizes affirmative relief to be given to a defendant in an action, by the judgment, (274). The intent of the legislature is very clear, that all controversies respecting the subject matter of the litigation should be determined in an action, and the provisions are adapted to give effect to that intent. Whether, therefore, heretofore, fraud or imposition in the recovery of a judgment could have been alleged against it collaterally at law, or not, it may now be set up as an equita- ble defence to defeat a recovery upon it. Under the head of equitable defences are included all matters which would before have authorized an application to the Court of Chancery for relief against a legal liability, but which, at law, could not have been pleaded in bar. The facts alleged by way of defence in this action would have been good cause for relief against the judgment in a court of chancery, and under our present system are, therefore, proper matters of defence, and there was no necessity or propriety for a resort to a separate action to vacate the judgment. i In Connecticut, although law and equity are administered by the same judges, still the distinction between law and equity is preserved, and justice is administered under the heads of common law and chancery jurisdiction, by distinct and appropriate forms of procedure ; and hence, as it was at least doubtful whether at law the fraud alleged would bar a recovery upon the judgment, a resort to the chancery powers of the court of that State was proper, if not necessary. 104: ABBOTTS' PRACTICE REPORTS. Dobson a. Pearce. The right of the plaintiff in the judgment was a personal right, and followed his person, and, aside from the fact that he had resorted to the courts of Connecticut to enforce his claim under the judgment, the courts of that State, having obtained jurisdiction of his person by the due service of pro- cess within that State, had full power to pronounce upon the rights of the parties in respect to the judgment, and to decree concerning it. It necessarily follows that the decree of the Supreme Court of Connecticut, sitting as a court of chancery, directly upon the question of the fraud, is conclusive upon the parties to that litigation, and all persons claiming under them with notice of the adjudication. The judgment of a court of competent jurisdiction upon a point litigated between the par- ties, is conclusive in all subsequent controversies, when the same point comes again in question between the same parties. (White v. Coatsworth, 2 $eld. 137 ; Embury v. Conner, 3 Comst. 522). In the State of Connecticut it is quite clear the question of fraud would not be an open question between the parties, but would be considered entirely settled by the decree of the court of that State, and as " full faith and credit "Js to be given by each State, to the judicial proceedings of every other State, that is, the same credit, validity and effect as they would have in the State in which they were had, the parties are concluded in the courts of this State by the judgment of the court in that State, directly upon the question in issue. (Hamp- ton v. McConnell, 3 Wheat. 234). The decree of the court of chancery of the State of Connecticut, as an operative decree, so far as it enjoined and restrained the parties, had and has no extra-territorial efficiency, and, as an injunction, does not affect the courts of this State ; but the judgment of the court upon the matters litigated is conclusive upon the parties, every- where and in every forum where the same matters are drawn in question. The court acquired jurisdiction of the parties by the commencement of the action and the service of process upon the defendant therein, and his appearance by an authori- zed attorney, and the withdrawal of the action of debt upon the judgment did not deprive it of jurisdiction thus acquired. The judgment of the Superior Court must be affirmed with costs. NEW-YORK. 105 Dobson a. Pearce. DENIO, J., (stated the following as the conclusions to which he had arrived). 1. The judgment of the Superior Court in New York, not- withstanding the alleged fraud, was conclusive upon the defendant in it; and in an action upon it, no allegation of matter of fact, in pais, could be admitted to impeach its validity. It could only be relieved against on motion, or by an action in the nature of a bill in equity. 2. It was, under the constitution and laws of the United States, equally conclusive in the courts of Connecticut as in this State. 3. But it was competent for the courts in this State, or in any other State which had obtained jurisdiction of the person of the plaintiff, by a direct proceeding, to impeach the equit- able obligation of the judgment on the ground of fraud, surprise, or mistake in obtaining it, or for any other matter which, according to the principles of a court of chancery, would render it inequitable and unconscientious for "the plain- tiff to insist upon the recovery. The jurisdiction of courts of equity in this respect is well stated in Pearce a. Olney, (20 Conn. 544,) where the question upon this judgment was examined by the Supreme Court of Errors of Connecticut. (See also 2 Cowen, 193, and cases cited). 4. If a court in this State, in such a suit as is referred to under the last head, had given judgment to the effect that the judgment of the Superior Court had been obtained by fraud or mistake, or in such a manner in any respect that it could ' not be conscientiously enforced, such determination would have been a bar in an action at law on such Superior Court judgment. It would have been similar to a decree in chancery setting aside a contract or conveyance, which it cannot be doubted would have barred an action at law on such contract or conveyance. " 5. The judgment or decree of the Supreme Court of Errors in Connecticut (that court having jurisdiction of the parties) is equally effectual as a judgment to the same effect in this State would have been. This results from the constitutional provision before referred to, and the act of Congress which 106 ABBOTTS' PRACTICE REPORTS. Cudlipp a. Whipple. declares that the records of judicial proceedings of the States,, authenticated as provided by that act, " shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from whence the said records are or shall be taken." (Laws U. S. by Story, p. 93). 6. The judgment of the Supreme Court of Judicature of Connecticut, determining that the facts set forth in the defend- ant's petition were true, and forever enjoining a prosecution of the judgment of the Superior Court of New York, is a determination as to the equitable validity of the judgment, and precludes the plaintiff from insisting upon it, as well in every State where the judicial proceedings of Connecticut are entitled to full credit, as in the State of Connecticut itself. This results from the principle, that a matter once litigated and determined in a court of competent jurisdiction cannot ever again be drawn in question by the same parties, or any others standing in legal privity with them. (Le Guen v. Gou- verneur &Kemble, 1 Johns. Cos., 436). 7. It follows, from these positions, that the judgment in Connecticut is a perfect bar to the action brought upon the judgment of the Superior Court. The judgment appealed from should therefore be affirmed. CUDLIPP a. WHIPPLE. New York Superior Court ; Chambers, December, 1854. FOKM OF COMPLAINTS. SUFFICIENCY OF OLD FOKMS. A complaint to recover for money lent to, and paid, laid out and expended for, the defendant, at his request, is sufficient under the Code ; though as general in its allegations of the particulars of the cause of action as the old form of a declara- tion in indebitatus assumpsit. If the defendant wishes a more detailed statement, his remedy is to demand in writing a copy of the account or the particulars of the cause of action. Motion to require plaintiffs to amend complaint. The plaintiffs brought this action as'assignees of a demand which one James "Whitney had against the defendant. The NEW-YORK. 10T Cudlipp a. Whipple. facts in relation to the demand were stated thus in the com- plaint. " The defendant was indebted to one James Whitney on the 3rd of November, 1853, in the sum of $5046 ^, being a balance of account due from said defendant to said Whitney, on an account for money lent by said Whitney to said defend- ant, and for money paid, laid out and expended by said Whitney to and for the use of said defendant, and at his request." The defendant moved that the plaintiff be compelled to make this part of the complaint more definite and certain. /. H. Harter, for the motion. E. Terry, opposed. OAKLEY, C. J. The Court of Appeals in Allen v. Patterson, (3 Seld. R. 476), decided that a complaint in an action to recover for goods sold, substantially in the old form of a decla- ration in in debitatus assumpsit, was good under the Code. There seems to be no distinction in principle between that case and this. This action is brought to recover a balance alleged to be due upon an account for moneys loaned to and paid, laid out and expended for the defendant at his request. Section 158 of the Code, expressly declares that it shall not be necessary for a party to set forth in a pleading the items of an account therein alleged, but he shall deliver to the adverse party within ten days after a demand thereof, in writing, a copy of the account. This section has provided that a complaint in a case like this may be as general in its statements as the old indebitatus assumpsit counts. It also enables the adverse party to obtain a detailed statement of the particulars of the cause of action without an application to the court. He has only to demand in writing a copy of the account, and it must be furnished. The complaint in this case is therefore as specific and full in its allegations as the Code requires. If the defendant has any doubt as to the items in respect to which a recovery is sought, 108 ABBOTTS' PRACTICE REPORTS. In the Matter of Brown. his remedy is to demand a copy of the account constituting the cause of action stated in the complaint. The motion must therefore be denied. , CAMPBELL and BOSWOKTH, J. J., concurred). IN THE MATTER OF BEOWN. LUNACY. JURISDICTION. New York Superior Court ; Special Term, December, 1854. The New York Superior Court will not take jurisdiction to issue a commission of lunacy. The nature and extent of the power to take the persons and property of lunatics and habitual drunkards into judicial custody, reviewed. Application for a writ in the nature of a commission de lunatico inquirendo. P. Y. Cutler, for petitioner. HOFFMAN, J. The question whether this court has jurisdic- tion to issue such a commission as is sought, and jurisdiction in a number of similar cases distinct from equity authority in an action, has been found to be so novel and unsettled that it has engaged the consideration of most of the judges. The custody of lunatics was not vested in the English court of chancery as such. It was lodged in the crown. That branch of the prerogative might be exercised by any officer the king thought fit. It was ordinarily delegated to a great officer of state, but not necessarily to the Keeper of the Great Seal. A warrant under the sign manual was usually delivered to the lord chancellor or lord keeper upon his -coming into office. (4 Bro. Ch. Pr., 223 ; Shelf ord on Lunacy, 157). But the right of the crown to the management and control of .lunatics and their estates did not commence until the finding of the office or inquisition of lunacy. (8 Rep., 170 J). And the method of ascertaining whether the NEW-YOKE:. 109 In the Matter of Brown. party was a lunatic, was a petition to the lord chancellor, suggesting the lunacy, and verified by affidavits. He then issued a writ to the sheriff of the county where the party resided, to try by a jury, and personal examination, whether the suggestion was true or not. It was the ordinary writ upon a supposed forfeiture to the crown. (Natura, Brevium, 581). As rights accruing to the crown by forfeiture or other means were inquirable into by commission as well as writ, the former superseded the latter in practice. (Exparte South/cot, Ambler, 111). Both issued under the great seal from the common law side of the Court of Chancery, and were return- able to that court. (Ibid). In Sherwood v. Sanderson, (19 Ves., 285), the lord chan- cellor says that the application is made to the lord chancellor, not as chancellor, but as the person having, under the especial warrant of the crown, the right to exercise the duty of the crown, to take care of those who cannot take care of them- selves. The application has therefore no concern with any- thing passing in the Court of Chancery ; but is made to the person holding the great seal in whom the crown has usually thought proper to vest this j urisdiction, as it would be made to any other person having that authority. (See also Lord Redesdale, Exparte Fitzgerald, 2 Sch. & Lef. 435). Justice Story Eq. Jur. 1364, n. sums up his view of the origin of the jurisdiction thus : " The truth seems to be that the lord chancellor acts merely as delegate of the crown, and exercis- ing its personal prerogative as parens patri in chancery, and not as a court of equity." And H. Fonblanque in his learned note upon Mr. Har- grave's observations, expressly considers the custody of luna- tics as a delegation of a power conferred by parliament; noticing the fact that at common law the custody of lunatics and idiots, at least such as held lands, was not in the king, but in the lord of the fee. (2 Fonblanque, 230, n.) To some extent at any rate it is inaccurate to say that the custody of the estates of lunatics existed before the statute of Edward, and was independent of it. (Ambler, 707 ; 2 John. Ch. R. 237). 110 ABBOTTS' PRACTICE REPORTS. In the Matter of Brown. Upon our revolution, the people succeeded to the duties and prerogatives of the crown ; and at a very early period they expressly delegated the authority in this matter to the chan- cellor. The successive statutes were substituted for the king's sign-manual to each lord chancellor or lord keeper. It is on this basis that the jurisdiction in our State is most clearly and safely vested, and the express delegation of the authority of the State as to the custody of the person and estate of luna- tics, implied the right of judicially ascertaining who were such ; and the course of proceeding almost necessarily followed that of the English chancery. The statutes of Edward, ch. 9 and 10, afford the model on which our statutes have been framed. The first of these was the act of February 6, 1788, (2 Greenl., 25), enacting that the chancellor should have the care and provide for the safe- keeping of all idiots, and of their lands and tenements, goods and chattels. ( 1). The second section gives the care and custody of persons and estates of lunatics to the chancellor in like manner, and very nearly in the words of the statute of Edward. The statute of the 10th March, 1801, embodied these two sections into one. Such was also the enactment in the revi- sion of 1813. (1 Rev. Laws, 147, 1). The Revised Statutes of 1830 adopt it, with slight change of language. (2 Rev. Stat. 52, 1). The circuit judges under the Constitution of 1822 and the Revised Statutes of 1830, were vested (in cases within their circuits) with all the original jurisdiction and powers which now are, or hereafter may be, vested in the chancellor in all causes and matters in equity, and in all causes or matters of which the cognizance is or shall he vested in the chancellor, by virtue of any Statute. (2 Rev. Stat. 108, 2). The act of 1831, appointing a vice chancellor, gave to him the same powers in the first Circuit, and under this act the vice chancellor issued commissions of lunacy. (3 Edw. Rep., 380). As it is admitted that the jurisdiction was not in the chan- cellor, by reason of his being the head of the Court of Chan- cery, it follows that the jurisdiction of the vice chancellor and NEW-YORK. 1H In the Matter of Brown. circuit judges was conferred by. that clause of the act giving them power " in all causes or matters of which the cognizance is or shall be vested in the chancellor by virtue of any statute." It results also, that the establishment of a court with general equity jurisdiction would not confer this particular power. This would also result from the general doctrine that a newly created court can have no other jurisdiction than such as is expressly conferred. A new court cannot prescribe. (4 Just., 200). The original jurisdiction of the Superior Court, conferred by the statute of 1828, and as varied or enlarged by any statute down to 1847, admittedly does not extend to such a case. J . i/ By the Constitution of 1846, (Art. YI. 5), it was provided that the legislature shall have the same powers to alter and regulate the jurisdiction and proceedings in law and equity as they have heretofore possessed ; and by the 14th section infe- rior local courts of civil and criminal jurisdiction may be estab- lished by the legislature in cities. By the 12th section of arti- cle XIV. the Superior Court was to remain until otherwise directed by the legislature with its then existing powers and jurisdiction. It is important, in order to determine the present question, to advert to the legislation in respect to habitual drunkards. The first act upon that subject was that of the 10th of March, 1821 entitled, " an Act concerning the estates of habitual drunk- ards." (Laws of 1821, ch. 119). It was declared to be lawful for the Court of Chancery of the State to exercise a j tirisdiction and power in regard to the estates of persons who shall be incapable of conducting their own affairs in consequence of habitual drunkenness, similar to the jurisdiction and power exercised by that court in regard to the estates of lunatics. The second section provided that the overseers of the poor might make application to the chancellor for the exercise of such power. By the third, a mode of revising the action of the overseers by a jury before a justice of the peace was pointed out. Under this statute, the court had no power over the person of the drunkard, but only over his estate. This was so held in 112 ABBOTTS' PRACTICE REPORTS. In the Matter of Brown. Ex parte Lynch, 5 Paige, 120. By the Revised Statutes the power of the court was extended to the person as well as the 'estate, and its authority was placed precisely upon the same footing as over lunatics and idiots. It was declared that the chancellor should have the custody of all idiots, lunatics, persons of unsound mind and habitual drunkards, and of their real and personal estate ; and he was to provide for their safe keeping and maintenance out of their real and personal estates. (2 Rev. /Stats., 52, 1). This statute, the chancellor observed, gave the court a perfect control over the person of an ha- bitual drunkard, which it could exercise through a committee. (Ibid). The statute of 1830 gave the like jurisdiction to the Court of Common Pleas of the County as to the chancellor, where the drunkard's property was less than $250. In vacation, the application might be made to the first judge of the County. There was an appeal to the Court of Chancery. (2 Rev. Stats., 52, 3, 4:, 5, 6). Other sections provided for the mode of obtaining a sale or mortgage of the real estate to satisfy debts. ( 11, 12, 13). This statute formed a complete and uniform system upon the whole subject, down to the 1st of March, 1846, when the third edition of the Revised Statutes was pub- lished. In defining the jurisdiction of the Court of Common Pleas, the Revised Statutes (2 Rev. Stats. 208), declared among other things, that they should have and exercise the power and jurisdiction conferred upon them by law, over the persons and estates of habitual drunkards. Down to this period the Courts of Common Pleas had no jurisdiction as to lunatics, and a defined jurisdiction as to drunkards, nearly co-extensive with that of the chancellor, where the property was less than $250. The Constitution of November, 1846, (see Article 6, 14), provided for the election of a county judge, who should hold the county court, and that the county court should have such jurisdiction in their county as the legislature should prescribe. Then followed the Judiciary Act of May 12, 18-47, and the 29th section of Article 4, provided that the county courts should have jurisdiction to hear and determine all matters and proceedings, especially conferred upon and heretofore NEW-YORK. 113 In the Matter of Brown. triable and cognizable by courts of common pleas of the several counties. It appears to me that the power of the courts of common pleas as to drunkards, vested in the county courts by force of this provision. Then in the 31st section it was provided that the said county court "should have equity jurisdiction in suits, and proceedings in the following cases," among them " for the care and custody of lunatics and habitual drunkards residing in such county." The clause as to drunkards was, as I view it, superfluous. What extent of jurisdiction was then given by the words as to lunatics ? It is to be observed that it is a legislative grant of new jurisdiction to a tribunal of limited powers created by statute, and must be construed strictly. I apprehend it could not possibly be extended beyond the care and custody of the person. The separation betw.een the power over the person and over the estate, is strikingly shown by the case before Chancellor Walworth, in 5 Paige, 120, before noticed, where he held that the statute of 1821, only gave him power over the estate. And in England it is quite common to have separate com- mittees, especially if the lunatic is a female ; when the com- mittee of the person is generally one of her own sex ; and a male for the committee of the estate. (Skelford, 138, &c.) The 21st section of the amended Judiciary Act of December, 1847, enacted that the Superior Court and Court of Common Pleas of the City and County of New York, shall respectively have and possess the same equity jurisdiction which is con- ferred upon the several county courts of the State by 31, of the chapter referred to, (the Judiciary Act) or by any other act. See also the 22nd section. At this period then the Superior Court may be considered as having jurisdiction as to the person, but none other. The Code of April, 1848, provides first, That the courts enumerated (among them this court) shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this act. (Title I. 10). The 29th section of the same Code, repealed all statutes 114 ABBOTTS' PRACTICE REPOETS. In the Matter of Brown. then in force, defining or conferring the jurisdiction of the county courts so far as they conflicted with that act ; and declared " that those courts should have no other jurisdiction than that provided in the next section." The 30th section then proceeded to enumerate the cases in which the county court should have jurisdiction, and among them is the authority as to idiots, lunatics, and drunkards. But a marked distinction between the provisions of the Code and those of the act of 1847, must be noticed. The whole enactment of the latter was, that the county court should have equity jurisdiction " in a suit or proceeding for the care and custody of lunatics and habitual drunkards resid- ing in such county." But in the Code the provisions are first, by subdivision 8 of section 30. " 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," and next, by subdivision 6. " The sale, mortgage, or other disposition of the real property, of an infant or .a person of unsound mind, situated within the county." The jurisdiction expressly conferred by the Code upon this court, does not include the power in question. The 33rd sec- tion read in connection with the 123rd, bestows jurisdiction in certain enumerated cases where the cause of action shall have arisen, or the subject of the action shall be situated within the county, and in the other cases specified, of personal residence or the service of a summons within the same. These actions are enumerated in prior subdivisions of section 123. Among them is an action for partition and for the foreclosure of a mortgage. But this express delegation of power is in actions, and relates to actions in the legal sense, between contesting parties, and as distinguished by the Code from special pro- ceedings. The legislature in this provision has selected two of the cases of equity proceedings from the 31st section of the act of 1847, and gives this court authority in those cases by express enactment. It omits the other cases, such as admeasurement of dower, sale of infants' estates, and the care of lunatics. The argument that this amounts to an implied exclusion of such cases is very strong. NEW-YORK. 115 In the Matter of Brown. The Court of Common Pleas was placed by the 33rd section of the Code in almost precisely the same situation as this court in regard to jurisdiction, expressly or by implication conferred. The judiciary act as amended, had placed each court in a similar position as to its authority in the present case. Yet it was deemed advisable or necessary to pass an act on the 12th of April, 1854, declaring that the Court of Common Pleas has power and jurisdiction of the following proceedings. To remit fines, &c. and to exercise all the powers and jurisdic- tion now or hereafter conferred upon or vested in the said court, or in 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 Code of Procedure passed April 12, 1848. By this express enactment all the jurisdiction given to county courts by the 30th section of the Code, is now vested in the Common Pleas. It is true the language of the act is a declaration that " the said court lias power and jurisdiction to exercise all the authority," &c., but even supposing the phraseology has been intentionally and technically used, it is too slight a ground on which to imply our own authority. It is clear that if this court possess any jurisdiction, it could only be to issue the commission and appoint a committee of the person. We could do nothing as to the estate, and a very inadequate power would thus be vested in us. The result of my examination is, that at least the point of jurisdiction is, even as to the person, so doubtful as to warrant our refusal to attempt its exercise in a matter where questions of title as well as other serious consequences may depend upon its existence, and when the most ample and sure relief is open in other tribunals. Application denied. 