author: By the Court, Robertson, J.

text:
    James C. Willet, plaintiff and respondent, vs. Charles Lassalle, who was impleaded with Theodore Galliardet et al., defendant and appellant.
    1. In an action by a sheriff upon an undertaking given to him by a defendant arrested under an order of arrest in a civil action, it is not necessary to allege in the complaint, that he had not delivered the order of arrest and undertaking to the plaintiff’s attorney in such former action, as required by section 192 of the Code of Procedure, in case such attorney demands it.
    2. Any exoneration of the sheriff from liability, by such delivery and the omission of the plaintiff to except to the bail, and the consequent liability of such bail to the plaintiff in such action, must come from and be set up by the defendant affirmatively, as matter of defense in his answer.
    3. It is not necessary to allege in the complaint in such action, that any action has been brought against the sheriff.
    4. It is not essential to aver in terms that the undertaking was delivered; nor does an averment that it was under seal vitiate.
    6. The measure of damages in such an action is prima fade the whole amount of the undertaking.
    (Before Robertson and Monell, JJ.)
    Heard March 3,1863;
    Decided April 6, 1863.
    This was an appeal from an order overruling a demurrer to the complaint.
    The action was brought by the plaintiff (Willet) late sheriff of the city and county of Hew York, against the defendants, Galliardet, D’Homergue and Lassalle, on an undertaking given by the defendants on the arrest, in a former action, of the defendant Galliardet.
    The complaint contained, in substance, the following :
    “ That the plaintiff, at the times therein mentioned, was sheriff of the city and county of Hew York. That about the 7th day of June, 1858, one Hiram Cranston commenced an action in this court, against one of the defendants, Galliardet, for an assault and battery, and upon affidavits of a cause óf action at the time of the commencement thereof, obtained from one of the justices of this court an order of arrest, directed to the plaintiff, as such sheriff, commanding him to arrest the defendant, Galliardet, and hold him to bail in the sum of $8000 in such action, and to return such order to the plaintiff’s attorneys, Whiting & Clark, at a certain* place, Ho. 40 Park Row, in the city of Hew York, on the 15th day of June, 1858. Which order, about the same day, was delivered to the plaintiff, as such sheriff, to be executed. By virtue of which order the plaintiff being such sheriff, on the same day, took and arrested Galliardet by his body, and detained him in custody, as such sheriff. And while the defendant, Galliardet, being so arrested, was in the custody of the plaintiff, as such sheriff, by virtue of such order of arrest, on the same day, at the city of Hew York, he gave bail to the plaintiff; that is to say, the defendants,. D’Homergue and Lassalle, as bail and sureties for the defendant, Galliardet, jointly with him, by their writing obligatory, commonly called “ an undertaking,” signed and sealed by the defendants, and dated on the same day, undertook, in the sum of $8000, that the defendant Galliardet, should at all times render himself amenable to the process of this court during the pendency of such action, and to such process as should be issued to enforce the judgment therein.
    That Cranston, on the 30th day of July, in the year 1859, obtained judgment against the defendant Galliardet, in this court, for the sum of $9,024.44, damages and costs; a transcript of which judgment was duly filed in the office of the clerk of the city and county of Hew York, on the 1st of August, 1859. On the same day, Cranston issued an execution against the property of Galliardet, directed to the sheriff of the city and county of HeW York aforesaid ; whereby such sheriff was commanded to satisfy such judgment out of the personal property of the debtor within his county, or if sufficient personal property could not be found, then to satisfy it out of his real property situated in such county on the day when such judgment was docketed, or at any time thereafter, in whosesoever hands the same might be, and return such execution, in sixty days after the receipt thereof, to the clerk of this court. Such execution, indorsed' with a direction to levy and collect such sum- of $9,024.44, with interest and fees, was received by such sheriff on the said day and year aforesaid.
    That such execution was' afterwards, in October, 1859, returned'by such sheriff of the city and county of Hew York, wholly unsatisfied. And thereupon, afterwards, in Hovember following, Cranston issued an execution against the person of the defendant Gralliardet, directed to the sheriff of the city ,and county of Hew York, commanding him to arrest such judgment debtor and commit him to the jail of his county until he should pay the said judgment, or be discharged' according to law. Which execution was also indorsed with a direction to the sheriff to collect such sum of $9,024.44, besides interest and fees; and was afterwards, in Jánuary, 1860, returned “Hot found.” ■ By reason whereof, a right of action accrued to Cranston, and' an action had been commenced by him against the plaintiff, by reason of the neglect of the defendants, D’Homergue and Lassalle, to beep and render the defendant Gralliardet, at all times amenable tó the process of the court, issued to enforce the judgment in the action therein between Cranston and Gralliardet, according to the terms and conditions of their undertaking before set forth. It concluded by laying the damages at $8,000, for which sum the plaintiff claimed judgment.
    The defendants, Lassalle and D’Homergue, demurred" to this’ complaint, and assigned as their ground of demurrer that it did not contain facts sufficient to constitute a cause of action.
    The demurrer was argued at special term, in April, 1862, before Mr. Justice White, by whom it was overruled, holding that the . complaint of the plaintiff, as sheriff, need not negative the performance either by himself or the defendants, who were, sureties, of all the acts which might have left 'the defendants liable in the former action only to the plaintiff therein, but that performance of such acts must be pleaded affirmatively by the defendants, if they desired to present them as a defense.
    From the order entered thereon the defendant, Lassalle, appealed..'

      F. R. Coudert, for the defendant, appellant,
    I. Upon the facts stated in the complaint, the plaintiff does not show himself entitled to recover. He does not aver either that he has suffered any damage, or is likely or liable‘to suffer any. That he is the holder of the bail bond, or entitled to sue on it. That it (the bail bond) was ever delivered to any one or made to any one, or in fact ever made at all. That he comes within any of the cases provided by the Code. That the action in. which G-alliardet was arrested was ever prosecuted to judgment, or execution ever issued on said judgment. There is no allegation that the plaintiff is the owner of the bond. These facts being material, the complaint is insufficient. (Rodi v. Rutger’s Fire Insurance Co., 6 Bosw. 23.)
    II. It being made the duty of the officer to return the process, together with the undertaking of the bail, to the plaintiff’s attorney, (see Code, § 192; 3 R. S. 5th ed. 739,) it is to be presumed that he performed that duty. If he did, upon the allegations of the complaint, he has no standing in court.
    III. There is nothing in the complaint bringing this case, within any of the provisions of sections 193, 201, or 203.
    IY. A sheriff is not entitled to look to the bail except when they fail to justify, and in that case he can only recover the “damages which he may sustain by reason of such omission.” (See Loosey v. Orser, 4 Bosw. 391.) And there is no allegation on either point.
    Y. There is no analogy between cases brought under the Code and those prosecuted under the old practice, as far as the capacity to sue is concerned. Formerly, the bond was made directly to the sheriff. It was. necessary that the plaintiff should allege this fact with great particularity, as upon this depended his ability to sue. (See 2 Chit, on Pleading, 449.) Under the present practice, the undertaking belongs to the plaintiff in the action wherein the order of arrest was granted. There being no allegation to the contrary, it is fair to presume that the bail bond is now in Cranston’s hands.
    YL The complaint describes the instrument upon which the plaintiff seeks to recover against the defendants as a “ certain

      ■writing obligatory, commonly called. ‘ an undertaking/ signed and sealed by the said defendants, &c.; ” but it does not state that, it was made to any one, which is essential in a bond. (See Burrill’s Law Dict., tit. Bond.) There being no obligee mentioned in the instrument, the plaintiff should show some particular state of facts, or some special provision of law, as a foundation for his right to recover.
    VII. The sheriff had no right to retain the undertaking. It belonged absolutely to the plaintiff, who alone has a right to sue upon it. (§ 192.)
    VIII. The bail bond or undertaking is a bond of indemnity. Something, therefore, should be'alleged to show'that the sheriff had suffered some loss, or incurred some liability for which he was entitled to be compensated. He simply says that he is sued for an escape, and therefore entitled to the face of the bond and interest. If the plaintiff’s theory is right, he could recover the full amount and interest, whereas he might defeat any claim by Cranston, by proving the insolvency of Galliardet.
    IX. It is difficult to avoid the inference, after .a careful perusal of the complaint, that Willet and Cranston have confederated against the defendants, and that any contest between them over the absent body of G-alliardet is postponed, in the hope that these defendants may be offered up as scapegoats. The defendants, on the other hand, claim that, as sureties, they are bound only according to the strict letter or precise terms of their contract, and are considered as favorites of the law, (Wright v. Johnson, 8 Wend. 512, and cases cited;) that they should not be driven to trial without knowing precisely on what grounds they are to be charged.

      J. B. Whiting, for the plaintiff, respondent.
    I. The complaint sets forth all the facts necessary to constitute a perfect cause of action.
    II. The execution of the undertaking fixes the character of the parties as bail to the sheriff. The statute enabling the sheriff to give notice to the plaintiff, and providing for exception and justification, is for the benefit of the sheriff alone. The bail have nothing to do with it. Whether the sheriff gives notice, and the bail do not justify, or if he omits to give the notice, which he may do designedly or from neglect, he still becomes liable as bail. (Code, §§ 201, 203. Van Duyne v. Coope, 1 Hill, 557. In re Taylor, 7 How. Pr. 214. Buckeman v. Carnley, 9 id. 180. Sartos v. Merceques, Id. 188.)
    III. The sheriff, on an escape, may immediately take his remedy for a breach of the condition of the bond. (Hinds v. Doubleday, 21 Wend. 223.)
   By the Court, Robertson, J.

