author: Paine, J.

text:
    Lippincott and others v. Ashfield.
    A third person, representing that he had in his hand9 sufficient property of a debtor which he intended to sell, in consideration that the creditor would extend the time of payment promised-by parol to the latter that he would sell the property, aud pay the creditor, and that it should séll for enough to pay the debt.

      Held, 1. That the promise was not one to pay the debt of another, and not within the statute of frauds.
    2. That it was made upon a sufficient consideration.
    (Before Oakley, Oh. J., and Doer and Paine, J. J.)
    April 16 -,
    May 24, 1851.
    Demurrer to the complaint. The complaint sets forth, in substance, that the plaintiffs, doing business in this city, under the firm of Lippincott & Raynolds, about the 13th of May, 1818, sold to E. B. Clussman & Co., merchandise amounting to $450.98, for which they took Clussman & Co.’s note payable in four months. The plaintiffs are still the holders and owners of that note; no part of it has been paid; and E. B. Clussman & Co. are still indebted to the plaintiffs thereon for the whole amount, with interest. About the 24th of January, 1849, the defendant, Ashfield, represented to the plaintiffs that he had, under his control, certain property, which was worth more than the amount of the plaintiff’s claim, and which belonged to E. B. Clussman & Co.; that he intended to sell it, and apply the proceeds to the payment of the plaintiff’s claim. At the same time, the defendant, in consideration that plaintiffs should forbear and give time of payment to Clussman & Co., on the note, for twelve months, promised and agreed with the plaintiffs, by parol, to sell the property, and pay 'the plaintiffs the proceeds within twelve months, and promised ,that the property should sell for enough to pay their claim. The plaintiffs fore-bore, and gave time for twelve months, and the defendant has not performed the agreement.
    The defendant demurred, insisting that the agreement is a promise to answer for the debt of other persons, and is not in writing, expressing the consideration, and is void by the statute ■of frauds.
    The cause was argued before Campbell, J., in February, 1851, who overruled the demurrer, with leave to the defendant to answer in ten days, on payment of costs. From this judgment the defendant appealed to the general term.

      J. J. Lotting, for the appellant.
    1. The promise was clearly to answer for the debt of'third persons. In determining this point, we have only to see whether the promise remains collateral to the liability of other persons to the same party to whom the promise is made.
    ' 1. It is collateral, because, the consideration was not such as to shift the actual indebtedness to the new promissor, so that as between him and the original debtor, he was bound to pay the debt as his own. (Kingsley v. Balcombe, 4 Barb. 138.)
    2. It is collateral so long as the liability of the original debtor remains, unless according to the dictum of Ch. J. Savage, in Farley v. Cleveland, it be founded upon a new and original consideration of benefit to the defendant or harm to the plaintiffs, moving to the party making the promise either from the plaintiffs or the original debtors. (Simpson v. Patten, 4 John. 222 ; Jackson v. Rayner, 12 Ibid. 291; Smith’s Merc. Law, 538, 543 ; Goodman v. Chase, 1 B. & A. 297; Edwards v. Kelley, 6 M. & S. 204.)
    ' In the present case, the defendant derived and could derive no benefit whatever from the property which it is said he had under his control. And the plaintiffs neither relinquished any right, non suffered any harm. Their forbearance to sue E. B. Clussman & Co., is not such a consideration as between them and the defendant, as to make the promise an,original one. (Smith v. Ives, 15 Wend. 182; Fish v. Wilkinson, 1 Wils. 94 ; King v. Wilson, 2 Strange, 873.)
    If there was any benefit or advantage here, it was wholly to the persons or property of E. B. Clussman & Co., and that is not sufficient to take the case out of the statute. (Nelson v. Boynton, 3 Metc. 396.) The defendant, at the utmost, can only be regarded as a trustee or assignee of the property of Cluss-' man & Co., and he cannot be made personally liable. (12 John. 291.)
    II. This case does not come within the principle on which that of Farley v. Cleveland, (4 Cow. 435,) was held not to be within the statute of frauds. In that case, as well as in a number of others in this and other' states, the promise was made at the same time with, and in consideration of, the sale or transfer of the property or funds; the promissor thereby becoming himself the debtor of the original debtor, and undertaking to pay his own debt to the creditor instead of to the original debtor. (Barker v. Bucklin, 2 Denio, 45; Gold & Sill v. Phillips, 10 John. 412.) It is essential to the validity of a parol agreement of this kind, and to save it from the operation of the statute, that it should be made by and between the debtor himself and a third person, whereby the latter promises, upon a sufficient consideration, to pay the debt owing by the former to his creditor. (Per Jewett, J., in Barker v. Bucklin, 2 Denio, 58; Eastwood v. Kenyon, 11 Ad. & E. 438; Smith’s Merc. Law, 541.) This is not a case of funds or property placed by a debtor in the hands of a third person with a direction to pay it to his creditor, where the creditor might have a good cause of action against such third person for moneys received to his use; as in the cases of Wyman v. Smith, 2 Sand. S. C. R. 331, and Hilton v. Dinsmore, 8 Shepley’s R. 410. To sustain this action on this ground, the present complaint requires an allegation that Clussman & Co. placed certain property in the defendant’s hands with directions to sell it, and apply it to the payment of the plaintiff’s claim; which is not pretended. Finally, this case is in no respect distinguishable from those of Simpson v. Potter, 4 John. 422; Jackson v. Rayner, 12 Ibid. 291; and Watson v. Randall, 20 Wend.; all of which have .been repeatedly approved in later cases.

      J. W Gilbert, for the plaintiffs.
    I.' An agreement to forbear, for a specified period, constitutes a sufficient consideration. (Chitty on Cont. 35; Pitm. on Prin. & Sur. 58.) Smith v. Ives, 15 Wend. 182, and Watson v. Randall, 20 Ibid. 201, are put on tbe ground that the agreement to forbear was without limitation as to time.
    II. The agreement to forbear necessarily worked a postpone* ment of the right of the plaintiffs to reach the property of E. B. Clussman & Co. in the defendant’s hands, and this was a good consideration for the defendant’s promise.
    III. The agreement is not within the statute of frauds: (2 B. S. 135, § 2.) It is not an agreement to answer for the debt, &c., of Clussman & Co., but an independent contract to convert property received from them, and pay over the proceeds to the plaintiffs. (Barker v. Bucklin, 2 Denio, 45; Wyman v. Smith, 2 Sand. S. C. R. 331.)
    The" subsisting liability of Clussman & Co. is no objection to a recovery, as the agreement of the defendant was máde upon a new and original consideration. (Farley v. Cleveland, 4 Cow. 439; S. C. in Err. 9 Cow. 639; Ellwood v. Monk, 5 Wend. 235; Mercein v. Mack, 10 Ibid. 461; Bogert v. Kneeland, 10 Ibid. 229; S. C. in Err. 13 Ibid. 115; Russell v. Babcock, 14 Maine, 140; Andrews v. Smith, 2 Cr. M. & Ros. 627; Dixon v. Hatfield, 2 Bing. 439 ; Parkins v. Moravia, 1 C. & P. 376; Walker v. Rostron, 9 M. & W. 411.)
    The true test to apply, is to inquire whether the agreement of the defendant is merely that of suretyship for Clussman & Co. (Johnson v. Gilbert, 4 Hill, 178.) It clearly is not; because, 1. The defendant-did not promise to pay the debt. 2. He could not be sued jointly with Clussman & Co. 3. His agreement was merely that he would perform a legal duty imposed on him by executing a trust voluntarily assumed. ■ 4. E. B. Clussman & Co. are not liable to the plaintiffs for the performance of .the defendant’s agreement.
   By the Court.

Paine, J.

-The question presented in this case arises under the statute of frauds. E. B. Clussman & Co. were indebted to the plaintiffs oh a promissory note, and the defendant, haying property of Clussman & Co. in his hands, agreed, that if the plaintiffs would give them a year’s time to pay, he would apply the property to pay the debt, and agreed further that the property should sell for enough to pay it. The complaint is upon this promise, and the defendant demurs to- it as being without consideration and within the statute of frauds.

The promise is not, however, as defendant’s counsel insists, to pay the debt of another. There are two promises: one toapply property in defendant’s hands to pay the debt; and the other, that the property shall sell for enough to pay it.

Neither of these promises is a promise to pay the debt of another. The promise by a third person to apply the debtor’s own property to pay his debt, is not a promise by the third person to pay it himself.. The guarantee added to this promise, that the property shall sell for enough to pay it, is not a prom-.-, ise to pay it. Neither are both promises taken together a promise to pay the debt, although their effect may be to render the promissor liable for so much of it as the property should be insufficient to pay. We do not think the statute is to be extended, by a forced construction, to embrace a case which is clearly not within its letter or meaning. The statute, no doubt, means the ordinary promise to pay another’s debt; that is, a promise which simply binds the promissor himself to pay the debt with his own means.

The demurrer does not appear to raise the objection of a want of consideration for the promise, except as subordinate to the general defence, that the case is within the statute of frauds. If it did, however, it would be a sufficient reply to it, that the forbearance was, a sufficient consideration, .even if it was not beneficial to the defendant. It was harmful to the plaintiff, and that is sufficient.

But the consideration was beneficial or valuable to the defendant. He had the debtor’s property in his hands, and we must presume, from the character of the promise, that the disposition and application which he agreed to make of it, were with the debtor’s assent. Clearly, then, the property - in his hands was a consideration of value. Suppose the promise had been directly to the debtor, could there be a question that the.consideration. was not sufficient, or the promise not binding. And if the promise is made,- with the debtor’s assent, directly to the plaintiff; who is to be alone benefited by its performance, is it less valid? If it had been made to the debtor, the plaintiff could have sued upon it, as a promise made for his benefit. And can there be any reason, then, why he should not sue upon it, when made directly to himself ?

