author: By the Court.—Jones, J.

text:
    WILLIAM E. HOY, Survivor, &c., Plaintiff and Appellant, v. BLANTON DUNCAN, Defendant and Respondent.
    Abbest.—Principles which govern the decision of motions to vacate order.
    1. Constitutive facts. Where the facts on which the order issued constitute the cause of action, the principles to be applied in
    ■ disposing of a motion to vacate are different from those governing a case of
    2. Exto'insia facts, when the order is granted on facts which are extrinsic to those constituting the cause of action.
    A. Principles, Difference in.

    1. In the first class of cases an order of arrest will not be vacated on motion, unless on conceded facts the law is against the plaintiff, or the proof is of such a nature as, if it were adduced on the trial, the court would be obliged to either nonsuit, or direct a verdict for defendant.
    2. In the second class the court will, on the motion, pass on the disputed facts and make up its determination on those principles which appertain to the decision of questions of fact by a jury, or referee, or the court.
    3. It is necessary, on all motions to vacate orders of arrest, to first determine to which class the case belongs.
    4. Complaint, Construction of, on motion to vacate.

    1. Where a complaint can be regarded either as being in assumpsit for goods sold and delivered, or an action on the case for deceit arising out of fraud in procuring credit for the price of the goods, or an action on the case for deceit in falsely representing the credit of a third party, it will, on a motion to vacate an order of arrest, be taken to be in assumpsit.
    5. Above principles applied to a peculiar complaint.

    6. Exoneration of bail. In a case falling within the second class an exoneration of bail follows from the vacation of the order of arrest.

      Before Monell, Jones, and Spencer, JJ.

      Decided December 31, 1871.
    This is an appeal from an order vacating an order of arrest and exonerating the bail.
    The complaint (which was served after the order of arrest was granted) and the answer thereto were as follows:
    Y. Y. Superior Court.
    William E. Hoy, Survivor of George D. Fowle and Hugh D. Bice, composing the firm of Fowle & Co., Plaintiff, against Blanton Duncan, Defendant. ► Complaint.
    The above-named plaintiff complains of the above-named defendant, and states,
    I. That the plaintiff was, prior to and during the. years 1866 and 1867, a copartner in the above-named firm of Fowle & Co., of the city of Yew York, which firm was composed of this plaintiff and the said George D. Fowle and Hugh Rice, both since deceased.
    II. That the said firm carried on business in said city as dealers in hardware and railroad supplies.
    III. That at various times in the years 1866 and 1867, and prior to July 1, 1867, the said firm of Fowle & Co., at the city of Yew York, sold and delivered to the defendant, at his request, goods, wares, and merchandises, of various amounts, prices, and values, and at various credits, which expired before July 1, 1867, and also advanced to the defendant, and paid, laid out and expended for him and for his use, and at his request, divers large sums of money, which prices, values and sums of money amounted in the whole to thirty-two thousand two hundred and sixty-nine dollars and seventy-six cents, of which there has been paid certain sums, leaving á balance undue and paid thergon of nine thousand and fifteen dollars and forty-one cents.
    IV. That the said firm of Fowle & Co., at various times m the years 1866 and 1867, and prior to July 1, 1867, at the request of the said defendant, at the city of New York, sold to him, and delivered to the firm of Budd & Sharp, for his use and benefit, goods, wares, and merchandise of various amounts, prices and values, and at various credits which expired before July 1, 1867 ; and also, at the defendant’s request, advanced to the said firm of Budd & Sharp, and paid, laid out and expended for them, at his request and for his use, divers large sums of money, which prices, values and sums of money amounted to twenty thousand seven hundred and three dollars and twenty-one cents, of which there has been paid the sum of thirteen thousand eight hundred and seventy-five dollars and twenty-five cents, leaving a balance due and unpaid amounting to six thousand eight hundred and twenty-seven dollars and ninety-six cents.
    V. That the said firm of Fowle & Co., at various times in the years 1866 and 1867, and prior to July 1, 1867, at the request of the said defendant, at the city of New York, sold to him and delivered to the Hicks Steam Engine Company of Delaware, for his use and benefit, goods, wares and merchandise of various amounts, prices and values, and at various credits which expired before July 1, 1867; and also, at the defendant’s request, advanced to the said Hicks Steam Engine Company of Delaware, and paid, laid out and expended for the said company, at his request and for his use, divers large sums of money, which prices, values and sums of money amounted to over seven thousand dollars, of which there is now due and unpaid the sum of one hundred and seventy-nine dollars and ten cents.
    VI. That before the said time, when the said goods, wares and merchandise were so sold and delivered, and the said moneys paid, laid out and expended as aforesaid, and in the month of November, 1866, at the city of New York, he, the said defendant, applied to this plaintiff’s said firm of Fowle & Co., and stated to them that he was the president of the Hicks Steam Engine Company of Delaware, and that he desired to purchase machinery and other hardware supplies of the said firm, and to open with the firm a general merchandise and cash account, and then and there falsely, fraudulently and deceitfully, and with intent to defraud this plaintiff’s said firm and procure credit, represented himself to said-firm to be not only solvent but wealthy, and falsely stated that he was worth over two hundred thousand dollars over and above all his obligations ; that relying wholly upon such representations, and believing the same to be true, the said plaintiff’s said firm opened an account with the said defendant and sold to him and to and for his use, benefit and account, as above mentioned, the said goods, wares and merchandise, and also paid, laid out and expended for him and to and for his use, benefit and account the said sums of money hereinbefore in the third, fourth and fifth sections of this complaint stated ; that thereafter, and on July 1, 1867, the plaintiff’ s said firm and said defendant accounted together, and on a statement of their account the said defendant was, and was found to be indebted to said firm by reason of the matters aforesaid in the sum of sixteen thousand and twenty-two dollars and forty-seven cents, for which said firm held the promissory' notes and written obligations of said defendant, no part of which said indebtedness, nor of said notes or obligations have been paid, although payment has been often demanded ; and the said plaintiff says that in truth and in fact the said defendant, at the time of such representations by him, was not solvent nor wealthy, nor was he worth over two hundred thousand dollars over and above all Ms obligations,„bnt that, on the contrary, he was utterly insolvent.
    VII. That at the several times when the said goods, wares and merchandise were sold and delivered, and at the time when the 'Said moneys were so paid, laid out and expended as aforesaid, he, the said defendant, was the president of the said Hicks Steam Engine Company of Delaware; that the said defendant being so indebted to the said firm of Fowle & Co., as hereinbefore in the third, fourth, fifth and sixth sections of this complaint stated, and being liable to the said firm for such indebtedness and upon said promissory notes or other obligations given said firm by him therefor on or about the 1st July, 1867, at the city of Hew York, and at the time of the accounting aforesaid, falsely, fraudulently and deceitfully, and with intent to defraud this plaintiff’ s said firm, stated and represented to this plaintiff that he, the said defendant, although then unable to meet or pay the said indebtedness and promissory notes and other obligations then held by said firm of Fowler & Co., was nevertheless entirely solvent and would ultimately be able to pay the samp; and did then and there also falsely, fraudulently and deceitfully and with intent to defraud this plaintiff’s said firm, represent to this plaintiff that the said Hicks Steam Engine Company of Delaware was perfectly good and doing well, and that its notes would be paid at maturity; and then and there proposed to this plaintiff that his said firm of Fowle & Co. should take and accept from Mm, the defendant, for the said indebtedness, the notes and acceptance of the said Hicks Steam Engine Company of Delaware, as hereinafter stated, to be signed and given by Mm as such president, and that plaintiff’s said firm should surrender to him the said promissory notes and obligations of him, the defendant; that this plaintiff and his said firm, relying wholly upon the said representations of the defendant, and believing them to be true, surrendered to the defendant the said notes and obligations of the defendant held by the said firm, and took from him the notes and acceptance of the said Hicks Steam Engine Company of Delaware, signed by the defendant as such president, copies of which are hereunto annexed ; and the plaintiff says, that in truth and in fact the said Hicks Steam Engine Company of Delaware, at the time when the said representations last mentioned were so made by the defendant, was not perfectly good or doing well or able to pay its notes at maturity, but that on the contrary, both the said defendant and said company were at the time utterly insolvent and unable to pay their notes and obligations, all which the said defendant well knew at the time, and so knowing this plaintiff charges that the said representations were made with the intention to induce said firm to surrender said notes and obligations to the defendant and to deceive and defraud the said firm of Fowle & Co., and that thereby they were induced to and did take the said notes and acceptance of the said Hicks Steam Engine Company of Delaware, and surrender to the defendant his said notes and obligations ; that when the said notes and acceptance of said company became due the same were presented at' the several places where they were payable and payment thereof demanded, which was refused ; and the plaintiff states that no part of said notes or acceptance, or the original indebtedness above mentioned has been paid, and that he is now the holder and owner of the demand therefor.
    Wherefore, the said plaintiff demands judgment against the said defendant for the sum of sixteen thousand and twenty-two dollars with interest thereon, from the 1st July, besides the costs of this action.

      COPIES OP THE NOTES AND ACCEPTANCE REPEBBBED TO IN THE POREGOING- COMPLAINT.
    $6,837&<V

      Newcastle, Del., July 30, 1867. Four months after date pay to the order of Fowle & Co., sixty-eight hundred twenty-seven X9XV dollars, value received, and charge same to account,
    Budd & Sharp.
    To Blanton Duncan, Esq., Prest.
    Hicks Steam Engine Co., Newcastle, Del.
    (Written across the face :)
    Accepted for Hicks Steam Engine Company of Delaware, Blanton Duncan, Prest.
    $134t%8-0-. Newcastle, Del., July 1st, 1867.
    Ninety days after date we promise to pay to the order of Hoy, Kennedy & Co., one hundred and thirty-four iW dollars (without defalcation,) value received. Payable at 4th National Bank, New York.
    Due October 3, 1867.
    Blanton Duncan, Prest. Hicks Steam Engine Co., of Del.
    Written across the face:
    (Indorsed:)
    Hoy, Kennedy & Co.
    19,069/Aj-. Newcastle, Del., July 1, 3867.
    Ninety days after date we promise to pay to the order of Hoy, Kennedy and Co., nine thousand and sixty-nine X4JX dollars (without defalcation), value received. Payable at 4th National Bank, New York. Due October 3, 1867'.
    Blanton Duncan, Prest. Hicks Steam Engine Co., of Del. Written across the face:
    (Indorsed :)
    Hoy, Kennedy & Co.

