author: BRADY, J.:

text:
    ROBERT A. MILLS, Plaintiff, v. DAVID M. HILDRETH, Impleaded, etc., Defendant.

      Arrest — proceedings for disehange from —papers to be fled — effect of not filing within flvree months.

    When proceedings are taken, in pursuance of the provisions of part 2, chapter 5, title 1, article 5, of the Revised Statutes, for the release of a person from liability to arrest for debt, unless the papers are filed in the proper clerk’s office within the three months prescribed by statute, an execution against his person is rightfully issued. After the expiration of such three months and before the filing of the papers, if, on execution issued, his person is not found by the sheriff or surrendered by his bail, the bail are liable for a breach of the condition of their undertaking.
    If the papers are not filed within three months, the discharge becomes operative only from the time of filing, and has no retrospective effect.
    Exceptions ordered to be beard in the first instance at General Term, judgment in the mean time suspended.
    The action was brought on an undertaking given by the defendants for the release from arrest in a civil action of one Henry Rodewald. The court directed a verdict for defendant.

      Thomas Braclcen, for the plaintiff.
    The discharge under the statute was, in any event, inoperative until the papers upon which the same was granted were filed and recorded by the clerk of the city and county of New York. (3 R. S. [5th ed.], §§ 19,27, art. 7, pt. 2, tit. 1, chap. 5; Sess. Laws, 1866, chap. 116; Barnes v. Bill, 13 Abb. Pr. [N. S.], 169.) The discharge not having been properly filed prior to the fixing of the liability of the defendants, the subsequent filing of same will not protect them. (Barnes v. Bill, 13 Abb. Pr. [N. S.], 169.) The defendants in an action against them as bail cannot avail themselves of the discharge of their principal under an insolvent law by answer, even if the discharge and the proceedings therefor had been all regular, the discharge in such a case being personal and its benefits confined to the insolvent. (3 Cai., 4; 12 Wend., 123; Ellsworth v. Galdwell, 18 Abb. Pr., 20; 27 How. Pr., 188.) The alleged discharge of Rodewald did not prevent the bail from surrendering their principal. (3 R. S. [5th ed.], §§ 19, 27, art. 7, pt. 2, tit. 1, chap. 5; Sess. Laws, 1866, chap. 116; Barnes v. Bill, 13 Abb. Pr. [N. S.], 169.) After the time for surrender has passed, bail cannot move to be exonerated on the ground that their principal is not liable to arrest. {Stever v. Somberger, 19 Wend., 121.)

      Beo. 0. Genet, for the defendant.
    The discharge is prima faeie evidence of the facts recited, and no evidence to contradict any of them was offered. {Stanton v. Ellis, 12 N. Y., 578.) The amendment (chap. 116 of 1866) makes it incumbent on the person obtaining the same to file and record with the county clerk all the petitions, schedules, affidavits, inventories, orders and other papers on which this discharge was granted, within three months from the time of its being granted, under a penalty of the discharge being inoperative, after the three months, and remaining inoperative until the papers are duly filed and recorded. For three months after the granting this discharge it was valid and effectual as if the act of 1866 had not been passed; after that, the papers not having been filed and recorded, the discharge became inoperative and remained so until the 8th of October, 1874, before the trial of this cause, when the omission being discovered the papers were duly filed and recorded and once more became operative. During three months from the time of the discharge being granted, it was operative and effectual to discharge the insolvent debtor from imprisonment for the debt sought to be recovered in this suit. During this time the bail could not arrest him nor surrender him to the sheriff. He was not liable to imprisonment, and his bail were discharged from all liability to surrender him to be imprisoned. The intent and effect of section 191 of the Code is to make the discharge of the debtor from liability to imprisonment for the debt equivalent in law to his death or imprisonment in the State prison, so far as the liability of the bail is concerned. In a recent case (Oozine v. Walter, 55 N. Y., 308) the Court of Appeals has decided that the surrender referred to in section 191 is not the surrender provided by section 188, but must be a surrender under 2 Revised Statutes, 380, sections 21, 22, which required an order for the commitment of the defendant to the custody of the sheriff in exoneration of the bail. The judgment debtor not having been surrendered then, within the meaning of section 191, the bail were not discharged. After the non-imprisonment act was adopted, ánd it was claimed bail were discharged when their principal was thereby discharged from his liability to imprisonment, the same as if he were dead, the court decided that an exonoretur was necessary to complete their discharge, because the exemption from imprisonment was a personal privilege which the principal might waive.
   BRADY, J.:

The defendants are sued as sureties for Henry Rodewald, who was arrested and held to bail in action brought against him by the plaintiff herein. The undertaking was executed on the 17th of December, 1869. The judgment against Rodewald, their principal, was recovered on the 25th of October, 1872, and the executions against his property and person were issued, respectively, on the 7th of November, 1872, and 4th of December, 1872. The former was returned on the 27th of November, 1872, unsatisfied, “no personal or real property,” and the latter on the 4th of February, 1873. He was not arrested, and he did not render himself amenable to the process thus issued against him. This action was commenced in March, 1873, and the defendant Hildreth appeared and answered. On or about the 29th of January, 1870, Rodewald presented his petition, under the provisions of part 2, chapter 5, title 1, article 5, of the Revised Statutes, praying that his person might thereafter be exempt from arrest or imprisonment by reason of any debts arising from contracts theretofore made, and in all things to have the benefit of the statute referred to. Such proceedings were had thereupon, that, on the 6th day of May, 1870, he was discharged by Judge Loew, of the Court of Common Pleas of this city. The discharge thus obtained was set up in this action as a defense, and on the trial various objections were urged against its admission. In the view taken of this appeal, it will be necessary to consider, however, but one of them. It may be assumed for the purposes of this review, that the proceedings had before Judge Loew, were all regular’, and the discharge granted by him valid therefore. The question which affects its vitality in this case, arises from the laches of the debtor, Rodewald, subsequent to the signing of his discharge. It was signed, as already stated, on the 6th of May, 1870, but the petition, affidavits, inventories etc., constituting the proceedings, were not filed until the 8th of October, 1874, which was more than a year after this action was commenced, and nearly two years after the execution was issued against his person. The act of the legislature, passed 9th of March, 1866 (Laws of 1866, chap. 116, p. 234), amendatory of the Revised Statutes, declares that these papers shall be filed and recorded by the clerk of the county in which the insolvent resided at the time of the presentation of his petition, and within three months from the granting of the discharge, or such discharge shall be thereafter inoperative until such papers shall be duly filed and recorded. When the execution therefore was issued against the person of Rodewald, there was no discharge to prevent his arrest, and such was his legal status when this action was commenced. He was amenable to the process against him, because the three months allowed by the statute had expired, and his discharge had ceased to have any existing power to shield him from arrest and imprisonment. It is not an answer to this proposition, that on filing the papers-the discharge became operative, and, by retroactive effect, extended back .to the time when the execution was issued. The statute does not so declare. It is that during the interval it shall be inoperative. The language is, “ shall be thereafter inoperative until such papers shall be duly filed and recorded.” ' The plaintiff had the right to arrest the debtor, therefore, when the execution was issued, and it continued until long after his right of action accrued and was presented to this court. From the time of the filing only, it became operative. This view of the statute is sustained by the case of Barnes v. Gill (13 Abb. Pr. [N. S.], 169), in which an execution, issued after a discharge from debts, and after the expiration of three months, but before the filing of the papers, was held to be good, and the debtor’s property subject to seizure. A statute affecting rights and liabilities should not be so construed as to act upon those already existing. To give it that effect, it should in terms declare an intention so to act. (Sedgwick on Statutory and Common Law, 195, and cases cited.) The case of Dash v. Van Kleeck (7 Johns., 477), is analogous to this. The sheriff was sued for an escape, and after issue joined the legislature passed an act declaring that a return or recaption of the prisoner before action brought, should be a good defense. The sheriff sought to avail himself of the statute on the ground that it should be held to operate retrospectively, but the court thought otherwise. Justices ThompsoN and KbNT, in their opinions, were very decided in the view that the intention to give the retroactive effect to the statute should be manifest by express words, because such laws “ neither accord with sound legislation nor the fundamental principles of the social compact,” and should not be considered as so intended, in the absence of express words, because it would be a violation of fundamental principles, which is never to be presumed.” There is nothing in the statute warranting the conclusion that during the interval provided for, its provisions would apply if the papers were filed. There are no express words thereto, and none from which it may justly be presumed.