The j udgment of the special term, overruling the demurrer, is affirmed with costs.


source: Caselaw Access Project

author: Mason, J.

license: Public Domain

text:
    The Mayor, Aldermen, and Commonalty of the City of New York v. Price, Crooke, and Candee.
    In a suit against three obligors on a joint and several bond, one of whom is the principal and the others sureties, each of the defendants is, under the code of procedure, a competent witness for each and all of his co-defendants.
    In such a suit, although the complaint describe the bond as'joint, without stating it to he also several, on its appearing in the suit that the instrument is several as well as joint, the plaintiff may enter judgment against any one of the defend- ■ ants when if fhe suit were against him alone, the plaintiff would be entitled to judgment.
    (Before Sandford, Mason, and Campbell, J. J.)
    May 5,6;
    June 14, 1851.
    This was a suit on a bond executed by Price as principal and by the two other defendants as his sureties. The complaint described it as a joint bond, without any allegation that it was also several. The defendants all answered, setting up various grounds of defence, which are not important here. The cause came on to be tried, and the bond was read in evjdenee, when it appeared to be a joint and several bond.
    After the plaintiffs rested, the defendant Price called Candee, one of the other defendants, as a witness. The plaintiffs objected to him as incompetent, and he was excluded. Price was then offered as a witness in behalf of his sureties. The same objection and decision were made. A verdict and judgment having been entered for the plaintiffs, the defendants appealed to the general term.

      H. H. Burbck, for the defendants.

      H. H. Anderson and H. E. Davies, for the plaintiffs.
   By the Court.

Mason, J.

The defendants’ counsel on the trial, called as a witness, on the part of the defendant Price, Lyman Candee, one of his co-defendants. The plantiffs’ counsel objected to his being so examined, on the ground of his being a party defendant to the suit, and the court sustained the objection, to which decision the defendants’ counsel excepted. The defendants’ counsel then offered the defendant Price as a witness for his co-defendants, Crooke and Candee. The plaintiffs’ counsel objected to his competency on the same ground, to wit, that he was a party to the suit, and the judge refused to permit him to be sworn on behalf of his co-defendants, and the defendants’ counsel excepted.

The 897th section of the code authorizes a party to be examined on behalf of his co-plaintiff or co-defendant, but the examination thus taken it is provided shall not be used on behalf of the party examined. Under this section, we have held that, in an action against several defendants on a joint contract, one defendant cannot be examined on behalf of, one of his co-defendants, except to prove some defence, as infancy, or a discharge personal to such co-defendant, because, as the judgment must be against all or none, the evidence must necessarily enure to the benefit of the witness.

In the present case, the complaint sets up a joint obligation by the three defendants, executed by Price as principal, and the other defendants as his sureties; but the obligation itself, when produced in evidence by the plaintiff, appeared to be several as well as joint. The question then arises, whether a separate judgment can be rendered in this action against Price or against Candee. Under the old system this could not have been done. The general rule was, that, by uniting the several obligors or contractors on a joint and several obligation in one action, the plaintiff elected to consider it as a joint obligation, and that he must abide by that election,/ He must recover against all or none. This was so held in the recent case of Miller v. McCagg, (4 Hill, 35,) which was brought on a joint and several note, in which one of the makers signed as surety for the other. One of the defendants was offered as a witness for his co-defendants, under the provision of the act, (2 R. S. 447, § 15, 3d ed.,) by which, where different parties to a bill or note were sued jointly,' one of the defendants might examine in his behalf any co-defendant in all cases where he would have been entitled to- the' testimony had the suit been brought in the form theretofore used, that is, against makers and indorsers separately. The court held that different parties “meant makers and indorsers,'- and that two or more makers or joint- indorsers made but one party.” It had previously been held in Plainer v. Johnson, (3 Hill, 476,) that’ in a suit against several makers of a joint and several note, the plaintiff had no right to-sever the action and take judgment against one of the defendants.

But the 136th section of the code, we think, authorizes a judgment in this-action against either of these defendants. It provides that, if all the defendants ito • an action have been served with -the summons, judgment may be taken against any or either of them severally, where the plaintiff would be entitled-to judgment against such defendant or defendants, if the action had been against them or any of them- alone. Now, although the plaintiff had complained against the defendants - solely as joint obligors, yet, on production of the bond in- evidence, it was apparent that the plaintiffs could have recovered against any one of them in a separate action. We are of opinion, therefore, that the learned judge erred- in excluding the defend-, ants from being examined as witnesses for each other. -'(After' overruling several other exceptions taken by the defendants at the trial, the judge thus concludes.) We are of .opinion that none of the exceptions are well taken, except-those which related to the exclusion of the defendants Price and Oandee as witnesses for each other, and on that ground alone the judgment must be reversed, and anew trial- ordered.


author:
Jones, Ch. J., Oaklet, J.
      Jones, Ch. J. Mr. Lord¡ Jones, Ch. J. Oaklet, J. Oakley, J., (Jones, Ch. J.,

text:
    Holbrook, Nelson & Co. v. Henderson.

    An ambassador from one sovereign state to another, while travelling through the territories of a state to which he is not accredited, in the execution of the duties of his mission, is privileged from arrest on civil process.
    The act of Congress relative to the privileges of resident ambassadors, was not necessary or intended to confer privileges, nor does it limit their extent. Its object was to enforce the privileges of ambassadors, and to punish all violations of it.
    The privileges of foreign ministers have their origin and support in the law of nations. They are founded on the right of embassies between nations, and the inviolability of ambassadors is a certain consequence of that right, and is indispensable to its perfect enjoyment.
    The principles which sustain the right of a resident minister to be exempted from arrest, or a restraint of his personal liberty, apply equally to the exemption from arrest and violence of a minister while travelling through an intermediate country in the discharge of bis duties to his sovereign.
    The obligation to permit such passage is positive upon the intermediate nation, and its refusal would be a clear violation of the free right of embassy secured by international law.
    The practice of granting passports or a safe conduct, is unknown in this country, except in time of war. Every citizen or subject of a foreign power finds a passport for entrance into the country in the nature and character of its political institutions.
    These constitute an implied invitation to foreigners, from the government, to enter the country, and hence the express permission of the government is not requisite to enable an ambassador, on his mission from one foreign power to another, to enter this country and entitle himself to a free passage through it on his way to or from the power to which he is accredited.
    An ambassador from the Republic of Texas to the Kingdom of France, while on his return to Texas through the United States, after the discharge of his mission, was arrested in a civil suit in one of the courts of the state of New York. Held, that as such ambassador he was privileged from arrest, and he was accorddingly discharged.
    (In the New York Superior Court, before Samuel Jones, Chief Justice, and Thomas J. Oakley and Daniel B. Tallmadge, Justices;
    Nov. 28, 29;
    Dec. 2, 1839.)

      This was a motion to discharge the defendant from arrest, brought on at chambers, and by the direction of the judge sitting there, argued before the full bench. The motion was made upon the following affidavit.
    “ New York Superior Court.

    “ James Pinckney Henderson, Adsin. Lowell Holbrook, Thomas S. Nelson, William E. Shepard.
    “ City and County of New York, ss.
    “John Pinckney Henderson, the defendant above named, maketh oath that he hath been arrested in the above-entitled cause.
    ' “ And this deponent further saith, that he is the public minister of the Republic of Texas, accredited to the King of the French, and Her' Majesty the Queen of the United Kingdom of Great Britain and Ireland, and that this deponent is now on his return from the duties of his station, to the Republic of Texas, with a treaty entered into with the King of the French, which needs to be presented to the Congress of Texas now in session, for ratification. That he arrived in the steam-packet British Queen, in this city, on the twenty-third instant, ánd was arrested on Monday, the 25th instant.
    “ That this deponent hath the credentials of his appointment, authenticated according to the usage of nations.
    “ J. Pinckney Henderson.
    “ Sworn before me, the 26th day of November, 1839,
    “ Thos. J. Oakley.”

      £>. Lord, Jr., for the defendant.
    According to the laws of all civilized nations the person of an ambassador is inviolable, whether accredited to the government of the country, or merely travelling through it, going toj or returning from some other country to which he had been accred-. ited. This proposition is sustained by the following authorities, amongst others:
    In Triquet v. Bath, 3 Burr. 1478, 1480, Lord Mansfield says: “ This privilege of foreign ministers and their domestic servants depends upon the law of nations. The act of parliament, of 7 Anne, c. 12, is declaratory of it.” “I remember too Lord Hardwicke’s declaring his opinion to the same effect; and denying that Lord Ch. J. Holt ever had any doubt as to the law of nations being part of the law of England, upon the occasion of the arrest of the Russian ambassador.” See also Cas. Temp. Talbot, 281.
    By the law of nations, the ambassador is inviolable for all civil complaints; and this is the privilege of the sovereign by whom he is sent, not the personal privilege of the ambassador, which can he renounce. (Cas. Temp. Talb. 281.) '
    Yattel, in B. iv. ch. 7j § 81, says, "The importance to the human race of treaties, involves the protection of those who make them. Whoever offers any violence to an ambassador, or any other public minister, not only injures the sovereign whom this minister represents, but he also hurts the common safety and well-being of nations; he becomes guilty of an atrocious crime to the whole world.” Again, in § 84, “ Indeed, that prince alone to whom the minister is sent, is under a particular obligation that he shall enjoy all the rights annexed to his character; yet the others, through whose dominions he passes, are not to deny him those regards to which the minister is entitled, and which nations reciprocally owe to each other. They especially owe him an entire safety. To insult him would be injuring his master and the whole nation. To arrest him and offer violence to him would be hurting the right of embassy, which belongs to all sovereigns.” “It is the quarrel of all nations, who are concerned to maintain as sacred the right and means of communicating together and treating of their affairs.”
    Burlamaqui, Ph. iv. ch. 13, § 6, vol. 5, p. 305, “ In short, that which makes the person of an ambassador to be called sacred and inviolable is, that they are not submitted to the jurisdiction, civil or. criminal,, of the sovereign, to whom they are sent, neither in respect to their persons, nor to the people in their suite, nor their property; and consequently one. cannot act against them, in the ordinary ways of justice, and it is in that, that their privileges principally consist.” Again, Ibid. 303, “ And whoever does violence to an ambassador or any other public minister, not only does an injury to the sovereign whom this minister represents; he wounds the common security and safety of nations, and renders himself guilty of an atrocious crime against all nations.”