116 ABBOTTS' PRACTICE REPORTS. Goedel a. Robinson. GOEDEL a. ROBINSON. New York Superior Court ; Special Term, December, 1854. UNVERIFIED ANSWER. WHEN NOT STRICKEN our, AS SHAM. Where neither complaint nor answer are verified, and the answer merely denies the allegations in the complaint, setting up no new matter, it cannot be stricken out as sham. Motion to strike out an answer as sham, and for judgment as for want of answer. for plaintiff. Mr. Shannon, for defendant. HOFFMAN, J. The complaint states, that the defendant made his promissory note, dated the 28th day of March, 1854, to his own order at six months, .for $696, and endorsed and delivered the same to the plaintiff; that the defendant has not paid the same nor any part thereof, but that there remains due $696, with interest, for which sum the plaintiff demands judgment. The defendant denies that at the time stated in the com- plaint, .or at any other time, he made the promissory note described in such complaint, or that he endorsed any such note as is therein untruly alleged, or delivered the said or any note to the plaintiff; and denies that there is due from him to the plaintiff the sum demanded in the complaint. The affidavits which are produced, are sufficiently positive to show that this denial of the answer is untrue. The clerk of the plaintiff swore positively that the plaintiff sold the defend- ant fifty-eight baskets of champagne, at $12 a basket, on the 28th of March, 1854, and that the note in question was given for the price ; that he called to get the note, when the bill was admitted and the note given. The plaintiff swears to the same facts positively, and also to repeated promises of payment. NEW-YORK. 117 Goedel a. Robinson. The question then is precisely brought up, whether an answer containing a plain mere denial amounting to the gene- ral issue, can be stricken out as sham. In the case of Caswell v. Bushnell, (14 Barb. 395), the Supreme Court of this district at general term held that an answer cannot be stricken out as sham unless it sets up new matter ; that under the old system the general issue, which was a mere negative, could not be treated as sham; citing Broome County Bank v. Lewis, (18 Wend. 500), that sham pleas were known before the Code was adopted, and had obtained a precise legal meaning applicable only to pleas of new matter, and that the phrase was used in that established sense in the Code. (1 Chitty, 576). Although it may be noticed that the answer in this case was sworn to, and upon the general rule could not have been treated as sham, yet the court pursuing the reasoning at the special term, expressly place the decision upon the ground stated, and have made it a settled rule in this district. In Winne v. Sickles, (9 Pr. JR., 217), Justice Harris applied this doctrine in its utmost extent, in a case almost as strong as the present, upon the affidavits, distinctly holding that an unverified answer could not be stricken out as sham when it contained nothing but a general and full denial of the matters of the complaint. The same learned judge had stated the rule to the like effect in "White v. Bennett, (7 How. Pr. R., 59), and in Livingston v. Finkle. (8 How. Pr. 7?., 486). On the other side, Justice Barculo, in Nichols v. Jones, (6 How. Pr. JR., 356), held that the true rule under the Code was to strike out all answers or defences as sham when they appear to be clearly false, whether they appear to be good in point of law on their face or not. He then proceeds to say : " The dif- ficulty is in determining what shall be deemed conclusive evi- dence of the falsity of a pleading : and I suppose the falsity must be admitted or clearly established. It may be so plain and palpable as to admit of indisputable proofs, as where it appears by the affidavit of the plaintiff and is not denied by affidavits on behalf of the defendant. If, however, in the lat- ter case the defendant comes forward in reply to the motion 118 ABBOTTS' PEACTICE REPORTS. Curtis a. Leavitt. and swears to the truth of his answer, it cannot be stricken out : for the court will not determine the question upon a bal- ance of testimony. The evidence of the falsity must be clear and undisputed." In Conklin v. Yandervoort, (7 How. Pr. R., 683), Justice Marvin held that under the Code an unverified answer, con- sisting of denials only, might be stricken out as false, as well as where it sets up new matters by way of defence. I have also again examined the case of Miner v. Cartledge, (8 Ba/rbour, 75), so much criticised in all the discussions upon this subject. It will be perceived from this statement of the cases that judges of eminent qualifications have greatly differed upon this point. The weight of authority, especially that of the general term in this district, preponderates in favor of the rule which restricts the striking out of an answer on the ground of its falsity, to answers containing new matter. The court is of opinion that this rule is best supported by the doctrine which prevailed before the Code and by a sound construction of the Code. The plaintiff has always the power of swearing to Jris own statements, to put the defendant to an answer under oath, when he may not be able to meet averments by express denials. If he waive this -privilege, he must be treated as waiving the right to have his cause heard upon affidavits. Motion denied without costs. CURTIS a. LEAVITT. Supreme Court, First District ; General Term, December, 1854. STAY OF PROCEEDINGS. TAXATION OF COSTS. SUITS COM- MENCED BEFORE THE CODE. Taxation of costs and the insertion of their amount in the entry of judgment, are not stayed by an appeal with security. The old chancery fee bill has not been repealed by the Code. It is still in force ; but is only applicable to proceedings had prior to July, 1851, in equity suits com- menced before the Code. NEW-YORK. 119 Curtis a. Leavitt. Held, in an equity suit commenced before the Code, that costs of all proceedings prior to July, 1851, must be taxed according to the fee bill ; those of all subse- quent proceedings according to the Code. Application for taxation of costs. The facts are sufficiently stated in the opinion. MITCHELL, J. The decree or judgment of this court was rendered on the 31st of December last, sustaining the trusts in the cause, and adverse to the claims of the receiver. It directed, in substance, that " the taxable costs'' of the trustees, and of the receiver and of other parties, together with the amounts secured by the trust deeds, be paid out of the funds in the hands of Mr. Palmer, a special receiver in these actions ; and if these were not sufficient, next out of the funds in the hands of Mr. Leavitt, so far as those funds were covered by the trust deed and were necessary for that purpose. The bills were filed in 1842, and answers put in and testimony taken and closed in December, 1850. The pleadings and proofs were all in writing, and constituted several large volumes of printed matter. The cause was called for hearing in April, 1851, before Mr. Justice King, at special term, but was directed by him, pursuant to the Judiciary Act, to be first heard at general term ; and it was so heard on the pleadings and proofs in 1852. The trustees applied to one of the jus- tices of this court to tax their costs, when the counsel for the receiver objected that the taxation should be under the Code ; and the justice referred the matter to the general term for directions. The receiver now also objects to the taxation, on the ground that he has appealed from the decree and given security in $250, which he insists is a stay of all proceedings, and especially to prevent any payment of moneys under the decree. The trustees contend that the appeal is no stay, unless there be security for the payment of whatever sum the appellant may be decreed to pay. The only questions now necessary to be decided are, whether an appeal with security in $250 stays the taxation of costs, and by what system the costs are to be taxed. Assuming the view of section 459 of the Code, that the 120 ABBOTTS' PRACTICE REPORTS. Curtis a. Leavitt. judgment in these actions is to be entered according to the Code, although the action was commenced before the Code, then, according to section 311, the clerk is to insert in the entry of the judgment the amount of the costs payable to any party ; and the judgment would not be complete without such entry. At common law, also, the amount of the costs to the prevailing party formed a proper part of a complete judg- ment. In equity, also, the same practice prevailed before 1830, and then the only change was to annex the whole bill of costs to the decree, instead of stating the total in the decree. The Code ( 311), adopts the common law practice. All, then, that the trustees now propose to do is to perfect their judg- ment, not to execute it. Section 335 prevents an appeal on a judgment directing the payment of money from staying the execution of the judgment, unless security be given in the amount therein required; and section 342, allows such an undertaking as was given in this case to " stay proceedings in the court below upon the judgment appealed from." Proceed- ings upon the judgment are those which are in some way to carry out or enforce the judgment, as an execution on a judg- ment for the payment of money, or a sale on a decree of fore- closure and sale, or process for contempt, or other coercive measures, on a judgment to deliver documents or property, or to execute a conveyance. These modes of " proceeding upon a judgment" are specified in sections 335-6-7-8, and illustrate the meaning of the general phrase afterwards used in sections 339 and 342, and show that it is to be construed by reference to those illustrations, and in analogy with them. The taxation or adjustment of costs not being an execution of or proceeding upon the judgment, but a means of completing it, is not stayed by the appeal. The other question is as to the rule of taxing costs. To understand some of the decisions on that subject more clearly, it may be proper to notice the legislation on which they were founded. The revised statutes prescribed the law as to costs both at law and in chancery, and continued to control as to the amount of costs in suits at law until 1840, when a new system of costs in such suits was adopted. The general prin- ciple of the new system was to pay for a particular service a NEW-YORK. 121 Curtis a. Leavitt. certain sum, whether it took much or little writing to perform it. The new act was not merely inconsistent with the old in cases to which it applied, but it expressly repealed sections 17, 18, 19, 22, 27, 31 and 32 of the revised statutes as to costs. These sections related to costs of attorneys and counsel in the supreme court and common pleas, and of the clerks and criers in those courts, (Laws of 1840, ch. 386,' 40, and 2 Rev. Stats. 632, 17, &c). It however provided by 38, that the act should not affect any suit or proceeding commenced before that act took effect. This saving section was repealed in 1844, (Laws of 1844, ch. 104, 8), BO that after that time the law of 1840 was to apply even to suits commenced before 1840. At com- mon law, and without some statute, a successful party had no right to costs. If therefore, in any case a successful party will claim costs, he must point out some statute in force, and not repealed, which gives them to him. He cannot claim them under a repealed statute, for that has ceased to exist ; and he is left, therefore, to claim them under some statute in force when the judgment is rendered. Accordingly, under the joint effect of the acts of 1840-'44, costs could not be taxed under the system of the Revised Statutes if the judgment was obtained before the act of 1844 took effect, except perhaps as between attorney and client. (Brooklyn Bank v. Willoughby, 1 Sand. 669). When the Revised Statutes were adopted they repealed the previous statutes as to costs on the same subject, (sub. 90 of 1, 3 Rev. Stats.} but declared that such repeal should not affect suits commenced in any civil cause previous to the repeal taking effect (ibid. p. 155, 5). That left two systems in force, and it is believed that each was applied as to old suits so far as the services had been rendered under them. Before the Revised Statutes, costs on appeal in certain cases, from a justice's court to the county court, were in the discre- tion of the court but the Revised Statutes gave the appellant full costs if he reduced the judgment against him $10 ; and the supreme court held, although the appeal was made before the Revised Statutes took effect, that the former statutes were repealed, and that there was then no law regulating the costs in cases of that kind but what was to be found in the Revised Statutes, which, therefore, must govern. (People ex. rel. Berry 122 ABBOTTS' PRACTICE REPORTS. Curtis a. Leavitt. v. Herkimer County Common Pleas, 4 Wend., 210). This put the decision on the ground that no other law as to costs but the new one was then in force. A like decision on the same prin- ple was made in the Supervisors of Onondaga v. Briggs, (3 Denio, 173), under the acts of 1840 44. And the court held that even in suits commenced before the act of 1840, if judgment were obtained after the act of 1844 took effect, all the costs were to be taxed under the act of 1844 but on the ground that the previous acts as to costs have been repealed, and so became totally extinct. The court said " When the 30th section of the act of 1840 came to be repealed by the act of 1844, all the provisions of the Revised Statutes regulating the compensation of counsellors and attorneys in this court became extinct," and that besides the two acts of 1840 and 1844, there was no other act in force when the suit was termi- nated, or when the" costs were taxed, bearing upon the subject. (Ibid. 175, 176). This case is different. These were equity suits, commenced before the Code took effect, and the Revised Statutes, as to the costs in such suits, remain to this day unrepealed, notwith- standing all the amendments of the laws ; they were not touched by the .acts of 1840 and 1844, and there never has been any act expressly repealing them. They, therefore, may stand along with the Code, and have generally been supposed still so to stand and to have equal force where the services were rendered under them. Section 459 of the Code, as amended in 1851, does not by implication repeal ^hem. It makes the provisions of the Code " apply to future proceedings in actions theretofore commenced, as follows when an issue of law or fact was to be tried, then the trial and all subsequent proceedings, and after judgment to the proceedings to enforce, vacate, modify, or reverse it, including the costs of an appeal." By its very terms it was to apply only to the future proceed- ings in the cause. The bills of complaint drawn and served in these cases, and the answers and replies also drawn and served, and the testimony then taken, and the order closing the proofs, all constituted parts of the past, (and not of the future,) pro- ceedings in the cause when the act of 1851 was passed. These services, too, were all rendered under a reasonable expectation NEW-YORK. 123 Curtis a. Leavitt. that they were to be paid for under the laws then in force. These laws do remain still in force, and have no application unless it be to cases when actions were commenced (as this was) before the Code took effect, and the costs had not yet been taxed, nor judgment rendered. They cannot be said to have been allowed to remain for cases where judgment had been rendered, but costs not yet taxed; for after judgment the rights of the parties would be fixed as on a contract, and the subse- quent repeal of the law could not affect such rights. It is also entirely contrary to the prevailing policy of the legislature to allow a law to retrospect, even where it does not impair a contract. Accordingly, the Code, by express terms, was not to apply to these existing suits, except in the first part of it, which relates only to the powers of the courts, ( 8). The statute of limitations adopted in it was made to apply only to future actions and causes of action, although such statutes affect the remedy only. The title of the Code relating to costs was included in the part which was not to apply to existing actions ; and while other sections were, by the supplementary act of 1849, made applicable to old suits, this title as to costs was excluded from that act, except section 315, as to costs on motion. This shows a deliberate purpose on the part of the legislature to save the right of costs for services already ren- dered, as they would a like right under an express contract. Such a clear purpose, so consonant to justice, ought not to be defeated on a supposed implication. Section 303 was quoted as repealing all the old fee bills ; but it must be taken with the qualification contained in section 308, which expressly permits its application to existing suits, and then it will only read that the old fee bills are repealed as to future suits, and leave them in force as to old suits. Then section 459 may apply the new system of costs to such part of the proceedings as should be had after that section took effect. This makes all consistent and just. The principle of the Code, as expressly declared, leads to the same result ; it declares in the same section that costs are allowed to the prevailing party ~by way of indemnity. If, as the counsel for the receiver argues, and as the decision of the Superior Court sanctions, the old bill is to prevail, as between attorney and client, the indemnity to the client can 124: ABBOTTS' PRACTICE REPORTS. Curtis a. Leavitt. only be by allowing him what the law compels him to pay to his attorney. The result is that the Code, as originally enacted, did not repeal the old fee bill as to suits previously existing ; and that although section 303 of the Code, as first enacted in terms, repealed the old fee bill, yet, by prior sections of the Code, that repeal applied only to future suits thus, before section 459 was enacted, the old fee bill was in force as to old suits, and the new fee bill under the Code as to new suits, and ser- vices were rendered with a fair understanding that they were to be paid for under the old system ; that this new section was added, applying the Code to all future proceedings in the old suits. The effect of this on section 303 was, that after this, the old fee bill was repealed as to all future proceedings, but in force as to all past proceedings. It can hardly be questioned that those who adopted this section meant it to apply only to the mode of future proceedings in such suits, and did not mean to disturb anything that had even the seeming of a pre-existing right ; otherwise they would not have been so careful to con- fine the effect of the section to future proceedings, and to include, by express terms, costs in appeal, and leave them out in other cases. This shows that they did not intend that past costs should be included in the general term (future proceed- ings) before used. The whole question, perhaps, turns more properly on the meaning of the decree than of the Code that gives taxable costs, expenses and. counsel fees. The costs intended must be such as would cover all the expenses of the party, legitimately incurred in the suit, and those would include for the attorney whatever might have been fairly taxed to him, as the services were rendered and the suit progressed. The taxing officer should proceed and tax the costs on the principles above stated, taxing all costs prior to July, 1851, under the Chancery fee bill, and all subsequent costs under the Code.* * Upon this subject, see also the case of Vernon a. Me Masters post. XEW-YOKK. 125 Allaire a. Lee. ALLAIRE a. LEE. New York Superior Court ; Chambers, December, 1854. ALLOWANCE. WHAT CONSTITUTES A TKIAL. When a plaintiff voluntarily submits to a nonsuit after evidence has been given on both sides, and while the defendant's counsel is summing up, it cannot be objected to an application by the defendants for an allowance, under 308 of the Code, that a trial has not been had. Motion for an allowance. After the evidence in the action had been closed, and while the defendant's counsel was addressing the jury, the plaintiff's counsel proposed to submit to a nonsuit, and was nonsuited. The defendants moved for an allowance under 308 of the \^* t*^- Code. It was objected that no trial had been had. ^y the complaint, the plaintiff is not- entitled to * For another view of this distinction, see Lawrence v. Wright, 2 Duer, 673. 206 ABBOTTS' PKACTICE REPOKTS. Drake a. Cockroft. what be claims. If a defendant wishes to urge this condition of things, he must do it by averring the existence of those facts. It seemed to me so obvious that this denial of the plaintiff's title to recover, contains nothing which can be called a state- ment of a fact, that no language could make it more plain ; but counsel for the appellant have deemed it doubtful, and pressed it upon our further consideration. The case cited by him (Allen v. Patterson, 3 Seld. 476), does not even tend to sustain such an answer. An averment in a complaint that the defendant was indebted to the plaintiff for goods sold and delivered by the plaintiff to the defendant at his request on a day named, and at a place stated, and that a sum named is due to the plaintiff from the defendant was held to import, and therefore in substance to be, an averment that at the time and place stated the plaintiff sold and delivered to the defend- ant the goods referred to, and the court in that case distinctly recognized the duty of a pleader distinctly to aver or state every fact on which he relies to support the legal proposition upon which his right to maintain or defend the suit, is dependent. For a second and distinct defence the defendant sets up what the pleader, (as if himself in some doubt by what name it can properly be called), terms a claim to an allowance of the "amount or valw'' of certain personal property "by way of counter-claim, recoupment or set off." And this claim is founded upon allegations that the defendant simultaneously with and as a part and parcel of the same hiring mentioned in the complaint, hired from the plaintiff, and held, used and occupied a certain stable and lot of ground adjoining the pre- mises described therein and that the plaintiff during the defendant's temporary absence, broke open the stable and wilfully took and removed the personal property of the defend- ant therefrom, and the same has been injured, destroyed and lost to the defendant. "What the property consisted of, or how much is its value, is not stated. If I thought it doubtful whether the matter thus pleaded as a second defence did or did not constitute a valid counter- claim in this action, I should not hesitate to say that it ought KEW-YOKK. 207 Drake a. Cockroft. not to have been struck out on motion, and that the plaintiff should have been left to his demurrer. In this respect I assent to the argument urged by the counsel for the appellant and to the authorities cited by him that questions of doubt ought not to be disposed of in this summary manner when a demurrer is the appropriate mode of trying them. But I can find no rea- son for any doubt upon the subject. The answer sets up a mere trespass by the landlord by taking, injuring and destroy- ing certain personal property which was upon a portion of the demised premises. It is not claimed by the counsel for the appellant that such a trespass could be set up, before the adoption of our Code, as a defence to an action by the landlord for the rent. But it is insisted that the counter-claim authorized by the Code includes the damages sustained by the tenant from such a trespass. The counter-claims which the Code authorizes are defined : 1st. A cause of action arising out of the contract or transac- tion set forth in the plaintiff's complaint as the foundation of the plaintiff's claim, or connected with the sufoect of the action. 2d. In an action arising on contract, any other cause of action arising also on contract, &c. A trespass upon real or personal property is not a cause of action arising on contract. The second cause above cited clearly does not authorize such a defence in an action upon contract, and the present is an action upon the contract of hiring. Does the first definition or explanation of the term counter- claim embrace the matter set up in this answer ? Obviously it does not, unless the cause of action set up in the answer arises out of the contract set forth in the plaintiff's complaint, or is connected with the subject of the plaintiff's action. The answer sets up a trespass by the landlord upon the demised premises and the destruction of the defendant's goods. It does not even claim damages for the entry or for any injury to* the possession, but only for the personal property destroyed. The contract set forth by the plaintiff is a letting and hiring and agreement by the defendant to pay the rent. The trespass 208 ABBOTTS' PRACTICE REPORTS. Drake a. Cockrof>. averred does not arise out of any contract. The liability of the plaintiff for the trespass does not result from that contract, nor is it affected by it. As a cause of action it is wholly inde- pendent of that contract, and the liability therefore exists to the same extent and is neither less nor greater than if the tres- pass had been committed upon any other premises in the occu- pation of the defendant. The landlord is no more liable for the trespass than for the like trespass committed elsewhere. Nor is the trespass connected with the subject of the action. Here the subject of the action is rent or money due upon the contract of hiring the compensation for the use and occupa- tion. The use and occupation have not been interfered with. They have continued without interruption. ' An interference with the possession, an eviction total or partial, an unlawful ' injury to the premises in violation of the agreement of letting, would have given the defendant a claim for damages which - , upon a liberal construction of the language of the Code might have been connected with the subject of the action so as to constitute a^counter-claim. . But a mere trespass is, in my opin- ion, no more connected with the subject of an action brought for the rent than an assault and battery of the tenant by the landlord would be. I can find no more ground for saying that such a trespass can be set up as a defence to an action for. rent now than be- fore the Code was enacted. The provisions of the Code above referred to were designed to affirm the right of a defendant to recover his damages in those cases in which a recoupment was proper before the Code was enacted. (See Reab v. McAllister, 8 Wend., 109, and Batterman v. Pierce, 3 Hill, 191). If the Code extends the right to any other cases not within the law of set-off (which I doubt), they are not such as is exhi- bited by the answer in question. In my opinion the order striking out what are termed in the answer the first and second defences, should be affirmed. NEW-YORK. 209 Gregory a. Trainer. GREGORY a. TRAINER. New York Common Pleas ; General Term, January, 1855. . PLEADING. EFFECT OF PLEA OF SET-OFF. The rule of the old system of pleading, that a special plea admits the matters stated in the declaration, is applicable to pleadings under the Code. Where the defendant, in a justice's court, did not deny the plaintiff's claim, but merely alleged a set-off which was not proven on the trial ; held, that judgment should have been rendered for the plaintiff. Appeal from a judgment of the Sixth District Court. The plaintiff claimed $13 damages, and the defendant pleaded a set-off. Neither party offered any testimony, and the justice rendered judgment for the defendant. The plaintiff appealed. J. D. Sherwood, for appellant, cited Code 53 64r, espe- cially subd. 1 to 8 and 15, 168, Young v. Moore, 2 C. JR., 143 ; De Courcy v. Spalding, 3 C. E., 16. J. Molony, for respondent. The plaintiff must prove some- thing before the defendant is obliged to enter into any proofs at all. If he does not put in some proof he is clearly out of court. INGKAHAM, F. J. The complaint is this case was for damages to the plaintiff's property, amounting to $13. The defendant's answer was a set-off, but what the set-off was, or what the amount of it was, does not appear. Neither party offered any testimony, and the justice non- suited the plaintiff. Under the former system of pleading, a special plea always admitted the matters contained in the declaration, and the rule is still applicable to pleadings under the Code. The plaintiff claimed to recover for damages to his property, which claim was not denied by the defendant, but he relied in his answer on a set-off. The effect of these pleadings was to admit the plaintiff's claim, and leave to the defendant the 14 210 ABBOTTS' PRACTICE REPORTS. Stewart's Case. proof of his set-off. For want of such proof, the justice should have rendered judgment against the defendant for $13. The judgment rendered in this case by the justice cannot be sustained. Judgment reversed, and judgment ordered for plaintiff for $13 and costs. STEWART'S CASE. New-York Common Pleas ; In Chambers, January, 1855. COMMITMENT FOE VAGRANCY. RECORD, HOW FILED. HABEAS CORPUS. Proceedings prior to a commitment for vagrancy cannot be reviewed on Habeas Cor- pus, if that commitment is regular, and the record of conviction is properly made and filed. Where the record of conviction should be filed. Habeas Corpus directed to the keeper of the penitentiary, directing him to bring the body of Sarah Stewart before the Judge. The return showed that the prisoner was detained by virtue of a commitment by Justice Connelly, on conviction of being a prostitute, and therefore a vagrant. It appeared on the hearing by a certificate of the county clerk, that no record of conviction had been filed with that officer, and it also appeared that the record of conviction had been filed with the clerk of the sessions. E. Blankman, for the petitioner, applied for the discharge of the prisoner, upon the ground that the statute defining who were vagrants, (2 It. S. ih ed., 34), did not include prostitutes, but they were disorderly persons, under the provisions of the act, (2 JR. /S., kth ed., 53), and in such cases, that the record of conviction could only be filed wit*h the county clerk. INGRAHAM, F. J. Sarah Stewart is brought before me on habeas corpus, and is alleged to be unlawfully detained in the penitentiary. The return shows that she was committed as a NBW-YOEK. 211 Stewart's Case. vagrant by Justice Connelly on the 16th January instant, for the period of three months, he having tried her upon a charge made against her, and convicted her of being a vagrant, on competent testimony of Daniel Carpenter, captain of fifth ward police, and that he had made and filed the record of conviction in the office of the clerk of the Court of Ses- sions. Under this proceeding, if the commitment is regular on its face and the record of conviction is properly made and filed, I cannot review the decision of the magistrate. That can only be done by the Supreme Court, on certiorari. The certificate of the county clerk is furnished that no record of conviction was filed there, and a copy of the record as filed with the clerk of the Sessions is also produced. It is contended by the petitioner's counsel that the record of conviction should have been filed with the county clerk, and not with the clerk of Sessions ; that the charge against the prisoner of being a prostitute, as stated in the commitment, did not warrant a conviction of vagrancy, but of being a disor- derly person ; and that in such cases the statute requires the record to be filed with the county clerk. There is some confu- sion in the different statutes, which without careful examina- tion, may lead to error. By the statute as to vagrants, (2 Rev. Stats., 4 ed. 34), cer- tain persons are declared to be vagrants, and upon conviction loy a magistrate, may be sentenced to the penitentiary, and the record of conviction is to be filed in the office of the clerk of the county. But in the enumeration of offences which may be tried under this chapter, the one of which this person is con- victed, (being a prostitute) is not enumerated. By the statute as to disorderly persons, (2 Rev. Stats., 4 ed., 53), a similar provision is made as to other offences, and the record of conviction is directed to be filed in the office of the clerk of the county. Under this class of offences, is enumer- ated that of being a common prostitute. In 1853 a statute was passed prescribing the form of the record, and directing that in all cases of conviction for vagrancy, the record of conviction shall be filed with the clerk 212 ABBOTTS' PRACTICE REPORTS. Stewart's Case. of the Sessions. The record in this case is substantially that prescribed by this statute. (Laws 0/"1853, 353). It is urged that this statute does not apply to the chapter of the Revised Statutes relative to disorderly persons, and there- fore the record of conviction should in such cases still be filed with the county clerk. This is so in regard to all offences which come under this description. But there is another statute which has been often overlooked, but which relieves this case from any difficulty upon this point. By the statute relative to the powers of the common coun- cil, &c.j passed January, 1833, (Laws of 1833, 9 ch. 11),, habitual drunkards, common prostitutes and others are declared to be deemed vagrants, and if the magistrate, on complaint before him, is satisfied by competent testimony that any per- son is a vagrant within the description therein stated, he is directed to make up and sign a record of conviction, which shall be filed in the office of the clerk of the Court of Sessions, and he shall by warrant commit such vagrant if the offender be an improper person to goto the almshouse to the peniten- tiary, for any time not exceeding six months. The proceedings in this case are, therefore, regular and in accordance with the provisions of the last recited statute, with- out reference to the act of 1853. And as by this act the offence charged is declared to be that of vagrancy, the provi- sions of the act of 1853 are also applicable to this class of cases, and the prescribed form of the record of conviction by that act is proper and sufficient for all offences embraced in the 12th section of the act of 1833. The record of conviction and the commitment are, therefore, regular and in compliance with the statute. If the allegations contained in the petition are true, injustice may have been done to the prisoner. It is there alleged that she was prohibited from producing witnesses on her own behalf, and from cross-examining witnesses produced against her, and that she is innocent of the charge made against her ; but the guilt or innocence of the prisoner cannot be inquired into upon habeas corpus after conviction. If there is any remedy and that there should be one no one can doubt it is NEW-YQBK. 213 La Chaise a. Lord. by the Supreme Court on certiorari. I have no power in this proceeding to review the correctness of the decision of the magistrate. The prisoner must be remanded and the writ discharged.