This is an action on an undertaking given by the defendants to the plaintiff, on his arrest of the defendant G-alliardet, under an order in an action by a third person (Mr. Cranston) against vsuch defendant. The undertaking is in the usual form, promising "that such defendant should at all times render himself amenable to the process of the court during the pendency of the action, and to such process as should be issued to enforce the judgment therein.

The complaint shows that such third person (Cranston) obtained judgment against the defendant G-alliardet; issued an execution against his property, which was -returned unsatisfied, and, also, afterwards an execution against his body, which was returned by the officer to whom it was directed, not found. These facts, in an action against the present plaintiff, by the plaintiff in such action, would be enough to charge the former with liability for an escape of the defendant therein.

The following are the only questions on the merits arising in this case.

First. Was the undertaking sued upon ever an obligation to the plaintiff, and could he ever have maintained án action upon it ? If so, did it ever cease to be so, and by what means P

Second. Is there any presumption of law in favor of the defendants, that the sheriff ever relieved himself of all responsibility for the production of the defendant's, body, in the original action, upon final process, by the delivery of the order of arrest, his return thereto, and a copy of the undertaking in suit, to the attorney for the plaintiff in such action ?

Third. As incidental to the second question, does the liability of the defendant vary by the undertaking being to the plaintiff in this action instead of the plaintiff in the original action ?

The plaintiff, on the arrest of the former' defendant, was liable as if he were bail, in case of an escape, rescue or failure. of.'the bail to justify, or of a deposit in their place, (Gode, § 201,) and he may put in bail to surrender the defendant. (Gode, §§ 201, 193 to 196 inclusive.) He is only exonerated by the delivery of the order of arrest, return and certified copy of the undertaking to the attorney for the plaintiff in the original action, and the omission by such attorney, to refuse such bail, for ten days, or by the justification of the same, or new bail. (§§ 192,193.) During all this time until justification, the bail are liable to the sheriff. (§ 203.) By the justification he is relieved and the bail become liable to the plaintiff in the action. There is no allegation in the complaint, of the delivery of such documents, or non-refusal to accept the bail.

In the next place the delivery of the order of arrest and other documents, to the plaintiff’s attorney, authorized by the 192d section of the Code, is not a duty 'of the sheriff to any of the parties in the action ; it is a privilege by which' he relieves himself from responsibility, and until he does it, the bail are bound to. him, but are not obliged to justify. If it were a duty, it would clearly not be one either to the defendant in the action, who can do nothing to enforce it, or his bail, who are not benefited, and can only be harmed by it, by being required to justify. The defendants have a right to set up the same defenses in an action by the present plaintiff on. their undertaking, as they would were it brought in the name of the plaintiff in the former action. Whatever damages the plaintiff is liable for to the • latter, he can recover from the defendants; and they are the same as the plaintiff in the former action could recover had he assumed the benefit of the undertaking and sued upon it. There is, therefore, no ground for presuming, in favor of the defendants, that the sheriff exonerated himself by delivering the proper documents to the attorney for the plaintiff in the former suit. That, if the fact be so, should be set up as affirmative matter of defense. The defendants are neither better nor worse off than if the plaintiff in the former action were the plaintiff in this. In fact, the question to whom bail shall be liable, is entirely a matter of election between the sheriff and the plaintiff in the action. They are bound to produce the defendant’s body, when required by a final process, and if they do not, to indemnify the party actually injured thereby.

It is settled that the sheriff is not obliged to wait until he is sued, in order to make the bail liable, (Hinds v. Doubleday 21 Wend. 223,) and therefore the allegation in the complaint, of the institution of an action against him, is immaterial. The omission to allege expressly that the judgment stated to have been recovered was so in the action originally referred to in the complaint, is aided by the rest of the averments. Advantage can only be taken of it by a motion to make the complaint more definite and certain. The statute does not require the undertaking to be delivered to any one, but merely to be executed by the bail, (§ 187,) which is termed giving bail. (§ 186.) It is not a mere contract, it is a stipulation in court, or recognizance, which enures to the benefit of the party entitled. A seal can not do it any harm. Formerly a bail bond was in form to the sheriff, but the law permitted a plaintiff, when assignee of it, to sue upon it, even when other assignees could not sue in their own name. The present practice is perhaps simpler and equally efficacious.

Unless, therefore, it is to be assumed that the plaintiff relieved himself from responsibility by delivering the proper documents to the attorney for the plaintiff in the former action, which does not appear in the complaint, it shows a clear liability on the part of the defendants.

I do not see how, if the judgment had been said to have been recovered in the same action in which the order of arrest was issued, and the allegations respecting a seal to the undertaking and the commencement of a suit against the plaintiff had been omitted, a better complaint could have been drawn.

The defendants may be able to set up and prove facts in mitigation of damages, but prima facie the plaintiff in the original action was entitled to recover the whole amount of the original bail, against the present plaintiff, and of course he is equally entitled to recover the same against the present defendants.

The order overruling the demurrer in this case must be affirmed, with costs.


source: Caselaw Access Project

author: By the Court, Monell, J.

license: Public Domain

text:
    Louis Pignolet, plaintiff and appellant, vs. Darius Geer et al. defendants and respondents.
    1. The denial of a motion to set off judgments is not a bar to an action to compel such Set-off.
    2. A debt absolutely assigned to a stranger, pending the litigation, and before judgment, can not be set off against another debt. But on motion it may be, in an action. i
    3. At law set-offs are regulated and controlled by the statute, and both demands must be liquidated by judgment before a set-off can be had. But as in equity the statute does not control, the demands need not be liquidated in order to be set off.
    (Before Moncrief and Monell, JJ.)
    Heard January 24,1863;
    decided March 3, 1863.
    This was an appeal from an order denying a motion for leave to serve an amended complaint, and also for leave to renew a motion for an injunction, and also.for an injunction restraining the collection of a judgment in favor of the defendant, Darius Geer, against the plaintiff, and also for leave to make Elias S. Young and James A. Ruthven parties defendants to the action.
    The amended complaint, upon which, in part, the motion at special term was founded, alleged that an action was commenced in this court, hy the defendant, Darius Greer, against the plaintiff, to recover a debt due to Geer, on the 6th of March, 1854; that on the 12th of April, 1855, tbie plaintiff in that suit recovered a judgment for $761.81; that an appeal was taken thereupon to the general term of this court, where the judgment was affirmed on the 26th of February, 1856, and judgment for costs of the appeal, amounting to $80.26, entered; that the defendant in the judgment appealed to the Court of Appeals, where the judgment was affirmed on the 11th of December, 1858, with costs amounting to $220.33 ; that the costs of the two appeals were paid to Messrs. Young & Euthven, who were the plaintiff’s attorneys in such suit, but that no part of the judgment for $761.81 has been paid; that the cause of action, upon which that judgment was recovered, was for work done and materials furnished in erecting a store for the defendant in said suit, in the year 1853, and January, 1854, and that the whole contract price was allowed the plaintiff in that suit; that one Consall did the painting on said building, and that the defendant was indebted to him therefor on the 3d of January, 1854, for which he (Consall) brought suit and recovered judgment on the 28th of January, 1856, for $182.31, which has never been paid ; that on the 9th of June, 1853, the said defendant (Geer) was in debt to one Baxter for lumber furnished, upon which he (Baxter) recovered judgment against the said defendant on the 13th of February, 1855, for $546.95, which has never been paid.
    The amended complaint further alleged that the last two judgments were,.on the 11th of February, 1856, duly assigned to the plaintiff in this action; are in full -force and effect, and wholly unsatisfied; and that at that time, and for a long time afterwards, the plaintiff believed that the said judgment against him belonged to the said defendant, Darius Geer, and was ignorant that any other person claimed the same, in whole or in part. That previous to the year 1855, the said Darius Geer became insolvent, and has since continued insolvent.
    That the defendant Darius W. Geer, who is a son of Darius Geer, claims to have some interest in the said judgment against the plaintiff, but the plaintiff claims that such right, if any, is subordinate to the right of the plaintiff to have the judgment • assigned to him set off against said first mentioned judgment.
    That Young & Ruthven, whom the plaintiff seeks to bring in as parties, also claim some interest in said judgment, but which the plaintiff alleges is subordinate to his aforesaid right of set-off. There were also allegations tending to show that Darius W. Geer gave directions to the attorneys prosecuting the action, prior to obtaining judgment thereon.
    The amended complaint further alleged that an execution had been issued upon said judgment against the plaintiff, and is in the hands of the sheriff.
    The complaint demanded that the two judgments assigned to the plaintiff might be set off against the judgment recovered against him by the defendant, Darius Geer, and that the defendants might be restrained from .talcing any proceedings to collect the last mentioned judgment.
    It appeared, in opoosition to the motion, that, on the 26th of September, 1854, and before the recovery of the judgment against 'the plaintiff, the defendant, Darius Geer, assigned the claim to- the defendant, Darius W. Geer, for a valuable consideration, who thereafter became the owner of the same, and of the judgment subsequently recovered against the plaintiff. That in January, 1859, a motion was made by the plaintiff, at a special term of this court, to set off said judgments, which was denied, which was subsequently affirmed by the general term, and afterwards an appeal therefrom was dismissed by the Court of Appeals.
    That in November, 1862, a preliminary injunction was granted in this action, which, on the 1st of December last, was dissolved, upon notice to the plaintiff, at a special term, from which decision no appeal was taken, nor was any leave given to renew the motion.
    It further appeared that proceedings supplementary to the executions upon the judgments assigned to the plaintiff had been instituted, and a receiver appointed therein, whereby whatever interest the defendant Darius G-eer had in the judgment against.the plaintiff was vested in the receiver.
    It did not appear that the judgment against the plaintiff had ever been assigned to Darius W. Geer. ■
    The justice before whom the motion was made at the special term, held that the decision of the Court of Appeals, upon appeal from an order of the general term of this court, denying, in effect, the plaintiff’s motion to set off his two judgments against the judgment which had been obtained against G-eer, senior, must be taken as a full and final determination of the rights of the plaintiff upon the one side, and Geer, junior, on the other, as owners of the judgments held by them respectively, and that this court was, therefore, virtually precluded from granting the relief prayed for in the amended complaint, upon the case now made; and even if this were otherwise, he was of opinion that the debts were unliquidated claims at the time of the transfer to the younger G-eer, and not the subject of set-off.
    From the order entered upon his decision, the plaintiff now appealed.