      M. S. Bidwell, for the plaintiffs, contra,

    contended that General Henderson’s capacity of ambassador from Texas to France, did not confer any privileges on him in the United States. That it was not intended, either by the act of Congress, or the law of nations, that the privileges of ambassadors should be extended to them while passing through other countries than those to which they were deputed. In such a case, the ambassador should, if he thought it necessary, get a safe conduct from the government of the country through which he passed, and if General Henderson had got a safe conduct from the government of the United States, he would have then been perhaps exempt from process, and it would depend on circumstances how far the party would have a right to imprison him.
    It did not appear that Gen. Henderson came here by order of the Texian government. If Texas sent him, he would have his passport or credentials, and then if his personal liberty was violated, Texas would have reason to consider herself insulted, but as far as we know, General Henderson was here on his own business. Could Texas claim the right to have as many of her citizens here as she pleased under the name of ambassadors, and that each and all of them should possess all the privileges and immunities of ambassadors? Another consideration, the act provides for the registration of the servants of public ministers, and they would then be exempt; but surely General Henderson’s servants cannot be exempt from arrest, and yet if he is to be held exempt, why not apply the same principle to his servants ? • It might be necessary for his public functions ■that .they should be exempt, and yet. no one will pretend to say that the - servants of .Gen. Henderson are not to .be arrested for any debt -which they may owe our .citizens.
    ..It is said that.if Gen. Henderson is entitled to the privileges of ambassador, then this capias must be set aside. In that case, the plaintiffs would be -liable to an action, and our citizens must thus-run great risks in the prosecution of their claims against- transient .foreigners, as. they can never tell but .what they possess the privileges of ambassadors, and are therefore exempt from process. This in itself is sufficient to show that men whose -official character is unknown to this government, cannot be entitled to the privileges of ambassadors. This man is here without any ,apparent necessity, nor is he in any wise here as the, representative of his government, nor is such a thing pretended. He is -here simply on his return to Texas, and it was not necessary for him to come this way. It is said that the arrest of Gen.-Henderson may create great difficulties between the two countries, but if it is contrary to the law of nations that he should.have the privileges• of an ambassador, then Texas cannot resent it, nor ■ has she any right to complain; If- Gen. Henderson owes a debt to our citizens, it is but an act of common justice that he should pay it, -and if he owes no debt he cannot be made -to pay it. But then he claims an exemption from the payment of all his debts in this country, and that he is not amenable to any of our citizens.' The same argument would apply to prevent his arrest for a criminal offence. I admit that- he is entitled to as much privilege as any other citizen of Texas, but no more, and no citizen of Texas could claim such an exemption. We know from history that not only foreign ambassadors, but even princes themselves have been arrested, and their personal liberty violated in foreign countries, and if the rule holds-good as regards them, I cannot see why a-.private citizen, without any official character as regards this country, should claim a total exemption from it.

      Mr. Lord, in reply.

      The counsel has said that General Henderson was not here as a matter of necessity. The court however know, that as a matter of general common sense, the nearest and most convenient route was a matter of necessity to travellers; .not of absolute necessity, but of such importance to them, that it was invariably treated as a matter of necessity. As to how many citizens of Texas we may have here claiming the privileges of ambassadors, it is not to be supposed that her citizens, either going to or coming from foreign countries, will stop and reside here. Such a circumstance might possibly happen, but it is not within such contingencies as a court could notice. It is said that the act of Congress does not apply to this case. But it must not be forgotten that the act of Congress in relation to the privileges of ambassadors was passed in 1790, a period when neither the Federal government nor the different sovereignties of which it is composed could have contemplated the transient residence in this country of ambassadors going from one foreign country to another. The law of Congress, therefore, provided only for accredited ambassadors. But it was not on the law of Congress he relied in the present case, it was on the law of nations, as interpreted by good men, acting in conformity with modern and enlightened ideas of civilization, and the emergencies of society. Amongst the most liberal and enlightened of them was Yattel, whose doctrine on the subject he had already quoted.
    It was contended that if an inviolability was allowed in relation to debt, it must also be extended to crimes. But even admitting such a proposition, how was it to affect the principle at issue ? It was not to be supposed that ambassadors were likely to be murderers or robbers, as it was the most virtuous and honorable men that were generally selected to represent their governments in foreign countries.
    As to the arrest of ambassadors and princes by foreign governments, it could certainly form no precedent, for it was not the isolated acts of kings that made the law of nations. And in every case of the kind, which we find in history, it was but the tyranny of the strong over the weak and powerless,, to which they were obliged to submit, not as a matter of right, but necessity.
    The present case should be considered not only in reference to the settled law of nations, but as a matter of great and vast importance, in which every nation was concerned, and the right decision of which must benefit, not one country alone, but the whole civilized world. For few indeed were the men who would leave their own country, and set out as ambassadors to foreign governments, unless they had some reasonable expectation of reaching it, without running the risk of being incarcerated in the prisons of every state or territory they had to pass through.
    (The court deferred giving their decision until next morning, and in the interim General Henderson was at liberty on parole.)
    Friday, November 29th, Mr. Lord applied to the court to give judgment on his motion.

         The reporter is indebted to the kindness of Daniel Lord, Esq., for the full report of this interesting case, which, though decided many years ago, is of too permanent a value to be lost to the profession.

   Jones, Ch. J.,

said, that since the case had been argued before the court, several new authorities had been laid before it, and as the question was altogether a new one, the court would defer giving any decision until next Monday.

Mr. Lord said that the debts General Henderson had incurred were not on his own account, but for the Texian government. He had signed a paper in blank as agent for Texas, and was extremely surprised to find that the person with whom he left it had used it in the manner he did.

The plaintiff’s counsel controverted this statement. Mr. Lord presented several other considerations, showing the importance of a speedy decision.

Oaklet, J.

We admit all this, but the rights of all the parties concerned, and the importance and novelty of the question to be decided, render it incumbent on the court to consider it thoroughly before they come to any decision on it.

Jones, Ch. J.

As far as I can see, it is entirely a new question, and therefore requires serious consideration. We think we ought not to limit the time short of next Monday, as we do not know what authorities are contained in the papers which have been handed us to-day, until we examine them.

Mr. Lord¡

If these papers are to be made any foundation for the decision of the court, I should like to re-argue the question to-morrow. But I thought we had made an arrangement to have it decided to-day.

Jones, Ch. J.

We will take from the plaintiff any papers he chooses to give us, and also any papers you choose to give us, and we shall examine them all.

Oaklet, J.

These papers contain authorities from the English law, which the counsel says are applicable to this case.

Mr. Bidwell said the papers which he had handed the court contained, among other cases, that of Viveach and others v. Becker, who was arrested in England for debt, and set up in defence his privileges as consul to the Duke of Sleswick Holstein, Oldenburgh. In this case, Lord Ellenborough said, that although the law on which the defendant relied was drawn up so comprehensively as to include all cases intended to be, embraced by it, it did not comprehend the case in question, and that the defendant was as liable to arrest as any other merchant. The papers also contained another case, in which Samuel Pulache was accredited by the Emperor of Morocco as ambassador to Holland, and was also commissioned to make reprisals against Spain, with which power Morocco was then at war. In virtue of this commission, Pulache captured a Spanish vessel and brought her into Portsmouth, where he was proceeded against as a pirate, and his case was not put on the ground as to whether it was lawful, but that he was an ambassador, and therefore could not be proceeded against. The result of the case showed, however, the contrary.

Monday, December 2, 1839.

Oakley, J.,

delivered the decision of the court.

The defendant in this case is the ambassador of the republic of Texas, sent by his government on a mission to the courts of France and England, and received and accredited as such at those courts. Having negotiated a treaty with France, he is now on his return to Texas, with the treaty, to lay it before the Congress of that country, now in session, for its ratification; and he has with him the regular credentials of his official station, which are to be considered as laid before us. On his arrival in this city he has been arrested and held to bail on civil process, issued out of this court, at the suit of the plaintiffs. It does not appear when or where the debt, on which the suit is founded, was contracted, nor is it necessary to inquire, according to the view I take of the case, any further than to infer, as I presume the fact is, that it has not been contracted since his late arrival in the United States.

Upon this state of the case, the question is submitted to us, whether the defendant is entitled to be discharged from this arrest, and whether the process against him ought to be set aside. The defendant contends that he is entitled to such discharge, because he is privileged from arrest, as an ambassador of a sovereign power, travelling through the country, in the execution of the duties assigned to him by his sovereign. On the other hand, it is contended, that such privilege applies only to an ambassador or public minister deputed to this country by a foreign state, and residing here as such.