      Superior Court of the City of ISTew York.
    William E. Hot, Survivor of George D. Fowle and Hugh Rice, composing the Firm of Fowle & Co., against Blanton Duncan. -Answer.
    I. The defendant for a first defense, denies each and every allegation of the complaint.
    II. For a second defense to the causes of action set forth in the complaint, the defendant says : That on or about the 6th July, 1887, the copartnership of Fowle & Co. solicited, received, and accepted the notes, acceptances and obligations of the “Hicks Steam Engine Company,” a corporation created by, and under the laws of the State of Delaware, in full satisfaction, ex-tinguishment, and payment of the claims and indebtedness alleged in the complaint.
    III. For a third defense to the causes of action set forth in the complaint, the defendant says, on information and belief, that the plaintiff has already recovered judgment against the defendant, on the said claims and causes of action in the circuit court of the State of Georgia.
    IV. For a farther defense to the causes of action set forth in the complaint, the defendant says : That the said claims and causes of action arose and accrued against Budd & Sharp, and against the said “Hicks Steam Engine Company,” and not against the defendant ; and that the negotiable securities of the defendant mentioned in the complaint were given to the firm of Fowle & Co., without consideration, and by way of accommodation, and were afterwards surrendered and canceled by the said Fowle & Co., who accepted in lieu thereof the negotiable paper of the said “Hicks Steam Engine Company,” and released and discharged the defendant from all obligation for and on account of said claims and negotiable securities.

      V. For a fifth defense to the causes of action set forth in the complaint, the defendant says, on information and belief, that the plaintiff is not the real party in interest herein, nor is he an executor or administrator, or trustee of an express trust, or one authorized to sue without joining with him the person for whose benefit this action is brought; but that Hoy, Kennedy & Co., a copartnership existing and doing business in the City of Hew York, possesses and asserts the" exclusive ownership of the said claims and causes of action.
    VI. For a special defense to the third cause of action set forth in the complaint, the defendant says, that the goods, wares, and merchandise mentioned in division V. of the complaint as having been sold and delivered by Fowle & Co. to the Hicks Steam Engine Co., were by the said Hicks Steam Engine Co. returned, on or about the 1st day of February, 1867, to the said Fowle & Co., and were by said Fowle & Co. received and retained, and the contract for the sale of the said goods, wares, and merchandise by the said Fowle & Go. to the said Hicks Steam Engine Co. was, on or about the 5th day of July, 1867, abandoned and rescinded by the mutual assent of the parties.
    VII. The defendant explicitly denies each and every allegation of fraud and deception imputed to him in the complaint.
    The order of arrest was obtained on the affidavit of ' the plaintiff and Thomas R. Sharpe.
    The plaintiff swears that in Hovember, 1866, defendant falsely and fraudulently represented himself to be not only solvent, but wealthy, and falsely stated to deponent that he was worth two hundred thousand dollars over and above all his obligations. He also swears that afterwards defendant admitted to him that when he made said representations he had no property other than what was held in his wife’s name.

      Sharpe swears that he introduced defendant to the plaintiff about November, 1866 ; that about that time defendant informed him that he was a person of ample means, and was worth in various kinds of property the sum of four hundred thousand dollars, consisting principally of real estate, and that he had represented to plaintiff that he had ample means to carry on the business he proposed to engage in, which was the manufacture of Hicks steam engines and boilers.
    The defendant moved to vacate on the complaint (which had been served), his answer thereto, his own affidavit, and the affidavits of William Gr. Whitely, Joshua F. Bullitt, Thomas Budd, and Thomas F. Bayard.
    ■ Defendant, in his affidavit, swears that the only representations he made were that he was solvent, and that he would have a large amount of available means as soon as the government should restore to him his property which had been seized for confiscation ; and that he had then been pardoned and had been informed by the attorney-general of the United States and others that the effect of such pardon would be the immediate restoration of his property ; that these representations were made in good faith and were true. He further swears that immediately after making these representations he applied to the proper authorities for the restoration of his property, which was refused, and he forthwith, about November 15, 1866, communicated that fact to plaintiff s firm; that said property has since been abandoned» to defendant, and was, with other property of his at the time of the alleged representations, worth the sum of two hundred thousand dollars ; that he did not admit to plaintiff at any time that when he made the representations as to his solvency he had no property other than what was held in his wife’s name.
    Joshua F. Bullitt swears that he was counsel for defendant in an application for the restoration of his condemned property; that the district court decided that the pardon of the 13th October, 1866, did not "restore the property; that the decree of confiscation was finally reversed in November, 1869, by the circuit court, and by consent of the district attorney all claim to the property was abandoned by the United States ; that defendant was always confident of recovering possession of his property, and was advised by his counsel that the effect of the decision of the circuit court was to restore to defendant property valued at some one hundred thousand dollars, and accrued rents amounting to sixteen thousand dollars, and to invest the ownership in him at the date of his application in October, 1866, the same as it had been invested in him previous to the decree of condemnation.
    Thomas Bndd swears that he was copartner with the aforesaid Thomas R. Sharp, that he is positively certain he never heard from defendant any fraudulent representations in regard to his financial condition, but on the contrary his statements were ever characterized by an open manly frankness.
    The affidavits of Whitely and Bayard refer to another part of the case.
    The plaintiff opposed the motion on a further affidavit of his own, a further affidavit of Sharp, and the affidavits of John P. Kennedy, Robert M. Gfallaway, Joseph Marsh and John R. Davis.
    Plaintiff, in his further affidavits, swears, among other things, as follows :
    “That said Duncan did state to deponent that the United States government had confiscated some of his property, but he also stated that he was worth at least the sum of two hundred thousand dollars over and above all his debts and liabilities, and he stated to deponent that he had such large amount of available means without reference- to the property confiscated by the government.
    “ And deponent denies that the alleged representations mentioned in the second section of defendant’s affidavit of May 4, 1870, were the representations which Duncan made in respect of his property, or that they were the only representations which he made relative thereto; and deponent states that the whole effect and tenor of the defendant’s conversation at all times with deponent was that he, Duncan, was a wealthy man and entirely solvent.
    “8. Deponent denies on information and belief that the said defendant was at the time of making such representations or at any subsequent time, worth the sum of two hundred thousand dollars or any like sum, or that any property of that value has been abandoned to him by the government; deponent further says, that he has received from the register of the bankrupt court, in which said defendant was declared a bankrupt, a certified copy of his petition and schedules thereto annexed ; that the said petition was sworn to December 7th, 1868 ; and that neither said petition nor schedules contain any statement of any such property alleged to have been abandoned to the defendant; that defendant, as appeared from the said schedules was worth about twenty-two thousand dollars and the total amount of his indebtedness was about forty-six thousand dollars, of which indebtedness seventeen thousand and sixty-nine dollars was stated as indebtedness to Hoy, Kennedy & Co., and five hundred dollars as indebtedness to James Hoy, and twelve thousand dollars as indebtedness to Garnett Duncan, the father of the defendant ; that all the alleged assets of said bankrupt in his schedules consisted of promissory notes and balances of account, and that in and by said schedules he stated that he had no interest in any real estate ; and that in and by said petition and schedules the said bankrupt makes no statement whatever of any loss or .disposition of his property which will account for the loss of the property mentioned in the second paragraph of Duncan’s affidavit.”
    Sharpe, in his further affidavit, swears that during a negotiation respecting the formation of a partnership between defendant and Budd and Sharpe, defendant sent him a letter dated London, July 19, 1866, an extract from which is as follows :
    “ I am willing to co-operate with you and form such an arrangement as will make a fortune for ad concerned. Once with a pardon in my hands, I can com- . mand what I please in the way of money, and I would myself go into partnership with you and Budd and Mrs. D., taking a fourth interest, and giving you all the capital and credit you could use. That we can arrange, however, at a future day. With a pardon my interest in Louisville would be worth, say----$200,000
    Mrs. D.’s residence, Louisville................ 25,000
    Mrs. D.’s Cola, property..................... 40,000
    $40,000 H. Stock, say..-...................... 10,000
    Mrs. D.’s interest, Sharp & Budd ............ 5,000
    Bonds in Cowan’s hands..................... 12,000
    Spare cash here, say $13,500 gold............. 20,000
    Mississipi Plantation........................ 100,000
    Making a total sum of..................$412,000
    —besides three thousand five hundred dollars gold owing me by Mr. Picklin, of which I should then force a settlement.”
    That he showed this letter to the plaintiff about the time of its receipt; that he introduced defendant and plaintiff October 23,1866, immediately after defendant’s arrival from Europe.
    The affidavits of Kennedy, Galloway, Marsh, and Davis, refer to another branch of the case.