      A. J. Willard, for the plaintiff, appellant.

      J. A. Ruthven, for the defendant, respondent.
   By the Court, Monell, J.

The only facts which we think can be considered on this appeal, as affecting the decision of the motion at special term, are, that a motion has already been made in this court to set off these judgments, which was denied, and that a motion for an injunction in this action has also been denied. So far as any questions arise upon the denial in the opposing papers, of the equities of the plaintiff’s case, we are of the opinion that such questions should not be disposed of upon a motion, but that the parties should be allowed to sustain their respective allegations by proof at the trial.

The learned justice who decided the motion at special term, was of opinion that the decision of the motion in this court, to set off these judgments, was a final determination of the rights of the parties, and that, therefore, the court was precluded from granting the relief demanded by the plaintiff in . his amended complaint. This view, we think, was erroneous.

Where one debt is absolutely assigned to a stranger, pending the litigation, and before it is liquidated by a final judgment, the same can not be set off against the other on a motion. (Gay v. Gay, 10 Paige, 369.) And in Barber v. Spencer, (11 id. 517,) the chancellor says: “ The right of set-off, upon a summary application to a court of law or equity, exists only in cases where the debts on both sides are liquidated by judgment or decree, before ‘ the assignment of either to a third person.” It is presumed that the decision of the motion, both in this court and in the Court of Appeals, was upon the authority of the cases cited and others sustaining the same doctrine. But a court of equity, in an action brought for the purpose, may allow a set-off, where the equitable right to such, set-off existed before the assignment to a third person, notwithstanding neither of the demands had at that time been liquidated by judgment or decree. (Cases ubi supra. Ainslie v. Boynton, 2 Barb. S. C. 258. Bradley v. Angel, 3 Comst. 475.)

A right of set-off at law is regulated and controlled by the statute, and hence, a court of law, or even a court of equity, upon a summary application, can allow the sét-off only in those cases authorized by the statute. But in an action brought for a set-off, the right of set-off does not always depend upon the statute, nor upon the question whether both demands are liquidated by judgment. In Gay v. Gay, (supra,) the chancellor says; “If an equitable right of set-off exists, while the parties have mutual demands against each other, because the debt due to the party claiming the set-off is so situated that it is impossible for him to obtain satisfaction of such debt by an ordinary suit at law, or in equity, to recover the same, this court, upon a bill filed, will compel an equitable set-off of one debt against the other. And the insolvency of the party against whom the set-off is claimed, is a sufficient ground for the exercise of the jurisdiction of the Court of Chancery in allowing a set-off in cases not provided for by the statute, although the demands on both sides are not liquidated by judgment or decree, so as to authorize a set-off upon a summary application, by motion.” Bradley v. Angel, and Ainslie v. Boynton, (supra,) are to the same effect.

The decision, therefore, of the motion refusing to allow the set-off, does not preclude the party from obtaining the relief in an action, and he has the right, notwithstanding the denial of the motion, to bring his action upon the equity side of the court, to compel an equitable set-off.

The amended complaint alleges that David Geer became insolvent prior to 1855, and has since continued insolvent. That when he, the plaintiff, took the assignment of the two judgments he seeks to set off, he believed that the judgment against himself belonged to said Geer, and was ignorant that any other person claimed the same, or any part of it. It is further alleged that the claim of the defendant, Darius Geer, and of Young & Ruthven, to the said judgment or to some interest in it, is subordinate to the right of the plaintiff to set off the said judgments.

Whether these allegations are sufficient, or whether the proof, upon the trial of the action, will sustain the right of the plaintiff to compel the set-off, are questions which, we think, should not have been determined upon this motion, but should have been left to be decided at the trial. It is. for such reason that we do not feel at liberty to consider the affidavits used by the defendants in opposition to the motion at special term. They show a strong defense to the action, but the plaintiff may, nevertheless, be able to establish on the trial, and to satisfy the court, that he is entitled to the equitable relief he asks for.

For these reasons, we think the plaintiff should have been allowed to serve his amended complaint, and to bring in Young and Ruthven and make them parties defendants in the action.

As the case made by the amended complaint, prima facie, is sufficient to authorize the court to compel the set-off of the judgments ; and as the judgment compelling such set-off might be ineffectual unless the defendants were restrained from collecting the judgment against the plaintiff, the injunction asked for by the plaintiff should have been" granted.

The order appealed from should be reversed.


text:
    Solomon D. Moss, plaintiff and appellant, vs. Francis Priest, defendant and respondent.
    1. The rendering of a general verdict hy a jury, and its reception by the court without objection, either by the judge or the parties, is good, notwithstanding .the failure of.such jury to find upon certain special questions of fact, upon which the court, in the course of its charge, directed them to find.
    2. A party by not objecting on the trial of the issues in an action to the recep- " tion of a general verdict'of "a jury Without their written answers to particular questions of fact submitted to them by the court at the same time, waives any right .of .objection to such verdict. . And the court, by permitting such general verdict to be received,, without any answer, but an oral one, by the .foreman of ‘siich jury, "to such'particular questions, must be considered to -have ■ withdrawn the Cpnsideration Of such questions from them and left the case" to stand on the general verdict alone, •
    3. Where in such a case an application is made by either party to have tho answers as-actually given by1 the foreman inserted in the record, the adverse party, if he:has done ho act to waive the objection to the mode of answering as not being in writing, may show that the. answers- actually given" by" the foreman were no't those which the jury intended. Any amendment, if allowed, "should bp only to conform the whole finding of the jury, including the. general verdict, to the aúswefá intended, and not to those erroneously given by the foreman. ■
    (Before Robertson and Monell, JJ.)
    Heard March 28,1863;
    decided April 18, 1863.
    -This was an appeal" from an order amending a verdict.
    The action was tried before one of the justices of the court and a jury. At the close of the evidence the presiding justice directed srich jury to bring in a general verdict and also to answer, in writing, certain written questions presented to them by him, affirmatively or negatively, according to their opinion as'to how'they should be answered from thé-evidence. -

      The jury rendered a general verdict in favor of the plaintiff, but their foreman, when called upon by the clerk of the court, for their answers to such particular written questions, through some misunderstanding, answered all of them orally in the affirmative, but no entry was made in the minutes respecting them as such answers.
    The defendant then moved at special term to correct the verdict by directing the answers so given to the questions to be entered upon the minutes. A statement of some of the jurors was produced upon the motion, by- which it appeared that no written answers to the questions had been made by them ; that the oral answers actually given were in the affirmative.; but that to two of such' written questions the jury intended to have answered in the negative.
    The motion was granted, and the answers actually given ordered to be inserted in the minutes. From this order the plaintiff appealed.

      S. P. Nash, for the plaintiff, appellant.

      F. Bryan, for the defendant, respondent.
   By the Court, Robertson, J.

The Code of Procedure provides (§ 261) that the court may in all cases instruct the jury if they render a general verdict, to find upon particular questions of fact to he stated in writing, and may direct a written finding thereon, which special finding shall he filed with the clerk and entered on the minutes.

In the present case questions of fact were stated in writing by the presiding justice, and the jury were directed to answer them in the affirmative or negative as under the evidence they thought proper. They took with them, on retiring to deliberate, the written questions, and on returning into court, besides giving a general verdict, stated orally, in answer to a question of the clerk, that they answered all such written questions in the affirmative, but they signed no written finding thereon. Ho, entry was made in the minutes, of their answers thereto, at the time of the trial.

It is very plain, from the jurors’ subsequent statement, that the entry which the order appealed from directed to be made on the minutes of the court,- of their response to the questions put, is not what they wished or intended to make. They evidently misunderstood the inquiry addressed to them by the clerk in regard to such questions, and answered under that misapprehension. To allow it to stand .would make the verbal answer, given through mistake, (perhaps that of the foreman,) take the place of the written answer required by the statute, to the prejudice of the plaintiff. The occurrences in this case are a full illustration of the prudence of the provision which requires the -answer or findings to be in writing. If the jurors had been called upon separately to write their answers to each question separately, they would most probably have avoided any mistake. The provisions of a statute which require any document to be in writing, ought not to be dispensed with to work a wrong or accomplish exactly the reverse of what the parties, who ought to have signed the writing, intended. The answers entered were in reality and in substance not theirs, although they might have been unsound.

