text:
    Louis Ansen et al. plaintiffs and respondents, vs. Phillip H. Tuska, defendant and appellant.
    The court has no power, on motion, to compel a party to an action to submit articles which are the subject thereof, and are neither books, documents, nor evidence of themselves, to be inspected by third persons in order to enable them thereby to qualify themselves to testify as experts, in the action for the party applying, as to the mere quality of such articles.
    (Before Robertson, White and Barbour, JJ.)
    Heard and decided June 20, 1863.

      This was an appeal from an order denying a motion for a discovery.
    The plaintiffs brought this action upon an alleged breach • of a contract by the defendant to purchase, by sample, a quantity of merchandize, which the defendant had refused on a tender of them to accept, on the ground that it did not correspond with the sample.
    The defendant moved, on affidavits, that an inspection of such articles by third persons was necessary to his defense, for an order compelling the plaintiffs to produce the goods at a time and place to be fixed by the court, to be inspected by persons to be selected by him, to enable them to testify as experts as to the correspondence of such 'articles with the samples.
    The motion was heard at special term before Mr. Justice Robebtson, who denied it, and from the order entered on his decision the defendant appealed.
   By the Court, Robertson, J.

I am induced by a fuller examination and more full reflection, to adhere to my views first expressed in this case at special term. I was then startled with the novelty of the application, and could find no principle or authority to warrant granting it. It may be morally obligatory on either party having in his possession exclusively, information, beneficial to the other party in the litigation between them, to disclose it to him; but the duty is one of imperfect obligation, not capable of practical definition or legal enforcement. Of course the court has means at its disposal for such enforcement, if it were proper. Assuming that it clearly appears prima facie that a party seeking the aid of the court to enforce such disclosure, has a case to sustain, if will always be difficult to determine that the party applying is without any other means of accomplishing the desired results, but by the information sought. It would not be safe to allow the party applying to be the sole judge of whether a disclosure or inspection of certain. articles' were indispensable for the purpose of doing justice, and the assertion to that effect to he conclusive.

The present is, however, not strictly an application for discovery ; that is confined to an examination of adverse parties as witnesses, and the production of books, papers, documents and entries. In such cases the testimony of such parties becomes available directly as evidence in the action, and copies taken or furnished of such writings may be produced, in the absence of the originals. But it is contended that the principle which allows the compulsion of such discovery, is equally applicable to a compulsory inspection of articles of merchandize, which form the subject matter of an action, by third persons, in order to enable them to speak more intelligently, and clearly and with less loss of time, on the trial, even if their entire qualifications as witnesses at all should not depend upon it. ■ "

It is very clear that such relief could not, under the former division of the jurisdictions of courts, have formed the subject of an action in equity, and there is no authority or principle to be found to sustain it. A final decree in an action to compel a party to produce, for the inspection of the prospective witnesses of his adversary, the subject of controversy would be entirely novel. If such power exists any where, it must be in the exercise of equitable jurisdiction by common law courts. The only exception in which that has been" exercised, has been the deposit of deeds (Jackson v. Jones, 3 Cowen, 17,) and notes (Brush v. Gibbon, id. 18, n.) charged with being forgeries. An instrument required to be filed in a proper office by a stranger (People v. Vail, 1 Cowen, 589; S. C. 2 id. 623,) is hardly an exception.

In the present case the defendant refused to receive the merchandise sold, whose price is now sued for, because it did not correspond with the sample-by which it was sold; he therefore naturally may be presumed to have furnished himself at the time it was tendered with the means of proving such want of correspondence. The plaintiff is bound, in order to make out' his case prima facie, to establish that the goods were of the kind sold; the mere outward appearance gf a few of such articles would not he sufficient; he must establish their thorough compliance with such description. If the defendants had no means of ascertaining their compliance of such articles when tendered with such terms of the description, he should have taken them ipto his possession and returned them, as he had a right to do, as soon as with reasonable diligence he had ascertained, and so thoroughly as to be capable of proving it, that the articles did not correspond with the samples. By rejecting them at once, without such full examination, he incurred by his own negligence whatever risk there was of not being able to prove conclusively the inferiority of the article, and he is not entitled now, to call upon this court to exercise an unprecedented power to furnish him with an opportunity for such examination, in order to repair the consequences of such negligence.

The order appealed from must be affirmed with costs.


source: Caselaw Access Project

author: Robertson, J. Bosworth, Ch. J. Barbour, J. (dissenting.)

license: Public Domain

text:
    Mary Jane Robbins, administratrix, &c. of Charles A. Robbins, plaintiff and appellant, vs. Henry Wells et al. defendants and respondents.
    1. Suits, against an association consisting of seven or more persons must be brought against the president or treasurer of such association, in the manner prescribed by the acts of 1846 and 1851, and the remedy against their joint property be exhausted, before an action can be brought against one or more of the individual associates.
    2. It seems, that the objection that it appears by the complaint that the plaintiff is a foreign administrator, does not go the sufficiency of the cause of action. It should be taken by demurrer on the ground of want of capacity to sue.
    An omission to demur is a waiver of the objection.
    3. A judgment dismissing a supplemental complaint filed by a representative of a deceased plaintiff1, who has not legal capacity to sue, granted at the trial, solely on that ground, is ncft a bar to a further prosecution of the action by a proper representative who has such capacity.
    4. Leave to file a supplemental complaint does not establish the plaintiff’s right to sue for the original cause of action. Per Robertson, J.
    (Before Bosworth, Ch. J. and Robertson and Barbour, JJ.)
    Heard December 9,1862;
    decided June 27, 1863.

      This was an appeal from a judgment had on a dismissal of the complaint on the trial.
    This action was originally commenced by Charles A. Robbins, of Iowa, against the defendants, Henry Wells, John Butterfield and others, doing business under the name of the. “The American Express Company,” to recover of them the value of two boxes and a trunk, which he claimed to have been delivered to them, to be conveyed to Muscatine, in the state of Wisconsin.
    The complaint was against “the defendants, (Henry Wells and John Butterfield,) who with others, unknown to the plaintiff, do business as expressmen or forwarders, under the name of the American Express Company.” The original plaintiff dying before the trial, Mary J. Robbins, his wife and administratrix, by virtue of letters of administration issued in Iowa, obtained leave to revive the suit by filing a supplemental complaint. Subsequently, on the requisition of the defendants, she filed security for the costs. The supplemental complaint filed by such administratrix alleged the death of the intestate and the issuing of letters in Iowa. That the intestate in his life time commenced an action by service of summons and complaint and then set forth and alleged, on the part of the present plaintiff, the averments of the original complaint. The defendants, (Wells and Butterfield,) answered, among other things, denying that the trunk was delivered to them, arid alleging that it was delivered to “ The American Express Company,” an association, formed under the laws of this state, of more than seven persons, of which the defendants are two. ■ .
    And for a further and separate defense in the action, claimed it was not brought in the' name of the president or treasurer of such company, in conformity with the statute in such case made and provided, and demanded that the same should be dismissed, with costs.
    The action came on for trial on the 6th of February, 1862, beofore Mr. Justice Monell and a jury.
    Upon the trial it appeared that the American Express company was a joint stock association, consisting of more than seven shareholders ; and that the goods in question were delivered to that company.
    The evidence is sufficiently stated in the dissenting opinion of Barbour, J.
    When the plaintiff rested, the defendants’ counsel moved to dismiss the complaint on the following grounds :
    1st. That the action is brought in the name of a foreign administratrix who can have no status in this court. Ho letters of administration have been taken out in this state.
    2d. That the action was not brought against the American Express Company; that the action must be brought against the president or treasurer, and not against individual shareholders.
    3d. That there is no evidence as to what goods were put in the trunk in question, nor that any part of the goods said to be missing were put into that trunk.
    The judge granted the motion and dismissed the complaint, to which the plaintiff’s counsel excepted.
    The court directed the exceptions to be heard in the first instance at the general term, and the judgment in the meantime to be suspended.

      William R. Martin, for the plaintiff, appellant.
    I. The first ground for dismissing the complaint urged by the defendants was not sufficient.
    1. The action was originally brought in the name of the intestate. After his decease leave was granted by the court to the present plaintiff, under section 121 of the Code, to continue the action in her name.
    2. The objection was formal, and was waived by the defendants, first, by failing to prevent the granting of leave; second, to demur • and lastly, by compelling the plaintiff to give security for costs. Such an objection must be made promptly.
    3. By section 121 of the Code, the court are expressly authorized to allow an action to be continued, by a representative or successor in interest, without any limitation.

      II. The action is properly brought against the defendants. It is not brought against the individual shareholders of the express company.
    1. The receipt, which is the contract on which this action is brought, states : That Wells, Butterfield & Co., (that is those doing business under that title,) are express forwarders and agents. That they have assumed the name stated at the heading, “American Express Company.” That they are “ proprietors” of the business and the company. The contract is made by the “ proprietors,” the signature being expressly made “for the proprietors,” not for the company. It acknowledges the delivering to “ us” (the proprietors) of one trunk, &c. which we (the proprietors) undertake to deliver, &c. The American Express Company are not named in the operative parts of the contract, nor is there any representation or suggestion in the receipt that they were a joint stock association, or were the contracting party. Ho certificate of organization or association is required to be filed by a joint stock association, and there was none in fact filed. There was no proof that the plaintiffs knew or could have known that the defendants were a joint stock asssociation, and in fact they did not know it.
    2. Upon this receipt, the action was properly brought against the parties who signed it, Wells, Butterfield & Co., the pro-' prietors. It could not have been brought against the American Express Company. It describes the defendants precisely as they describe themselves in the contract, and is a good suit against Wells, Butterfield & Co. (Ziele v. Campbell, 2 John. Cases, 382. Collyer on Partn. §§ 839, 840, 713. Chit. Pl. p. 42, 46.)
    The defendants might have pleaded non-joinder, and set up the names of the other partners or co-proprietors, when the plaintiff could have brought them in. (Graham’s Pr. 94.) But the defendants, by not denying, admit this allegation of the complaint.
    3. But if the joint stock association, the American Express Company, should have been sued, the statuté has been substantially complied with.