The statute under which Rodewald was relieved from liability to arrest, is one for the benefit of debtors of his class, and by which a remedy was taken away from the creditor, with a certain condition annexed, namely: that the papers on which the procedure rested should be filed within the time named, or the discharge would become inoperative until the statutoi’y iequirement in this respect was complied with. After the expiration of the three months prescribed, the discharge ceases to possess, as already suggested, any legal vitality, and so continues -until the papers are filed. There is no answer to this proposition. The right of the plaintiff to issue the process against the debtor was perfect, and he was not forthcoming. He was neither found by the sheriff nor surrendered by his bail, and the condition of their undertaking was broken. It is suggested that the bail could not surrender him during the three months, and therefore that the statute of 1866 does not affect their rights acquired by the discharge; but the point thus taken cannot be sustained. The bail were bound to see to it, that their obligation should be observed in all its legal bearing. It was for them to ascertain that the debtor relieved them by his acts from responsibility, and for them only. It must be assumed that they knew of the debtor’s duty to file the papers referred to or that his discharge would become inoperative, and that they must either move to have their undertaking discharged or surrender him, and in that way have themselves released from liability. The subject considered, however, is one between principal and bail, and not between creditor and bail. The discharge was not absolute, but conditional, and might have ceased entirely. The plaintiff’s rights were certain and secured. The judgment for these reasons is wrong, and a new trial should be granted, with costs to abide the event.

Davis, P. J., and Daniel's, J., concurred.

Judgment reversed, and new trial granted, costs to abide event.


source: Caselaw Access Project

author: Beady, J.:

license: Public Domain

text:
    MARTIN GODFREY, Jr., Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Mayhem — Mting off extenial ear — emdenee of premeditation to justify conviction of— Meamination of prisoner before committing magistrate — when admissible.

    What allegations in an indictment are sufficient to sustain a .conviction of mayhem, considered.
    The external ear is a member of the human body within the meaning of the statute of mayhem.
    If, at the instant of biting, the prisoner intends to take the external ear off with his teeth and does so, he is guilty of sufficient malice aforethought and premeditation, to justify his conviction of mayhem, if the other facts in the case lead to such a result.

      Semble, that when the prisoner signs his examination, taken down before the committing magistrate, who testifies positively that he either read it to him or chat it was read to him by the clerk, such being the settled and uniform practice of his court, it is sufficient to justify its admission in evidence,
    "Weit of error to review the conviction of the plaintiff in error of the offense of mayhem.
    The plaintiff in error was indicted in the Court of General Sessions of New York for mayhem; pleaded “not guilty” to the indictment; was tried before the city judge and a jury, and was convicted and sentenced to the State prison for the term of seven years.
    The indictment alleged:

      “ That Martin Godfrey, late of the First ward of the .city of New York, in the county of New York aforesaid, on the loth day of July, in the year of our Lord, 1874, at the ward, city and county aforesaid, with force and arms in and upon one Robert Southern, in the peace of the said people then and there being, feloniously, wickedly and of his malice aforethought, did make an assault, and that he, the said Martin Godfrey, the left ear of him, the said Robert Southern, with the teeth of him the said Martin Godfrey, then and there feloniously, willfully, from premeditated design and on purpose, did bite off, disable and destroy.”
    And so the jurors aforesaid, upon their oath aforesaid, do say, that the said Martin Godfrey, late of the ward, city and county aforesaid, on the day and in the year last aforesaid, at the ward, city and county aforesaid, him, the said Robert Southern, with force and arms, willfully, feloniously, of his malice aforethought, and on purpose, did maim against the form of the statute in such case made and provided, and against the peace of the people of the State of New York, and their dignity.
    It appeared upon the trial that a dispute arose between Godfrey and Southern, while playing a game of cards in a saloon. At the conclusion of the game, Godfrey used insulting language to Southern, when Southern asked him if he wanted to fight. Godfrey then struck Southern, when they clinched and fell upon the floor fighting. During the struggle Southern lost the greater portion of his left ear. The prisoner claimed that it had been taken off by the edge of a table against which Southern fell during the scuffle. Southern testified : “ As we cliuched, I felt him trying to get a chew at me; says I to him, ‘Martin, don’t you bite.’” Another witness also testified, that he heard Southern tell the prisoner not to bite him.

      Wm. F. Rowe, for the plaintiff in error.
    The cutting off the ear, nose or the like, would not, at common law, be mayhem. The only conflict between the offense at common law and the provisions of our statute relating to the same offense are, that the statutes add to or multiply cases of the like character. It is a well settled principle of law that if an enactment is, in its nature, declaratory of the common law, it will be construed, as far as may be, according to the common law. (Freeman v. The People, 4 Denio, 9, 29; Commonwealth- v. Humphries, 7 Mass., 242; People v. Butler, 16 Johns., 203; 2 Bish. on Grim. Law [3d ed.], § 176; also, see, 1 Kent’s Com., 464; The People v. Ooshen Turnpike Co., 11 Wend., 596; The People v. Mather, 4 id., 229.) When particular words are followed by general ones —■ as if, after an enumeration of several classes or things, there is added,.and all others — the general words are restricted, in meaning, to objects of the like kind with those specified. {Bex v. (fillbrass, 7 Car. & P., 444; Bex v. Harris, id., 446; Bex v. St. George, 9 Car. .& P., 483; 1 East Pleas of the Grown, 187, 188 ; Beg. v. Beed, 23 L. T., 156; 28 Eng. L. and Eq., 133; 1 Bish. on Grim. L., § 275 ; Beg. v. WMtnash, 7 B. & O., 596; Smith’s Com., 172; 28 English Law and Equity, 133; Bex v. Atkinson, Russell & Ryland, 104; ■ Russ. Grimes [Grea. ed.], 728; Bex v. Atkinson, 1 Russ. Grimes [Grea. ed.], 729; Russell & Ryland, 78; Bex v. Whitfield, 1 Russ. Crimes [Grea. ed.], 728; 1 Bish. Grim. Law [3d ed.], § 330; Bex v. Harris, 7 Gar. & P., 446; Coolidge v.' Choate, 11 Mete., 79; Danforth v. Woodwa/rd, [10th ed.], 423; Bueki/ngham v. BilVmgs, 13 Mass., 82; Patten v. Shepard, 4 Conn., 450.) The indictment did not charge the plaintiff in error with having committed the offense of mayhem. The defect was not and could not be supplied by the evidence, and could not be cured by the verdict. (Buloff v. The People, 18 N. Y. [4 Smith], 180 ; The People v. Bennet, 49 N. Y., 137.) It is a well established rule in criminal pleadings that all material facts and circumstances comprised in the definition of the offense, by rule of the common law or by statute, must be stated, and if any one material fact or circumstance be omitted the indictment will be bad. (2 líale, 183,184; Bacon’s Ab., Indict., Gr. 1; 4 Tenn., 634; 5 East, 258; Lambert v. The People, 9 Crown, 578; 1 Waterman’s Archbold [6th ed.], 85; 2 Chitty’s Orim. Law, 171, 173, 281, 289; The People v. Wilber, 4 Parker’s Grim., 19; Wood v. The People, 9 Barb., 671; Briggs v. The People, 8 id., 547; The People v. Enoch, 13 Wend., 172, 173; Wood v. The People, 53 N. Y., 511; Hale’s Pleas of the Crown, .628; Foster’s Crim. Law, 423; Iiawkin’s Pleas of the Crown, chap. 23, § 77; chap. 25, § 110; 3 Chitty’s Orim. Law, 812; 1 Russ, on Crimes, 686; Barbour’s Crim. Law, 73, 332; People v. Enoch, 13 Wend., 172.) In all cases in which the statute provides that if an offense is committed “by certain means,” or in a “certain manner,” the indictment must charge that the means were employed, or the manner followed, and the omission to do so will be deemed error, and the conviction will be reversed. (Enright v. The People, 21 How. Pr., 383; People v. Pavis, 18 id., 134; 4 Parker’s Crim., 61; O'Leary v. The People, id., 187; Commonwealth v. Barlow, 4 • Mass., 439; Fellinger v. The People, 15 Abb. Pr., 128; 24 Iiow., 341.) Where the intent, or premeditation, with which an act is done, forms a material ingredient in an offense, it must not only be laid in the indictment, but it must be proved as laid. (Waterman’s Archbold, 119; The People, v. White, 24 Wend., 520; Bullirán and Clark v. The People, 1 Parker’s Crim., 347; Wilson v. The People, 4 id., 619; The .People v. Lamb, 2 Keyes, 360; The People v. Johnson, 1 Parker’s Crim., 564.)