It is not questioned that a resident minister, received and acknowledged by the executive of the United States, is not subject to the civil jurisdiction of our courts. It is clear that this privilege is founded, not on any municipal law of this country, but on the law of nations. .The act of Congress of April, 1790, (which is in substance like the English act,) cannot be construed as intended to ■confer this privilege. (Jits object is to enforce it, first, by declaring all process issued by any court against such minister void, and secondly, by inflicting punishment upon all persons who may be instrumental in violating tbe minister’s privilege. That such must be the construction of the act, it is to my mind clear, from the fact that its provisions are confined to the case of a minister who has been received and acknowledged by the executive authority; from which it would follow, if the act is considered as creating or granting the exemption, that a public minister arriving on a mission to our government and residing here would not be entitled to any of the privileges of a minister until he should present his credentials, and be publicly received by the president. Now that a minister, thus situated, is entitled to the most important privileges which attach to him after his public reception, is clear, both from the opinions of the most approved writers on the law of nations, -and from the reasons on which such privileges are founded. It was proper that the act of Congress should be confined to the case of a minister after his public reception, inasmuch as it makes penal the acts of oür own citizens, which may be in violation of his privileges, and this could not be done with justice, until the existence of those privileges should be made known by his public acknowledgment by the government.I ,,

I cannot, therefore, yield my assent to the argument, which has been pressed upon us, that the act of Congress has limited the extent to which the privilege of a foreign minister may be enjoyed. I do not suppose that it was intended to abrogate any part of the generally received and acknowledged principles of international law on that subject.

Assuming, then, that the privileges of a foreign minister have their origin and support in the law of nations, it becomes necessary to inquire into the reasons on which that law is, founded. They are, in substance, as I find them laid down in Vattel, that it is necessary for nations to treat with each other for the good of their affairs — that each has a right of free communication with others for that purpose — that such communication must, of necessity, be carried on by ministers or agents who are the representatives of their sovereign, and that each sovereign state has, therefore, a right to send and receive public ministers; that such being the rights of nations, a sovereign attempting to hinder another from sending or receiving a minister, does him an injury and offends against the law of nations. That, minister representing the sovereign by whom he is deputed, the respect rendered to the minister is not personal, merely, but is, in truth, the respect due from one sovereign to another; and to withhold it is, therefore, an insult which may justly be resented, and thus the peace of nations may be endangered.

It is further laid down that the right of embassies being thus established, the inviolability of ambassadors is a certain consequence of that right, and is indispensable to the perfect enjoyment of it. That such inviolability may be complete, it is necessary that the ambassador should be free from the control or operation of the laws of the country to which he is sent, and from the jurisdiction of its courts, as without such freedom he might not be able to discharge his duty to his own sovereign with firmness and fidelity. [ It is further laid down that inasmuch as the minister is the representative of the dignity and independence of the sovereign, it is impossible to conceive that such sovereign in sending an ambassador intends to submit or subject him to the authority or jurisdiction of a foreign power.

Without dwelling further on this summary of the law of nations, relative to the rights and privileges of public ministers, it is sufficient to observe that the principles contained in it are not only obviously just, but that all the approved writers on international law, both before and since Yattel, concur fully with him as to their nature and extent?]

Yattel, following out these principles, to what, I think, is their legitimate result, holds that an ambassador, passing through the territory of a friendly power, on a mission from his sovereign to another friendly power, is entitled to at least some of the rights and privileges of ambassadors. He says that, although the prince to whom the minister is sent, is under a particular obligation that he shall enjoy all the rights annexed to his character, yet others, through whose dominions he passes, are not to deny him those regards to which the minister of a sovereign is entitled, and which nations owe to each other. They especially owe him an entire safety. To insult him would be injuring his master, and the whole nation; to arrest him and offer violence to him, would be hurting the right of embassy which belongs to all sovereigns. According to Yattel’s opinion, then, the principles of international law on which the rights and privileges of resident ministers rest, apply to a case like the one now before us, so far as to secure to the minister an entire personal safety, and freedom from arrest, and violence, or, in other words, from all restraint of his personal liberty, whereby he may be prevented from discharging his duties to his own sovereign.

This view of Yattel recommends itself very strongly to my judgment. It is founded in good sense and sound reason. It is difficult to designate any principle among those before stated, as sustaining the rights of a resident minister to be exempted from arrest or a restraint of his personal liberty, which does not apply to the case of one standing in the situation of (this defendant. The ambassador of the republic of Texas, is travelling through our country, which is in amity with his own, in the actual discharge of a special duty, assigned to him by his sovereign. He is the representative of the dignity and independence of Texas as a sovereign state. Passing through our territory, on his route to his own country, to complete the mission with which he has been charged, he cannot be presumed to have laid aside his official character, and to have voluntarily submitted himself to the jurisdiction of our courts, as he could not do that without failing in his duty to his own sovereign. His arrest and detention, and, perchance, his personal imprisonment for an indefinite period, might seriously interfere with the successful termination of his mission. The free right of embassy which Texas, in common with all other nations, enjoys, may thus be impaired, and she may feel that an insult has been offered to her dignity, and an injury to her rights, and thus a state of things may arise, which may endanger the national peace. It seems to me, that every principle of national courtesy, of a just observance of the rights and dignity of independent sovereign powers, and of a due regard to the preservation of public peace and of the maintenance of friendly intercourse with other nations, calls upon us to extend to the present case, the established rules of that law of nations, which, by the consent of all, secures the inviolability of a resident ambassador. The two cases seem to me to be equally within the reason of the law.

In thus adopting the doctrine of Yattel, I, of course, have not overlooked the fact, that most, perhaps all the other writers on international law, to which we have been referred, have advanced different views. The most distinguished amongst them, Grotius and Wicquefort, unite in the opinion, that a public minister, passing through the territory of a third power, is not entitled to any privileges as such^and if my decision were to be governed by the mere weight of the opinions of learned men, I should probably arrive'at a conclusion different from that which has resulted from my examination of the subject. But, as mere opinions, they do not address themselves to us with the authority of judicial decisions, and are to be regarded only as they seem consonant with sound reason. I am not satisfied with the ground's on which these writers sustain their opinions, or with the cases to which they refer for their support. Those cases cannot be considered, according to any reasonable view of the subject, as amounting to satisfactory evidence of the practice and usage of nations. The most that can be said of them is, that they are instances of violence, apparently acquiesced in, or to speak more properly, submitted to, in some cases after remonstrances against their legality, and, in all, from motives which cannot be known. They may have been motives of expediency merely, or motives springing from the necessary submission of the weak to the powerful. But in no case happening in times sufficiently modern to be entitled to respect as a precedent, do I find, that the violation of the person of an ambassador, travelling through the territory of a power at peace with his sovereign, has been acknowledged by that sovereign not to be a breach of the general law of nations. And after all, the practice of nations at a remote period, and the opinions of the old writers on national law, seem to me to be entitled of themselves to little weight with us. The law of nations, like other systems of law, is progressive. Its principles are expanded and liberalized by the spirit of the age and country in which we live. Cases, as they arise under it, must be brought to the test of enlightened reason and of liberal principles; and I should as soon think of going back to the times of the English star chamber, to search for the rules that ought to govern us in the protection of the personal liberty or rights of the private citizen, as of referring to the age of Charles V. or of Elizabeth, forjhe principles which ought to regulate the intercourse of nations]]

It was urged, on the argument by the counsel for the plaintiffs, that the exemption claimed in this case could not rest on that necessity of preferring the free intercourse of nations, which alone can justify it, inasmuch as it was not necessary that the Texian ambassador should have entered our territory, on his return from Europe. And that therefore, his coming into our country was in fact voluntary, and a virtual submission, on his part, to the ordinary operation of our laws while within our borders.

It is true that the defendant might have returned to his own country without passing through ours; but we cannot but see that such a course would have been unusual, and probably highly inconvenient. He is returning by the ordinary and established route — that which, in practice, is adopted by almost all men', both public and private. There is at present] little or no direct intercourse between Texas and Europe, and it would be treating the subject in a point of view altogether too narrow, to hold that the defendant, by adopting the ordinary and convenient mode of travelling to and from his place of destination, had thereby intended to abandon his official character, and to enter our territory as a mere private individual, j It may happen, as in the case of some of the German states and of the Swiss Cantons, that a public minister, deputed to them, must, from absolute necessity, pass through the territory of a third power. In such a case, the refusal of a free passage through such territory would be a clear violation of that free right of embassy spoken of by Yattel. The obligation to permit such passage would therefore seem to be positive, and in the exercise of national courtesy it ought to be permitted by the usual and most convenient route. Any unnecessary impediment thrown in the way of the free passage of the minister impairs the right of embassy possessed by his sovereign. The same principle will justly apply to the case now before us. The right of free communication between nations, which has its foundation in public necessity, is in truth a right to be enjoyed according to a convenience exercised in good faith, and in reference to the usual and established modes of intercourse.]

It was further contended on the argument, that the privilege claimed by the defendant is in conflict with the well-established right of every nation to exclude from its territories all persons at its pleasure. I do not so consider it. Our government may undoubtedly, if it should see fit, send out of the country any resident minister. So may they do with the present defendant. They may direct him to leave our territory, but they cannot arrest and imprison him. In the one case he may return to his own country and complete the objects of his mission, in the other his mission would be interrupted, and, perchance, entirely defeated.