      (a.) Henry Wells is named as defendant, doing business under the name of the American Express Company. Too much is alleged in including John Butterfield and others, and too little in omitting to call Henry Wells by his title of office, “President.” Neither of these are essential variations. The statute provides that the association may sue or be sued in the name of its president. (2 R. S. 4th ed. 717, § 121.).

      (b.) The answer avers that he is president of the association, and the plaintiff is entitled to the admission. The defect in the complaint is thereby aided and cured. The defect is in the statement of this title, and becomes immaterial. (Chit. Pl. p. 671, 681. Bate v. Graham, 1. Kern. 237. White v. Joy, 3 id. 83. Ayres v. Covill, 18 Barb. 260. Brown v. Harmon, 21 id. 512. Clark v. Dales, 20 id. 42. Stennel v. Hogg, 1 Saund. 228, and note.)

      (c.) Under this statute, .it is not obligatory to describe a president by his title of office. In East River Bank v. Judah, (10 How. Pr. 135,) it was decided that the suit might be brought in the name of the president or of the bank ; that either would be good. The only defect here is the formal one of omitting the title “ President.” It is merely a misnomer, and is not even pleadable in abatement. (1 Chit. Pl. 245. Elliott v. Hart, 7 How. Pr. 25.) And the defect should be disregarded or amended. (Code of Pr. §§ 173, 175, 176. Bate v. Graham, 1 Kern. 237. Clark v. Dales, 20 Barb. 42. Barnes v. Perine, 9 Barb. 206. Fuller v. Webster Ins. Co., 12 How. Pr. 293. Lighte v. Everett Ins. Co., 5 Bosw. 716. Bogart v. McDonald, 2 John. Cases, 220, note.)

      4. If the suit ought to have been brought against the Amerian Express Company as a joint stock association, Mr. Butter-field being unnecessarily a party, the complaint may be dismissed as against him. (Mont. Co. Bank v. Albany City Bank, 3 Seld, 459.) He is in no position to take advantage of the fact that he is made a defendant unnecessarily, not having pleaded a misjoinder which he could only do by pleading separately. (Shannon v. Comstock, 21 Wend. 459. Deforest v. Jewett, 1 Hall, 137. Gardiner v. Clark, 6 How. Pr. 449.) The plaintiff should have leave to discontinue against him, without costs. For the two defendants being united in interest, and having appeared by one attorney, have but one bill of costs. (Castellanos v. Beauville, 2 Sandf. 670. Walker v. Russell, 16 How. Pr. 91.)
    5. If the receipt be ambiguous and equivocal, it is not equitable to allow the defendants to take advantage of the equivocation in their own receipt, and escape on a technicality from their just liabilities.
    III. There is sufficient evidence as to what goods were put in the trunk, and that the goods said to be missing were put in the trunk. At all events, there was evidence enough to go to the jury.
    IV. As the plaintiffs move for a new trial, and if the court are of opinion that the amendment is necessary, also that the summons and complaint be amended by inserting the title of his office after Henry Wells, and striking out the name of John Butterfield, and for leave to discontinue against him without costs.

      Hooper C. Van Vorst, for the defendants, respondents.
    I. The company should be sued in the name of the president or treasurer thereof. (3 R. S. 5th ed. 777, §§ 122, 125.) The stockholders can not be sued until the remedy against the association has been exhausted by judgment and execution.
    II. There is no evidence that any portion of the goods said to be missing was placed in the trunk, or came into the pdssession of the defendants or the company.
    III. It is the duty of the court to nonsuit a plaintiff if the evidence, in their opinion, will not authorize a jury to find a verdict for the plaintiff, or if they would set aside a verdict if so found, as contrary to evidence. (Graham & Waterman on New Trials, vol. 1, 279. Stuart v. Simpson, 1 Wend. 376.)
    IY. The court will not set aside a nonsuit on the ground that the case should have been submitted to the jury, unless this was desired on the part of the plaintiff at the trial. (Kindred v. Bagg, 1 Taunt. 10. 1 Graham & Waterman on

      New Trials, 282.) Ho such desire was expressed hy the plaintiff.'
    V. The plaintiff, a foreign administratrix, not having taken out letters in this state, can not maintain this action. (Morrell v. Dickey, 1 John. Ch. 153. Doolittle v. Lewis, 7 id. 45.)
    VI. The" court should deny the motion for a new trial, and order judgment for the defendant, on the decision of the judge on the trial, with costs.
   Robertson, J.

It appears hy the case that only one action was tried, one set of pleadings before the court, and one complaint dismissed, and that was the supplemental action brought by Mrs. Bobbins to enable her to succeed to whatever rights her husband had in the original action, and prosecute it to a conclusion. One of the grounds on which such dismissal was asked for, was the legal disability of Mrs. Bobbins to prosecute any action. Whatever testimony was admitted on such trial to sustain the original cause of action, was, therefore, immaterial, and may be dismissed from our consideration. The present plaintiff's attorney appears from the complaint to have proceeded upon the erroneous view that the leave granted to file a supplemental complaint necessarily either absorbed the original action in the new one, or established 4he plaintiff's right to sue for the same cause of action. The present complaint, except that it alludes to the previous action, would be suitable for an entirely new one. As a supplemental complaint, where the original alleges the facts on which the action is based, the reiteration of those facts is entirely unnecessary. What was in the original complaint (if any was filed) does not appear, as it is not before us. At all events, it is necessary to try both actions before it can be determined "whether there was originally a cause of action.

Clearly the determination whether the party filing the supplemental bill was entitled to succeed to the rights of the original plaintiff was necessary, before ascertaining whether there was any cause of action, and if she were not so entitled, the court would not undertake to pass upon the original issues in this cause, when the true successor to the plaintiff’s rights was not before them to maintain them.

Assuming, then, that the only action tried was the supplemental one, and the only issue in it to be the right of Mrs. Bobbins to succeed to her husband's position as plaintiff, I fully concur with the chief justice in holding that the objection to her right to prosecute by reason of deriving title under a foreign administration was waived, as being the second cause of demurrer specified in the 144th section of the Code. Under section 148 such objection goes wholly to the right to sue, and not that to receive or discharge the claim. (Doolittle v. Lewis, 7 John. Ch. 49. Robinson v. Crandall, 9 Wend. 425.) They may be sued in this state in their representative capacity for moneys collected by them, including such a claim, (Campbell v. Tousey, 7 Cow. 64,) and they may assign their claims so as to give the assignee a right to sue.

A voluntary payment by the defendants to the plaintiff would have discharged the latter, as against all claimants. The defendants may, therefore, choose to waive the objection as to the right to recover by the plaintiff, and put their defense on the merits. A payment by them after the action was terminated, whether voluntary or involuntary, would bar the action of any other person.

The mere leave to file the supplemental complaint decides nothing as to the plaintiff’s rights. The judgment that the plaintiff in it have leave to prosecute the original action and succeed to all the rights of the first plaintiff is a different matter. Wheie the court can see on the face of the supplemental complaint that the former action is fatally defective, it may refuse such j udgment.. (Candler v. Pettit, 1 Paige, 168. Day v. Potter, 9 id. 645.)

I think that the provision of the statute of 1853, (ch. 153,) amending the statute of 1849, as to joint stock companies, (3 R. S. 5th ed. §§ 125, 827, pp. 777, 778,) is peremptory in requiring suits against partnerships, consisting of more than seven members,, to be brought against the president or treasurer, in order to determine their liability, and the remedy against their joint property to he exhausted, before an action can be brought against the individual associates.

The answer to the supplemental complaint is that the defendants are members of such a joint stock association, and therefore po action' can be maintained against any one but the officers named in the statute. This may be considered as an objection arising under the first or fourth of the causes of demurrer specified in section 144 of the Code. The court has no jurisdiction of the subject of the action so as to make the defendants responsible, until after the recovery of judgment and issuing of execution against the officers of the association ; and even if the defendants are at all proper parties to the supplemental action, clearly the officers in question should be added, and in that respect there is a defect of parties.

The dismissal of the supplemental complaint was, therefore, proper, and should be affirmed with costs. Qn.the character of the evidence, on the merits, I do not undertake to pass.

Bosworth, Ch. J.

The fact that the plaintiff is a foreign administratrix appears on the face of the supplemental complaint, and if that fact does not make the complaint one which fails to state facts constituting a cause of action, but on the contrary makes the case one in which the plaintiff has not legal capacity to sue, the defect is waived by the defendants’ omission to demur. (Code, § 144, subd. 2, §§ 147, 148.) Though a foreign administratrix, she might receive payment of this claim and give a valid release. (Doolittle v. Lewis, 7 John. Ch. 49.)

In chancery a probate taken out in this state any time before the hearing has been held an answer to the objection that a complainant is a foreign administratrix, the objection not having been taken in the pleading. (Osgood v. Franklin, 2 John. Ch. 18. Goodrich v. Pendleton, 4 id. 551, 552. Doolittle v. Lewis, 7 id. 51.) The omission to'take out letters in this state is said in Doolittle V/ Lewis, to be a formal defect, by which I understand it to be affirmed, that though necessary to clothe the party with a legal capacity to sue as a matter of right, it is á defect which may he waived, where it does not appear that any prejudice may result by not insisting on the act being done as a prerequisite to making such a decree as would be just on the merits of the case.

In Campbell v. Tousey, (7 Cowen, 64,) it was held that a foreign administrator who had received property of the decedent, and had not taken out letters in this state, might be sued in this state as executor de son tort, but it would be a defense that he had accounted in the due course of administration for all the property he had received.

In Robinson v. Crandall, (9 Wend. 425,) foreign administrators were allowed to sue in their own names on notes belonging to their intestate, payable to bearer. They were treated as the real owners of the notes. There was no defense in that case, except that of the plaintiffs alleged incapacity to maintain the suit.