      Tracey & Olmsted, attorneys for appellants, and Charles Tracey, of counsel,—urged :
    I. The second transaction as to the substitution of the Hicks Engine Company notes being vitiated by fraud, the order is sustainable on the first fraud (Murphy v. Fernandez, 11 Bosw. 665).
    II. The three affidavits, on which the order of arrest was granted, fully conform to the practice laid down in a recent opinion in Smith v. Jones (4 Robt. 656). It appears therein : 1. That goods were sold and credits given to the defendant; that the indebtedness is unpaid, and plaintiff is owner of demand. 3. That the credits were given at defendant’s request. 3. That the defendant represented himself as “not only solvent but wealthy,” and worth'“ over two hundred thousand dollars over and above his obligations.” 4. Plaintiff’s belief and reliance upon the representations. 5. The falsity of defendant’s representations as to his own solvency, by these facts : (1.).During eight months he was unable to meet a note for five thousand five hundred and fifty-five dollars, one-fortieth part only of his pretended resources. (3.) On the settlement, July, 1867, only eight months from the time of the represenations, he is unable to pay sixteen thousand dollars, or any part of his indebtedness, but attempts to pay them with notes of the company. (3.) By fraud he induces plaintiff to accept those worthless notes of the company, thus fraudulently procuring an extension of time on his own indebtedness. (4.) He admits after^ wards that at the time of the representations as to his own condition, he had no property other than what was in his wife’s name. 6. The falsity of Duncan’s representations as to the solvency of the company in July, 1867. Duncan had himself, as president of company, confessed judgment for over ten thousand dollars in favor of company’s creditors, and for twelve thousand dollars at about the same time ; and execution had been issued thereon ; the company a few weeks afterwards was declared bankrupt; see affidavit of Sharp, vice-president of company. It distinctly appears by the whole testimony that the Budd & Sharp indebtedness was in reality credit given to the defendant himself, and at his request. 2. The defendant did represent himself as wealthy and solvent in the first transaction. This is partly admitted by defendant; but the real character of the representations and their utter falsity is fully proven by plaintiff’s and Sharp’s affidavits and defendant’s schedules in bankruptcy. It appears that defendant represented himself as owning certain parcels of real estate and other property; his owni rship, in the absence of proof of alienation, will be presumed to have continued (Flanders v. Merritt, 3 Barb. 201. The ownership of a newspaper was presumed for two years (Fry v. Bennett, 28 N. Y. 330). 3. Defendant does not deny the falsity of the representations as to the condition of' the Hicks Engine Company, at the time of the second transaction, but tries to throw the whole responsibility for the representations upon Mr. Sharp. It is fully proved that defendant knew of all the affairs of the company, that the second fraud was deliberate and intentional—a well contrived scheme. 4. That on the exchange of the notes, defendant did represent the company as good and solvent. 5. The defendant stands entirely impeached as a witness, by the facts sworn to in the affidavits of Galway, Sharp, Marsh and Davis, all disinterested witnesses.
    III. The court had no power on the motion of the defendant alone to exonerate the bail, or to discharge them from liability, until the final determination of the litigation, in which their principal must be successful (Code, § 191 ; Von Gerarde v. Lighte, 13 Abb. Pr. 103 : Bank of Geneva v. Reynolds, 12 Id. 81, note). A judgment alone is the final determination of the rights of the parties (Mott v. Union Bank of the City of New York, 38 N. Y. 18.
    •Thomas L. Snead, attorney for respondent, and Roger A. Pryor, of counsel,—urged :
    I. It is the obvious policy of the legislature to mitigate the harshness of the remedy by arrest (Code, § 186, Amendment' 1870). Such, also, is the disposition of the courts. Hence an order of arrest is not a matter of absolute right, but is subject to the discretion of the court (Knickerbocker Life Ins. Co. v. Ecclesine, 6 Abb. Pr. N. S. 9), and so far within the discretion of the judge that his decision is not appealable (National Bank of the Commonwealth v. Temple, 39 How. 432). Hence, too, the duty of the courts to resist applications for provisional remedies (Skiff v. Stewart, 39 Mow. 385).
    II. In determining this appeal, it is essential to distinguish the specific cause of action (National Bank of the Commonwealth v. Temple, 39 How. 432 ; Code of Procedure, § 179 ; Townsend v. Herricks, 39 How. 477).
    III. (1.) The summons and complaint disclose clearly the character of the action. The summons is in the form prescribed by sub. 1, section 129, of the Code. If the complaint were ambiguous, the summons would discriminate the nature of the action (Chambers v. Lewis, 10 Abb. 207). But in fact, the complaint conforms to the summons, and exhibits an action for money demand on contract. (2.) If this were an action of déceit, or for fraud, the summons would be for relief; the specific cause of complaint would be the alleged fraud, and the prayer would be for unliquidated damages. The action would belong to the class ex delicto. But here the summons is for “ money demand. on contract.” The gist of the complaint is the indebtedness of the defendant for goods, wares and merchandise, and for money paid, laid out and expended; and the recovery claimed is a snm certain alleged to be due, as a balance on an accounting. Plainly, this action is not in tort, is not to recover damages for fraud, but is assumpsit for a definite amount. (3.) While the complaint purports to set out all the facts of the case, it is evident enough that the specific ground of action is the original indebtedness of the defendants for money advanced and goods sold and delivered. The action is not founded on the securities given by the Hicks Steam Engine Company ; else the Hicks Steam Engine Company, and not Blanton Duncan, would be the defendant. The facts of the substitution of the company paper for the individual notes of the defendant are stated in anticipation, to obviate a plea of the surrender and cancellation of the defendant’s notes, by showing such surrender and cancellation to be void by reason of fraud. The object and office of this part of the complaint is to re-establish the original indebtedness of the defendant, and to leave that indebtedness unimpaired and operative as a ground of action.
    IV. This being an action upon contract to recover sixteen thousand and twenty-two dollars and forty-seven cents, alleged to be due for goods sold and delivered, and money paid, laid out and expended, the inquiry, and the only inquiry, is, was the defendant “guilty of fraud in contracting the debt or incurring the obligation ” which is the foundation df the action ? ¡N o independent or incidental fraud of the defendant— no fraud which was not present and operative in contracting the debt for which the action is brought, is available to support the order of arrest. The language of the Code is explicit to this effect (Sec. 179, subd. 4). So are the decisions. In Wallace v. Murphy, 22 How. 416, Ch. J. Robinson said: “ The statute intends that any fraud committed in making the contract shall subject the offender to arrest.” In Oatley v. Lewin, 47