¡It is also contended, that before an ambassador, passing through our country, on a mission to another power, can claim an exemption from the ordinary operation of our laws, it should at least appear, that he had entered our territory by the permission of our government; and most of the writers on international law, who deny the right of a minister,, in the situation of the present defendant, to the privilege claimed for him, seem to agree that if a minister thus situated obtain a passport or safe conduct, as such, from the sovereign of the territory through which he is about to pass, his right of protection by such sovereign becomes absolute. This must be so, according to every sound view of the case. If a sovereign invite or permit the representative of another power to enter his territory for any purpose, it is clear that he cannot, without a violation of all good faith, withhold from such representative all necessary protection. Now, may it not fairly be said that the present case falls within this principle ? The practice, of granting passports, or a safe conduct, to any person, except in time of war, is, as far as I am informed, unknown to our government. No man, I believe, being about to enter our country, either to reside in it or pass through it, ever thinks of applying for permission to do so. Passports, though they may be named in our laws, are either entirely unknown in practice, or of extremely rare occurrence. The truth is, that every subject or citizen of a foreign power finds a passport for entrance into our country, in 'the nature and character of our political institutions. We hold out a standing invitation to all men to come freely among us, and it is doing no violence to good sense or sound reason to say, that foreigners enter our country by, at least, the implied invitation of our government. The defendant, then, could not, in reason, be required to obtain any express consent of the government to come within our territory, in order that he might, when here, enjoy the privileges claimed by him as appertaining to his representative character; so long, at least, as that government permits him to remain.

In coming to the result at which I have arrived in this case, I have not considered, nor do I intend to say, what is the extent of the privileges which may be justly claimed by the defendant. It may be that many privileges clearly secured to a resident minister, as for example, those which refer to his domestic establishment, may not be necessary for the protection of a minister merely passing through the country, in the enjoyment of his personal freedom.

Nor do I intend to say whether the defendant may not, by his continuance in the country, or by his conduct while in it, divest himself of his representative character, so far as by his voluntary act to subject himself to thp ordinary operation of our laws. These áre questions not involved necessarily in the present inquiry.

I am of opinion, that the motion to set aside the process issued in this case and that the defendant be discharged, be granted.

(Jones, Ch. J.,

said, that as the case first came before Judge Oakley, it was thought proper that he should deliver the opinion of the court. Each of the judges had also prepared a short opinion on the subject, but he considered that every thing they could say on the question was embraced in the opinion of Judge Oakley, which was the unanimous opinion of the court.

Mr. Lord informed the court that, in making a motion to set aside the capias, it was not the intention of General Henderson to bring any action against the plain tiffsj]

Defendant discharged.


author: By the Court.

text:
    Launitz v. Barnum.
    An issue on a license to do an act on real estate, which would otherwise be a trespass, does not present for trial “ a daim of title to real property.”
    In an action of trespass, where the only justification is a license, the plaintiff must pay the costs of the suit, unless he recover at least fifty dollars damages. (Before Sanbnorb and Mason, J. J.)
    June 27, 1851.
    Appeal from chambers. The complaint charged that defendant wrongfully entered into plaintiff’s house, 586 Broadway, and bored holes through the roof-timbers, and nailed braces and bolts upon the roof, and attached a rope to the roof, from which the defendant suspended a flag or sign of an exhibition.
    The answer denied that the defendant wrongfully entered and committed upon the'premises the acts charged. It then stated that what he had done was done “ by and with the permission and consent of a person in the occupancy and possession of the premises, having the power to give such consent and permission.” The reply, putting in issue the consent, also* denied that any person in the possession or occupation of the premises, had the authority or lawful right to give such consent.
    At the trial, it appeared that the plaintiff’s tenant of the house gave the defendant permission to erect a fixture on the roof, from which to suspend a flag or canvas sign of some public exhibition. As the lease gave the tenant no authority to do this, the question at the trial was one of damages merely, and the jury gave the plaintiff a verdict for six cents. Upon this the defendant claimed costs, and the clerk entered a judgment in his favor for the costs of the suit. The plaintiff moved at chambers to correct the judgment by striking out the award of costs to the defendant, and inserting a recovery in his favor for the same. The motion was granted, and the defendant appealed from the order.

      O. T. Cromwell, for the defendant

      W. Pochard, for the plaintiff.
   By the Court.

The answer does hot put the plaintiff’s title in issue at all. It sets up a license to do the act charged as having been a trespass, from the occupant" of the premises. The denial that the act was wrongful is founded on the allegation of consent. The reply traverses the right of the occupant to give such a consent, as well as the consent itself. There were two issues made, viz., the fact of consent or license, and the right to give it. There was no “ claim of title.to real property,” (Code, § 301,) made in the pleadings, or came in question at the trial. The license set up was a very different thing from a claim of title. (See 18 Wend. 579.) The clerk was right in entering judgment for costs in favor of the defendant, and the order appealed from must be reversed. (All the justices concurred, except Paine, J., who was not present at the consultation.) •

        ) The cases of practice reported were decided with the sanction of at least two, and nearly all of them with that of three or more justices of the court.


author: Sandford, J.

text:
    Coddington and Wife v. Webb.
    Injunction orders made ex parte, should be served as other orders made by a judge out of court, viz., by exhibiting the original order and delivering a copy to the parly served.
    Where service of an injunction order was made by delivering a copy without showing the original, it was held to be insufficient to bring the party into contempt for its disobedience.

      Semb. It was sufficient, as notice, to preserve the plaintiffs’ rights.
    (Before Sandford, Duer and Campbell, J. J.)
    June 27, 1851.
    The defendant moved to open a default, by which the plaintiffs had taken an order for the appointment of a receiver. The motion was resisted on the ground that the defendant was in contempt for a violation of the ex parte injunction granted in the cause.
    It appeared that the injunction order was served on the defendant by delivering to him a copy of the same, but without showing to him the original order signed by the judge.

      H. Ketchum, for the defendant.

      H. F. Clark, for the plaintiffs.
   By the Court.

Sandford, J.

-(All the justices of the court concurring.) — Under the former practice, the defendant would probably be adjudged to be in contempt, for disobeying the injunction. But injunctions are now by orders and not by writ, and all orders are similarly signed, and all must be served in the same mode. For the purpose of founding a proceeding for a contempt of court, it was necessary in the courts of law, under the old system, to show the original with the signature of the judge, at the time of delivering the copy. The code of procedure has made no change in the practice in this respect. The service in this case was defective, and although it may have been sufficient as a notice of the injunction to save the rights of the plaintiffs, it does not suffice to found a proceeding for a contempt of court. (The default was opened, and the order appointing a receiver affirmed on the merits.)


author: Duer, J., Oakley, Ch. J.)

text:
    The People v. Norton.
    To warrant the examination of a party alleged to have in his possession-property of a judgment debtor, it is not necessary that the execution should issue to the county where such debtor resides.
    It suffices that the execution is to the county where the property is expected to he found, and where the person resides who is charged with having it in his possession.
    August 26, 1851.
    An execution upon the judgment in this oase had been issued to the sheriff of the- city and county of New York, and upon the usual affidavit an order had been granted for the examination of A. B., who was alleged to have property of the debtor in his possession. A. B. attended, but-objected to being examined upon the ground that to give jurisdiction to the court, the execution ought to have been issued to Kings County, in which it was admitted that the debtor resided.

      W. Watson, for the plaintiffs.

      Q. Clark, for the party summoned.
   Duer, J.,

(with the concurrence of

Oakley, Ch. J.)

To warrant the examination of the judgment debtor himself, after the execution has been returned, it 'must appear that it was issued to the county in which the debtor resided. But section 249 of the code, (§ 292 Amend. Code,) under which this order was granted, imposes no such condition. The object of an ex-animation before the return of tbe execution is the discovery of property upon which it may be levied, and it is therefore properly issued to the county in which such property is expected to be found, and where the agent or trustee of the debtor, who is alleged to have it in possession, is known to reside. The examination must proceed.


author: Duer, J., (Oakley, Ch. J.,

text:
    Williams v. Sholto.
    A party, upon whom is served a pleading defective in form, must return it to the party serving it, if unwilling to accept it as a perfect pleading.
    Where an answer was served, entitled “ Supreme Court,” instead of “ Superior Court,” and the plaintiff, without returning it, or notifying the defendant, treated it as a nullity and entered judgment, the judgment was set aside as irregular.
    August 26, 1851.
    Motion to set aside a judgment as irregular. It appeared that an answer had been served in due time, denying specifically all the allegations in the complaint, and. regular in form in every respect, except that it was entitled in the supreme court, instead of supmor court. The plaintiff’s attorney did not return the answer to the defendant’s attorney, nor give him notice of the mistake, but treating the answer as a nullity, proceeded to enter up judgment as for the want of an answer.
   Duer, J.,

(Oakley, Ch. J.,

concurring.) — Where the object and intent of a pleading are certainly known to the attorney upon whom it is served, as they must have been in this case, he has no right to treat it as a nullity, merely upon the ground that it is wrongly entitled, or is otherwise defective in form. If he is unwilling to accept it in its actual form, he must return it so as to give to the opposite attorney the opportunity of correcting the mistake • but if he retains it and gives no notice of the de,fect, he is to be considered as waiving the.objection, and eleeting to consider it as properly amended. These just and reasonable rules were established by the supreme court under the former more technical system of practice, and there is no pre text for saying that they are inconsistent with the provisions of the code. On the contrary, they are exactly such as a just regard to the intent and spirit of the code should compel us to adopt. (City of Buffalo v. Scranton, 20 Wend. 676; Wirts v. Norton, 25 Ibid. 699; Platner v. Johnson, 3 Hill, 476.)

The motion is granted with costs.