      B. K. Phelps, district attorney, for the defendants in error.
    It is not necessary to allege in the- indictment the means by which premeditation is “evinced; ” that is shown. (Sir John Coventry’s Act, 2 Bish. Or. L., 1003.) It is not necessary to aver that the ear is a member of the human body. There is no doubt that the -law will take judicial notice of the limbs and members of the human body — of any thing that is uniform, settled and certain, and not' merely accidental. {Clementi v. Golding, 2 Camp., 25 ; Commonwealth v. Kneeland, 20 Pick., 239; Stephen on Plead., 353.) The question of how the wound was inflicted was not one for scientific opinion. It was a question of fact for the jury after availing themselves of all evidence, scientific and otherwise, bearing upon the case. (Kennedy v. The People, 39 N. Y., 245; Wilson v. The People, 4 Park., 619.)

      See Burke v. People, 4 Hun, 481.— [Rep.

   Beady, J.:

The plaintiff in error was indicted formaiming Robert Southern, the complainant, by biting off the greater part of his left external ear. He was convicted and sentenced to seven years imprisonment. Many exceptions were taken during the trial, but they were either frivolous or taken to questions which, not being answered, were abandoned, or founded on objections which were remedied at the moment or subsequently, and are consequently valueless to the plaintiff in error. Por example, the plaintiff in error put Dr. White upon the stand to show that, from the appearance of the part of the ear bitten off, it was his opinion that it was torn off; and the design of the testimony was to sustain a theory of the defense, that the complainant, during the affray with the prisoner, fell against a table, and, as the result, lost that portion of his ear which was torn off, by the collision or contact with, the table. The expression of the opinion thus sought was objected to, and the district attorney and court strenuously essayed to prevent its utterance and admission. The court gave full permission to the prisoner, nevertheless, to prove the appearance in detail of the severed part of the external ear and what was left of it upon the head of the complainant, proclaiming the doctrine meanwhile that the jury could judge as well as the doctor whether it was bitten off or torn off. This evidence, notwithstanding, was finally given, and the doctor not only expressed his opinion on that subject, but went still further and said that the portion taken off could not have been bitten off.

The only exception to be withdrawn from this generalization, is that taken to the admission of the complaint and the examination presented to and made before the police magistrate. It is based on the proposition that sufficient foundation was not laid for its reception ; in other words, that it was not clearly proved that the examination was read over to the prisoner. There was, however, quite sufficient to establish the fact prima facie. The prisoner signed it, and in the presence of the police magistrate, who was positive that he either read it to him or that it was read to him by the clerk, such being the settled and uniform practice at his court. The presumption arising from the prisoner’s signature to the examination, coupled with his presence at the court and the practice referred to,, was quite sufficient to authorize the court below to receive it in evidence. The prisoner did not deny that he signed it, or question it in any way, although a witness on his own behalf. It may also be said, that from the mode in which the trial was conducted, it is perfectly apparent that even if the papers were improperly received, they had no influence upon the verdict rendered. The complaint was admitted, as the court stated, not as evidence of facts averred in it, but as a part of the preliminary proceedings, and the examination was admitted to explain it and the answer of the prisoner to the questions put to him. The only pertinent question put to him was: “ Have you any thing to say, and if so, what, relative to the charge here preferred against you?” And the answer was: I have nothing to say at present.”

Although the trial was marked by peculiar features in the receipt of the evidence, in the manner in which the rulings were made, and in the general control and guidance of the prosecution and defense, 'yet the prisoner had all the rights accorded him to which he was entitled, and was fairly and impartially dealt with in the charge of the learned judge presiding. The defense was striking, because it presented the seeming anomaly of a theory of innocence, independently of the prisoner’s denials of the act charged, wholly unsupported by any evidence except that of Dr. White, namely: that the complainant struck against a table in falling, and by contact with it tore away his ear.

A careful examination of this appeal shows, therefore, that there are but two substantial questions to be decided, and they are: First. Was the indictment sufficient to charge the crime of mayhem, under our statute ? Second. Did the act done, viewed with all the attending and surrounding circumstances, constitute that offense ?

The statute under which the prisoner was indicted is as follows: “ Every person who, from premeditated design, evinced by lying in wait for the purpose, or in any other manner, shall (1) cut out or disable the tongue, or (2) put out an eye, or (3) slit the-lip, or slit or destroy tbe nose, or (4) cat off or disable any limb or member of another, on purpose, shall be imprisoned,” etc. It is apparent that the offense contemplated is the commission of any one of the acts named, from premeditated design, and whether that design is evinced by lying in wait for the purpose, or in any other manner, is a matter not of pleading but of proof. The crime against which the statute is directed, is the commission of the act charged from premeditated design, and when, in an indictment, the offense charged is thus pleaded, it is sufficient to designate the statutory crime and advise the alleged offender of the accusation made against him. "Whether the crime has been committed must depend upon the design, to be established by proof, which may be of lying in wait for the purpose, or in any other manner which affords satisfactory evidence of the premeditated design. It was not intended to limit the offense to instances /of lying in wait, but to embrace every one of the acts' mentioned, done from premeditated design, however that design might express itself, whether by lying in wait or in any other manner. It is not necessary, perhaps, to say that the existence of premeditated design might be shown by facts and circumstances which would be equally as conclusive as the lying in wait, and hence the addition of the words in the statute, “or in any other manner.” The legislature must be presumed to know that such an offense could be planned and executed by an infinite variety of ways in the mode of procedure, none of which would necessarily include the lying in wait. A very high order of ingenuity frequently marks the conception and commission of crime, and renders it difficult, if not impossible, some times to discover the offender. It is very apparent, however, that the indictment in this case was sufficient. It charged that the prisoner did feloni-ously, wickedly, and of malice aforethought, make an assault upon the complainant with his teeth, and did feloniously and willfully, from premeditated design and on purpose, bite off, disable and destroy the left ear of the complainant. And that the prisoner did, with force and arms, willfully, feloniously, of his malice aforethought, and on purpose, maim the complainant, against the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity. The whole object of criminal pleading is to advise the accused of the offense with which he stands charged, and where this is done the courts should not vigorously search for technical omissions, or lend an ear or eye to them. The shortest and plainest way of telling the story is the one best adapted, not only to our forms in the administration of criminal justice, but in all the business affairs of life. A concise statement of facts answers for the civil side of the calendar, and is abundantly safe for the prisoner and the people on the criminal side of it. The prisoner was fully apprised of the offense charged against him by the indictment, which was, that he bit off the ear of the complainant from a premeditated design, and on purpose, and thus maimed the latter contrary to the statute in such case made and provided. The forms of pleading adopted in England when pleading was regarded as a science, and consequently the delight of the special pleader, do not now entirely prevail with us, and the earlier precedents must 'succumb to the advance made in the presentation and examination, not only of the affairs of men, but of the crimes they commit. A simple and concise statement of the crime imputed is all that should be required. These views dispose of the first question, and adversely to the plaintiff in error.