      Barb. 21, the supreme court, at general term, vacated an order of arrest, on the specific objection that, although the defendant was guilty of a fraudulent representation, yet the representation had no connection with the obligation upon which the action was brought (Merchants’ Bank v. Dwight, 13 How. 366 ; Alliance Ins. Co. v. Cleveland, 14 How. 405).
    V. Conceding for argument, that defendant’s representation as to the solvency of the Hicks Company was false and fraudulent; still, as that representation was subsequent to the contracting the debt for which plaintiff sues, and was made with the view, not of incurring an obligation by the defendant, but of imposing an obligation on the Hicks Company, which obligation plaintiff repudiates, and stands on the original indebtedness of defendant—this representation being subsequent to and wholly apart from the contracting the debt in litigation, is not available to support the order of arrest.
    YI. The only fraud appropriate and effectual to support the arrest is defendant’s alleged false and fraudulent representation as to his solvency and sufficiency. 1. To constitute a false representation, available either as a cause of action or of arrest, these three circumstances must concur and characterize the representation : 1st. It must be false (Stewart v. Patten, 37 How. 68). 2nd. It must be fraudulent, i e., known to be false (Taylor v. Scoville, 54 Barb. 37 ; Marsh v. Falker, 40 N. Y. 562; Kelsey v. Oil Company, 54 Barb. 112). Indeed in some cases it is held that an actual intent to defraud must be fixed on the defendant (Claflin v. Frank, 8 Abb. 412; Birchell v. Strauss, 28 Barb. 293). By all authorities, if the defendant believe the representation to be true, be it ever so false in fact, he is not guilty of fraud nor liable to arrest (Gafney v. Burton, 12 How. 516 ; Birchell v. Strauss, supra; Claflin v. Frank, supra; Stewart v. Patten, supra;
      Marshall v. Gray, 39 How. 172). 3rd. The fraudulent-representation must be productive of damage to the plaintiff. Here, as in every other occasion of legal intervention, there must be the damnum as well as the injuria (Taylor v. Scoville ; Marsh v. Falker ; Kelsey v. Oil Company, supra). In Taylor v. Scoville the court ruled that though the defendant misrepresent his ability, either by general exaggeration or by a claim of specific property not his own, yet, if he have means sufficient to discharge the debt fraudulently contracted, he does the plaintiff no damage, and is not guilty of legal fraud. 2. Admitting defendant represented his ability as imputed, it is evident, first, that the representation was true ; second, that, if not true, defendant believed it to be true ; third, that if not as rich as he pretended, defendant had ample property to pay the debt for which this action is brought, and which he is charged to have fraudulently contracted. 1st. Plaintiff says, defendant represented himself to be worth two hundred thousand dollars. Was he not worth that amountÍ (a.) Plaintiff concedes in his complaint that of an aggregate indebtedness of sixty thousand dollars incurred by defendant he paid forty-four thousand dollars. (5.) Duncan swears that he contributed fifty thousand dollars to the Hicks Steam Engine Company, and his testimony is corroborated by the affidavits of Bayard and Whitely. (c.)' Bullitt, Thompson, and Duncan swear that defendant’s property, then under seizure by the government, was of the value, at least, of one hundred and sixteen thousand dollars. Here is an aggregate of two hundred thousand dollars available to defendant. But he had other property. His property in Louisville alone was worth one hundred and sixteen thousand dollars at the lowest figure, whereas the debt he is charged to have contracted by a fraudulent exaggeration of his sufficiency, is only sixteen thousand dollars. Under the rule propounded in Taylor v. Scoville, here is plainly no damage to the plaintiff. We say the representation, even as imputed by the plaintiff, is literally trae, and there is nothing whatever in the plaintiffs affidavits to impeach its accuracy. 2nd. Whether the representation was true-or not, defendant believed it, and that was sufficient to avoid the arrest. Defendant had means in hand to pay, and did pay plaintiff and the Hicks Company ninety-four thousand dollars. He had property locked up by the confiscation acts to the amount of one hundred and sixteen thousand dollars. Thompson and Bullitt swear defendant always believed he would recover this property, and they advised he would recover it. In point of fact, he did recover it, and by the decision of the court it was adjudicated that the property was his, notwithstanding the seizure—was his at the time of the representation. When he made the representation and contracted the debt, defendant had been pardoned by the president ; had been advised by the attorney general that the pardon operated a restoration of his property ; himself believed he would recover his property ; and in fact did recover it. That defendant did not conceal his difficulties and the embarrassments oí his property, is disclosed by plaintiff’s letter of 6th July, 1867. 3. What if -defendant did misrepresent his ability % For the truth of the representation, he referred plaintiff to “some of the first banking houses in the city.” This reference plainly shows defendant’s good faith. If plaintiff had made the inquiries suggested by defendant, he would have got the truth. He could not willfully neglect the opportunity of information put within his reach, and then pretend he had been deceived. It is a familiar rule that the means of knowledge is equivalent to knowledge. It was plaintiff’s own fault and folly to rely on defendant’s unsupported statements when he had the means of verifying or discrediting them. 4. Wherefore, it appearing that the representation of the defendant, by which the debt in suit was contracted, was true literally and to its full extent; or, if not true literally and to its full extent, was true to this extent, that the defendant owned property equivalent many times over to the debt contracted ; or, if not true at all, the defendant believed it to be true, nay, had reason so to believe ; or, if not true at all nor believed by defendant, it was plaintiff’s own wrong to rely upon it—the order of arrest was properly set aside.
    VII. It has been already shown that the alleged fraud of defendant in procuring the surrender of his notes, and the substitution of the Hicks Company securities, is irrelevant and unavailable to sustain the order of arrest. But, was defendant guilty of fraud in procuring this substitution \ The plaintiff so swears ; but, 1st. It is apparent, by the plaintiff’s own letter,. that he himself solicited the substitution of the Hicks Company securities, and that they were not imposed upon him by the fraud of the defendant. Plaintiff not only solicited the substitution, but gave a reason for the substitution which excludes any inference of fraud on the part of the defendant.. 2nd. Even if defendant was guilty of a false representation as to the solvency of the Hicks Company, the plaintiff sustained no damage; and so the representation was immaterial. The only effect of the representation—in truth it had no effect at all, since the substitution was the consequence of the plaintiffs own solicitation—the only effect, if any, of the representation was, the substitution of the Hicks Company securities for defendant’s individual notes. But, plaintiff says defendant was at that time insolvent; how then was plaintiff harmed % 3rd. It is abundantly evident that the Hicks Company was not then insolvent. In any event defendant believed it to be solvent. Sharp told him it was solvent, and defendant’s faith was so strong, that he invested fifty thousand dollars in the company. 4th. The plaintiff presents no evidence whatever of the insolvency of the Hicks Company ; bnt on the contrary, his own chief witness swore the company was not only solvent, but prosperous.
    VIII. The alleged confession of defendant, “that he had no property other than what was held in his wife’s name,” is not at all inconsistent with his statement of his circumstances. The admission rather implies that defendant was the owner of property; and as cestui que trust he might be worth two hundred thousand dollars, or a.ny other amount. And mark; this is the only evidence in the case of the untruth of defendant's representation. The statements of the-plaintiff in his rebutting affidavit are irrelevant and immaterial, because, 1st. These statements are all hearsay and pretend to give the substance of an official record in the affiant’s possession. 2nd. They purport to give the financial condition of defendant, not at the time of the representation, but more than two years afterward. 3rd. If plaintiff failed to show good ground of arrest in the first instance, he cannot repair the omission by supplementary affidavits. Defendant explicitly denies the admission ; and, in the absence of corroborative evidence, the plaintiff fails to exhibit that preponderance of proof essential to the support of an arrest (Mulrey v. Evelett, 3 Robt. 716 ; Smith v. Jones, 4 Robt. 656 ; Draper v. Beers, 17 Abb. 163).
    IX. Fraud is never presumed, but must be established by affirmative prove—“ by proof ‘ strong and direct” Nichols v. Pinner, 18 N. Y. 300). Now. in view of the whole transaction, it is perfectly apparent, that Colonel Duncan’s conduct throughout, was characterized by an unreserved and ingenuous candor. 1st. On his introduction to the plaintiff, he said, in effect, “Don’t rely on my representation, but inquire of the gentlemen I name, who are among the first bankers of the city.” 2nd. He frankly disclosed his difficulties to the plaintiff, in so far as to engage his sympathies. 3rd. On discovering the embarrassments of the Hicks Company, he promptly communicated with the plaintiff.

      X. We submit, that on the uncontradicted facts of the case, the order vacating the arrest was right and proper, and should be affirmed.
   By the Court.—Jones, J.

Under the present exceedingly liberal rule of construction of pleadings, this action, to speak in the former technical language of the law, might be regarded either as an action in assumpsit for goods sold and delivered, or an action on the case for deceit arising out of fraud in procuring credit for the price of the goods, or an action on the case for deceit in falsely representing the credit of the Hicks Company.

The principles which govern this court (Lorillard Ins. Co. v. Meshural, 7 Robt. 308), in disposing of motions to vacate orders of arrest where the facts on which the order issued are those which constitute the cause of action, are different from those which obtain, when the order is granted on facts which are extrinsic to those constituting the cause of action.

In the first class of cases, as the controverted facts • must necessarily be passed on by the jury, and as on a judgment entered on a verdict for the plaintiff, he would, as matter of course, be entitled to an execution against the body, if an' execution against the property should be returned unsatisfied, in whole or in part, the court will not on motion infringe on the province of the jury, and render a decision on the facts which may possibly affect the jury in their deliberations, and which, if they should arrive at a conclusion different from the court, would deprive the plaintiff of the benefit of the security taken on the arrest. In this case, therefore, the court will not vacate on motion, unless on conceded facts the law is against the plaintiff, or the proof is of such nature as, if it were adduced on the trial, the court would be obliged to either nonsuit or direct a verdict for the defendant.

In the other class of cases, as the disputed facts cannot be submitted to the jury, the court is necessarily called upon to pass on them on the motion, and to make up its determination on those principles which appertain to the decision of questions of fact on a trial thereof by jury, or referee or the court.

It becomes necessary then, on motions of this character, to determine to which class the action belongs. If, in arriving at the determination, any doubt arises, the leaning of the court should be in favor of personal liberty.

If then the plaintiff inserts in his complaint such allegations as to render it uncertain to which class the action belongs, and as to whether the jury will be called on to pass upon the matters authorizing an arrest, the court, on a motion to vacate an order of arrest, will construe the pleading to contain a cause of action founded solely on matters which do not authorize an arrest.

In this view the present action must, on this motion, be considered as an action in assumpsit for goods sold and delivered.

Therefore the averments of the representations on which the plaintiffs were induced to sell the goods on credit, are to be regarded as surplusage, and not issuable ; while the averments of those representations on which the plaintiff, as alleged, was induced to substitute the company in the place of the defendant as their creditor, must be deemed as inserted to avoid an anticipated defense, and not as forming any part of the cause of action.

Regarding this, then, for the purpose of this motion, as a simple action for goods sold and delivered, it devolved on the court to pass on the question as to whether there was fraud in obtaining the goods, &c., on credit or not, on the merits; and in passing on that, the principles which obtain in the above mentioned second class of cases are applicable.

The only direct proof on the subject of the representations made at the time of the opening the account, is that furnished by the parties themselves—the plaintiff on the one side and the defendant on the other.

The plaintiff first swears in effect that defendant represented that he had two hundred thousand dollars, over and above all his obligations; and then, after reading defendant’s affidavit, admits that defendant did state that some of his property was confiscated, but swears that defendant stated that he had two hundred thousand dollars of available means without reference to the confiscated property. 0

Defendant, on the other hand, swears that the only representation that he made was that he was solvent, that he would have a large amount of available means as soon the government should restore his property, that he bad been pardoned, and had been informed by the attorney-general and others that the effect of said pardon would be the immediate restoration of his property.

This first question is, which is correct in his version of the conversation ?

The affirmative rests on the plaintiff to maintain, by preponderating evidence, his allegation of fraudulent representation. Unless he derives from the other evidence, facts and circumstances appearing on the motion, more support than the defendant, he must fail on this point, for in that event the proof would be either balanced or the preponderance would be in favor of defendant.

All the affidavits (including those relating solely to the representations alleged to have been made in re-respect to the company) have been carefully scrutinized to ascertain whether anything therein contained lends more support to the plaintiff than to defendant, and the conclusion arrived at is that there is-not.

But there .are some matters -which render it more probable that the defendant is correct, and the plaintiff wrong. About three months before the representation he wrote to plaintiff’s witness a business letter from London, in which he gave a specific enumeration of what his property will consist of, as well as his estimated value of it upon a pardon being granted. This letter was shown to plaintiff. Again: Budd (Sharp’s partner) testified that in all defendant’s dealings with that firm he found defendant straightforward and manly, which evidence is corroborated by the above letter.

It is not probable that a man of such a character, should, in the short space of three months, make to a person to whom Sharpe introduced him, and with whom he knew Sharpe had business transactions, representations for the purpose of advancing the very business in reference to which said letter was written (and in reference to which it was -shown to plaintiff), other than such as were consistent with that letter; but it is probable that under such circumstances his representations would be consistent with the facts in the letter.

Again: in a conversation had with Sharpe a short time after the alleged representation, he stated to him that he told plaintiff he had ample means to carry on the business. This evidence was introduced by the plaintiff ; its effect is, while it does not impugn defendant’s version as to the rest of the conversation had with plaintiff, to justify to some extent his statement that no amount was mentioned.

It would seem that the plaintiff’s version is rather the result of his reasoning upon his recollection of the contents of the letter, and the statements of the defendant, than a statement of the substance of the conversation. His recollection of the letter was that it showed defendant to be worth over two hundred thousand dollars, if a pardon was granted, and coupling that with the statement that a pardon had been obtained, and that its effect would be an immediate restoration of the property, his mind instantly reached the conclusion that the defendant was then worth, in immediately available means, over two hundred thousand dollars.