       See Laimbeer v. Allen, ante vol. ii. p. 648; White v. Cummings, vol. 3, p. 716.


text:
    Roberts’s Administrators v. Law and Mason.
    Under section two hundred and forty-four of tbe code of procedure, as amended in July, 1851, a partner, who by his answer admits that he has in his hands partnership funds, which on his statement appear to belong to the administrators of his deceased partner, will be ordered to pay over such funds to them, although there are outstanding contested claims against the firm, and it has claims to enforce which will require time and disbursements.
    The order for such payment will, however, require the administrators to give security to the surviving partner to contribute to the outstanding claims, if established, and to pay their share of the expenses that may be incurred in prosecuting the demands of the firm.
    The surviving partner will also be permitted to retain sufficient to cover such claims against the deceased partner as are contested in the suit in which the order is made.
    September 20, 1851.
    This was a motion to compel the defendant, Law, to pay to the plaintiffs the sum of $19,890.29, on the ground that he admitted in his answer that he had in his hands that sum belonging to them. The motion was made under that clause of section 244 of the code of procedure, which provides that 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.”
    The facts are stated by the Judge. The opinion was concurred in by Duer, J., and subsequently by Sandford, J.

      A. L. Jordan, for the plaintiffs.

      H. Goodman and G. Wood, for the defendant, Law.
   Mason, J.

The answer of the defendant Law admits, that out of moneys paid by the corporation of this city upon a contract for building the High Bridge, executed by himself, the defendant Arnold Mason, and the plaintiff’s intestate Samuel Eoberts, there was, at the time of the last accounting, in his hands, growing out of or appertaining to the joint business, a balance of $145,153.29, of which the sum of $125,262.45 belonged to him, leaving a balance of $19,890.84 in his hands not belonging to him.

He says that there was at that time in the hands of the defendant Mason, growing out of or appertaining to the joint business, a balance of $62,664.15, received from the defendant Law, which exceeded the just separate share of Mason in the joint funds by about $32.92; and that there was in the hands of Samuel Eoberts, or his representatives, at the same time, appertaining to the joint business, a balance of $42,707.46, received from the defendant Law. Now, as it appears from the contract, and is admitted by the answer, that of the moneys thus paid, Law was entitled to one-half, and Mason and Eoberts each to one-fourth, it follows that the balance of $19,890.84, admitted to be in Law’s hands, and also the $32.92 in Mason’s hands, over and above their respective shares, belongs to the plaintiffs as representatives of Eoberts. This balance, therefore, so admitted by Law, the plaintiffs are entitled to receive, unless Law shows that he has claims or liens on it superior to their rights therein.

. He sets up several claims. 1. He insists that there were several bad debts incurred by Eoberts and Mason, amounting in all to $933:28, which, by an agreement between them, Eoberts, Mason and Law, were to be charged to the two former, and that one-half of this amount is properly chargeable to the estate of Eoberts. This the plaintiffs deny, and the right thus to make such a charge against the plaintiffs, is one of the points at issue in the suit. This one-half Law cannot now be required to pay over, and he is entitled to retain in his hands a sufficient sum to meet Eoberts’s half, if his estate shall ultimately be held liable, together with interest, say $500.

2. The defendant alleges that there are two outstanding claims against the concern, which, he says, are unjust, and the payment whereof to the claimant, he is contesting; and he insists that a portion of the money in his hands, sufficient to pay Eoberts’s share of these claims, in case they should be recovered against the concern, with interest and costs, should be reserved or set apart for his security'and that of Mason, or proper and available security given to indemnify them therefor. It is difficult to perceive on what grounds the defendant can be authorized to impound moneys admitted to be due to his copartner’s estate, in order to provide for such a contingent liability; especially when the plaintiffs offer to give satisfactory security to pay their share of whatever sum may be awarded against and paid by the defendants on those claims. Law and Mason may both fail, and the estate of Eoberts may be made liable, and forced to pay both these claims in full. No deduction, therefore, can be allowed on this account. . i

3. The defendant alleges that the joint concern has a large claim against the corporation, for extra work, over and above the requisitions of their contract, and that a large amount of money, and considerable time and labor, will be required to prosecute the claim, and he insists that he has a right to retain in his hands, of the moneys so due to the plaintiffs, a sum sufficient to cover their just proportion of the expenses of litigation and of his time and services. It needs no argument to prove that such prospective expenses and services can give to the defendant no lien upon, or right to retain, any moneys due to the plaintiffs. But it is right and proper that he should be secured by tbe plaintiffs against tbeir share of the expenses in the prosecution of the suit; and that provision should be made for his compensation, if he should prove himself entitled to any.

The order then will be, that the defendant, George Law, do, within thirty days from the service of the order, pay to the plaintiffs as administrators the sum of $19,890.84, being the sum admitted to be in his hands, received for the plaintiffs, less the sum of $500, which he is allowed to retain until the decision in this suit shall determine the amount of such bad debts, and the liability of the plaintiffs as administrators therefor. And the plaintiffs must give, simultaneously with the payment of the money, a bond or undertaking, with two sureties, to be approved of by one of the justices of this court, as to its form, amount, and sufficiency of the sureties, to pay one-fourth part of all such outstanding claims against the late firm of Law, Roberts & Mason, as the defendants, or either of them, shall be called upon and obliged to pay, and also one-fourth part of the moneys paid by them, or either of them, or for which they, or either of them, may be liable, for the expenses of prosecuting the demand against the corporation mentioned in the answer in this cause, and also whatever sum, if any, may be adjudged by the court to be justly due to Law for his time and services in prosecuting such claim.


author: Mason, J., Duer and Campbell, J. J.)

text:
    Wiggin v. Gans.
    The rules and practice of the courts on the subject of accounting, existing at the time of the adoption of the code, are still in force.
    Accordingly, where an order of reference directed the account of the defendant, an agent, to be taken in the “usual manner,” it was held that he was bound to ■ bring in before the referee a. sworn account, including both debits and credits, in the manner prescribed in the 101th rule of the late court of chancery, and to submit to such examination as was allowed by that rule.
    Sept. 20, 1851.
   Mason, J.,

(with tbe concurrence of

Duer and Campbell, J. J.)

—The order of reference in this case directed that tbe account of the defendant should be taken in tbe “ usual manner.” Ever since tbe adoption of tbe 107th rule of tbe court of chancery, ■which was in tbe year 1829, accounting parties have been required to bring in their accounts in tbe form of debtor and creditor, verified by an affidavit that tbe account, including both debits and credits, is correct, and that tbe party accounting does not know of any error or omission therein to tbe prejudice of any of tbe other parties, (4 Paige, 112,) and no other manner of accounting has as yet been adopted under tbe code that I am aware of. The referee was therefore correct in deciding that tbe mode of accounting, which bad been in use in this state for upwards of twenty years, was tbe “ usual manner” contemplated by tbe order, and if tbe defendant bad any valid objections to that part of the order, be should have appealed and not have refused to obey tbe order of tbe court.

Still, if tbe code has abolished this rule, it cannot be enforced under this order.

Tbe defendant contends that, according to tbe code, a discovery can be obtained from a party to a suit, only by examining him as a witness, and that this provision is general, and applies as well to tbe rendering of an account as to tbe discovery of any other facts.

I do not so understand it. Tbe section in question (§ 389) reads as follows: “ No action to obtain discovery under oath, in aid of the prosecution or defence of another action; shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner prescribed by this' chapter.” The examination thus authorized appears to be in terms á substitute for bills of discovery, properly so called, and' for nothing else. The words any examination” must, on every fair principle of interpretation, mean, any examination for the purposes of discovery, in cases- in which formerly a bill of discovery would have been resorted to. In other words, wherever a bill of discovery could have been filed under the former practice in the support or defence of an action, there the party may be examined in the mode prescribed in this chapter, and in no other'mode. ' Now a bill to account and a bill for discovery in aid of another action, are - as different in their character and objects as assumpsit is different from replevin, and the provisions designed for -the one should not be applied to the other, unless such was the manifest intention of the legislature.The subsequent sections of the same chapter in the code confirm the view I have taken. They provide for the examination of 'the party, “ in the same manner and subject to the same rules of examination as any other witness.” Other witnesses are examined with reference .to the issue formed by the pleadings, in order to prove or disprove the allegations on the one side or on the other. An accounting party, however^ does not-stand in the situation of a mere witness. The -rendering of the account is a duty which he is required to perform; he is to furnish the materials which áre to be the subject of examination'and proof by witnesses, and materials which in most Cases'can be furnished by him alone. The decree to account implies that he has failed in the obligations which he owed to his principal, and:is a mode of compelling him to do that which he ought to have done voluntarily. There is, moreover, a manifest propriety in requiring a party who has acted in a fiduciary capacity for another, as factor, agent, or trustee, and who in that capacity has received and disbursed moneys,-not only to furnish a full- and true account of his receipts and disbursements, but to do so under the solemnity of an oath: The oath in such cases always has been required in practice. Before the adoption of the 107th rule by the late court of chancery, the defendant was called upon to set forth his receipts in his sworn answer, and then was obliged to submit to an examination upon interrogatories in the master’s office; while he could not testify in his own behalf as to payments, but was compelled to produce Touchers in their support. The same principle has been adopted in the revised statutes, in regard to the accounting of executors or administrators in the surrogate’s court. They are required, in rendering an account, to produce vouchers for all debts and legacies paid, and for all funeral expenses, and they may also be examined on oath touching such payments, and also touching any property or effects which may have come to their hands as such executors or administrators, and the disposition thereof. (2 R. S. 92, §58.)

I' cannot, therefore, believe that the legislature in enacting section 889 of the code, intended to change the mode of rendering accounts in the courts of law, or that the section in question has any reference whatever to actions brought for the purpose of obtaining an account, especially when they have not disturbed the mode of accounting prescribed in the surrogate’s court. It is not reasonable to suppose that one mode of accounting was intended to be followed in the surrogate’s court, and another and very different mode in the other courts.