If, therefore, it appeared that the complaint was dismissed solely on account of the plaintiff being a foreign administratrix, I should hesitate to affirm the decision. There is, however, a defect which I deem fatal; conceding that the objection that the plaintiff is a foreign ádmininistratrix, is one merely to her legal capacity to sue, or to further prosecute this action, and is waived by omitting to demur to the supplemental complaint.

The defendants are members of a joint stock company consisting of more than seven associates. The associates can not be sued as such, until after a suit has been brought against the association in the manner prescribed by 3 R. S. (5th ed. p. 777, §§ 122, 125,) and judgment has been obtained against it, and an execution against it has been returned unsatisfied. It was, therefore, right to order the supplemental complaint to be dismissed.

The case states that the complaint was dismissed at the trial. This clearly means the supplemental complaint. There was no other complaint before the judge who tried the cause.

The case now before the court purports to contain the pleadings and to state the proceedings which were before the judge at the trial, and they contain no pleading except the supplemental complaint and the answer thereto.

The defendants’ motion for a new trial should be denied and ani order be entered dismissing the supplemental complaint absolutely with costs of the proceedings had thereon. I see no objection to the entry of a judgment to that effect.

There has been a trial between the parties now litigating before the court, within the meaning of the word trial, as defined by the Code. (Code, § 252.)

The Code defines a judgment to be “ the final determination of the rights of the parties in the action.”

The only parties in the action, now litigating in it, are the plaintiff, as a foreign administratrix, and the defendants. A final determination that she has no right to further prosecute it, and that her supplemental complaint be dismissed, is a judgment as that word is defined by the Code.

Such a decision and judgment if pronounced solely on the ground of the plaintiff’s incapacity to prosecute the action, will eliminate from the cause all proceedings commencing with her supplemental complaint, and leave it as it was when she intervened. If pronounced on the grounds that her legal incapacity is waived by an omission to demur, and that no action will lie against the defendants, and, if both grounds are well taken, might be a bar to further proceedings, even if the plaintiff should take out administration in this state.

The judgment or final order may, apd I think should, show the point decided and the ground of the decision.

It will be time enough to determine the effect of the decE sion when the question is regularly raised hereafter for judE cial adjudication.

Barbour, J. (dissenting.)

This action was brought by Chas. A. Robbins, ,in his lifetime, to recover the value of certain watches and other articles contained in a trunk, alleged in the complaint to have been placed by him in the hands of the defendants, as common carriers, to be by them delivered.to him at Iowa City, in the state of Iowa, together with damages for the improper detention of other goods delivered to the defendants at the same time, for like transportation.

After the commencement of the action, Robbins, the plaintiff, died intestate, whereupon the present nominal plaintiff applied to the court for, and obtained leave to file and serve a supplemental complaint, and to continue the action in her name as administratrix; under which order such supplemental complaint was served, and an answer thereto was put in by the defendants, Henry Wells and John Butterfield.

The supplementary complaint commences thus: “ The plaintiff complaining of the defendants Henry Wells and John Butterfield, who, with others unknown to the plaintiff, do business in the city of Hew York, as expressmen or forwarders, under the name of the American Express Company,” and, after averring the placing of the goods in the hands of the defendants for transport, and their failure to deliver a portion of them, amounting in value to $680, and an unneceseary detention of the others, and alleging that the plaintiff had been appointed, by a county judge in the state of Iowa, administratrix of the effects, &c. of Charles A. Robbins, concludes with a prayer for a judgment against the defendants for the alleged amount of the loss and damages.

The answer contains a general'denial, and also sets up the fact, among other things, that the goods were received from Robbins by the American Express Company, a joint stock association, composed of more than seven shareholders or associates, two of whom were the defendants Wells and Butterfield, the only defendants named in the summons and complaint ; that such association was organized under the laws of the ■state of Hew York, and had a president (the defendant Henry Wells,) and a treasurer.

Upon the trial, the plaintiff, to establish the delivery of the goods to the defendants, exhibited in evidence a receipt in the following words:

“American Express Company.
WellSj Butterfield & Co. Express Forwarders and Foreign and.Domestic Agents.
Wells, Butterfield & Co. Proprietors.
Hew York, Sept. 18, 1854.
Platt and Brothers have delivered to us two boxes and one trunk marked as follows: Chares A. Bobbins, Iowa City, Iowa, which we undertake to forward to --only perils of navigation and transportation excepted. And it is hereby • expressly agreed that said American Express Company are not to be held liable for any loss or damage of any box, package or thing for over $150, unless the just and true value thereof is herein stated ; nor for any loss or damage by fire ; nor upon any property and thing, unless properly packed and secured for transportation; nor upon fragile fabrics, unless marked upon the package containing the same j nor upon any fabrics consisting of nr contained in glass.
For the proprietors,
Contents unknown. .=■ . Pride/7 ■

It was admitted that Pride, the signer of the receipt, was . an agent of the American Express Company; and had authority to sign it. Evidence was also given, tending to prove that the trunk mentioned in the receipt was not delivered to Bobbins at Iowa City, until about the 20th of April, 1855 ; that it was then in bad order and condition, and that, upon being opened, it was found that a portion of the goods, consisting of gold and silver watches, &c. amounting to $880.67, originally placed in such trunk, had been abstracted or lost therefrom.

On the close of the evidence thus presented, on the part of the plaintiff, the defendants moved to dismiss the complaint upon the following grounds:

1st. Because the action is brought in the name of a foreign administratrix, who can have no status in this court. 2d. Because the action is not brought against the American Express Company, but against its individual shareholders. 3d. Because there is no evidence that any of the missing goods were put into the trunk.

That motion was granted, and thereupon the plaintiff excepted and appealed.

Upon a careful examination of the case, I have become satisfied that the evidence given upon the trial was insufficient to establish the loss of the goods, ..while in possession of the defendants, or in that of the express company.

There is no evidence whatever to show that the invoice or bill which was in the hands of the Iowa witnesses, at the time they examined the contents of the trunk, was the real invoice which was furnished to Robbins by his vendors, or even a correct copy; and the evidence given to show that the. missing articles were placed in the trunk, and not in the boxes, is at best exceedingly slight. It appears, too, that the trunk' in question was in the hands of Robbins, some hours, at least, •before it was examined by the witnesses; and there is no evidence whatever as to its real condition or that of its contents at the time it was delivered to him.

I am also of opinion that the case made by the complaint, modified and changed as it was by the admission made upon the trial, that the American Express Company was composed of more than seven associates, and the exhibition in evidence of the receipt of their agent Pride, was insufficient to authorize a judgment against the defendants; for the defendants here are only two of more than seven partners or associates, all of whom were engaged in the same transaction, and were jointly liable,- and who, except for the acts of 1846 and 1851, (3 R. S. 5th ed. 777,) must all have been impleaded as defendants. Those' acts, however, (Id. §§ 122, 126,) for the purpose of aiding creditors- in the prosecution of their claims against associations composed of more than seven persons, have authorized suits to be brought against them in the name of their president or treasurer, and by the service of a summons upon such officer, has prohibited the institution of actions against such association individually in the first instance in any other way; and this action is brought, not against the association nor its president or treasurer as such officer, but against the defendants Wells and Butterfield individually, or as two only of more than seven partners. "

But, although the plaintiff was not entitled to judgment upon closing her proofs, and when the motion was made to dismiss the complaint, it by no means follows that the court had power so to dismiss it. If the plaintiff in the supplemental complaint has no such standing in the court as entitled her to prosecute the suit, the action, which is still in existence notwithstanding the death of the original plaintiff, (Code, § 121,) ought to be permitted to stand so as to leave the real representative of the deceased plaintiff at liberty, if he should be so advised, to apply for leave to prosecute it to judgment. It seems to me quite clear that the true representative can not properly be deprived of this right by the intervention of an outsider. Indeed, unless the proper parties were properly before the court at the time the trial was had, the judge had no jurisdiction to direct a dismissal.

' It is well settled, both in England and this country, that courts will not take notice of -letters of administration granted abroad, and that a foreign administrator has no right as such to maintain an action. (Campbell v. Tousey, 7 Cowen, 64. Robinson v. Crandall, 9 Wend. 425, and cases there cited.)

Of course, the plaintiff in the supplemental complaint is. not entitled, as an administratrix, appointed in Iowa, of the goods, &c. of the original plaintiff, to continue the action as the representative of the original plaintiff, and to prosecute the same to judgment.

I am of opinion, therefore, that the order dismissing the complaint should be set aside and vacated; leaving the defendants to take such action in the premises as théy may be advised.


author: By the Court, Robertson, J.

text:
    William S. Woods et al. plaintiffs and respondents, vs. Louis F. DeFiganiere, president, &c. defendant and appellant.
    1. An application for the discovery of books and papers, should not be granted where the entries sought for are not shown to be evidence, but only to contain information by which evidence can be obtained.
    2. In such an application, made under the provisions of the Revised Statutes, as well as in the former practice in courts of equity, the denial by the defendant of all possession or control of the writings sought for, is a full answer, notwithstanding the defendant has omitted to controvert an allegation that he had delivered some such documents to his counsel.
    3. Such an order is not sustainable under the powers of courts at common law, except as to Writings which not merely furnish evidence, but which are the foundation of the action.