* LA CHAISE a. LORD. New York Common Pleas ; Special Term, January, 1855. SPECIAL PARTNERSHIP. RIGHTS OF CREDITORS. APPOINTMENT OF RECEIVER. Where an action was brought on behalf of one firm out of a large number of credi- tors of an insolvent firm, and was brought not only against the general partners of the firm, but also against a special partner who denied his indebtedness : Held, that an application for an injunction and the appointment of a receiver must be denied. To warrant the granting of such an application ; It should be made in behalf of all creditors of the insolvent firm who will unite therein ; And all the defendants sought to be made liable as partners, should . S. O. It. 379, and the rule adopted in those cases as to limited partnerships was extended by Judge Edmonds to a general partnership, in Dillon v. Horn, (5 How. P. R. R., 35). Whether the decision in the latter case can be sustained it is not necessary now to decide. And when it appears that a disposition was made, or to be made, of the assets, in giving a preference to one creditor over another in view of insol- vency, the provisions of the 219th section of the Code are comprehensive enough to warrant such a proceeding. In the cases, however, to which I have referred, the action was commenced not for the benefit of the plaintiffs solely, but of all the creditors of the insolvent firm. The appointment of a receiver in those cases would have secured the partnership funds and assets for the joint benefit of all, and upon a distri- bution of such assets, the creditors would have been entitled equally to share in the proceeds thereof. There is a manifest propriety in requiring such a form of action before the property of the firm should thus be placed in the hands of the receiver. There is no equity in taking from a firm the whole of their prop- erty to pay or secure one individual creditor to the exclusion of others. The impropriety of thus placing in the hands of a receiver the whole of the assets of the firm to pay a claim of $1000, and thereby depriving other creditors having claims amounting to $64,000, of any proceedings against such assets until the first creditor is paid, is so manifest that it can require no argument to show that it ought not to be done. Even if the plaintiffs were judgment creditors, they could only have an order allow- ing a receiver to take sufficient of the assets of the firm to ob- tain the means of discharging their debt ; and until they are judgment creditors there is no propriety in giving them a receiver, unless in a case where the effect of such receivership will operate to secure all the creditors of the firm. I think, also, there is a difficulty in the present action which NEW-YORK. 217 La Chaise a. Lord. forms an objection to the granting of this motion. It should be required, to warrant such an order, that all the defendants sought to be made liable as partners, admit the indebtedness. The defendant Marks (to whose answer I have not before re- ferred, denied such indebtedness. He denies any joint indebt- edness whatever, and does not admit the plaintiff's claims. If he is sought to be held liable as a defendant, he certainly does not admit the indebtedness ; but, on the contrary, his answer shows a statement of facts which would, if proved, entitle him to a verdict. Besides, other creditors might not, even if the action had been commenced for all the creditors, have been williDg to engage in such a contest. It is not necessary for me to pass upon the questions argued before me as to the liability of Marks. His liability is denied. If it exists it is not admitted, so as to warrant me in granting this motion. If he is not liable, it can only be decided at the end of a protracted litigation, and the funds and assets of an insolvent firm should not be tied up from all the creditors for the purpose of enabling one creditor to enter into such a con- troversy. The granting of an injunction and appointing of a receiver in cases of this kind is admitted by the chancellor to be an addition to the former powers of a court of equity, and it seems to me to be proper that the power should only be exercised where the claim is undisputed, and where the pro- perty will as speedily as possible be applied to the use of the creditors. An objection was made upon the argument, and it appears in the defendant's answer, that another action is pending in this court for the benefit of all the creditors, and that such action was commenced prior to the present one. The mere existence of such an action, although a prior one, has no effect upon this motion. "Whether prior or subsequent in its com- mencement, it affords no ground to stay proceedings in other actions, until after a judgment has been rendered in a case in which the other creditors can combine and make themselves parties. After such a judgment a motion could formerly be made to stay proceedings in other suits, so far as relates to the appointment of a receiver. This was settled by the chancellor in Inness v. Lansing, before referred to. (7 Paige, 583). 218 ABBOTTS' PRACTICE REPORTS. Southwell a. Marryatt. This motion must be denied, with $10 costs, and the tempo- rary injunction dissolved, without prejudice to the renewal of it, if the plaintiifs shall by amendment obviate the objections which now exist, as above stated. SOUTHWELL a. MARRYATT. New York Common Pleas ; Special Term, January, 1855. VACATING JUDGMENT. DEFECTIVE SERVICE OF SUMMONS. Where it appears that a defendant has endeavored to avoid the service of the sum- mons, the court, on a motion to vacate the judgment for non-service of the sum- mons, will require the defendant to furnish satisfactory evidence that he was not served. Motion to set aside judgment. After judgment had been entered and execution issued in this case, the defendant asked leave of the plaintiff's attorney to be let in to defend, alleging that he' had never been served with any copy of the summons and complaint, that he had a good defence and also a counter-claim. The plaintiff's attorney consented to receive an answer, pro- vided the counter-claim was not a purchased demand, on the defendant's giving security for the debt, and serving an answer showing the dates, particulars, and all the circumstances of the alleged counter-claim, and consenting to a reference. The de- fendant refused to accede to these conditions and now moved to set aside the judgment, upon a verified answer, an affidavit of merits and affidavits showing that the defendant had never been served with summons and complaint. By the affidavit read in opposition to the motion, it appeared that the plaintiff's attorney had found great difficulty in serv- ing the summons and complaint on the defendant. That after making ineffectual attempts for some months to serve him, he learned in October, 1854, that he was working in a printing establishment in Frankfort-street. He thereupon sent the summons and complaint round by his clerk to be served. The KEW-YOEK. 219 1 ^Southwell a. Marryatt. clerk however did not know the defendant, but served the papers on a person whom he supposed to be the defendant. On returning to the office and describing to the attorney the person served, the attorney thought a mistake had been made, and went to the place in Frankfort-street with his clerk. He then found the defendant, but discovered that the papers were in possession of a man by the name of Blowers, who, how- ever agreed to give them up. While the attorney was talking with Blowers, Marryatt, the defendant, started off. The attor- ney followed him, but Marryatt was the fleetest, and escaped from the attorney, and the attorney was unable to make the service at that time. It also appeared that another clerk of the plaintiff's attorney had served the summons and complaint on some one answering the description which had been given him of the defendant,, but who was not personally known to him. H. rewster, for plaintiff. Allen, Hall and Stacker, for defendant. INGRAHAM, F. J. Although the proof of service of the sum- mons on the defendant is not of that conclusive character that it ought to be, yet the conduct of the defendant as disclosed in these affidavits, is such as to justify the court on a motion ta set aside the judgment, in requiring satisfactory proof that the affidavit of service was untrue. The defendant after he had knowledge of the erroneous service of the summons on his foreman, and when requested to wait till it could be procured' from the foremanj who was then present, so that it could be' served on him, not only immediately departed, but endeavored to avoid the service and to conceal himself from the plaintiff's attorney. I cannot resist the conclusion that throughout, there has been on the part of the defendant, a constant endeavor to avoid the service of process in this case ; and I arn not satisfied that it was not served on the defendant. As the defendant has sworn to merits, and the service of summons is involved in doubt, the defendant is permitted to answer within five days upon serving with his answer a con- sent to refer the case to a referee. If the parties do not agree 220 ABBOTTS' PEACTICE EEPOETS. Meyers a. Trimble. on such referee, either party may on two days notice, apply to the court to name such referee. The judgment to remain as security, and the costs of the judgment and $10 costs of this motion to abide the event. If defendant does not accede to these terms, the motion is denied, with $10 costs. MEYERS a. TRIMBLE. York Common Pleas ; Special Term, January, 1855 ; Again, February, 1855. ADMISSION .OF PAKT OF PLAINTIFF'S CLAIM. SATISFACTION. I. Where defendant by answer admits a part of plaintiffs claim to be just, an order requiring him to satisfy such part, will be made in the Common Pleas, not- withstanding that the defendant has made an offer in writing to allow the plain- tiff to take judgment for the sum admitted to be due. II. Such an order will be enforced by attachment, if necessary. I. January. Motion that defendant be required to satisfy a part of plaintiff's claim, admitted by his answer to be just. No defence was made to the complaint in this action, but a counter-claim was interposed, leaving however a balance due to the plaintiffs of $310. The defendant offered to let the plaintiff take judgment for that amount. The plaintiff however moved under 244 of the Code for an order directing the defendants to pay the amount admitted to be due. A. Mathews, for the motion. Meeks & Waite, opposed. INGRAHAM, F. J. The defendants by their answer, do not deny the plaintiff's claim, but set -up, as a counter-claim, moneys due to him, leaving a balance due from the defendants exceeding three hundred dollars. To this there is no defence pretended, and under any circumstances the plaintiff would be entitled to recover that amount. The defendants have also offered to permit the plaintiff to take judgment for the same sum. NEW-YORK. 221 Meyers a. Trimble. The plaintiff now moves for an order directing the defendant to pay the amount admitted to be due. It would be necessary, before such an order could be made, to ascertain clearly that the defendant made no defence to that portion of the claim, and when that is established, there can be no cause why the defendants should not be required to make pay- ment. If the defendants have a counter-claim to the plain- tiff's demand, sufficient remains to protect them in case of a recovery. Any other rule would enable a defendant, by setting up a counter-claim for a small amount, to deprive his creditor for a long time of his rights, to which in reality no- defence existed. It was said the Superior Court had decided otherwise, in Dolan v.. Petty, (4 Sand. S. C. It. 673), but in that case there was not a distinct admission of a balance being due, and the discretion of the court was properly exercised in refusing that motion.* A case recently decided was also referred to ; but as the same has not been submitted to me, I am unable to see whether it is applicable to this motion or not. It was also suggested that there was difficulty in enforcing such an order, and, therefore, it should be refused ; but such a reason is not a good one to warrant us in .refusing to make it. If the order cannot be enforced, the defendants will reap the benefit of the defect in the law. No difficulty however, need be anticipated on that part of the proceeding. I see no reason for refusing the motion. The same is granted. 6 II. February. Motion in the same case for an attachment. * In Smith v. Olssen, (4 Sand. 711), DUER, J., on advisement with all the justices of the Superior Court, laid down the general rule, that that court will not make any order for payment by the defendant under the last clause of subdivision five of sec- tion 244 of the Code upon his admission in the answer, where it is made to appear that the defendant has, previous to answering, made to the plaintiffs an offer in writing, allowing him to take judgment for the sum admitted to be due by the answer, as prescribed in section 385. In the present case the offer was served Dec. 7, 1854. The answer was verified on the same day ; but whether the offer, or answer was first served, does not appear, from the motion papers. The case referred to as " recently decided," in the same court, was, we believe, that above stated. 222 ABBOTTS' PRACTICE EEPORTS. Meyers a. Trimble. The defendant having for more than twenty days neglected to obey the order of Ingraham, J., above mentioned, the plain- tiff moved for an attachment to enforce his obedience to it. A. Matthews, for the motion. An attachment is a provi- sional remedy, within the meaning of section 244. A. Waite, opposed. If an order like this can be enforced by attachment, it is done in direct contravention of the statute abolishing imprisonment for debt. The court should not enforce by attachment, the payment of a mere debt, but should confine that remedy to cases where its use is necessary in order to reach a specific fund ; and to cases of fraud, trust, and the like. If we are honest enough to admit that a sum is due, then by the plaintiff's argument, we are to be imprisoned if we have not the means of paying it ; whereas if we had denied it, or let the case go by default, we could never have been imprisoned. Both the statutes are to be taken together ; and section 244 is to be construed in favor of liberty. The plaintiff may enforce this payment by execution on final judgment. [DALY, J. That is not enforcing it as a provisional remedy.] The Code points out those cases in which a party may be arrested ; and in no part of its provisions does it contemplate that the humane provisions of the act of 1821, shall be abro- gated. It was never intended that a plaintiff should have any other right than to issue execution against the property of a debtor, to enforce the payment of a mere debt. Matthews. The Code has been passed since the act of 1821, and governs its construction. The answer admits a part of the debt to be due, and we are entitled by the provisions of section 244, to compel its payment by attachment. DALY, J. (Orally). The granting of this attachment does not necessarily conflict with the law abolishing imprisonment for debt. The Code declares that where the answer admits a part of the plaintiff's claim to be due, the court may enforce an order directing the defendant to satisfy so much of the NEW-YOKE. 223 Merritt a. Thompson. claim, in the same way as it enforces a provisional remedy ; that is, by attachment. Such an order has been made. The defendant has neglected to comply with it, within the time given to him, and the plaintiff is entitled to an attachment, for presumptively the defendant is in contempt. There need be no conflict with the law abolishing imprison- ment for debt. Upon the return of the writ the defendant may purge his contempt. He may satisfy the court of his pecuniary inability to comply with the order, and if he does so, the court would undoubtedly discharge the attachment. Motion granted* MERRITT a. THOMPSON. New York Common Pleas ; General Term, January, 1855. ADMISSION OF PAKT OF PLAINTIFF'S CLAIM. SATISFACTION. When a fund in litigation has been brought into court, and the answer of defendant admits a part of it to be due to the plaintiff, but disputes his claim to the residue, the court may order the sum admitted to be due to be paid over to the plaintiff without prejudice to his further claims. Previous offers by the defendant to pay that sum to the plaintiff, in full satisfaction of his claims, form no reason why such an order should be refused. The distinction between an offer on the part of defendant to let judgment be taken against him for a specified sum, and his admission by answer that a part of plaintiff's claims is just. It seems, that the general term should not on appeal from an order directing the payment of money admitted to be due to the plaintiff, review the discretion exercised at special term in respect to conditions on which the order should be granted. Appeal from an order at special term directing payment to plaintiff of moneys admitted to be due to him. . The plaintiff set forth in his complaint that the defendant was indebted to him for the proceeds of the sale of the plain- tiff's interest in the ship Mischief, and also for earnings of the ship ; which proceeds and earnings defendant had received as agent of the plaintiff, and had been deposited by him to his own credit with his bankers. He prayed and obtained an injunction forbidding the defendant to interfere with the deposits. The answer admitted that a certain sum was due the plain- tiff, but denied the residue of his claim. 224 ABBOTTS' PRACTICE REPORTS. Merritt a. Thompson. On the 'application of defendant, an order was then made, allowing him to pay into court the fund deposited with his bankers, and this was done. Subsequently the plaintiif applied at special term for an order directing the clerk to pay over to him, out of the fund in court, the amount admitted by the answer to be due him. The order applied for was granted, the following opinion being filed. INGRAHAM, F. J. The defendant by his answer admits that, after deducting all his alleged counter-claims, there remains a balance due to the plaintiff, and such balance amounts to $2,675 34:. To this part of the claim no defence is set up, and the plaintiff now moves that the defendant be ordered to pay over such moneys, and that so much of the money now depo- sited in court be paid over therefore. For the reasons why in such cases the motion should be granted, I refer to the opinion in the case of Meyers v. Trimble,* decided this day at special term. It is objected by the defendant, in addition to other objections therein referred to, that in this case a difference of interest will accrue in favor of the defendant on his counter- claim in consequence of the money being deposited in the Trust Company, under an order of the court, at a low rate of interest. The objection is unavailing. The money in the Trust Company was not placed there at the request of the plaintiff, but of the defendants, and, if the interest is small, the plaintiff only receives at that rate on this order. The defendant had no right to object to what was done at his request, and if it were otherwise, the defendant has security in the bond given on the injunction sufficient to protect him against loss on the counter-claim. The motion must be granted. From this decision the defendant appealed. F. Dykers, for appellant. I. Section 244: of the Code, is inconsistent with the whole spirit of our legislation in regard to imprisonment for debt. It gives the court power in any case, where a sum is admitted to be due, to incarcerate the * Ante, p. 219. NEW-YORK. 225 Merritt a. Thompson. defendant in case he disobeys the mandate to pay, whether he is wholly unable to pay or not. (Dolan v. Petty, 4 Sand. /SI C. R. 673). II. In the present case one of the sureties put in by plaintiff on the arrest and injunction, is insolvent, the other is in bad credit, and the plaintiff himself is not a householder. Certainly it should be made a condition of granting the order that plain- tiff put in fresh security. H. F. Clark, for respondent. WOODRUFF, J. The complaint herein is filed to recover from the defendant a large sum of money alleged to have come to the defendant's hands as agent for the plaintiff; and an injunc- tion having been granted to restrain the disposition of the spe- cific fund in the defendant's hands or in the hands of his banker, the defendant himself moved for and obtained an order, in pursuance of which the money held under injunction was brought into court and deposited in the New York Life and Trust Company to abide the further order of the court. Upon the coming-in of the answer, the plaintiff applied at spe- cial term before the first judge and obtained an order upon motion, directing the payment to the plaintiff of the sum of $2675,34: out of the money so brought into court. This motion was founded upon the provisions of 244 (Subdiv. 