The result thus reached was more firmly fixed in his mind than the conversation itself, and it is not surprising, that after the lapse of one year and nine months, he should give the result thus arrived atas the substance of the conversation.

The statement in his subsequent' affidavit can have, under the circumstances, but little weight attached to it.

The next question is, whether the representation testified to by defendant is substantially true.

He had at that time property to the

amount of...................... $50,000 and over

since paid into the Hicks Company.

Real estate to the amount of....... 100,000 and over

then under confiscation. ' .•

Accrued rents under confiscation, say 8,000

Other property, as shown8 by bankruptcy proceedings, valued at.... 22,000

$180,000

By the bankruptcy proceedings it appears that on December 7, 1868, the defendant, besides the indebtedness to plaintiff, was only in-

debted to his father in.......... $12,000

James Hoy, in.................... 500

But it nowhere appears that this indebtedness existed at the time of the representation.

It also appears that he had at that time his pardon, and had been advised that the effect thereof was to immediately restore his property, which advice was subsequently confirmed by the decision of the circuit court.

It is suggested that in the bankruptcy proceeding no mention is made of any real estate as belonging to the defendant.

This may be accounted for by the fact that at time of the filing of the petition in bankruptcy, the decision of the district court holding that the pardon of the president did not restore the property, was in full force and unreversed.

The facts in this case indicate pretty clearly that defendant’s financial embarrassments and inability to successfully carry on the business of the company (in which event this suit would not, in all probability, have been instituted), arose out of the refusal by the authorities to restore his property, and the adverse decision of the district court, all of which was contrary to the confident expectation and belief of the defendant, and to the legal advice given him, and, indeed, contrary to the law and his just rights.

Such refusal and adverse decision must, of necessity, have seriously interfered with his command of money, or realizing on his property.

The decision vacating the order of arrest was correct. The exoneration of the bail follows, of course, from the vacating the order of arrest, subject to be revived if the vacatur be reversed..

The order below should be affirmed, with costs.

THE END.


source: Caselaw Access Project

author: By the Court.—Spencer, J.

license: Public Domain

text:
    HUMPHREY P. THOMPSON and HENRY H. THOMPSON, Plaintiffs and Respondents, v. LEMUEL BROWN and HIRAM BENNER, Defendants and Appellants.
    There was an agreement between the parties, that the plaintiffs should purchase and sell-three hundred shares of stock on the joint account of the plaintiffs and defendants.
    Plaintiffs purchased the stock, in June, 1868, in accordance with this agreement, and with the approval of the defendants, the plaintiffs furnishing the money. It was also agreed that plaintiffs, as a firm, might sell this stock for the joint account of the parties whenever they should think best or see fit, and the certificates of the shares were deposited in plaintiffs’ safe, and there remained until May or June, 1869, when Henry H. Thompson, one of the plaintiffs, without the knowledge or consent of his partner, and co-plaintiff, or of the defendants, took this stock from the safe and sold the same for his own account at a less rate or sum than the original cost of the same, and applied the proceeds to his own personal use and account.
    This sale was not known to the plaintiff, Humphrey Thompson, nor to the defendants, for some weeks or a month after it occurred.

      Meld, that this act of one of the plaintiffs, in taking and selling the stock on his own account, and applying the proceeds thereof to his own account, was not a sale of the said stock pursuant to the agreement between plaintiffs and defendants. If considered as the personal act of that plaintiff, who did the same, it was an unlawful conversion of the property of others. If considered as the act of the plaintiffs, it was a breach of the agreement, for the defendants were entitled to the best judgment and action of the plaintiffs as a firm and of each member thereof in the sale of that stock, and they cannot be held to an account upon such a sale.
    The subsequent acts of the plaintiffs in' purchasing stock and tendering the same to the defendants, and on their refusal to accept it, selling the same on notice, &c., could not, and did not, affect the result, &c., nor heal this breach of the original agreement. Defendants held not liable for any loss that the plaintiffs sustained in the transaction.
    Before Barbour, Ch. J., and Freedman and Spencer, JJ.

      Decided December 31, 1871.
    Appeal from a judgment entered upon the verdict of a jury in favor of plaintiffs, and also from an order denying a motion for a new trial.
    This action was brought to recover five hundred and ten dollars, claimed to be due to the plaintiffs from defendants on account of an alleged agreement between the parties, that plaintiffs should purchase and sell three hundred shares of consolidated Gregory stock on the joint account of plaintiffs and defendants. Plaintiffs claim that there was a loss in the transaction to the amount of five hundred and ten dollars.
    The answer was a general denial.
    The evidence establishes the following facts :
    On June 18, 19 and 30, 1868, plaintiffs purchased two’ hundred shares of the stock at one thousand and ninety dollars, and ten days afterwards an additional one hundred shares at five hundred and twenty-two dollars. These shares were purchased on joint account, the plaintiffs furnishing the money, and were fully approved by the defendants.

      The evidence that the agreement was that plaintiffs might sell this stock at their option and as they saw fit, without consulting the defendants, is slightly conflicting, but the jury having passed upon this question in favor of plaintiffs views, it maybe considered settled that way for the purposes of a review.
    In May or June, 1869, Henry H. Thompson, one of the plaintiffs, without the knowledge of his partner and co-plaintiff, or of the defendants, took this stock from the safe of the plaintiffs and sold the same for Ms' own account for the sum of seven hundred and ninety-seven dollars and forty-one cents. This action of Henry H. Thompson became known to all the parties some time afterwards. When the plaintiff, Humphrey P. Thompson, and the defendants, had about settled matters of difference between them, and defendants were to take the stock in question from plaintiffs, this discovery broke up all the negotiations and the proposed settlement between the parties. Afterwards, and in July, 1869, the plaintiff, Humphrey P. Thompson, bought one hundred and fifty shares of this stock for the purpose of tendering the same to defendants as. their half of the shares of stock purchased. They paid for these one hundred and fifty shares, about two hundred and ninety-six dollars, and tendered them to the defendants, demanding payment at the same time of the cost of one-half of the original three hundred shares purchased on joint account, with interest. Defendants refused the payrhent and the stock. Plaintiffs then gave notice to defendants that they would sell one hundred and fifty shares of this stock on August 9, 1869, being the same tendered, &c., and hold them for any deficit or loss, &c., and plaintiffs did sell the same for two hundred and ninety-six dollars, being the same amount previously paid for the shares. The charge of the judge shows that the sale of the stock by the plaintiff, Henry Thompson, was the sale, (that determined the amount of recovery by plaintiffs) for the consideration of the jury, and that the last sale was not a matter for their consideration.
    Defendant’s counsel requested the court to direct a verdict for the defendants, ■ also to charge the jury, “that if the evidence satisfied the jury that Henry Thompson sold the stock, purchased on joint account with the defendants, on his own individual account, and not on joint account with defendants, the plaintiffs are not entitled to recover.” The judge refused both of these requests, and exception was taken, and after-wards the judge charged the jury, among other things, that, “ if the agreement entered into was that the plaintiffs should purchase the stock and deal with it by selling at discretion at such periods as they thought it would be most advantageous for the parties, your verdict will be for the plaintiffs for four hundred and ninety-eight dollars and twenty-seven cents.”
    As the above amount is the loss on one half of the stock, based upon the cost of purchase, and the amount obtained by Henry Thompson, the judge considered, no doubt, the latter sale as a sale by the plaintiffs under the agreement.

      Hawkins & Cothren, for plaintiffs.
    Beebe, Donohue & Cooke, for defendants.
   By the Court.—Spencer, J.

The only question before this court, arises upon the refusal of this court to direct a verdict for the defendants, and to charge as requested. Assuming the agreement between the parties to have been as claimed by plaintiffs, that plaintiffs should hold and sell the stock at discretion, I think plaintiffs could not recover in this action, because they did not fulfill their agreement. The action of one of the plaintiffs, Henry Thompson, in taking that stock from the safe of the plaintiffs, and selling the same, and applying the proceeds thereof to his own. individual account, without, the consent or knowledge of his partner and co-plaintiff, was not a sale pursuant to this agreement. If considered as the personal act of him who did it, it was an unlawful conversion of the property of others. If considered as the acts of plaintiffs, it was a breach of the agreement between them and the defendants to sell on joint account. The plaintiffs, by their subsequent action in the premises, ignored this sale as their partnership act under the agreement, "and sought to replace this stock that had been clandestinely taken and sold on the personal account of one of them. '

The defendants were entitled, under the agreement, to the judgment and action of the firm and each member thereof in the sale of that stock, and cannot be held to an account upon such a sale as made by Henry Thompson. The exceptions to the refusal of the judge to direct a verdict for the defendants, and to charge the jury as requested, in regard to the effect of this sale by Henry Thompson, were well taken, and there was error in those refusals.

I think there is nothing of merit to be considered in the facts attending the subsequent purchase and sale of one hundred and fifty shares of this kind of stock by the plaintiffs, for that display of .broker’s craft could not, and did not, change the situation nor effect the result sought for by plaintiffs.

The judgment and order denying a new trial must be reversed, and a new trial ordered, with costs to abide the event.


author: By the Court.—Monell, J.

text:
    BENJAMIN SHUMAN, Plaintiff and Appellant, v. JOSEPH L. STRAUSS, Defendant and Respondent.
    Upon a motion for leave to issue an execution on a judgment, after a lapse of five years from its entry, the defendant claimed, that by his discharge in bankruptcy since the entry of judgment, the same had been extinguished thereby. Plaintiff claims that the debt ■which was the basis of the judgment, was created by the fraud of the bankrupt, and the discharge does not operate against it, as such a debt is excepted by sections 33 and 84. The summons was for a money demand on contract, without any complaint. There was no answer, and judgment entered by .default. The complaint filed in the judgment roll set up the fraud.