      4. Such an order is not sustainable under the provisions of the Code of Procedure, except as to entries which are shown to be capable of being used as evidence; and as to such papers the power of the court is discretionary, and should not be exercised unless it appear that they are indispensably necessary. If it appear upon the application, that all that could be proved by such entries could be otherwise established, the order can not be sustained.
    6. The provisions of the Code do not authorize an order precluding the defendant from a defense, or from controverting certain facts, as a penalty for his refusing to make discovery of books and papers; but confine the consequences of such refusal to the exclusion of the do'cument as evidence, and the punishment of the party.
    6, An order for the discovery of books and papers is one which affects a substantial right, and is appealable.
    (Bdfore Robertson and Monell, JJ.)
    Heard July 30, 1863;
    decided October 3, 1863.
    The order appealed from in this case required the defendant to give or allow the plaintiffs to take copies of entries in a hook alleged to he tinder his control, and in case of refusal, precluded him from making certain defenses, or controverting certain facts alleged in the complaint.
    The action was brought against the defendant as president of a joint stock • association, consisting of more than seven persons. The existence of such association, his presidency thereof and the names of the members, were alleged in the complaint, and controverted in the answer; which were the facts which the defendant was precluded from controverting by the order in question.
    The book, copies of entries in which were required to be furnished, was alleged to have contained minutes of the transactions of some persons, whose names were unknown; at meetings held by them, among which were included the election of a board of managers, and the appointment by the latter of the defendant as president.
    The application was based upon á petition of the plaintiffs setting forth certain disclosures made by the defendant on his examination as- a witness for them, previous to the trial. By them it appeared that he had admitted that in November, 1858, he had agreed, with others, to form an association of the same name as that of which the defendant was sued' in this action as president. He also produced a prospectus for the formation of a company of that name, signed by himself and others, containing the object, capital and other terms of its creation. Upon being asked whether he had any other written papers, besides such prospectus, signed to Ms knowledge by any one, relative to the organization, formation or operation of such company, he answered that he had delivered other papers to his counsel, but could' not tell whether they related to the formation of the company, or its operation or tiot, nor whether any one, or who, signed them. He further admitted, upon such examination, that in 1859 he was appointed the president of an association of the same name as that whereof he is sued as president in this action; also that a number of persons were present at the meeting at which he was so appointed ; and that minutes of that and other meetings, showing who were present at them, were kept in writing, in a book which he had delivered to his' counsel, in whose possession he believed it still to be. But he also stated that Tie could not recollect any thing definite of the contents of such papers or book, or the persons therein specified as members, or who attended the meetings therein specified. He also gave the name of one manager of such company positively, and of others qualifiedly.

      From a statement contained in such petition, it appeared that the defendant had given the names of all the parties •mentioned in the complaint as such, as members of such association, in a complaint in an action brought by him as president thereof, against third persons; and had alleged therein that he had entered into such association in April, 1859, with such other persons. Being asked on his examination, from whom or where he got the information that such persons were associates in such company, he answered, he could not recollect; in some cases, from the parties, although he could not tell which.
    The petition also set forth that an application to compel the defendant to produce such book, made in the progress of his examination, had been- denied by the justice before whom the same was conducted. * The plaintiffs also averred in such petition, their belief that the minute book demanded contained material, necessary and important evidence on the trial of the issues in this action, relative to the company, its members, and the defendant’s official position therein. But such belief was only alleged to be founded on the other facts stated therein.
    The defendant denied under oath, absolutely, all possession or control by him, jointly with any other person, or separately, of the books and papers demanded at the time of the service of the petition. '
    The order was made on such petition, affidavit of the defendant, and the pleadings.

      D. M. Porter, for the defendant, appellant.

      A. R. Dyett, for the plaintiffs, respondents.
   By the Court, Robertson, J.

In order to maintain this action against the defendant, as the representative in it of the company sued, it is only necessary, under the statute authorizing such modes of bringing suits, for the plaintiffs to establish that the company consisted of the requisite number of members, and that he was president. (3 R. S. 5th ed. 777, 8, 9.) The question of the liability of individual members, as part-' ners, is not in issue, as only the property held by them jointly as an association can be taken in execution upon a judgment therein,- and therefore their names are immaterial. Their individual liability as members, may be the subject of a subsequent action, in which, of course, their names would be essential. But had it even béen necessary to prove the names ' of the members, the defendant appears to have furnished them-by the' sworn complaint in the • action brought by him, and the prospectus produced by him. In reference to the existence of the company sued in the defendant’s name, as its president, he had admitted the existence of one bearing the same name, organized for certain purposes. If not .for the same purposes or consisting of seven persons, the plaintiffs have not attempted to ascertain either fact from the defendant on the stand. Bor do they allege or attempt to show that the book entries in question belonged not to such company, but. to that sued in this action, if there were two of the same name. And moreover,.they do not even allege that there were two.. In the absence of any evidence of distinction, the presumption would be that they were the same. ■ The papers before us, therefore, do not prove the indispensable necessity of inspecting suck boob, or having proof of the entries in it, to establish any thing important to be proved on the trial. It is not pretended that the defendant would have- the audacity to at-, tempt to disprove his own sworn statements.: '(Leggett v. Pastley, 2 Paige, 599.) Another difficulty with which the plaintiffs have to contend is, that the entries sought for are not shown to be evidence, but only to contain information by which evidence may be obtained. It is not alleged, that they were in the defendant’s handwriting, or that he was in any way privy to them. Possibly by inspection the plaintiffs' may discover in whose handwriting they are, and obtain their author as a witness, to prove the facts contained in them. But even in such case he must be proved to have no independent memory of such facts. (Russell v. Hudson River R. R. Co., 17 N. Y. Rep. 134;) I apprehend the' power of discovering the contents of a written document will hardly he stretched to cover those which only furnish information to enable the applicant to ferret out evidence or witnesses; or where it is not shown that witnesses can not establish the same facts without the aid of such entries. (Gelston v. Hoyt, 1 John Ch. 543.)

The necessity, too, of invoking the extraordinary power of the court in compelling the production of these entries, by a separate application, which takes the place of a former bill of discovery, (Code, §§ 388, 389,) is not manifest. Neither the defendant nor the association is an artificial person, whose officers can not be compelled by a subpoena duces teciim to produce writings belonging to it, in their physical custody. (Brevoort v. Warner, 8 How. 321. Van Zandt v. Cobb, 12 id. 544. Commercial Bank of Albany v. Dunham, 13 id. 541.) Whether the possession by counsel can protect them is another question. Their production by him could probably be equally compelled on a subpoena as on such an application. (See People v. Vail, 2 Cowen, 623. S. C. 1 id. 589.)

If this be an application to be governed by the provisions of the Revised Statutes, the denial by the defendant of all possession or control of the writings sought, is a full answer. (2 R. S. 197, § 24. Bradstreet v. Bailey, 4 Abb. 233. Ahoyke v. Wolcott, Id. 41. Hoyt v. American Exchange Bank, 1 Duer, 652. S. C. 8 How. 89.) The supposed admission, by the failure to controvert the allegation, of a delivery to counsel, can not be employed to counterprove such denial. Formerly, on a bill of discovery, in a court of equity, merely in aid of an action at law, and a denial in the answer, no issue could be raised or tried of possession. (2 Barb. Ch. Pr. 106, 111, 115. King v. Clark, 3 Paige, 76.) The mere fact of being able to prove such possession, would do away with the necessity of discovery; it- was only an appeal to the parties’ conscience, and the defendant was the plaintiff’s witness. Such a discovery, also, was not permitted in equity merely to enable a party to prepare for a trial or prevent surprise ; it must furnish evidence to be used on the trial. (Seymour v. Seymour, 4 John. Ch. 409. Leggett v. Postley, 2 Paige, 599. March v. Davison, 9 id. 580. Bailey v. Dean, 5 Barb. 297.) There was no distinction between the discovery of facts known to the defendant, and writings in his possession. The Revised Statutes restrict the cases in which, and the proceedings by which courts may enforce discovery of writings to those governing courts of equity before their passage. (2 R. S. 197, § 22.) The denial of possession in this case, in a court of equity, and of course under the Revised Statutes, is therefore not a subject of controversy.

The order made in the .case is not sustainable under the power of courts at common law, to compel the production of writings in actions therein. The exercise of such power was confined to. those which were the foundation of the action, so that even those which were evidentiary only were excluded from the benefit of it. (Willis v. Bailey, 19 John. 269 Bank of Utica v. Hillard, 6 Cowen, 62.) Actions on policies of insurance, (11 John. 246, n.) and alleged forgeries, (2 M. & G. 758 ; 3 Cowen, 17, 18,) formed exceptions. It could not be exercised for inequitable purposes, or to create or promote litigation. (2 John. Ch. 150. 3 id. 467. 4 Paige, 639. 5 Barb. 297. 2 Cowen, 592.) The utmost that could be said of the writings sought' in this case was that they might furnish evidence: clearly they were not the foundation of the action.

The' order in question, if sustainable at all, can only b‘e so under the Code. And here we are met by the difficulty that the penalty imposed by it for non-compliance with it is not authorized by the Code. That confines the consequences of a refusal to furnish the contents of a document to its exclusion as evidence, or the punishment of the party refusing, or both. It would not, perhaps, be admissible to inquire on appeal into the propriety of depriving all the association of a defense in consequence of the contumacy of a member. The object of the Code may have been to confine the punishment to the actual offender instead of implicating the innocent, which the Revised Statutes allowed as the only means of coercion. That part of the order would necessarily require reformation, if it be sustainable under the Code, and under that alone.

The Code, although it enlarges the mode of enforcing discovery of writings, by excluding them from evidence, or’ punishing the recusant possessor, and the exercise of the power of enforcing it from cases recognized in a court of equity alone, to those embraced within a general discretion, limits the character of the writings to be produced to those which “ contain evidence relating to the merits.” The Revised Statutes embraced all writings which, in any way, related to such merits, whether evidence or not. The vagueness, however,.of that phrase had been, relieved by confining the exercise of the power to cases sanctioned by courts of equity previously 5 thus merely transferring the jurisdiction to common law courts.The Code, on the other hand, leaves every thing but the nature of the writings to the discretion of the court. How that discretion is to be governed, or whether it is to be arbitrary, is also left to the courts to determine. In this case, the entries sought are not shown to be capable of being used as evidence at all, and .therefore do not come within the class of writings defined by the Code. They are not minutes of the transactions of a corporation, kept by an appropriate officer, but of several individuals, supposed members of a partnership.