5) of the Code of Procedure, and from the order so made the defendant appeals. I concur with the first judge in the propriety of making the order upon the plain and unqualified admissions in the defend- ant's answer. The plaintiff claims the proceeds of a sale of the ship, made in China. The defendant sets up a sale of the ship at San Francisco for a less sum, admits that the plaintiff is entitled to the proceeds of that sale, and denies that the plaintiff has any interest in the sale in China, (which he avers was made for the account of the San- Francisco purchaser). And the defendant annexes to his answer a statement of his account with the plaintiff, crediting to him the proceeds of the sale at San Francisco, and charging him with all the remit- tances and all his claims for commission and for matters of set-off, and by his sworn answer declares it to be a " full, accu- 15 226 ABBOTTS' PRACTICE REPORTS. Merritt a. Thompson. rate and true account," c., and that account in very terms states that the " balance due W. II. Merritt (the plaintiff) is $2675,34" and again in his answer he denies that any greater sum than $2675,34 is due to the plaintiff. Now, however much the parties differ in relation to the other matters stated in the complaint and answer respectively, it is not disputed in any form that at least so much as $2675,34 of the moneys now in court do belong to the plaintiff. To this extent the defendant's answer, read with the schedule annexed, is unqualified. This appears to me to be the precise case contemplated by the provisions of the Code above referred to, viz. : " 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 the claim, and may enforce the order as it enforces a provisional remedy." But the counsel for the appellant insists that the defendant has offered and tendered to pay this sum heretofore, and that therefore the court ought not to make the order for the pay- ment, but require the plaintiff to accept the offer as in full for his claim if he takes the money at all. It appears to me that nothing could be more inequitable ; it is in effect saying to him, " abandon your claim, take just what the defendant admits to be due, admit all that the defendant alleges as a de- fence, and be content ; if you will not do this you shall not take the money which is your own, to which the defendant admits he has no title, and which is in court awaiting the order which may be made, and which (whatever may be the result of the matter in dispute) must be decreed to belong to you." Where a defendant is insolvent, and either comes in, by the offer to allow judgment to be taken against him for a sum named under 385 of the Code, or by his answer makes such an offer, the court should and would be very careful not to substitute process of attachment for contempt in the place of a judgment and ordinary execution, since the former might in- volve imprisonment of the body in many cases where such imprisonment for a mere debt was probably not contemplated by the legislature. But where, as in the present case, the de- fendant not only admits this part of the plaintiffs claim to be NEW-YOBK. 227 Merritt a. Thompson. just, but actually offers to pay it if the plaintiff will abandon his other claims, and especially where the money is itself under the control of the court, no such reason exists, and there seems to me to be no reason for withholding the money from , the plaintiff. In giving power to the court (when a defendant admits a sum to be due) to make a peremptatory order that the defend- ant pay it and to enforce the order by attachment, the legisla- ture did not intend to introduce imprisonment for debt in cases where it is not allowed upon other grounds, except when the refusal to pay was contumacious, and not the result of inability. If a defendant has the money and only refuses because he is unwilling, it is in all respects proper that he should be com- pelled to pay and be imprisoned until he does so. The counsel for the appellant further insists that the order should at all events have only been granted upon terms that it appears by the affidavits read on the motion that one of the sureties to the undertakings given on granting the order of arrest and the injunction herein, has become insolvent, and the plaintiff ought to have been required to give a further under- taking. It appears to me that such a requirement would not have been unreasonable, but I do not think the order should be reversed upon that ground. Indeed I doubt very much the propriety of reviewing upon appeal the discretion exercised by the judge at special term. It is true that an order granting or refusing a provisional remedy may be appealed from, and hence this appeal is pro- perly brought, and under the same provision of the Code an appeal may be brought from an order directing an arrest. But on an appeal in the latter case the court would not, I think, review the discretion exercised by the judge in determining whether such order shall issue upon an undertaking " with sureties" or an undertaking " without sureties," either being proper as the judge granting the order may direct. The same remarks are applicable to an order granting an injunction either on an undertaking by the plaintiff with sure- ties or without sureties, as the court or judge may direct. The question whether or not in such case the injunction was pro- per, is undoubtedly the subject of review, but I very much 228 ABBOTTS' PRACTICE REPORTS. Slauson a. Conkey. doubt the propriety of considering those matters of discretion, which relate to the terms or conditions imposed. So in regard to the granting or refusing of costs or requiring a party to give time or other indulgence as a condition of granting an order, it seems to me that the action of the special term should be regarded as final when no right of the party nor any rule of law is violated. Again, in the present case, the court, on granting the injunc- tion, might have dispensed with sureties altogether, or might have been satisfied with the undertaking on the part of the plaintiff with one surety. The defendant has now the liability of the plaintiff himself and of one solvent surety, and this will ordinarily prove ample to protect the defendant. Besides, the only damages which the defendant is liable to sustain by the litigation, against which he could ask indemnity, is a possible loss of interest on the fund in court at the rate of two per cent per annum, and his costs of suit. There is no pretence that the plaintiff is not solvent and fully able to meet any liability to indemnify the defendant in these particulars if the latter should recover judgment. There is, moreover, at least one solvent surety to the plaintiff's undertaking. I am not, therefore, disposed to interfere with the discretion exercised at special term in not imposing upon the plaintiff the duty of giving further security as a condition of granting the order, and on the merits I think the order was eminently just and proper. It should therefore be affirmed. SLAUSON a. CONKEY. Supreme Court, First District; Special Term, January, 1855. L V ADMISSION OF PART OF PLAINTIFF'S CLAIM. SATISFACTION. Plaintiff sued to recover the price of goods sold to defendant, with damages for non-delivery of notes agreed to be given in payment for them. The defendant by answer, admitted the purchase of the goods at the price stated. Held ; that an order might be made under $ 224 of the Code, requiring the defend- ant to pay the price of the goods. Motion that defendant be required to satisfy a part of plain- tiff's claim, admitted by his answer to be just. NEW-YOEK. 229 Slauson a. Conkey. KOOSEVELT, J. The defendant admits in his answer that he has had the plaintiff's goods that he purchased them at the price stated that such price was to he paid in certain speci- fied indorsed notes at six months, which he was to forward to the plaintiff within three or four weeks that he has not paid for the goods either in such notes pursuant to his agreement, or otherwise that he has nevertheless sold a part of them and assigned the residue for the benefit of creditors. The plaintiff's action is for the value of the goods, treating the sale as a conditional one, and the defendant's acts as a wrongful conversion. They are willing now, however, instead of incurring the expense and delay of a trial, to take the defendant's answer, and to confine their remedy to its admissions. " When the answer of the defendant, (says the amended Code, 244), admits part of the plaintiff's claim to be just, the Court on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a provi- sional remedy." Such motion is now made. Strictly construed, the case would seem not to come within the provision. In principle, however, it does. And the Code prohibits a strict construc- tion, not only of its own language, but of the language of all proceedings under it. All allegations are to be " liberally construed." And in the 176th section, lest the object should in any case be lost sight- of, the legislature have dictated a rule so clear and comprehensive as to admit of no doubt, and so positive as to allow of no evasion. " The court, (say they) shall in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the sub- stantial rights of the adverse party ; and no judgment shall be reversed or affected by reason of such error or defect." If there be any defect therefore in the complaint in its adap- tation to the case admitted in the answer, such defect must be disregarded, unless it affect, as it is obvious in this case it does not, the substantial rights of the defendant. Treating then the suit as STibstantially an action for the price of the goods, and perhaps something more in the shape of damages for the non- - delivery of the notes ; and treating the answer as an admission 230 ABBOTTS' PRACTICE REPORTS. Jacques a. Greenwood. of the justice of the first part of the claim, I am compelled to make an order requiring the defendant to satisfy that part, to wit, $678 34, with interest from the 21st May, 1851. I am the more free to make this order, as it can do no con- ceivable injustice to the defendant, while a denial of the appli- cation could only result in delay, vexation and expense to the plaintiif, turning him over either to a new suit or to a very superfluous trial by jury, to determine an issue which the defendant to all practical purposes, has substantially admitted." Order accordingly, with costs. JACQUES a. GREENWOOD. New York Common Pleas Special Term, January, 1855.. ENTRY OF JUDGMENT. JOINT DEBTORS. Where several defendants are sued on a joint liability, there can only be a joint recovery and judgment ; and no judgment can be entered by plaintiff, until all the defendants served have had the full time to answer. Where a joint answer of two defendants was served after the time for answering by one of them had expired, and the plaintiff's attorney returned it, waited until the time of the other defendant had also expired, and then entered judgment : Held, that the judgment was regular. Motion to set aside judgment. The action was upon a promissory note made by the defend- ants, Greenwood and Brewster, in their firm name" of Green- wood & Co. On the last day for answering by the defendant Greenwood, which was the day after the defendant Brewster's time expired, towards the latter part of the afternoon, the attorney of both the defendants, served a joint answer by both of them. The plaintiff's attorney returned it, with written notice that he could receive no answer from Brewster, his time having expired. The next day he entered the judgment which was now sought to be set aside. J. A. Stoughtenburgh, for the motion. W. JR. Stafford, opposed. NEW-YOKE. 231 Jacques a. Greenwood. INGKAHAM, F. J. In an action against joint debtors, the time to answer had expired as to one defendant, but not as to the other. The defendants' attorney served an answer as to both, which was returned by the plaintiff's attorney, and on the same day judgment was entered up against both defendants. A motion is now made to set aside the judgment. The practice of entering up judgment against two joint debtors on the default of one, before the time for answering on the part of the other defendant had expired, cannot be approved. The right to take judgment against one defendant on default, before the other has answered or made default, only applies to cases where a several judgment is proper, and cannot authorize a judgment against both defendants, even so far as to affect only partnership property. But where the liability is only a joint liability, there can only be a joint recovery and judgment, and no judgment can be entered up until all the parties served have had the full time to answer. The 136th section of the Code lays down the practice very clearly, where it says, if all the defendants have been served, judgment may be taken against them severally, when the plaintiff would have been entitled to judgment if the action had been against such defendants alone. If the action be against defendants jointly liable, the plaintiff may proceed against the defendant served, and Justice Parker's comments on this section in Mechanics and Farmer's Bank v. Eider, (5 How. Pr. It., 401), show that this judgment is irregular. I would deny this motion if I could consistently with the provisions of the Code, because it is apparent to me that the answer is evidently put in for delay, and in some respects must be false. The answer admits the making of the note by the defendants as partners, to the payee, and denies any knowledge or information sufficient to form a belief as to the other alle- gations of the complaint. One allegation is that the defend- ants have not paid the note, and it can hardly be believed that the defendants have not information or knowledge suffi- cient to form a belief whether they have paid such note or not. The other allegations which are denied are the indorse- ment by the payee, and that the plaintiffs are the lawful holders of the note. Of both these facts the defendants could 232 ABBOTTS' PEACTICE EEPORTS. Jacks a. Darrin. have satisfied themselves with much less trouble than they could have made and sworn to such an answer. The plaintiffs attorney was right in returning the joint answer of the defendants after the time for pleading by Brew- eter had expired, and as he had waited until the time for the other defendant to answer had also expired, his judgment is regular. This motion is denied, with leave to defendants to renew motion on papers disclosing the defence they intend to set up to the plaintiff's claims. The costs of this motion to remain until renewed motion is decided. JACKS a. DAREIN. Hew York Common Pleas / Special Term, January, 1855. COSTS. REVERSAL OF JUSTICE'S JUDGMENT. On the reversal of a judgment of a justice of a district court, the appellant is enti- tled to those costs of the court below, to which he would have been entitled if the proper judgment had been rendered there. Appeal from taxation of costs by the clerk. This case was brought into this court on appeal from the judgment of a district court, and that judgment was reversed.* The appellant, who was the plaintiff below, desired the clerk to include in the amount of costs to be inserted in the entry of judgment awarded to him, the costs to which he would have been entitled had judgment been rendered in his favor in the court below. This the clerk refused to do, and appeal was taken from his decision. P. Van Antwerp, for appellant. W. R. Stafford, for respondent. INGRAHAM, F. J. The question submitted to me in this case is, whether, on a reversal of a judgment of an inferior court, the appellant is entitled to the costs of the court below, which he would have been entitled to if the proper judgment had been rendered there. See Ante, 148. NEW-YORK. 233 Jacks a. Darrin. By the 371st section of the Code, the party succeeding in the appeal is to receive the fees and costs therein specified, and no other excapt disbursements. These costs so specified evidently were intended as the compensation for the services on the appeal, and the disbursements must likewise be limited to disbursements made during the appeal. By the 354th sec- tion, provision is made for the repayment to the appellant, when successful, of the costs of the court below, paid by him on appealing. By the 330th section, in case of a reversal of the judgment, the court is to restore the appellant to all pro- perty and rights lost by the erroneous judgment. If the proper judgment had been rendered in the court below, the appellant would have recovered his costs there. This was a right given him by the statute, of which he was deprived by the erroneous judgment below, and which the courts should make restitu- tion by ordering it now to be paid. This section has received a similar construction by Judge Welles, in the case of Estus v. Baldwin, (9 How. P. 7?., 80). The court, however, must make such restitution, and it can- not be done as a matter of course by the clerk. The better course probably would be to submit with the appeal papers the application for costs, in case of reversal, with the certifi- cate of the clerk below of the amount*of costs, and in such case the order could be made on deciding the appeal. In this case the parties have submitted all the facts, and the order can now be made directing the clerk to include in the bill of costs the ,amount as certified to by the clerk of the Marine Court. The clerk was right in rejecting the item of costs paid by the appellant on his appeal. That money remains with the court below, and as before stated, is to be repaid by the justice in case of reversal. The respondent has never received it, and it should not form part of any judgment against him. No costs allowed on this motion to either party. 234 ABBOTTS' PRACTICE REPORTS. Miller a. De Peyster. Anderson a. The Same. MILLER a. DE PEYSTER. ANDERSON a. THE SAME. New York Superior Court ; General Term, January, 1855. COSTS. INTERPLEADER Upon a bill of interpleader, the unsuccessful claimant adjudged to pay all costs recovered by the plaintiff, and also all costs of his co-defendant, both upon the bill and in an action at law between the claimants upon the same subject matter. Certain sums were due from the plaintiffs, to the owner of certain real estate for rents of the same. The title being in litigation, the plaintiffs filed bills of interpleader against the defendants, De Peyster and Yan Rensselaer, who were the adverse claimants, at the same time paying into court the rents, or a large portion of them. A decree was entered in favor of the defendant, De Peyster, and adjudging that he and not the co-defendant, Van Rensselaer, was entitled to the rents, and adjudged the plaintiffs entitled to their costs in this suit, and also to their costs in several suits at law previously brought against them by the defendant, De Peyster, in the Supreme Court, to be paid out of the fund paid into court on filing the bills. The decision of the court, however, upon the point as to which defendant should be ultimately responsible for the pay- ment of the plaintiff's costs, was reserved, in order that evi- dence might be taken as to whether any understanding or arrangement had existed between the co-defendants relative to the enforcement of their claims against the plaintiffs. Such an arrangement the defendant, Yan Rensselaer, had alleged and his co-defendant De Peyster denied. Evidence upon this point being reported by the referee which failed to substantiate the alleged understanding, the following opinion was rendered by the court on the question of the apportionment of the costs. Cambridge Livingston for defendant, De Peyster. Joseph Blunt, for defendant Yan Rensselaer. NEW-YORK. 235 Miller a. De Peyster. Anderson a. The Same. BY THE COUKT. HOFFMAN, J. By a decree of the gen- eral term of this court, made on the llth of October, 1852 r it was declared that the defendant, Yan Rensselaer, had no title or interest in the funds referred to in the pleadings ; but that the same belonged exclusively to the defendant, De Pey- ster, and that the claim set up by defendant, Van Rensselaer, was totally unfounded and untrue. The decree declared a certain sum to be due from the plaintiff, Miller, to the defendant, De Peyster, for rent, and certain other sums from the other plain- tiffs. A large part of the moneys so decreed to be due, had been paid into court by the plaintiffs upon filing their bills. These sums were adjudged to belong to De Peyster, and the plaintiffs ordered to pay him the balance respectively, if there should remain any balances after payment of their costs, to which the decree declared them entitled, as well as to the costs of the suit instituted against them by the defendant, De Peyster, in the Supreme Court. These bills were bills' of inter- pleader, filed by the respective plaintiffs, after suit at law com- menced against them by De Peyster, and by reason of a claim for such rents, made upon the parties by the defendant,. Yan Rensselaer. The court at general term did not proceed to determine tne question of costs as between the co-defendants in the inter- pleader suits, in consequence of an averment that an arrange- ment had existed between the late John "Watts, and Yan Rensselaer, and also between Yan Rensselaer and the defend- ant, De Peyster, relating to the enforcement of the claims for rent. An order of reference was made to inquire into the existence and extent of any such arrangement, and the ques- tion of costs is now to be settled upon the report which has been made upon that matter, and the accompanying evidence. The defendant, De Peyster, denies in his answer any such agreement as is alleged, and there is no proof whatever to- establish it against him. Evidence is adduced to shew that there was such an arrange- ment made with Mr. Watts, the effect of which would be that the institution of such suits for rent, was a violation of a con- tract between Yan Rensselaer and himself, and should at least exempt the latter from paying costs. This testimony consists 236 ABBOTTS' PEACTICE REPORTS. Miller a. De Peyster. Anderson a. The Same. of several letters from Mr. Watts, none of which in any degree establish the allegation. The other is the testimony of the highly respectable counsel, who can only speak of a contem- plated arrangement for the collection of the rents and pay- ment into the Trust Company, which he allows was not con- summated. There is also some unimportant evidence of Anthony Pricker, as to a conversation with Mr. Watts, in which he was told by the latter that he need not pay any more rent till the matter was settled. It should be observed that Mr. Watts died in 1836, and the suits in question were not commenced until the year 1847. This defendant has failed in proving any agreement compe- tent to vary the ordinary rule in these cases as to costs. That rule is well settled, and renders the unsuccessful claim- ant responsible for costs in all cases except where special cir- cumstances have induced the court to exercise its discretionary power in* his favor. (Richards v. Salter, 6 John. Ch. Rep. 448, and cases cited ; also Mason v. Hamilton, 1 Simons, 19). The costs allowed under these decisions are undoubtedly all the successful defendant's costs in equity, and all the costs which are taken by the plaintiff in the interpleading bills both in*equity and at law. I have had some doubt as to the costs of that defendant at law, and these were not given in Richards v. Salter, nor apparently in Henary v. Key, (Dickens, 291). But it was done in the well-considered case of Dawson v. Hardcastle, (2 Cox, 277), and in Mason v. Hamilton, (1 Simons, 19). It appears to be the reasonable rule. The order will be, that the defendant De Peyster recover from the defendant Van Rensselaer all the costs which the plaintiff shall be paid or retain out of the money in court, or the unpaid balance in their hands respectively, and also all the costs of such defendant in this suit, and of the action at law commenced by him. The order will be drawn by the defendant Yan Rensselaer's attorney, and submitted for settlement upon notice. NEW-YORK. 237 Deuel a. Spence. DEUEL a. SPENCE. Court of Appeals ; December Term, 1854. PLEA OF USURY. VARIANCE. ACCOMMODATION INDORSEMENTS, The provisions of the Code respecting variance between pleadings and proofs are applicable to the defence of usury. Unless the proofs of usury differ from the answer in its entire scope and meaning, the variance will be deemed immaterial if the plaintiff gives HO proof that he was misled to his prejudice. Testimony going to show usury, but at a different rate from that alleged in the pleadings ; held, wrongfully excluded. It seems that it is no misapplication of a note sufficient to discharge an accommo- dation indorser that the note is discounted or pledged by the maker in a manner in violation of the understanding had with the indorser, so long as the proceeds fairly realized are not misapplied. This was an action brought in the Superior Court by the plaintiff, a partner in the late firm of Buckley, Jr. & Deuel, upon two promissory notes made by Sweet & Tibbs * and in- dorsed by Spence, and which, upon the dissolution of the part- nership, being over due and unpaid, had been assigned to Deuel by his co-partner. The defendant Spence, the indorser, averred in his answer, " that the notes mentioned in the complaint were indorsed by this defendant without any consideration therefor, for the benefit of and to enable the firm of Sweet & Tibbs to obtain a loan upon one of them only, from one of the banks at which they were respectively made payable, and upon the agreement that the one not discounted should be returned to this defend- ant ; and in case neither should be discounted, both should be returned to the defendant or destroyed. That said Sweet & Tibbs failed to get either of said notes discounted at either of the said banks, and wholly omitted to either return or destroy said notes according to said arrangement and agreement. That instead of returning or destroying the same, he deposited or delivered the said note for $675 with Buckley, Jr. & Deuel, of which firm the plaintiff at the maturity of said note was, and defendant believes still is, a member thereof, to secure an 238 ABBOTTS' PRACTICE BEPORTS. Deuel a. Spence. antecedent or pre-existing debt previously due to the said Buckley, Jr. & Deuel for about $544, for a usurious loan of that amount made by them to Sweet & Tibbs at the rate of one per cent per month, or more than the legal rate of interest allowed by law, and upon the understanding that said Buckley Jr. & Deuel should forbear and give twelve or fifteen days further time of payment of said $544 at the rate of one per cent per month for interest, and also deposited or delivered said note of $700 to said Buckley, Jr. & Deuel as a security for a loan of $675 then and there loaned by them to said Sweet & Tibbs upon a corrupt and unlawful agreement, that said Buckley, Jr. & Deuel should give twenty days for the payment thereof, and take and reserve for the use or forbear- ance of said sum of $675 interest at the rate of one per cent per month, or a greater sum than that allowed by law for the use or forbearance of money. That before or at the time of taking said note, as this defendant is informed and believes, the said Buckley, Jr. & Deuel had full notice of the object for which they were indorsed by this defendant, and that they were indorsed without consideration, and notwithstanding such knowledge of the misapplication and want of consideration, took the said notes as aforesaid." These allegations were denied by the reply. On the trial the counsel for defendant offered to show a general agreement between Buckley & Deuel, and Sweet & Tibbs, as to ,the amount of interest to be paid by Sweet & Tibbs, and received by Buckley & Deuel, on all moneys lent by them to Sweet & Tibbs. The counsel for the plaintiff ob- jected to the testimony. The court overruled the testimony, and the counsel for the defendant Spence excepted. Upon the point of usury, among others, the court charged the jury that if the note had been discounted, or money ad- vanced upon it at the rate of one per cent a month, as the defence set up, the plaintiff could not recover ; but that unless it was proved that the rate was to be one per cent a month, the defendant was liable. And to this the defendant's counsel excepted. Verdict was found for the plaintiff. NEW-YOKE. 239 Deuel a. Spence. The defendant's motion for a new trial was denied at the general term, and he appealed. Elijah Ward, for appellant. E. L. Fancher, for respondent. RUGGLES, J. On the trial of this cause the defendant's counsel requested the judge to charge that if Spence was an accommodation indorser, and the notes were made for the purpose of having one or both of them discounted at one or both of the Newburgh banks, then the notes were diverted from their original purpose, and that the plaintiff was not entitled to recover. The judge was right in refusing to charge according to this request. According to the testimony of Sweet, the notes were drawn to enable Sweet & Tibbs to raise money, and there is nothing in the case to show that the money when raised, was to be applied to any particular purpose. They had the right to apply it to such purpose as they chose. It was entirely immaterial to Spence whether the notes were discounted at a bank at jSTewburgh, or by an individual at any other place. (Powell v. Waters, 17 Johnson, 176). In Brown v. Taber, 5 Wend. 566, the note was indorsed for the accommodation of the maker, for the purpose of enabling him to redeem the property of one of his neighbors taken in execution. It was payable at a bank in Albany, offered there by the maker for discount, refused and returned to the maker with the bank marks upon it, and afterwards applied by him to the purchase of lottery tickets at an exorbitant price, a few days before its maturity. This was an application of the note to an entirely different purpose from that for which it was made ; and under circumstances, which in the opinion of the court, were suffi- cient to charge the holder with notice of its misapplication. In the present case, if the note was fairly discounted by Buckley & Deuel, whether for money paid at the time, or for a precedent debt, Dtiere was neither fraud nor misappli- cation of the note. If the note had been discounted at New- burgh, Sweet & Tibbs might rightfully have applied the money to the payment of their check held by Buckley & 240 ABBOTTS' PRACTICE KEPORTS. Deuel a. Spence. Deuel, and they did no wrong to the indorser in paying the note to that firm for that purpose. Nor can I perceive how Buckley & Deuel's knowledge of the original intention to have the notes discounted at one of the banks of Newburgh could make any difference in the case so long as Sweet & Tibbs were at liberty consistently with their duty to their indorsers to apply the proceeds of the notes to the payment of their debt to Buckley & Deuel. In the Seneca County Bank v. Neass, (3 Comst. 