The second question is one which -may not be treated with the same ease as the first, and yet it does not seem to present any serious difficulty. The doctrine of mayhem has recently been the subject of judicial exposition. In the case of the People v. Foster (50 N. Y., 598), it was elaborately considered by Justice ANDREWS, in an able and comprehensive opinion. There is, howevei’, nothing in that case bearing upon the question presented here. Whether cutting off or disabling an ear is within the statute, has not been definitely considered in any adjudicated case in this State, and whether it is or not, depends wholly upon the interpretation which may be given to that enactment. It must be so, because at common law it was not mayhem to cut off an ear, because it did not weaken, but. only disfigured the victim. (Foster's Case, supra.) The ear is not specifically named in the statute, and, if embraced therefore within the law referred to, is covered by these words: “ Cut off or disable any limb or member of another, on purpose.”

The words, premeditated design, would seem to apply only to the injuries particularly mentioned, namely, to“ cut out or disable the tongue, or put out an eye, or slit the lip, or slit or destroy the nose,” because they are not employed as to the rest of tbe section upon a strict construction of it. It proceeds thus: “ Or cut off or disable any limb or member of another, on purpose,” etc. This may not be important except as an indication that tbe crime against which tbe statute was arrayed included any limb or member of tbe human body. Tbe suggestion, which at this stage at once presents itself, is this: Is not the external ear a member of the human body ? On that subject, the court said to the jury: “ Perhaps I should say, in conclusion, if the complainant’s ear was a member of his body within the meaning of the statute, that the severance of such part, or so much of it as appears beyond question or dispute to have been severed in some way or manner, in my opinion, disabled that member, within the meaning of the statute; ” and thus apparently left it to them to determine whether it was a member of the body. But it must be assumed here, from the charge of the court and the rulings upon the subject, that the court declared the external ear to be a member of the human body, and its destruction or disablement, in the manner contemplated by law, a crime within the statute referred to.

The functions of the external ear are discussed by Dr. Flint in his very able treatise on the Physiology of Man (vol. 5, p. 196, et seq.). It is also described by Longet, in his Traité de Physiologie (vol. 3, p. 14, et seq.), and from which, even at the expense of being prolix, the following extracts are made: “ The aerial waves which reach the external ear may strike upon the pavilion, or pass directly into the auditory canal. In animals in which the ear has the form of a trumpet more or less flaring, it is easy to explain how this part, receiving a great number of sonorous waves, reflects them and directs them toward the tympanum. In man, the cavity of the concha and the origin of the auditory canal are able, to a certain degree, to serve for this purpose. But all the rest of the curved and irregular surface of the pavilion does not seem adapted to fulfill this end. Nevertheless, Boerhaave made upon this point researches and calculations which tend to prove that the sonorous waves, falling upon all the prominences of the external ear, a/re refleeted to the auditory passage. According to this observer, the different salient lines which form these prominences present a parabolic curve, the form of which corresponds to the interior itself of this canal. Thus it is known that a parabola has the property of reflecting all the rays parallel to its axis, which fall upon the concavity of the curve, so as to direct them to its focus; it follows from this that the sonorous waves which strilce the different prominences of the external ear, must, by their reflection, be conmeyed and collected in the auditory canal.

“ The pavilion of the ear has another office not less important; that is, to serve as a conductor of sonorous vibrations, which, striking perpendicularly to its surface, produce vibrations of its proper substance. These vibrations are propagated progressively to the auditory canal, to the membrane of the tympanum, and as far as the interior of the ear. Savart has demonstrated this fact by the aid of ingenious experiments; and, further, he has observed that the numerous inequalities of the pavilion would have the effect of always normally presenting a part of their surface in the direction of the sonorous waves, whatever the point of departure of the latter might be.
The experiments of Schneider are fully confirmatory of the researches of Boerhaave and the facts indicated by Savart. Having obliterated the external eminences and depressions of the pavilion of the ear by filling the depressions with wax, Schneider noted in his own person a marked enfeeblement of auditory sensation as regarded all the sonorous waves which did not penetrate directly i/nto the auditory canal. This result was still more marked when the concavities of the internal surface of the concha were also filled with wax. If the concha of the two ears be thus covered with wax, it becomes impossible to ascertain from which side sounds come, unless one of the auditory canals be precisely in the direction of the sonorous body.
To sum up, the pavilion of the ear reinforces sounds, either in collecting the sonorous waves which impinge upon its surface, or in transmitting the vibrations themselves to the walls of the auditory canal. It is to be presumed that having an equal aptitude for the reinforcement of all sounds, this cartilaginous body never vibrates in unison with any of them, and that it has no proper sound; an advantage which very probably results from the different irregularities of its surface.”

It thus appears, by reference to standard authors, that the external ear performs the important function of collecting, arresting and conveying the waves of sound to the auditory canal, and that without it they would not be thus carried, unless m the direct line of the auditory canal, which commences at the orifice of the ear. And thus, also, it appears, that the proposition maintained as a part of the common law, that the cutting off of an ear was not a maim, but a disfigurement only (1 Hawk. PI. C., 107), is an absurdity founded upon misapprehension.

The external ear of all animals is important — indeed, it may be said indispensable — for the security and enjoyment of life. In many animals of the lower order, it is extremely flexible, and by its muscular construction easily moved in various directions, so that it may be turned at once to the source from whence the sound proceeds. In man the head is turned to the direction of sound, and his intelligence puts him upon inquiry as to its cause, origin, or source. The rabbit and the deer move away at once, when a sound is heard, unless familiarized with it by experience. If a man’s left ear be so disabled that the waves of sound will not reach the auditory canal unless on a direct line with it, it is apparent that he may be exposed on that side to a multitude of dangers. Such an injury, as demonstrated by these medical writers, as we have seen, is therefore a deprivation of the ability to hear sounds which would otherwise be perceptible, and would consequently enable an adversary to approach unobserved, and thus make the person injured less able, in fighting, either to defend himself, or annoy his adversary. It also exposes him to many perils from which his external ear, acting with the powers given by the Great Ruler of the Universe, through the pavilion and otherwise, would protect him. The very instant we arrive at the conclusion, therefore, that the sense of hearing is affected hy the cutting off of the external ear or pavilion, or the greater part of it, we must admit the great importance of that appendage or appurtenance as a member of the body, the violent disablement of which should be severely punished.

It is true that on the trial there was no proof that the external ear was a member of the body. The learned judge presiding referred to it as stated, and it necessarily follows, in the absence of proof, that unless the court could take judicial notice of the fact, the conviction of the prisoner was erroneous. There can be little doubt that the court was entirely justified, by the uses and purposes for which it was designed, to take such notice. There is just as much propriety in that, as in the assumption that a leg or an arm is a member of the body. Courts often take judicial notice of facts much less important and less palpable, such as the local divisions of a county and the relative positions of such divisions; the ordinary duration of human life, as a scientific fact; the meaning of English words and terms of art; and other facts of universal experience and acceptance. (Lanahan v. The People, 3 Hun, 167, 168, per Davis, P. J.)

The word, member, is defined by Worcester: “A limb; a part appurtenant to the body; a subordinate part of the main body.” “ The tongue is a little member that boasteth great things.” “ The body consists of many members.” “ A limb is a member, but members are not always limbs.” In Johnson and Walker, member is defined: “ Limb; a part appurtenant to the body.” If we consider the external ear alone in reference to its functions, as we would an arm or a leg, then it is apparent that the courts, within their sphere on that subject, can take judicial notice that it is a member of the body; but if it be considered in connection with the given definition, it is not to be well doubted that it is a part appurtenant to the body, a • member, and within the statute relating to maims. It' could not be said of a man whose external ear was cut off, that he was. perfect in physique, but it would be entirely proper to say that he had lost one of his members, an integral part of his body, and one not given for ornament, but for use, and an important use; for aid in assault and defense, and for protection against an infinite variety of earthly vicissitudes. Eor these reasons it is considered that the external ear is a member of the body, and that to bite off the greater part of it, is to disable it and to commit an offense within the statute of maims.