But even if such entries were not defective as evidence, other objections arise to compelling their production, under the Code. The discretion to be exercised by the court, can not be intended by the Code to be an arbitrary one. (Van Zandt v. Cobb, 12 How. Pr. 544.) While limiting the character of the writings whose production was to be enforced, it could not have contemplated that the exercise of the power itself should be unlimited, to be used or withheld at pleasure. The' design seems to have been rather to indicate that the exercise of the power, even in regard to evidentiary writings, should not be imperative but discretionary. If that be so, no better guides for that discretion can be found than the rules previously adopted %y courts of both law and equity as to the cases to which the production of writings should be restricted.

In such a case as this, any mere allegation by the parties seeking a discovery, that they believe the writings in question contain evidence would be immaterial, (Wilkie v. Moore, 17 How. Pr. 480.) unless their character is so defined as to enable the court to determine that they do so. This has been the rule, both in equity, formerly, (McIntyre v. Mancius, 3 John. Ch. 45; S. C. 16 John. 592; Lane v. Stebbins, 9 Paige, 622,) and since the adoption of the Eevised Statutes and the Code. (McAlister v. Pond, 15 How. Pr. 299. Wilkie v. Moore, 17 id. 480. People v. Rector of Trinity Church, 6 Abb. 177. Cassard v. Hinman, 6 Duer, 695.)

One rule always adopted in enforcing the production of writings was that it should appear that they were indispensably necessary, (Gelston v. Hoyt, 1 John. Ch. 543, and not simply that such production was a prudent precautionary measure. (Mora v. McCredy, 2 Bosw. 669. Commercial Bank of Albany v. Dunham, 13 How. Pr. 541. McAlister v. Pond, ubi supra. Pegram v. Carson, 18 How. 519.) In this case it appears, on the plaintiffs’ own showing, that all that could be proved by such entries can be otherwise established. An ability to establish the same matters by living- witnesses 'is not negatived. There is nothing before us to show that the repugnance of the law to compel a party to furnish evidence against himself, ought to be overcome, in order to attain justice by putting the parties on an equal footing as to evidence. The readiness of parties to believe that an examination of their adversaries’ books and papers will furnish evidence in their favor, requires to be curbed by courts, so as not to allow it to become inquisitorial, or a general right of search.

In this case the entries desired are not alleged to contain any new information available in the case; are not shown to be admissible as evidence, or if admissible as substituted evidence, it is not shown there are not living witnesses to the same facts. All that it is alleged they can show is already known,' and can be proved by the, defendant’s admissions and sworn statements. It does not seem, therefore, to have been a case in which the production of the books in question should have been ordered.

' The. order affected a substantial right, and was, therefore, appealable under" the/Code. (§ 349.) The order must be reversed; but, as the plaintiffs may be able to show a necessity not now apparent, it must be without prejudice to a new application if they shall be so advised.


author: By the Court, Robertson, J. Monell, J. (dissenting.).

text:
    David Magie, plaintiff and respondent, vs. Abner Osborn, (who was impleaded with Joseph Naylor, et. al.) defendant and appellant.
    1. In proving handwriting by the opinion of a witness having a competent knowledge of the general character of the handwriting of the person in question, it must appear that the opinion expressed is founded solely upon such knowledge, and not upon inferences from other .facts than the character of the handwriting.
    2. If the witness has seen the person write on several occasions, his belief as to the genuineness of the writing is competent to go to the jury, however weak evidence it may be deemed. (Per Monell, J. dissenting.)
    (Before Moncrief, Robertson and Monell JJ.)
    Heard October 17,1863;
    decided November 14, 1863.
    This was an appeal from a judgment in favor of the plaintiff, entered on a verdict.
    The action was brought by David Magie against Joseph Eaylor, Richard Calrow, Jr. and Abner Osborn, to recover on a bond of indemnity alleged to have been made by them. The defense interposed by Osborn was a general denial.
    The cause was tried on the 28th of May, 1863, before Justice Monell and a jury.
    The evidence material to the question decided on the appeal is stated in the opinions.
    The plaintiff having gained a verdict, the defendant, Osborn, appealed from the judgment entered thereon.

      S. P. Nash, for the defendant, appellant.
    I. There was not sufficient proof of the execution of the bond, by Osborn, to justify the court in submitting the case to the jury.
    1. The testimony of the witness, Parsons,* - was insufficient to carry the case to the jury. (2 C. & H. Notes to Ph. Ex. 1321 to 1323. Utica Ins. Co. v. Badger, 3 Wend. 102.)
    2. The form of the certificate of acknowledgment not having been shown, or the name or residence of the commisssioner, the fact that the bond purported to have been acknowledged, was no evidence. The effect of a certificate of acknowledgment depends on the statute, and there is no provision making parol evidence of the .certificate, proof of the execution of the principal paper.
    II. The verdict is against the weight of evidence.

      C. A. Davison, for the plaintiff, respondent.
    I. The foundation was sufficiently laid for secondary evidence as to the contents of the bond in question, and the terms of the instrument.were clearly established.
    II. The evidence introduced to show the execution of the bond by the appellant, Osborn, was competent for that purpose, and the motion'to strike out was, therefore, properly denied, as was also the motion to dismiss the complaint.
    The evidence was two fold.
    1. That of the genuineness of the signature.

      (a.) The question is as to the competency, not the weight of the evidence ; and it was competent. (Ph. on Ev. C. & H, Notes, part 2d, p. 475, et seq. 2 Saund. Pl. and Ev. 553. Warner v. Anderson, 8 Scott, 384. Shilter v. Bremer, 23 Penn. Rep. 413. Titford v. Knott, 2 John. Cases,.211.)

      (b.) The competency of the witness was not affected by what he testified upon the cross-examination. (Griffith v. Ivery, 11 Adolph. & Ellis, 322. Van Wyck v. McIntosh, 14 N. Y. Rep. 439.)
    - 2. That of the certificate of acknowledgment.

    This was likewise competent evidence. (Laws of 1863, ch. 271, § 9,)
    III. There is no force in the objection that the attesting witness was not called, because it was not shown there was an attesting witness, or that he was known. (Jackson v. Vail, 7 Wend. 125.)

      IV. The failure of Osborn, except in a qualified way, to deny the execution of the bond when charged with it, was sufficient to authorize the jury to-find that it had been executed by • him. (Thomas v. Mills, 4 E. D. Smith, 77. Jewett v. Banning, 21 N. Y. Rep. 27.)
   By the Court, Robertson, J.

This was an action on a lost bond of indemnity against a builder’s lien, claimed to be signed by the appellant, the defendant Osborn, and his co-defendants Calrow and Naylor. Two questions were raised on the trial; one as to due proof of its loss to admit secondary evidence of its contents, and the other as to its execution by the appellant. Sufficient prima facie evidence of its loss to admit secondary evidence of its contents, seems to have been offered on the trial. The plaintiff endeavored to establish the execution of such bond by the appellant in three ways, by his admissions, by proving his signature, and by its acknowledg-ment before a commissioner. The only admission proved was, that on being told by the plaintiff “You are one of the bondsmen as surety for that lien on the store,” he said, “I don’t know any thing about that; I don’t recollect; no, I don’t recollect any thing about that, Mr. Magie.” He also said he had signed various bonds—a number of bonds for Naylor, but he had no knowledge now of signing one for the plaintiff. He said he had some memorandum of the bonds he had so signed. He merely stated his want of recollection of signing such bond. There was no evidence of the name or signature of the commissioner of deeds, but only that the execution of the bond purported to be acknowledged before some one claiming to be such officer.

The only witness examined as to the signature of the appellant to the bond in question, had been the former counsel of the defendant Naylor, (Parsons.) In reference to his oppqrtunities of becoming acquainted with the appellant’s handwriting, he testified: That he had seen it on several occasions. He thought Osborn was at his office and had executed one or more papers for the defendant Naylor. His recollection was. that he saw him. execute several papers. That was Ms best recollection; that he “had seen Mm write in Ms office on one. or more occasions when he came to execute papers.'” This, perhaps, ¡though very'faint,' might be sufficient to go to the jury on the question of the enjoyment by'the witness of an opportunity, by means recognized by the law, of becoming acquainted with the party’s handwriting, (Garrels v. Alexander, 4 Esp. 37, and comments thereon of Lord Eldon, in Eagleton v. Kingston, 8. Ves. 438;) the question .being not on'the frequency of the opportunities, but their nature and degree .of impression. "

But the .testimony of. the same witness in regard to his improvement 'of such opportunities, and his knowledge derived therefrom of the .character, of the appellant’s handwriting, is still weaker. He stated, That he had seen Osborn write in his office on one" or moré occasions, * ®. and became acquainted with' his signature to that extent, at that time •” what" extent he meant does not clearly appear, but it could not have been any further, than the degree of acquaintance produced byseeing him write once or twice; which may have been none at all. That extent is better shown on his cross-examination, in which he stated that “he was not an expert in signatures.'. If there was a good imitation he should call it Osborn’s, and so of. anybody else’sand he finally acknowledged in. answer to a question put to him to that effect, that he was not “sufficiently familiar with Osborn’s handwriting to discriminate between a genuine signature and a tolerably good imitation of one.” This showed, at least, as little ac-> quaintance with the handwriting sought "to be proved as the witness in the case of The Utica Insurance Co. v. Badger, (3 Wend. 102,) which was held to be barely sufficient. :

"With such -uncertain opportunities of seeing the appellant write, and such doubtful ability to decide whether any signature was his, the same witness undertook to testify as to his views of the particular one in question. He said, “ He thought he recognized the signatures to the bond in question.” That he “ recognized the bond as being signed by ” the appellant. “ That he recognized it at the time as a genuine instrument,” and that was all. What he meant by recognizing aninstrument seen by him for the first time does not clearly, appear." His recognizing one of the signatures to be the appellant’s, would have been more to the purpose, as he thought he' had seen him write. But he does not go as far as that, but states merely that he recognized the signatures to the bond, which is scarcely equivalent to a statement that in his opinion the signature was the appellant’s."