442), it was decided that when a note was indorsed for the accommodation of the maker without any restriction as to the particular purpose to which it should be applied, the maker had a right to appro- priate it to any purpose which he might deem for his own interest, and he having appropriated it to the payment of a note, held by the plaintiffs against him, the consideration was declared to be sufficient to render it valid in their hands. The holder in that case and under those circumstances recovered against the accommodation indorser. We think there was no error in any part of the charge of the judge for which the judgment can be reversed, except in what he said in regard to the question of usury. In the course of the trial for the purpose of showing the transaction usurious, the defendant's counsel offered to show a general agreement between the firm of Buckley & Deuel, and the firm of Sweet & Tibbs, as to the amount of interest to be paid by the latter firm for moneys borrowed of the former. This evidence was objected to and excluded, and an exception taken to the decision. And the judge charged the jury that the usury must be proved to have been taken at the rate of one per cent a month, as set up in the answer, and that if not so proved, the defendant was liable on the $700 note. The evidence of the agreement as to the rate of interest was probably rejected on the ground that the offer did not specify that the rate of interest agreed on, was the same as that stated in the answer. "We think the proof Offered was erroneously excluded ; and that there was error in the part of the charge last referred to. In Catlin v. Gunter, (1 Kernan^ 368), decided at the last Sep- NEW-YOKE. 241 Ely a. Miller. tember term, it was held that the provisions of the Code of Procedure on the subject of a variance between the pleading and proofs, are applicable to cases in which usury is set up as a defence ; and that a variance between the answer and the proof in such a case should be deemed immaterial, unless the proof differed from the answer in its entire scope and mean- ing, if the plaintiff gave no proof that he was misled to his prejudice. According to this case a variance as to the rate of interest merely, should, we think, have been disre- garded at the trial. The evidence offered should have been admitted, and the jury instructed in conformity with the rule adopted in that decision. The judgment below must be reversed, and a new trial directed, with costs to abide the event of the suit. ELY a. MILLER Supreme Court, First District ; Special Term, January, 1855. PLEA OF USURY. EXAMINATION OF PARTIES. Under the Code a defendant cannot be examined by his co-defendant to establish usury as a defence to their joint promissory note. Application for a commission to take testimony. This was an action against two defendants, Miller and Reed, as makers of a promissory note. The defence was usury. The defendant Reed applied for a commission to examine his co- defendant, Miller. ROOSEVELT, J. The law at present in England allows par- ties to a suit to testify in their own favor, leaving the question of credibility, under a full view of all the circumstances, to the determination of the jury. We have high authority for saying notwithstanding the confident predictions of the foreboders of evil that in the courts of that country the change in prac- tice works well. Indeed, it always seemed and in this state still seems a strange anomaly, that while on the most impor- tant motions as they are technically called, the parties should 16 242 ABBOTTS' PRACTICE REPORTS. Ely a. Miller. not only be, as from time immemorial they have been, allowed to testify in their own favor, and on paper too, and without cross-examination, yet under the same system of jurisprudence on what are technically denominated trials, the same witness, although offered to the same points, with the additional advan- tage of an oral and face-to-face cross-examination in open court, should be excluded. Such, nevertheless, is still the law in this state. Efforts have been made to change it, and to remove the manifest contradiction alluded to ; but thus far without success. All that our legislature as yet has been willing to do, has been to allow one party to call his opponent, and, in certain cases, one opponent to call another. And the question presented on the application now made is : Can one of two joint makers of a promissory note, sued jointly as such, be a witness for his colleague ? One defendant, says the Code, section 397, may be examined on behalf of his co-defendant as to any matter in which he is not jointly liable or jointly interested, and as to which a sepa- rate and not joint verdict or judgment can be rendered. Now what, under the commission applied for by Reed, is the " mat- ter" as to which he seeks to examine his co-debtor Miller? The defence, and the only defence is usury. And is not Miller "jointly interested" with Reed in this "matter?" If the usury be established by his testimony, does he not necessarily prevent any judgment against either defendant ? Does he not, in effect, destroy the note on which he would otherwise be "liable jointly with his co-defendant?" The note, it is said, is both joint and several. Is not that an option invested, not for the benefit of the makers, but of the payees ? The plaintiffs, no doubt, might have sued Reed alone ; but they were not bound to do so. They have elected and they had a right to elect to sue on the joint promise, and to ask for a joint judgment a judgment which, when entered, will bind all the joint property and merge the entire contract, and pre- vent any separate action afterwards against Miller, although he may not have been served with a summons in this : and which, even as to his separate property, although open to other defences, will forever preclude any defence of the statute of limitations. (Code, section 379). The plaintiffs, I have said, NEW-YORK. 243 Smith a. Wright. can have no separate judgment in this action. This action is not brought on the several, but on the joint promise, and on that alone. But to prevent all doubt, the plaintiffs have stipu- lated although the form of their complaint would seem to render any stipulation superfluous to ask no judgment unless against both. If, then, the defendant, Miller, should, by his own testimony, establish the defence of usury, he by his own testimony defeats the action altogether. To say that he is not "jointly interested" with Reed in such a result, stating the law as above explained, is a manifest absurdity. For although there may be no joint property at present, there may be joint property hereafter ; and, at all events, the statute of limitations is a sufficient consideration to create an interest "in the matter." But that is not all ; a judgment of dismissal in this action, on the ground of usury, would, as res adjudicata, be a complete bar to any action hereafter, either joint or several, on this same note, against Miller. To admit him to swear at all, therefore, is to admit him to swear for himself. And, conse- quently, until the legislature shall otherwise provide, the pres- ent application, and all other applications of like character, must be denied. SMITH a. WRIGHT. Court of Appeals ', December Term, 1854. ALLEGATION OF TENDER. PARTNERSHIP. In a suit for damages on the breach of a contract, the complaint is defective unless it alleges an offer or tender of performance on the part of the plaintiff. Two mercantile firms mutually agreed each to put out contracts for sale and delivery of produce at future days, all profits of such adventures and all losses to be equally divided between the firms -, held that the one firm were liable as partners upon a contract made accordingly, and signed by the other firm. This action was brought in the Superior Court. The com- plaint alleged that the defendants, Wright and Losee, com- posing the firm of Wright & Losee, and the defendants, Otis & Glover, composing the firm of A. W. Otis & Co., mutually agreed to make contracts in the name of their respective firms, for the delivery of produce at a future day, with a view to 244: ABBOTTS' PRACTICE REPORTS. Smith a. Wright. realize an expected rise in prices ; such contracts to be for the joint account and benefit, and both profits and losses resulting from such adventures to be equally divided. The contract upon which this suit was brought, was made in pursuance of this agreement, by the firm of Otis & Co. It was a written contract to deliver to Collomb & Iselin two thousand barrels of flour. It was signed A. "W. Otis & Co. The complaint further alleges that when the flour became deliverable, accord- ing to the terms of the contract, the contract was held by E. & W. Herrick ; but that Otis & Co. did not deliver the same or any part thereof, although requested so to do by the said E. & W. Herrick, and although the said E. & W. Herrick were ready and willing to accept and receive the same, and to pay for the same, at the rate or price aforesaid ; nor did the said defendants, Wright & Losee, deliver the same or any part thereof ; but the said defendants wholly neglected and refused to deliver the same or any part thereof. Subsequently Smith, the plaintiff, became by assignment the owner of the contract, and brought suit upon it. The defendants, Wright & Losee, demurred, that the contract being signed by Otis & Co., was not sufficient to Charge Wright & Losee, and that it did not appear that any demand of the flour or any tender of the price had been made. Judgment being given at special term, for the plaintiff on the demurrer, the defendant appealed, and at the general term that judgment was reversed. The opinion delivered at the general term, (5 Sandf. 113), considered only the first ground of the demurrer, and held that as the plaintiff had failed to show that the contract in question was subscribed by Wright & Losee, it could not therefore be enforced against them. Judgment being entered thereupon for the defendants, the plaintiff appealed. F. H. Rodman, for the plaintiff. B. W. Bonney, for the defendant. EDWARDS, J. The complaints in the action alleges that the defendants, Wright & Losee, then composing the firm of Wright & Losee, and the defendants, Otis & Glover, composing NEW-YOKE. 245 Smith a. Wright. the firm of A. W. Otis & Co., mutually agreed to make con- tracts, or agreements, in the names of their respective firms, with divers persons for the sale and delivery of flour and other produce, at a future day, with a view to realize the rise or increase in the prices of produce which they then anticipated would take place in the market, and upon the express agree- ment that such contracts should be made for the joint account and benefit of said two firms, and that the profits resulting therefrom should be equally divided between them, and the losses, if any. should be borne by the said two firms, in equal proportions. The complaint further alleges that in pursuance of this agreement, the firm of Otis & Co., for the joint benefit and account of the two firms, entered into a contract in writing with the firm of Collomb '& Iselin, which contract is particu- larly set forth. This contract, after passing through several hands, was finally assigned to the plaintiffs. To this complaint the defendants, Wright & Losee, demurred. The first question which is presented, is whether the agreement which is set forth in the complaint, created a partnership. The well established rule is, that if a person partakes of the profits of any branch of trade or business, he is answerable as a partner for the losses. The reason of this is, that if he takes a part of the profits, he takes from the creditors a part of the fund which is the proper security for the payment of their debts. (Grace v. Smith, 2 W. Black., 998 ; Dob onajide for travelling expenses and personal use, may properly be regarded as a part of a traveller's baggage, for the loss of which the carrier is responsible," and consequently to prove the loss of which the traveller is himself a competent witness. The like decision has been made by the Supreme Court of Tennessee, in two cases Bomar v. Maxwell, (9 Humphrey JR., 61), and Johnson v. Stone, (11 Humph., 419). In the last case, the plaintiff was admitted as a witness to prove the loss. In the case before us, it was sufficiently proved, and was not denied upon the trial, that the money lost by the plaintiff, was intended for his personal expenses, nor was it asserted that it exceeded a reasonable amount for that purpose. Hence these questions were not submitted to the jury, nor was there any NEW-YORK. 331 Slack a. Heath. exception to the charge of the judge, upon the ground of the omission. The only exceptions that were taken in addition to that which we have considered and overruled, were to the refusal of the judge, to submit to the determination of the jury, the question of negligence on the part of the plaintiff, and to his rejection of the offer to prove by the. opinions of hotel- keepers and others, that the locked portmanteau of the plain- tiff was an unsafe place for the deposit of his money. We are all of opinion that neither of these exceptions was well taken. No facts were proved from which the jury could have been warranted to infer that the plaintiff was guilty of any negli- gence, which contributed to the loss, and upon such a question, the opinions of witnesses ignorant of the .facts, were certainly not admissible as evidence. The plaintiff is therefore entitled to judgment upon the ver- dict as rendered. SLACK a. HEATH. ^T' 2fy New York Common Pleas / General Term, March, 1855. PLEADING. ACTION UPON UNDERTAKING. Lnder the Code, the recitals of an instrument averred in a complaint to have been executed by the defendant, have the same effect as specific averments of the truth of the facts recited. Woodruff, J. dissenting. It is improper to set up in an answer that the complaint does not contain facts sufficient to constitute a cause of action. Where a statute prescribes the giving of an instrument, and its purport, it is consideration enough to support the instrument, that it was given pursuant to the statute, and has its sanction. It is no objection to an undertaking given by the defendant for the return of specific personal property, which has been taken from him by requisition on the part of the plaintiff, that the undertaking purports to be given to the plaintiff", and not to the sheriff. In an action against the sureties in such an undertaking, it is not necessary to aver the issuing of execution against the original defendant. Appeal, upon a bill of exceptions. This action was brought against John Heath and J. II. Col- 332 ABBOTTS' PRACTICE REPORTS. Slack a. Heath. ton, upon an undertaking alleged to have been given by them under the following circumstances : In 1850, Almy Slack, the plaintiff, commenced an action in the Supreme Court against Thomas Carnley, then sheriff of the city and county of New York, to recover certain specific per- sonal property. She caused that property to be taken by the coroner ; and Carnley being desirous that it should be returned to him, procured the undertaking now in suit to be given by the present defendants. The plaintiff's complaint in the present action alleged that she commenced an action against Carnley, and that in the course of that action, the undertaking was given by the de- fendants ; and the undertaking was set out in full. But it did not state what was the nature of the action, or what proceed- ings were had in it ; except that these things were recited in the undertaking itself. After setting forth the undertaking, the complaint proceeded to state that the plaintiff recovered a judgment against Carnley, which was still unpaid ; but whether she had ever endeavored to collect it by execution, or not, did not appear. * The answer denied the making of the undertaking, and also averred that the plaintiff had it in her power to collect the judgment against Carnley, by execution ; and set up that the plaintiff had no cause of action against the defendants, until the return of the execution against Carnley unsatisfied. Upon the trial before Daly, J., neither party introduced evidence ; but the defendant moved for a nonsuit upon the pleadings, upon a number of grounds which amounted in substance to this : that the complaint did not state facts suffi- cient to constitute a cause of action. The court denied the motion, and instructed the jury to find for the plaintiff. Judg- ment having been entered upon their verdict, the defendants appealed to the general term. The substance of the pleadings, and the principal objections to the complaint taken by the defendant, are fully stated in the opinions, particularly the opinion of Woodruff, J. The question most considered upon the appeal was, whether the circumstances under which the undertaking was given might be inferred from the recitals of the undertaking itself, or NEW-YORK. 333 Slack a. Heath. whether it was requisite that the plaintiff should have averred them independently, and directly, in addition to setting forth the undertaking. Upon this question the court were divided ; the majority being of the opinion that the complaint was good. Upon the other points raised, the three judges were agreed, and Judge Woodruff states the opinion of the court. E. W. and G. F. Chester, for appellants. C. N. Potter, for respondent. DALY, J. The plaintiff avers that an action was com- menced, and that in the course of such action, such proceed- ings were afterwards had, that the defendants made and delivered to the plaintiff the undertaking which is set forth. The inspection of the instrument shows that it is the kind of undertaking provided for by the statute, in an action brought to recover the possession of personal property, and I think that the averment in connection with the undertaking indicates, with sufficient certainty, the nature of that action. The recitals, moreover, in the undertaking, describe, with all necessary certainty and precision, an action in which the plain- tiff claimed the delivery to her of certain personal property, for the delivery of which, in the event of the action being determined in her favor, the defendants became bound ; and I know no good reason, under our present system of pleading, why the recitals in an instrument averred to have been execu- ted by the defendants, should not have the same force and effect in a pleading as a specific averment alleging the truth of that which the defendants have admitted by executing the instrument. I think it is sacrificing too much to form, to hold that where an instrument is set forth in a pleading embodying certain facts admitted by the execution of the instrument, that they are not to be taken as facts .constituting a statement of the cause of action, without a formal averment of their truth. The real object of a pleading is to apprise the opposite party of the nature of the claim or of the defence, and where sub- stantially it performs that office, it is all. that is required. The present pleading, in my judgment, does so. It could not have 334 ABBOTTS' PRACTICE REPORTS. Slack a. Heath. the effect of misleading the defendant. The nice discrimina- tion of the counsel who raised the objection upon the trial, may have detected in it a want of that precision and exactness which, before the Code, was deemed essential in setting forth a cause of action, but I think, under the less formal system that now-prevails, that it discloses the nature and causes of the action, with sufficient legal certainty. That it notifies the opposite party sufficiently of the nature of the claim intended to be made, and that to uphold such objections would be in effect to determine that. technical certainty in a pleading is as necessary now as it was before, and that the abolition by the Code of all the forms of pleading which had previously existed has been productive of no other result than to leave things precisely where they were. As my brethren are agreed upon the other points which I ruled at the trial, it is simply necessary, those points having been re-argued, to express my general concurrence. INGRAHAM, F. J. I do not think the case of Shaw v. Tobias, (3 Comst., 188), renders it necessary for us to decide that the complaint in this case is defective. Although the declaration in that case was not deficient in the allegation as to the nature of the action, and therefore not open to the same objections as made in this case, still the remark of the chief justice may be applied to this. He says the bond, as set forth, appears to be a bond within the statute which is a public act of which the court should take notice. (26 Wend., 502.) In Loomis v. Brown, (16 Barb,, 325), the Supreme Court held that in an action on a bond given on the granting of an injunction, it is sufficient to aver that an injunction was granted in a suit, by a justice of the court. The judge says, " the com- plaint sets forth the nature of the suit, so far as to say that an injunction was granted in it by a justice of the court, that issues were joined and judgment rendered." This is a sufficient statement. The judge adds, "if it were not, it is the better opinion, that after parties have obtained an injunction, and stayed their adversaries' proceedings, and the latter have suf- fered damage thereby, it is too late for the plaintiff in the first suit to set up for a defence to the suit on the injunction bond NEW-YOKE. 335 Slack a. Heath. a want of jurisdiction to grant the injunction. They are estopped from raising the question." The application of these remarks to the present case would sustain the complaint, and under the present system of plead- ing, when the defect, if it exists, is one which has in no way misled the defendants, they should not be allowed to take the objection. Nor do I think it necessary to aver that the property was returned. The giving of the undertaking deprived the plaintiff of the right to demand the property from the coroner. It then became immaterial to her what the coroner did with the pro- perty, nor was she bound to follow it, and see to its delivery by the coroner. Her remedy against the property ceased, and she was left to the undertaking alone for redress. After the giving of the undertaking, the coroner held the property for the benefit of the defendant in the original action. The plain- tiff could no longer interfere with it, and the failure on the part of the coroner to perform his duty does not deprive the plaintiff of a security for property which belonged to her, and which the giving of the undertaking prevented her from claim- ing from the coroner. In other respects, I agree with Judge Woodruff. T7 n der the views I have expressed, the judgment should be affirmed. WOODRUFF, J. This action is prosecuted by the plaintiff, upon an undertaking signed by the defendants, which purports to have been given to the plaintiff, in an action brought by her against Thomas Carnley, sheriff, &c., in which she claimed the delivery to herself of certain personal property, and in which she had caused the same to be taken by the coroner. And after reciting such action, and the taking of the property by the -coroner, the instrument declares that for procuring the return of such property to the defendant (Carnley), and in consideration thereof, the defendants herein (Colton & Heath) undertake and become bound to the plaintiff in the sum of one thousand dollars, for the delivery of the said property to the plaintiff, if such delivery shall be adjudged, and for the pay- ment to her of such sum as may for any cause be recovered against the said defendant (Carnley) in that action. 336 ABBOTTS' PRACTICE REPORTS. Slack o. Heath. In declaring upon this undertaking, the plaintiff avers that she commenced an action in the Supreme Court against Thomas Carnley, and that in the course of such action such proceed- ings were afterwards had that the present defendants made and delivered to her a certain undertaking in writing, " where- of the following is a copy," setting forth a copy of the purport above stated, 'and making profert of the original, and then further avers, that she afterwards recovered in the said Su- preme Court judgment in said action against the said Carnley for ten hundred and eleven dollars and fifty-six cents, and that the defendants, though often requested so to do, have not paid the said judgment or any part thereof, but the same remains wholly due and unpaid. The answer consists of three parts. First. That the judgment against Carnley is good, and might be collected by an execution against him, but that the plaintiff, by some fraudulent agreement or understanding with Carnley, is by this action endeavoring to collect it from the defendants as his sureties, instead of collecting it from him. Second, That, the plaintiff has no cause of action against the defendants, until an execution against their principal, (Carnley,) has been issued and returned ; and that none had been issued. Third, That the complaint does not state facts sufficient to constitute a cause of action. Upon the trial, the court directed the jury to find a verdict for the plaintiff upon the pleadings ; neither party producing or offering any evidence ; and upon their ver- dict for the sum named in the undertaking, with interest thereon from the alleged date of the judgment against Carnley, the court at special term ordered judgment, from which the defendants have appealed. As no fact alleged in the complaint is denied by the answer, and as the defendant offered no proof of any matter alleged in his answer, it is obvious that there was no question of fact to be submitted to the jury. It is equally obvious, that if, before the plaintiff could main- tain her action against these defendants, she was bound to NEW-YORK. 33T Slack a. Heath. issue an execution against Carnley, she should have averred the issuing of such execution in her complaint. The question therefore before the court, and the only ques- tion, was whether the plaintiff's complaint contained a state- ment of facts sufficient to constitute a cause of action against the defendants. There is no warrant in the Code for inserting in the answer, as has been done here, the claim that the complaint is insuffi- cient; suck a claim is a demurrer, and nothing else, and although a defendant may demur to one or more of several causes of action, and answer the residue, (Code, 151). he may not answer and demur to the same, or to the whole alleged causes of action. This is not very material in this case, since it was competent for the defendant to insist upon this objection when the plain- tiff sought a judgment upon her complaint ; that objection, whether set up by demurrer or not, being preserved to her by the provisions of the 1-ioth section of the Code. The question therefore to be considered on this appeal, is whether the judge was warranted in charging the jury, that upon the admitted facts stated in the complaint, and without even the production of the alleged undertaking, the plaintiff was entitled to recover. This question was argued by counsel for both of the parties upon the assumption that the undertaking must be sustained, if at all, as an instrument executed in pursuance of the provi- sions of an express statute, and not as an agreement volunta- rily entered into irrespective of the statute, upon a considera- tion moving to the parties. And it seems to me plain that unless there is enough in this complaint to show that the understanding in question was given and received under the provisions of section 211 of the Code, the plaintiff has failed to show a cause of action. Viewed as a mere agreement, there is no consideration acknowledged, and there is no reciprocal agreement made, or duty assumed by the plaintiff. She does not in consideration of the defendant's undertaking, agree to relinquish her claim to the property taken, or consent that it be returned. The consideration does not purport to be past nor present ; but is 90 338 ABBOTTS' PRACTICE REPORTS. Slack a. Heath. wholly future, executory and conditional. It is for procuring the return of certain property to Carnley, which he desires to have returned to him, and in consideration thereof, the defend- ants undertake, &c. Something then remained to be done which was not yet done, to gratify Carnley's desire, and to procure that, the defendants became bound. As no consideration advantageous to the defendants appeared in the instrument, and as no con- sideration or prejudice to the plaintiff could arise until or unless the property was returned to Carnley, the plaintiff should have averred that the return of the property (for the procuring of which the undertaking was given), was made ; and had the plaintiff so averred, the complaint would, in my judgment, have been good, even if no statute could be found providing for the making of such contracts. As for example, suppose the defendant in an action of replevin, as formerly conducted, when there was no such provision to enable him to keep the possession of the property replevied, pendente lite, had desired to do so, and to that end had procured these defendants to exe- cute a similar agreement with the plaintiff, whereupon the property was by his consent, returned to such defendants. I know of no ground upon which, upon an averment that the consideration was so executed by the plaintiff, the defendants could have denied their liability. In the absence of any averment that the property was returned to the defendant, no consideration, either of benefit to the defendants or their principal, Carnley, nor of prejudice to the plaintiff in any wise appears. And therefore, if the question before us be considered irrespective of the statute, (under which it is claimed by the plaintiff that the undertaking was given), the plaintiff does not show by his complaint that the defendants are liable to him upon the instrument. Even if it could be properly insisted that by accepting such an instrument, the plaintiff became bound to permit or procure a return of the property, the case would be no stronger than one where there was mutual and dependent agreement in which, as where future performance by the plaintiff is the considera- tion of the defendant's agreement, the plaintiff must aver per- formance on his part. NEW-YOKK. 339 Slack a. Heath. But the plaintiff insists that the undertaking is a statute security, and is given in the form prescribed by the statute, and that therefore there was no necessity for expressing a con- sideration. The original defendant, Carnley, in an action in which his personal property was taken from him, upon a claim pursu- ant to chap. 2 of title 7 of the Code, (formerly