text:
    Andrews v. The Astor Bank
    Tn an action against the defendant as acceptor of a bill of exchange, which was addressed to J. L., President of the Astor Bank, and accepted by him, as president, the complaint did not aver that the bank accepted the bill, or that J, L. was president, or, as president^ had any authority to accept.

      (Special Term.
    May, 1853.)

      SeU, that it sufficiently appeared upon the face of the HU, that it was drawn upon, and duly accepted by the bank.
    Demurrer to complaint overruled, with costs.
   Bosworth, J.

The plaintiff seeks to charge the defendant, as acceptor of a bill of exchange, a copy of which and of the acceptance thereof, is set out in the complaint. The complaint alleges, that the plaintiff, who is the payee, of the bill, is the holder and owner of it; that no part of it has been paid, but that the whole amount of it is justly due to the plaintiff from the defendant; and prays judgment against the defendant for the amount of it, with interest from its maturity, besides costs.

The Code provides, that in an action upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specific'sum which he claims. (§ 162.)

All that has been done in this case, and the instrument is unquestionably one for the payment of money, and for the payment of money only. The acceptor is the party primarily liable, and his contract is absolute and unconditional.

In support of the demurrer, it is contended, that as it is not averred that the bank accepted, nor that Lloyd was its president and authorized to accept, and did accept as such president, there is no connexion between the bank and the bill apparent on the face of the bill; that none is averred by the complaint, and, therefore, it does not state facts sufficient to constitute a cause of action.

The bill is addressed,
To John Lloyd, Esq.,
“ President of the Astor Bank, “New York.”
And is accepted thus,
“ Accepted,
‘John Lloyd,
“ President.”

I apprehend, that any ordinary man of common understanding, holding, or being offered such a bill, would read it as being a bill drawn on the Astor Bank, and accepted by the bank, by its president.

The complaint states everything relating to it, which the Code requires, § 162. The Code having enacted such a form of complaint to be good, I have neither the power nor the inclination to adjudge it to be bad.

The system of pleadings and practice superseded by the Code, ° did not require any more to be stated than this complaint contains.

It was enough to declare on the common counts, annex a copy of the bill, and a notice that the bill and acceptance thereof was the plaintiff’s only cause of action.

The defendant was not at liberty to interpose a plea, unless he served with it an affidavit, that he had a good defence on the merits, to the bill or some part thereof. '

The defendant is subjected to no inconvenience. If there is any defence, it is to be set up by answer. There can be no doubt for what the action is brought, nor what proof is required to sustain it, if the acceptance of the bill by the defendant be denied.

The Code having provided this form of complaint, the plaintiff must have judgment on the demurrer.

It must not be supposed that this decision is at all at variance with the prior decisions of this court in Lord v. Cheesebrough, 4 Sand. 696, and Adler v. Bloomingdale, 1 Duer, 601. In each of those cases, it did not appear, on the face of the complaint, that the defendant was certainly liable, but to show his liability, extrinsic facts were necessary to be averred. In each case, the note declared on was not an instrument for the payment of money only, within the meaning of the Code; but that a bill of exchange, when the action is against the acceptor, is such an instrument, cannot be denied.

The defendant, on filing an affidavit of merits, may withdraw the demurrer and put in an answer in ten days, on payment of the costs of the demurrer, and stipulating to take notice of trial for the June term.


source: Caselaw Access Project

author: Bosworth, J.

license: Public Domain

text:
    Kattenstroth v. The Astor Bank.
    (Special Term.
    Bosworth, J.)
    May, 1853.
    A motion for the appointment of a receiver, when the order to show canse against the appointment is served before the commencement of the suit, will be denied as irregular.
    It is very doubtful whether the Superior Court has jurisdiction of a proceeding ■under the B. S. for the dissolution of a moneyed corporation.
    It is clear that the court has no authority to exercise the visitorial powers that were formerly vested in the Court of Chancery.
   Bosworth, J.

This action is brought to obtain a decree dissolving the corporation. A receiver is prayed for to wind up the affairs, and take the control of its assets; and also an injunction to restrain the defendant, and its officers, from interfering with the property. A motion is now made for the appointment of a receiver.

The motion is irregular. When the order to show cause was served, no action had been commenced. The summons was not served until the return day of the order. This is clearly irregular, and the objection having been taken preliminarily, it is an answer to this motion.

Whether this court has jurisdiction of such an action, it is unnecessary to decide on this motion.

Prior to the new constitution, the jurisdiction was vested in the Court of Chancery. (2 E. S. 462.)

The act of 1847 (Vol. i., p. 323, Laws of 1847) § 16, devolved it upon the Supreme Court.

If this court has jurisdiction, it acquires it under § 33 of the Code, sub 3.

The corporation is created under the laws of this state; is located, and transacts its business, in the city of New York.

The proceeding is, perhaps, one coming within the definition of an action. (Code, § 2.)

Whether § 471 has the effect to continue the jurisdiction exclusively in the Supreme Court, and only conforms the proceedings to be had there to those prescribed by the Code, it is unnecessary to determine on this motion.

E. Sandford, for plaintiff.

H. E. Mather, for defendants.

If this court has jurisdiction, then the mayor’s courts of cities, and the recorder’s courts of cities, also have it with respect to moneyed corporations, created under the laws of this state, and transacting their business in the cities where such courts are organized.

I think it clear that the Code has not given this court authority to exercise any of the visitatorial powers over moneyed corporations, which were vested in the Court of Chancery by art. 2, of title 4, of chap. 8 of 2 R. S., p. 462.

If it has not, the doubt is not weakened, whether it has given ,to this court jurisdiction of any of the proceedings regulated by that article.

Perhaps sub. 3 of § 33 of the Code only relates to actions to recover a debt or damages, or such equitable relief as one natural person may claim of another,

No case is made authorizing any court to proceed under § 38 of 2 R. S. 463. Whether a case is made under § 39, will be one of the questions to be determined, if the motion is renewed.

The motion is denied, with $10 costs, but without prejudice to plaintiff’s right to renew it, if so advised.

Approved on consultation.


text:
    Margaret Klein, by her next friend, John P. Treshman, v. Jacobund Hentz and Michael Hentz.
    (May Special Term, 1853
    In an action to recover damages for slanderous words spoken of a married woman, if the words are actionable per se, the husband is a necessary party as plaintiff.
    Where the words are actionable only by reason of special damage, the husband must sue alone.
   Bosworth, J.

This case comes before the court on a demurrer to the complaint. The plaintiff is a married woman, and brings the action to recover damages for slanderous words spoken of her by the defendants, whereby, as it is alleged, special damage has resulted; such as that her husband has been alienated from her, the support theretofore given her by her said husband has been withdrawn, and whereby she has been often deprived of food, raiment, and the necessaries of life; and that parties have refused to employ her, and pay her for her services, which they otherwise would have done.

The demurrer assigns for cause, that the husband is not a party, and is a necessary party plaintiff. 4

Beach v. Ranney, 2 Hill, 309, expressly decides two points.

First, That when the words are actionable per se, the husband must be joined with the wife as a party plaintiff.

Second, That where the words are not actionable per se, the husband must sue alone.

The husband is bound by law to provide support and maintenance for the wife. If she is deprived of the gratuitous aid of friends in consequence of the slander, the damage, in a legal point of view, results to the husband. In judgment of law, no damage results to her, unless she has been injured in her property or person. If the words are actionable p&r se, damage may result to her, but the action must be in the name of herself and husband. If actionable only by reason of special damage, the damage results to the husband and not to the wife.

The Code has not changed the rule in relation to parties, or the law arising on such a state of facts, as formed the grounds of adjudication in Beach v. Ranney, Code, 114.

The defendant is entitled to judgment. The plaintiff may amend the complaint within twenty days, both as to parties, and as to allegations of facts, on payment of the costs of the demurrer.

Approved on consultation.


author: By the Court. Bosworth, J.

text:
    Isaac R. Varian & others v. Thomas G. Stevens & others.
    (Before Oakley, Ch. J., Bosworth and Emmet, J.J.)
    General Term,
    June, 1853.
    The superior court has jurisdiction of an action for the partition of real estate, situate within the city and county of New York, irrespective of the residence of the parties (Code, § 123, sub. 2, and § 33, sub. 1).
    Jurisdiction over the person is as fully acquired by the voluntary appearance of the defendant, as by service of a summons (Code, § 139).
    'When, upon the petition of infants over the age of 14, a guardian ad litem has been appointed in a partition suit, the order is valid, although no summons had been previously served upon the infants.
    The jurisdiction of the court is, therefore, complete, when an answer on behalf of' the infants has been put in by the guardian so appointed.
    The appointment of a guardian ad litem, in a partition suit, is regulated by the E. S., and is made by the court (2 E. S., § 2, p. 31V).
    To such an appointment, the cases of The People v. Hoffman (1 Wend. 48V) and Grant v. Van Schoonhoven (9 Paige, 225) have no application.
    The personal service of a summons upon an infant of the age of 14, under § 134, sub. 4 of the Code, has no other use than to hasten the period, within which the plaintiff may apply for the appointment of a guardian, when the infant himself neglects to apply, since, until this appointment is made, there can be no further proceeding against the infant.
    When it is not denied that the signatures of infants to their petitions for the appointment of a guardian ad litem are genuine, it is no objection to the validity of the judgment in the action in which they were defendants, that it does not appear upon the record, that proof was furnished to the court that the signatures were genuine. It will be presumed that proof was given.
    A variance in the name of an infant as stated in the complaint, and in the petition for the appointment of a guardian, may be disregarded as immaterial, both under the Code and under the E. Statute of Amendments (Code, § 1V6 ; B. S., § V, sub. 10, p. 425).
    Order, compelling a purchaser to take a title, to which the only objections were those above stated and overruled, affirmed, with costs.
    This was an appeal by W. H. Paine, from an order made at special term, directing liim to complete a purchase made by him., of certain lots, sold under the judgment in this action, which was an action for the partition and sale of real estate, situate in the city of New York. The facts sufficiently appear in the opinion of the court.