There is this further consideration, which appears to me to have much weight. It is that, by section 895, it is provided that a party examined by an adverse party, as in that chapter provided, “ may be examined on his own behalf, in respect to any matter pertinent to the issue.”

If, then, the chapter applies to the examination of an accounting party, it follows that when the adverse party examines him touching his receipts, he may offer himself as a witness in his own behalf, and prove by his own oath all his payments or discharges,, and the production of vouchers is entirely unnecessary. As the receipts of money by persons standing in the relation of trustees, &c., cannot in many cases be proved, except by themselves, and therefore they are examined ex necessitate, the result of the application of this chapter to such cases would be to oblige the principal of a dishonest trustee to take whatever accounts he chose to give him.

The authors of the code never contemplated such injustice; and in the absence of any other enactment on the subject, I shall hold, until overruled by superior authority, that the rules and practice of the courts on the subject of accounting, existing at the time of the adoption of the code, are not inconsistent with any provision of the code, and that consequently, by section 469, they are now in force.

The defendant, therefore, must bring in his account in the manner required by the 107th rule of the late court of chancery, duly verified in the manner directed in Story v. Brown, (4 Paige, 112,) as required by the referee and must also submit to such examination as by that rule is allowed; and he is not, by reason of his examination on such accounting, to give testimony in his own favor, any further than his answers are fairly responsive to the interrogatories of the adverse party. Such was the rule under the former practice, (Benson v. Le Roy, 1 Paige, 122,) and it remains unaltered.

The order will be, that the defendant bring in such account duly verified, and file it with the referee within ten days, in default of which, the plaintiff may, on affidavit of such default, apply for an attachment.

       The 107th rule of the court of chancery, as adopted in 1829, was in these words: “ All parties accounting before a master shall bring in their accounts in the form of debtor and creditor; and any of the other 'parties who shall not be satisfied with the accounts so brought in, shall be at liberty to examine the accounting party upon interrogatories, as the master shall direct.” In the revision of the rules in 1837, the following was added to the 107th rule, viz.: “ On any reference to take or state an account, the master shall be at liberty to allow interest as shall be just and equitable, without any special directions for that purpose, unless a contrary direction is contained in the order of reference. And every charge, discharge, or state of facts, brought in before a master, shall be verified by oath as true, either positively or upon information and belief.” The rule continued in this form until the court of chancery was abolished. — See Benson v. Le Roy, 1 Paige, 122.


author: MXson, I.

text:
    Pike and Ladd v. Lent.
    The amendment made in 1851 to subdivision three of section 119 of the code of procedure,-which provides for the arrest of the defendant in an action to recover the possession of personal property, where “ the property has been disposed of so that if cannot be found of taken by the’sheriff and with the intent that it should' not be so fov/tid or taken, or with the intent to deprive the plaintiff of the"benefit'thereoff does not authorize such arrest where the'property claimed is merchandise fraudulently purchased by the defendant, and then sold out by him in the usual course of his retail trade before the suit for the same was commenced.
    In such a case, the'court will order the bail to be given, in respect of the goods that-have thus been sold,-which is prescribed on an arrest under the other subdivisions of section 119 of the code.
    Sept. 20, 1851.
    Motion to discharge an order of arrest. The facts are stated in the opinion, which was delivered by Mason, J., with the concurrence of Duer, J.

      W. S. Rowland, for the deferidant.

      R. O. Pilce, for the plaintiffs.
   MXson, I.

In this action, which was to recover-the possession of personal property, the plaintiff made an affidavit, stating-among other things, that a certain portion of the property described in the requisition to the sheriff had been “ removed and disposed of”-by the defendant, “so that it could not be found or taken by the sheriff,” and had been disposed of, “ with the intent to deprive the plaintiff of the benefit thereof,” and thereupon obtained a judge’s order requiring the sheriff to arrest the defendant, and hold him to bail' in $1000, by causing a- written undertaking to be executed, pursuant to the latter clause of section Í87 and 211 of the code. The 187th section provides, that if the defendant be arrested for the cause mentioned in the third-subdivision of section 179, that is, where the property had been. removed in the manner and with the intent stated in the plaintiffs’ affidavit, the undertaking shall be for delivery of the property, and for the payment of such sum of money as may for any cause be recovered against the defendant, as provided' for in section 211. A motion is now made by the defendant to vacate that order, and for the discharge of the defendant, on giving the common undertaking for his appearance.

It appears from the papers read on the motion, that the prop-' erty sought to be reclaimed was the contents of a shop of fancy goods, the principal part of which had been sold on the 2d of June last, on a credit of six months, and the residue for cash, but of the whole of which, possession was delivered to the defendant, and that such possession was undisturbed by the plaintiff until the 19th of July, when this action was commenced. It also appears, that the goods which were not delivered to the sheriff had been sold by the defendant from time to time, out of his shop, where he continued to do business from the day when the property was delivered to him by the plaintiffs, until the sheriff took possession. It no where appears from the affidavits that the defendant had any intimation or suspicion that the plaintiffs would seek in this way the recovery of the property, or that any portion of it had been disposed of with a view to evade the expected process. The intent to deprive the plaintiffs of the benefit of the property, sworn to in the affidavit, was the general intent to cheat and defraud, alleged to be a part of the whole transaction of purchase.

In Roberts v. Randall, (3 Sand. S. C. R. 710,) this court held that the undertaking described in section 211, for the delivery of the property and the payment of the money recovered, could only be required in an action like the present, where the defendant had not only disposed of the property so that it could not be taken by the sheriff, “ but had disposed of it, so as, and in order to prevent the sheriff from executing the process for its delivery, which could only be after the commencement of the suit, or after the sheriff, by the receipt of the process, was entitled to make such delivery, or when made with a view to defeat expected process, which would be a disposal in fraud of the law.”

Since the decision in Roberts v. Randal was made, the third subdivision of the 179th section of the code has been amended, by adding to it the clause, that the disposal of the property so that it cannot be found by the sheriff, must be “ with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof.”

The plaintiffs’ counsel contends that these latter words authorize the sheriff to demand security for the delivery of the property, whenever it has been disposed of with the intent that the plaintiff should not get it, whether in view of expected process or not; in short, that it applies to all cases of fraudulent purchases of goods. I do not think so; on the contrary, it appears to me that the amendment in question was intended as a corrective of the decision of the supreme-court in Van Nest v. Conover, (5 How. Pr. R. 148,) and as a legislative adoption of the construction given to the section in question by this court. This is the plain import of the language, and is in accordance with the tenor and spirit of the act, as was abundantly shown by Mr. Justice Sandford in his elaborate opinion in Roberts v. Randal.

The motion, therefore, is granted, discharging the defendant on giving the common undertaking, executed with two or more sufficient bail, that he shall render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein as provided in section 187. But as the -point is new, no costs are allowed on this motion.


author: Oakley, Ch. J.

text:
    Cochran and others v. Webb. Webb v. Cochran and others.
    In an ejectment, the defendant cannot, in an answer denying the plaintiff’s legal title, set np an equitable defence looting to affirmative relief. »
    Where a defendant in an ejectment, after putting in issue the plaintiff’s title, files a cross complaint setting up an equitable right to the land, and praying for a release and other relief, the court will not stay the first suit till the trial of the latter, but will permit the legal title to be first tried, and if the plaintiff in the first suit succeed, will then stay his proceedings until the equitable issue can be determined.
    (Before Oakley, Ch. J., and Mason, Campbell, and Paine, J. J.)
    October 18, 1851.
    Appeal from an order at chambers. Cochran and others sued Webb,in an action to recover lands, (formerly known as an action of ejectment.) The plaintiffs claimed title to the premises as the heirs-at-law of Thomas Lovett, deceased. The lands sought to be recovered cónsist of a tract in the city of New York, bounded easterly by the East river, and westerly by Mangin-street, which tract was formerly covered by the water of the East river, and was made by filling up east of Mangin-street. Thomas Lovett, as the plaintiffs alleged, owned this tract as annexed to his land lying in and west of Manginstreet, and it descended to his heirs.
    Webb put in an answer to the complaint, denying the plaintiff’s title, and setting np a'legal title in himself by and through a partition of the estate of Lovett. The suit is at issue.
    Before Cochran’s suit was put at issue, Webb filed a cross complaint against the plaintiffs in that suit, setting forth that the tract in question was a part of the lands formerly owned'by Thomas and George Lovett, that those lands were divided between George L. and the heirs of Thomas L., in which division the tract in question was intended to be allotted to the latter, but owing to a mistake were omitted to be described in the report of the commissioners in partition in their description of the nineteen lots adjoining on the west, which were allotted to those heirs. That E. Pell subsequently bought those lots and the tract in question from the special guardian of the heirs under an order of the court of chancery. That by mistake the latter tract was omitted in the deed first executed to Pell, but on discovering the error, the special guardian executed a conveyance of the tract to Pell, from whom Webb derived his title. Webb prayed in his complaint for a release of the title of the tract in question from the plaintiffs in the ejectment, and for an injunction order and for general relief. There was a demurrer to this complaint. .Webb thereupon moved for an.order, staying the ejectment suit until the decision of his cross suit.

      E. Sandford, for Webb.

      T. Romeyn, for Cochran and others.
   By the Court.

Oakley, Ch. J.

It was argued that a defendant in ejectment, cannot, .in an answer denying the plaintiff’s legal title, set up an equitable defence looking to affirmative relief. We have on consideration determined that this argument is sound, and for this reason among others, that under the code the equitable issue requires a different mode of trial from that arising on the allegations in the complaint. Issues which under the old system were called legal are triable by jury; those that were denominated equitable are to be tried by the court.