Hot being in writing, the findings on the submitted questions should be considered as out of the case ; in other words, as if the jury had failed to answer them in any way, and the question then arises whether the rendering of a general verdict, and its reception by the. court without objection, either by the judge or the parties, is not good, notwithstanding the jury have failed to answer special questions. The submission of special questions to a jury to be answered by them in addition to a general verdict of which such answers form no part, (Code, § 262 ; see also Thompson v. Button, 14 John. 84,) seem to he entirely a matter of discretion with the court; neither of the parties can require it as a matter of right. If they need a finding upon special questions, they must apply to the court in advance of the trial, for an order to that effect. Being a matter of discretion, I apprehend the court can withdraw the direction at anytime before the special finding is given, and the general verdict can be received without it. Ho vested right is acquired by- either party to have the findings given, because the court had once so directed it. There is always, therefore, room for withdrawing such directions and receiving a general verdict up to the time of signing the findings, filing them and entering them on the minutes, or for the court to exercise its discretion as to receiving them. Suppose jurors are ready to bring in a general verdict, if the court should not insist bn answers to the special questions, could not the latter be withdrawn ? To doubt that .power would convert the discretion of the court into the right of the parties. In this case a general verdict was received and entered by the clerk without objection by the parties. Something else, it.was true, was said by the jurors, at the time, but not put in writing, and signed by them, or read over by the clerk or entered by him in his minutes. This waived all objection by the parties to the receipt of the general verdict, and precluded either from insisting afterwards, either that such verdict was irregular, or that entries should be made of a verbal response, to some questions in order to control it.

As the Code gives to a special finding of facts by a jury the power of controlling a general verdict, if the two are inconsistent and the court is required to give judgment accordingly, (§ 262,) such judgment must be specially applied for, in order to determine such inconsistency and its extent, and an appeal would lie for error in giving such judgment. Requiring a jury to answer specially, is, therefore, such a different direction as to prevent the clerk from entering the judgment, under section 264, according to the general verdict. He can not determine what judgment is to be entered.

The object of the provision in regard to special findings, was to enable the court to leave the case to the jury generally, but to control their general verdict by findings, which would render a second trial unnecessary, in cases were no exceptions were taken, or rather to prevent the necessity of exceptions to the charge. If, in such cases, the court instruct a jury to find for either party, provided they find in a certain way, upon certain questions of fact, such instructions would be subject to exceptions, and error in any of them would send the case back for a new trial. The result would be the same on special findings, as if the court, on the trial, had charged as might be determined, by itself on more mature reflection and argument, when application is made for judgment, it ought to have charged, or if there was no room on the evidence to submit such questions to the jury, the general verdict rendered might be allowed to stand. The general verdict, as regards, the particular questions submitted, becomes a mere matter of form. It is, in fact, merely a mode of having exceptions to the charge argued and' carefully decided on a fuller examination than can be given them on the trial, without the necessity of a new trial in case of a mistake. Either party has a right to require a positive instruction to the jury, upon matters embraced by such special findings if raised by the evidence, and to except to a refusal to charge as requested, or to the charge as actually given. But they can not complain of a course which submits such special questions for special findings therein, in any event.

If the exceptions in this case cover the same ground as the special findings would in this case, if they had been made, since the former are to be heard at general term first, the defendant will have every benefit derivable from them. If they do not, the fault is his. I do not see that he will be more prejudiced by the omission of the jury to answer in writing the question submitted, than by his own neglect, in requiring a specific charge in relation to the same matter.

No verdict was rendered in this case, except the general verdict, and the jury did not answer in legal form the questions which could modify such verdict, and did not intend to answer, as it is proposed they should be made to do. All authorities, therefore, cited in regard to amending verdicts, are inapplicable.

If the defendant seeks to amend any defect, it should only be done by conforming the verdict to the actual intention of the jurors, to what they would have done, had an opportunity been afforded them of complying with the terms of the law. The slip, if it can be so called, of taking answers verbally, can only be corrected by amending the-equal mistake in the language used by the jurors, or rather their misapprehension of the question of the clerk. The statement of the jurors was not used to contradict their verdict, but to prove that they had never signed a fiinding in writing, and that what they said verbally was not intended to be as it was understood. If a verbal answer, taken down by the court or the clerk, is a substitute for the signature in writing required by law, what the jurors intended by such verbal answer, of course, can not be proved by their statement. Their intention is only important to show that they would not have signed such a written statement as the defendant claims they intended to sign, and their present statement is admissible to prove that. At all events, there is no evidence before us that any similar objection, or one that their statement was not sworn to, was taken on the hearing of the motion at special term. The objection should then have been made that they were incompetent witnesses to prove the facts they stated, and that their statement, consequently, must be excluded, if the defendant intended to rely on that objection.

Of course, if the verbal answer had been equivalent to a written one, the court had the power to amend the clerical error of omitting to insert it in the minutes. But how, in that event, is judgment to be entered in this case, or the exceptions heard, which is ordered to be done at general term P The former, of course, is to be suspended, until the latter'are heard," according to the order made on the trial of the case. But if a new trial is refused on the exceptions, can a motion be made afterwards at special term by the defendant, for judgment, because the special findings overrule the general verdict ? That would make the case heard at a general before it was heard at a special term. In arguing his exceptions first, the defendant admits that judgment must be given for the plaintiff, if his exceptions fail; which is the only reason why the Code permits the. excepting party to be first heard at general term. Why should the plaintiff be put to the expense of arguing the exceptions, if the defendant may have a right to judgment on the special findings to be afterwards pressed by him.

It was, of course, immaterial to the defendant whether the supposed answers to the special questions by the jury were placed on the record or not, unless their effect was to overthrow the general verdict for the plaintiff. If that were so, he was bound to elect whether he would try to have the verdict and judgment in his favor, on one ground, or a new trial on the other, and not first get, or be defeated on the latter, and thus fall back on the former.

Considering, therefore, that the defendant’s counsel must be deemed to have waived all his right, if any, to a written answer to the special questions put to the jury, by not objecting to the general verdict without them ; that the court, also, by receiving the general verdict without insisting on the jurors’ signing a written answer to such questions, by not passing on the effect upon the general verdict of the verbal answers to such questions,' at the time of receiving the verdict, must be deemed to have revoked or withdrawn his requests or instructions to the jury to answer such questions, and that the plaintiff did no act- to waive his right to have the questions answered in writing, if answered at all, the answers to which might overthrow the general verdict .in his favor. I think the general verdict should stand unaffected by the verbal answers given by the jury to such questions.

Considering, further, that the plaintiff, having done no act to waive any objection to the answers not being in writing, the defendant, in applying to amend the record, not only, by supplying an accidental omission, but also by making a verbal equal to a written answer, sought equitable relief, ,he was bound to do equity by so amending the record as to make it conform to the intention of the jurors in th'eir answer to the clerk’s question as they understood it.

The order made should be reversed, unless the defendant will consent that the same be modified, so as to allow the ■jurors’ answers to the second and third questions to be inserted as being in the negative.


text:
    Edward Lupton, plaintiff and appellant, vs. James C. Jewett, et. al. defendants and respondents.
    1. An order appointing an appraiser to ascertain the value of property attached, for the purpose of discharging the attachment upon the giving of an undertaking, is hot appealable. It does not involve the merits or affect a substantial right, but rests wholly in the discretion of the judge to whom the application is made.'
    2. Where an order is granted upon condition of payment of costs, accepting the costs under the order is a waiver of any right to appeal from it.
    (Before Babbour and Monell, JJ.)
    Heard April 18,1863;
    decided April 25, 1863.
    This was an appeal from an order appointing appraisers under section 241 of the Code.
    In this action the plaintiff issued an attachment against the property of the defendants, and the same having been levied, the defendants applied to the justice issuing the attachment, upon affidavit that the value of the property was less than the amount claimed by the plaintiff, for the appbintment of an appraiser in order , that they might have the attachment discharged on giving security in its stead.
    The motion was granted upon the payment of costs, which the defendants paid. The plaintiff now appealed.
   By the Court, Monell, J.

This is not an appealable order. The 240th section of the Code of Procedure provides that the defendants in the action may apply to the officer who issued the attachment to discharge the same, upon delivering to such officer an undertaking in double the amount claimed by the plaintiff in his complaint. The 241st section provides if it shall appear by affidavit that the property attached is less than the amount claimed by the plaintiff, the officer issuing the attachment may order the same to be appraised.

The object of the appraisement is to relieve a defendant who desires to discharge the attachment, from the necessity of giving security in an amount greater than the actual value of the property attached. Otherwise the undertaking would have to he in double the amount of the plaintiff's claim in the action, which frequently is much beyond the value of the property taken under the attachment. It is a mode of ascertaining the true value of the property, and does not impair or affect the provisional remedy of attachment given by the Code. Nor does such an order, in any degree, involve the merits of the action or affect a substantial right. The attachment can hold such property only as is actually seized, and the undertaking given on the discharge of the attachment stands in lieu of the property attached, so that, if it be double the value of the property, no substantial right of the plaintiff can be affected.

There are analogous provisions in the Code, where the court is authorized to ascertain values for the purpose of fixing the amounts of undertakings, and it will not be pretended that an appeal from an order made for that purpose would lie. In an appeal from a judgment directing the delivery of possession of real property, there must be an undertaking to stay execution, that the appellant will not commit waste, the amount of which undertaking must be fixed by a judge of the court. A reference for this purpose, must be not only proper, but frequently necessary, to inform the mind of the judge. (Code, § 338.) So, where the taking of an account is necessary for the information of the court, before judgment. (§ 271, sub. 2.) Orders made in these cases are not embraced among those made appealable by the Code. Another analogy is to be found in references to hear and determine the whole issues. Orders of reference in these cases, where the court had the power to make the order, have uniformly been held not to be appealable. (Bryan v. Brennon, 7 How. Pr. 359. Dean v. Empire State Mutual Ins. Co., 9 id. 69. Ubsdell v. Root, 3 Abb. Pr. 142.)