It only remains to say, that the doctrine as to the premeditation required, was correctly stated. It is a familiar rule, that if, at the instant of striking" a blow, the aggressor intended to kill, and did kill, it was murder in the first degree, under the former statutes of this State relating to homicides, and for a crime like this, no higher or greater evidence can be required. Whatever would be premeditation on a trial for murder, would be sufficient premeditation in mayhem. If, therefore, upon the instant of biting, the prisoner intended to take the external ear off with his teeth, and did it, he was guilty of sufficient malice aforethought— sufficient premeditation — to justify the conviction, the other facts leading properly to such a result. It must rarely happen that any person would be deliberately approached by another for the purpose of biting off his external ear, and such a result would, in the great majority of cases, when done, be signalized by a quarrel of some kind. The jury were doubtless much influenced by the proof that the complainant said, “don’t bite me ” during the scuffle; the prisoner being thus advised of what he was doing, and in time to desist from his purpose. The deed itself is an approach to cannibalism, and atrocious. It would, were it not for this conviction, be incredible that it could be -done in this age, in any place where civilization has awakened men to the finer relations of life, although it cannot well be questioned that in moments of passion men frequently act as if there were no refinement, no religion, and become abnormal, brutal and savage. The prisoner proved a remarkably good character, and was recommended to mercy by the jury. His present position comes therefore from the improper use of liquor and card playing, to which he sacrificed his good name and character. Such a sacrifice must be looked upon with regret, but the law must be administered.

Davis, P. J., and DaNiels, J., concurred.

Judgment affirmed.


author: DANIELS, J.: Beady, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondents, v. WILLIAM M. TWEED, Impleaded, etc., Appellant.

      Order of arrest — Presumption a/rising from failw'e to deny foots on which order was granted — Liability of each of several conspirators — remedy against — Bail — .amount of — chap. 49, Laws of 1875 — Pa/rticula/r r&medy — no vested right to — Arrest in second action fot' same cause— when proper— Costs as condition of discontinuance— when must be paid— Orden’ of arrest and attachment may be both allowed.

    Where a party applies for the discharge of an order of arrest or the reduction of his bail, and does not deny the facts on which the order was granted, a presumption is raised that such facts are true.
    It appeared that the defendant and other persons had confederated together to fraudulently obtain and divide among themselves a large amount of public moneys. Held, that the law imposed upon the defendant-, individually, a liability coextensive with the money wrongfully abstracted, although a portion of it may have been received by other persons acting with him.
    In such case, each wrong-doer may be proceeded against by seizure of his property and arrest of his person, until actual satisfaction of the demand is secured, or a joint action may be brought against all.
    The purpose of the law is to afford the defendant his liberty on giving bail which will be sufficient to render it reasonably certain that he can be found to be taken in execution, and if he cannot be, that his sureties may be compelled to pay the amount of the execution. The latter'end can be accomplished only by making the amount of the bail equal to the'amount, for which judgment may finally be recovered.
    Money fraudulently taken from the county of New York, the claim for the recovery of which has been by legislative enactment vested in the city of New York, may be recovered in an action brought by The People pursuant to chapter 49 of the Law of 1875.
    There is no such thing as a vested right to a particular remedy, provided that adequate means of redress are otherwise supplied.
    A person may be arrested in a second action for the same,» cause by the same plaintiff, if the plaintiff has been non prossed in the former action, or such action has been discontinued and the second arrest is not vexatious.
    When an action is discontinued, with costs, the act of the defendant in adjusting the costs must precede their payment, and until that is done the plaintiffs will not be in default for their non-payment.
    Both an order of arrest and an attachment may be simultaneously pursued so far as to secure a probable satisfaction of the plaintiff’s demand, but the arrest of the defendant and seizure of his property to the full amount of plaintiffs’ claim will not both be allowed.

      Appeal from an order denying a motion made to discharge an order of arrest, and refusing to reduce the amount in which the defendant, William M. Tweed, was directed to be held to bail.

      Field (& Deyo, for the appellant.
    A defendant once arrested in a civil action cannot be again arrested for the same cause of action 'except under circumstances which do not arise in this case; and this is the rule, though the first suit may have been discontinued. (1 Tidd’s Prac. [3d Am. ed., 1856], 174.) Tidd cites a number of cases, some of them as sustaining the general rule, and some as showing the exceptions. Among them are the following: Cartwright v. Keel/y (7 Taunt., 192); Archer v. Champney (3 Moore, 607); Williams v. Thacker (4 id., 294); Moiling v. Buckholtz (3 M. & S., 153); Wheelwright v. Joseph (5 id., 93). The same general rule is followed in. this State. ( Wright v. Peterman, 4 Robt., 7C4; People v. Kelley, 1 Abb. [N. S.], 432 ; Matter of Johnson, 7 Robt., 269; Enoch v. Ernst, 21 How., 96; Peck v. Hozier, 14 Johns., 346; Hernandez v. Carndbeli, 4 Duer, 642; S. C., 10 How. Pr., 433.) The first suit in which the defendant was arrested has not been discontinued. W. H. Peckham, in his affidavit says, it “ has recently been or will be discontinued.” The proceedings show that the costs have not been paid,'as provided for in the order, and until they are paid the order is ineffectual. (Pignolet v. Dameau, 2 Hilt., 584; Morrison v. Ide, 4 How., 304; Harden v. Hardick, 2 Hill, 384; James v. Deleva/n, 7 Wend., 511.) It is entirely clear, from the cases cited, that a defendant cannot be arrested in a second suit whilst a prior suit in which he is held to bail is pending, and that if the prior suit had been discontinued, the second would have been held vexatious. The present suit is vexatious, and the prosecution, under all the circumstances, may be characterized as a malicious one. The court will not willingly lend its aid in a suit of that character. An attachment has been issued in this action. An order of arrest and an attachment in the same action should not be allowed. ( Wilkes' Case, 19 How. St. Trials, 1083.) The amendments to the Code, under which the attachment and the order of arrest are obtained in this action (Laws of 1875, chap. 28), are amendments only of two distinct sections of the Code, viz., section 179 of arrests, and sections 227 and 229, of attachments. The only alterations are to extend the cases where arrests may be had to cases of persons obtaining, without right, public moneys, and to extend the cases where attachments may be had to the same class of persons. In all other respects the law remains as it was before. There is nothing to authorize the combination of the two remedies in the cases spoken of, and the law on that subject remains as before. {Scott y. Gra/ne, 1 Conn., 258; Daniels v. Wilcox, 2 Hoot, 346; Trafton v. Gardvner, 39 Me. [4 Heath], 501; IJ. S. Dig., 16, p. 66.) No cause of action exists in favor of the present plaintiffs. The Court of Appeals in their decision in the first ease, sustaining the demurrer, have decided that the people cannot sustain such an action. The act of the legislature does not improve the plaintiffs’ position. The declaratory part must be discarded altogether. Under our system it is the province of the court and not of the legislature to interpret the law. So far as the act is designed to make a new rule it is inoperative, because it is not competent for the legislature to take from the county of New York its rights of action and vest them in the State. Such an act is palpably unconstitutional. But, supposing the action well founded in all respects, such an amount of bail is excessive and contrary to the Constitution of the State. (Const. U. S., art. 8 of the amendment; Const.N. Y., § 5, art. 1.) The bail should he reduced. '{Louis v. Mitchell, 2 Hill, 379; Wilkes' Case, 19 How. St. Trials, 989.)

