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

text:
    Barry v. Whitney and Tucker, and seven other causes.
    The provision in the code, as to agreements between attorney' and client for the compensation of the former, does not deprive courts of the superintending power they have always exercised over arrangements and dealings between attorney and client, to prevent overreaching, oppression or fraud.
    Such power will be exercised in a summary way, as formerly.

      It seems, the code in allowing contracts for the compensation of attorneys, at pleasure, has not abrogatedthe statute of champerty and maintenance.
    ¡Settlements and releases between attorney and client, set aside, and the attorneys ordered to refund or stand committed, on the ground of overreaching and fraud.
    (Jan. 18 ; and again
    March 22, 1851.)
    Motion against two attorneys of the court, which was heard before all the justices. The facts are collected in the opinion delivered.

      R. J. Dillon, for the plaintiff.

      J. Ooch/ram,, for the attorneys.
   By the Court. Oakley, Ch. J.

In these cases the widows of several persons killed by the falling of a wall in Water street, employed two attorneys of this court to commence actions against the defendants, Whitney & Tucker, to recover damages for the losses they had sustained, by the death of their husbands. The suits were commenced in the name of one of these attorneys, the other acting as counsel. Soon after the suits were instituted, a compromise was effected by Mr. Whitney’s paying to the attorneys $2000 on account of the respective plaintiffs, and $300 as the remuneration for their services in the suits. On receiving this money, the attorneys proceeded to settle with the plaintiffs, who appear to have been illiterate persons, unable to write their names, by paying to them the sum of $100 each, retaining besides the compensation already received from Mr. Whitney, $150 in each of the cases, or $1200 in the aggregate; so that all the plaintiffs received was $800 out of the $2300 paid by Whitney. The parties, on receiving the amount, executed to each of these attorneys, a release acknowledging the receij>t of the money, in full satisfaction and discharge. This relief was duly acknowledged by each of the parties, and the officer who took the acknowledgments, testifies that the parties were informed of their tenor and effect.

Application is now made to us on behalf of these parties, to vacate the settlement, on the ground that it was made- in ignorance of the real amount paid by Mr. Whitney to the attorneys, and that it is oppressive and unjust. We are also asked to strike the attorneys from the roll.

In answer to the application, it is averred by the attorneys that these claims were all assigned absolutely to one of them before the commencement of the suit, and that what was paid by them to the parties was a voluntary payment, and a mere gratuity, and that at the time of the assignment it was agreed that the proportion to be paid in case of success, should be left entirely to-the generosity of the attorneys. That at the time of the execution of the releases, the matter was fully explained to the parties, who expressed themselves fully satisfied. Assignments were produced, executed to one of the attorneys before the suits were commenced, transferring all the right of the parties, to damages, and duly acknowledged.

Without considering the question whether claims of this character can be assigned or not; if they were in fact assigned absolutely, the actions should have been instituted in the name of the attorney who became the assignee. The circumstances attending these cases, however, show conclusively, that the claims were assigned as collateral security for the costs and services of the attorney. It is contended that under the - code, arrangements may be made between attorney and client as to compensation in suits, and that with such agreements, the court has no right to interfere. Without considering the question whether the statutes of champerty and maintenance have been abrogated by the provisions of the code in reference to the subject of costs, which we very much doubt, we do not think that the court is deprived of the power of looking into these arrangements between attorney and client. Before the code, the court had the general power of examining into bargains of this character, to see that they were not unreasonable or oppressive, and the power has not been taken away. There are numerous cases in the books where courts have exercised this superintending power. Even where a judgment has been confessed by a client in favor of an attorney, although resting upon a record of the court which has received its sanction, the courts have not hesitated to open it and investigate the transaction. Many cases of this character are collected in Graham’s Practice, 28. This power results from the general superintending power of the court over its officers, and the very peculiar relations which exist between clients and attorneys. It is a power which should be exercised with caution, but which is nevertheless to be exercised firmly where a necessity for it exists.

It is a striking feature in these cases, that when making the settlement with the attorney, the parties were not apprised of the amount actually paid by Whitney. It nowhere appears that they had any knowledge of it. The commissioner testified that the releases were fully explained to them, and that they expressed themselves aware of their contents, and fully satisfied with what they received; but it does not appear that the amount which the attorneys had received on account of those claims, was ever stated to them. We do not mean to decide that the amount retained by the attorneys was too great, or disproportionate to the valúe of the services rendered by them; although it certainly has that appearance at first blush. But we think it reasonable that the matter should be inquired into, and for that purpose shall direct a reference, where the attorneys will be enabled to show the reasonableness of the amount charged. On receiving the report" of the referee, «we can make such order in the premises as shall be just.

The case came before the court March 22d, on the report of the referee, to which exceptions were taken by the attorneys implicated. After hearing counsel, the court (all the justices being present) allowed to the attorneys, besides the three hundred dollars paid to them by the defendants when the suits were settled, and $115, which they had expended in procuring security for the plaintiffs on taking out letters of administration, and made a rule requiring them to pay the balance of the $1,200, retained by them, to the clerk for the plaintiffs, with the costs of the proceedings against them, and in default of payment, that they be committed. A doubt being suggested as to the power of this court to strike attorneys from the roll, under the judiciary act of 1847, the court omitted to pass upon that branch of the application, leaving the parties to apply to the supreme court, if so advised.


source: Caselaw Access Project

license: Public Domain

text:
    Cramer v. -.
    The court will not try the validity of an insolvent’s discharge on affidavits.
    But where the creditor has issued and levied an execution, and on a motion to set it aside, he presents facts showing presumptively, that the discharge may be successfully assailed, the levy will be retained, and an issue directed to be tried in the original suit, to test its validity.
    In lieu of retaining the levy, the defendant may give security, or bring the amount of the execution and sheriff’s fees into court.
    Form of the order in such cases, and of the issues directed to be tried.
    Jan. 15 ;
    Jan. 18, 1851.
    Motion to set aside an execution.
    The suit was commenced on the 22d of June, 1847, on a note for $800, at three months, made "by the defendant, payable to and indorsed by one Allerton, dated August 7, 1846. The declaration, with a copy of the note, was served on the defendant personally. He appeared by an attorney, and filed a plea setting up that the note was usurious in the hands of the plaintiff, with an affidavit of merits. An inquest was taken and judgment perfected December 19,1848. An execution was returned unsatisfied in February following. An alias execution was issued in Hovember, 1850, and levied on personal property of the defendant.
    The motion was founded upon a discharge of the defendant from his debts, on the petition of himself and two thirds of his creditors, granted by Judge Ingraham of the Hew York Common Pleas, dated January 30,1849.
    In answer-to the discharge, it was shown that the plaintiff for over thirty years past has resided in Saratoga County, more than one hundred and fifty miles from the city of Hew York, where the creditors were ordered by the judge to show cause against the discharge; that the order to show cause and its publication were for six weeks only, instead of ten weeks as required by law in such a case; that the plaintiff was not mentioned in the petition or affidavits presented to the judge, as a creditor or otherwise; that neither he nor his attorney received any notice or had any information of the proceeding; that the assignment of the insolvent was attested by only one witness, and was not certified by the county clerk; and various other objections and defects in the proceedings were insisted upon. On the grounds thus taken, the plaintiff claimed that the discharge was utterly void, and should be disregarded.
    The defendant showed that the note on which the judgment was recovered, was indorsed by Allerton to E. Curtis; and in his schedule of creditors he described Curtis as a creditor for $1000, on a note made by Allerton and indorsed by the defendant. It did not appear that Curtis ever had any note against the defendant, other than the one sued by the plaintiff, which was transferred by Curtis to him in the spring of 1847.
    TP". C. Russell, for the defendant,
    insisted that the court would not try the question of the validity of the discharge on affidavits, but would require the plaintiff to contest it by a suit on the judgment. He cited 5 Hill, 245; 9 Wend. 431; 1 Cowen, 50, 228; 20 John. 21; 9 ibid. 259; 1 Caines, 249.

      8. Scmxanj and T. Q. Talcott, for the plaintiff,
    cited 2 Rev. Stat. 16, 23, § 1, 5, 8 to 12, 29, 35; 1 Rev. Laws, 464, § 8 ; Laws of 1847, ch. 366, page 470 ; 3 Barb. Sup. C. R. 185; 1 Wend. 90,156 ; 15 John. 183.
   Sandford, J. (after advising with the Chief Justice,)

said, the court will not try the validity of an insolvent’s discharge upon affidavits. But it does not follow that the execution must necessarily be set aside and the plaintiff subjected to the alleged probability of thereby losing his debt, although he shall succeed in overtm-ning the discharge, and which is now secured by the levy. The proper rale to be adopted, is to retain the levy and direct a reference or an issue to test the validity of the discharge, whenever it is made presumptively to appear that the discharge may be successfully assailed. This conforms to the practice long since established, in respect of judgments by confession, which defendants seek to set aside on the ground of fraud, imposition, usury, or the like.

In this case, without reference to numerous other points made against the discharge, there are two which furnish a strong presumption that it cannot be maintained. One is the defect in the publication of the notice of the order to show cause; the other is the omission of the plaintiff in the insolvent’s account of his creditors. The plaintiff is certainly entitled, as the case now appears, to retain the security he has obtained, until he can have the opportunity of bringing these objections to the test of a regular judicial examination.