      Held, that the plaintiff, by Ms summons, having waived the fraud and elected to bring the action in assumpsit, he is concluded by Ms election, and cannot now, by his complaint or proof aliunde, show that there was fraud on the part of the defendant in the original contraction of the debt.
    Before Monell and Spencer, JJ.

      Decided December 31, 1871.
    Appeal from an order denying a motion for leave to issue an execution.
    The action in which the judgment was obtained, was to recover the amount of three promissory notes, made by the plaintiff, for the accommodation of the defendant, on which the plaintiff had been sued, and which he was obliged to pay, with costs of suit. The complaint alleged, that the notes were obtained by the defendant by means of false and fraudulent representations. The relief demanded was a judgment for. the amount of the three notes, interest, and costs of suit.

      The summons was for a money demand on contract

    The defendant did not answer, and judgment was entered by default, in September, 1864.
    The motion for leave to issue execution was made in August, 1871.
    In opposition to the motion, the defendant put in evidence a discharge in bankruptcy, granted to him in the district court of the United States, for the southern district of Hew York, in September, 1868.
    The motion for leave was denied, and the plaintiff appealed.

      Mr. J. P. Joachimsen, for appellant.

      Messrs. Brown, Estes and Barnard, for respondent.
   By the Court.—Monell, J.

The provision of the bankrupt act, which, it is claimed, affects the question in this case, is, that no debt created by the fraud of the bankrupt, shall be discharged under the act (Section 33, Bankrupt act).

The action which the plaintiff brought was upon a simple contract debt. But from certain allegations in the complaint, it might have been an action to recover damages for a false and fraudulent representation ; in other words, for a fraud in contracting the debt.

The plaintiff, however, for the purposes of a cause of action, at least, waived the tort and sued for the contract debt; and the judgment was for money paid to the use of the defendant, and not for damages for • the fraud.

The action, therefore, which the plaintiff brought, did not admit of the allegations of fraud, as the fraud did not form any part of the only cause of action which he sought to enforce, and could be used appropriately, only as a means of procuring the provisional remedy of arrest (Lee v. Elias, 3 Sandf. 736; Atocha v. Garcia, 15 Abb. Pr. 303).

The question must, therefore, be examined, as if no allegation of fraud was contained in the complaint, and as if the cause of action was a simple money demand on contract.

Looking at the complaint in that light, it is clear that the case is not within the exception contained, in section 33 of the bankrupt act, unless we can go behind the judgment.

The question, then, is, can the plaintiff go behind his judgment and show that the simple, contract debt for which he sued, was, in fact, contracted in fraud %

As a general rule, a judgment merges the cause of action, and resort cannot be had afterwards to it for any purpose., There is also another general rule, that when a creditor has two remedies, he may waive one and pursue the other. Thus, for a debt fraudulently contracted, he may sue for the fraud, or he may sue for the debt. He cannot do both ; although, in a suit for the fraud, the damages would be, in part, at least, the debt. Whichever of the remedies he elects to pursue, is final, and he cannot afterwards pursue the other. So that if he waives the tort, as he may do, and sues for the debt, he is forever estopped from afterwards suing for the tort (Morris v. Reckford, 18 N. Y. 552).

The judgment, in this case, was recovered prior to the discharge in bankruptcy. It was, therefore, the only debt existing against the bankrupt at the time he petitioned, and the plaintiff was concluded by it. He had elected to waive the tort, and his election was final. It has been decided in two cases (Goodrich v. Dunbar, 17 Barb. 644, and McButt v. Hirsch, 4 Abb. Pr. 441), that the recovery of a judgment upon a debt fraudulently contracted, merges the original cause of action; and in an action upon such judgment the defendant, is not liable to arrest on the ground of fraud in the original debt.

These cases establish, that the judgment is the only debt, and that the original cause of action cannot be afterwards resorted to for any purpose.

There are, however, cases where it has been held, that a judgment, although a technical, one was not so complete a merger, that the courts, cannot look behind it to see upon what it is founded.

In Clark. Rowling, 3 N. Y. 216, pending a suit upon promissory notes, the defendant petitioned for a discharge in bankruptcy. Judgment was obtained before the discharge was granted. In an action upon the judgment in the nature of a creditor’s bill, the defendant set up his discharge in bar. But the plaintiff alleged, that as the original debt was merged in the judgment, the judgment was the only debt upon which the discharge could operate; and as that was created after the petition in bankruptcy it was not discharged. The court, however, went behind the judgment," and held, that the original cause of action was the debt, and gave effect to the discharge. In that case, however, the defendant in the judgment was allowed to go behind it, and the doctrines of merger and estoppel did not apply. If he could not have shown that the debt existed when he petitioned in bankruptcy, his discharge as to it would have been a nullity, and the whole object of the law defeated.

nevertheless, the language of section 33 of the bankruptcy act, is calculated to raise a doubt whether a creditor may not go behind his judgment. ■ The act declares “that no debt created by fraud,” shall be discharged, which is, perhaps, broad enough to let in evidence of the fraud at any time. I confess I am far ■from clear that he may not, in an action upon the judgment, show, to avoid the discharge, that the original debt was contracted in fraud. I rest my decision, therefore, upon the doctrine of merger and estoppel. The whole cause of action was merged in the judgment, and the plaintiff having elected to bring assumpsit, waived the tort, and is concluded by his election. He cannot now go back and show the original contraction of the debt.

The order should be affirmed, with costs.


text:
    GEORGE W. METCALF, Plaintiff and Respondent, v. JOSIAH H. BAKER, Defendant and Appellant.
    It is the duty of a referee to be always present during the examination of the witnesses, as it also is, at all other times, during the progress of the trial of a cause "referred to him to hear, try and determine.
    But when a referee absents himself without objection, and with the tacit consent of the parties, it is too late to object afterwards, on a motion to set aside the report of the referee for this cause.
    If the objection had been taken at the time, and had been overruled or disregarded by the referee, the court would be compelled to set aside his report. •
    But if no objection is made at the time, and the parties go on with the examination of the witnessess and with the trial, and finally submit the case and all the evidence to the referee for his decision, they must be deemed to have waived the right to object after-wards, for it must be presumed that no referee would allow a reference trial to proceed during his absence against The objection of any party to the action.
    Before Monell and Spencer, JJ.

      Decided December 31, 1871.
    Appeal from a judgment entered upon the report of a referee, and also from an order denying a motion to set aside the report for irregularity.
    The action was- to recover damages for personal injury, and was referred to a referee, to “hear and determine the same, and that he report to this court with all convenient speed.”
    The complaint alleged that the injury was caused by the negligence of defendant’s servant, in driving the defendant’s horse and wagon into the carriage of the plaintiff.
    A motion to dismiss the complaint on the several grounds : 1. Of plaintiff’s concurring negligence. 2. That the action should have been against the defendant’s servant; and, 3. That the plaintiff’s servant was liable; was denied.
    The referee found as a fact, that the defendant’s servant, while engaged in the defendant’s business, did violently and negligently drive the defendant’s wagon against the carriage in which the plaintiff was seated, with great force and violence, and throwing the plaintiff from his carriage upon the pavements with great forcé and violence, inflicting upon him great bodily injury. And the referee awarded the plaintiff damages, in the sum of sixteen hundred dollars.
    The defendant excepted.
    On the motion to set aside the report of the referee, it was alleged, and substantially admitted, that the evidence, or the major part of it, was iaTcen in the absence of the referee, he being present merely to swear the witnesses. But all the evidence was submitted to ■ him for his decision.

      Mr. Henry C. Denison and Mr. A. J. Reavey, for appellant.

      Brown & Estes, for respondent.
   By the Court.—Monell, J.

There is no foundation for the objection, that the judgment was irregularly entered, without the fiat of a judge of the court. The reference was to hear and determine all the issues, and the referee took the place of the court. Upon filing his decision, it was the duty of the clerk to enter the judgment (Code, § 272 ; Griffing v. State, 5 How. Pr. 105).

There was no proof in the case that the act of the defendant’s driver was willful. The finding of the referee that the defendant’s wagon was driven violently against the plaintiff’s carriage, if it could be understood to mean a willful driving, would be unsupported by the evidence. But the finding was merely, that the driving was with force, and the question whether a master is liable for the wilful act of his servant does not arise.

There was no proof of any concurring negligence of the plaintiff. Dr. Belknap was driving the vehicle from which the plaintiff was thrown; and whatever negligence might have been imputed to him, none could be to the plaintiff. Therefore, even though there was concurring negligence of the defendant’s driver and Dr. Belknap, the action could be maintained against the defendant alone (Colegrove v. N. Y. and H. R. R. Co., 6 Duer, 382; S. C., 20 N. Y. 492).

Upon the whole case, I think the referee was authorized to find that the plaintiff’s injury was caused by the negligence of the defendant’s driver; and with propriety he might have further found, that the driving was reckless, and in utter disregard of the safety of those who were upon the highway at the time. The thoroughfare was crowded with vehicles returning from the park, and the. defendant’s driver, regardless of their safety, recklessly attempting to cross the avenue at a rapid rate of speed, ran into and upset the carriage in which the plaintiff was riding.

The damages were not excessive and only a fair remuneration for the pain and suffering of, and loss to the plaintiff. I cannot find that exemplary damages were allowed. Had there been, it would have been error. But the damages were discretionary, and the amount shows no abuse of the discretionary power.

The judgment should be affirmed.

The motion to set aside the report of the referee was properly denied.

The ground of the motion was, that the referee was not present when the witnesses were examined.

As an abstract question, I am of opinion, that it is the duty of a referee to be always present during the examination of the witnesses, as it is, at all other times, during the progress of the trial. But when a referee absents himself without objection, and with the tacit consent of the parties, it is too late to afterwards object. Should the objection be taken at the time, and be overruled or disregarded by the referee, the court would be obliged to set aside his report. But if no objection is made at the time, and the parties go on with the examination of the witnesses, and finally submit all the evidence to the referee for his decision, they must be deemed to have waived the right to afterwards object. For it is but fair to presume that no referee would allow a reference to proceed in his absence against the objection of the party.