As to the application for a stay of proceedings, we think the legal title should be first tried, and if the claimant establish a legal title, we can stay the entry of judgment or the subsequent proceedings, until the equitable cross claim can be determined. We have not considered the question whether the facts set up in the cross complaint do or do not furnish a ground for relief.

Order accordingly.


author: Campbell, J.,

text:
    Kloppenberg v. Neefus.
    A plaintiff, who fails in an action of tort in which the defendant was liable to arrest, is liable- to an execution against his person, although the defendant wa9 not in fact arrested, and no order haa been made for the plaintiff’s arrest, or for an execution against his person.
    July 29, 1850.
    This was an action for a false imprisonment and malicious prosecution. At the trial, the plaintiff’s complaint was dismissed, and judgment for the defendant’s costs was afterwards entered. Subsequently, and after the return unsatisfied of an execution against property, the defendant, under the provisions of section 288 of the code, issued an execution against the person of the plaintiff, and a motion was made to set aside that execution and to discharge the defendant from arrest.

      G. Haring, for the plaintiff.

      G N. Potter, for the defendant.
   Campbell, J.,

(with the concurrence of two other Justices.)— The 288th section of the code provides that “ if the action be one in which the. defendant might have been arrested, as provided in section 179 and section 181, an execution against the person, of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an execution against his property unsatisfied in whoie or in part.” Such execution, (subdivision 3 of § 289,) “ if it be against the person of the judgment debtor, shall require the officer to arrest such debtor and commit him to the jail of the county until he shall pay the judgment or be discharged according to law.” This action was clearly one in which the defendant might have been arrested under § 179. The plaintiff was charged in the first suit with fraud, and was arrested. It was an injury to his person and his character if the charges were untruly preferred and the arrest made maliciously. The defendant in this suit was not arrested, but I cannot see what difference that makes. Section 288 provides for this execution against the person of the judgment debtor, not in actions where the defendant has been arrested, but in those where he might have been arrested. No judge’s order was requisite. The amount was fixed by the judgment, which the plaintiff was bound to pay, and for which the execution issued against his person. This is not like an arrest of the defendant at the commencement or during the progress of the suit, where it is necessary that the judge shall fix in his order the amount in which the defendant shall be held to bail. Here the rights of the parties were determined. The plaintiff had failed in his action and a judgment had been obtained against him for the costs. Sections 288 and 289 give to the defendant in this case the right to issue an execution against the person of the plaintiff, and the judgment record fixes the amount for which he shall be arrested.

This case is clearly distinguishable from that of Squire v. Flynn, 2 Code Reporter, 117. That was an action on contract, and it does not appear that there was any allegation in the complaint, or that any thing appéared in the proceedings, to distinguish the case from that of an ordinary action on a contract. The plaintiff, having obtained a judgment, caused the defendant to be arrested on execution issued against his person. On a motion to discharge the defendant from arrest, the plaintiff read in opposition affidavits charging that the defendant had fraudulently-contracted the debt. The judge very properly decided that that question was one which should first have been passed upon by a judge before the defendant was arrested. In the case before me, the complaint shows that the action was for a false imprisonment and malicious prosecution, and the affidavits on which this motion is founded on the part of the plaintiff contain averments of the same fact.

It appears to me, therefore, that where the action was fo.r damages for injury to the person, and where all the facts appear upon the face of the proceedings, even though the defendant was not arrested, the provisions of § 288 apply; and that the plaintiff, having by his defeat become the judgment debtor, was subject to arrest under an execution issued against his person, and that no order of a judge was necessary. The motion for his discharge must be denied.


author: Duer, J.

text:
    Habicht v. Pemberton, impleaded, &c.
    A member of an incorporated association cannot maintain, in his name for the benefit of the association, an action on a note, given to or held by the association, without showing by his complaint the articles or other instrument which gives him such right or authority.
    The mere fact that the society is unincorporated, and its members numerous, will not warrant such a suit.
    Nor will a statement that the plaintiff is especially authorized to bring the suit on behalf of the society.
    The general agent of such a society may bring the action.
    April, 1851.
    This was a demurrer to a complaint upon a promissory nóte. The plaintiff sued “ for the benefit of The National Loan Fund Life Assurance Society,” and averred in the complaint that he was specially authorized to bring the suit for and on behalf of the society. Some other matters are stated in the decision, which had the concurrence of three justices.

      M. Q. Harrington, for the defendant'.

      H. J. Billon, for the plaintiff.
   Duer, J.

Although I had considerable doubts upon the hearing, yet I am satisfied, upon reflection, that the demurrer to the complaint must be allowed.

To enable a plaintiff to bring a suit in his own right, and’ on behalf of others having a common interest, it is not sufficient to allege that the other parties are so numerous that it would be impracticable to bring them all before the court, but the nature of their common interest must appear to be such as would entitle them, were they all before the court, to maintain the action in their own right, or in their own names.

The promissory note upon which the suit is founded is stated to have been given for account of the National Loan Fund Life Assurance Society, and the complaint avers that this society is not incorporated; but it by no means follows that its individual members have therefore a right to maintain an action in their own names, and for their own benefit, upon every security given to the society, or to third persons for account of the society. Their right to do so must depend upon the nature of the association, the terms and conditions of the agreement by which its members are united. Although the society is not incorporated, its members are not necessarily either partners or joint owners. They may have only an equitable, and that only an eventual and contingent interest, in the property and funds of the society, and to permit them to appropriate these to their own immediate use, by a recovery in their own names, or by one on behalf of others, might be to aid them in deceiving the public, and defrauding creditors. The society in question may be, and not improbably is, a joint stoclc company, organized as such under a general or special act of Parliament, and if so, it is very doubtful whether it would not be treated as a corporation in our own courts, and still more so, whether the right to institute a suit on behalf of the society would not be limited to those to whom it may be exclusively given by the terms of the articles of agreement, or act of Parliament, under which the society is organized. At any rate, these observations show not only the propriety, but necessity, of requiring that the contract or agreement by which the members are fqrmed into and united as a society, shall be set forth in the complaint, as the only means of enabling the court to determine whether they have a legal title to maintain the suit. It is true, the complaint avers that the plaintiff is specially authorized to bring the suit for and on behalf of the society; but whether he has such an authority as can enable him to bring the suit in his own name, is a question of law, which can only be determined when the nature and terms of his authority shall be set forth.

As the complaint is framed, I cannot say that he has any right to maintain the action. I cannot say that he and the other members of the society are the lawful holders or owners of the note in suit. Indeed, the complaint itself somewhat inconsistently avers that the society itself is such lawful holder and owner, thus treating it as having an independent organized existence, and not averring that its name is the name and style of a partnership.

I add that I incline very strongly to the opinion that § 119 of the code ought to be construed as merely re-enacting the rules that otherwise might have been held >to be abolished, which, previously to the adoption of the code, prevailed in courts of equity, and consequently that it is to suits equitable in their nature that the provisions in the section should still be exclusively applied. If so, the present case is plainly not within the purview of the section; but it is not upon this ground that I am to be understood as placing my decision.

The defendant is entitled to judgment upon the demurrer with costs; but the plaintiff has the usual liberty to amend upon payment of costs, and is allowed twenty days for that purpose. Instead of amending, the counsel may probably deem .it expedient to advise a new suit in the name of the general agent of the society, by whom, according to the interpretation that this court has given to the code, the action may certainly be sustained.


author: Mason, J.,

text:
    Miln v. Vose and others.
    It is no objection to a motion to strike out an answer as sham and insufficient, that the plaintiff has obtained an order for time to reply.
    An answer that is sworn to positively cannot be stricken out as sham.
    Neither will it be stricken out as insufficient, unless it be so utterly frivolous that the plaintiff ought not to be put to his demurrer.
    October 25, 1851.
    This was a motion to strike' out the answer of the defendants, as a sham and insufficient answer, and for judgment in favor of the plaintiff, founded on the pleadings, and an affidavit by the plaintiff, that he had no previous knowledge of the defence set up in the answer, and that he was informed and believed that the alleged facts set up as a defence are not true.
    The plaintiff is an indorsee of a promissory note made by the defendants, and the complaint is in the usual form. The defence set up in' the answer is, that the note was given to one Angier in payment of goods sold by him to them by sample and shipped to California; that when the goods arrived at California, they were found not to correspond in quality with the sample, and that the defendants sustained damages by reason of such want of correspondence, to an amount stated in the answer, which amount they claim to have deducted from the sum due on the note. The answer was verified by the defendants.

      Jas. W. White, for the plaintiff.

      H. H. Stuart, for the defendants.
   Mason, J.,

(with the concurrence of all the Justices.) — A preliminary objection was made by the defendants’ counsel, viz., that the plaintiff had obtained time to reply, and that it was too late therefore to move to strike out the answer. It has been held by this court, that a party wbo had replied to an answer could not move to strike out any part of it as irrelevant or redundant. (Corlies v. Delaplaine, 2 Sand. S. C. R. 680.) The 43d rule of the supreme court requires such a motion to be noticed before demurring or answering the pleading; and within twenty days from the service thereof. But a motion to strike out an answer altogether is different. I see no objection to its being made at any time before trial. If the answer is false or frivolous, the time of the court and jury ought not to be taken up in hearing it.

The answer in this case cannot be struck out, as sham, because itis sworn to. (Mier v. Cartledge, 4 How. Pr. R. 115; Maury v. Van Arnum, 1 Hill, 370.) Neither can it be stricken out as insufficient. The proper course is for the plaintiff to demur, unless it is so utterly frivolous that he ought not to be put to his demurrer. (White v. Kidd, 4 How. Pr. R. 68.) I do not think that this answer is of such a character, and for these reasons the motion should be denied.