An order must be entered to the following effect, viz. The motion will be denied, on the plaintiff’s serving issues to try the validity of the discharge, within ten days. If served, the defendant may bring into court the amount of the execution and sheriff’s fees; or he may give a bond for the same, with sureties, to be approved by the clerk on notice; and on his doing either, the levy is to be set aside. The issues served, are to be tried in this suit, by the court and a jury, (unless a jury trial be waived,) and they are to present two questions: 1. Had the officer who granted the discharge to the defendant, jurisdiction or authority ffor that purpose when it was granted? 2. Was the defendant guilty of any fraud in the matter, contrary to the true intent of the article of the revised statutes relative to the discharge of debtors from their debts on the application of such debtors and their creditors, or of any act or omission specified in the thirty-fifth section of that article. The plaintiff is to serve with such issues, a specification of the grounds relied upon in support of each; the defendant may propose amendments to the same; and if the parties disagree, the issues and specifications are to be settled by one of the justices of the court.

The costs of this motion, of the issues, and the trial and subsequent proceedings thereon, to be disposed of by the court hereafter, on motion of either party.


text:
    St. Amant v. De Beixcedon.
    On a motion to set aside a warrant of attachment, issued as a provisional remedy under the code, the plaintiff may read affidavits supplementary to' those on which it issued.
    An attachment will not be granted, unless a prima facie ease is established by affidavits, upon positive knowledge ; or when, from peculiar circumstances, such cannot be obtained, those circumstances must be stated with all the grounds of suspicion, so as to satisfy the judge of the existence of the facts relied upon, and that the plaintiff has furnished the best evidence in his power to establish them.
    (Before Oaklet, Ch. X, and Sandeord and Paine, J.X)
    Jan. 11;
    Jan. 18, 1851.
    Appeal from an order at chambers, denying a motion to discharge an attachment issued in the above suit, under chapter four of title seven of the code. On the argument of the motion, the plaintiff was permitted to read an affidavit in addition to that on which the warrant was granted.

      8. B. H. Judah, for the defendant.

      W. Uutohms, for the plaintiff.
   By the Court. Oakley, Ch. J.

There are two questions which arise upon this appeal. In the first place, can supplemental affidavits be introduced in support of the original affidavits, upon which a warrant of attachment is issued, where a motion is made to set the warrant aside ? and secondly, is there sufficient shown, upon the affidavit in this case, to justify the Avarrant?

As to the first point, we entertain no doubt as to the right -to introduce supplemental affidavits. The cases under the code are different from those which have arisen under the revised statutes, where the jurisdiction of the court depended upon the facts set up in the affidavits on which the warrant was granted. The supreme court, in this district, have decided, that the introduction of supplementary affidavits, in support of the original application, is proper, and in that opinion we concur. (Morgan v. Avery, 2 Code Reporter, 92, 121.)

As to the other point, we think, the two affidavits taken' together are sufficient to sustain the warrant of attachment. We will avail ourselves of this occasion to state the views by which we shall be governed in granting these warrants.

We consider it proper in a remedy of so grave a character as the attachment, in effect, tying up of the entire property of a party pending a suit, that the affidavit upon which the proceeding is authorized,, should be explicit, and made in general, upon positive knowledge of the deponents, so far as to establish a primá faxiie case. In general, there is no difficulty in obtaining the affidavits of the persons who give the information, on which the plaintiff desires to proceed; and when such affidavits cannot be obtained from the peculiar circumstances of the case, those circumstances must be stated, with all the grounds of suspicion, so as to satisfy the judge that the facts exist on which .the attachment is sought, and that the plaintiff has produced the best evidence in his power to establish them.

All the justices of this court concur in the rule which we have now declared.

Appeal dismissed.


text:
    Hammond v. Baker.
    Where after the commencement of a suit in this court, the plaintiff commences another suit for the same cause of action in the court of another state, and after taking testimony in his suit in this court, breaks off and proceeds to take testimony in his suit in the foreign state; this court has no power to make an order restraining him from prosecuting the latter suit.
    The court will, however, make an order, that unless he elects to proceed in the suit here, and thereupon stipulates to stay the proceedings in the foreign suit, his proceedings in the suit here shall be stayed, until the final determination of the foreign court, with leave thereafter to either party to apply to this court for such further order as shall be just.
    Jan. 18, 1851.
    The points above stated, were decided on a motion, by Sand-ford, J., with, the concurrence of Oakley, Ch. 3"., and Paine, J. This was a suit for an account, &c., commenced in the late court of chancery. The complainant resides in the state of Bhode Island, the defendant in the city of Hew York. Afterwards the complainant commenced a suit against the defendant, in the supreme court in equity in Bhode Island, for the same cause of action, and praying for the same relief. Both suits were put at issue, and the suit here referred to a referee, to take testimony, and while in that condition, was transferred to this court. The referee, at intervals, for several months, was engaged in taking testimony. The complainant then suddenly suspended the examination of witnesses here, and commenced the examination of witnesses in the suit in Bhode Island, including one or more of those who had been partially examined here. Thereupon the defendant moved for an order restraining the complainant from further prosecuting his suit in Bhode Island, during the pendency of his suit in this court. After hearing counsel, the court decided, as stated in the note of the case, that its power did not extend to restrain a resident of Bhode Island from prosecuting there a suit for the same cause. The supreme court of that state will control parties before it, so as to prevent wrong and oppression. But this court might and ought to prohibit the use of its process and proceedings in the mode practised by this complainant. He must suspend his suit there or here. The order was made as before stated.

      J. Slosson, for the plaintiff.

      O. Sweeney and IF. G. Hammond, for the defendant.


text:
    Lewis v. Truesdell.
    An application to vacate an order of arrest, pursuant to section two hundred and four of the code, must be made before the bail has become perfect. It must be made1 before the bail have justified, if excepted to; and if no exception be taken, then? before the time for excepting has expired.
    Jan. 25, 1851.
    Motion to set aside an order of arrest. The defendant was arrested under the order, and was required to give bail. He accordingly put in bail to whom no exception was taken by the plaintiff. In March last, judgment was recovered against the defendant in the suit, an execution was issued and returned unsatisfied, and supplementary proceedings thereon ensued against the principal. An action was subsequently commenced against his hail, whereupon this motion was made.

      A. Anson, for the defendant.

      O. Shaffer, for the plaintiff.
   Oakley. Ch. J. (With the concurrence of Sandford and Paine, Justices.)

This motion is made with a view to discharge the bail from his responsibility, and it is bottomed on the language of section two hundred and four of the code of procedure, which provides that a defendant arrested may at any time before the justification of bail, apply, on motion, to vacate the order of arrest, or to reduce the amount of hail. The defendant’s idea is, that as the bail never justified in this case, the matter, is still open for him to move to vacate the order under which he was arrested. The plain meaning of the code is, that the application must be made before the hail have justified if excepted to; and if not excepted to, before the time for taking an exception has elapsed, and the hail has thereby become perfect. The defendant, by submitting to put in and perfect bail, accedes to the regularity of his arrest and the sufficiency of the grounds for it. The object of the provision in the code, is to give him time to move before bail shall have been perfected.

Motion denied.


author: By the Court. Sandford, J.

text:
    Roberts v. Randel.
    The remedy given by the code for the “ claim and delivery of personal property,” cannot be maintained where the defendant has not in fact or in law, the possession or control of the property claimed.
    An order for the arrest of the defendant under the third subdivision of section one hundred and seventy-nine of the code, cannot be made on the sheriff's return that the property has been removed or disposed of, if it appear that it was so removed or disposed of before the suit was commenced, unless it also appear that such disposal was made to defeat the action or expected action for the property.
    The arrest given by the first subdivision of section one hundred and seventy-nine of the code, is in suits for damages claimed for the wrongful taking or detaining property. The arrest provided in the third subdivision, is in suits for the recovery of the identical property itself, and is granted where the party has attempted to defeat the process of the court for its recovery by putting it out of his hands to prevent its seizure by the sheriff.
    The “ claim and delivery of personal property ” under the code, is a substitute for the action of replevin as it was regulated by the revised statutes.
    That action was a possessory action for the recovery of specific property in the defendant’s possession or control, with damages for its detention.
    If the property were removed or concealed so that the sheriff could not find it, the revised statutes added the remedy of arrest and bail. But it was only a removal or concealment in fraud of the replevin which warranted the arrest.
    Before the revised statutes, the action of replevin was purely possessory, and could not be maintained against a party who had entirely divested himself of the goods claimed, except where a distrainor for rent proceeded fraudulently or in violation of the statute regulating distresses.
    Under the revised statutes, the action of replevin could not be maintained against a party who had neither the possession nor the control of the chattels claimed, and had not parted with them in fraud of the action. The plaintiff’s remedy was in trespass or trover.
    The assumption of the court in Cary v. Uotaling, and Olmsted v. Uotaling, 1 Hill . 311, 317, that replevin was a concurrent remedy in all cases with trespass de bonis asportalis, was not well founded.
    (Before Oaklet, Ch. J., and Samdeokd and Paine, J.J.)
    Jan. 11;
    Jan. 25, 1851.