      Chas. O’Connor and Wheeler LI. Peckham, for the respondent.
    The supposed rule that no one shall be a second time arrested by the same plaintiff for the same cause of action, if it could be proven, would have no application. This is not the same cause of action as that in the Ingersoll suit. In that case the Court of Appeals held absolutely and finally that the plaintiff had no cause of action. That was not a case of premature suit, or insufficient proof. The decision was that by the existing law no cause of action existed. The present action is brought under a law transferring causes of action which.existed in favor of the mayor, etc., of New York, to the people, or rather providing that rights of action belonging to the mayoi', etc., may be sued for by the people. It is in analogy to, and in extension of the right of the attorney-general in England to sue for misappropriation of public funds by public officers of municipal corporations. (A ttorney- General v. Dublin, 1 Bligh [N. S.].) It therefore cannot be affected by any action the people may have seen fit to take before the passage of that law. (Ba/rnes v. Matón, 15 East, 631.) In the former suit Tweed could have barred the plaintiffs by alleging that the title to sue was in the local corporation. The Ingersoll suit was discontinued prior to the arrest in this case and prior to the commencement of this action. There can be no question at this day that a defendant may be arrested in a second suit after the discontinuance of the first, provided only that the second arrest does not appear to be vexatious. (Pedí v. Dozier, 14 Johns., 346; Brown v. Davis, 1 Chitty, 161 [K. B.]; Bates v. Parry, 2 Wils., 381; Olmius v. Delany, 2 Stra., 1216 [K. B.] ; Turton v. Hayes, 1 id., 439; Harris v. Boberts, O. P. Barnes, 73; Kearney v. King, 1 Ohitty, 273; Archer v. Champney, 3 Moore, 608; 1 B. & B., 289; Musgrame v. Medex, 8 Taunt., 24.) An English rule (H. 2, W. 4 B., 7), provides that “ after non pros, nonsuit, or discontinuance, the defendant shall not be arrested a second time without the order of the judge.” This rule does not exist in this country, but every case is left to be decided upon its own circumstances. (Graham Pr. [2d ed.], 133 et seq.) The Inger-soll case was effectually discontinued without payment of costs. Under the old practice a rule to discontinue on payment o£ costs was a rule of course, entered in the common rule book by the plaintiff’s attorney, without application to the judge. On that rule' the defendant could not enter judgment of non pros. His only remedy, if the costs were not paid, was to proceed in the cause. (James v. Delavan, 7 Wend., 512; Huntington v. Forkson, 7 Hill, 197; Stansbwy v. Dwell, 1 Johns. Gas., 397; Provost v. Jolmson, 12 Wend., 289.) The plaintiff has now tendered the defendant his costs. According to the strictest alleged rule that is sufficient. . (1 Graham Pr. [ed. 1847), 525, and notes, citing McElwai/n v. Fitzgerald, MS., N. Y. Com. Pleas, January term, 1831; Brandt v. Peacock, 1 B. & 0., 649; White v. Smith, 4 Hill, 166; Poster v. Bowen, 1 Code B. [N. S.], 236.) The old order of arrest was not outstanding. It fell with the order of discontinuance. (Belcher v. Gansell, 4 Burr., 2503 ; Hope v. Acker, 7 Abb. Pr., 308; Grockett v. Smith, 14 id., 62; Orpha/n v. McCartee, Hopk., 372.) Arrest and attachment may coexist. (Rook., R. I. and St. L. R. R. Go. v. Boody, 56 N. Y., 456.) Especially is that so where, as in this case, nothing has been levied on under the attachment. The sheriff has made no return, and the lis pendens is a mere notice filed by the plaintiffs and not by the sheriff. (Fitzgerald v. Blake, 42 Barb., 513; Rodgers v. Bonner, 55 Barb., 9; Petition of Edelsten, in this court, MS. of WestbeooK, J.) The constitutional provision as to bail applies only to criminal cases. The bail is not excessive, but on the contrary is really too small. There is no affidavit that defendant is unable to give the bail demanded. It is not denied that defendant intends to flee the jurisdiction. The inevitable inference is that he wants the bail reduced in order to give and forfeit it, and flee the jurisdiction. He would thus escape the consequence of a judgment for, say $7,000,000, by the forfeiture of such small sum as he might persuade the court to demand of him. The ordinary rule at common law was, that the defendant was held to bail of course, and without any judge's order, in such sum as the plaintiff should indorse on the writ. This practice led to abuses, and by 12 George I, chapter 9, the plaintiff was required to make and file an affidavit of debt, and was required to indorse the sum sworn to on the writ, and for that amount the defendant was always held to bail. (.Borden v. Horsley, 2 Wils., 69; S. O., Barnes, 159; WhisJcand v. Wilder, 1 Burr., 330; 1 Tidd’s Pr., 149 et seq.)

   DANIELS, J.:

The complaint which was verified by a proper affidavit, was, with the affidavits of several other persons, made the foundation of the order to hold the defendant, William M. Tweed, to bail. By them it was shown, to a reasonable degree of certainty, that under the pretense of conformity to an act passed on the 26th day of April, 1870, by which the preceding county liabilities were required to be audited by the mayor and comptroller of the city of New York and the president of the board of supervisors of the county of New York, fictitious and spurious claims were certified and paid as properly audited, to the amount of $6,198,957.85. The defendant, William M. Tweed, was at the time the president of the board of supervisors of the county, and it is alleged, and the allegation is sustained by the verification of the complaint and the other affidavits used with it on the application for the order of arrest, that be fraudulently and falsely, combining and confederating with other persons, procured such fictitious and spurious claims to be made out, presented for payment, certified as audited or allowed, and caused them to he afterward paid out of the lawful moneys of the county, and he was shown to have been a principal participant in the funds purloined in that manner. Direct as well as circumstantial evidence was presented in support and confirmation of the charges made, and together it very satisfactorily established the complicity of the defendant Tweed in the fraudulent conspiracy to defraud the county, and in the proceedings by means of which the fraud was rendered successful. It cannot ordinarily he expected that the very clearest evidence can always be produced showing the existence of such a combination and the consummation of its purposes, for it is usually secretly formed and stealthily executed. A prominent feature of the devices resorted to, is concealment and the destruction of all direct evidences of guilt. The consequence is that circumstances must be very much relied upon in support of the main facts to be developed. And in the present instance they are as direct and well authenticated, as they can be expected to be found in cases of this description. A similar action is shown to have been commenced against the defendant in the year 1871, in which an order for his arrest was made on which he was held to bail. And- while he applied, as he has in the present case, to be relieved from it, he is shown not to have denied the truth of the affidavits on which the 'order was made. The same thing is true in this case. For he has made no affidavit denying the facts on which the order was founded. That omission, as long as he has been afforded an opportunity to deny the facts charged against him, renders it probable that he could not truthfully do it, and the effect of it is to increase the force of the circumstances disclosed, as well as the probability that the statements made by two of his accomplices as to what really did take place, are true. The rule upon this subject, even in criminal eases, is, that “ the absence of such evidence, especially when it appears to be in the power of the prisoner to furnish it, creates a strong presumption of his guilt, a strong inference' against him, and is a circumstance greatly corroborative of the truth of the evidence given upon the other side. In a doubtful case it would justify the jury in resolving the doubts against him.” (Gordon v. People, 33 N. Y., 501, 508, 509.) Upon the same subject, Comstooe, who was at the time chief judge of the Court of Appeals, held, that more or less importance might well be attached to the omission of the accused to contradict the evidence, where, if it was not true, contradiction was within his power. And referring to an important fact in the case, he said: “ If he could disprove this circumstance, but made no attempt to do so, the omission most certainly imparted a higher degree of credibility to the statement of the accomplice, and might justly influence the belief of the jury as to the truth of that statement.” (People v. Dyle, 21 N. Y., 578, 580, 581.) The affidavits of the accomplices in this state of the case must be, as they reasonably can be, relied upon (Haskins v. People, 16 N. Y., 344, 352), and as they are confirmed and rendered highly probable by the circumstances established by the other affidavits, the facts alleged in the complaint may well be adopted as the truth. Indeed, no other conclusion could, with any color of propriety, be regarded as supported by them.

It appears, therefore, in the case, that the defendant, with the other persons named in the papers, most of whom were either public officers or persons officially employed, entered into a deliberate purpose, by means of a seeming discharge of public duties and the exercise of public authority, to make out and cause to be presented fictitious accounts and demands against the county of New York, and to procure their allowance and payment, and the distribution of their proceeds between himself and those acting with him. And the design was shown to have been so completely executed, that the defendant Tweed, and the other persons confederated and acting with him, procured and divided among themselves over $6,000,000 of the county money, to which they had not the least right or title whatsoever.