      A. W. Clason, Jun., for appellant.

      James N. Platt, for respondents.
   By the Court. Bosworth, J.

This was an action for the partition of real estate, situate in the city of New York.

The real estate was sold in parcels, pursuant to a judgment in the action. W. H. Paine bought certain lots at the sale, and now appeals from an order made at special term, directing him to complete his purchase.

The purchaser objects, that the proceedings and sale are ineffectual to vest in him the title to the lots purchased, on the grounds:—

1. That the summons was not served on the minors, George W. Varían and Letitia Varian, personally, and that, therefore, the appointment of a guardian ad litem,, for them, was coram non judice, and void.

2. That while the summons and complaint described one of the defendants as “Letitia Varian,” the petition for the appointment of guardian was signed “ T. Letitia Varian.”

The action being for the partition of real estate, situate in the city and county of New York, this court has jurisdiction of it, irrespective of the residence of the parties interested (Code, § 123, sub. 2, and § 33, sub. 1).

Jurisdiction over the person may be acquired in two modes : First, by the service of a summons on the defendant, whether an adult or a minor, if over fourteen years of age (Code, § 134, sub. 4). Second, by the voluntary appearance of the defendant, which is declared by the Code to be “ equivalent to personal service of the summons upon him” (Code, § 139).

The two minors were severally over the age of fourteen years, and appeared, and put in an answer, by their guardian ad litem, appointed by an order made in the action on their own petition. The guardian ad litem was their general guardian.

They, therefore, appeared properly, and the only question on this branch of the case is, was the appointment of the guardian valid ?

It is objected to the appointment, that the court had no jurisdiction to make it, unless a summons had been first personally served on the infants, and upon proof of that fact—notwithstanding the infants themselves petitioned to have the appointment made.

To this, it may be answered, that no case or statutory provision has been cited, which sustains this point.

The People v. Hoffman, Judge of Herkimer Common Pleas (7 Wend. 489), only decides that, in an action at law, against an infant, commenced by the service of a declaration, the infant could not be required to appoint a guardian ad litem, and that the plaintiff could not procure one to be appointed, on the infant’s default. That decision was under the statute relative to such appointments, in actions at law, against infants, which authorizes one to be made, on the motion of the plaintiff, only in the event, that the “infant defendant neglects, for twenty days after the return day of the process by which he was arrested, to procure the appointment of a guardian to defend the suit” (2 R. S. 446, §§ 8, 10).

The case of Grant & wife v. Van Schoonhoven et al. (9 Paige, 255) relates to the appointment of a guardian made by a Master in Chancery, under the 146th rule of the late Court of Chancery, and not one made by the court itself.

That decision has no application to this case. The 146th rule, like the 100th equity rule, established in July, 1847, and the 57th rule of the Supreme Court, adopted in August, 1849, prohibited the appointment, under it, of a guardian ad Utem, in a partition suit.

The appointment of a guardian ad litem, in a partition suit, is regulated by the Revised Statutes, in relation to the partition of lands, and must be made by the court (2 R. S. 317, § 2).

Those statutes allow guardians ad Utem to be appointed for infant defendants, on ten days’ notice to them, or to their general guardians, whether the minors reside in or out of the state, and, of course, whether they have or have not been served with process (Laws of 1833, p. 311, § 1).

Prior to the Code, the Court of Chancery, under these statutes, even in ease of infants residing out of the state, so that no notice could be given to them or to their general guardian, appointed the registrar, or a clerk of the court, their guardian ad litem, to defend the suit (Minor et al. v. Betts et al., 7 Paige, 596).

In Concklin & others v. Hall & outers (2 Barb. Ch. E. 137), the purchaser at a foreclosure sale was compelled to complete his purchase, notwithstanding there were infant defendants, for whom a guardian ad Utem had been appointed, on the application of the plaintiff, by a peremptory order, instead of the usual order, that the person named be appointed guardian, unless the defendant, within ten days after the service of the order, should procure the appointment of another person: The court held, that the appointment was regular, so far at least as to protect the purchaser under the decree, and that there was no unbending rule of practice on the subject. (See Smith v. Bradly, 6 Smedes & Marsh. 485; Nelson v. Moon, 3 McLean, 319.)

The Code provides (§ 134, sub. 4), that in a suit against an infant defendant over 14 years of age, the summons must be served on him personally. But the service of the summons on him is of no possible consequence, except to hasten the period within which the plaintiff may procure a guardian to be appointed for him, if he neglects to apply himself (id. § 116, sub. 2); as no further proceedings can be taken against him until such a guardian is appointed.

Section 116 does not make it a condition to the infant’s right to apply, that he shall have been previously served with a summons. Such an act cannot add to his capacity or improve his discretion. The only effect of the section is, to deprive him of the right to apply, unless he makes the application within twenty days after the service of the summons; and unless, after that time, no application has been made by the plaintiff (Vide McConnell v. Adams, 3 Sand. Sup. C. R., p. 72).

In this ease the action had been commenced ; infants were parties. They were of an age which authorized them to apply, under the statute, for the appointment of a guardian. They did so apply; and, on their application, their general guardian was appointed.

The guardian ad Utem having been appointed, having con-seated to act, and having given the requisite security, it was not only his right, but his duty, to appear and defend the action, and he did so.

His appearance for the infants, after being thus appointed, was as regular and valid, as that of a retained attorney for an adult (2 R. S. 317, §§ 3, 36, 81, 89).

■ The objection, that one of the infants was named in the summons and complaint as “Letitia Varían,” while she was described in the petition for the guardian ad litem, as “ T. Letitia Varían,” is one which § 176 of the Code requires us to disregard. It is not pretended that neither was her true name, and if either was, the defect was cured by the Statute of Amendments (2 R. S. 425, § 7, sub. 10).

As to the objection, that it does not appear that any proof was furnished to the court, that their signatures to the petition were genuine, it is enough to say, that it does not appear that such proof was not furnished, and that there is now no pretence that they are not in fact genuine.

We all concur in the opinion, that there is nothing in any of the objections presented, which can throw any doubt upon the title acquired by Hr. Paine, to the lots purchased by him, and that the order appealed from should be affirmed, with costs.


author: Bosworth, J. Bosworth, J.

text:
    Gleason v. Moen.
    A counter claim, as defined by the Oode, includes only causes of action existing against the plaintiff on the record, and on which, under the old system, an action at law, or a suit in equity, might have been maintained against him.
    Hence, in an action against the maker of a negotiable note by an endorsee, facts that, admitted to be true, amount only to a valid counter claim against the payee and endorser, cannot be set up, for any purpose, in the answer of the defendant.
    But, if the facts, although pleaded as a counter claim, constitute a good defence by way of a set-off, or recoupment, and the note was transferred under circumstances that rendered it subject to all existing equities between the maker and payee, they may be set up as a bar, in whole or in part, to the plaintiff’s recovery.
    (Special Term.
    Before Bosworth, J.)
    May, 1853.
    Upon this ground, demurrer to the answer overruled, with costs.
   Bosworth, J.

This action came before the court on a demurrer to defendant’s answer.

The action is on a note made by the defendant, dated August 26, 1851, payable at 4 months from its date to the order of the Hudson Manufacturing Company, a corporation created by the laws of the state of New Jersey, and by the corporation, endorsed to the plaintiff.

The answer admitted the making and endorsement of the note, and that no part of it had been paid. It stated as a defence, that on the day of the date of the note, the defendant and payee of the note made a written contract under seal, by which, among other things, it was covenanted and agreed between them that the defendant, from the date of the contract and the 1st of January, 1857, should be the sole agent of the payee to sell all the India rubber and gutta percha goods manufactured by the payee during that period; that the payee within the first year, from October 1, 1851, should make, or cause to be made, such goods of the worth of $100,000, in case the defendant could sell and dispose of that quantity within that period, and thereafter to the worth of $300,000 per annum, upon like condition; that the payee would give to the defendant, as such agent, the exclusive sale of all its goods and wares (except the -sale of certain enumerated articles), during the stipulated term of such agency; and pay and allow the defendant for such sales in each year a commission of 12J per cent, on all sales not exceeding $100,000, and 7£ per cent, on all sales over that sum and not exceeding $200,000, and of 10 per cent, on all sales in each year exceeding last named sum. That defendant on his part agreed to make the sales as such agent, guarantee them, render a true account of them semi-annually, and pay to the corporation the net proceeds, one-half in his own notes, and one-half in cash and business paper received from said sales.

That it was further agreed, that the corporation should transfer to the defendant, at par, 800 shares of its capital stock, and the defendant agreed to take it and pay for the same in his own notes of $2000 each, payable at specified periods; and the corporation covenanted to indemnify him for any loss on said stock, occasioned by the failure of the corporation to perform the said contract on its part.

John E. Develin, for plaintiff.

The defendant, in pursuance of the contract, took the stock, and gave his notes as he agreed to do, of which the note in suit was one ; that he accepted and entered upon the agency, and was, and ever since has been able and willing, and offered, to perform on his part; that he could have sold in each year the largest quantity of goods named, but the corporation wholly failed to perform the contract on its part; did not furnish, and has not furnished such goods to the defendant for sale according to the contract, and thereby has deprived, or attempted to deprive, the defendant of his commissions on such sales ; and his stock has thereby become greatly depreciated in value, and almost worthless, whereby this defendant has sustained damages to the sum of $95,000, or thereabouts.