      This wás an appeal from an order made at chambers, discharging an order for the arrest of the defendant, made under the third subdivision of section 179 of the code of procedure. The defendant had been arrested under that order, and imprisoned for default of bail. The action was brought, in’ form, for the recovery of the possession of personal property. The plaintiff, claiming a delivery of the property, placed in the hands of the sheriff, an affidavit and a requisition for its delivery, pursuant to §§ 207 and 208 of the code, with the proper security.
    The sheriff certified, that the property had been concealed, removed, or disposed of, so that he could- not find or take it. Thereupon the justice at chambers made the order for the defendant’s arrest. The plaintiff’s affidavits, for the delivery and the arrest, showed, that the action was brought for the conversion of a bond of the state of Texas, which was delivered by the plaintiff to the defendant, as a broker, to sell for not less than forty per cent, on the amount of principal and interest; and which the defendant, some months prior to the suit, sold for forty per cent, on the amount of the principal only. That the plaintiff, thereupon, demanded of him the bond'itself, and also the amount of it, at the price limited for its sale; neither of which demands was complied with by the defendant. The affidavits further alleged, that the bond was obtained by the defendant, with the fraudulent intent to convert it to his own use. After his arrest, the defendant offered to give to the sheriff the bail for his appearance; but the sheriff required the undertaking prescribed in § 211 of the code.

      E. Fitch Smith, for the plaintiff.

      D. Gould, for the defendant.
   By the Court. Sandford, J.

The first question arising on this appeal is, whether the plaintiff can bring an action “to recover the possession of personal property,” in a case like this. By his own showing, the defendant parted with the property long before the suit was commenced ; and, whatever it may be called, the suit is really one to recover damages for the conversion of the property. We have examined the subject with much care, and are clearly of the opinion, that the plaintiff is not entitled to the remedy which he claimed, and which was granted to him by the order at chambers.

That order is one of the “ provisional remedies,” established by the seventh title of the code. The claim and delivery of personal property is itself one of those provisional remedies, and the order in question is consequent upon the failure of that remedy. Arrest of the party is provided by the title cited, in five classes of cases. The first embraces, among others, actions for the recovery of damages, for wrongfully taking, detaining, or converting property. This, beyond dispute, applies to the plaintiff’s cause of action here. The third class is thus expressed: “In an action to recover the possession of personal property, unjustly detained, where the property, or any part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff.” (Code, § 179, sub. 1, 3.)

The bail required, in the first class, is for appearance to answer the process of the court; that required in the third class, is virtually for the payment of the judgment which may be recovered in the action. It is evident, that, in all cases arising under the third subdivision, the plaintiff may claim an arrest and bail under the first, which gives the arrest in an action for wrongfully detaining property. But to obtain the arrest and security provided by the third subdivision, besides the unjust detention, it must be shown, that the property sought to be recovered, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff. In this clause, we find the real distinction between the two kinds of arrest. The first is given in suits for damages, claimed for the wrongful taking or detaining of property. The second is given in suits where the party seeks the recovery of the identical property itself. Such a suit, in our judgment, can be brought only when the property is in the possession, or under the control, of the person who is made defendant. To bring an action against John Doe, to recover the possession of goods, which the plaintiff knows he has long since sold and delivered to Richard Roe, is idle and unmeaning.

This is made more manifest by the clause already stated, on which the whole thing turns. The goods must have been concealed, &c., so that the sheriff cannot take them. The words are, “ has -been ” removed, &c. How, although a sale of the property by the defendant, months before the suit, will have the effect to prevent the sheriff from taking the goods "from him; we think it quite apparent, that such was not the disposal intended by this section. If it were, there would have been no occasion to add the words, “ so that it cannot be found or taken by the sheriff.” The provision, without those words, would have been complete to reach every case where the defendant had parted with the property illegally taken or detained. The words just quoted, were added to qualify the provision, and limit it to cases where the defendant had not only disposed of the property, but had disposed of it, so as, and in order, to prevent the sheriff from executing the process for its delivery ; which could only be after the commencement of the suit, or after the sheriff, by the receipt of the process, was entitled to make such delivery; or when made with a view to defeat expected process, which would be a disposal in fraud of the law.

To test this conclusion, let us examine the chapter entitled, “ Claim and delivery of personal property,” out of which the arrest in question arises. Section 206 enacts, that in an action “ To recover the possession of personal property,” the plaintiff may, when he issues the summons, or at any time before answer, “ claim the immediate delivery of such property,” as provided in that chapter. Thus, the action is to be one, not for damages for illegally taking, detaining, or converting property, nor for the value of such property; but it is for the recovery of the possession of the property itself. To this end, the remedy claimed is the delivery of the very property, which the sheriff cannot do, in a suit against one who has not the thing to be delivered.

This distinction, between actions to recover damages, for the wrongful taking or detaining goods, and actions for the recovery of specific personal property, is maintained in the judgment to be rendered, as well as in process—(Code, § 246, subd. 2.) And If under section 206, an action to recover the possession of personal property, may he brought against one who has sold and delivered it, and has neither the possession nor the control of it; why may not an action to recover the possession of real property, or to recover real property, be brought against any person who once possessed or claimed it, though he has sold his right and parted with his possession to others ?

We cannot see how an action can be said to be brought to recover the possession of a specific chattel, when it is brought against a party who avowedly has not the chattel, and from whom no power of the court can procure it.

To return to the code. The affidavit to be made by the plaintiff must state, among other things, “That the property is wrongfully detained by the defendant,” and the alleged cause of the detention thereof.—(§ 207.) This assumes that the property is in the possession or control of the defendant. It is a detention, by him, existing at the time the affidavit is made; else how can the party make oath that it is wrongfully detained by the defendant ? Then in executing the process, the sheriff of the county where the property is supposed to be, is required to take it from the defendant and deliver it to the plaintiff.—(§ 208; and see § 211, 214.) Without pursuing minutely, the details of the chapter, they all proceed upon the basis of an action against specific property, and are addressed to giving it effect against such property, in the possession of the defendant. The only provision against the defendant’s person, is that already commented upon, and is given when through his act the sheriff is prevented from executing the process issued to take the property out of his possession.

Unless we are right in our interpretation of these provisions, we must hold that the legislature has provided two distinct provisional remedies, in all cases where under the former system, trespass or trover could be maintained ; by one of which the defendant may be held to give the special bail of-the old system, and by the other may be required to give security to pay the judgment that may be recovered in the action; and the latter remedy being so much more efficacious than, the other, it will of course supersede it altogether. It is a remedy as insisted on in this action, which in all cases of the alleged wrongful taking or detaining of personal property, will subject defendants who have disposed of the property however innocently, to imprisonment from the commencement of the suit, until its termination, unless they can give security to pay the judgment sought • and if a judgment be recovered, until they pay itr or are discharged under the insolvent laws. ,

We cannot be induced to believe, that the legislature intended to make such a harsh and violent change in the law; one so inconsistent with the other provisions for arrest contained in the same section, and so totally at variance with the whole tendency of our legislation for the last twenty years, in respect to imprisonment upon civil process ; and we are entirely satisfied that the provisions of the code, construed in their plain and fair import, lead to no such result.

We think the remedy contained in subdivision one of the one hundred and seventy-ninth section, was designed for precisely such cases as that of the plaintiff in this suit; and that the stringent provision in the third subdivision, was intended to execute justice upon parties who should attempt to defeat the process of the court in suits to recover specific property, by putting the property out of their hands, and thereby preventing its seizure by the sheriff.

A history of the enactment corroborates this opinion. It appears, for the first time, in the amended code of 1849. The bail required in such a case in the code of 1848, and in the action of replevin by the revised statutes, was the ordinary special bail that the person of the defendant should be amenable to the process in the action. Ho change in this respect was proposed by the commissioners on practice and pleadings in 1849, and the change was made by the legislature of that year, in their amendments to the code of 1848.

We were referred by the plaintiff’s counsel to the cases of Cary v. Hotaling, and Olmsted v. Hotaling, in the late supreme court, (1 Hill, 311, 317,) as authority that replevin could be maintained, after the party had sold and parted with the goods which he had illegally taken or detained. There is no doubt that the “ claim and delivery of personal property,” in the code, was intended as a substitute for the provisional relief theretofore obtained in the action of replevin. (Report of Commissioners of Practice, &c., in 1848, p. 169.) We have, therefore, maturely considered these authorities. The question really controverted, in the first case cited, was whether trespass would lie under the circumstances ; and in the second, whether a partner who had not participated in the fraud, could be made liable in tort with his guilty co-partner. It was undoubtedly assumed by the judge who delivered the opinion of the court, that replevin could be maintained in all cases where the party could bring trespass da bonis asjportaMs / but he did not discuss the point, and it does not appear to have been presented. The evidence showed that the defendants had sold the goods before the suits were brought, and therefore the point existed in the cause, although it was not noticed. As the law then stood, the only arrest authorized in replevin, was that now provided in the first subdivision of section 179 of the code, and the party could be held to bail with the same effect in trespass. The point was therefore of no practical importance.