These facts, which were established by the papers produced on the application for the order, rendered the defendant Tweed and those co-operating with him joint wrong-doers, and, as such, liable for the entire loss produced by the acts complained of. That results from the execution of the fraudulent combination, in which he appears to have been the controlling individual. And in that state of the case the law will impose upon him, -individually, a liability co-extensive with the moneys wrongfully abstracted, although they may have been partially received by others acting with him. The rule of law on that subject is, that each person engaged with others in the perpetration of a wrong, may be compelled to respond for the entire consequences of the injury done. A separate action may be maintained against each, and a recovery had for all the damages sustained, and each may be proceeded against by seizure of his property and arrest of his person, until actual satisfaction of the demand has been secured; or a joint action may be main--tained against all, according to the election of the plaintiff. (2 Wait’s Law and Practice, 286; Low v. Mumford, 14 Johns., 426; Guille v. Swan, 19 id., 381; Creed v. Hartmann, 29 N. Y., 591.) And the case of an executed conspiracy forms’ no exception to this rule. (Hutchins v. Hutchins, 7 Hill, 104.) The defendant Tweed was, therefore, liable for the entire amount of money fraudulently obtained through his direction, participation, approval or connivance. It was his duty to guard the public treasury from frauds and peculation ; and if he so far failed to perform it, as the evidence now before the court shows him to have done, as to become a voluntary participant in despoiling it, he has no right to complain of the consequences he may suffer as the natural results of his acts. When public officers willfully disregard their obligations, they certainly deserve the full measure of punishment which the really indulgent laws of the State have provided as a protection against their acts. Instead of ingeniously searching for and devising unsubstantial reasons for their immunity, it will be the purpose of the courts to maintain all the restraints which have been provided against them, as firmly as the circumstances will reasonably permit. One of those is the remedy by way of arrest, in order to secure indemnity for the wrong committed, by holding the defendant personally in custody until judgment can be recovered and execution issued upon it, or procuring bail for the same purpose, and for the payment óf the amount recovered if the defendant cannot be found. The object of the order of arrest is security of either one kind or the other. By law the body is deemed the highest security. But for the purpose of avoiding unnecessary hardship, that is allowed to be discharged on bail, which, in the end, may be required to pay the judgment in the case. For that reason, it cannot be an adequate and full security unless tbe amount fixed by the order approximates the probable recovery in the case. And when it simply does that, the order cannot be liable to the charge of being excessive. The criterion by which it is to be measured, is not the amount of bail which the defendant may be able to give. If it were, the very worst offenders would be entitled to be released on the smallest security. For, ordinarily, their ability in that respect is much below their capacity for crime. The design of the law is to afford the defendant his liberty on bail, when that will be sufficient to render it reasonably certain that he can be found to be taken in execution, and if he cannot be, that his sureties may be compelled to pay the amount of it. The latter is as important an object to be considered as the former. And it can only be attained by making the amount for which bail may be given equal to the amount which, in the end, the sureties may be called upon to pay to satisfy the judgment. A complete indemnity can be procured in no other way. The defendant Tweed was treated with great liberality in this respect; for, upon the papers produced on the motion, a liability in upward of $6,000,000 has been shown, .while the order permits him to be discharged by furnishing bail in the sum of $3,000,000. The cause of complaint is one for which, it is not denied, bail may be lawfully required, and as long as that is the ease, the amount should correspond to that which will probably be the extent of the recovery. If. certainly has not, in this instance, been exceeded, and the defendant consequently can present no well founded claim for its reduction. The amount is unusually large, but the reason of that is the uncommon magnitude of the defendant’s depredations. If the burden imposed cannot be avoided by him, his incapacity results from his own acts, and not from that of the law, which has been generously administered in his behalf.

The moneys which were taken were, at the time, the property of the county of New York, and, by the consolidation of that municipality with the city, by a recent act of the legislature, the claim for their recovery has been vested in the city of New York (Board of Supervisors v. Tweed, 10 S. C. [3 Hun], 682), and for those reasons the defendant Tweed insists that the people cannot maintain this action, and consequently had no cause for arresting him. It is true that an act of the legislature, which proposes to take the property of one body corporate anid give it to another, would violate the provision of the Constitution declaring that no person shall be deprived of his property without due process of law, and that private .property shall not be taken for public use without compensation. The legislature cannot take the property of one person and give it to another, but still, if it should attempt to do so, and the owner assented to the enactment, no other person could complain of it as a violation of the Constitution. The person injured by the provision is the one from whom the objection should come. If that party declines to make it, there is no principle of law that will allow another, not in privity with him, to make it for him. For a party may renounce or waive even a constitutional provision existing in his favor. (Sedg. on Stat. and Const. Law., 111; Embury v. Conner, 3 Comst., 511, 518; Phyfe v. Eimer, 45 N. Y., 102.) And, when that has been done, another'having no interest in the right surrendered cannot gainsay the validity of the act. The city of New York, the owner of the demand against the defendant Tweed, has been made a defendant in the action, and does not question the right or power of the people to maintain it. Its omission to object is practically an assent; sufficiently so, certainly, to conclude it by any judgment which may be recovered, from again asserting the same claim in its own favor. The familiar doctrine of estoppel will then apply to the case, which will fully protect the defendant against another action for the same demand. And that effect has been positively secured by the statute for such a judgment. (Chap. 49, Laws of 1875, § 2.) .But another forcible reason stands in the way of the success of this objection, and that is, that the act of 1875, under which this action was commenced in the name of the people, was not intended to deprive either the county or the city of New York of any of its property, but z’ather to devise an efficient remedy for its recovery. Its object was to create a remedy for the ultimate benefit of the city and county, which should not be controlled by the local authorities ; not to deprive them of any of their rights or property. That is clearly the tenor and effect of the provisions made by the act. (Chap. 49, Laws of 1875, § 3.) And, in that view of it, there can be no conflict between it and any provision of the Constitution. For that has left the control and modification of legal remedies within the power of the legislature, as long as material, personal or proprietary rights are neither prejudiced, nor extinguished by the alterations which may be made. The rule is, that there is no such thing as a vested right to a particular remedy, provided that adequate means of redress are otherwise supplied. (Sedg. on Stat. and Const. Law, 692, and cases cited ; Hauptman v. Catlin, 20 N. Y., 247, 250.) The defendant certainly has no reason to complain, for, as he can be made to pay but once, it can make no difference to him whether the suit against him is in the name of the city or of the people of the State. In either case the means of redress are precisely the same. The difference is only one of a nominal character.

As the defendant Tweed was arrested on an order made in another action prosecuted against him by the people, it is claimed that his arrest in this case was irregular and improper. But no arbitrary rule of that nature has been established by the authorities. It is only where the -second arrest appears to be vexatious, oppressive, or in bad faith, that the defendant can insist upon his discharge. That very clearly appears to be the law from the cases cited in support of the application made by him to be relieved from the order of arrest in this action. In Archer v. Champney (3 Moore, 607), it was stated that, “ the general rule is that a defendant cannot be rearrested after a discontinuance, nonsuit or,non-pros., unless the former action was founded on a mistake, which mistake would tend to show that the second arrest was not vexatious. But it is not only necessary for the plaintiff to show that he discontinued or nonprossed the former action, on the ground of misconception or mistake, but that the second arrest was not vexatious, and if he does not do this, the court will infer that it was so.” The same decision was made in Bates v. Barry (2 Wilson, 381); Brown v. Davis (1 Chitty, 161); Olmius v. Delany (2 Strange, 1216); Turton v. Hayes (1 id., 439); Harris v. Roberts (C. P. Barnes, 73); Musgrave v. Medex (8 Taunt, 24). And in Peck v. Hozier (14 Johns., 346), it was declared that “the maxim that no man shall be twice arrested for the same cause, is not universally true, for where the plaintiff is nonprossed for want of declaring, or discontinues his suit, on payment' of costs, he may arrest the defendant de novo.”