That the note sued upon was transferred to the plaintiff after it became due ; that he was at the time an officer of the corporation, and had full knowledge of the facts herein before stated.

Which damages the defendant claims to set-off, recoup, or prove as counter-claim to the demand of the plaintiff, and to have this action dismissed, with costs.

To this answer, the plaintiff - interposed a demurrer, and assigned the following causes, viz :

1. That the plaintiff is not a party to the alleged contract, or agreement, set forth in said answer.

2. That the plaintiff is not liable to the defendant for any damages sustained, or incurred by the defendant, by reason of the alleged breach of the said agreement on the part of the Hudson Manufacturing Company.

3. That the said alleged damages are not the legal subject of set-off, recoupment, or counter-claim against the claim made by the plaintiff in and by his complaint in this action.

This action was commenced in December, 1852.

T. H. Rodman, for defendant.

Bosworth, J.

If the defence set up in the answer is strictly a counter-claim, and only that, the demurrer is well taken. A counter-claim, as defined by § 150 of the Code, must he a claim or demand existing against the plaintiff, as a party to the contract, or transaction, out of which it arises. The language of the Code is too clear and explicit to be misunderstood. The counter-claim mentioned in section 150, must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action.

1. A cause of action arising out of the contract, or transaction set forth in the complaint, as the foundation of the plaintiff’s claim, or connected with the subject of the action.

2. In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.

These counter-claims may be such causes of action as have heretofore been denominated legal, or equitable, or both. (§ 150.)

It is obvious that a counter-claim, as here defined, includes only causes of action existing against the plaintiff on the record, and on which, under the old system, an action at law, or a bill in equity, could have been maintained against him at the suit of the defendant, according as the matter was one of legal or equitable cognizance.

The second sub-division would include,

1. Set-off of a demand existing against the plaintiff.

2. Any claim arising on a contract made by him, whether sealed or unsealed, and whether the damages were liquidated or unliquidated.

The first sub-division would include,

1. All breaches on the part of the plaintiff of any promise or covenant on his part, contained in the contract on which the action was brought.

2. Any equitable relief, to which a party is entitled . against a legal demand, and which formerly could only be had by filing a bill in Chancery. Also the affirmative relief, which, in equity suits, could be had only by a cross-hill.

Hence § 274 provides, that in the final judgment, the court “ may grant to the defendant any affirmative relief to which he may he entitled.”

The interposition, and proof of the counter-claim, secures to a defendant the full relief, which a separate action at law, or a bill in chancery, or a cross-bill, could have secured to him on an allegation and proof of the same facts. And this provision of the Code relates to only such causes of action as exist against the plaintiff, and might in their nature be the basis of an action against him at the suit of the defendant.

If the defence set up is a counter-claim, or nothing, the demurrer must of course be sustained, as the matters alleged create no right to recover damages from the plaintiff, nor can be made the basis of any equitable relief against him.

The insolvency of the payee of the note is not averred, and no case is made for relief on that ground.

If the facts averred and admitted by the demurrer would constitute a defence to the note, in the hands of an endorsee taking it after it fell due, according to the settled principles of law existing when the Code was enacted, it is a defence still, but not one falling within the definition of a counter-claim contained in § 150.

§ 112 expressly provides that, in the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to set-off or other defence existing at the time of, or before notice of the assignment. The only exception made is that of a negotiable promissory note, or bill of exchange, transferred in good faith, and upon good consideration, before due.

In this case, the note was not only transferred after it was due, but with actual knowledge by the endorsee at the time of the transfer, of the facts set up as defence.

When a note is negotiated after it becomes due, that fact alone subjects it, in the hands of the endorsee, to every defence that existed in favor of the maker against the payee at the time of the transfer. (1 Joh. Cas. 51, p. 331; 2 Caines’ Cas. in Error, 303; 2 J. R. 306; 2 J. R. 118; 8 J. R. 454; 1 Cowen, 396.)

It is alleged that by reason of the breach by the payee of the contract on its part, the stock for which the note was given has been depreciated in value, and that such depreciation exceeds the amount of this note. If such are the facts, the consideration of the note had failed before it was transferred. That would be a good defence against the payee, and the defence is equally available against any endorsee taking the note after it fell due, and with knowledge of the facts.

Batterman v. Pierce (3 Hill, 171) was an action by payee against maker on a note given for wood, purchased of the payee. As part of the transaction, the payee promised to indemnify the maker against any damage to the wood, in consequence of the burning of a fallow adjoining the wood. In burning the fallow the wood took fire and was consumed. It was held, that the defendant was entitled at law to have a recovery on the note, reduced by a sum equal to the damages resulting from burning the wood.

The stock, in this case, has been rendered nearly worthless by acts against which the payee covenanted, and which covenant was made at the same time as the note, and related to the same subject matter. In that respect, the case is like Batterman v. Pierce, the only difference being that that suit was between the payee and maker, while this is between the maker and an endorsee with notice, and taking the note when past due.

It is in substance a case of the total or a partial failure of the consideration of the note, as the covenant of the payee, as well as the stock, formed the consideration of this and of the other notes given at the same time.

If a defence of this character is available against a note negotiated after it fell due, and with notice of the facts, the answer cannot be demurred to, even if sufficient facts are not stated to constitute a good defence.

Ho new matter in an answer can be demurred to except such as constitutes a counter-claim. (Quin v. Chambers, decided by the General Term, March 26,1853.)

In the case cited, this court indicated what it deemed to be the appropriate remedy in such a case.

The demurrer must be overruled, with costs, and permission is given to withdraw it on payment of the costs of the demurrer.

       Reported 1 Duer, &13.


author: Emmet, J.

text:
    McChain and another v. McKeon & Duffy
    (Special Term,
    June, 1853.)
    Where an execution issued against two joint debtors has been levied upon the property of one of them, the plaintiff will not be allowed to countermand it, and issue a new execution for the purpose of making a levy upon the sole property of the other defendant.
    Such a proceeding is emphatically unjust and illegal, when it appears that the first execution was withdrawn at the request of the debtor upon whose property it was levied, and with the express purpose of screening him from the payment of any part of the debt, and collecting the whole from the property of his co-defendant.
    When the first execution so levied is not withdrawn, and another issued with the consent of all the defendants, the court will order the second to be set aside, and the first to be returned satisfied.
    The rule that a levy, under an execution, upon sufficient property to satisfy the judgment, does not operate per se as a satisfaction, is only applicable when the collection of the debt, by force of the levy, is not defeated by the act or fault of the plaintiff.
    An assignee of the judgment stands in the same position as the plaintiff upon the record, and the legal consequences of his acts are the same as of those of the plaintiff.
    Motion to set aside a second execution, and to compel a return of the first as satisfied. The facts are fully stated in the opinion of the judge.
   Emmet, J.

A judgment for $188.64 was obtained in this case, against the defendants, as joint debtors. They had been partners in business, had quarrelled, and the partnership accounts had not been settled.

The defendant, Duffy, resides in this city ; the defendant) McKeon, in Richmond county.

An execution on the judgment was issued to the sheriff of New York, who levied on the goods of Duffy, and placed a man in charge of them for safe keeping. It does not appear that any inventory was made, but it is not disputed that the property thus levied on was sufficient to have satisfied the execution.

While matters were in this position, Ralph S. Anderton, a friend of Duffy, and at Ms request, purchased and took an assignment of the judgment from the plaintiffs. The application for this assignment to Anderton was made by Duffy, and $100 of the money given for the judgment, was paid by a check of one Lawson Jones, drawn payable to Duffy’s order. The remainder was paid by Anderton’s own check for $93. Anderton swears that he purchased the judgment on his own account, and that he merely borrowed Lawson Jones’s check •from Duffy, and that he afterwards took it up, and returned it to Duffy.

On the 2d of June, Duffy and Anderton went together to Richmond county, filed a transcript of the judgment with the clerk there, delivered a new execution to the sheriff of that county, and directed him to levy on McKeon’s property without delay, which he accordingly did. The exact date of this second levy does not appear, nor is it important.

On the 3d June, the sheriff of New York discharged the keeper, whom he had employed, from the custody of Duffy’s property.

On the 4th, Duffy paid the sheriff of New York, $14.42, for fees of the levy made on his goods, and their safe keeping.

On the 5th, a written consent was obtained from the attorneys for plaintiff, directed to the sheriff of New York, that, on payment of all fees upon the execution, the same might be countermanded ; and, on the same day, a countermand of such execution, signed by Anderton, assignee of the judgment, was directed to the sheriff of New York ; and, on the 9th, the execution, endorsed “ countermanded,” (without date) was returned and filed in the clerk’s office.

The defendant, McKeon, now applies for an order, that the execution, which was issued to the sheriff of New York, be' returned “ satisfied,” and that all proceedings on the judgment, and on any execution issued to the sheriff of Richmond county, be stayed, or for such other relief as he may be entitled to.