Was the assumption of the judge in the cases in 1st Hill, warranted by the law as it then existed? Previous to the revised statutes replevin could not have been maintained in those cases. Although learned judges, by way of illustration, frequently said before the revised statutes, that replevin would lie wherever trespass could be brought, they did not intend to say that they were concurrent remedies in all cases. Wherever trespass would lie, and the goods were possessed by the defendant, replevin could be maintained; and this was all that those judges intended to assert. The same remark might be made as to most of the instances, in which, since the revised statutes, judges have said that replevin would lie wherever the party could maintain trespass or trover.

We repeat, that before the revised statutes, there was no such thing in this state, as replevin against a party, after he had entirely divested himself of the possession and control of the goods claimed; except in the single case of distress for rent, where the distrainor had proceeded fraudulently, or contrary to the statute, permitting a replevin within five days. (By fraud in the proceedings, wé mean some act of the distrainor analogous to the driving of a distress out of the hundred or shire in England.) The action was purely possessory. It sought the specific goods, and was fruitless unless the goods were seized, or other goods taken from the defendant i/n withernam in the excepted ease just stated, as a substitute for those distrained, on the distrainor having eloigned the latter beyond the reach of the sheriff. The judgment was for the property already seized and restored to the plaintiff, with damages for its detention. There was no judgment for its value, or for any other damages. Hence the action always ensued immediately on the taking of the property. It was even contended, on distresses for rent, (which at that period were the origin of most of the actions of replevin,) that the suit could not be brought after the five days within which the tenant was permitted to make a replevy, although it were commenced before an actual sale of the distress. We refer, for the state of the action before the revised statutes, to Co. Litt. 145 b.; Bacon’s Abr., Replevin, A.; 2 Dunlap’s Pr. 862, 880; Graham’s Pr. 55, 726, 1st Ed.; and Jacob v. King, 5 Taunt. 451.

The revised statutes extended the action of replevin, to cases where the original taking of goods was lawful and they were wrongfully detained; and it is described to “ be brought for the recovery thereof, and for the recovery of damages ” for the unjust caption or detention. The form of the writ is prescribed, thus: “ Whereas A. B. complains that C. D. has taken and does unjustly detain (or 1 does unjustly detain,’ as the case may be; ”) and it commanded the sheriff, on receiving security for a return of the goods, if a return should be adjudged, &c., to replevy the goods and deliver them to the plaintiff, and to summon the defendant ; and if he could not find the goods, then to take the body of the defendant, &c. The statute next prescribed the manner of executing the writ, by delivering the possession of the property to the plaintiff. (2 R. S. 522, &c., § 1, 6, 8. 10.) “ If the property described in the writ, have been removed or concealed so that the sheriff cannot make delivery thereof,” he was required to arrest the defendant, who was thereupon to give bail as in personal actions. (Ibid. § 11,12, 22 to 21.) This was a substitute for the ea/pias in withernami of the common law, and was extended to all cases of replevin. The declaration (§ 36,) is again carefully limited to a detention existing at the commencement of the suit. The whole statute, without citing it more at large, shows that the action was still a possessory action against personal property, extended to cases, where before, even if the goods were in the defendant’s custody, trover or detinue were the only remedies.

By the revised statutes, several valuable changes were made in the practice in replevin, besides the substitute of the arrest before mentioned; among others, a judgment for the value of the property and damages, when the plaintiff has not obtained the goods by the replevin. The language of the eleventh section before cited, taken in connexion with the nature of the action as declared by the first section, and the form of the writ and the declaration, was plainly limited to a removal of the property made to avoid the service of the writ. It seems to us entirely incongruous, to make the statute say, when the writ is given only for a present detention, that the party shall be arrested under it, for a disposal of the property made before it was issued. We do not intend to speak of removals in fraud of the law when a writ was expected.

The revisers, in proposing the changes in replevin, say it has been extended so as to make it a substitute for detinue, and a concurrent remedy with trespass and trover, in all cases of the unlawful caption or detention of personal property. We suppose the latter expression was used by the revisers, in the same sense that it was before that time used by judges, in comparing replevin with trespass, as we have already mentioned. We do not'imagine that the revisers intended to say, that by their proposed change, replevin could be brought against the bailee of a horse, a year, after he had sold the horse to a stranger. In fine, we are fully convinced, that the revised statutes did not warrant the bringing of replevin in a case like the one before us, and that the assumption to that effect in the cases cited from 1st Hill, was unfounded.

Such being om* conclusion, and all agreeing that the “ claim and delivery of"personal property” under the code, is a substitute for replevin as it before existed; it fortifies our opinion founded upon the code itself, that this provisional remedy cannot be maintained against a party who has not in fact or in law the possession or control of the property claimed.

Some stress was laid on the addition in the code of the words “ disposed of,” to the removal or concealment mentioned in the eleventh section of the revised statutes. We think this was intended to provide for the event-of the defendant’s selling or otherwise parting with the property in fraud of the action; as for example, after the action was commenced and before service by the sheriff. It cannot be supposed that those words were designed to change the whole nature of the remedy substituted for replevin, and to give it a scope vastly wider than its original ever had obtained.

Hpon the whole, we entertain no doubt that the plaintiff has misconceived his remedy, and that an order for arrest under the third subdivision of section 179 of the code, cannot be made in a case like this.

It should be stated, in conclusion, that all the judges of this court have been consulted,-and concurred in this opinion.

The order appealed from must be affirmed.


text:
    White v. Cummings.
    Where there are allegations in the complaint, an answer to which, on oath, might subject the defendant to a criminal prosecution, the defendant may put in a sworn answer stating that fact, and answering the residue of the complaint in the usual manner. Such an answer will put in issue the allegations so excepted.
    After retaining a pleading nineteen days, the party served cannot return it on the ground that it is irregular or defective.
    On returning a pleading as defective, e. g. for not being verified, the party served with it must point out the defect to the adverse party.
    January 25, 1851.
    TW. complaint, setting forth a libel, was verified by oath. The defendant’s attorney served an answer; which was not verifled. The plaintiff’s attorney kept it nineteen days, and then returned it, with a message that the answer was defective and would not be received, but without pointing out the defect. Thereupon, the time for answering having expired, the plaintiff applied at the special term for judgment as on a failure to answer.
   Oakley, Ch. J. (with the concurrence of Sandford and Paine, Justices.)

The application is opposed on two grounds, the practice in respect of both of which is virtually settled, but we deem it well to mention it again. 1. It is objected, that the nature of the libel is such, that the defendant ought not to be required to answer on oath, because the matters to be stated might subject him to a criminal prosecution. 2. That the plaintiff kept the answer so long, he cannot treat it as a nullity; and moreover, he has no right to return it, unless he pointed out the defect.

The objections are all well taken. As to the first, the rule was adopted and the practice correctly laid down in Hill v. Muller, 2 Sand. 684. The defendant need not admit or deny the allegations, which he will state in his answer on oath, he might subject himself to a criminal prosecution by answering. This statement will put in issue such allegations. As to the residue of the complaint, he will answer in the usual manner. 2. The plaintiff, by keeping the answer so long, was barred from objecting to its form. And on returning it, if it had been in time, he was bound to point out the nature of the alleged defect. It was so held in Laimbeer v. Allen, 2 Sand. 648. The practice pursued by the plaintiff was not reasonable, and we are not disposed to sustain it. The defendant is at liberty to answer in the mode before mentioned.

Application denied.


author: Campbell, J.

text:
    Chichester and others v. Livingston and others.
    Where the examination of a party as a witness before the trial is sought merely to avoid the necessity of calling him at the trial, it can only take place after issue joined.
    A party may be examined conditionally, as other witnesses, where he is about to depart from the state, or on special application for like causes; but such examination can only be had on the previous order of the court.
    Whether he may be so examined by way of discovery, under a special order, to enable the adverse party to answer or reply, Quere.

    Jan. 25, 1851.
    The points presented, and the matters bearing upon them, are stated in the decision.

      JR. Goodman, for the plaintiffs.

      JL. JR. Marsh, for the defendants.
   Campbell, J.

The defendant, Livingston, was served with a subpoena to attend before a justice of this court for the purpose of being examined, pursuant to the provisions of chapter sixth of the twelfth title of the code. The complaint and answer have been served, but no reply has been put' in. The counsel for the plaintiffs admitted that he intended to reply, and the counsel for the defendants insists that such examination of the defendant Livingston cannot be had until the reply has been put in, and the case is at issue. I held in the case of Balbiani v. Grasheim, 2d Code Reporter 75, that a party cannot be examined as a witness in the cause, until the pleadings are all in and the cause is at issue.