The preceding action was prosecuted through all the courts, and it was finally held in the Court of Appeals that it could not be maintained in the name of the people. That was the reason why the former arrest was rendered ineffectual. Then the act was passed enabling the people to maintain the action, and under its authority this suit has been commenced. These facts clearly sustain the conclusion that the arrest in this case has not been vexatious. It was the defendant’s persistent resistance that defeated the preceding action, and the clear injustice of allowing public offenders to defeat all measures taken for the purpose of securing indemnity for the injuries caused by their wrongs, prompted the enactment which has rendered this suit practicable. It is entirely clear that the present arrest was made in good faith, and that the failure of that previously made was sufficiently excused to render the order in this case a proper one.

An order was entered in open court on the 20th of March, 1815, discontinuing the preceding suit, with costs, and notice of it was served on the attorney for the defendant Tweed on the sixth of April following. This however is objected to as ineffectual, because the costs of that suit were not paid. But in answer to that it has been shown that they have never been adjusted, and there is evidence in the case that the adjustment has been .designedly omitted by the defendant, in order to enable him to urge this objection. Payment of the costs has been offered in case they should be adjusted, so that the amount to be paid could be known. The act of the defendant’s attorney in procuring an adjustment, must necessarily precede their payment, and that has not been performed; until that has been done, the plaintiff cannot be in default for not paying such costs, and the objection should not be allowed to prevail. For all purposes the other suit is now out of court, unless the plaintiff neglects to pay the costs when they are properly adjusted, and it cannot be charged with that neglect until after the amount to be paid shall be legally ascertained. (White v. Smith, 4 Hill, 166.) In James v. Delavan (7 Wend., 512), the costs were taxed, and it was only because the plaintiff had refused payment when they were afterward demanded, that the defendant’s subsequent proceedings in the case were approved; and the decision in Harden v. Hardick, (2 Hill, 384), clearly assumes the discontinuance without payment to be good, until default shall be made by the plaintiff, which cannot be the case before the costs have been properly adjusted. As the case now stands, the plaintiff can do nothing more in the way of completing the discontinuance of the other suit, until the defendant has procured an adjustment of his costs, and he cannot maintain it as a pending action as long as he omits to cause that to be done. If the plaintiff had waited until the defendant had secured an adjustment of his costs before the arrest in this case had been made, it probably, would never have been made at all. Such a rule of practice would put it out of the power of a plaintiff even to maintain a second action for the recovery of the s.ame demand. It is not sanctioned by the authorities. (Olmius v. Delany, 2 Strange, 1216.) The remaining ground on which it has been insisted that the order of arrest should be dischai’ged, is the fact that an attachment against the defendant’s property has also been issued in the case. It was not shown that his property had been seized under it, but, on the part of the plaintiff, affidavits were read, rendering it highly probable that the attachment had not been levied on any property owned by him. From these affidavits it was entirely clear that he had in no way been injured or embarrassed by the attachment. He has not been proceeded against, both by the attachment and the order of arrest, and the mere fact that the attachment was issued, is not sufficient to render the proceedings under the order alone, invalid. The case of The Rockford, Rock Island and St. Louis R. R. Co. v. Boody, as it was decided at the Special Term, does not proceed ' so far as to hold that the defendant cannot be arrested because an unserved attachment has also been issued in the case. What was there decided was, that the plaintiff should be required to elect on which the defendant should be proceeded against, and even that seems to have been regarded as too much of a restriction when the case was considered by the Court of Appeals. For, by the opinion there delivered, it was held to be discretionary with the court to allow the plaintiff the benefit of different provisional remedies, to the extent rendered necessary for the complete security of his cause of action. And that seems to have met with the concurrence of all the members of the court. Upon this subject Judge JoHNSON said, that “ there are numerous cases in which an arrest may be made, and an attachment cannot be granted, and others in which an attachment may issue, and an arrest is not allowed. Yet this does not lead necessarily to the conclusion that the two remedies cannot both be availed of in the same case. On the contrary, the very fact that there are cases which, according to the terms of the Oode, fall alike under the description of cases in which an arrest and attachment are respectively allowed, seems stroDgly to indicate, that in those cases there is at least no absolute incongruity in both modes of proceeding in the same action, and that if a party can be confined to one or the other, it can only be in virtue of a discretion in the court to prevent what may be, or may result in, oppression of the party against whom both forms of proceeding are asked.” “ It may be that the Supreme Court has a discretion to limit a party to one or the other, when either is ample or sufficient in its judgment.” (Rockford, Rock Island and St. Louis R. R. Co. v. Boody, 56 N. Y., 456, 458, 459, 460.) This conclusion of the court appears to sustain the view that either or both the remedies, by arrest and attachment, may be simultaneously pursued, so far as to secure a probable satisfaction of the plaintiff’s demand, in case of a recovery of it by a judgment. It of course would not permit both an arrest of the defendant’s'person, and also a seizure of his property for the full amount of the plaintiff’s claim, by each mode of proceeding, for that would be to allow a double indemnity, and would prove unreasonably harsh and oppressive. But to obtain what may be equivalent to no more than a complete indemnity, the creditor, under this authority, may proceed by both an arrest of the defendant’s person and the attachment of his property. And it seems to have been the intention of the aniendments made to the Oode in the present year, to sanction that course of proceeding in cases of this particular description, for they have expressly conferred the right to seize the defendant’s property and arrest his person, in actions brought for the misappropriation of public property and money. (Laws of 1875, chap. 28, § 1; subd. 6, §§ 2, 3.)

The former actions, brought by the city and county, have also been referred to as standing in the way of this suit. But under the act of 1875 that objection cannot be sustained, for it has provided that an action may be maintained in the name of the people, even though another action for the same cause may have been commenced by the local authorities; and in order to prevent the defendant being-harassed at the same time by two 'suits for the same cause, it has been further provided, that the proceedings in the action by the local authorities may be stayed on motion of any party to it. (Chap. 49, Laws of 1875, §§ 1, 2.)

This disposes of all the objections taken on behalf of the defendant to the order of arrest in the present case, and as neither of them can be sustained, the order appealed from should be affirmed, with ten dollars costs, besides disbursements.

Beady, J.:

The amount in which the defendant was held to bail seems to be and is large, but it does not follow that it is excessive. Whether it is or not depends upon the sum claimed, and it appeared to be less than half that sum. Whether the defendant is guilty of the frauds charged against him or not, we are not advised by any thing he has said on the subject; and with a demand of $6,000,000 and upward 'prima faoie established by the proofs and his silence, it would be an extraordinary exercise of power to reduce the amount of the bail ordered. The object of requiring bail is correctly stated by Justice DaNiels ; and if there be no precedent, as it is claimed, for the amount which the defendant is required to give, it may be answered that there is no parallel for the sum alleged to have been fraudulently abstracted. Every case makes its own details. The claim, therefore, determines the amount of bail to be exacted. The principles of law are flexible, and bend to meet each emergency to secure the administration of justice. The general rule in cases like this, is to require a defendant to be held to bail in a sum rather in excess of the amount than below it, in order to cover not only the demand but the expenses of prosecuting it to judgment. The courts have anticipated the hardship of confinement in cases oí fraudulent claims, where, as is frequently the case, the fraudulent debtor 'is unable tó procure the necessary sureties.

The defendant is not the only person who has been restrained of his liberty for a similar reason, and hence the rule that in such cases the cause may, on a defendant’s application, and on two days’ notice, be advanced upon the calender and speedily tried. The defendant in this case is entitled to the benefit of this rule, and, upon serving his answer, can demand and will be entitled to an early trial. If it be declared that he is not liable for any sum, the whole case being- presented and considered, he must be relieved from his imprisonment by virtue of the order of arrest herein; or, if the judgment recovered be less than the sum of the bail demanded from him, he can avail himself of the circumstance in such manner as he may be advised. The duration of his confinement, by virtue of this action, depends, therefore, much upon his own proceedings. The order should be affirmed.

Order affirmed, with ten dollars costs, besides disbursements.