It is clear that Anderton, even regarding him as the loná fide assignee of this judgment, stands, in regard to the questions now raised, in precisely the same position that the plaintiffs would have stood in, if no such assignment had been made. He took the judgment, subject to whatever the legal effect of the execution and levy on Duffy’s goods may have been; and whether the countermand of that execution, and the waiver of that levy, were his acts, or the acts of the plaintiffs, is wholly immaterial. It will simplify the consideration of this point, therefore, to throw the assignment out of view, and regard this transaction as if-the plaintiffs themselves had been the sole actors in it. The question, then, would be simply this—Can a judgment creditor of two joint debtors, having already issued an execution, and levied upon sufficient property of one of the debtors, countermand and abandon that levy, for the express purpose of levying for the whole debt, under a second execution, upon the individual property of the other debtor %

It is perfectly well settled in this state, that a levy on sufficient personal property to pay the debt, does not always satisfy the judgment (Green v. Burke, 23 Wend. 490; Ostrander v. Walter, 2 Hill, 329; The People v. Hopson, 1 Denio, 574). In the latter case, Judge Bbonsoit emphatically says, “ If the broad ground has not yet been taken, it is time it should be asserted, that a mere levy upon sufficient personal property, without anything more, never amounts to a satisfaction of the judgmentand he reiterates this proposition in these words : “ without something more than a mere levy, the judgment is not extinguished.” This general proposition plainly admits, however, that a levy on sufficient property may, under certain circumstances, be a satisfaction of the judgment; and in the case of Green v. Burke, above referred to, where Justice Cowen gave the subject a very full and elaborate discussion, while the same general proposition was decided, that a levy under an execution against sufficient property, was not, per se, a satisfaction of the judgment, it was thus qualified: “ that if the levy fail to produce satisfaction in fact, without any fault of the plaintiff, he may proceed to obtain execution of the judgment.” How, as a corollary from this, it would seem to follow, that, if it was the fault of the plaintiff, that the levy did not produce satisfaction in fact, he may not proceed otherwise to obtain such satisfaction.

We must assume that the levy in this case, made by the sheriff of New York, would not have failed to satisfy the execution and judgment, if that sheriff had been allowed to proceed, and sell under it. That result was defeated by the plaintiffs’ own act, and it was their fault, therefore, that the levy failed to produce satisfaction. This brings the case clearly within the principle of that decision, and the principle itself is so obviously founded in justice, that its soundness can hardly be questioned.

But this application rests upon stronger grounds than the mere interference of the plaintiffs, or of Anderton, their assignee, to prevent the first levy from being effectual. The presumption is strong, upon the facts, that, if Duffy was not the real purchaser of the judgment, it was, at all events, purchased at his suggestion and request, for the express purpose of screening him from the payment of any part of it, and of enforcing it exclusively against his co-defendant. Ho court, exercising equitable powers, should permit such an attempt to be successful. The primary equity of the case, while the partnership accounts between the defendants remain unsettled, is, that each should pay one-half of this judgment; but as the case is not now before the court in a shape for such an adjustment, the relief, on this motion, must be by an order, that the execution issued to the sheriff of this county be returned satisfied, as of the day when it was countermanded, and that all subsequent proceedings on the judgment be set aside. The plaintiffs have been paid, and the defendant, Duffy, will, no doubt, save Hr. Anderton harmless, from the loss of any money which he may have paid or advanced for the purchase of the judgment. Ho costs are allowed to either party on this motion.

This decision was affirmed at General Term.


author: Duer, J.

text:
    Quin v. Tilton.
    When a complaint is not properly verified, the verification is a nullity; but the error does not affect the regularity of a subsequent judgment.
    It appearing that an order, extending the time to answer, together with a copy of the affidavit upon which it was founded, and which stated the name of the defendant’s attorneys, and his absence from the city, had been served upon the plaintiff’s attorney,
    (At Chambers,
    June 22, 1853.)

      Held, that the service thus made, was equivalent to a notice of appearance.

      Held, that as the damages had been assessed without notice to the defendant, the judgment entered thereon was irregular.
   Duer, J.

The defendant moves to set aside the judgment as irregular, upon two grounds : 1. That the complaint is verified by an affidavit which, although it purports to be made by the plaintiff himself, is sworn to by his attorney; and, 2. That no notice of the assessment of damages by the clerk, was served upon the defendant, or his attorney.

The first objection may be at once dismissed. The defect in the verification rendered it a nullity, but had no effect on the validity of the judgment. It merely relieved the defendant from the necessity of answering under oath.

The second objection, however, I think has not been answered. It is proved, and is not denied, that the defendant obtained an order extending the time to answer, founded upon an affidavit, stating the name of the attorney whom he had employed, and his absence from the" city, and that a copy of the order, and of the affidavit, were duly served upon the plaintiff’s attorney. By the service thus made, the plaintiff was informed that the action was meant to be defended, and that the defendant had employed an attorney for that purpose; and, I cannot doubt, that the information so given, was equivalent to a formal notice of appearance in the action. The defendant was, therefore, entitled, under § 246, sub. 1, of the Code, to four days’ notice of the assessment by the clerk, of the amount claimed to be due, and as no such notice was given, either to the defendant or his attorney, the assessment, and the judgment founded upon it, were irregular, and the motion for setting them aside must be granted.

There is another objection to the regularity of the assessment, to which, without meaning to decide it, I shall briefly advert. It appears from the complaint, that the action is founded upon a promissory note, payable, not absolutely, but upon a condition, namely, the sale, by the defendant, of certain property then in his hands. It may be doubted, whether such a note is an instrument for the payment of money only, within the meaning of § 246, and, consequently, whether the clerk, when he assessed the amount due, ought not to have required proof that the contingency, upon which the defendant’s liability depended, had in fact occurred.

Judgment set aside, with costs.

Oakley, Ch. J., concurred. '


text:
    Higgins and another v. P. Freeman, and J. Rockwell, Administrator of C. P. Freeman.
    (Special Term.
    May, 1853.)
    To an action to recover a debt contracted .by partners, a surviving partner and the personal representative of a deceased partner, cannot be united as defendants.
    The surviving partner is alone liable at law, and it is only when the remedies against him are exhausted that relief may be had in equity against the representatives of the deceased partner.
    But as the objection to such a joint action appears upon the face of the complaint, it cannot be taken in an answer, but must be, raised by a demurrer.
    It is not waived, however, by the omission to demur, but as the complaint shows no cause of action against the representative of the deceased partner, it may be taken advantage of upon the trial under § 148 of the Code.
    A defendant against whom a judgment is prayed by the complaint, although . no summons has been served on him, has a right to appear and answer under § 139 of the Code.
    In an action upon a promissory note, an answer, which fails to contradict the allegations in the complaint, showing the possession and property of the plaintiffs, but merely denies their right to prosecute as owners, is plainly frivolous"
    The nature and grounds of the motion in this case are fully stated in the opinion of the judge.

      Dillon and O'Gorman, for plaintiffs.

      C. M. Tracy, for defendants.
   Bosworth, J.

The complaint alleges that Phineas & Charles Freeman, being partners, made and delivered a note of their firm to the plaintiffs, which is wholly unpaid. That subsequently Charles Freeman died, and that “ said Phineas Freeman and James Eockwell have been duly appointed joint administrators of all his estate and effects.”

It prays, “that the defendants be adjudged to pay the plaintiffs ” the amount due on the note, with the costs of this action. The defendant Eockwell has not been served with the summons.

The defendants have both appeared and united in an answer, which states, first, that they do not know whether the plaintiffs own the note, or are entitled to have and demand payment of the same. Second, that Phineas Freeman survived Charles Freeman, is still living, and resides in the city of New York; and objects that this action cannot be maintained against them as administrators, by reason of anything stated in the complaint, while said Phineas so survives.

To their answer they annex a notice, that they will prove on the trial, that there are other unpaid debts of the same class.

The plaintiffs move to strike out all of the answer except the first part, which puts in issue plaintiffs’ ownership of the note, or that it should be so altered “ as to stand for the answer of Phineas Freeman, the defendant served.”

The answer appears to have been drawn under the idea, that this action is one against both defendants as administrators, and only that; and their counsel contended on the argument, that it could not, when fairly construed, be regarded as an action against Phineas as survivor, and also against him and Eockwell as joint administrators.

The plaintiffs’ counsel insists that it is an action against Phineas as survivor; that Eockwell is made, nominally, a party as administrator; that he has no right to appear and answer until served with the summons; that if the court thinks he could not properly be made a formal party, his name should be stricken from the pleadings, and if he can be, that then the part of the answer to which the motion relates should be stricken out.

The complaint contains every averment necessary to a good complaint against Phineas Freeman as survivor.

It also avers the death of Charles Freeman; the due appoint- ' ment of both defendants as his joint administrators; and prays a judgment in ¡personam against both defendants. ■

It was well settled, prior to the Code, that if one of two joint debtors died, an action at law would only lie against the survivor. (1 Chitty’s Plea. 57.)

■ If the executors or administrators of the deceased party were sued, they might plead that the debt was a joint one and the . survivorship of the other debtor, or give it in evidence under the general issue. (Grant v. Shurter, 1 Wend. 149.)

In Marshall & Jenkins v. De Groot, administratrix (1 Caines’ Cases in Error, 122) a bill was sustained against the administratrix of one of three joint debtors who died solvent, after the remedy at law had been exhausted against the survivors, who were insolvent.

There is no allegation in this complaint of the insolvency of the survivor, Phineas Freeman.

Ho facts are stated on which an action can be maintained against the administrators, as it appears on the face of the complaint that Phineas Freeman is surviving. This objection cannot be taken by answer, because it appears on the face of the complaint. (Code, § 147.)

If it is improper to make the survivor and the representatives of the deceased debtor parties to the same action, or to unite a cause of action against one of them as a contracting party, with one against the representatives of the other joint debtor, as such, then these defects appear on the face of the complaint, and can be taken advantage of only by a demurrer. (Code, §§ 144, 147, and 148.)

I think the plaintiff is wrong in the position, that a person named as defendant, and against whom personally a judgment is prayed, has no right to appear and answer until he has been served with a summons.