At all events, he nowhere undertakes to say, in pronouncing upon the signature as being the appellant’s, that he ’does so from acquaintance therewith, derived from the ■ opportunities he had of seeing him write. Starkie in his work on evidence, (vol. 2, 372, 6th Am. ed.) lays down the principle that any witness may be called to prove handwriting who has “ in either of the modes which the law recognizes as legitimate, acquired such knowledge of the general character of the party’s handwriting as will enable him to swear to his belief that the handwriting in question is his.” It ■ is very plain that the belief must be founded on such knowledge. Mere'opportunity of seeing a person write, and an acquaintance with the character of his handwriting, does not render a witness competent to express his belief, founded upon other facts, as to the genuineness of the. handwriting. (Da Costa v. Pym, Peake’s Add. Cas. 144.) The judgment of a witness upon a writing he did not see made, as a matter of opinion, and not a statement of an occurrence addressed to his senses, must necessarily be that of an expert. Justice Pattesou, in Doe, ex dem. Mudd, v. Tuckermore, (5 A. & E. 730; and S. C. 1 Nev. & P. 22, 56,) declares it to be “the belief which a witness entertains upon comparing the writing in question with an exemplar in his mind, derived from some previous knowledge.” That comparison alone must be the source of the belief, and that with which it is to be made is the exemplar derived from previous knowledge alone.

To hold otherwise would be either to permit the illiterate or careless observer, under whose eyes, merely, a signature or even initials (Jackson v. Van Dusen, 5 John. 144,) have been made, by force of that occurrence, to become forever qualified to give his opinion as to any other writing 'by the writer of the signatures or initials, or if knowledge of the handwriting has been acquired by such opportunity, to be vested with power to pronounce upon such handwriting, although influenced only by inferences or probabilities created by other facts than the character of the handwriting. Either of those propositions would render the admission of the exceptional case of testifying as to handwriting by opinion, still more dangerous, and the rule by which it is justified, absurd. The law can not presume either that every one who has seen another write must, prima facie, have acquired a knowledge of his handwriting, or that witnesses, if allowed to express a belief as to the author of a handwriting, without stating the grounds of it, will not found it upon any thing but their knowledge of it. It may be said, it is true, that the grounds of belief may be elicited on cross-examination; but- if the testimony is to be rejected in case they prove to be any thing else but the knowledge derived from experience, it proves that such knowledge is necessarily the only legal foundation for it.

Although, perhaps, no case expressly adjudiciates this point, they all assume it. .In Johnson v. Daverne, (19 John. 134,) where seeing instruments recognized by the party whose handwriting was sought to be proved, was held to be a legitimate mode of acquiring the proper acquaintance with it, the witness’ belief of a signature being such party’s, was only held to be sufficient if it arose from such knowledge ; and similar language of the same qualification is used in other cases. (Titford v. Knott, 2 John. Cas. 211. Harrington v. Fry, 1 Ry. & Moo. 90. Thorpe v. Gisburne, 2 Car. & Payne, 21.) A witness has even been allowed to look again at a former signature on seeing the making of which his knowledge rested, in order to ^etouch and strengthen his recollection. (Redford’s Adm’r v. Peggy, 6 Rand. 316.)

It is surely as important to require the witness who is testifying to handwriting, to state whether what he states is founded upon the acquaintance with it, derived from experience, as it is to require a witness who assails the general character of another witness, to state that the opinion he gives, as to his credibility, is founded upon his knowledge of that general character, bio such requisition was made in this case, and the testimony of the witness as to the genuineness of the signature without it, was therefore insufficient or incompetent to prove such handwriting, and there was no other proof of the execution of the bond.

The judgment should be reversed, and a new trial directed, with costs to abide the event.

Monell, J. (dissenting.).

The only question upon which I differ with my brethren is, whether the evidence of the handwriting of the defendant, Osborn, to the bond in suit, was sufficient to go to the jury.

Mr. Parsons testified that he had seen Osborn’s handwriting on several occasions ; that Osborn was at his office and executed one or more papers on several occasions, in behalf of Baylor, in several matters, and his recollection was that he saw him execute several papers. Q. Did you know the handwriting P A. I thought I did. Q. Do you say now that you did ? A. I think I did know the handwriting of Osborn. Q. You recognized that bond as being signed by him, and by Calrow and Baylor ? A. Yes sir, and by Baylor.” The witness further testified : That was my best recollection, that I have seen Osborn write in my office, on one or more occasions, when, he came to execute papers, and I became acquainted to that extent with his signature at that time, and recognized this at the time as a genuine instrument.” Upon his cross-examination, Mr. Parsons testified that he had no recollection how often he had seen Osborn write ; that he could not positively say.that he had seen him write three times. “ Q. Can you say now that you know his handwriting ? A. I think I should know his handwriting if I saw it. Q. Could you tell it from a tolerable imitation ? A. I am not expert in signatures ; if there was a good imitation I should call it his, and so of any body’s else. Q. Are you sufficiently familiar with his hand^ writing to discriminate between a genuine and a tolerably good imitation of the signature ? A. No sir, I do not know that I am.”

The law imposes no other duty upon parties than to give the best evidence in their power. Having done this, its sufficiency, in a large majority of cases, is to be determined by the jury. The strongest possible proof of the matter in question is not required, but it must be seen that no evidence is received, which from its nature supposes still greater evidence behind in the party’s possession or power.

A witness may not testify to the genuineness of a signature, who has never seen the party write, except he be an expert who testifies from mere comparison. All evidence of handwriting, except when the witness saw the document written, is in its nature comparison. It is the belief which the witness entertains, upon comparing the writing in question, with, its exemplar in his mind, derived from some previous knowledge. If the witness has any knowledge of the party’s handwriting, he may declare his belief in regard to the genuineness of the writing ; and the only difference among judges, has been upon the source from which the knowledge is derived, rather than as to the degree or extent of it. Mr. Philips says, (1 Phil. Ev. 484,) evidence of handwriting admits of every possible degree, from the lowest presumption to the highest moral certainty. It may be so weak as to be utterly unsafe to act upon, or so strong, as in the mind of any reasonable man to produce conviction. But whatever degree of weight the testimony may deserve, which is a question exclusively for the jury, it is an established rule, that if the witness has seen the person write, he will be competent to speak to his handwriting.”

Mr. Parsons testified that he had seen Osborn write on several occasions. He was thus qualified to declare his belief as to the genuineness of his signature to the bond in question, and he did declare it, by saying that he recognized Osborn’s signature to the bond. However weak this evidence may have been, it was competent to go to the jury, and their determination of it will not he disturbed by the court.

One of the earliest and a leading English case is Garrels v. Alexander, (4 Esp. 37.) The action was assumpsit on a bill of exchange. To prov'e the handwriting, the plaintiff called a, clerk of the defendant’s attorney. He said he had seen the defendant sign the bail bond in the cause, but had never seen him write on any other occasion. Being asked whether he believed the acceptance to be in the hand-writing of the defendant, he said he could form no belief on the subject/ it was like the handwriting in which the bail bond was subscribed, but that he could not speak to any belief further than he had already done. Lord Kenyon considered the evidence sufficient to go to the jury. He says, “ The witness has seen the defendant write, and he speaks to the likeness which the handwriting in which the bill is accepted bears to that which he has seen the defendant actually write,”

In Lewis v. Sapio, (1 Moody & M. 39,) the witness said he had seen the defendant write his name several times, but always “Mr. Sapio,” and had never seen any other writing by him. Abbott, Ld. Oh. J. held it sufficient.

In Powell v. Ford, (2 Starkie, 164,) the witness said he had seen the defendant write once, when he executed a bail bond ; that he had compared the handwriting upon the bill with that upon the. bail bond, and believed the former to have been written by the defendant. He also stated that from having seen the defendant execute the bail bond, he believed the accceptance was in his handwriting, but that when the defendant signed the bail bond, he did not write his name at length, but only “ Mr. Ford.” Lord Ellenborough held the proof sufficient. He said “ if the witness had seen the defendant write his full name, although but once, it would have been sufficient.”

In this country the courts have all followed the English cases.

In Hartung v. People, (4 Park, C. R. 319,) a letter supposed to have been written by the prisoner, was given in evidence. The witness, to prove the handwriting, said she had seen the prisoner write,- and expressed her opinion that she would know her handwriting, and that the letter was in her handwriting. The court say, “ There is no precise standard fixing the degree of knowledge which a witness must possess of a person’s handwriting, to be allowed to express an opinion as to the authenticity of a particular paper. The witness must have seen the party write, and acquired a knowledge, more or less perfect, of the character of the hand, and he is then allowed to express an opinion upon the paper shown.”

In Hopkins v. Megguire, (35 Maine Rep. 78,) the witness said he had seen the party write five or six times, and that it was his strong impression that the indorsement was in his handwriting ; that it looked like it, but that he could not swear to the indorsement, nor to his writing. " This was held sufficient to go to the jury. The court say, “All that a witness can be expected to testify is that the handwriting resembles that of the person whose it purports to be. The strength of his belief will depend on the greater or less degree of similarity. He can only testify to his own state of mind.” -

In Burnham v. Ayres, (36 N. H. Rep. 182,) the witness said he had seen, the defendant write; could not say that he could tell it; used to have some recollection of'his hand; could not say he could form any opinion of his hand, but rather thought he could. This was deemed sufficient. The court say, “If a witness has any knowledge of the handwriting, which has been derived from seeing the person write, though it be but once, he may give his opinion as to the genuineness of the signature or writing in dispute.” And

In Shilter v. Bremer, (23 Penn. R. 413,) Knox, J. says, “The evidence given to prove that the letter was in the handwriting of the defendant, was very slight. One witness said, ‘It looks like it; it resembles it; can not say I ■ believe it to be his handwriting, for there is a possibility of mistake ; there is a general resemblance.’ Another said, ‘ There is a slight resemblance in some of the letters.’ We can’t say that it was error in the court to submit this evidence to the jury.”

In all the cases, to which I have referred, the evidence to prove the handwriting was far weaker than in the case now before us. Here the witness had seen the defendant write on several occasions, and says, that in that way and to that extent he became acquainted with his signature, and then he expresses the belief that the bond was a genuine instrument.

