author: By the Court. Duer, J.

text:
    The Republic of Mexico v. Francis de Arangoiz.
    A republic, acknowledged as such by our own government, is an independent sovereign power, and, therefore, a state just as certainly, and in the same sense, as a monarchy, limited or absolute.
    A state is a moral person, having an understanding and a will, capable of possessing and acquiring rights, and of contracting and fulfilling obligations.
    As a state is a person possessing rights which the law defines and may enforce, its competency to assert those rights in a court of justice,-in every country whete their assertion may be necessary, inevitably follows. It has the same right to -sue for the recovery of a debt as an individual creditor, and the same right to sue by its appropriate name, that which designates its-being and character as a state, as a foreign corporation by its corporate name. The denial of this right to a foreign state, acknowledged as such by our own government; and with whom we are at peace, would-be a "grave subject of remonstrance and complaint, and might even be deemed a just cause of war.
    When a foreign state is the plaintiff, an undertaking accompanying an order of arrest, signed and acknowledged by its resident minister, on the part of the plaintiff, is a valid undertaking within the provisions of the Code. " "
    A person who has received money in a fiduciary capacity is liable to-be arrested, although it is not stated that he had embezzled or fraudulently misapplied the sum claimed in the action.
    When an order of arrest is founded on extrinsic facts, wholly unconnected with the right of the plaintiff to maintain the action, the burden of proof, when a motion to vacate the order is" made, rests upon ‘the plaintiff; and if the facts are positively denied, and the question, upon the whole evidence, of the defendant’s liability to the arrest, remains in doubt, he is entitled to his discharge. But when the facts relied on in support of a motion to vacate an order of arrest con- . sfitute a defence to -the action, that, if proved," would bar a recovery, the-burden of proof is on the defendant, and if he fail to satisfy the-court that "the defence will certainly be established on the trial, the application for- his discharge will be denied.
    The court has no right to say, where the evidence is conflicting and doubtful, that the plaintiff cannot recover, when it is solely upon the truth of this proposition that a motion to vacate an order of arrest is founded. • ■
    At General Term,
    January, 1856.
    Before all the Judges.
    Appeal from an. order made by Mr. Justice Hoffman, denying a motion, on. the part of.the defendant, to vacate an order of arrest, but reducing the- sum in which the defendant was to be held to bail from ninety to thirty thousand dollars. Both parties-appealed; the plaintiff on the ground that the bail ought not to have been reduced; the defendant, that he ought to have been wholly discharged.
    The affidavit upon which the order of arrest was founded, was made by Juan 1ST. Almonte, minister plenipotentiary of the republic of Mexico, and stated, in substance, that on behalf of his government, he had placed in the hands of the defendant, as an officer and agent of the government, a sum exceeding six millions of dollars, to be paid over by him, when, and as requested; but that he retained, and had refused to pay over, although duly requested, the sum of $68,288 tAt, upon a groundless claim that he was "entitled to that sum for his commissions; that when the moneys were placed in his hands, he was an officer of the government of Mexico, receiving a fixed salary, and that by a law of that republic, every such officer was prohibited from receiving any compensation, for services performed by him under the orders of his government, beyond the amount of his salary.
    The undertaking taken and approved by the Judge who granted the order of arrest, was signed and acknowledged by Juan K. Al•monte, minister plenipotentiary, on the part of the plaintiff, and by two sureties.
    The motion to vacate the order was founded as well on the alleged insufficiency of the affidavit and undertaking, as on affidavits tending to show that the defendant acted as a special agent, and not as a salaried officer, in receiving and paying over the moneys that had been entrusted to him, and was fairly and fully entitled to the sum which he retained, as a commission for his services. There were counter affidavits, on the part of the plaintiff, denying many of the material facts alleged in those of the defendant, and showing (inter alia,) that his claim for commissions had been rejected by the government of Mexico.
    The grounds upon which it was insisted that the order of arrest ought to be vacated, were:

      First. That the republic of Mexico had not a legal capacity to maintain the action in its own name.