Chapter sixth of the code declares that no action to obtain a discovery under oath in aid of the prosecution or defence of another action shall be allowed, but a party to an action may be examined as a witness at the instance of the adverse party, and this examination may be had, either at the trial or at any time before trial. It is also provided (§ 395,) that “ a party examined by an adverse party, as in this chapter provided, may be examined on his own behalf in respect to any matter pertinent to the issue.” It would seem that the issue was first to be made up between the parties before the examination could take place. This chapter was enacted by the legislature substantially as reported, and the commissioners in reporting it say, “The provisions contained in this chapter we have considered so important to the success of our system, that from the first we have contemplated their introduction. Meantime the legislature, at their late session, have passed an act upon the subject. That act however contemplates the examination at the trial only. "We think it important to extend it, so as to permit the examination to take place before the trial, at the option of the party.” They add, “ One of the great benefits to be expected from the examination of the parties is, the relief it will afford to the rest of the community in exempting them, to a considerable degree, from attendance as witnesses, to prove facts which the parties respectively know and ought never to dispute, and would not dispute, if they were put to their oaths. To effect this object it should seem necessary to permit the examination beforehand, that the admission of the party may save the necessity of a witness.”

The party is to be examined as a witness. He may be examined at the trial, or before the trial, on matters pertinent to the issue. He is examined, to prevent the necessity of other persons attending as witnesses, to prove facts which the parties themselves know and ought not to dispute. The law passed by the legislature previous to the code, was like the recent English act, and provided only for the examination of the party at the trial of the cause. The code has provided in addition, that such examination may be had before the trial so that -the proceedings at the trial may thus be often materially shortened.

But, though the code has abolished actions for a discovery, it has been thought by some, that a discovery may be had in the same action, where such discovery is necessary, in order to enable the party seeking the discovery to answer or reply. This may be so, but in that case such examination ought not to take place, unless by special order of the court, on cause shown by affidavit, as to the necessity of the examination. The party examined is entitled to be examined on his own behalf, on matters pertinent to the issue. This privilege he cannot well avail himself of, if he is summoned for examination, before he has answered or replied. The fair, and, as it seems to me, true construction of the code is, that the examination of the party should take place after issue joined. But there may be exceptions. The' party is to be examined as a witness, and he may be examined conditionally. If he is about to depart out of the jurisdiction of the court, and it shall be made to appear that his adversary will probably be unable to examine him after issue joined, or to examine him on the trial of the cause, then such examination may doubtless be had before issue, in the same manner as that of any other witness in the cause, who is about to depart from the state.

As this is an interesting and important question of practice, I have conferred with all my associates, and they are all of opinion with me, that where a party is examined as a witness, before the trial, merely for the purpose of avoiding the necessity of calling him at the trial, then such examination can only take place after issue joined.

I do not mean to decide, nor is it necessary to determine in disposing of this motion, whether a party can be examined by his adversary, in order to enable the adversary to answer or reply. It is possible that a case might be presented, where it would be evident that the ends pf justice required such an examination before answer or reply, even under the present law, which gives the absolute right to such examination after issue joined.

In the case before us, there is no pretence that the party sought to be examined is about to depart from the state, nor has any special application for his examination been made, founded upon any facts showing the necessity for such examination, in order to enable the plaintiff to reply. I shall not, .therefore, direct the examination of the defendant to proceed, but the plaintiff may, if he chooses, renew the application, founded upon affidavits, showing the necessity for such examination, before he replies, if in his judgment such necessity exists. In the cases of Porter v. Elliot, 2 Sand. S. C. R. 667, and Anderson v. Johnson, 1 ibid. 713, cited on the argument, the causes were at issue.


text:
    Lentilhon v. The Mayor, Aldermen, and Commonalty of the City of New York.
    A judgment upon a verdict is not perfected, under the code, until entered in the judgment-book, with the amount of costs (if any) recoverable, inserted therein.
    Until so entered, it is not a judgment from which an appeal can be taken to the general term.
    If the prevailing party neglect to complete his judgment, the other party may notify him to do so, and after a reasonable time elapsed, the court on motion will compel him to perfect it with costs.
    The entry made by the clerk, by the direction of the court, on receiving a verdict, of the judgment to be rendered thereon, is not the judgment.

    The practice stated and approved, by which, after the jury pass upon the disputed facts, the judge gives a final judgment on rare or difficult points of law involved, with leave to appeal to the general term without security; where the parties so agree in open court, and no prejudice to either is likely to ensue.
    An agreement in open court, on a verdict being given, that the defendant may appeal without security, followed by such an appeal, with no objection taken at the time, and treated as regular by various acts for four or five months afterwards, will preclude the plaintiff from then alleging that the appeal was null because no undertaking was executed pursuant to the code.
    (Before Oaklet, Ch. J., and Sandfokd, J.)
    Feb. 15, 1851.
    The action was for tort, tried June 18th, 1850, before Paine, J., when a verdict was given for the plaintiffs. On the rendition of the same, the judge directed a judgment to be entered thereon, and the plaintiffs’ counsel agreed, in the presence of the court, that the defendants might appeal to the general term without giving security. The following entry of judgment was made subsequently, by the clerk of the court, in the judgment-book, the blank in which has never been filled, viz. (Title of the cause, date, and attorney.) “ This cause coming on to be tried before Justice Paine and a jury, the jury found a verdict for the plaintiff for $977 81 damages. On motion of J. Lux, plaintiff’s attorney, ordered judgment therefor with $ costs and disbursements.”

      On the 19th of June, the defendants treating this as a final judgment, gave notice of appeal therefrom to the clerk and the plaintiff’s attorney. Eo undertaking was filed, but the plaintiff’s attorney made no objection on that ground, until the December term; and in the mean time had received notices of argument without objection, and had signed a stipulation in which the cause was treated as pending before the general term, on appeal. The costs of suit have never been adjusted by the clerk, nor any step taken towards perfecting the judgment at the special term, beyond the entry before mentioned. The plaintiff now moves to strike the cause from the general term calendar, on the ground that the appeal was void, 1, because no judgment had been perfected ; and 2, no undertaking was filed.

      J. Lux, for the plaintiff.

      H. H. Anderson and A. J. Willard, for the defendants.
   By the Court. Sandford, J.

Since the code, a practice has to some extent prevailed in our court, by which the judge at the trial term, both parties consenting, has rendered a formal judgment, after the jury have passed on the disputed facts, without actually deciding the question of law involved, with leave to the losing party to appeal to the general term without security. The agreement of both parties to these terms is made in open court, and entered by the clerk in the minutes of the trial. We are disposed to encourage this practice, in cases where the questions of law presented are new or difficult, where an appeal is to be expected in any event, and where no prejudice is likely to ensue from the omission to give security. It frequently happens, that the court may in this mode dispose of the cause after a single trial before a jury, when an adverse ruling of the law would result in a reversal and a second trial.

It is not necessary in this case, to decide whether an agreement to waive security, made in open court, but not entered in the minutes, will be held to bind the party. Such an agreement, with the omission to object to the appeal, when made, because of the want of security, and the subsequent treatment of the appeal as pending, are sufficient to preclude the plaintiff from now setting up that the appeal was irregular and null for that cause.

There is, however, another difficulty which is insuperable. Ro judgment has been entered at the special term. The entry produced, so far as it is complete, is merely a transcript of the judge’s direction of the judgment to Joe rendered on the verdict, under section 264 of the code. The judgment itself, is to be entered by the cleric in the judgment ~boo\ as provided in section 279 and 280. In order to make this entry, the clerk, besides the judge’s direction as provided in section 264, was required in this case, to adjust the amount of the plaintiff’s costs and disbursements, and the interest accrued on the verdict.—(Code, § 310, 311.) Both of these items must be inserted in the entry of the judgment. Then, and not before, the judgment would be complete and perfect, and the clerk could make up the judgment roll, and the judgment could be docketed and collected. —(Ibid. § 281, 282, 287.)

This appears to us to be the plain effect of the code. It Is obvious that it should be so, because, after an appeal, the court below, the special term, can properly act no further in the matter, unless the judgment be reversed. If it be affirmed, it will remain precisely as it was when appealed from; and if that were in a shape incapable of execution, it would present an embarrassing question as to the jurisdiction of the court below to remedy the defect. In this case, the appeal was premature. If the prevailing party neglect to complete his judgment, when the other party is desirous to appeal and obtain a speedy decision, the course of the latter is to notify the former to perfect his judgment for that purpose ; and if he do not perfect it in a reasonable time, the court will, on motion, compel him to do so with costs, unless some good cause, for the delay be shown.

The appeal must be dismissed, without costs to either party.


text:
    Wood v. P. and J. Lambert.
    The decision of the court upon a demurrer, cannot be appealed from as an order. It is a judgment, and no appeal can be taken until the judgment be perfected.
    Where the defendant has appeared in the suit, so as to be entitled to notice of the proceedings, the plaintiff cannot settle ex parte, the form of the judgment to be entered, if it grant him special relief. The defendant is entitled to notice of the application to settle the judgment. '
    Feb. 15, 1851.
    The foregoing points were decided, the last at chamhers, and the other at general term. Both decisions were upon consultation with all the justices of the court.
    The defendants had demurred to the complaint. Upon argument, the demurrer was overruled, with leave to the defendants to answer in twenty days on payment of costs. They did not answer, hut appealed from the decision to the general term. After the twenty days, the plaintiff proceeded, without notice, to settle and perfect his judgment, the purport of which was to set aside an assignment as fraudulent, with other special relief. The plaintiff moved, at the general- term, to dismiss the appeal, and the defendants moved at chamhers to set aside the judgment. Both motions were granted.