At the close of the evidence, the defendant’s counsel moved to dismiss the complaint, on the ground that there was not sufficient proof to go to the jury that the bond was executed. The motion was overruled, and the question of the execution of the bond by the defendant was submitted to the jury.

I think it was properly submitted; and upon well settled principles governing evidence of this character, as well as upon a' long line of uniform adjudication, it would have been error to have excluded it from "their consideration.

No motion having been made at special term for a new trial on the ground that the verdict is against the weight of evidence, I am not at liberty to consider that question.

I arh of opinion that the judgment should be affirmed.

Judgment reversed.


text:
    L. F. Barnes, plaintiff and appellant, vs. Thomas B. Smith, defendant and respondent.
    It was decided in this case that causes of action on several judgments can not be united in one action, unless all the debtors in the judgments are the same, and are made defendants.
    Before Moncriee, Robertson and Monell, JJ.
    Heard October 7, 1863 ;
    decided November 14, 1863.
   See the points decided, in the index'to this volume, under' the title Practice—Judgment, Joinder of Actions.

See the appeal from an order sustaining a demurrer to the complaint, with the opinion of the court at general term by Moncriee, J. reported in 16 Abbott’s Pr. 420.


text:
    Maria Anderson, plaintiff and respondent, vs. Patrick Dickie, defendant and appellant.
    It was decided in this case, that after judgment entered absolutely, a case though made and settled on notice, can not be annexed to the judgment roll, except by a special order; and without such order an appeal is to be heard on the judgment roll itself.
    Before Robertson, White and Barbour, JJ.
    Heard June 1st, 1863
    decided November 14th, 1863.
   See the points decided, in the index to this volume, under the title Practice—Case, Appeal.

See the motion to strike the cause from the calendar, with the opinion of the court by Robertson, J. reported in 17 Abbott’s Pr. 83. S. C. 26 How. Pr. 199.


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

text:
    Benjamin De Forest et al. plaintiffs and respondents, vs. Charles W. Baker, (who was impleaded with Alexander Strong,) defendant and appellant.
    1. In an action upon an undertaking which was given upon obtaining an injunction order, and conditioned to pay all damages sustained thereby, “ in case the court should finally decide that the plaintiff (in the injunction suit) was not entitled thereto,” a denial in an answer, that the court by which such order was issued had decided, in the action in which it was made, that the plaintiff was not entitled thereto, and that the present plaintiff had been damnified, and that the defendant Was indebted to him, raises a material issue, where the complaint only sets out a recovery of judgment in such injunction suit by the plaintiff without stating the ground of such judgment, or a decision, in terms, that the plaintiff was not entitled to such injunction.
    2. Nor can it be established to be sham, by an affidavit showing that the complaint in the injunction suit was dismissed, without disclosing on what ground.
    3. When an answer is struck out as sham and irrelevant, the proper method of obtaining judgment is to proceed as if no answer had been put in. If the summons be for relief, the defendant is entitled to the usual notice of application for judgment, after the answer has been stricken out.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 7, 1863;
    decided November 14, 1863.

      This was an appeal by the defendant Baker, from an order striking out his answer in the action, and giving judgment.
    The action was brought by Benjamin De Forest and Charles L. Bowan, against Alexander Strong and Charles W. Baker, to recover on an undertaking given by the defendant, upon the issuing of an injunction against the plaintiffs, in an action previously brought against the latter in the Supreme Court, by one Bobert Strong.
    The complaint in the present action averred the commencement of the injunction suit, and the giving of the undertaking, which was in the usual form. The other allegations of the complaint, which were drawn in question, and those of the answer, are stated in the opinion of the court. The complaint demanded judgment for $570, the amount awarded as damages by a reference in the usual manner in the Supreme Court.
    The plaintiffs moved to strike out this answer as sham and irrelevant, and for judgment. The motion was founded on the pleadings, and on an affidavit by Samuel Brown, their attorney, stating that the complaint in the injunction suit 11 was dismissed, and judgment thereupon entered in favor of the plaintiffs, against said Bobert Strong, as referred to in the complaint in this action.” It also set forth the proceedings upon the reference and the order confirming the award, and allowing the present plaintiffs to sue 'therefor. Among the papers produced, also, were papers in an appeal from such order in the Supreme Court, and an undertaking given thereon to secure a stay of proceedings on the order.
    The motion from which the present appeal was taken was heard before Justice Mohcrief, at special term, who granted it, •July 1, 1863.

      M. J. Bacon, for the defendant appellant.
    I. The appeal (with undertaking) from the order of the Supreme Court, stopped all proceedings under that order. ((Me, § 342.)
    II. The answer was a good and sufficient defense, and should not have been struck out as frivolous, because on its face it was not taken merely for delay ; (2 Abb. Pr. 414 ; 12 How. Pr. 543;) especially as it was accompanied with an affidavit of merits ; unless apparent that it was not interposed in good faith. (2 Sandf. 680.)

      Samuel Brown, for the plaintiffs, respondents.
    The only question before the court, at special term, was the character of the answer interposed on behalf of the defendant Baker. There was no evidence before the court that an appeal had been taken from the order made in the Supreme Court, or that the proceedings in that court had been stayed by security or otherwise, or that, any stay had been applied for, or granted in this court. And the fact was otherwise.
    I. The answer does not take issue upon any material allegation in the complaint.
    The defendant, on the hearing of the motion, did not deny that the complaint in the original action had been dismissed, and that judgment had been rendered and entered for the defendant, as alleged in the complaint. Nor does the answer deny that by an order of the Supreme Court, made in pursuance of the terms of the undertaking, the damages of the plaintiff were assessed at $570.
    II. The second allegation of the defendant’s answer is evasive and irrelevant, and false. The dismissal of the plaintiffs’ complaint, and the rendition and entry of judgment for the defendant as set forth in the complaint, was the final decision referred to in the undertaking, and was conclusive evidence on that point. (Loomis v. Brown, 16 Barb. 325, 330. Weeks v. Southwich, 12 How. 170. Mutual Safety Insurance Co. v. (Roberts, 4 Sandf. Ch. 593. Hoyt v. Carter, 7 How. 140.)
    The defendant subsequently submitting to a reference, was also evidence of the final determination of the original action.
    III. The defendant’s denial that the plaintiffs had suffered any damage, was also false in fact, because the defendant admits that the damages were assessed by the court in a proceeding in which they appeared, had notice and litigated the question of damage.
    IT. The extent of the defendant’s liability was fixed by the proceedings in the • Supreme Court, and in this action he would only be allowed to plead new defenses to his liability on the undertaking. (Methodist Churches v. Barker, 18 N. Y. Rep. 465. Wilde v. Joel, 15 How. 327.)
    Y. The defendant’s answer was sham and irrelevant, and the order should be affirmed with costs. (Lee Bank v. Kitching, 7 Bosw. 668. Edgerton v. Smith, 3 Duer, 614. Kurtz v. McGuire, 5 Duer, 660. The People v. McCumber, 18 N. Y. Rep. 315.)
   By the Court, Bosworth, Ch. J.

The undertaking is for the payment of all damages, if the court “shall finally decide that the said plaintiff (the plaintiff in the injunction suit,) was not entitled thereto,” (to the injunction.)

The complaint avers that judgment has been rendered in the injunction suit in favor of 'the defendants therein, and the judgment roll filed, &c. “whereby it appears that said Robert Strong (the plaintiff in the injunction suit,) was not entitled to said injunction.”

The answer alleges, Second, that the defendant “ denies that it has been decided that said Robert Strong in said complaint mentioned- was not entitled to the injunction in said action.”^ It was not in fact so decided, or if the judgment rendered does not import that in legal effect, then the defendants are not liable.

It is not stated in what manner, or on what grounds the judgment was rendered, nor is it stated that the court decided that Strong was not entitled to the injunction, unless such a statement is involved in the allegation; “ whereby it appears that said Robert Strong was not entitled to said injunction.”

If the judgment was rendered on a trial of the action on the merits of the case made by the complaint, or on a dismissal of the complaint for want of prosecution, then the injunction would be dissolved by the judgment rendered, and the judgment would be a final determination of .the rights of the parties in that action., (Code of Pro. § 245. Carpenter v. Wright, 4 Bosw. 6.55.)

But judgment may have been given for the defendants in that suit, solely by reason of matters of defense arising out of the suit brought, and on grounds conceding that the injunction was rightly issued.

Whether the plaintiff means by the words “ whereby it appears that said Bobert Strong was not entitled to said injunction,” that such a result is manifested by the mere fact that judgment was given for the defendants, irrespective of the grounds of the judgment; or that the record discloses that the court so adjudged, it is not easy to determine. I think, however, that he does not mean to allege in the use of those words, that the court has, in terms, so decided. It is certainly not averred in terms, that the court did so decide. The answer, substituting “says” for “ denies,” would contain a direct and unequivocal averment that the court has not so decided. And this is broad enough to exclude the fact of a decision "to that effect, either in terms or legal effect.

This is not an irrelevant allegation, nor is it sham in the sense that it is shown to be untrue. Not being irrelevant, nor shown to be untrue, it can not be stricken out on motion.

The affidavit of Mr. Brown, the plaintiff’s attorney, states that the complaint in the injunction suit was dismissed ; but does not say whether it was for want of prosecution, or on what ground. ■

The defendant’s counsel insisted, on the argument, that it was dismissed for want of prosecution, and his view is, that a judgment for the defendants, on that ground, is not a final decision that the plaintiff was not entitled to the injunction,' within the meaning of the undertaking.

In that, I think, he is mistaken. (Code, § 245. 4 Bosw. 655.) If his answer be stricken out as shain, he can not test the accuracy of his views. It is not sham, if his view of the law is correct, and the judgment proceeded on the grounds stated.

But inasmuch as the complaint does not show on what grounds the judgment was rendered ; and the answer avers in substance that it has not been decided that Strong was not entitled to the injunction; the latter averment presents an issue, on the decision of which, the question of the defendant’s liability depends. ■

And as the pleadings present this question, it can not be said that the allegation denying the defendant's indebtedness, or that the plaintiffs have sustained damages within the meaning of the undertaking, is false or irrelevant.