The power given to appoint appraisers, leaves it entirely within the discretion of the judge or court, to whom the application is made; and the exercise of such discretion can not be reviewed. He is the sole judge of the sufficiency of the proof upon which he makes or refuses the order.

The appeal is from the whole of the order, a part of which requires the payment of costs as a condition. I am of opinion that the plaintiff having accepted the costs is precluded from appealing, even if the order was an appealable order. (Radway v. Graham, 4 Abb. Pr. 468.

The appeal must be dismissed, with $10 costs to the defendants.


text:
    William S. Woods, et al. plaintiffs and respondents, vs. Louis , F. De Figaniere, president, &c. defendant and appellant.
    It was decided in this case that where a joint stock company were sued in the name of their president, as defendant, he might be examined as “a party.” That the order was not invalid, because the affidavit on which it was obtained did not show that the cause was at issue. That appearing and claiming to be exempt from examination relieved the plaintiff from "the burden of showing that his fees were paid, and that to authorize his punishment for contempt under the Code, it was not necessary to show that the plaintiff was prejudiced by his refusal to attend.
    Heard in general term, before Bosworth, Ch. J. and Moncrief and Robertson, JJ.
    February 21, 1863;
    decided April 25, 1863.
   See the points decided in the index to this volume, under the title “ Practice—Examination of Parties.” And see the order and the appeal therefrom, with the opinion of the court at general term,-reported in 16 Abbott’s Pr. 1 ante p. 607.


author: By the Court, Bosworth, Ch. J.

text:
    Joanna Johnston, plaintiff and appellant, vs. Robert Johnston, defendant and respondent.
    The writ of ne exeat is abolished hy the Code of Proceedure. The only cases in which arrest is now allowed in civil actions are prescribed by the Code.
    (Before Bosworth Ch. J. and Mohcrief and White, JJ.)
    Heard May, 1863.
    Appeal from an order
    This action was brought by Joanna Johnston against Robert John Johnston, her husband, to obtain a limited divorce. The plaintiff obtained a writ of roe exeat, which the judge who granted it subsequently set aside ; and the plaintiff now appealed to the court at general term.

      Elbridge T. Gerry, for the appellant.

      Robert Jackson, for the respondent.
   By the Court, Bosworth, Ch. J.

This is an appeal by the plaintiff from an order made May 8, 1863, in this action, vacating, and discharging a writ of roe exeat issued herein on the 5th of May, 1863.

The writ was granted, ex parte, on a petition of the plaintiff, which states the pendency of this action ; that it is. brought by the plaintiff to obtain a limited divorce ; that an order was made herein on the 8th of December, 1862, directing the defendant to pay to the plaintiff, weekly, $10 as alimony pendiente lite, which has been regularly and duly paid ; and that the defendant threatens, and is about to remove from this state to Greenwich, in the state of Connecticut. The writ was set aside by the judge who allowed it.

It is conceded that if Fuller v. Emeric, (2 Sandf. 626,) was correctly decided, the writ was improvidently issued. But it is urged that Forrest v. Forrest, (10 Barb. 46,) and Bushnell v. Bushnell (15 id. 399,) overrule that decision, and that these two cases and Neville v. Neville, (22 How. Pr. 500,) present such an adverse array of judicial opinions, that Fuller v. Emeric should be reconsidered and disapproved.

The opinion in Fuller v. Emeric indicates a careful consideration of the question by the learned judge who wrote it, and shows that the Code was designed to abolish • this writ, and that the commissioners, in their report to the legislature, advis.ed that body that such was their design, and that the Code as they prepared it was, in their opinion, so drawn as to-accomplish that design. (2 Sandf. 629,)

The opinion of the learned judge in Forrest v. Forrest, (10 Barb. 47,) commences with the statement “ that the counsel on both sides agreed that the writ of ne exeat was abolished.” That learned judge held the opinion, however, that the writ was “ one of those provisional remedies which had been saved to suitors by sections 244 and 468 ” of the Code. (Id. 48.) That decision was made in October, 1850, and the Code, as it then was, should be looked at in considering it.

Section 244 (Laws of 1849, 663, ch. 138) was then in these words, viz: “ Until the legislature shall otherwise provide, the court may appoint receivers and direct the deposit of money or other thing in court, and grant the other provisional remedies now existing, according to the present practice, except as otherwise provided in this act.”

By the amendments made in 1851, (Laws of 1851, app. 80, § 244,) that section was amended, and as amended it commences with a specification of five cases in which a receiver maybe appointed ; and then follows this provision, viz: “The court may grant the other provisional remedies now existing according to the present practice, except as otherwise provided in this act.”

In 1852 this section was again amended, and the words above quoted were stricken out. (Laws of 1852, 656, § 244.) That this amendment was made in consequence of the decision in Forrest v. Forrest, (supra,) and to effect the abolition of this writ, if not already clearly accomplished, I do not affirm. But the repeal of that clause took away the basis of the opinion of the learned judge in tjiat case. Conceding to it the full consideration due to its ability, and the research and learning it demonstrates, still by the very reasoning in that opinion, it is clear that the writ is abolished. That opinion concedes that the Code as first enacted would have the effect to abolish the writ but for sections 244 and 468, (supra;) and if that be so, then, as the part of section 244, above quoted, is abolished, the power to issue the writ is gone. No one, I think, will pretend that section 460, which will be adverted to presently, standing alone retains it.

In Bushnell v. Bushnell, (15 Barb. 399,) the Supreme Court, in the second judicial district, held before three judges of great ability, decided that the writ was not abolished. That opinion proceeds upon two grounds : First, ab inconve-r nienti. (Id. 399, 401.) Second, upon intrinsic evidence furnished by sections 178, 179, “ of an intention of the legislature to leave the law of arrest and imprisonment where it was before the Code was adopted.” Id. 405, and 402-406.)

The first ground of argument is conceded to be unavailable in the face of a legislative enactment; and the argument in relation to the meaning of sections 178 and 179 is the only one to be reviewed."

Section 178 enacts “ that no person shall be arrested in a civil action except as prescribed by this act; but this act shall not affect the act to abolish imprisonment for debt, and to punish fraudulent debtors,’passed April 26, 1831, or any act amending the same, nor shall it apply to proceedings" for con- • tempt.”

Section 179 enumerates the cases in which a person may be arrested—provisionally.

Section 178 is the first section of the first chapter of title vir, which title is, “Of the provisional remedies in civil actions.” The title is a part of the statute.

We find here an absolute prohibition against the arrest of any party in any civil action, except in the cases and in the manner provided by’ the act itself. And this act provides in terms for every civil action, whether formerly an action at law or a suit in chancery. The preamble of this act declares that it is expedient ® ® * * that a uniform course of proceeding in all cases should be established ; and section 69 enacts that there shall be “ but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action.”

Then follows the prohibition of the arrest of any party in ' a civil action, except in the cases and manner specified in that act. Every remedy other than a civil action is defined to be a special proceeding. (§§ 2 and 3.) Hence it is evident that' the design of the Code was to regulate every remedy, either by requiring a pursuit of the means it specifically provides, or by a resort to such pre-existing practice as its provisions retain.

The writ in this case was. sought and granted as a remedy in this action, and may be held to be unauthorized because prohibited; without interfering with the power of the Court of Chancery, or any court succeeding to its general powers to issue it, where no action is pending, and without reference to a civil action existing or contemplated, if such a case for its exercise can occur under our system of government. The issuing of a ne exeat in a civil action is merely for the purpose of obtaining equitable bail in such action. (Hopk. 496. 2 Paige, 606. Exp. Bunker, 3 P. W. 812.) In the case before us it is issued solely to compel the defendant to give equitable bail, and is resorted to as a provisional remedy.

Unless, therefore, authority to issue the writ to arrest a party in a civil action is preserved by the concluding clauses of section 178, or some other section of the Code, it is clearly abolished. Ho one has contended that it is saved under the exception in regard “to. proceedings for contempt,” Does the exception as to the act abolishing imprisonment for debt, reserve authority to issue it ? The opinion in Bushnell v. Bushnell, (15 Barb. 402,) affirms that there are qualifications of section 178 which, in connection with section 179, “indicate the clearest intention on the part of the legislature to leave the law of arrest precisely as it stood before the passage of the Code ; that the act to abolish imprisonment for debt and to punish fraudulent debtors, passed April 26,- 1831, was framed with a view to preserve it untouched ; for the prohibition in the first section is against the arrest or imprisonment of any person, on any civil process issued out of any court of law, or any execution issuing out of any court of equity.” (Id. 405.)

The qualification of section 178, by declaring that it should not affect the act to abolish imprisonment for debt, was designed to leave creditors at liberty to pursue the remedies prescribed by that act to reach a fraudulent debtor's property, and to arrest him as a part of such remedies in the cases allowed by that act, although such cases and modes of arrest might not fall within the enumeration contained in section 179. But it was not designed to allow a person not proceeded against under that act, to be arrested in a civil action, except as the Code authorizes it to be done; the very marked difference between section 1 of the non-imprisonment act and section 178 of the Code, is quite conclusive to my mind against the inferences claimed in Bushnell v. Bushnell.

In the former, prohibition in equity suits is only against arrests on execution. In the Code it is against arrests in every equity suit and every action at law, either as a provisional remedy or an execution, except to punish for contempt and in proceedings had under and according to the non-imprisonment act.