      Tucker <& Crajpo, for the plaintiff.

      H. H. Wheeler, for the defendants.


text:
    Anonymous.
    In proceedings to examine the judgment debtor, supplementary to execution, the plaintiff to obtain the order, will not be required to show that the debtor has any property ; but if on examining the debtor, no property be discovered, the plaintiff will be ordered to pay costs to the debtor, unless some good reason appear for requiring the examination.
    March 22, 1851.
    The whole court, on considering the question, determined, that hereafter the affidavit presented for the purpose of obtaining the order for the examination of a judgment and execution debtor, under the first clause of section two hundred and ninety-two of the code of procedure, need not state anything’ on the subject of the debtor’s property; and that the practice in that respect, pointed out in the note to Jones v. Icmlin, 1 Sand. R. 722, will no longer be enforced.
    At the same time, they held, that if on the examination of the debtor, no property or effects applicable to the judgment should be discovered, the ''creditor will be ordered to pay costs to the debtor, pursuant to section three hundred and one of the code, unless the creditor can show some good reason for his having required the debtor to submit to the examination.


text:
    Howard v. Henriques and others.
    The principle upon which trade marks are protected, is not confined to personal property. It applies to a name applied or appropriated to real property, as to a public hotel.
    Where the proprietor of a hotel, opened it under the name of Irving Soase, and it very soon became generally and equally known as the Irving Souse and Irving Sotel, and was kept by him while thus designated ; it was held that he had a right to the use of those names, to the exclusion of other persons in the same city or town; and on their subsequently setting up a hotel called Irving Sotel, they were restrained from the use of that name by injunction.
    March 22, 1851.

      The decision of the court contains a statement of the facts. The motion to dissolve the injunction was heard by Campbell, J., with three other justices sitting with him as advisory.

      John Graham, for the defendant.

      J. E. Bv/rrill, Jr., for the plaintiff.
   Campbell, J.

This action was commenced by the plaintiff,who is the proprietor of a hotel in this city, known as the Irvi/ng House or Irvi/ng Hotel, and which was opened and named by him “ Irving House ” in the fall of 1848, against the defendants as proprietors of another hotel in this city, which they have also called the Ewing Hotel, and which was opened and named by the defendants, during the past summer. An injunction was granted by one of the justices of this court, restraining the defendants from using the name of Irving Hotel for their house, after an early day designated. A motion is made to dissolve this injunction. The plaintiff’s house, although originally designated by him, as the Irvi/ng House, very soon became generally known also as the Irving Hotel, and was designated by both names indiscriminately, for more than a year before the defendants opened their hotel.

It was urged by the defendant’s counsel, first that the plaintiff had not appropriated the name, because no such name appeared on the external walls of his house. And second, even if it did so appear, the name was not the subject of appropriation as applied to a hotel; that the principle upon which trade marks and other similar rights had been protected, was applicable alone to personal property, to manufactured articles, to such things as were necessarily movable, and in reference to which frauds could be practised without being easily detected, or at all events frauds could be practised operating injuriously upon the party claiming the trade mai’k and also upon the public.

There can be no doubt of the appropriation of the name by the plaintiff for his hotel. It was on all his bills rendered to his guests, on cards, on large cards placed in other hotels throughout various portions of the country, and in cabins of steam boats and steam ships, accompanied by an engraved view of the building, and was so designated in numerous advertisements in public newspapers circulating throughout the country. If we were permitted to speak from our own knowledge, we should say that the fact of such name being applied by the plaintiff to his hotel was, at the time the defendants applied the same name to their hotel, and is now, notorious. There would be no more necessity for the plaintiff to place in large letters upon the front of his building, “This is the Irving House,” in order to designate it and secure an appropriation of the name, than there would be to write on the public edifices of the city “ This is the City Hall,” and “ This is Trinity Church.”

Upon the second objection of the defendant, I at first had some doubt, which, by a more careful consideration and by conference with my associates, has been removed.

We think that the principle of the rule is the same, to whatever subject it may be applied, and that a party will be protected in the use of a name which he has appropriated and by his skill rendered valuable, whether the same is upon articles of personal property which he may manufacture, or applied to a hotel where he has built up a prosperous business.

We are not disposed to interfere with the lawful pursuits of any one. Every man may, and ought to be permitted, to pursue a lawful calling in his own way, provided he does not encroach upon the rights of his neighbor or the public good- But he must not, by any deceitful or other practice, impose upon the public, and he must not by dressing himself in another man’s garments, and by assuming another man’s name, endeavor to deprive that man of his own individuality and thus despoil him of the gains to which by his industry and skill he is fairly entitled. To make the application; if one man has, by close attention to the comfort of his guests, and by superior energy, made his hotel desirable for the traveller, and caused its name to become popular throughout the land, another man ought not to be permitted to assume the same name in the same town, and thus deprive him who first appropriated the name, of some portion of the fruits of that good will which honestly belong to him alone.

It can hardly require argument, to show that the use by the defendants of the same name for their hotel, interferes with the plaintiff’s business;—and the fact is fully established by the affidavits. Such a result, under the circumstances, would seem to be inevitable. If the defendants may use the name, others may do the same, and the public would be inconvenienced by the confusion which would necessarily arise.

There is no hardship in enforcing the rule against these defendants. There is an abundance of names by which they can designate their hotel, and if they can succeed by their own efforts, 1by their skill and careful attention in building up a profitable business, in causing their hotel to become known and popular through the land, they will in turn be entitled to protection against those who may seek to deprive them of the advantages which they may thus honestly acquire;'

The three of my associates, the -Chief Justice and Justices Duer and Mason, who were present at the argument, together with Justice Sandford who granted the injunction, concur with me in opinion that the injunction must stand.

The motion to dissolve it must be denied with costs.


author: Sandford, J.,

text:
    McConnell v. Adams.
    An infant defendant over fourteen, served with a summons, may apply after, as well as before the expiration of twenty days, for the appointment of a guardian ad litem, if none have been appointed for him.
    April 5, 1851.
    In this case, the defendant, who was nineteen years of age, was served with a summons in December last. On the 22nd of February, the plaintiff prepared papers on which to apply for the appointment of a guardian ad litem, but before those were acted upon, the defendant on the 2oth of February presented a petition, and procured such guardian to be appointed. The guardian ad litem demanded a copy of the complaint, which was not furnished to him, and on the 21st of March, he gave notice of a motion to dismiss the complaint. The plaintiff insisted that the defendant could not apply for the appointment of a guardian after twenty days.

      Q. Mg Adam, for the motion.

      J. 3. Elite, for the plaintiff.
   Sandford, J.,

with the concurrence of two of his associates, held that the appointment was properly made. That the provision in section 116 of the code, was .intended for the benefit and protection of the infant, to secure him the opportunity of having a guardian of his own selection, by giving him twenty days after the service of the summons, in which no other person could apply. After that time, the plaintiff, or any relative or friend of the infant might make the application, but the infant was still at liberty to apply himself, until forestalled by such application.


author: Oakley, Ch. J.

text:
    Long v. Hall.
    The residence of a party, within the statute requiring security for costs, is not affected by the fact that he is a fugitive from service in another state, to which, pending the suit, he is removed upon the application of his master.
    Such involuntary removal, however, effects a change of residence, and he may be required to give security for costs.
    Where a plaintiff is a resident at the commencement of the suit, his subsequent removal from the state or beyond the jurisdiction of the court, will not make his attorney liable for costs,..although he proceeds in the suit.
    April 12, 1851.
    Mcmrar at chambers, decided by the Chief Justice after consulting with all the justices.

      Whitehead, for the plaintiff.

      O. M. 3all, in person.
   Oakley, Ch. J.

This is an application on the part of the defendant, for a dismissal of the plaintiff’s action, and that his attorney be ordered to pay the defendant’s costs. The plaintiff was arrested under the recent act of Congress in reference to fugitive slaves, and was carried before the defendant who was one of the United States Commissioners. Subsequently, the plaintiff commenced an action against the defendant, to recover damages for the arrest. After the commencement of this suit, the plaintiff was delivered up under the law, to the claimant, and carried back to his master in Georgia. An order was thereupon made in the usual wray, that the plaintiff file security for costs, on the ground that he was a non-resident. The plaintiff neglecting to comply with this order, an application is now made that his action be dismissed, and that the attorney be ordered to pay the costs. It is said the involuntary removal of the plaintiff from the state, does not change his place of residence. This we cannot accede to. The part of the motion asking that the complaint be dismissed, must be allowed, but we think that the attorney should not be compelled to pay the costs.

It was urged by the defendant’s attorney, that the plaintiff was never in fact a resident; that being a slave, his residence was that of his master, and that while here, he was here but temporarily, as a fugitive. It seems he was actually resident here two years, and this we think must determine the question under the statute. Besides, it is by no means established that the plaintiff is a slave. Prima facie the plaintiff was a free man at the time of commencing the suit. The proceeding under the act of Congress was not a determination of the fact that he was a slave, but it was merely that he should be remanded to the state of Georgia, where he is at full liberty to have the question tried and adjudicated.