The Code declares the voluntary appearance of a defendant equivalent to personal service of the summons on him. (Code, § 139.)

This assumes that he has a right to appear. It subjects him to the same liabilities as if personally served with process, and it would be a strange construction of this part of the Code that should hold, he did not thereupon acquire all the rights of a party actually served.

The practice was settled in chancery in accordance with the view here expressed, and numerous cases on the subject aré collected in Yol. i of Barb. Oh., p. 81, under the head of “ Appearance Gratis.”

If on the facts stated in the complaint, no action can be maintained against either defendant as administrator, this objection is not waived by omitting to demur (Code, § 148), but it may be taken at the trial.

' The plaintiff should be permitted to amend his complaint, by striking out the name of Rockwell as a party, and also the part of it averring the grant of administration, and by praying for judgment against Phineas Freeman only.

And all the answer should be stricken out, except that part which attempts to put in issue allegations of the complaint.

The only questions are, on what terms the order should be made. The defendants have put in an answer not recognised by the Code.

It does not controvert any material allegation of the complaint. The complaint avers that the firm made the note payable to their own order, and endorsed and delivered it to the plaintiffs; and that “ the plaintiffs are now the lawful holders and owners of the note.”

The answer does not controvert the facts that the firm delivered the note to the plaintiffs, and are now the lawful holders of it. It says the defendants have not any knowledge or information sufficient to form a belief whether the plaintiffs are “the owners of the note,” and “ are justly entitled to have and demand payment of the same.”

If this were the whole answer, it would be clearly frivolous, as the uncontroverted allegations show possession and property in the plaintiffs.

If Phineas Freeman had been sued alone, and this had been the whole answer, the plaintiffs would be entitled to judgment on it as frivolous.

But as Rockwell was made a party, and had a right to appear, and has appeared, I do not see how the court can avoid' giving him his costs of the action. But I do not think he should have any costs of this motion. The answer was one which could not properly be interposed.

The order to amend the complaint, and strike out parts of the answer, may be entered, directing the plaintiff' to pay Rockwell’s costs of the action, but without costs of this motion to either party.


text:
    Jay v. Martine.
    (June Special Term, 1853.)
    An execution upon a judgment cannot be issued upon the application of the executors of a deceased plaintiff.
    Sections 283, 284 of the Code, are only applicable when the parties to the judgment are living.
    The proper remedy for enforcing a judgment, by the personal representative or assignee of a deceased plaintiff, is by action under § 428 of the Code.
   Bosworth, J.

The plaintiff recovered judgment in this action, on the 18th of February, 1840, for $293.53.

On an affidavit of his subsequent death, and that no part of the judgment has been paid, his executors, on notice to the defendant, moved for an order that execution issue on the judgment. Can leave to issue execution, in such a case, be granted on motion ? I think not, but that the executors must bring an action, praying the same relief as ■ was formerly granted in a proceeding by sci/re facias.

Prior to the Code, if an execution was not issued within two years after judgment rendered, a plaintiff was obliged to resort to a scire facias to obtain execution, although the plaintiff add defendant were both living (2 R. S. 576, § 1).

This necessity is obviated by §§ 283 and 284 of the Code. Those sections, I understand to be applicable to those judgments only, to which the parties are all living. In all such cases, an execution will be allowed to be issued on motion.

Prior to the Code, if a plaintiff or defendant in a judgment died, before execution issued, none could issue until it was revived by sci/re facias, in favor of, or against the representatives of the decedent. An execution cannot be issued in favor of or against a dead man. It cannot issue in favor of the representatives of a deceased plaintiff, until there is a judgment to authorize and support it.

Their title to the judgment, and to enforce it, is to be established, not by motion, but in an action, under chap. 2, title 13, of the Code, § 428.

If §§ 283 and 284 are restricted to the parties to the record, there is not much opportunity for abuse, even though leave be sometimes granted on publishing a notice. The right of the party moving to be paid the amount of the recovery, and the liability of the defendant to pay it, are established by record evidence. The only debatable question that can arise is, whether it has been paid in whole or in part ?

After the death of a plaintiff in a judgment, it is an open question,—who owns it? who has succeeded to his rights? The question of title, as well as other questions that may arise in such a case, are not to be determined in a proceeding by scire facias, but by an action, seeking the same relief that was formerly obtained by scire facias.

An assignee of a judgment, if the plaintiff was dead, could bring a scire facias in his own name (Murphy v. Cochran, 1 Hill, 339). He can undoubtedly now maintain an action to obtain judgment, that he have execution of the original judgment (Vide Cameron v. McKay, 6 How. P. 372.)

The motion is denied, but without costs.


text:
    In the matter of Walker, an imprisoned debtor.
    A petition for the discharge of a debtor, imprisoned under an execution, cannot be heard by a judge at chambers. It must be presented to the court at a regular special term.

      (Before Oakley, Ch. J., Duer and Campbell, J.J.)
    At a General Term for hearing appeals from orders, July 29, 1853.
    It cannot be heard, in the first instance, at a general term: the court at general term exercising only an appellate jurisdiction, with the exception of the cases specified in § 265 of the Code.
    --, for petitioner.

      C. P. Kirkland, for the creditors.
   This was a petition by a debtor, to be discharged from his imprisonment, under the provisions of art. vi., tit. 1, chap. 5, of the 2d part of the Revised Statutes. The petition had been presented to the chief justice at chambers, who had refused to entertain it.

The judges were all of opinion, that the judge at chambers had no jurisdiction, and that the words of the statute, and especially of §§ 6 and 9 (2 R. S. 2d ed. p. 690), could only be satisfied by holding, that the application must be made to the court at a regular term. They were also of opinion, and so decided, that the petition must, in the first instance, be presented at a regalar special term, it being the plain intention of' the Code that the court, at general term, should exercise only an appellate jurisdiction, and this being also the construction which the court had uniformly given to its own rules (Rules of 1853, rule 2). The only exceptions were those created by § 265 of the Code, as last amended.


text:
    Griffin v. Dominguez.
    At Chambers,
    August 2,1853.

      jb. foreign consul cannot be examined as a judgment debtor, under the provisions of the Code; and if an order for his examination has been obtained, and served, he cannot be attached for his refusal to obey it.
    The objection to the jurisdiction of a state court is fatal, in whatever stage of the proceedings it is raised.

      Ajst execution against the defendant, upon a judgment obtained against him by default, having been returned unsatisfied, an order was made and duly served, for his examination, under the Code. He did not appear on the day appointed by the order, and a motion was now made, upon the proper affidavit, that an attachment be issued against him. It was objected, that the defendant was a foreign consul, and had been duly recognised as such by the general government; and, as these facts were admitted, it was insisted that the court had no jurisdiction.

      J. Loder, for plaintiff,
    contended—
    1. That the defendant, having allowed judgment to he entered against him, without setting up his privilege as consul, had finally waived it, and could not be permitted to avail himself of it in any subsequent proceeding founded upon the judgment. He died upon the eases of Davis v. Packard (6 Wend. 327); Flynn v. Stoughton (5 Barb. S. C. R. 115); and Koppel v. Heinrichs (1 Barb. 449).
    2. That the privilege of a consul is strictly personal, and differs from that of a minister or ambassador (1 Kent’s Com. 44 ; Wheaton’s Internat. Law, p. 293).

      M. C. Betts, contra,
    quoted 1 Sandford’s Sup. C. R. 690 ; 7 Peters, 276 ; 3 Code R. 143 ; Whittaker’s Practice, p. 60.
   Duer, J.

The cases of Koppel v. Heinrichs, and Flynn v. Stoughton, are overruled by a recent decision of the Court of Appeals. In the case to which I refer, Valarino v. Thompson, the suit was originally commenced in this court, and the defendant, Thompson, appeared, and, not denying jurisdiction, pleaded the general issue, with notice of a set-off. The cause was tried upon its merits, and the plaintiff obtained a verdict, upon which, after the argument of a hill of exceptions, judgment was rendered in his favor. The defendant then brought a writ of error to the Supreme Court, and assigned, as an error in fact, that, at the time of the commencement of the suit,» he was consul of the Bepublie of Ecuador ; and the fact being established, the Supreme Court, upon this ground, reversed the judgment.

In April last, the Court of Appeals affirmed the judgment of the Supreme Court, holding, that the exemption of a consul from suit in the state courts is not his personal privilege, nor even that of the government by which he is appointed ; but that, under the Constitution, and the Judiciary Act of Congress, it belongs exclusively to the United States; and cannot, therefore, be waived by any. act or default of the consul himself.

It follows, necessarily, from this decision, that it is the duty of a state court, whenever the fact that a defendant in a suit is a foreign consul is brought to its knowledge, to confess at once its want of jurisdiction, and declare its proceedings to be void. Where the jurisdiction of a court depends upon extrinsic facts, unless the facts,- destroying its jurisdiction, appear upon the record, as a general rule, the judgment upon that ground can never be impeached ; and, in such cases, it may be truly said, that the court acquires jurisdiction by the submission of the parties: but where the exercise of the jurisdiction is a violation of law, and cannot be justified by the submission or consent of the parties, all the proceedings, as corazn non 'jwMoe, are wholly void.