It was because the non-imprisonment act only prohibited arrests on executions in equity suits, that the chancellor, in Brown v. Haff, held the writ was not abolished by it. (5 Paige, 235.) In view of the specific and restricted terms of that prohibition, the chancellor said : “ The legislature, therefore, have not thought it expedient to deprive this court of the power of requiring this kind of bail, in cases which are clearly of equitable cognizance, where the defendant is about to elude the justice of the court by removing beyond its jurisdiction.” But he added, that “in cases of mere legal cognizance, in which the court would not have granted a rae exeat previous to the act of April, 1831, this court will not extend its jurisdiction for the purpose of giving to a complainant the benefit of equitable bail, although the defendant is about to remove from, the state.” Such being the practice under the act of 1831, a practice clearly not prohibited by it, the legislature, on enacting the Code and prescribing the future practice of the courts, where every court was to be a court of chancery, as well as of law, and every judge a chancellor, ■ and providing as well for equity suits as for actions at law—in short, for every civil action—prohibited absolutely the arrest of any person, either as a provisional remedy or on a final process, except in the cases and in the manner provided by the Code itself. The arrests authorized by sections 178. and 179 are allowed as provisional remedies. Sections 286 and 288 provide for arrests on final process, and section 292 (subd, 4,) for an arrest after issuing an execution against property, and prior to its return.

It is said in Bushnell v. Bushnell, (15 Barb. 405,) that section 178 declares that its provisions shall not affect the right to arrest upon proceedings for contempts, nor in those cases where the power is given in the act to abolish imprisonment for debt; and the five several subdivisions of section 179 enumerate all other cases in which a defendant might have been arrested under the old law.”

The non-imprisonment act (Laws of 1831, 396, ch. 300,) does not provide for arresting and holding a party to bail, as a provisional remedy, in any case. It authorizes “ the arrest of a party against whom a suit was commenced or a judgment had been obtained in any suit or proceeding instituted for the recovery of money due upon any judgment or decree, founded upon contract, or due upon any contract, express or implied, or for the recovery of any damages for the non-performance of any contract,” (§ 1,) in proceedings had in conformity with sections 3, 4 and 5 of that act. If he failed to controvert the facts alleged against him, or if they were established, though controverted, he was to be committed, (§ 10,) and remain in custody in the same manner as other persons on criminal process, (§ 11,) until final judgment in his favor, unless he prevented a commitment by complying with section 10; or, if committed, obtained bis discharge as- provided'by that act, ‘ (§ 178,) by declaring that it should not apply to that act designed to save to creditors the right to pursue the remedies given by it, but not to enlarge the class of cases in which legal or equitable bail might be compelled, in a civil action, as a provisional remedy.

If it be meant that section 179 only enumerated cases in which a party could be held to bail prior to the act of 1831, it may be answered, that the matters specified in subdivision 5, were not grounds for holding to bail where the action itself did not confer that right.

Section 179 authorizes the arrest of a party, and compels him to give bail to the action, in a 'variety of cases where the act of 1831 prohibits it; namely, in all the cases enumerated in section 1 of that act, and not contained within the exceptions specified in its second section.

Having provided for compelling bail in actions prohibited by' the act of 1831, but designing to leave the creditor the remedies provided by it, section 178 enacts that its first clause shall not apply to that act; and it so enacts, to forbid its repeal being urged as having been effected by necessary implication. It follows, therefore, that section 178, by enacting that “no person shall be arrested in a civil action except as prescribed in this act,” exempts every person from arrest in a civil action, either as a provisional remedy or on final process, except in the cases and in the manner prescribed by the act. This is a civil action, as defined by sections 1, 2, 3, 4, 5, 6 and 69 of the Code ; the defendant has been arrested in it, in a manner and for a cause not enumerated in the Code. It is only by arguing that the legislature could not have intended that which_the; Iahgqage of the Code clearly expresses, that the conclusion, that the power to arrest a party on a ne exeat in a civil action has been,abolished, can be avoided.

The Opinion- viri: Neville v. Neville, (22 How. Pr. 500,) as that of an,’able'jurist, (deserves the highest consideration. It devoteshowever, but a/few lines -to the consideration of the question before us, and is based mainly on Bushnell v. Bushnell, (supra;) that the writ is not abolished, is not involved in the judgment pronounced, because he discharged the writ.

Section 468 of the Code — the only one, except 224, relied upon in Forrest v. Forrest, (supra,) as retaining the writ of ne exeat as a provisional remedy — has not been changed since its exactment. It is in these words, viz : section 468, “ All statutory provisions inconsistent with this act are repealed ; but this repeal shall not revive a statute or law which had been repealed or abolished by provisions hereby repealed. All rights of action given or secured by existing laws, may be prosecuted in the manner provided by this act. If a case shall arise in which an action for the enforcement of a right, or the redress or prevention of a wrong, can not be had under this act, the practice heretofore in use may be adopted, as far as may be necessary, to prevent a failure of justice.”

The first sentence of this section clearly has no application to the case in hand ; if the second sentence can be supposed to have, it is against the power to issue the writ. The right of action which is the foundation of this suit, was given by the laws existing when the Code was enacted; and the provisions of the Code applied to it in respect to the general mode of prosecuting it. Being such an action, it is not within the last sentence of the section. That is a saving clause, to cover any imagined case not present to the mind of the commissioners, which might possibly occur, in which the forms of proceedings enacted by the Code, could not be applied so as to prevent a failure of justice, without resorting, in some degree, to the pre-existing practice. But the arrest of a party in every civil action, no matter what it may be, whether 'before judgment, as a provisional remedy, or after judgment, to enforce it, is the subject of express and precise legislation. That is explicit that in no civil action, whether one heretofore cognizable solely by a court of equity, or a court of law, shall any person he arrested before or after judgment, except as the Code prescribes, save in proceedings under and according to the non-imprisonment act, or in cases of contempt. I do not. therefore, see any sufficient reason for overruling Fuller v. Emeric, (supra,) or questioning its accuracy. The order ap- ' pealed from should he affirmed.

Ordered accordingly.


author: By the Court, Bosworth, Ch. J. Robertson, J.

text:
    James Mason, plaintiff and respondent, vs. Zebedee Ring (adm’r and in his own right,) defendant and appellant.
    1. The plaintiff having recovered a judgment setting aside a conveyance, madt, by him, of certain lots of land, and requiring the defendant to reconvey them to him, the defendant appealed, and on such appeal, executed and deposited with the clerk of the court a deed of such land, as security, to abide the event of the appeal; he also stipulated with the plaintiff that any taxes and other incumbrances paid by the latter, should be a lien in his favor, in case he should not ultimately prevail in the action. The Court of Appeals affirmed' the judgment, but directed that the defendant be let in to prove a claim against the plaintiff, for services, and that the lands should stand as security for such claim, with power to the court below to release all or a part of the lands, or substitute other security, as might be equitable.

      ■Keld that this authorized the court below, pending the further litigation, to release and order sold sufficient of the land to repay to the plaintiff taxes and other incumbrances which had been paid by him.
    2. Pending the reference in such case, ordered under the decision of the Court of Appeals, to determine the amount due to the defendant, it is not proper to order another reference to ascertain what amount will “probably” be allowed him, and to release to the plaintiff so much of the land as is not necessary to secure such probable amount. The amount should be ascertained by prosecuting the first reference; and meanwhile the security should not be changed or diminished, unless the plaintiff shows that continuing the existing security is a matter of special prejudice to' him.
    (Before Bosworth, Ch. J. and Moncrief and White, JJ.)
    Heard May 8, 1863;
    decided May 16, 1863.
    In this action the plaintiff sought to set aside a conveyance of forty-five lots of land, in the city of Eew York, which he had made to James J, Ring, deceased, of whose estate the defendant, Zehedee Ring, was the administrator, and which was intended as a compensation for the intestate’s services and disbursements as attorney and counsel, and otherwise, during a period of thirteen years.
    The plaintiff obtained a judgment of this court, upon a trial before Mr. Justice Hoffman, requiring the defendant to reconvey to the plaintiff the land in question, from which judgment the defendant appealed, and pending the appeal he executed the deed required by the judgment, and deposited the same with the clerk of the court, to abide the event of the appeal. The parties then entered into a stipulation in which, after reciting the existence of. such judgment, conveyance and appeal, and the fact that there were taxes and assessments unpaid, and that other taxes and assessments might become a lien before the conclusion of the controversy, they agreed “ that if the said James Mason shall have paid, or pay and discharge, or cause to be paid and discharged, any taxes and assessments, liens which have, at any time since the said judgment, been, or now are, or hereafter, before the termination of the controversy as aforesaid, may in any way exist or encumber the said lands, or any part thereof, that the moneys so paid, with the interest upon them, shall, in case the said Mason shall not ultimately prevail, be and become a lien, in the nature of a mortgage, in his favor upon the said lands, and that the said Zebedee Ring, his executors, administrators, and assigns shall, in that event, pay the said Mason the amount of taxes and assessments thereon so paid, with the interest thereon.
    And that the said Zebedee Ring, his heirs or representatives, shall not be entitled to receive back from the clerk of this court the- said deed, and the same shall not be returned to him upon any judgment in his favor in the said action, or upon such appeals, until he or they shall have paid or reimbursed to the plaintiff, or his legal representatives, any sum or sums of money paid by him or them for any liens for taxes or assessments which existed upon the said lands at the time of the original judgment recovered before Justice Hoffman, or at any time thereafter, prior to the decision of such appeals, together with the interest thereon.”