It was taken for granted on the argument, that the attorney was liable for the costs, if he took any step in the cause after his client became non-resident. This is an error. The statute imposes the liability on the attorney, only when the plaintiff is a non-resident at .the commencement of the suit.—(Alexander v. Carpenter, 3 Denio, 266.) The circumstance that the plaintiff subsequently removes out of the state or out of the jurisdiction of the court, does not render his attorney liable for costs, although he continues the proceedings in the cause.


text:
    Falconer v. Elias.
    On a motion to discharge an order of arrest, founded on affidavits denying the grounds on which it was issued, the court will look into and weigh the affidavits on both sides, in order to determine whether the arrest shall stand.—(See Lee v. Elias, post.)
    April 12, 1851.
    Motion at chambers. The facts appear sufficiently in the decision.

      J. E. Burrill, Jr., for the plaintiff.

      A. JR. JDyett, for the defendant.
   Oakley, Ch. J.

The defendants were arrested, and held to bail in an action instituted by the plaintiff, charging them with obtaining goods under fraudulent representations. They now move to be discharged from the order of arrest. The motion is made upon an affidavit of the defendants, denying all the allegations of fraud set up in the complaint and in the affidavits, on which the order of arrest was granted.

The main question raised upon the argument, and which is the important question in the case, is this, whether where the fraud depend on specific facts, which are denied in the affidavits on which the motion to discharge is made, the court have the power to look into the affidavits, and determine the probability or improbability of the alleged fraud, or whether, like the case of an injunction, a denial of the allegations upon which it is obtained, is fatal to the arrest. I am of opinion that the court has the power of looking into the affidavits, and deciding on their probable truth, and in this opinion, my brethren all concur. There is no other way of accounting for that provision of the code, which allows the plaintiff in a case of this kind to introduce affidavits in opposition to the application to make the order of arrest. This section can have no meaning or object, unless it permits the court to weigh the affidavits, and decide upon the truth of the facts. (The chief justice then examined the affidavits, and decided that the arrest should be retained, with a mitigation of the amount of bail.)


author: By the Court. Duer, J.

text:
    Brown v. Jenison.
    A sham answer or defence, is one which is false in fact and not pleaded in good faith. It may be good in form, although a sham answer.
    A frivolous answer is one that shows no defence to the action.
    Each may be stricken out on motion.
    April 12, 1851.
    Motion to strike out an answer, made at chambers, brought up by appeal, and heard by four of the justices of the court.
   By the Court. Duer, J.

The plaintiff referred to section 152 of the code, but it does not apply to his motion. A sham answer and defence, is one that is false in fact, and not pleaded in good faith. It may be perfectly good in form, and to all appearance a perfect defence. Section 152 provides for striking out such answers. A frivolous answer, is one that shows no defence, conceding all that it alleges to be true. Each may be stricken out on motion, but it is under different provisions of the code. The question here is, whether the answer is frivolous. (The judge then examined the answer in this respect.)


text:
    Hanson v. Tripler.
    The issuing of an attachment against a party as a non-resident debtor, will not prevent an execution creditor from continuing proceedings supplementary to execution against persons alleged to have property belonging to the debtor.
    The court may, in such ease, appoint a receiver of the property, in the hands of such persons, to preserve it; and if the attachment be prosecuted, the question of right may then be determined.
    April 12, 1851.
    The question arose on proceedings supplementary to the execution, and was decided by the chief justice, after consulting all the justices. The plaintiff had obtained a judgment against the defendant, upon which an execution had been issued to the-sheriff of the city and county of Hew York, where the defendant resided. The plaintiff, upon an affidavit that certain parties had property of. the judgment debtor in their possession, to an amount exceeding ten dollars, then applied to one of the justices of this court, and obtained an order under § 294 of the code of procedure, requiring those parties to appear and be examined on oath concerning the same. Upon the return day of the order, the parties appeared by their counsel, and moved to dismiss the order, on the ground that an attachment had issued against the property of the defendant as a non resident debtor under the revised statutes, and notice thereof served prior to the service of the order of the judge, though after the latter was 'issued ; and that as, by the provision of the statute, all property of the debtor was absolutely enjoined by the attachment, in whatever hands it might be, the proceedings under the order were of no practical value.

      O. A. Da/oison, for the plaintiff.

      W. Mulooh,, for the defendant.
   Oakley, Ch. J.

We think, that the plaintiff is entitled to continue the proceedings which he has instituted. He has shown a right to have the property of the defendant secured for the satisfaction of his judgment, within the provisions of the statute ; and we do not see how he can be divested of the right thus obtained, by the mere fact that an attachment has issued against the property of the defendant. It may be, that the attachment will he discontinued, or set aside. It is, therefore, proper, that the examination should proceed, and if, at the termination of the inquiry, it should be ascertained, that the parties luwe in their possession property of the defendant, a receiver may be appointed. If the attachment be continued, this proceeding will not determine the right. The property will be preserved, and the question of right, between the attaching creditors and the receiver, can then he determined. In the mean time, whatever order is made by the court, it will he a complete protection to these parties. This is not the proper place to raise the question between the rival creditors, which they attempt to present.

Motion denied.


text:
    Lettman v. Ritz.
    Amendment of the complaint allowed at the trial, in an action of slander, so as to insert words in the German language, with an inuendo that they meaned in English, the words stated in the complaint; it appearing on the trial that the slander was uttered in German, to those who understood that language, that the meaning of the words was properly stated m the complaint, and there being no affidavit of surprise on the part of the defendant.
    Where slanderous words are spoken in a foreign tongue, the complaint should set forth the words in the foreign language, with an averment of their meaning in English, and that the persons present understood the language used.
    May 10, 1851.
    TW complaint was for slanderous words, imputing a felony, stated as having been spoken in English. At the trial, before Saudeoed, J., five witnesses who were Germans, proved the slander to have been spoken in the German language, and the words used were shown by a sworn interpreter, to mean in English precisely the words alleged in the complaint. The defendant moved for a nonsuit, and the judge said the complaint was defective in not having stated the slanderous words in the language in which they were spoken, with an averment of their meaning in English, and that the hearers understood German,
       but the judge preferring not to fix at the trial the terms on which the complaint might be amended, gave the plaintiff leave to proceed, and subsequently if he obtained a verdict, to apply to him at chambers, on notice, for leave to amend, with the same effect as if moved at the trial. The cause thereupon proceeded, and the plaintiff obtained a verdict for a large sum. He thereupon moved at chambers, for leave to amend his complaint, as of the time of the trial. There was no proof or affidavit offered on. the part of the defendant, at the trial or on the motion, that he had been misled or surprised by the variance. (Code of Procedure, § 169.)
    The judge, with the concurrence of all his associates, permitted the amendment to be made, on payment of the costs of opposing the motion; the plaintiff to retain his verdict to the amount of five hundred dollars. There was no question upon the evidence, of the plaintiff’s being entitled to a verdict; and in respect of the damages, the judge having reported that the amount was much beyond what in his opinion the circumstances of the case required, he was advised and he so ordered, that the plaintiff’s consent to a reduction of the amount, should be imposed as one of the terms of granting the motion.
    Order accordingly.

      Rodgers & Woodman,, for the plaintiff.

      M. Van Hovenhurgh, for the defendant.

       See 1 Saund. R. by Williams, 242, note 1; Starke on Slander 308; Wormouth v. Cramer, 3 Wend. 394.


text:
    McCrane v. Moulton.
    A summons by which a suit is commenced, cannot be amended without leave of the court.
    May 10, 1851.
    In this and several other cases against the same defendant, the plaintiff’s attorney, discovering a mistake in the summons by which he commenced the suits, amended them as of coime, and served them anew. The defendant moved, in each suit, to set aside the amended summons.

      A. Mathews, for the defendant.

      G. Woodman and G. JBarstow, for the plaintiffs.
   Mason, J. (with the concurrence of all the justices.)

A summons cannot be amended without leave of the court. Section 172 of the code, allowing a pleading to be once amended of course, does not apply to a summons, which is not a pleading, but process. The power of amendment is in terms confined to the court by § 173.

The motion to set aside the amended summons in each case is granted without costs.


text:
    Lee and others v. Elias and others.
    Where the complaint sets up a demand upon a contract, e. g. a promissory note, and claims judgment for a specific sum of money, it is improper to insert in it allegations that the defendant was guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought.
    In such a case, the question of fraud cannot be put in issue by the pleadings and thus brought to trial, in order to ascertain whether the defendant is subject to arrest or to an execution against his person.
    If the plaintiff desire to take the person of the defendant in execution in such an action, he must cause him to be arrested while the suit is pending, under the provisions of the code relative to arrest and bail.
    May 10, 1851.

      Motion to strike out portions of the complaint, as irrelevant and redundant. The matters appear in the decision, which was pronounced upon advisement with all the justices of the court.

      A. B. Dyeit, for the defendants.

      J. E. Bwrill, Jr., for the plaintiffs.
   Campbell, J.

The summons was for a money demand, and the complaint claims that the ¡fiaintiffs are payees and owners of a promissory note made by defendants, and concludes with a demand for, judgment for a specific sum of money. The complaint also contains allegations, that the goods for which the promissory note was given were fraudulently procured from the plaintiffs. A motion is made to strike out this part of the complaint which sets up the fraud.