If it has not been finally decided in the injunction suit that Strong was not entitled to the injunction, within the meaning of the words, “ finally decided,” as used in the Code and the undertaking, then it follows that these plaintiffs have not in judgment of law sustained damages, by reason of the injunction, and the defendants are not indebted to them.

The order appealed from strikes out the answer as sham and irrelevant, and orders “judgment as demanded in the complaint.” When an answer is thus stricken out, the plaintiff proceeds to perfect judgment, precisely as if no answer had been put in.

The summons in this case is one for relief. The clerk can not enter judgment under section 246 of the Code, because there is no “ amount mentioned in the summons.”

As the plaintiffs must apply to the court for the relief demanded in the complaint, the defendants are entitled to eight days notice thereof. (Code, § 246, subd. 2.) This notice can not be given until the action is in such a stage that it can truly be said that an answer is due, and there is no answer in the action.

I think this order should be reversed.

Ordered accordingly.


text:
    Lucien D. Coman, plaintiff and respondent, vs. William H. Storm, defendant and appellant.
    It was decided in this, case that a person charged in execu-. tion, though allowed to go upon the limits, is a prisoner, within the statute,authorizing prisoners to apply for discharge. ’

      Before Bosworth, Ch. J. and White and Monell, JJ.
    Heard November 7th, 1863 ;
    decided November 14th, 1863.
   See the point decided, stated in the index to this volume, under the title, Imprisoned Debtors.”

See the appeal from an order, with the opinion of the court by Boswobth, Oh. J. reported at length in 26 How. Pr. 84.


text:
    Mahlon and John B. Mattison, plaintiffs and appellants, vs. Edmund A. Smith (who was impleaded with William P. Demarest et al.) defendant and respondent.
    1. An answer which, in terms, generally denies only those allegations in the pomplaint, which the defendant designates as “ material,” is evasive, and obnoxious to a motion that it be made more definite and certain.
    2. A denial in an answer, should, by its words, so describe the allegations of the complaint which the pleader intends to controvert, that any person of intelligence can identify them.
    (Before Bosworth, Ch. J. and White and Monell, JJ.)
    Heard November 14, 1863;
    decided November 28, 1863.
    This was an appeal by the plaintiffs from an order denying their motion that the defendant be required to amend his answer.
    The action was brought by the plaintiffs, in behalf of themselves and all other judgment creditors of William P. Demarest and George A. Middleton, who should come in and contribute to the 'expenses of the action, for the purpose of setting aside an assignment made by the debtors to one Powers, who was joined with them as a defendant in this action, and also to reach assets alleged to be in the hands of the defendant Smith, and to set aside as fraudulent a judgment he held against them. The complaint was verified.
    The defendant Smith interposed an answer, which was also verified, which simply stated that he denied “ each and every material allegation in said complaint contained.”

      The plaintiffs’ motion for an order requiring the defendant to make his answer more definite, was heard at special term, in July, 1863, before Mr. Justice Moncrief, and was denied with costs. From that decision the plaintiffs now appealed.

      John Graham, for the plaintiffs, appellants,
    cited 2 Duer, 684; 20 Barb. 378, 386 ; McKyring v. Bull, 16 N. Y. Rep. 297, 303.

      W. H. & S. P. Bell, for the defendant, respondent,
    I. The answer is' a good general denial, within section 149 of the Code of Procedure.
    1. Nothing can be a more perfect answer than a simple denial of all the allegations constituting the plaintiffs’ cause of action. (Radde v. Ruckgaber, 3 Duer, 684.)
    2. Every allegation is immaterial, which, if disproved, will prevent a plaintiff from recovering, or which, when denied, he is not bound to prove to entitle himself to a verdict. (Oechs v. Cook, 3 Duer, 165.)
    3. There are three parties to the defense. 1. The judgment debtors, Demarest and Middleton. 2. Their assignee, Powers. 3. A creditor preferred by their assignment, Smith. All three are independent of each other, and have separate interests ; all three are charged with a conspiracy to defraud. The plaintiffs claim to have recovered a judgment against the judgment debtors since their assignment. The pleader is presumed to know what.is the ground of his action against each of the defendants. Here he charges each with separate acts; and is presumed to know what charge affects each.
    4. The. words “material” and “controverted” were not inserted in section 149 of the Code, without a meaning and a purpose. The plaintiff, when he makes a charge, first considers its materiality. The defendant, then, if he thinks it materially affects him, denies it; and with that which affects an independent có-defendant he has nothing to do, The intention of the Code was to simplify and shorten pleadings.
    5. It is at the defendant’s risk and option, whether he denies specifically or generally ; and the court can not compel him to adopt one rather than the other. And the distinction must be kept in mind. This answer is not a denial of mere knowledge or information sufficient to form a belief, but of the facts.
    6. Many of the allegations of the complaint are made on information and belief, and are not material for the defendant Smith to answer. Grood pleading requires that the allegations should be made positively, in order to prevent immaterial issues and confusion. (Truscott v. Dole, 7 How. Pr. 221.) The plaintiff could not have obtained an injunction on this complaint. (3 Abb. Pr. 182, 328. 12 How. Pr. 464.)
    7. The sufficiency of the answer is further sustained by Kellogg v. Church, (4 How. Pr. 339,) and Parshall v. Tillou, (13 id. 7.)
    II. The order is not appealable, for it does not affect the merits.
   By the Court, Bosworth, Ch. J.

The plaintiffs appeal from an order denying a motion that the defendant Smith be required to amend his answer by alleging which of the allegations in the complaint he.denies, and to make it definite and certain, so that the precise nature of his defense (if any he has) be made apparent.

The answer, exclusive of the title of the action, is in these words, viz: Edmund A. Smith, one of the defendants in above action, answering the complaint in said action for himself, denies each and every material allegation in said complaint contained.” The-complaint and answer are verified.

The Code enacts that “ the answer of the defendant must contain, 1. A general or specific denial of each material allegation of the complaint controverted by the defendant,” &c.

This imports that the answer, by its terms, must show which of the allegations of the complaint the defendant controverts ; and those allegations he may deny in a short form of denial, or he may deny them specifically.

Ths Code. designed that the pleadings under it should he such as would leave it free from doubt what issues of fact were raised by them, and that to ascertain this it would not be necessary to consider abstract principles of law and determine the legal effect of any particular, allegation of fact, in respect to which the judges of subordinate courts might not agree, and the judges of the court of last resort might possibly differ.

If the answer, on a just donstruction, means that the defendant denies each and every allegation of the complaint which 7ie deems material^ then it is quite clear that- there is no- mode of ascertaining which of the allegations he controverts, or which ones he has denied either in fact or intent.

If it means that he denies each and every allegation which, in intendment of lato, is material, then it is evident that as the court must decide which are material, the answer is, in legal effect, a denial of each and every allegation which the court shall decide to be materictl.

An answer in form thus : “The defendant denies each and every material allegation in the complaint which the court shall hold to be material,” would not inform a plaintiff which of the allegations the defendant controverted or intended to deny.

The Code, by requiring a defendant to verify his answer where the complaint is verified, intended to require him to admit all the allegations which, if true, were true of his own knowledge, or incur the risk of suffering the pains and penalties of perjury.

The fact that some men, when not required to answer on oath, will deny some allegations of the complaint which they would not dare to deny on oath, furnishes no argument in favor of the sufficiency or definiteness of the present answer. The Code expects good faith and common honesty in putting in all answers, whether verified or not; but as that is not always practiced, it has provided that, on motion, sham answers may be stricken out (§ 152,) and evasive and indefinite ones may be required, to be made definite and certain. (§ 160.)

It has been held that an answer which denies “ each and every allegation of the complaint” is sufficient. (Kellogg v. Church, 4 How. 339.) So also an answer which .denies all the allegations which are contained between specified folios. (Gas- sett v. Crocker, 9 Abb. Pr. 39.) In these cases, by merely looking at the words of the complaint and answer, it is apparent what allegations are denied. The answer by the words it contains describes and identifies the allegations which are denied, so that any person of. intelligence, whether lawyer or layman, can determine with accuracy what allegations are put at issue.

In the present case it is impossible to ascertain from the answers, what is the ground of the defense. No new matter is set up, and it can not be known from the answer on which of the allegations of fact found in the complaint and their supposed falsity, the defense is to rest.

Such a form of answering should not be encouraged. It is, to say the least, evasive, and if sanctioned, would tend to authorize the general issue in all cases, although a defendant would not hazard a specific or even a general denial in terms, on oath, of every allegation which is clearly material.

This is an equity suit, by judgment and execution creditors, and such an answer is in conflict with the spirit as well as letter, of all the rules and practice applicable to' answers in such suits. The mode of answering prescribed by the Code, assimilates more nearly to the chancery than to the common law practice.

It, however, permits a general denial of every allegation which a defendant wishes to controvert, and can conscientiously deny. But the word controvert,” which has been retained in this section in all the changes made in its form, must have some meaning given to it, if it can appropriately have any meaning.

The word “ controverted,” in connection with the word “ denial,” whether the denial' be general or specific, requires that the answer should, by its words, so describe the allegations of the complaint controverted, that any person of intelligence, though not a lawyer, can identify them.

An answer which so denies the allegations of a complaint, that it must b,e left to the uncertainty of a future judicial decision, however learned or unlearned the judge may be who makes it, to ascertain which are denied and which are not denied, is one which no plaintiff should be told he must be content to receive.

The Code has not introduced such laxity in pleading. Ho system ever in force in this state permitted it; there has been no decision cited which sanctions it.

I think the order should be reversed, and the defendant required to amend his answer so as to make it definite and certain, and render the ground of defense apparent, by a clear identification of the allegations of fact which the defendant controverts.

Ho costs of the appeal should be given to either party, and the plaintiff should have $10 costs of the motion at special term, to abide the event.