called the action of replevin), had a right to the return of his property upon delivering first such an instrument as is set out in this com- plaint, and the instrument is therefore a valid obligation. In this I think he is correct. Where a statute prescribes the giving of an instrument, and its purport, it is consideration enough that it is given pursuant to the statute and has its sanc- tion. The defendant will not be permitted to claim that he -complied with the requirements of the statute without effecting the purpose of those requirements. To satisfy the statute, is consideration enough upon which to rest the obligation assumed. Nor is the objection that the undertaking should have been made to the sheriff instead of to the plaintiff, well founded. It is an instrument prescribed in a statute which has introduced great changes in the course of proceedings upon choses in action, a statute which allows the party in interest to prosecute in his own name, when he is the sole party in interest. The instrument is taken for the plaintiff's benefit, and is by its express terms to secure the payment of the judgment to her. I think indeed that the words " to the plaintiff," which follow " become bound," might have been omitted, and yet the instru- ment would have operated in her favor and been equally valid by force of the statute, and of her interest in the subject matter. It may even be that without those words, the sheriff might make it available to himself, in case he should deliver the pro- perty to the defendant before his sureties have justified, and he himself were held by the plaintiff responsible, ( 212), and possi- bly the legislature intended that the sheriff might take an under- taking which should operate for the benefit of whom it might concern ; but if this be not so, the sheriff, even if he prepared .the undertaking so as to confine the benefit thereof to the 340 ABBOTTS' PEACTICE REPORTS. - Slack a. Heath. plaintiff and exclude himself, prejudiced no one but himself,, and the defendants should not be permitted to object that the indenture is given in form to the person for whose especial and immediate benefit it was intended. JSTor in my opinion was it necessary that the plaintiff should aver the issuing of any execution against the former defend- ant, Carnley. The undertaking of the present defendants was original and absolute, that the property should be delivered, if a delivery was adjudged, and that the sum which the plaintiff recovered, should be paid to her. There is no qualification or condition in this respect. They did not agree that the money could be collected, but that it should be paid. The plaintiff had nothing to do but recover the judgment, and then the duty of the defendants was complete. The averment that the judg- ment was not paid, is stating a clear breach of the under- taking. But the question recurs, does it appear by this complaint, that this instrument was made and delivered in compliance with the statute, so that its force and validity can be sup- ported by it; for (as above suggested), if regarded as a mere agreement between the parties, the complaint is defective. And upon this question I feel constrained to say that the com- plaint does not show that it was taken in pursuance of any statute, nor show facts from which we can say that it was so taken. It is quite true, as was held in Shaw v. Tobias, (3 Comst., 188), that in declaring upon a statutory security, it is not necessary to aver in terms that it was taken or given pur- suant to the statute ; but it must appear that the facts existed to which the statute applied for else it could not appear that it was a statutory security, and such is the whole scope of the decision referred to. The plaintiff here states, and only states, that she commenced an action, and that such proceedings were had therein, that this undertaking was made and delivered. !Now if our statute provided that in all actions, such an instrument might be given for the purposes mentioned therein, this might be sufficient. But it is only in the action formerly called replevin, that the statute recognizes any such security, and I know not how to avoid the conclusion that if the plaintiff wished to set up the NEW-YORK. 341 Slack a. Heath. instrument as a statutory security, he should have averred that it was made and delivered in such an action. For aught that the plaintiff has averred in the complaint, the action against Oarnley may have been for goods sold and delivered, or any -other cause. It is true that the recitals in the undertaking are to the effect that the action was replevin, and the averment is that the defendant made and delivered an instrument containing those recitals ; but this is no averment of their truth. Had there been an averment that such was the cause of action, these recitals would have been evidence that such averment was true. They may be very valuable as admissions to bind the defend- ants ; but until the plaintiff has made . some averment to be supported by them, they are of no avail to him. In short, while they are a proper if not a necessary part of the instrument required by the Code, and might very properly be set forth in the complaint, they are evidence of facts, and not averments. The case of Shaw v. Tobias, above referred to, is cited to us as showing that recitals in the instrument may be taken in the place of averments. That case warrants no such conclusion. There the plaintiff had declared upon a replevin bond, without averring in terms that it was taken pursuant to the statute. The court held that such an averment was not necessary. The form of the bond in that case, was such as the statute prescribed, and so is the undertaking in the present. But there the plaintiff had averred the replevin, and that the bond was given for the prosecution of the replevin suit, that on the giving of the bond, the reple- vin suit was commenced, that the goods were taken in pursu- ance of the writ issued for that purpose, and all the facts which were necessary to show that a bond in that form was given in a case within the statute. The court therefore knew judicially that the bond was taken pursuant to the statute as well as with it. Here we know judicially that the undertak- ing is in a form' prescribed by the statute ; but whether it was made and delivered in a case within the statute, we are not informed, and cannot know without an averment. There, as said in the opinion of the court, the bond, as set forth, appeared to be a bond within the statute, which is a public act of which 342 ABBOTTS' PKACTICE REPORTS. Slack a. Heath. the courts should take notice. That is to say, the bond wa& set forth by averring its making and delivery in a form pre- scribed by statute in an action and for a purpose within the provisions of the statute. So that every fact showing that it was a statutory bond was alleged, and the court, (bound to take notice of the statute as a public act), could therefore judi- cially declare it to be such a bond. But the court could not judicially know from the form of the bond alone, that it was given in a replevin suit, however they might know that it was in a form appropriate to such an action. In the case of Loomis v. Brown, (16 Barb. S. C. Rep., 325), the court sustained a declaration upon a bond given on the granting of an injunction. But there the declaration averred the existence of the circumstances which made the giving and taking of such a bond, proper, to wit : the commencement of a suit in which an injunction was granted by a justice of the court, and in which issues were joined and judgment rendered.. The complaint there did set forth just what the pleader here has omitted, viz : the nature of the suit, so far as to say that an injunction was granted in it. Had the pleader here set forth the nature of the action so far as to show that per- sonal property had been replevined or taken therein, the cases might be deemed parallel. In Ring v. Gribbs, (26 Wend., 502), the complaint also averred the pendency of proceedings in which such a bond as was declared upon was appropriate, and therefore does not con- flict with these views ; and although other defects were urged by the defendant's counsel, the court felt at liberty to intend after verdict, that the proper proof was given supplying the defects. Here we are considering the question whether the plaintiff could recover upon these pleadings without any proof whatever for such was the charge of the court. In Gould v. Warren, (3 Wend., 54), the court say of an action on the replevin bond, "the declaration should set out concisely all the proceedings in the replevin suit." And such were the forms of pleading on such bonds heretofore. (Se& Chit. PI.., 212216, and 3 id., 244). And so also is the form given in 3 jBurrill, cited by the plaintiff's counsel. It is true that much of the minute particularity and detail NEW-YORK. 343 Slack a. Heath. found in Chitty, may now be dispensed with ; but I find no warrant for saying tbat it need not be averred that the bond was taken in or for the prosecution of an action of replevin. (Phillips v. Price, 3 M. (& , 180, and note to 1 Bos. & Pul., 381.) I regret the conclusion to which I must arrive ; but if the plaintiff relies upon his undertaking as a statutory security, I think he is bound to make such averm'ents as show that it is not only such in form, but that the case in which it was given, was within the statute. I apprehend that a declaration on a bail bond which did not aver the issuing of the capias and the arrest, or a declaration on a bond for the jail liberties which did not aver the imprisonment, could not be sustained; and yet the recitals in such bonds disclose these facts. The defect in the present complaint could easily have been supplied by amendment, and I cannot doubt that the court would have allowed such amendment at the trial. Indeed if section 176 of the Code could be so construed as to embrace such a case, I should be disposed to disregard the defect on this appeal. It is quite probable that the defendants would suffer no injustice. The admitted fact that the undertaking was executed by the defendants, is ample assurance that in truth the action was within the statute. But the court are only directed to disregard a defect " which shall not affect the sub- stantial rights of the adverse party." And to say that we may affirm a judgment where it does not appear by the com- plaint that a cause of action exists, because we are satisfied that a cause of action does in fact exist, as matter of evidence, would I think, be pushing the construction of that section too far. The defendant has urged this very objection, and relied thereon from the outset, setting it up in his answer. I do not think we can now sustain his objection as well taken, and still disregard it. It is urged with some plausibility that an aver- ment that the personal property mentioned in the undertaking, was returned to the former defendant, Carnley, is also neces- sary. That even regarding the instrument as a statutory secu- rity, it is necessary to show that it was acted upon. That the object for which it was given, was accomplished, and that the consideration (purely executory when the instrument was made and delivered), was performed. That it would never have 344 ABBOTTS' PRACTICE REPORTS. The Mayor, t only authorized, but in all respects appropriate. In my opinion the order should be affirmed. Order affirmed. NEW-YOKK. 403 Keteltas a. Myers. KETELTAS a. MYERS. / New York Common Pleas ; General Term, June, 1854. Again, March, 1855. PLEADING. COMPLAINT ON PROMISSORY NOTE. It seems that where a decision of the general term affirming a decision at special term sustaining a demurrer is final, no leave to plead over being given, appeal should be taken directly from that decision as a judgment. If, however, it be necessary as matter of form to wait until judgment is perfected in the action, and then to appeal from that judgment to the general term; before going to the Court of Appeals, the court will not as a general rule, permit appel- lant to argue on the second appeal the same questions which were discussed upon the first. A complaint upon a promissory note which does not aver that the amount claimed therein is due from the adverse party, and that it is due on the note, is not con- formable to the requisites stated in 162 of the Code. It is not sufficient to aver that the amount is due to the plaintiff. If the complaint is not drawn under that section, the pleader must aver a breach so as to show the default of the defendant. I. June, 1854. Appeal from judgment at special term, sus- taining demurrer to complaint. The complaint in this action averred that the defendant " for value received, made and delivered to the plaintiff his promis- sory note, payable to the order of plaintiff and indorsed by him ;" and set out a copy of the note which was for the sum of two hundred and four dollars, sixty-seven cents. The com- plaint then concluded with the following allegation, succeeded by the usual demand of judgment. " That there is due and owing the said plaintiff the said sum of two hundred and four dollars, sixty-seven cents with interest thereon," &c. The defendant demurred to the complaint, for want of state- ment of facts sufficient to constitute a cause of action. On the hearing of the demurrer at special term, judgment was ordered, in December, 1853, for the defendant, with leave to the plaintiff to amend within three months ; the following opinion being rendered. DALY, J. The plaintiff avers that the note was made and delivered to him by the defendant. This is sufficient to show 404 ABBOTTS' PRACTICE REPORTS. Keteltas a. Myers. title in the plaintiff, and a formal allegation that he is the owner or holder is unnecessary. There is no averment of a transfer of the note by indorsement. The complaint states that the plaintiff indorsed the note without setting forth any- thing further. This is a statement of an indorsement in blank without alleging a delivery, which amounts to nothing. The complaint is, however, in other respects defective, and the de- murrer is well taken. The plaintiff was at liberty, the note being an instrument for the payment of money, to declare in the manner pointed out by the Code or in any other manner, if he sets forth sufficient to show that he had a good cause of action. If he frames his complaint in conformity to the Code, he must, in addition to giving a copy of the note, allege that there is due from the defendant on the note a certain sum, specifying it, or if he adopts a different mode of declaring, it must appear not only that the defendant entered into the contract, but that it remained unperformed when the action was brought. He must allege a breach, either in the old form that the de- fendant neglected and refused to pay the note ; (1 Chitty, 365, 375), or at least that it remains due and unpaid (3 Maule. & /&, 150). After alleging the making of the note by the de- fendant, and giving a copy of it, the complaint states that there is due and owing to the plaintiff the said sum of two hun- dred and four dollars and sixty-seven cents, the amount which it appears by the note as set forth, the defendant promised to pay. The words " the said sum" do not, because the amount is the same with that stated in the body of the note, necessarily denote that the note remains due and unpaid, or that that sum is due and owing upon the note. For all that appears in the complaint, it might refer to some other sum due and owing to the plaintiff. There might be another note for the same amount to which it would be as applicable as the note de- clared on. In the present liberal mode of regarding pleading, it is not usual to insist upon great technical nicety in setting out a cause of action, but reasonable precision of language is essential under any form of pleading, and I should feel un- willing to admit by upholding the present complaint, that a complaint so framed would be a proper precedent hereafter. It must therefore be amended by averring either in accordance witn the Code, that the amount specified is due and owing by NEW-YORK. 405 Keteltas a. Myers. the defendant on the note, or else by inserting a general aver- ment that the note remains due and unpaid. From the judgment of the special term, the plaintiff appeal- ed to the general term. C. B. Smith for appellant. C. N. Potter for respondent. BY THE COURT. WOODRUFF, J. The object of the Code of Procedure was to simplify the rules of pleading by practically dispensing with technical rules and forms, and useless ver- biage, and to introduce a system in which it should be only necessary to state the substantial matter of complaint. But unless it has been done by section 162, the Code nowhere dis- penses with a statement of the facts which, upon the trial it is necessary for a plaintiff to prove, in order to make out a cause of action. Liberality and freedom, as well as brevity and conciseness, are allowable ; but looseness and uncertainty are nowhere sanctioned. First, then, it was necessary before the Code, in declaring on a promissory note against the maker, that the plaintiff should aver the making of the note, the promise contained therein or implied thereby, the facts which constitute the plaintiff the holder, promisee, or person entitled to enforce the promise and the breach of promise contained in or implied from the making of the note. These were all matters of sub- stance, and indispensable to a good declaration, and such matters are not dispensed with by the Code except so far as section 162 has introduced a new practice. Tested by these rules, the complaint in this case appears to me defective. It consists of an averment that the defendant made and delivered to the plaintiff the promissory note, of which a copy is set forth, and that it is payable to the order of the plaintiff, and indorsed by him ; " that there is due and owing the said plaintiff the said sum of $204.67, with interest from the second day of September." The making by the de- fendant is averred. The delivery to the plaintiff, payable to his order, is doubtless a sufficient averment of facts, constitu- ting the plaintiff the holder, arid entitling him to enforce the cause of action, if any. In conformity with modern decisions, 406 ABBOTTS' PRACTICE REPORTS. Keteltas a. Myers. it may be said that an averment of the making and delivery of the writing, and giving its very terms, to wit : " I promise to pay," &c., is a sufficient averment of the promise by the de- fendant, though it was formerly held otherwise. (See Bac. Abr. Tit. Assumpsit, F. ; Morris v. Norfolk, 1 Taunt., 217 ; Mountford v. Horton, 2 New J?., 62 ;) and cases cited in the note. The only remaining requisite is the allegation of the breach of promise. This need not be averred in any particu- lar form, but it must be in such form that it charges default of performance of the promise, and charges that default upon the defendant ; and in such wise that it shows default in the defendant as the ground upon which damages are claimed, and that it may be met by a distinct counter allegation, so as to create a material issue; as by an averment that the de- fendant hath not paid the sum mentioned in said note. And in general as stated by Chitty, (1 Chit. PI., 325), the breach should be assigned in the words of the contract, though it is sufficient to assign the breach in words containing the sense and substance of the contract. The action is not for the making of the promise, but for the breach of it ; and if that be not avowed, it does not appear that the plaintiff has any cause of complaint. In an action for the breach of a contract the rule is the same. Now in this case, it is not averred that the defendant has not paid, or has not performed his promise, in any form ; nor even that the money mentioned in the note has not been paid, or that it remains unpaid. The pleader says that the sum is due and owing to the plaintiff. This is the statement of a mere legal inference from a breach which is not averred at all. But even this is not charged upon the defendant. He does not aver that the said sum is due and owing to the plaintiff from the defendant. To warrant the legal inference that the money is due and owing, it is neces- sary to aver the promise and the breach of it by the defend- *ant, for without both of these, no such inference arises. The plaintiffs counsel insisted on the argument that the possession of the note and its production was sufficient to raise the impli- cation that it was not paid. That may be conceded, but that only goes to the mode in which the non-payment is to be proved, and not to show that an averment of non-payment is unneces- sary. A plaintiff must aver the facts essential to his right of NBW-YOEK. 407 Keteltas a. Myers. recovery ; the mode of proving those facts is a different matter. I think the plaintiff here has failed to put the defendant in default by an averment of any breach of contract, or any facts amounting to such a breach, and, therefore, that the demurrer to the complaint was well taken, unless his complaint can be sustained by section 162 of the Code. Second. By section 162 it is provided that in an action founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instru- ment, and to state that there is due to him thereon from the adverse party a specific sum, which he claims. I agree with the opinion given at special term, that if a plaintiff seeks to avail himself of the privilege given by this section, he must conform to its requirements ; and he cannot be allowed to say that the legislature have relaxed or dispensed with the former mode of declaring on a written instrument and given a substi- tute, and now the court may dispense with compliance with the rules required in . the substitute itself. The sum claimed is neither alleged to be due on the note, nor to be due from the defendant. The defects in this complaint are easily amended. The court would not, I think, have hesitated to allow an amend- ment even after this demurrer was interposed, without costs. The court have no disposition to withhold indulgence, or en- courage objections that are trifling or unsubstantial ; but there must be some rules of pleading and practice, and if so, they must be maintained. I thi-nk the order sustaining the demur- rer and ordering judgment for the defendant should be affirmed. Order affirmed. II. March, 1855. The plaintiff having declined to accept the leave of amendment granted him, judgment was entered against him in the action, at special term, December 9, 1854. From this judgment he again appealed to the general term. BY THE COURT. INGRAHAM, F. J. The present case comes before us on an appeal from a judgment entered on a decision made upon a demurrer to the complaint. The case was first heard at special term, and the demurrer 408 ABBOTTS' PKACTICE REPORTS. Keteltas a. Myers. was sustained. From the order there made the plaintiff ap- pealed to the general term, under section 349 of the Code, sub- division 2, where the order below was affirmed. The plaintiff declined to accept the leave granted to amend his complaint, and judgment was thereupon entered up for the defendant. The plaintiff has again appealed to the general term from the judgment rendered. I. It may be doubted whether there was any propriety in this appeal. "When the case was heard and decided at special term, the plaintiff was allowed three months to amend his complaint. That was in December, 1853. He refused so to do, and in February, 1854, the general term affirmed the order appealed from, but no further time was allowed to amend. In Reynolds v. Freeman, (4 Sand. 8. C. 7?., 702), it was held that in cases where no right to amend or plead over is given, but the judgment is final, the appeal should be from that deci- sion as a judgment. The time for amending had expired long before the decision and probably before the case was argued at general term, and as the plaintiff even after that decision declined to amend his complaint, the principle of the case cited may be applied here, so as to require the appeal to be from that judgment which followed the decision of the gene- ral term. II. But whether or not an appeal after the entry of judg- ment is necessary to be made to the general term in such cases before going to the Court of Appeals, we do not permit an appellant to argue a second time on appealing from the judg- ment the same questions which were argued previously on an appeal from an order sustaining a demurrer. If it is thought necessary that an appeal should be made from a judgment ren- dered on demurrer in favor of a party demurring, after it has once been reviewed on the order made at special term, sustain- ing the demurrer, the decision so made in the first instance at general term, and the opinion therein delivered, must be taken as the decision and opinion of the court when the same ques- tion comes again before the general term on the second appeal, and no new argument will be allowed. In the present case the rule would have been enforced, but the counsel for the appellant suggested that recent decisions of NEW-YOKE:. 409 Keteltas a. Myers. the Court of Appeals might be applicable to this case ; and with a view of examining these cases, a further argument was permitted. III. My brethren have both delivered opinions in favor of the defendant on this demurrer, and when the case was before them on appeal from the order originally made, they concurred in the decision then made. For the reasons of that decision I refer to their opinions annexed to the papers now submitted. It is very clear that the complaint cannot be said to come within the provisions of 162 of the Code, because it does not state that the money claimed is due from the defendant, nor that it is due on the note, a copy of which is to be inserted in the complaint. The words of that section are, " and to state that there is due to him (the plaintiff) thereon from the adverse party," &c. The words of the complaint are, that there is due and owing to the plaintiff the said sum, e decided by the rules generally applicable to pleadings, irre- spective of the mode prescribed in 162. The objections made to this complaint were 1. That the plaintiff does not aver himself to be the holder or owner of the note. 2. That it does not appear and is not stated that any part thereof remains unpaid. 