Even if the cases in the Supreme Court, which have been relied on, had still the force of authority, I should not have held that the defendant was precluded from setting up his privilege as a bar to the present application. An order for 'the examination of a judgment debtor is not a mere process to enforce the execution of the judgment. It is not founded upon the judgment alone, but upon the averment of new facts, which the plaintiff must prove, to entitle him to the relief that is sought. As a substitute for a creditor’s bill, it is, in its nature, a new suit, and, as such, is directly embraced by the Act of Congress, which gives the exclusive jurisdiction to the courts of the United States. It was held by this court, in the matter of Aycenina (1 Sand. S. C. R. p. 690), that an attachment against a non-resident debtor, as seeking the recovery of a debt from a consul, through the coercion of a state tribunal, was a suit within the meaning of the Constitution and of the Act of Congress, and the reason of the decision plainly embraces the present case.

The motion for an attachment is denied, and the order for the examination of the defendant discharged,

Oakley, Ch, J,, concurred.


text:
    Reuben Parsons, Appellant, v. John Travis, the Mayor, Aldermen, and Commonalty of the City of New York, and Smith D. Bellows, Respondents.
    (Special Term.
    Before Bosworth, J.)
    September, 1853.
    Where an appellant from the special to the general term deposits a sum of money instead of giving an undertaking, and appeals from the general term to the Court of Appeals, giving the proper undertaking, with sureties, the money so deposited must remain in court until a final determination in tfie Court of Appeals.
    A judgment was rendered in favor of the defendants for their costs of this action, which was duly docketed. The plaintiff appealed to the general term, and deposited with the clerk $250 in lieu of giving the undertaking prescribed by the Code, The judgment having been affirmed at general term, the plaintiff appealed to the Court of Appeals, and gave an undertaking which stayed all proceedings in this court, pending the appeal, on the judgment appealed from. The sureties not having been excepted to, he now moved for an order directing the clerk of the court to pay to the plaintiff the $250 deposited on' appealing from the judgment of the special term to the general term of this court.

      J. Graham, for the appellant,
    made and argued the following points,
    I. It has been held in Virginia, that the lien of a judgment, and the right to an elegit upon the judgment, are co-existent; that the one cannot exist without the other. (The Bank of the U. S. v. Winston, 2 Brockenbrough’s R. 252.) The ground is, that the lien of a judgment is created by statute, and falls or fails with the right to enforce it. An elegit is analogous to a fi.fa. in this state.
    II. Previous to the Code, bail in error was a supersedeas of execution. (Graham Prac., 2d ed. 951.) This relates to personal property.
    III. The undertaking in this case, on the appeal to the Court of Appeals, covers all matters included in such an undertaking as would have to be given on an appeal from a special to a general term of this court. The condition is that the appellant will pay the amount directed to be paid by the judgment, i. e, the judgment appealed from, or the part, &e., &e. (Code, § 335.) It must be that this undertaking, which can be objected or excepted to, § 341 (as regards sufficiency, &c.), by the respondents in the appeal, was intended to have this effect. The very stay which it works operates to discharge the sureties in any previous undertaking from liability. Are they to remain liable too, and until the determination of the second appeal? If the previous undertaking, if one had been given, would have been discharged, or merged in the undertaking in the Court of Appeals, by parity of reason, the money deposited in lieu of the former can be drawn out of court. There is no reason why it should be held.
    TV. If the motion is not gr; ,nted, there should be no costs on the application. It involves an important point, as yet unsettled.

      R. J. Dillion, for defendants,
    insisted that the motion ought not to be granted, upon the following grounds.
    I. The money stands in the place of the undertaking. If the appellant would not have been entitled to a cancelment of the undertaking he cannot be entitled to the money.
    II. The undertaking is not satisfied or discharged by the appeal. The condition has not yet been performed.
    III. The sureties are not discharged by the appeal. The staying proceedings being granted not by the consent of the parties, but by operation of law.
    IV. It was intended that the respondent should have a double security, one on each appeal. There is no precedent to show that the latter appeal cancels the bonds on the former. And costs should be granted because it is not a new point of practice, but one which, from the absence of authority, was never considered to be tenable.

      J. Graham, in reply.
    I. In relation to the respondent’s first point, the law cancels the undertaking referred to. That is the effect of the undertake ing on appeal.' It merges the former.
    II. In relation to the respondent’s second point, the condition of the undertaking is incorporated into the undertaking on appeal. The respondents can lose nothing by being confined to the undertaking on appealing to the Court of Appeals. They have the" right to see that it is sufficient. They can except to the sufficiency of the sureties. The idea of the law accumulating securities for the same thing, as the appeals multiply, is ' preposterous. If the previous undertaking was not discharged, if it remained in force, an undertaking securing the costs of the appeal would be sufficient. The maxim, Nihil est lieitma quod est contra raMonem, applies. The respondents’ position is unreasonable,
    III. It makes no difference how the time of the principal is enlarged, the sureties are discharged. They do not contract in view of an appeal. It is for this reason the law requires the insertion of their liability in the undertaking on the appeal from the judgment for which they would otherwise be bound.
    IV. To say that it was intended the respondents should have-a double security, is assuming the whole matter in dispute. Why this intention ? What reason is there for it ? It is true no authority can be found directly sustaining the application. Such a case has not arisen before. If it has, the adversaries of the party depositing the money in court must have consented to its withdrawal, and not exhibited the illiberality which the respondent’s counsel have manifested in this case in not extending a similar consent to the appellant. Costs ought not to be allowed, if the application is denied. The meagreness of the respondent^ reply proves that the point involved in it is enveloped in doubt.
   Bosworth, J.

Perfecting an appeal from a judgment at special term to the general term, or from a judgment of affirmance by the general term to the Court of Appeals, by giving such an undertaking as stays all further proceedings in the court below, upon the judgment appealed from, neither divests the,lien of either of the judgments appealed from, nor discharges the sureties on the appeal first taken from the special to-the general term.

Section 8 of 2 E. S. 359, prescribing the duration of liens by judgment, expressly provides that the time during which the party recovering a judgment shall be restrained from proceeding thereon by the operation of any writ of error, shall not constitute any part of the ten years, which is made the limit of the lien, as against purchasers in good faith, and subsequent encumbrancers. Section 6 makes the lien absolute and unlimited as against the judgment debtor. Section 1 limits it to ten years as against a certain class of persons, but even as against these, section 8 continues it beyond the ten years for such term of time as the plaintiff in the judgment shall be restrained from proceeding on it by the operation of a writ of error. This section, in effect, not only declares that an appeal, which operates as a stay, shall not divest the lien of the judgment, but shall not abridge its duration as against bond fide purchasers and subsequent encumbrancers, but on the contrary shall extend it as against them, for an additional period coexistent with the time that proceedings upon it are thus suspended.

It was because such was the law in this State, that § 282 of the Code provided a way in which a suspension of a lien by judgment might be effected “ during the pendency of the appeal as against purchasers and mortgagees in good faith,” But even this section does not confer power to suspend the lien as against the judgment debtor, and perhaps not as against subsequent encumbrancers by judgment.

The objection, that the sureties in the undertaking are discharged, by the extension of time procured by the principal by means of the stay, is untenable. It is not an extension obtained by an arrangement between the judgment debtor and the plaintiff, and by the consent of the latter. The extension is given by law, and against the will of the plaintiff. The principle contended for has no application to this case. The debtor has deposited his own money; no question arises as to the rights or liabilities of sureties, hut the only questions presented affect solely the rights and liabilities of the judgment debtor.

A judgment of a court of record is not merged by the recovery of a subsequent judgment in an action upon the first, either in the same or in a different court. (Mumford v. Stocker, 1 Cow. 178.) Nothing but actual satisfaction will cancel the first judgment, or divest its lien.

The judgment of the Court of Appeals, -if one of affirmance, like that of the general term, will have no other effect than to affirm the judgment, which, the money now applied for, was deposited to pay, in that contingency. The defendants have a right to resort to the sum deposited, in the event of an affirmance by the Court of Appeals, and the motion must be denied.

Approved on consultation.


text:
    Davis & Palmer v. The Mayor, &c., of the City of New York, Jacob Sharpe and others.
    When the act of a municipal corporation, against which relief is sought, affects injuriously the whole community over Which the corporate jurisdiction extends, the attorney-general is a necessary party to the prosecution of the suit.
    It is only when the corporate act which is a public wrong works also a special injury to particular individuals, that the action can be maintained in their names alone.
    Where the presence of other parties than those mentioned in the complaint is necessary to the complete determination of a controversy, the language of the Code, § 122, is imperative; they must he brought ire
    A judgment in an action, in which the attorney-general is a prosecuting party, hinds the public which he represents, and is a bar to an action by individuals for the same cause; consequently, his presence is necessary to “ the complete determination of the controversy/’ when the corporate act which is sought to he restrained or annulled is a public injury.
    (Special Term.
    Before Duer, J.)
    October, 1853.
   The original complaint in this action, which Was brought to restrain the corporation from making a grant of a railroad to be laid in Broadway, is set forth at large in the report of the proceedings on an attachment against the members of the Common Council. (1 Duer, p, 450, 464.) It was subsequently amended by making Jacob Sharpe and his associates—the grantees of the corporation—parties defendants.