      Upon the appeal to the Court of Appeals, that court set aside the conveyance, but held that the defendant was entitled to recover compensation for the intestate’s services, and opened the judgment appealed from for the purpose of having the value of the services, other than professional, ascertained and allowed to- the defendant j and for this purpose directed the court below to proceed by reference or otherwise, and declared that the land in question should stand as security for the payment of such sum as • might be found due by the plaintiff to the estate of the intestate. The remittitur contained some further provisions which are hereinafter stated, in the opinion of this court.
    On the 29th of November, 1861, the plaintiff applied to this court upon the remittitur and affidavits, and obtained an order referring it to- Henry Nicoll, Esq, to inquire and report on such claim. Some proceedings incidental to .the reference are reported. (10 Bosw. 598.)
    The plaintiff moved at special term, in March, 1863, for an order that the deed of the lands be delivered to the plaintiff, on his giving a mortgage thereon to the defendant for such sums of money as might ultimately be adjudged due to him, with leave to sell from time to time on substituting the proceeds of sales for the part sold : or that a part of the lots might be released from any lien in favor of the defendant, or that the plaintiff might have leave to sell or mortgage a part of the lots. This motion was made on affidavits alleging that delays in the prosecution of the reference, to ascertain the defendant’s claim, had been caused by the defendant, and that meanwhile the plaintiff had paid upwards of $17,000 taxes and assessments on the forty-five lots, and that the value of all the lots was upwards of $150,000, and that if nine df the least valuable were sold they would probably produce upwards of $21,000, sufficient to repay the assessments in question.
    The defendant opposed this motion upon an affidavit explaining the delays upon the reference, and alleging that several of the lots would have to be taken for opening new streets, and that what would remain would be very heavily assessed for improvements, and that the lots remaining, if enough were sold to repay the assessments already paid, would not much exceed in value the amount of the defendant’s claim, if substantiated, and that the security now held by the defendants ought not to be diminished.
    The motion was granted.
    Pursuant to this decision, an order was entered directing the clerk to deliver the defendant’s deed to the plaintiff, upon the plaintiff’s delivering in return therefor, a mortgage on thirty-six of the lots, conditioned for the payment of whatever sums should ultimately be found due to the defendant in the action, and on the plaintiff at the same time delivering a release of the covenants contained in the stipulation above referred to ; and further providing that it be referred to the same referee who was proceeding with the investigation of the defendant’s claim, “ to inquire and report how many of the said thirty-six lots of land, if any, will be necessary or required to give the defendant sufficient security for the payment of the amount likely to be awarded to the defendant on the final judgment in this action ; * * * and also any probable amount of taxes and assessments likely to accrue on such portion, if any, of the said thirty-six lots so required, before the termination of this action ; and that on the coming in and confirmation of the report of the referee, on the inquiry hereby directed, the said defendant shall execute and deliver to the plaintiff a release from the said mortgage, of all of the said thirty-six lots of land as shall not be reported as necessary or required to give the defendant sufficient security.”
    From this order the defendant now appealed.

      William Curtis Noyes, for the defendant, appellant,
    Argued that the stipulation gave Mason only a lien on the land for his payments, and no right to enforce reimbursement, until the termination of the controversy ■; and that the whole property was no more than security for the probable amount of the defendant’s claim ; and that to compel the delivery of a deed and the acceptance of a mortgage was a substantial alteration of the decree, and of the contract of the parties.

      Henry A. Cram, for the plaintiff, respondent,
    Insisted that the decision and remittitur of the Court of Appeals empowered this court to make the order appealed from; and that as to form and detail, its provisions were matter of discretion ; which discretion, if its exercise could be reviewed on this appeal, was wisely exercised in this case.
   By the Court, Bosworth, Ch. J.

The remittitur from the Court of Appeals, contains the following provisions, viz :

And it is further ordered and adjudged that the said Superior Court may, from time to time, on the application of the plaintiff, make such order as to the forty-five lots standing as security aforesaid, as-said Superior Court may deem proper, either by releasing entirely or in part such forty-five lots as such security, or by allowing other security to be substituted, the said Superior Court to have .the full power to do, from time to time, what shall be just and equitable between the parties as to security.

And it is further ordered that on the delay or the default of the defendant to prosecute the inquiry hereinbefore mentioned, the plaintiff shall be at liberty to prosecute the same. It is further ordered that this judgment is to be without prejudice to the right of the court below to give such effect to any stipulation between the parties as such court shall think proper.” These provisions confer upon the court authority and jurisdiction to make the order appealed from.

Assuming that the manner of exercising discretion in making the order may be reviewed on appeal, we perceive nothing justifying a reversal of so much of it as directs a release of the nine lots. The accuracy of the valuation affixed to the nine lots to be released is-not questioned, and it exceeds by only a small sum the advances made by the plaintiff to pay taxes and assessments. ^

So much of the order as directs a rerefence to ascertain the amount likely to be awarded to the defendant on the final judgment in this action, while a reference is pending to determine that amount, is not free from objection. The prompt and due execution of the latter order of reference, will render the former an idle ceremony. There is no reason why the amount to be allowed to the defendant should not be ascertained with reasonable diligence. ' If there are intrinsic difficulties in ascertaining that sum, and if those difficulties necessarily require considerable time, there will exist the same difficulties in the way of a more speedy ascertainment of what the sum is likely to be. The plaintiff is authorized to prosecute the inquiry as to the amount actually due, if there be delay or default on the part of the defendant. And if there be no such delay or default,' it is difficult to perceive why there should be a reference to ascertain the probable amount pending the progress of a reference to ascertain the actual amount.

The plaintiff is not entitled to a release of the lots merely because he may desire it. Any amount which may be found due to the defendant is declared to be a lien on the lots. Unless it be shown to be a matter of special prejudice to the plaintiff to continue the existing security, so that justice to him and a due regard to his interests require that he should be permitted to substitute other security, or to have additional lots released, the defendant should not be deprived of the lien which has been adjudged in his favor. The order must be modified by reversing so much of it as directs a reference, and as thus modified it must be affirmed, but without prejudice to the plaintiff’s right to apply hereafter, from time to time, on showing facts calling for the interposition of the court, for a release of further lots, -with or without giving substituted security, or for such other relief as may be just.

Robertson, J.

By the judgment of this court, which in that respect is not altered by the judgment of the Court of Appeals, the conveyance to the defendant’s intestate, which was in question, has become irremediably a mere security for the amount due from the plaintiff ;• in a.ct a mortgage, while the plaintiff is owner of the fee.

The instrument under seal, executed by the defendant while the appeal was pending, although in form a contract, the rights arising under which, in other respects, may not be interfered with in this action, is a stipulation in the action, so far as the retention by the clerk of the court of the deed executed by the defendant for the security of' advances by the plaintiff for taxes and assessments is concerned. That instrument evidently contemplated the determination of the controversy by the decision in the court of last resort, either by the reversal or affirmance of the decision in this court; in the former case making the advances to be on account of property of the defendant, and in the latter of the plaintiff. The defendant can not deprive the plaintiff of the benefit of the deed in .the clerk’s hands as security for such advances, and as the. property now belongs to the plaintiff, the payments have turned out to be on his own account.

Whether the Court of Appeals had this agreement under seal before them when making the order in the remittitur is immaterial; they did give this court power to modify the security. They, probably, having overthrown the deed as a conveyance from client to counsel, intended that the latter should only have so much security as would protect his claim, and left it to this court to regulate it.

The plaintiff has strengthened the defendant's security, as well as protected his own interest, by the payment of taxes and assessments on the whole property. If it does not impair that security, he ought to have at least as much of the land conveyed to him as would enable him to reimburse himself for the outlay. The' valuation of the lots on Fifty-fifth streét, between Madison and Fourth avenues, seems sufficient for that purpose. The estimate of the rest of the property, given by an expert who is not contradicted by any one shown to have any knowledge of the value of real estate in the neighborhood, is shown to be §122,000, exclusive of the land taken for Madison avenue. The plaintiff has a judgment in this case for nearly $20,000, on which interest is due from its rendition in November, 1858, amounting at present to nearly $25,000. This judgment was for money had and received for the plaintiff’s use. The defendant’s claim, as sworn to, is about $75,000, principally for work and labor, and some expenditure of money, the details of which are not given; and there is no evidence that any account was ever rendered. Interest, therefore, is probably not allowable on it; (Rensselaer Glass Factory v. Reid, 5 Cowen, 587; Robinson v. Stewart, 10 N. Y. Rep. 189 ;) but if allowed for the same time as the plaintiff’s claim on the judgment, the amount would swell to $97,000, and deducting the sum of $25,000 due the plaintiff, the balance due the defendant would be $72,000. It would therefore be reasonable to give the defendant the benefit of as much of the land as would be security for $75,000, the largest amount which he would recover.

The plaintiff has never bound himself to pay any taxes and assessments, and each party, without the agreement before mentioned, would have been obliged to protect his own interest by keeping down taxes and assessments ; still it is possible that such incumbrances may arise,before the determination of the controversy in this case ; and as the plaintiff now is in the position of a mere mortgagor applying to redeem, enough property should be included in the mortgage to secure the defendant for any possible payments he may be obliged to make for taxes or assessments, unless the plaintiff can protect him by a separate bond of indemnity, with good sureties against them.