3. That it is not stated that any sum is due or owing upon it. 4. That it appears the note has been indorsed by the plain- tiff, and that the property of the note therefore is not in him. In the opinions heretofore delivered, both of my brethren agreed in holding that no breach was averred in the complaint, and that it was therefore defective. It is not now pretended that there is any formal breach con- tained in the complaint. The averment that the said sum of money (being the same in amount as the maker of the note promises to pay) is due to the plaintiff cannot be considered as either averring that the money secured by the note is due 410 ABBOTTS' PEACTICE REPORTS. Keteltas a. Myers. or that the maker of the note is the party who owes the plain- tiff. Suppose the clause had been, " that a sum of money equal to the amount due upon the note was now due and owing," no one would pretend that to be an averment that the note was still unpaid, or that the maker of the note was indebted thereon to the plaintiff; and yet the meaning of the clause in the com- plaint does not vary materially from the form above given. It is said, however, no express breach is necessary. This is conceded if the complaint had been drawn under 162, but even that form has an averment which in fact amounts to the same thing. As this complaint does not comply with the requisites of that section, it becomes necessary to inquire whether an averment of a breach in not paying the note can be dispensed with in an ordinary complaint. It is not necessary for me to repeat what has been said by my brethren before, to show that according to former rules of pleading before the Code, the complaint was defective. We have now been referred to forms cited from 3 Chitty's Pleadings, 1411, &c., of the edition of 1844, to show that no breach was necessary in an action upon a note. It may be doubted whether it was not intended in those forms to add the general breach which follows in the next division under the common counts. It certainly seems to have been so intended when a count on a note and the common counts were united together, as a form is given in such a case. But whether it was or not, it is sufficient to say that these forms were adopted by the judges as short forms of pleading under the provisions of a statute which authorized the dispens- ing with many things which otherwise were necessary. It was in fact a statutory form of declaring on a note, simi- lar to that adopted in the Code, and which was of no authority where the statute was not in force. That form also contains an averment that the time of payment had elapsed, which is wanting in the present complaint. We are also referred to the case of Allen v. Patterson, (3 Seld., 476), as authority to show that no breach is necessary to be averred in the complaint. That case is no authority for such a proposition. The action was for goods sold and deli- NEW-YOKK. 411 Keteltas a. Myers. vered. The complaint charged that the defendant was indebted for goods sold and delivered by the plaintiff to the defendant in a specified sum, and that there was due and owing to the plaintiff from the defendant a specified amount. The objec- tions taken to the complaint were two : first, as to the form in stating indebtedness as the ground of action, and second, that the allegation that " there was due to the plaintiff from the defendant," &c., was not a sufficient averment of a breach. The Court of Appeals held that the first objection was unte- nable, because in stating what the indebtedness was for, the pleader had also stated all the facts necessary to constitute the cause of action as to the sale and delivery of the goods ; and as to the second objection, that the allegation that the amount was due from the defendant to the plaintiff, was an averment that the money sought to be recovered had become payable, or the time when it was promised to be paid had elapsed. Judge Jewett no where intimates that an allegation that the debt had become payable was unnecessary. On the contrary, the whole of his argument was to show that there was a breach of the contract averred, and that the term due was equivalent to " payable." In the complaint now under consideration there is no allega- tion that the note has become payable, or that it is due, nor anything to show the defendant in default, except an allega- tion that a sum of money the same as that secured by the face of the note is due to the plaintiff from whom or for what pur- pose does not appear. A general denial of all the facts stated in the complaint would not raise an issue as to whether the note had become payable or not, because there is no such alle- gation there. A denial of the latter allegation, that the sum of $204.67 was due to the plaintiff, would be immaterial, be- cause it would be an issue upon a matter not connected with the note, the subject of the controversy. The defect has pro- bably arisen from intending to use the statutory form, and yet departing from that form, brief as it is. I am free to admit that these objections are strictly techni- cal, and that under the present system of pleading, the courts should not encourage such technicalities any farther than is necessary for the due and orderly administration of justice. 412 ABBOTTS' PKACTICE REPORTS. Seymour a. Elmer. And I think it is a matter unworthy of commendation that the counsel on both sides have seen fit to engage in this long contest on points totally unnecessary to the disposition of the merits of the controversy. The defendant might have made any defence that he had to the note on which he was sued, by setting the same up in his answer notwithstanding the techni- cal objections which he has made to the complaint, and the plaintiff after the demurrer was put in would have been allowed to amend the same without costs, and he was so in- formed in one of the opinions heretofore delivered. When this case was formerly before the general term, I was disposed to disregard these defects as being merely matters of form, and such as by the provisions of the Code might be disregarded as not causing any injury or prejudice to the opposite party, though I did not doubt that as a pleading the complaint was defective, and the court then so decided. The cases now cited, do not in any degree warrant the con- clusion that in an action on a promissory note, it is not neces- sary in the complaint to show the defendant default as to pay- ment, and even the short statutory form provided in section 162 of the Code, contains the averment of a breach which re- quires the plaintiff to say that there is due to him from the de- fendant on the note the amount claimed. If the pleader had gone thus far, it would have been sufficient. Not having done so, his complaint is defective, and if he insists upon the decision of the court upon this question rather than amend his complaint as suggested to him in the first instance, we must so hold, however much we may dislike to encourage such objec- tions. The judgment must be affirmed. SEYMOUR a. ELMER. New York Common Pleas / General Term, April, 1855. DEFAULT IN JUSTICE'S COURT. PROOF OF "MANIFEST INJUSTICE." Defendant's attorney having suffered default in a district court by being delayed in arriving at court by circumstances liable to occur without his fault, he being under the misapprehension that no defaults were taken until an half hour after the return hour of the summons ; held, that the default was excusable. NEW-YORK. 413 Seymour a. Elmer. The only witness for plaintiff having been the assignor of the claim sued on, an affi- davit by the defendant that injustice was done to him by the judgment in default, held, under certain circumstances sufficient upon that point, in a motion to open the judgment. Application to open a judgment of a district court. The plaintiff sued for rent as assignee of the lessor. Suit was brought in the Justice's court of the 4th Judicial District. It appeared from the return of the justice and the affidavits, that upon the return day of the summons, the case was called very soon after 9 o'clock, that being the hour named in the summons. The defendant did not appear. The plaintiff pro- ceeded, and called and examined his only witness, the assignor. The justice thereupon gave judgment for the plaintiff. Soon after such judgment had been rendered, and it being then only about 15 minutes past 9, the defendant's attorney arrived. He, supposing that it was the practice of the court to take no defaults until half an hour after the time named in the summons, had been detained a few moments upon his way to the court by meeting a client and conversing with him respect- ing the transaction of certain of his legal business on that day. On coming into court at about quarter past nine, he informed the justice that he appeared for the defendant. The plaintiff's attorney meanwhile had procured a transcript of his judgment from the clerk. The justice informed defendant's attorney that judgment had been given, but that he would open the default if the plaintiff's attorney, who had not yet left the court room, would consent. Defendant's attorney then ap- plied to plaintiff's attorney, offering to make an affidavit of merits and pay the costs of the default ; but the request was refused. The justice thereupon declined to open the default. The defendant appealed. Thomas S. Somers for Appellant. Franklin Brown for Respondent. WOODRUFF, J. The absence of the defendant's counsel at the time this cause was called for trial, arose from circum- stances liable to occur without any fault on his part, and the 414 ABBOTTS' PKACTICE KEPOKTS. Seymour a. Elmer. misapprehension under which he was delayed for fifteen minutes after the hour at which the summons was returnable, considered in connection with the fact that the plaintiff's counsel and witness were still in court, and the court willing to take up the cause if the plaintiff's counsel would consent, seem to me sufficiently to excuse the default. Upon the question whether manifest injustice has been done, the case is not quite so clear. If the facts sworn to by the defendant are true, then injustice is manifestly done by the judgment ; and, on the other hand, if the statements of the assignor of the plaintiff are true, the judgment is just. We have heretofore considered that where it appeared by the papers that the plaintiff's case was established by an indiffer- ent witness, and nothing appeared on the part of the defend- ant but his own unsupported oath, where he could not himself be a witness on the trial, it would be of no avail to order a new trial, since we were not advised that the result of a new trial could be other than the result of the first, nor in such case could it be apparent that injustice was done. In this case the assignor of the plaintiff declares himself to be the repre- sentative of the plaintiff in the matter of the suit. It is not certain but the assignor may prove to be himself incompetent, and if not, his testimony in the relation he occupies will be received with caution, and if examined, the defendant himself will be a competent witness to the same matter. Though not without some hesitation, I have come to the conclusion that a new trial should be ordered upon terms. The defendant must waive any claim (if any he have) to restitution of the costs paid on appealing, and must pay the respondent's costs on appeal, and the parties must appear before the justice on the fifteenth day of May next, at 10 o'clock, A. M., and proceed with the trial at that time, or on such days as the justice of the district court may by adjournment appoint. NEW-YORK. 415 Lowber a. Childs. LOWBER a, CHILDS. New York Common Pleas ; General Term, April, 1855. MECHANIC'S LIEN. JOINDEK OF PARTIES. The dismissal of a proceeding in the Marine Court instituted under the mechanic's lien law, upon the ground that the contractor was not made an original party thereto, is erroneous. The Marine Court has power to cause the contractor to be made a party, and to be brought in when his presence is necessary. Appeal from judgment dismissing proceedings to foreclose a mechanic's lien. The plaintiff Lowber commenced an action in the New York Marine Court to foreclose a mechanic's lien. His notice of lien was addressed to Winters and Childs. Childs was the owner of the premises sought to be charged ; Winters was the contractor engaged in building ; Lowber was a material man. Due notice to close the lien was served on the defendant in the notice, Childs ; but none was served on Winters. On the return day Childs appeared by his attorney, and the notice and proof of service upon him and a bill of particulars having been filed by the plaintiff, the attorney of the defend- ant Childs moved that the proceedings on the part of the plaintiff be dismissed, on the ground that the contractor Winters had not been made a party to the proceeding ; that no notice or process had been served upon him to bring him into court. The justice thereupon inquired of the attorney for the plaintiff if he wished to bring said Winters into court, and make him a party to the proceeding ; which, the justice said, the plaintiff would be permitted to do if he wished. This offer being declined, thereupon on motion of the defendant's attorney, the justice dismissed the proceedings with costs. The plaintiff appealed. Charles E. Nott for the appellant, contended that the act (Laws 1851, p. 953) does not require the contractors to be made a party ; that the case of Sullivan a. Decker (1 E. D. Smith's R., 699), relied on by the respondent, did not make the contractor a necessary party, but only a proper party. 416 ABBOTTS' PKACTICE REPORTS. Lowber a. Childs. Sanxay for respondent, insisted that the circumstances gave no ground for appeal ; that there was no judgment, but only a dismissal of a preliminary proceeding, or rather a re- fusal to act ; and if error, it could only be corrected by man- damus or certiorari. That the case was not before the justice, the notice being wholly insufficient; but if it was, the judg- ment was correct ; because the defendant Winters was a ne- cessary party, and the Marine Court, he urged, is vested w T ith no equity powers, by which to bring him into court. WOODRUFF, J. The opinions given by this court in Sullivan a. Decker, (1 E. D. Smith, 599), do not warrant the judgment rendered in the Marine Court in this action ; and the decision in Foster a. Skidmore (75., 719) is, so far as this court is con- cerned, conclusive that such judgment was erroneous. The plaintiff had taken the very steps which the statute prescribed, and the court thereby obtained jurisdiction of the matter and should have proceeded therein. I do not discover any defect of power in the Marine Court to make any order which may be essential to carry into full execution the jurisdiction which the statute itself has conferred upon them, by authorizing the proceedings to be had in that court ; and in this respect it is not material whether the fore- closure be deemed a strictly legal or an equitable proceeding. Besides, section 64, subdivision 15, of the Code of procedure, makes the provisions of 'the code, respecting parties to actions, applicable to the justice's courts, and section 68 in like man- ner, makes section 64 apply to the Marine Court. Section 121 of the Code, in terms provides that when a complete de- termination of the controversy cannot be had without the pre- sence of other parties the court must cause them to be brought in. It seems to me that in this the Marine Court have ample power to cause a contractor to be summoned, and that it should have been done. But further, it appears by the notice to bring the lien to a close, that the contractor was made a party defendant, and if one defendant only had been served, still the proceedings should not have been dismissed, the de- fendant might have been brought in, as in cases where only one of two defendants is served. The judgment must be reversed. NEW-YOKE. 417 New York & New Haven R. R. Co. a. Schuyler. NEW YORK AND NEW HAVEN R. R. CO. a. SCHUYLERT 7-2, f Supreme Court, First District ; Special Term, May, lS55x ^J^ < r JOINDER OF PARTIES. MULTIFARIOUS COMPLAINT. A bill of interpleader can only be filed when the plaintiff has no claim adverse or hostile to tb parties defendant. If the complaint asks for relief specifically against the defendants further than to require the defendants to interplead with each other the bill is not one of interpleader, or in the nature of a bill of inter- pleader. It seems, that a corporation is composed of the aggregate body of individual corpo- rators united under the charter, and is in no sense a trustee for the individual corporators. Suits heretofore known aa bills of peace may be brought to avoid multiplicity of suits, and may embrace a large number of defendants. But such suits must relate to matters of the same nature, having a connection with each other, and in which all of the defendants are more or less concerned, though their rights in respect to the general subject of the case may be different. Such bill must have for its foundation some issue which concerns all of the parties defendant an issue with which each defendant is connected, so as to give the plaintiff a right to a decree as to each one in respect of first issue and common question. Where there had been a fraudulent over-issue of the stock of a corporation be- yond the amount allowed by its charter by the act of its duly authorized trans- fer agent, and a part of such stock was held by guilty parties with knowledge of the fraud, and a part had gone into the hands of innocent purchasers for value and without notice : Held, that a bill filed by the corporation against all of the holders of the over-issue, asking to have the certificates delivered up and canceled, would not lie, and that such complaint was multifarious. Held, further, that in such case the complaint showed on its face that the corporation had no right of action against the innocent purchasers of the false stock, but was itself liable to them for the acts of its transfer agent in issuing it Held, that as to the parties defendant in such bill when such had purchased at dif- ferent times from different persons on contracts separate and distinct from each other, there was no common issue or question embracing all of the parties, and in which each was interested, and in which all were concerned. There was no pri- vity of contract or interest between them, and they could not be joined in one action. Whether the corporation could have a decree against the guilty parties alone for a surrender of the false stock ? Query. It teems, that a bill may be filed against the whole body of confederates who unite for the commission of an act in violation or fraud of the rights of the plaintiff, how- ever numerous those parties may be. The combination to defraud unites them all together, and presents an issue common to all ; and a decree may reach them as a body and each one personally even though in carrying out the details of that common object each one may have performed acts, and claimed to have acquired right*, personal to himself and independent of his confederates. 418 ABBOTTS' PRACTICE EEPORTS. New York & New Haven R. R. Co. a. Schuyler. Demurrer to a complaint. This action was brought by the New York and New Haven Railroad Company against three hundred and twenty-four defendants, for the purpose of settling in one suit the numerous claims and questions which arose out of extensive frauds com- mitted by Robert Schuyler, the former president of the corpo- ration, plaintiff. One of the defendants, Cross, demurred to the complaint. The facts involved, and the substance of the pleadings, ap- pear in the opinion. Messrs. Tracy, Dodge, Noyes, Powers and Talmadge, for plaintiffs. Messrs. Cutting, Foster and Thompson, for defendant Cross. COWLES, J. The defendant, Cross, demurs to the complaint, and on grounds which raise the question whether this suit can be sustained. The facts set forth in the complaint are as fol- lows. The plaintiff is a corporation, owning and operating a rail- road extending from New Haven to New York. The capital authorized by the charter is limited to $3,000,000, represented by 30,000 shares of stock all of the shares except 78 having been issued, and the capital paid in, less about $700 on the 78 shares, several years since. Transfer books of the stock were kept at the city of New York and two other places, where transfers of the stock were made, and certificates issued as oc- casion required. From the organization of the company in 1846 to the third of Juty, 1854, Robert Schuyler was the pre- sident and transfer agent of the company, having his station and place of business at the office of the company in New York. As early as October, 1853, he commenced a series of fraudulent acts, extending over the whole period of time inter- mediate that date and the 3d of July, 1854, during which time unknown to the plaintiff he issued and disposed of large num- bers of certificates of stock of the company, which on their face purported to be genuine, were executed and signed in the same manner as genuine certificates, and un distinguish able from them, but which in fact were fraudulent over-issues for his own private purposes. Some of these he issued to a firm 419 New York & New Haven R. R. Co. a. Schuyler. of which he was a member. The others were issued to divers other persons. In other instances, after making transfers of stock for other parties on the books of the company, he failed to cancel the old certificates which were surrendered for that purpose, but fraudulently re-issued them as genuine certificates of stock owned by himself. In furtherance of his designs he allowed clerks of his firm to give the firm a false credit on the stock ledger of the railroad company, by which it was made ostensibly to appear that such firm had stock to their credit on the books of. the company to $1,000,000, when in truth it owned none. These false certificates, purporting to be genuine, and these originally genuine certificates, which, instead of being cancel- ed, were re-issued, were used by Robert Schuyler, in his own and in the business of his firm, under representations that they were genuine, chiefly for the purpose of borrowing money : were sold openly in the market as genuine stock in some instances, and have passed in this way into the hands of the defendants, the present holders. In some instances this over-issued stock has become commin- gled with genuine, by having, in the regular course of busi- ness, been transferred and incorporated into a certificate with the genuine. The whole false issue amounts to near $2,000,000. Nine thousand three hundred and eighty-three shares now stand on the books of the railroad company, in the names of 29 persons and firms, to whom it had been transferred by the firm to which Schuyler belonged. The balance of such over-issues have gone to the hands of 266 other persons and firms, at dif- ferent times, in different amounts, from different persons, and many of these holders are also the holders of genuine stock. Intermediate the 29th of June 'and the 3d of July, 1854, Schuyler, the president and transfer agent of the company, being sick, Mr. Worthen, the vice-president, who was also one of the directors, undertook, but as plaintiff says, without authority, to act as transfer agent in the place of Schuyler, and unaware of Schuyler's frauds, transferred 4446 shares of 420 ABBOTTS' PRACTICE REPORTS. New York & New Haven R. R. Co. a. Schuyler. that false stock for 21 different persons and firms, supposing the certificates he received and transferred to be genuine. Some of the holders of this over-issue, as the complaint alleges, took, knowing the certificates were fictitious, some with reason to believe so, some on usurious contracts, many under circumstances which should have put them on inquiry, and many others under circumstances and upon considerations unknown to the plaintiffs. They all claim rights against the company, some that they are stockholders, others that they are either stockholders or have a right of action against the company for their losses. Some claim damages to the full nominal par value of the cer- tificates they hold others for the money they have actually advanced, while all assert a claim upon the company in some form. It is not denied that some of these fraudulently issued certi- ficates have gone into the hands of entirely innocent parties for value. Several of the defendants have sued the company ; some suits are pending in this court, some in the Superior Court, and others in the Common Pleas of this city. Other suits are threatened. The plaintiff has joined in this suit Robert Schuy- ler and all the alleged owners or holders of this over-issued stock and prays that the certificates may be decreed illegal and void, and be surrendered up and canceled. That until these questions are all settled those who have sued be stayed in their proceedings, that those who have not, be enjoined from suing, that the suits now pending be consolidated with this, and closes with the usual general prayer for such further or other relief as is meet and proper. To this complaint this demurrer is interposed. From the above examination of the complaint, it is seen that the holders of this over-issued stock, (and which, for dis- tinction, I will call spurious stock), have not come in posses- sion of it under a uniform state of facts. 1. There is the firm of R. & G. L. Schuyler, who, or whose assignees, hold by title derived directly from R. Schuyler himself, a member of the firm and the author of the fraud. "Whether the firm paid value for it does not appear. NEW-YORK. 421 New York & New Haven R. R. Co. a, Schuyler. 2. There is the class who took from Schuyler with knowl- edge of the fraud, or have taken under circumstances which it is alleged should have put them on inquiry. 3. A class who hold by title based on usurious contracts with Schuyler. 4. Another still to whom the stock has been hypothecated as security. 5. There is a class who hold certificates originally valid and regularly issued, but which have been surrendered up for can- cellation, and then, as plaintiff alleges, stolen by Schuyler and re-issued. 6. There is another class who hold under certificates issued by the Yice President, Worthen. 7. There is another class of innocent holders who have taken without knowledge of any fraud. I assume that such is the fact, because it is not averred in the complaint to the contrary, and among these numerous holders, of the consideration of whose purchase the plaintiff is ignorant, the presumption is they are innocent holders till the contrary is alleged. 8. There is still another class who hold certificates repre- senting in part genuine and in part spurious stock. Now, upon these facts, assuming them as true, and assuming that this suit shall proceed with the view of determining all questions arising on the facts, it is quite clear that some of these holders are entitled to recover, whatever may be the de- cree as to others. With regard to others, it is equally clear the plaintiff would, at the proper time, be entitled to judgment, while with regard to others still, the respective rights of the parties could not be decreed without the solution of difficult and perplexing ques- tions of law, and undoubtedly of intricate questions of both law and fact, since we are not to presume that these parties defendant will suffer judgment to pass by default. The decree when finally made would necessarily be in the nature of distinct decrees against the several parties separately, and as above observed, as to some, must be against the Rail- road Company ; in other cases in its favor. Thus, as to those who have taken with full knowledge of the fraud, and the complaint avers that some did, the decree must be against the 422 ABBOTTS' PEACTICE REPOKTS. New York & New Haven R. R. Co. a. Schuyler. holder a proposition too obviously true to need discussion. As regards the innocent holders, those who have taken for value without knowledge of, or cause to suspect the fraud, the validity of their claim upon the plaintiff for full indemnity in some form, is perfect. True, that proposition only comes up incidentally on this demurrer, and it is but just to say was not made a subject of discussion by the eminent counsel engaged in the argument. Yet, in the view I take of the case, it presents itself as forming one of the elements in the proposition I am seeking to demonstrate, viz. : that upon the facts set forth in the complaint, the decree in this suit, if the bill is sustained, must be against the plaintiff as to some at least of the defendants. Under that view of the case I am permitted, as regards the innocent holders for value without notice, to say, that well settled, long established principles of law defining the respon- sibility incurred by principals for the acts of their agents, de- termines the question of liability for the acts of Schuyler against this corporation, while at the same time fair dealing, an enlightened equity, sound morals and public policy, all concur in requiring there should be no relaxation of the rule. Corporations, capable like natural persons of constituting gene- ral agents, doing their business solely through agents and boards of directors, in whom all having transactions with them must more or less confide, should be held to a very strict accountability for the acts of their agents, and the policy and necessity of such rule increases in practical importance just in proportion to the magnitude of the business intrusted to, and performed', by these corporate bodies. Passing on to the class of persons who hold these certificates under usurious contracts, while I am not called upon to anti- cipate at this stage of the case what rule of law must be ap- plied there, it is sufficient to say that as to those holders, the decree depends on a solution of questions of both law and fact, (for I cannot assume that the usury will not be denied by answer), which, in their character, are separate and distinct from, and independent of, the questions raised in the other classes of cases. Again, the rights of parties holding certificates originally valid, then surrendered for cancellation, and afterward surrep- NEW-YOKK. 423 New York & New Haven R. R. Co. a. Schuyler. titiously issued, requires the solution of still other questions of law, (probably of law and fact,) for the plaintiff claims to treat such certificates as stolen, and so not vesting in any other holder, whether innocent or guilty, either right of property or of action. And so as to all of these holders, the different state of facts under which each hae taken, and the different rules to be solved and applied, show that not only must there be separate and distinct adjudications in their nature, independent each of the other, but also that no one class of holders has necessarily any interest in the questions which must control as to every other class. Each party is entitled to be separately heard, and this requires separate trials for each separate defendant, since be- tween no two of them is there a privity of title or interest. A further effect, which necessarily follows a joinder of all these defendants, is that while each defendant prefers a claim which is distinct from that of every other, yet no judgment can be given in his favor until a general decree is made as to all. Thus the one who holds as a bona fide purchaser without notice cannot, upon proving the facts which apply to his case, take judgment and enforce his rights without regard to the other defendants, but must remain inactive with no ability to pro- ceed until all the complex, intricate and perplexing questions of law and fact affecting every other party have been tried, the questions passed upon, appeals taken and disposed of, (should either party wish to appeal), reviewed in the Appel- late Court, perhaps sent back, then re-tried, re-determined, and perhaps (for who knows to the contrary?) re-appealed, and all this, too, while he has no interest whatsoever in the questions thus litigated between the plaintiff and any other party than himself. If this suit is to be maintained, such must necessarily be its effect, provided the bill has for its object the end avowed by the plaintiff, viz : a final determination between the plaintiff and each holder of all questions respecting this over-issue of stock. If such is the object of the bill, the results I have mentioned, must follow. If it is not, the bill should be dis- missed. 