The cause was fried upon the amended pleadings before Mr, Justice Duke, in June, 1853; the examination of witnesses, and the arguments of counsel, occupying the whole of that special term. The judge, in July, directed the question, whether the presence of the attorney-general, as a prosecuting party, was not necessary, to be re-argued. It was re-argued accordingly at the beginning of this term by Mr. Van Burén for the plaintiffs, and Mr. Flanagan for the defendants, and now, October 28, after stating at length the proceedings that had taken place before him, the judge said, that he was prepared, and should proceed to announce his decision on the question, which he had directed to be re-argued—namely, whether the action could be maintained by the plaintiffs alone, without the aid of the attorney-general as a prosecuting party, should the court be of opinion that the evidence was not sufficient to prove that the contemplated road would be a public nuisance, from which the plaintiffs, as owners of property on Broadway, or otherwise, would sustain a special injury. The objection, that the attorney-general was a necessary party, was first and very distinctly raised, on the argument of the motion for an attachment; and the only reply then given to it, was, that the complaint alleged, not only that the railroad, if established, would be a public nuisance, but that, as such, it would work a special injury to the plaintiffs. The reply was deemed satisfactory by himself, and by the judges who then assisted him; hut Mr. Justice Bosworth, in the advisory opinion, which he then gave, plainly intimated his conviction that it was only upon the ground of a public nuisance, producing a special injury, that the plaintiffs could be entitled, as individuals, to maintain the action. He (Judge Duer) had not then deemed it necessary to express any opinion upon the question, nor was he then satisfied in his own mind as to the course it might be proper to pursue ; indeed, he Was, at that time, inclined to think that, setting aside wholly the charges of a public and private nuisance, there were other grounds, stated in the complaint, upon which the plaintiffs, as tax-payers, whose private interests, as such, would be affected by the wrongful acts imputed to the defendants, might justly, and in their own names, demand the relief which they claimed. If the charge of a breach of trust should be proved, it then seemed to him, that the plaintiffs, as oestuis que trust, would be entitled to relief. Had he been satisfied by the evidence given on the trial before him, that the contemplated railroad would be a nuisance, specially injurious to the plaintiffs, without examining any other question in the cause, he would not have hesitated, upon that ground alone, to have decreed a perpetual injunction, but as the evidence, from the conflict in the testimony of witnesses, having equal claims upon his belief, had failed to produce that full conviction upon his mind, which could alone have justified him in making such a decree, he had found it necessary to consider whether the attorney-general, as had been intimated by Judge Bosworth, was not a necessary party to the further prosecution of the suit—in other words, Whether, without his intervention or presence, a final judgment could rightfully be pronounced. As this question had not, in his opinion, been fully argued, and he had found it, upon consideration, far more doubtful than he had originally supposed, he had directed it to be re-argued, and since the argument, with an anxious desire to arrive at a satisfactory result, had examined it with all the care and attention of which he was capable.

It had been said, however, that in the present stage of the cause, he had no right to consider the question at all; that the objection from the want of parties was now too late, and whatever judgment might be given, could never be alleged to impeach its Validity. He thought otherwise. In his opinion it was not merely his right, but his duty to consider the question. It was true that under the provisions of the Code, the, objection of the want of parties, if not taken by demurrer or answer— and it was not so taken in the proceedings before him—was deemed to be waived, (Code, § 98, 144, 147, 148.) But there were many cases in which the defect of parties, although not insisted on by the defendant, could not justly be disregarded by the court, and it was to meet such Cases that the Code provided (§ 122) that “ where a Complete determination of the controversy cannot be had without the presence of other parties, the court rrmst cause them to be brought in.” If, therefore, in his judgment, there could not be a complete determination of the present controversy, without the intervention of the attorney-general—as a judge, he had no discretion. The Code imposed a positive duty. He must cause the attorney-general to be-brought in.

If the determination of the question, whether the attorney-general was a necessary party, rested only on the decisions in England, it seemed to him that it was free from difficulty. In all the cases in the English books, in which the act of a municipal corporation is sought to be restrained, or annulled, as a violation of its charter, a breach of trust, or an excess of power, the attorney-general is found to be a party, either prosecuting alone, or in conjunction with, or Upon the relation of, individual corporators. He had not been referred to, nor had he been able to discover, a single case that could be construed as an exception ; not a single case, in which such an action, resting alone upon the grounds he had stated, had been prosecuted by individuals, in their own right and in their own name. If, therefore, the existing and uniform practice in England was to be received as evidence of a legal necessity,.he saw no escape from the' conclusion, that from the nature of the present controversy, the presence of the attorney-general was necessary to its complete determination. He had, indeed, doubted, for a time, whether the English decisions could be relied on as applicable. The powers of the attorney-general in England were derived from the • common law, and he was unwilling to say that any such powers belonged to the attorney-general of this state; he was unwilling to say that the latter possessed any powers beyond those which either expressly, or by a necessary implication, are given to him by statute. But an examination of the revised statute, which defines the powers and duties of the attorney-general, had removed the difficulty. By the rule of the common law, the attorney-general is a necessary party in all suits in which the crown is interested, and by the first section of our statute (1 B. S. 1Y9) it is made the duty of the attorney-general to “ prosecute and defend all actions, in the event of which the people of the state shall be interested,” in other Words, in all such actions, he is made a necessary party. In. England, a corporate act affecting injuriously a whole community, is deemed a public wrong, which, as such, the sovereign is bound to redress, and it is for this reason that in all suits in Which this redress is sought, the crown is held to be interested, The doctrine and the reasoning, it seemed to him, were just as applicable here, where fortunately the sovereignty resides, not in an individual, but in the people ; nor could he doubt that the people, as the sovereign power, ought to be considered as interested in the event of every suit in which the illegal act, which is sought to be restrained or annulled, may, from its nature, be justly treated as a public wrong. The English decisions, therefore, in his opinion, were not only proper to be consulted, but, unless it could be shown that they had been contradicted and overruled in our own courts, he held himself bound to follow them.

The judge then remarked, that the English cases went much further than he had before stated; they not merely proved that it was an invariable usage to make the attorney-general a party in suits like the present, but the grounds of the usage were explained; and he was expressly held to be a necessary party. He felt that the examination which he had given to these cases justified him in saying, that the general rule to be extracted from them was this—that when the act of a municipal corporation, which is the subject of complaint, affects injuriously the public at large—that is, the entire community over which the corporate jurisdiction extends—the attorney-general is a necessary party to the prosecution of the suit; and that it is only where the act, which, in this sense, is a public injury, is also productive of a special injury to particular individuals, that the action can be maintained in their names. If this was the true rule, it was manifest, and had not been denied, that it bore with a decisive application on the case before him, since, rejecting the charge of a special injury,, resulting from a public nuisance, the grounds upon which the grant of the railroad was impeached—-namely, excess of power, and breach of trust, were those, which every inhabitant of the city, and certainly every tax-paying inhabitant, had the same right to make the foundation of a suit as the actual plaintiffs. Setting aside the nuisance, if the grant, upon the grounds alleged, was illegal and void, the making it was a public injury, affecting not the plaintiffs alone, nor specially, but the entire community of which. (they are members. Eor the purpose of showing that he waa not mistaken in the import of the decisions, and that the rule which he had stated was constantly applied when a breach of trust in the misapplication of corporate property was charged, he would -refer to a few of the cases which it had been his duty to examine.

The judge then cited and commented upon the cases below 5 The Attorney-General v. Forbes, 2 Mylne & Craig, 129; Same v. Aspinwall, 1 Keene, 153 S. C.; 2 Mylne & Craig, 613; Same v. Corporation of Poole, 2 Keene, 190; S. C. 4; M. & C. 17; Same v. Wilson, 9 Simons, 30, in which the Vice-Chancellor said, “ where the object is to restrain the application of corporate property to any other than the public purposes to which it ought to be applied, the attorney-general is a necessary party.’* (Attorney-General v. Corporation of Liverpool, 1 M. & C. 171; Same v. Corporation of Norwich, 16 Sim. 228; Same v. Corporation of Litchfield, 13 Simons, 547; Same v. Mayor of Dublin, 2 Bligh N. R. 312; Spencer v. London and Birmingham R. R. Co., 8 Simons, 193; and Sampson v. Smith, 8 Simons, 373.)

When he had finished this review of the cases, the judge proceeded to say that the rule, which they plainly declared, or necessarily implied, was not to be regarded as technical and arbitrary. It had a solid foundation of principle, and was sustained by Very sound reasons of public policy. The object of the rule was to protect a corporation against a multiplicity of suits, and to secure, in that which is commenced, a final determination of all the controverted questions which it involved. When the suit is brought by the attorney-general, no other, involving the same questions, can be instituted; and when a judgment is pronounced in such a suit, as the attorney-general represents the public—the public, that is, all persons, are bound by the decision, (Sampson v. Smith, 8 Sim. 273.) But if individuals could maintain a suit for a general and public wrong, as many separate suits might be brought as there were members of the community, whose interests were affected; the pendency of one such suit would be no bar to the commencement of another, and the judgment pronounced would bind not the public, but the parties only. This was illustrated by what had in fact occurred. Three suits in relation to the Broadway railroad, two in the Superior and one in the Supreme Court, involving all nearly the same questions, had already been brought, and were now pending. It was to be remembered that it was not upon the metaphysical being, termed a corporation, nor upon the persons, by whom, for the time, the corporate powers might be exercised, that the heavy multiplied expenses of needless litigation would be certain to fall. They would be borne, in the result, by the corporators themselves, the whole body of citizens, and would form a positive addition to their public burdens Every inhabitant of the city liable to be taxed, had, therefore, a personal interest in the establishment and strict observance of a rule by which useless litigation would not merely be checked, but effectually prevented. It, therefore, seemed to him that the rule which he had deduced from the English cases, was in itself wise and salutary, and he must therefore hold that he was bound to follow it, unless it could be shown that in our courts it had, not merely been casually overlooked, but distinctly and deliberately rejected. The only case to which he had been referred, that with any semblance of reason could be represented as sanctioning an opposite doctrine, was the decision of the Supreme Court in the case of Christopher v. The Mayor of New York (13 Barb. 369), This was a recent and solitary decision, and with the utmost respect for the court in which it was pronounced, he could not regard it as an authority by which he ought to be controlled. It was evident upon the face of the report that the question whether the attorney-general was a necessary party, was by no means fully discussed or considered; nor indeed were the reasons for requiring bis presence adverted to at all. The learned judge who delivered the opinion of the court, referred only to two cases as sustaining his own views (Bromley v. Smith, Sim, 8; Gray v. Chaplin, 2 Simon and Stewart, 267), It was to be observed, however, that in neither of these cases were the defendants a municipal corporation; that in the second, the question whether the attorney-general was a necessary party was not raised at all, and in the first, was decided upon grounds which render it certain that, had the defendants been a corporation, his presence would have been required. He could not say, therefore, that this decision had altered or weakened his own deliberate conviction, that the attorney-general was a necessary party to the further prosecution of the suit before him—so necessary that without his presence the controversy could not he “ completely determined,”

He should therefore allow ten days to the plaintiffs to make their election whether they would bring in the attorney-general as a prosecuting party, or have an issue ordered for the determination by a jury of the question of public nuisance and special injury.