The defendants were not arrested, nor was any process for arrest asked for, but it is insisted by the plaintiffs that these allegations of fraud should be retained in order to enable them to obtain an execution against the persons of the defendants, after an execution has been returned unsatisfied against their property, pursuant to the provisions of section 288 of the code.

I think these allegations must be stricken from the complaint. It seems to me that great oppression might result from allowing this course of pleading to be followed. A summons may contain a demand for a specific sum of money which the defendant owes, and against which he can make no defence. A complaint may be filed demanding the judgment for the money specified in the summons, and also setting up gross frauds on the part of 'the defendant; and the defendant may thus be defaulted and made to admit charges of fraud which have never come to his notice, and thus also subject himself to arrest and imprisonment. As originally reported, section 179 of the code only contained the three first subdivisions, embracing actions ex delicto, where the pleadings embracing the summons, show that the claim is for an uncertain amount of damages. In those cases, a defendant would necessarily look into the claim made against him. The provisions for arrest for a fraudulent purchase or procurement of goods were inserted by the legislature, and the section 288 remaining as reported, caused the point of difficulty.

In cases arising under the fourth and fifth subdivisions of section 179,1 think, if the plaintiff wish to obtain the benefit of the execution provided for against the person in section 288, he must set up the fraud in the commencement of the suit, or at least before judgment, and cause the defendant to be arrested and held to bail. (Code, § 183, 204.) We cannot accede to the idea, that the question of fraud, where it is in no wise applicable to the judgment to be rendered, is to be put in issue by the pleadings, in order to be tried in the action, merely to ascertain whether the case is one in which the defendant might have been arrested under sections 179 and 181 of the code, and his person taken in execution under section 288.

The motion must be granted, but as the point is new, without costs.


text:
    Wiggins v. Gans.
    An answer is indefinite and uncertain, which sets up by way of set off, that the plaintiff is indebted on account of previous transactions, in a sum equal to his claim, as will appear by reference to an account current stated in the complaint to have been rendered by the defendant to the plaintiff.
    A defendant under an order to make an answer more definite, does not comply with the order by stating the set off to he for work and labor, goods, wares, &c. and money lent, &c. in the language of the common counts in assumpsit.
    May 10, 1851.
    Motion to strike out an answer. The matters appear in the decision.

      H. A. Gram, for the plaintiff.

      G. JS. Appleby, for the defendant.
   Mason, J. (with the concurrence of the other Justices.)

An answer which sets up by way of set-off, that the plaintiff, previeras to the accruing of the demand set forth in the complaint, was indebted to the defendant on account of previous transactions, in a sum of money equal to the sum claimed by the plaintiff, as will appear by the account current rendered by the defendant as stated in the complaint, is indefinite and uncertain.

The defendant was under an order, requiring him to make the answer in this respect definite and certain by amendment, and he now states the set-off to be for work and labor, and for goods, wares, and merchandise, and for money lent, paid out, and expended, in the language of the common counts in actions of assumpsit, .under the old practice. The former answer is in no respect a compliance with the order, and must be stricken out, with $10 costs.

But the defendant may, on presenting a sufficient answer, duly verified, to one of the justices of the court, within five days, apply for permission to put the same in.


author: Mason, J.

text:
    Sheldon and others v. Wood.
    The provision of the code, relative to the reference of causes, is much broader than that of the revised statutes.
    Where the trial of the issue in the cause will require the examination of a long account on either side, a reference will be ordered, although it appear that the ground of the action is fraud.
    May 10, 1851.
    The plaintiff moved in this cause for a reference, which was opposed, on the ground that the action was founded upon alleged frauds of the defendant. The motion was heard before the Chief Justice and Mason, J., and decided with the concurrence of the entire court.

      E. Smdford, for the plaintiff.

      T. W. Tudkerr, for the defendant.
   Mason, J.

The court has power to order a reference in actions sounding in tort, where the trial of the issues of fact shall require the examination of a long account. Therefore where an action is brought to recover back money alleged to have been fraudulently charged in an account between the parties, a reference will be ordered, though the ground of the action is the fraud of the defendant.

Section 271 of the code is broader in its terms than the provisions of the revised statutes on the same subject. The latter provided for the appointment of'referees in actions founded on contract; the code authorizes a reference in all actions whatever.

We think that the account in this cause could not well be investigated and settled by a jury, and the motion for a reference is therefore granted, the costs to abide the event of the suit.


author: By the Court.

text:
    Bulkeley v. Keteltas and others.
    The filing with the county clerk, of a transcript of the docket of a judgment entered in this court, and docketing the same with such clerk, is not a proceeding in this court which is stayed by an appeal from the judgment to the court of appeals perfected by giving security as prescribed by the code of procedure.
    May 31, 1851.
    This was a motion at the general term, before Oakley, Ch. J., and Dues and Campbell, J. J., decided with the concurrence of two other justices. Judgment had been rendered in favor of the plaintiff at the special term, and affirmed by the general term on appeal. The defendants then appealed to the court of appeals, and gave the requisite security, pursuant to sections 334, 335, and 339 of the code. The plaintiff, before receiving notice of the appeal, had procured from the clerk transcripts of the docket of the judgment, and after being served with such notice, filed them with the clerks of the city and county of Hew York and the county of Kings, and docketed the judgment in those, counties, (Code, § 282.) The appeal is still pending. The defendants moved that the plaintiff be compelled to vacate .and cancel-the dockets of the judgment so made after the appeal, on the ground that the plaintiff’s proceedings were stayed by the appeal before the filing of the transcripts.

      O. II. Smith, for the defendants.

      L. E. Bullcdey^ in person.
   By the Court.

We cannot see any ground upon which we can deprive the plaintiff of the lien on the property of the defendants, which he has acquired by docketing his judgment. The law gives him the right to file a transcript of the judgment for his security. The transcript here was procured before the appeal was perfected, so as to operate as a stay of proceedings for any purpose. After the perfecting of the appeal, no proceeding in this court can be had. A proceeding in court, we understand to be an act which is done by the authority or direction of the court, express or implied. Such, for instance, as the issuing of an execution, or the delivery by the clerk of a transcript of the judgment' to the plaintiff. But when a transcript is once given to the plaintiff, the right to file it results from the law, and the filing of it cannot be considered as a “ proceeding in court,” or as a thing done by the authority of the court, within the meaning of the provision of the code on the subject of appeals.

Motion denied.


text:
    Frazer v. Phelps.
    A referee, to whom all the issues in the action have been referred, has not authority to order the production of books by either party, where there is no provision to that effect in the order of reference.
    This power is limited to the court, or a justice thereof, whether exercised under the code or the revised statutes.
    May 31, 1851.
    This was a suit for an account against a trustee. After the cause was at issue ón the answer and reply, it was, upon the consent of the parties, referred to a sole referee, pursuant to § 270 of the code. Among other matters which occurred on the trial before the referee, the plaintiff claimed to have established, that the defendant had used the trust funds in two different partnerships of which he was a member, and thus had rendered himself liable for the profits thereby earned.
    The plaintiff thereupon required the defendant to produce the entries in the books of those firms, showing the profits made during the period the trust moneys were so used; and applied to the referee for an order to that effect. The referee, after argument, decided that the defendant should produce such entries, and made an order upon him accordingly.
    The defendant failed to comply with the order, and the plaintiff moved for an attachment against him. After a formal decision at chambers, the motion was heard at the general-term, by all the justices except one, who concurred in the conclusion of the court.
    The decision is stated at the head of the case. The court said, in addition, that on such a reference as this, where accounts were to be taken, the referee’s certificate that the production of books and papers was necessary, would be regarded as presumptively sufficient, on a motion. to a justice at chambers, to warrant an order for such production. The burden of showing that it ought not to be made, would be upon the adverse party.
    Motion denied.


text:
    Hollister v. Spafford.
    In general, a reference will not be ordered, adversely, to take the examination of parties brought before a justice of the court, on proceedings supplementary to an execution.
    Where the parties agree to a reference, it will be ordered of course. And the matter will be referred, where it is apparent that it will be a protracted investigation, and the examinants are attended by counsel.
    May 31, 1851.
    Tots was a proceeding supplementary to the execution, in which, on advisement with all' the justices of the court, it was deemed proper to announce the course of practice pursued in this court.
   Campbell, J.

The practice we have adopted, when judgment debtors, or persons alleged to have their property, are brought up for examination, on an order of one of the justices, is now stated, that it may be more fully understood.

As a general rule, we will not order a reference for this purpose, against the wishes of either party. The examination must proceed at the chambers of the court, where the justice im attendance at chambers, or holding the special term, can see that no injustice is done to examinants attending without counsel, and can dispose of the legal questions arising, to the great saving of trouble and expense to the parties.

As such examinations are usually conducted, his actual attention to them will be required only occasionally, and they will not interfere materially with his other duties.

Wherever the parties agree to a reference, it will be ordered of course. So, when it becomes apparent that a difficult or protracted investigation must ensue, and the examinants have counsel, a reference will be directed.