In this case it does not appear that any objection was made, or any notice taken at the trial of the referee’ s absence. It cannot be done now.

The order should be affirmed, with costs.


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    DAVID R. DE WOLF, Plaintiff, v. EBENEZER V. CRANDALL, GEORGE UMPHREY, and HENRY V. CRANDALL, Defendants.
    An action was brought upon a contract, to recover the first and second installments falling due thereon. The defendants, for a defense, set up non-performance on the part of plaintiff, and also a counter-claim for an alleged breach of the same contract by plaintiff. On the trial of these issues the plaintiff obtained a verdict for a sum much less than the said installments.
    In a subsequent action between the same parties, brought to recover subsequent installments falling due on same contract,—Held, that the judgment roll in the former action was sufficient proof of the cause of action, and that the former action adjudicated all matters relating to any breach or breaches of said contract on the part of the plaintiff,- or to any counter-claim of defendants, for damages caused by said breaches, and therefore all testimony offered by the defendants relating to said breaches or counter-claim for the same, was properly excluded.
    The former action was a bar to any recovery by the defendant for breaches of said contract, alleged and proved, or offered to be proved, to have been committed at other times than those alleged and proved in the former action by the defendants.
    Before Monell and Spencer, JJ.

      Decided December 31, 1871.
    Exceptions ordered to be heard at the general term in the first instance. The facts in the case appear in the opinion of the court.

      Erastus Cooke, for plaintiff.

      Benedict & Benedict, for defendants.
   By the Court.—Spencer, J.

The action was brought to recover four installments of seven hundred and fifty dollars each, on a contract of March 3, 1867, set out in hone verba in the complaint.

The answer denied the execution of the contract set out, and alleged as a bar the non-performance on the part of the plaintiff.

The- answer also alleged by way of counter-claim:

1. That the plaintiff, in violation of the agreement, carried on business in New York city, of the same nature and kind as that which, by the agreement, he sold to the defendants, and which he agreed not to carry on in said city.
2. That he had done the business of vessels of which he was part owner, and other vessels which he could control when in this port.
3. That he had bought and sold merchandise for and to the customers of the late firm of, D. B. De Wolf & Co., and other persons.
4. That he had interfered with, hindered and prevented the customers of the late firm and other persons from doing business with the defendants.
5. That he had interfered, injured and destroyed the good will of the business so agreed to be sold and delivered to the defendants, to the defendants’ damage of two thousand dollars over and above the plaintiff ’ s claim.

There was a former action in this court to recover the first and second installments upon the same conract: In that action the defendants did not take issue pon the execution of the agreement alleged, but alleged . iolations on the part of the plaintiff, and set up a counter-claim for breaches committed by him before the commencement of that action.

On the trial of this action before Mr. Justice Freedman and a jury, the plaintiff proved his case by putting in evidence the judgment roll, in a previous action between the same parties, wherein the plaintiff recovered a prior installment under the same contract, which, was set out in full in the complaint, to which,the defendants had interposed the same identical defense and counter-claim, the recovery in said action showing that the defendants were allowed something by way of counter-claim.

The court held that the former action adjudicated the several matters put in issue in this suit, excluded the defense and directed a verdict in favor of the plaintiff for the amount of the several installments claimed, with interest.

The defendants excepted to these rulings of the court, and the exceptions were directed to be heard in the first instance at general term.

The record of the judgment in a former action to recover the first installments that became due and payable on the contract set forth in the complaint in this action was sufficient proof of the cause of action on part of the plaintiff.

In that former action the defendant set up and proved breaches of the contract of the same character as those proved and offered to be proved in this action. The only difference between them was in regard to the' time at which they occurred ; the breaches alleged and proved or attempted to be proved being at a later date than those claimed and established in the first action.

I hold that the former action is a bar to any recovery by the defendant for breaches alleged to have been committed at a subsequent date, of a like character as those alleged or established in the first action. A party cannot sever damages of a like character and bring different actions for different portions.

The exceptions should be overruled and the plaintiff have judgment on his verdict.


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    FREDERICK R. SCHETTLER, Plaintiff and Appellant, v. LAWRENCE S. SMITH, Defendant and Respondent
    One tenant in common received all the rents and profits of the estate, and accounted to his co-tenant for her share thereof, and on one occasion had accounted and credited, and paid to his co-tenant, as her share, a larger amount than she was entitled to. Such an account and payment being voluntary and without any mistake of fact, on the part of the person making the same, does not operate as an account stated and estop the latter from going behind it, except for fraud or mistake, nor do the facts justify the theory that such an overpayment constitutes a debt between the tenants, that must be alleged and set up in an action brought for an accounting, as a counterclaim, on the part of the tenant making the same. In the final accounting between the tenants, the tenant receiving the rents should be allowed for all payments made to his co-tenant as a part of the common fund, and although at a stated time he had accounted for and paid more than he was liable to "pay, or in excess of the precise sum due, it must be considered as a payment on account, and should be pleaded and proved as such.
    Before Monell and Spencer, JJ.

      Decided December 31, 1871.
    Appeal from a judgment entered upon the report of a referee.
    The parties were the owners, as tenants in common, of certain real estate in this city.
    The complaint alleged that the defendant had received the rents and profits of the estate and had not accounted to the defendant for any portion of it. The answer averred that the defendant had over-paid the plaintiff’s testator and devisor, on account of such rents.

      The action was tried by a referee, who found, amongst .others, the following facts :
    That on February 22, 1868, Julia Smith died without issue and intestate.
    That on February 6,1867, Cornelia H. Smith, having previously married the plaintiff, died, leaving a last will, whereby she devised all her estate to the plaintiff, and appointed Timothy 0. Howe executor thereof.
    That on January 27, 1869, the will was proved, and Howe having failed to qualify as executor, letters of administration, with the will annexed, were duly issued to the plaintiff.
    That the defendant received the rents of the premises since the month of May, 1862,' to August 1, 1869, amounting in the whole to seven thousand five hundred dollars, and paid on account of taxes, repairs, and ■ other expenses of the premises during the same period, the sum of three thousand one hundred and eighty dollars and thirty-five' cents, leaving the net rents amounting to four thousand three hundred and nineteen dollars and sixty-five cents, of which the. plaintiff would have been entitled to one-third as the devisee and representative of Cornelia H. Smith; but the defendant had in the lifetime of the said Cornelia H. Smith, to wit, in the year 1866, largely over-paid her the portion of rents to which she was entitled, whereby Cornelia H. Smith became indebted to the defendant; and that there is nothing due on account thereof by the •defendant to the plaintiff, either individually or as administrator of Cornelia H. Smith.
    That the defendant, on or about January 1, 1866,. rendered an account of moneys received and paid for her to Mrs. Schettler, wife of the plaintiff, in which,. among other credits, he credited her with two thousand and seventy-five dollars, as her share of rents of the property in the complaint mentioned up to May 1,1865, and showing a balance of three thousand two hundred and ninety-nine dollars and seventy cents due to her, and the balance of account was paid to Mrs. Schettler in conformity to said statement, and-by her -received.
    That the account was accepted by Mrs. Schettler.
    That there was no evidence that the account ever had been objected to by the defendant, or by Mrs. Schettler or her representatives.
    That the account was rendered and money paid under no mistake of fact on the part of the defendant, and at the time of rendering the account it was stated to Mrs. Schettler on the part of defendant that it was an over-payment.
    That the defendant promised by his letter, written May 4, 1865, that Mrs. Schettler should be allowed interest on all her moneys in the defendant’s hands.
    The referee decided as matter, of law:
    That the defendant was not estopped in this action by the rendering and settlement of the account aforesaid, from showing that the above-mentioned sum of two thousand and seventy-five dollars exceeded the share of the rents to which Cornelia H. Schettler was entitled.
    That the defendant was entitled to judgment for the dismissal of the complaint, with costs.
    On the trial the defendant" put in evidence an account made up to May 1, 1865, in which Mrs. Schettler was credited with two thousand and seventy-five dollars, as her share of the rents, and showing a balance of three thousand two hundred and ninety-nine dollars and seventy cents due to her, which balance the defendant paid to her, about-January, 1866.
    The whole amount received to August 1, 1869, the time the suit was brought, was seven thousand five hundred dollars, leaving a balance, after deducting taxes, &c., of four thousand three hundred and nineteen dollars and sixty-five cents, the one-half of which was less than the .sum which had previously been paid to Mrs. Schettler; thus creating what was the over-payment.
    It was proved that the defendant sent a Mr. Cockroft to Mrs. Schettler with a check for the balance paid in January, 1866. The latter testified: I called on her in January, 1866, at Irving House, Twelfth-street, Hew York. She told me she wanted to go to Europe, on account of her husband’s health. She wished I would see her brother, the defendant, and get him to render her a statement. I went down to defendant’s store and he handed me that account. I took it to her. I told her that was the account her brother had given me, and he had given her. She looked over it and said that would not give her money to go to Europe with. I told her that her brother had advanced her more than she was entitled to on the rent account; that she-was only entitled to one-third. I afterwards saw Mr. Smith.
    Q. What request did she make of you, if any %

    A. She wanted to get more money, and asked me if I would not see her brother. I took her a letter of credit for three hundred pounds with letter of introduction, and delivered them to her. She said she was going on January 20, I believe, but could not, as her husband could not get his naturalization papers.
    ■ Q. Did you subsequently, at her request, obtain any money from Mr. Smitfi, the defendant %

    A. In February, at Ashland House, she requested me to call on her brother and get a check. I went to him ; then I went back to her and she told me to sign the receipts and get check. I got check; about three thousand three hundred dollars, as near as I can rémember, and signed receipt. I handed her the check, and she handed it to her husband.
    Q. When you stated to her that her brother had advanced to her more than due on the Henry-street property what did she say ?