424 ABBOTTS' PRACTICE EEPORTS. New York & New Haven R. R. Co. a. Schuyler. I have assumed that the several defendants may, by way of counter-claim, set up the demands they assert against the Com- pany. Whether, under the Code, they can do so, may be a serious question ; but, without deciding, I will assume they can, since that is the view of the case most favorable to the plaintiff. Assuming that, and then tracing, as we have, the nature of the proceedings to follow, provided the demurrer is overruled, with a view of determining the character of the suit, we find it resolves itself into a proposition to try in one suit nearly three hundred separate and distinct causes of action, claimed to be held by as many different parties, having but one feature common to all, viz : that the basis of these several claims is a fraud perpetrated by the plaintiffs' agent. Will such an action lie ? Plaintiffs aver it can be sustained as a 'bill of interpleader ; but that seems impossible, because the plaintiff in such bill must have no interest in the subject of the litigation. When that is the case, and the plaintiff has not the means, without hazard to himself, of determining to whom among several and rival claimants the fund in his hands is properly payable, he will be permitted to bring the fund into Court, and compel the rival claimants to interplead each with the other, while the only decree the plaintiff can have, is, that the bill was properly filed. I can see no feature in this case which in principle brings it within that class of bills, (Story Eq. Juris., 807, and cases there cited ; Har. Ch. 96 ; Cooper's Eq. 456 ; Atkinson v. Monks, 1 Cow. 694, 703). In the case last cited, Mr. Justice Sutherland lays down the following as the distinguishing feature of a bill of interpleader : 1st. That two or more persons have preferred a claim against the plaintiff. 2d. That they claim the same thing. 3d. That the plaintiff cannot, without hazard, determine to whom it belongs ; and 4th. That he has no interest in the thing claimed. Here the plaintiff is directly interested. The suits brought, are to recover directly from this corporation the losses sustained by these several holders, or in some form to make the corpora- tion itself responsible for the acts complained of. Again, these parties do not claim the same thing further than they all seek NEW-YORK. 425 New York & New Haven R. R. Co. a. Schuyler. to make the corporation personally liable for their losses. But this is not, within the meaning of the rule above stated, any- more claiming the same fund, or thing, or duty, than would be several different claims by several different parties to recover for as many several and independent wrongs inflicted on each, and for which each would have his separate redress. It is argued that the plaintiff has really no interest in this controversy, on the ground that the corporation is but a trustee, charged with the protection of the interests of the holders of its stock, and holding its property in trust merely for the sev- eral individual corporators, and so disinterested as between the holders of the genuine and alleged fraudulent stock. The argu- ment overlooks the fact that it is the aggregation of individual corporators, united under a charter which constitutes that legal entity, that artificial statutory person, which is created by law, and termed a Corporation. In this case the aggregate body of individual corporators united together under this charter, which gives them a com- mon name, a common seal, perpetual succession, and which is known by the name of the New York & New Haven Rail- road Company, is what constitutes this Corporation. The charter merely binds together in interest (so that it can act with unity) this body of constantly changing parties, and, in the very nature of things, there can exist between the Cor- poration and the individual corporators, by virtue of this cor- porate organization, no such relation as that of trustee and cestui que trust. A Corporation is a unity, but it is the aggregation of the individual corporators under the charter which makes the unit. (Kyd on Corp., 13 Dart. Call vs. Woodman, 4 Wheat. 436 ; Providence Bank vs. Billings, 4 Peters, 562). . Nor can the bill be sustained as one in the nature of a litt of interpleader. In such cases the plaintiff has a certain spe- cies of interest in the matter in dispute, but his rights are affected by rival claimants ; as in the case of a mortgagor who, wishing to pay up his mortgage and have the lien discharged, finds that several parties claim the moneys which he admits to be due to some one. The Court will allow a bill in the nature of a bill of interpleader in such case. And numerous other cases 426 ABBOTTS' PKACTICE REPORTS. New York & New Haven R. R. Co. a. Schuyler. might be cited in which such bills are proper ; but the facts must bring them within the same general principle. (Story's Eq. Juris., 824, and the cases there cited). But there is no analogy between that class of cases and the present. The relief the plaintiff asks consists in the assertion of a positive right, adverse and hostile to the parties defendant. Plaintiff charges that the defendants hold spurious certificates of the stock of the Company, and demands that those certificates be declared void, surrendered up and canceled. Here at once is a direct conflict between the plaintiff and the defendants. But, how, or in what way are the defendants to interplead ? What has any one defendant to demand as against any other defendant, or against the aggregate of the defendants? Should the Court decree them to interplead, what are they to plead ? what judgment is the Court to give as between these several defendants ? It is quite plain what judgment must be given on the facts pleaded as between plaintiff and some of these defendants ; but as between defend- ant and defendant, it is equally plain there is no judgment to be rendered. Nor can I discover any principle on which the complaint can be sustained as a Mil of peace. Such bills are well known and are proper in a variety of instances, and may be filed against a large number of parties. Such as a bill to establish a right to an exclusive, as against many who claim a several, right of fishery. To establish a right to the exclusive enjoy- ment of a tract of land against all the inhabitants of a par- ticular manor, district, or township, claiming rights of com- mon in the same land. A bill by a patentee to establish or protect his rights against numerous others engaged in infring- ing those rights, and in numerous other instances, where the main question to be decided, applies equally to all the defend- ants, or is one in which they are all equally interested or with which they are in some way connected. (Story Eq. Juris. 853 to 857, 3 John JR., 566. Trustees of Town of Huntington v. Nicholl, 3 Johns. 506; Brinckerhoff v. Brown, 6 John. Ch.R. 139). So also bills filed by a party claiming some right or entitled to some relief against all of the defendants, (and they may be very numerous), based upon a confederacy or combination NEW-YOKE. 427 New York & New Haven R. R. Co. a. Schuyler. among those parties for the accomplishment of a general object, to the injury of, or in fraud of the rights of the plain- tiff, are of this class. In such cases, to avoid multiplicity of suits, the bill will lie against all the confederates in the fraud, they being engaged in one common object, and that too, although in carrying out the details the several confede- rates may have performed acts, or claim to have acquired rights, separate and distinct from those claimed by any of the other defendants. If the one common object which was the starting point of the combination is made out, then the sepa- rate interests or acts of the several defendants are but emana- tions from a common source. Such was the nature of the case in Brinckerhoff v. Brown, (6 Johns. Ch. Rep. 139), commented on and approved in Fel- lows v. Fellows, (4 Cow. 682). There the charge was a combi- nation of all the defendants in one common object -fraud to carry out which general object a series of separate and dis- tinct acts were performed by each defendant, and those acts, independent of and distinct from other acts performed by others, yet all in furtherance and consummation of the general object .which formed the confederacy, viz: Fraud. The plaintiff had a right to be relieved against the effects of this combination, and this brought the case within the rule laid down by that profound jurist, the late Chancellor Kent,, who, in Brinckerhoff v. Brown, said a general principle de- ducible from all the cases is, " that a bill against several par- ties must relate to matters of the same nature and having a connection with each other, and in which all of the defendants are more or less concerned, though their rights in respect to the general subject of the case may be different." That gene- ral principle applies to all cases where there is a multiplicity of parties and the bill is filed to avoid multiplicity of suits. The bill must then have for its foundation some issue which concerns all the parties brought in as defendants an issue with which each defendant is in some way connected, so as to give the plaintiff a right to some relief as to each one and against all. The several interests or questions represented in the persons of the several defendants, must, like the several branches of a 428 ABBOTTS' PRACTICE REPORTS. New York y, 2. XIV. Opinions end Belief of Witnesses. 1. The opinions of witnesses not examined as experts, held inadmissible. Dunlap a. Snyder, 17 Barb., 561 ; Brown a. The Mohawk & Hud- NEW-YOEK. 527 January July, 1855. son Rail Road Company, 1 How. App. Gas., 52 ; Lee a. Bennett, How. App. Cos., 187 ; Duff a. Lyon, 1 E. D. Smith's G. P. R., 536 ; Parsons a. Disbrow, Ib. 547 ; Woodin a. The People, 1 Parker's Gr. R., 464 ; Holmes a. Anderson, 18 Birb., 420 ; Simmons a. Fay, 1 E. D. Smith's G. P. R., 107 ; but see Harper a. Leal, 10 How. Pr. R., 276. 2. The opinions of witnesses not examined as experts may be admissi- ble from the necessity of the case. Rochester & Syracuse R. R. Co- a. Budlong, 10 How. Pr. R., 289. 3. The rule that opinions may be received on questions of value but not on questions of damages, explained. Ib. 4. The opinion of a qualified witness upon the future value of lands, or their probable diminution in value in a supposed state of facts, held admissible. Ib. 5. The opinion of a physician examined as an expert, may be asked upon an hypothetical state of facts. Lake a. The People, 1 Parker's Gr. R., 495. 6. The opinion of a physician examined as an expert must be based on all the testimony relating to the matter ; and if he has only heard a part, his opinion is inadmissible. Lake a. The People, 1 Parker's Gr. R., 495. 7. The admissibility of the opinions of witnesses as to the value of property which they have not seen, considered. Harper a. Leal, 10 How. Pr. R., 27 G. XV. In Certain Actions. 1. Pleadings, evidence and measure of damages, in actions of trespass. Levy a. Bend, 1 E. D. Smith's G. P. JR., 169; Ives a. Humphreys, Ib., 196. 2. As to rules of evidence in cases of claims for the return of fugitives from service. Belt's Case, 1 Parker's Gr. R., 169. 3. In an action upon a covenant, under an averment of performance, evidence in excuse of non-performance is not admissible. Oakley a. Morton, 1 Kern., 25. 4. In an action of assault and battery, provocations of long standing at the time of the assault cannot be proved in mitigation. Willis a. Forrest, 2 Duer, 310. 5. In an action to recover the value of a trunk and contents lost on the defendants' rail road, held, that the fact that the plaintiff was a pas- senger, and that the defendants took his baggage, was sufficiently proved by his possession of the baggage check and the testimony of the baggage-master to the custom of giving checks. Davis u. The Cayuga & Susquehanna R. R. Co., 10 How. Pr. R., 330. 528 ABBOTTS' PRACTICE DIGEST. Reports and Statutes. 6. Evidence of general reputation for negligence inadmissible to prove negligence upon a particular occasion. Jacobs a. Duke, 1 E. D. Smith's G. P. R., 271. 7. In an action for damages for injuries to the person, evidence of the plaintiff's complainings of distress and pain is admissible. Caldwell a. Murphy, 1 Kern., 416. 8. In an action for damages for injuries to the person, evidence of the nature of the plaintiff's trade, that he had no other means of support, except the charity of friends, of the number of persons in his family, and in what manner they were supported after the injury, is admissi- ble to show that the plaintiff's circumstances were such that he would probably have been in employment but for his injuries. Caldwell a. Murphy, 1 Kern., 416. 9. Whether in an action for slander evidence in mitigation is admissible under a plea of justification ; Query ? Bush a. Prosser, 1 Kern., 347. 10. In an action against the proprietor of a newspaper for libel, an article published in his newspaper, if sufficiently connected with the defendant by proof, may be read in evidence to show the circulation of the paper, and the proprietor's income from it. Fry a. Bennett, Ante, 289. 11. In a suit for malicious prosecution, the plaintiff must prove the entire want of probable cause for the accusation, and actual malice on the part of the defendant, in preferring it. Whether there was actual malice is a question of fact which must be decided by the jury. But whether there was probable cause is in all cases a question of law which the court alone is competent to determine, and upon which it is bound to express a positive opinion. It is no more a mixed question of law and fact than any other question of law which a judge can be required to determine in the progress of a trial. If, there- fore, the facts are admitted or clearly established, and the judge is of opinion that they do not prove a want of probable cause, he must either non-suit the plaintiff or instruct the jury to find for the defend- ant. But if the facts are doubtful, he must instruct the jury that if the facts shall be found by them in a certain manner, they do or do not, as the case may be, amount to a want of probable cause. It is error to submit the question of probable cause to the jury even by implication. Bulkeley a. Smith, 2 Duer, 261. 12. An action for seduction can be sustained, although it be not shown that the minor daughter was actually in her father's service, or that he incurred any trouble or expense in her sickness ; it is sufficient if he was legally entitled to her services. Mulvehall a. Millward, 1 Kern, 343. NEW-YORK. 529 January July, 1855. Tit. II. Burden of Proof. Tit. III. Presumption, 2, 3, 4. Tit. IX., Hearsay. ANSWER, 32. WITNESS tit. Competency, 10. EXAMINATION OF ASSIGNOR. 1. There is no reason for restricting the provision of the Code allowing a party to be examined in his own behalf, when the assignor of a chose in action has been examined by the adverse party, to the case of the examination of a voluntary assignor. It applies also where the assignment is made in pursuance of law or the direction of a court or officer. Gardner a. Clark, 17 B rb., 538. 2. A person who sells a promissory note, whether by indorsement or not, is an assignor of a thing in action, within the meaning of section 399 of the Code. Potter a. Bushnell, 10 How. Pr. R. 94. 3. One who transfers a promissory note by delivery and without indorse- ment, is not an assignor of a thing in action, within the meaning of sec- tion 399 of the Code. And when in an action upon the note he has been examined on behalf of the plaintiff, this does not entitle the adverse party to offer himself as a witness. Watson, a. Bailey, 2 Duer, 509. 4. So of the indorser of a promissory note. Hicks a. Wirth, 10 How. Pr. R., 555. 5. The fact that an assignor of a chose in action has covenanted with the assignee that the full amount of the claim was due, does not ren- der him incompetent to prove the claim in a suit by the assignee. Winthrop a. Meyer, Ante, 383. Compare Van Wyck a. Mclntosh, 2 Duer, 86. ' 6. It is only necessary to give notice of the intended examination of an assignor of a chose in action, when he is to be examined against an assignee, executor, or administrator. Collins a. Knapp, 18 Barb., 532; Farley a. Flanagan, 1 E. D. Smith, C. P. R., 313. 7. The provision of the Code, requiring ten days' notice of the intended examination of an assignor of a chose in action is applicable to jus- tices' courts. It constitutes a rule of evidence within the meaning of section 64, subd. 15. Collins a. Knapp, 18 Barb-, 532; Pelham . Bryant, 10 Pow. Pr. R. 60. 8. Where a defendant is entitled to offer himself as a witness in reply to the testimony of an assignor, examined by the adverse party, his examination is not limited to the identical points as to which the assignor was examined, but he may testify as to the same matter. Gardner /..r):ri <.! inn (tiii", ;'[ SCHOOL OFFICERS. The practice under the act of 1st May, 1847, entitled " An act in rela- tion to suits against district school officers" (Laws 1847, 163) ; amended llth April, 1849. (Laws 1849, 545) considered. People a. Green, 10 How. Pr. R., 468. JUSTICES' COURT, tit. Jurisdiction, 11 ; MANDAMUS, 4. SECURITY FOR COSTS. COSTS, 10,22, 23, 24, 25; JUSTICES' COURT, tit. Security; SUPPLE- MENTARY PROCEEDINGS, 7. SERVICE AND PROOF OF. 1. Service of summons upon an elector on election day, is void. Meeks a. Noxon, Ante, 280. 2. When a statute requires service of a notice on a person, personal ser- vice is intended, unless some other mode of service is specified or indi- cated. Rathbun a. Acker, 18 Barb., 393. 566 ABBOTTS' PRACTICE DIGEST. Reports and Statutes. 3. "Where a statute requires personal notice, a notice by mail, although it reaches the party, is no compliance with the statute. Ib. 4. Where the statute requires a notice to be served " personally," or by depositing the same in the post-office, properly folded, and directed to the said persons at their respective places of residence," the valid- ity of the service by mail does not depend upon the locality of resi- dence, but parties residing in the town where the service is made may be served by mail. But DENIO and ALLEN, J. J., dissented. Stan ton . Kline, 1 Kern., 196. 5. The expression " at his place of residence," in section 41 1 of the Code, relates to the post-office and not to any particular locality in a town or city. A package addressed to an attorney at New York, without the addition of his street and number, Held sufficient service. Oothout a. Ehinelander, 10 How. Pr. R., 460. 6. Service of summons under the " Act to facilitate the service of pro- cess in certain cases," (Laws of 1853, ch. 511). Jones a. Derby, Ante, 458. 7. Service of process upon a foreign corporation, doing business in this State, may be made upon any person found within the State acting as their agent, unless by a designation filed in the office of the Secre- tary of State they have appointed some person in the county to receive service. Laws 0/1855, 470, ch. 279. 8. A motion for the appointment of a receiver will be denied as irregu- lar, when the order to show cause against the appointment is served before the commencement of the suit. Kattenstroth a. The Astor Bank, 2 Duer, 632. 9. The official certificate of a sheriff of another State is not evidence in this State of service of papers ; his affidavit should be presented. Thurston a. King, Ante, 126. 10. Requisites of an affidavit of service. Van Wyck a. Reid, 10 How, Pr. R., 366. JUDGMENT, 11, 12; JUSTICES' COURT, tit. Jurisdiction, 5; STAY OF PROCEEDINGS, 3, 4, 5. SESSIONS. 1. Where one of the members of a court of sessions granting an order of maintenance is one of the individuals who, as superintendents of the poor, apply for the order, the court have no jurisdiction, and the proceedings and order are void. Converse a. McArthur, 1 7 Barb., 410; Baldwin a. McArthur, Ib., 414. 2. A justice holding special sessions sits as a court, and cannot render NEW-YORK. 567 January July, 1855. judgment except when his conrt is in session, and the record must show this ; and, although he may hold his court open after verdict for a time, yet where his session has come to an end he cannot reorgan- ize the court to render judgment. Lattimore a. The People, 10 How. Pr. R., 336. 3. Where the order of a county judge, made under Laws of 1851, 825, appointed time and place of County Court, but omitted to add the Court of Sessions, an indictment, proceedings and conviction had in the Court of Sessions, were set aside and quashed by the Supreme Court, on certiorari. People a. Monegan, 1 Parker's Cr. R., 570. 4. Courts of Sessions as authorized under the judiciary act of 1847, have not power to grant new trials. It seems that Courts of Oyer and Terminer have this power. The People a. The Court of Ses- sions of Wayne County, Ib., 369. 5. Where one of the members of a county Court of Sessions is absent, or is by interest or otherwise disqualified from acting in a particular proceeding, it is the duty of the county judge to designate some other justice of the peace of the county to supply the vacancy. Baldwin a. Me Arthur, 17 Barb., 414. 6. The jurisdiction of the Court of General Sessions of the city and county of New York, extended to all crimes and misdemeanors what- soever. This court may punish for contempt. Laws of 1855, 613, ch. 337. 7. The jurisdiction of the Court of Special Sessions of the city and county of New York extended to all misdemeanors. The accused may elect to be tried at General Sessions. Laws of 1855, 613, ch. 337. CRIMINAL LAW, tit. Recognizance and Bail, 5. SHERIFF. 1. The distinction between acts performed virtute officii and those done colore offici, considered. Dennisori a. Plumb, 18 Barb., 89. 2. A bond of indemnity given to the sheriff, upon execution, is not in- validated by the fact that it was given after levy and sale. Wester- velt a. Frost, Ante, 74. 3. Where the sheriff was adjudged guilty of contempt, in refusing to return an execution, and was ordered to pay the judgment creditor a fine to the amount of the claim, and the plaintiff in the execution as- signed the judgments to the son of the sheriff, for the benefit, as ap- peared, of the sheriff and his sureties : Held, 1. That the sheriff could not thereafter enforce the execution. A sheriff cannot do execution when he himself is a party, and whether 568 ABBOTTS' PRACTICE DIGEST. Reports and Statutes. he is nominally a party or only beneficially interested, cannot affect the question. 2. That the sale and conveyance of real property by the sheriff under the execution was void. Carpenter a. Stilwell, 1 Kern., 61. 4. The defences in an action against a sheriff for an escape. Gino- chio a. Orser, Ante, 433. ARKEST, 1 ; ATTACHMENT, 4 ; CHATTEL MORTGAGE, 2 ; EVIDENCE tit. JUDGMENTS and Judicial proceedings, 2; INTERPLEADER, 4; JOIN- DER OF ACTIONS, 7 ; LIMITATION OF ACTIONS, 5 ; SERVICE OF PRO- CESS, 9. SPECIAL PROCEEDINGS. 1. Proceedings for the appraisal of lands taken for a railroad are Spe- cial Proceedings. An order affirming the report of the Commission- ers in such proceedings is appealable, where the appeal was taken and undetermined before the passage of the act of 1854, in relation to Special Proceedings ; and although previous to the passage of that act there was no authority for such an appeal. Where a report of commissioners of appraisement, upon its face conforms in substance to that requirement of the act, and notice is properly given for its confirmation, it is the duty of the court to confirm it. No affidavit or other proof should be heard on such application to impeach the report. An error of law committed by the commissioners in their decision or in the admission or rejection of evidence can be reviewed only on appeal from their appraisal. Rochester & Genesee Valley R. R. Co. a. Beckwith, 10 How. Pr. R., 168. 2. The Supreme Court has full power in regard to these proceedings, and an appeal from their order confirming a report, will' be dismis- sed. New York Central R. R. a. Marvin, 1 Kern., 276. 3. The Referees appointed upon appeal from the determination of the commissioners of highways in refusing to lay out, alter, or discontinue a road, possess all the powers and are required to discharge all the duties formerly possessed by the three judges under the Rev. Stats. The People a. the Commissioners of Highways, 4 Seld. 476. 4. Of proceedings by the corporation of the City of New York to ex- tend a pier. Marshall a. Vultee, 1 E. D. Smith's C. P. R., 294. And see Thompson a. The Mayor, &c., of New York, 1 Kern., 115. And Marshall a. Guion, Ib., 461. 5. Construction of notice to reirove articles obstructing a street, " on or before" a specified day. Coddington a. White, 2 Duer, 390. 6. The proceedings to compel the determination of claims to real pro- perty, referred to by section 308 of the Code, are those specially au- NEW-YORK. 569 January July, 1855. thorized by 2 Rev. Stats., 312. And that section does not embrace an action to set aside a conveyance of real estate upon the ground of incompetency of the grantor. Bridges a. Miller, lb., 683. 7. The proper mode of proceeding in an action to compel the determi- nation of claims to real property. Hammond a. Tillotson, 18 B^irb., 332. 8. The statute relative to proceedings to compel the determination of claims to real property, amended. Laws of 1855, 943, ch. 511. 9. Proceedings to abolish the distinction between town and county poor. Baldwin a. McArthur, 17 Barb., 414. CORPORATION, 14 ; JUDGMENT, 19 ; LUNATICS AND HABITUAL DRUNK- ARDS ; SUPREME COURT. SPECIFIC PERFORMANCE. When a specific performance will be decreed. Slocum o. Closson, 1 How. App. Cos., 705. Clarke a. The Rochester, Lockport, & Nia- gara Falls R. R. Co., 18 Barb., 350. STATUTORY CONSTRUCTION. 1. Of the principles which should govern in the construction of statutes. McCluskey a. Cromwell, 1 Kern., 593. 2. Where a statute prescribes the giving of an instrument, and its pur- port, it is consideration enough to support the instrument that it was given pursuant to the statute. Slack a. Heath, Ante, 331. 3. Where the statute requires the execution of a bond to be by " the debtor or his agent, with such sureties as shall be approved," &c., an omission to procure more than one surety does not invalidate it. Ward a. Whitney, 4 Seld., 442. 4. Powers and duties of receivers in an equity suit commenced before the Code. Tracy a. Talmadge, Ante, 460. ATTACHMENT, 6, 7 ; CERTIORARI ; COSTS, 23, 24, 25 ; EXECUTION, 5. STAY OF PROCEEDINGS. 1. An appeal from an order overruling a demurrer operates as a stay of proceedings ; no undertaking being necessary. Cook a. Pomeroy, 10 How. Pr. R., 103. 2. What is a judgment directing the payment of money, within the meaning of section 335 of the Code, relating to the stay of execu- tion on appeal. Curtis a. Leavitt, Ante, 274. 3. The court may grant an ex parte order staying proceedings for more than twenty days, although a justice of the court sitting at chambers cannot do so. The papers on which such order is founded need not 570 ABBOTTS' PRACTICE DIGEST. be served with the order. Section 405 of the Code, applies only to orders enlarging the time within which proceedings in the action must be had. Harris a. Clark, 10 How. Pr. R., 415. 4. To render an appeal from a judgment at circuit or special term effectual as a stay of proceedings, an undertaking must be executed by the appellant to the effect that he will pay all the costs as well as the damages which may be awarded against him on appeal. An omission to provide in the undertaking for the costs of the appeal is fatal, and such an undertaking will not prevent the issuing of execu- tion. The party on whom such an undertaking is served is not bound to return it with a statement of his objections. Chemung Canal Bank