In order to ascertain how much the probable amount of taxes and assessments may be, and what part of this land may he left in the hands of the defendant as security therefor and for the payment of $75,000, in case he recover the same and interest, there must be a reference to the same referee before whom the proceedings for an account are pending, to determine what portion of the premises in controversy are sufficient for the purpose. The plaintiff may have forthwith a release of the property on Fifty-fifth street, if he desire that as part of the property to be released to him, and the reference can proceed as to the residue. Upon the confirmation of the referee’s report, the defendant must release to the plaintiff the property not reported to' be necessary for his own security, or the deed in the clerk’s hands can be delivered to the plaintiff, who shall thereupon execute and deliver to the defendant a mortgage to him upon the land so reported to be a proper security, conditioned to pay the amount to be found due, on the accounting, and also a release of the covenant under seal contained in the agreement already referred to.

The order made herein to be settled on two days’ -notice, and 1 amendments to be served one day before.


text:
    James Cock, plaintiff, vs. Justus Palmer, defendant.
    An appeal from a judgment which has heen subsequently settled, and of which satisfaction has heen acknowledged, will not he heard by the court merely to protect the rights of the respondent’s attorney to costs. If the settlement of the judgment he a fraud on his rights, Ms remedy is by motion.
    (Before Bosworth, Ch. J. and Moncrief and White, JJ.)
    Heard May 9,1863;
    decided May 16, 1863.
    This was a motion to dismiss an appeal. The facts are stated in the opinion.
   By the Court, Bosworth, Ch. J.

It appears that the parties to this action have settled the judgment appealed from, and that the plaintiff has acknowledged satisfaction of the judgment. It does not distinctly appear that the judgment has been satisfied of record, inasmuch as the paper read by the defendant as an affidavit made by him is not sworn to. If the defendant had not in fact sworn to it, the reading of it as an affidavit actually sworn to, is highly reprehensible.

The plaintiff’s attorney should not issue execution on a judgment satisfied of record, nor an appellate court hear an appeal from it, taken by the defeated party, when the attorney of the party acknowledging satisfaction is the only person asking for judgment on the appeal, and the opposite party objects to farther proceeding in the appeal, on the ground that the judgment is satisfied of record.

The- plaintiff’s attorney, if he thinks the settlement and discharge of the judgment is a fraud on his rights, should move to vacate the entry of satisfaction, as was done in Rooney v. Sec. Av. R. R. Co., (18 N. Y. Rep. 368;) or move for an order that thes defendant pay his costs, as in Read v. Dupper, (6 T. R. 361;) and see Barker v. St. Quintin, (12 M. & Wels. 441;) and Carpenter v. Sixth Av. R. R. Co., (1 Am. L. R. [N. S.] 410, 416 ; and note to the same, Id. 423, 4, Remedies.)

The cause must be stricken from the calendar, because it appears the judgment has been settled, and satisfaction of it acknowledged ; and the plaintiff’s attorney be left to his motion to vacate the entry of satisfaction, and for leave to proceed in the action to collect his costs ; or to take such further course as he may be advised. This motion is granted without costs.


author: Robertson, J.

text:
    Woods vs. De Figaniere.
    1. A joint stock company is not such a corporation as to entitle its officer to refuse to produce its papers in his custody, when required by subpoena.
    2. A party to an action, when examined as a witness before the trial, under sec- . tion 390 of the Code, can not be compelled to produce documents.
    3. The object and proper course of such examination stated.
    (Before Robertson, J. at Chambers,
    June, 1863.)
    Examination of adverse party before trial, and motion to punish for contempt.
    This action was by William S. Woods and John.D. Williams against Louis F. De Figaniere, President of the Pioneer Iron Furnace Company, a joint stock company, consisting of more than seven shareholders or associates, to recover $953.91 for goods sold and delivered, and other causes of action arising upon contract. The plaintiffs procured an order for the examination of the defendant before trial. The questions which arose during the examination sufficiently appear from the opinion.

      Anthony R. Dyett, for the plaintiff.

      Daniel M. Porter, for the defendant.
   Robertson, J.

The defendant is under examination as a witness under section 390 of the Code, and being asked as to certain documents, testifies they are in the possession of his counsel. He is sued as the president of a joint stock company consisting of more than seven persons, and refuses to produce such documents, or ask his counsel to produce them.

I do not consider the association represented by the defendant as such a corporation, or artificial person, (La Farge v. La Farge Fire Insurance Co., 14 How. Pr. 26,) as to entitle him to refuse to deliver papers under his control on a proper occasion, and when asked in a proper manner. The statute expressly prescribes that the association mentioned in it shall have none of the powers of corporations. (Sess. Laws, 1854, ch. 245, § 1.) The possession of each partner is, therefore, not the possession of the artificial body, but of such partner, and on"" that score the defendant is not excusable from producing such documents.

The most serious question arises, whether a party to a suit, examined as a witness before the trial, can be compelled under a subpoena duces tecum, or by force of the summons required by the statute (2 Rev. Stat. 393, § 10,) to produce documents in his possession. The Code, in section 388, provides that a court before whom an action is pending may order either party to give to the other an inspection, or copy, or permission to take a copy of any books, papers, and documents under his control, containing evidence relating to the merits of the action, or the defense therein. The penalty of a refusal is the exclusion of the paper from evidence, or punishment of the party refusing, or both. There is therefore ample remedy given for the examination and inspection of documents before the trial. The mode of compelling the attendance of a party is ordered.to be the same as of a witness conditionally. (Code, §§ 390, 392.) And that is by a summons. (1 Bosw. 611. 2 Rev. Stat. 393, § 10.) Neither statute provides for any compulsory production of documents in the possession of the party. The principal object of allowing a party to be examined before the trial, is not to permit the opposite party to fish for a case, but to ascertain how much he can prove of his case by his adversary’s testimony, without the aid of other witnesses. For any other purpose, there is no more reason why he should be entitled to examine his adversary before the trial than any other witness. For some purposes such proceeding takes the place of a bill of discovery. But in reference to documents, the Revised Statutes have obviated the necessity of such a bill, (2 Rev. Stat. 199, § 22 ; 5th ed. § 61;) but it confine the punishment for a refusal to striking out a defense. The Code (§ 388) repairs the defect by subjecting the party refusing to punishment, as well as excluding the paper. That section confers on every court in which an action is pending, the power in their discretion of exacting, upon due notice, from either party, the grant of a privilege to the other of inspecting or having a copy of any papers, books, or documents under the control of the former, containing evidence relating to the merits of the action, or the defense'therein. It evidently requires that the court should only exercise such discretion, where it is satisfied that such documents relate to such merits, and should give the party proper time to produce them. The examination of the party as a witness may possibly be employed to furnish the materials for- making such an application. Upon making it, the party applying for such an order would be bound to allege as much as- was' necessary in a former bill of discovery ; and the court must see and determine for itself that the production of such documents before the trial is necessary. (Hoyt v. American Exchange Bank, 1 Duer, 652. S. C. 8 How. Pr. 89.) There can be no inquisitorial examination to' ascertain whether there are not some documents material. It is very plain that if the right of examining a party carries with it the right of com-polling the production of books and papers in his possession, the discretion is transferred from the court to the attorney of the applicant, and no notice is necessary except that contained in the subpoena itself. The examination-of a party may be had before a county judge or commissioner, who will have power to decide what books must be produced, (§ 391;) and if they decide erroneously, irreparable mischief may be produced. Under such a proceeding the party to be examined is entitled to five days’ notice of his examination, but he may be compelled to produce documents on a few hours’ notice, before it is determined whether they are material in the cause, as on a subpoena duces tecum, the court will not inquire too nicely into the necessity of bringing the papers.

The right of every party to refuse to give or furnish evidence against himself is saci-ed at common law ; courts of chancery required such testimony to be given, but under restrictions against any abuse. Any innovation on such right by statute must be strictly pursued, and the mode of examining a party is strictly confined to that prescribed in tit. 12, ch. 6, of the Code.

The 39th section of the Code prescribes that a party may be compelled in the same manner as any other witness to testify conditionally. The statute respecting conditional examination requires the attendance of a witness for that purpose to °be obtained by a summons, not a subpoena. (2 Rev. Stat. 393, § 10. 1 Bosw. 611.) That very deviation from the ordinary

mode of enforcing attendance by a subpoena, shows that the statute did not intend to make the proceeding a mere substitute for the examination of a witness on the trial. In addition to which, the statute requires certain facts to be presented to the court to obtain the smmons, and is required to “be satisfied that the circumstances of the case require the examination of the witness in order to attain -justice between the parties.” (2 Rev. Stat. 392, §§ 2, 3.) The adverse party has a right to be heard before the examination can be proceeded with. Not a word is said in the statute or the Code respecting the compelling the production of papers on such examination. They assume that they can be obtained in some other way. In regard to a party, there is still less reason for insist- • ing on his production at his examination of papers in his possession, because he can be compelled to produce them on the trial. (Bonesteel v. Lynde, 8 How. Pr. 226.) His prior examination will inform the party whether he has such papers in his possession, or' other evidence may be necessary to establish them.

As I have stated before,'the conditional taking of a party’s testimony, is not for the purpose of finding out what kind of a case the examining party can make out, but to establish a case which he believes to exist, and ascertain whether he can prove it by his adversary’s testimony, and thus render other witnesses unnecessary at the trial. . Whether such proceeding is wise or fair, and not inquisitorial or liable to be abused, is not my province to determine ; at all events, its operation should not by any latitudinarian construction be stretched beyond the prescribed bounds.

The application for an attachment or Commitment of the party for not producing the papers or documents required must be denied, without prejudice to a proper application.