      A. She said it was very kind of him.
    Being cross-examined the witness testified:
    I said the defendant had given her more than her share. The check and account were not given at the same time.
    The plaintiff requested the referee to find as facts:
    1. That the defendant is not entitled to go into an examination of the accounts prior to May 1,1865, of the rents in the complaint mentioned.
    2. That the defendant is chargable with interest on the amounts of the moneys in his hands from the date of their receipt.
    Which the referee refused.
    The plaintiff, having excepted, appealed from the judgment.

      Mr. Albert Stickney, for appellant.

      Mr. J. W. Fowler, for respondent.
   By the Court.—Monell, J.

It was objected on the trial that if the defendant had paid to Mrs. Schettler a greater sum than she was entitled to, as her share of the rents received by him, it could be made available, as a defense, only by way of a counter-claim ; and as no counter-claim was pleaded, all evidence in respect to such a payment was improper. It is now further objected, that the account of May, 1865, and the payment under it, having been voluntary, and made without any mistake of fact on the part of the defendant, it operates as an account stated, and estops the defendant from going behind it, except for fraud or mistake.

It is conceded, that taking the account of rents received during the whole period, from May, 1862, to August, 1869, and deducting the taxes, &c., paid by the defendant, and the sum paid to Mrs. Schettler in January, 1866, she has received a sum greater than her share of such rents. When the payment was made in January, 1866, Mrs. Schettler was told, and she distinctly understood, that it was more than her share, and she received it with the remark, that it was very kind of the defendant.

The objection, that this, at most, created a debt, due from Mrs. Schettler to the defendant, which would be the subject of a counter-claim, if so pleaded, does not seem to me to be well taken. As I view it, it was a payment made by one tenant in. common to his co-tenant, of a part of a common fund, which, unless estopped by his own acts, he had the right to bring into, and make a part of the final settlement between them. And, therefore, throwing the account of May, 1865, out of view, such payment created no debt, but was a payment on account, although in excess of the precise sum. due.

The defendant, therefore, correctly pleaded it as a payment.

The principle upon which an account stated is made conclusive against the party who receives it, is, that if he omits to object, he is deemed to acquiesce in its correctness ; and, hence, he is estopped from after-. wards questioning its accuracy. But the principle does not apply to the party who furnishes the account. As to him, it contains certain admissions and is generally regarded to be correct, but it is, nevertheless, open, to explanation for any omissions or mistakes.

There was nothing in the account itself, nor the circumstances under which it was rendered to Mrs. Schettler, which estopped the defendant from showing, that the balance appearing to be due to her, was in excess of her share. And it' seems to me, that when they came to have a final settlement, he had the right to show the over-payment previously made, as exhausting her share of the rents afterwards received.

It would be highly inequitable to allow the plaintifl’s testator to receive a voluntary over-payment which she had herself solicited and acknowledged, and then to disallow such payment, in the subsequent accounts between her and her co-tenant. The ground upon which the plaintiff seeks to exclude such payment, is too narrow and technical, and should be disregarded.

The effect which, perhaps, might otherwise be given to the account rendered by the defendant, as an account stated, is, in my judgment, entirely removed by the clear understanding of the parties, that the balance struck was in excess of the plaintiff’s share; and it is fair to presume, that they each intended and expected, that the defendant would reimburse himself from the future rents.

That he should be allowed to do so, is quite agreeable to equity and good conscience ; and I think the defendant should be satisfied that the over-payment is not now brought in, as a claim against him, or the estate which he represents.

The judgment should be affirmed.


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    JABEZ A. BOSTWICK, Plaintiff, v. JOSEPH W. WILDEY AND OTHERS, DEFENDANTS.
    At the time of entry of judgment in this action, defendant Wildey was in the custody of the sheriff under the order of arrest. No execution was issued against his person until more than seven months after the entry of the judgment, and after several terras of the court had intervened.
    In this action against the bail it was claimed by defendants that no action would lie, as they were relieved from their obligation by reason of the neglect of the plaintiff in charging the defendant Wildey in execution for more than three months after the last day of the term of the court succeeding the time of judgment, as provided in the statute (2 S. 8. 556, § 36) which provides that in case of such neglect, the defendant may be discharged by a supersedeas, and shall not be liable to arrest upon any execution issued on the judgment. In this case no supersedeas was applied for or obtained from the court, discharging Wildey, but he was discharged ’ about a month after judgment by giving bail.

      Held, that the defendant Wildey, under the circumstances, was not entitled to a supersedeas, as he was not in custody at the expiration of the three months, &c.
    That until actually discharged from custody by a supersedeas, the defendant Wildey continued to be liable to arrest upon the execution issued upon the judgment.
    That an actual discharge under a supersedeas would have exonerated his person from arrest and relieved his bail from their engagement that he should at all times render himself amenable to the process of the court, &c.
    But it will not do for the bail to merely show a state of facts, which, if improved and acted upon, might have procured a supersedeas.
    Nothing short of a supersedeas actually obtained will exonerate the defendant or his bail, and Wildey not having obtained one, his bail was bound to render him amenable to the process of the court.
    The execution against the person of Wildey was properly issued, and upon its being returned “not found,” the bail are liable.
    Before Monell and Spencer, JJ.

      Decided December 31, 1871.
    The action was upon an undertaking given upon the arrest of the defendant Wildey.
    The defendant was arrested on July 2, and the-undertaking was given on August 10,1869. Judgment in the action was entered on July 10, 1869, when an execution against the property was issued and returned unsatisfied.
    An execution against the person of the defendant was not issued until March 1 1870.

      The court dismissed the complaint, and the plaintiff excepted.
    The exception was ordered to be heard at the general term, in the first instance.

      Mr. D. M. Porter, for plaintiff.

      Mr. R. N. Waite, for defendants.
   By the Court.—Monell, J.

At the time of entering judgment, in the action against Wildey, he was in the actual custody of the sheriff, under the order of arrest; and as the execution against his person was not issued until more than seven months after the entry of judgment, and after the intervening of several terms of the court, it is claimed that an action does not lie against the bail.

The provision of the statute (2 R. S. 556, § 36) is, that when a defendant, at the time judgment shall be entered against him, shall be in the custody of the sheriff upon process in the suit, the plaintiff shall charge such defendant in execution, within three months after the last day of the next following term. And if he neglect so to do (section 37) such defendant may be discharged from custody, by a supersedeas; and after being so discharged, he shall not be liable to be arrested upon any execution upon the judgment.

In this case no supersedeas was obtained from the court discharging the defendant, but about a month after judgment was entered, he gave bail and was thus discharged.

The engagement of the defendants who signed the undertaking in suit, was, that the defendant should, at all times', render himself amenable to the process of the court, &c. And a provision of the Code exonerates bail, by the legal discharge of their principal from the obligation to render Mmself amenable to process. (Code, § 191).

Tne question then arises, could the defendant be arrested on execution upon the judgment ? If he could not be, then the bail are discharged.

The section of the Eevised Statutes to which I have referred, seems to require in all cases a supersedeas to be allowed by a judge of the court, as the means of procuring a discharge, and it would seem to be only after such a discharge, that the defendant is exempted from arrest upon execution. The defendant in the judgment was discharged from the arrest by giving-bail ; and when the three months, after the end of the next term, following the entry of judgment, had expired, he was no longer in the custody of the sheriff, and the provision of the statute would, probably, have no application, and a supersedeas would not be granted. The office of that writ is to stay proceedings at law, so that no further action can be taken upon the judgment; or, as declared by the statute, rendering the defendant no longer liable to arrest upon it.

The purpose of the statute is, to enable an imprisoned debtor to avail himself of the provisions of the statute concerning voluntary assignments, by, a debtor imprisoned in execution in civil cases (2 R. S. 31) whereby he may be discharged from imprisonment, by compelling the creditor, within a fixed time, to sue out an execution against the person of his debtor ; or if he failed to do so, to have his right taken away by a super- , sedeas at the instance of the debtor.

It is clear, however, that the - defendant must be in the actual custody of the sheriff, under process in the action, at the time judgment is rendered. And I think it is also clear, that he must be and remain in such actual custody, until the expiration of the time limited for charging him in execution. Indeed, if he be not in custody at that time, I do not see how the court could relieve him under the statute, which, in that event, would be satisfied by Ms mere custody at the moment judgment was entered, although released on bail immediately afterwards. Such I understand to-be the construction of the. statute in Wells v. Jones, 2 Abb. Pr. 20, where the court say, the defendant being at large on bail, “.the only thing he could do was to be surrendered by Ms bail into actual custody, and then apply for a supersedeas after the proper time had elapsed.”

It seems to me, therefore, that the defendant could not have had a supersedeas after he was discharged on bail, unless he had been first surrendered by his bail, and then had remained in" custody the proper time.

But however that may be, there cannot, I think, be a doubt that until discharged from custody by a supersedeas the defendant remained liable to be arrested upon an execution upon the judgment. Such a discharge would have exonerated his person from arrest, and relieved Ms bail, and might have been set up as a defense to the action against them. But it will not do for the bail to merely show a state of facts which might have procured a supersedeas. Nothing short of a supersedeas actually obtained, will exonerate the defendant or his bail. The defendant not having obtained such supersedeas, his bail was bound to render Mm amenable to the process of the court. The execution against his person was properly issued, and upon its being returned not found, the bail are liable. Section 288 of the Code, as amended in 1870, may be regarded as a substitute for the section in the Revision. But it does not make any essential change nor aid the defendants, even if it could be applied to this case.

Á careful examination, of the statute has changed my first impressions, wMch were favorable to the defendants.

The exceptions must be sustained, the order dismissing the complaint set aside, and a new trial granted, with costs to the plaintiff'to abide the event.