The plaintiffs elected to bring in the attorney-general,

       This decision was in effect affirmed at the -1t"™" 5p January. 1864.


author: Bosworth, J,

text:
    Lienan v. Lincoln and another.
    (Before Bosworth, J.)
    October Special Term, 1853.
    A general allegation in a complaint, that the defendant had received money, or property, to the use of the plaintiff, or of the assignor of the plaintiff, is had upon demurrer.
    Whether the money or property was so received as to render the defendant liable, is a question of law, and all the material facts necessary to present, and enable the court to determine the question, as facts constituting the cause of action, must he stated in the complaint,
    The plaintiff brought this action to recover a claim, or demand, which E. Zachrisson had against the defendants, and which had been sold and assigned to the plaintiffs. The complaint states that the defendants, £< on the 28th of February, 1852, were justly indebted to Zachrisson in the sum of $7946.36, with interest thereon, for moneys, notes, and effects, before that time had and received, to and for the use of the said Zachrisson, the particulars of which will appear on reference to the annexed account, which is true, and forms part of this complaint.” That being so indebted, they became liable to pay it to Zachrisson, or his assigns, when thereunto requested, and being so liable, they did, as plaintiff is informed and believes, promise to pay it to him.
    It avers a sale and assignment of the debt, to the plaintiff, in trust, and that he has a right, as owner, to the debt or demand, and prays judgment for the amount of it. The account annexed to the complaint, is in the form of debtor and creditor. As a specimen of its items, one is given, reading thus;
    <£ September 11,1851.—To notes received from Mercantile Insurance Company, for the loss - of steamer 1 Union’ , » , , . , $10,164.24.”
    The defendants demur to the complaint, and specify, as a ground of demurrer, that the complaint does not state facts sufficient to constitute a cause of action.

      F. M. Clarke, for defendant,

      E. H. Owen, for plaintiff.
   Bosworth, J,

The complaint is clearly bad. It does not contain “ a plain and concise statement of the facts constituting a cause of action,” The Code requires a complaint to contain them (§ 142), The rules by which the sufficiency of a pleading is to be determined, are those prescribed by the Code (§ 140). A stranger to this transaction can learn nothing of its precise nature or character, from the complaint.

Because a defendant receives notes and effects to a plaintiff’s use, he does not, as a matter of course, become liable to pay him the amount of them. Whether he has incurred such a liability, may depend upon a variety of facts; upon the pur« pose or object for which he received them ; whether he undertook to convert the effects into money, and to collect the notes; whether he has made himself liable for not collecting or converting ; whether he has disposed of them on his own account, or some of many other facts which readily occur to the mind.

Whether a defendant has received money or property to the use of another, is usually a question of law, depending upon facts which are to be litigated, and found by the court or a jury. Each of the material facts, essential to raise and uphold such a conclusion of law, is a fact which should be stated .in the complaint; and the whole of such facts constitute the cause of action. If enough are not stated, to raise and uphold such a legal conclusion, enough are not stated to constitute a cause of action, and the complaint is demurrable for that cause.

What the facts are, on which the plaintiff will insist, that, in judgment of law, certain moneys, notes, and effects were received by the defendants, to and for the use of Zaehrisson, the complaint does not state. • Nor does it state the facts, which are relied upon, as sufficient to create a legal liability of the defendants, to pay to him, in money, the amount of any notes they may have received to his use. It does not allege that they are due, have been paid, or misappropriated, or that the defendant has failed or refused to apply them to the purpose for which they were received, or to deliver them to the plaintiff. JQf the defendant is liable to pay the amount of any notes he may have received for the plaintiff, it is by reason of facts, .beyond that of so receiving them. If such facts exist, they are not stated. The facts which, in judgment of law, create such an indebtedness or liability, should be stated in the complaint, In this complaint, no facts are stated. It simply affirms a legal conclusion, without a statement of the facts on which it is founded. The account annexed to the complaint, obscures, instead of making fhe real grounds^of the claim apparent.

The defendant is entitled to judgment on the demurrer (Getty v. Hudson Railroad Company, 8 How. P. R. 177).

But the plaintiff may amend his complaint in twenty days, on payment of the costs of the demurrer.

Approved, oh consultation.


text:
    Lawrence v. Wright.
    Special Term,
    October, 1853.
    In an action, under tliti Code, to recover the possession of real estate, the facts set forth in the complaint must show that the plaintiff has a legal title to the premises in question; the mere averment that he has such a title is insufficient; Facts, constituting a cause of action, or a defence, in the sense of the Code; are physical facts, capable of being established by Oral dr documentary proof; not propositions, which are true in law.
    This was an action to recover the possession of certain lots bf land, in the city of New York.
    The complaint averred, that the lots which it described, ‘were, on or about the 15th of January, 1853, conveyed by Francis Price to the plaintiff, by a warranty deed. That by virtue of this conveyance, the plaintiff was seized of the premises, had a lawful title thereto; and was entitled to the possession thereof, and that the defendant was in the possession, and unlawfully withheld the same from the plaintiff, and upon these grounds demanded judgment.
    The defendant demurred; and assigned the following causes of demurrer.
    1. That the complaint did not show any right, title, or interest in Price, or any right in him to convey.
    2. That it did not allege, that either Price or the plaintiff was ever in possession of the property claimed.
    3. That it did not state facts sufficient to constitute a Cause of action.

      Stillwell & Swan, for defendant

      J. A. Wagstaff, for plaintiff.
   Duer, J.

It is very clear that this demurrer must be allowed. All the facts which the complaint avers, may be true, and yet the plaintiff not have the shadow of a right to the judgment which he demands. ' The only facts set forth in the complaint are, that on a certain day, one Price, by a warranty deed, conveyed the lots described to the" plaintiff, that the defendant is in the possession of the lots so conveyed, and withholds their possession from, the plaintiff. It is, however, quite certain that if, upon the trial of the action, these facts, and these alone, were proved on the part of the plaintiff, no evidence on the part of the defendant would be required. ’ The complaint would be at once dismissed. The facts, therefore, which it avers, do not show even a jorimá fade right to recover.

It is true that the complaint avers that, by virtue of the conveyance from Price, the plaintiff became seized by a lawful title of the premises in question, and is entitled to the possession, which the defendant unlawfully withholds; but these allegations are not of facts, which, as constituting the cause of action, the Code requires to be set forth, but are merely conclusions of law, which, as they do not follow from the facts previously averred, must be wholly disregarded.

The defendant, in an action to recover the possession of property distrained, damage feascmt, may aver in his answer, under § 166 of the Code, that he was lawfully possessed of the real property upon which the distress was taken, without setting forth his title; and it is perhaps to be regretted that a like compendious form of pleading has not been authorised in every action, in which an issue upon the title to real property is properly raised; but, as the Code is framed, the exception proves and establishes the general rule. It proves that, in every other action than that to which § 166 relates, a plaintiff or defendant, who relies upon his title to real property, must set it forth in his complaint or answer; that is, must set forth the facts which, if true, prove that the title, which he claims, exists.

I incline strongly to believe that the errors, which too frequently occur in pleadings under the Code, must be ascribed to a mistaken interpretation of the words, “ facts constituting a cause of action,” or “ a defence;” nor is the source of the mistake difficult to be explained. In writing, and in conversation, the term “fact” is frequently, and perhaps not improperly, applied to an abstract proposition, a proposition true in morals or in law, but of which the truth depends, not upon testimony, but upon authority or reasoning, and in this sense of the term it is obvious, that every just conclusion of law is a fact. That such a conclusion, however, although just in itself, is not a fact within the meaning of the Code, is evident upon slight reflection, and a single example will be sufficient to prove.

There is no apparent impropriety in saying, “ It is a fact, that Peter owes John a sum of money,” but who will assert that a complaint would be good that should aver that the defendant owes the plaintiff a certain sum for which the plaintiff demands judgment, without alleging a single fact from which the debt could arise? Yet if the words of the Code, “facts constituting a cause of action,” refer to conclusions of law, and not to the facts from which, if admitted or proved, the conclusions are to be drawn, even such a complaint would be free from objection. It is in reality no worse than that now before me, nor than many that almost daily pass under our observation.

All these errors in pleading will be avoided if it is constantly remembered that the facts which the Code requires to be set forth are not true propositions, but physical facts, capable, as such, of being established by evidence, oral or documentary,' and from which, when so established, the right to maintain the action, or the validity of a defence, is a necessary conclusion of law—a conclusion which the court will draw, and which it is quite unnecessary that the pleader should state.

Approved upon consultation.

Demurrer allowed, with the usual liberty to the plaintiff to amend the complaint upon payment of costs.