      Second. That the undertaking was not executed by the plaintiff, and was, therefore, void.

      Third. That the affidavit was insufficient, as not showing that the moneys, sought to be recovered, had been embezzled or fraudulently misapplied by the defendant; and,

      Lastly. That the affidavits, on the part of the defendant, ought to satisfy the court that there was no fraudulent intent; and raised a question of his probable right to detain the moneys that were claimed, which it was the province of a jury to determine; and that, in all cases where the grounds of fraud are fully denied, and a fair question of right for a jury is presented, an order of arrest falls, in the same manner, and for the same reason, as an injunction order.

      J. Anthon, for the defendant.

      D. Lord, for the plaintiff.
   By the Court. Duer, J.

The objection that the republic of Mexico has not a “ locus standi in judicio,” or, in the words of the Code, a legal capacity to sue,” is very far from commanding .our assent. That a foreign monarch, or a foreign corporation, may maintain an action in the courts of this state—the monarch, in his name of soereignty, the corporation in its corporate name—is not denied; but the monarch, we are told, is a natural, the corporation an artificial, person, and that it is from this personality that the legal capacity of each to sue is derived. A republic, however, it is contended, possesses no such attribute. It is neither a natural, nor an artificial person. It is a mere abstraction, an appellation, and nothing more, not representing or denoting any person or body upon whom process may be served, or for, or against, whom a judgment may be rendered. And we were referred to the case of the Republic of Colombia v. Rothschild, (1 Simons 106,) as a conclusive authority, as in that case a demurrer to the bill, it is said, was sustained by the vice-chancellor, upon the exact grounds that have been stated.

We have been unable to yield our conviction to the argument, or to the authority cited in its support.

The argument rests entirely upon an assumption, which, it appears to us, is certainly groundless; the assumption that personality cannot be truly predicated of a republic. A republic, acknowledged as such by our own government, is an independent sovereign power; in other words, a state, just as certainly, and in the same sense, as a monarchy, limited or absolute; and every state is a person, an artificial person, in a more extensive and far higher sense than an' ordinary corporation. A state, whatever may be the form of its internal government, and by whatever appellation it may be known, is, in the language of Mattel, “a moral person, having an understanding and a will, capable of possessing and acquiring rights, and of contracting and fulfilling obligations.” (Vattel, Droit des Gens. liv. 1, c. 1, § 4; vide, also, Wheaton’s Elem. of Interna. Law, vol. 1, c. 2, §§ 1 & 2.)

The definition given by other writers on the law of nations, is substantially the same, and, indeed, it is upon the truth of this definition that the whole science of international law is founded— since it is evident, that it is only upon persons, having an understanding and a will, that law can operate. Every valid law implies the duty of obedience, and it is only by persons that obedience can be rendered.

As a republic, therefore, as a state, possesses rights which the law has defined, and which, consequently, the law may enforce, its competency to assert its rights in the tribunals of every country in which their assertion may be necessary, it seems to us, is a necessary consequence. If the monéys which are claimed in this action, in reality belong to the state of Mexico, we can see no reason to doubt that it has exactly the same right, as an individual creditor, to demand the aid of the court to compel their payment; nor can we doubt, that it has exactly the same right, as a foreign private corporation, to prosecute an action for that purpose by its appropriate name; the name by which its being and character as a state are designated and known. Ho reason has been, nor as we believe, can be assigned, why the intervention of a natural person, within the jurisdiction of the court, and subject to its process, as the nominal plaintiff in the suit, should be required, in the one case, more than in the other.

Hor shall we limit ourselves to this modified expression of our views. We are satisfied, that to deny to any foreign state, whose independence and sovereignty as such are acknowledged by our own government, and with whom we are at peace, the right to prosecute its just claims in a court of justice, when it is only by the aid that the court is required to give, that its claims can be enforced, would be something more than a breach of national comity, and even something more than a violation, if not of the terms, of the spirit of our federal constitution. As an arbitrary-denial of justice, it would furnish a very grave subject of remonstrance and complaint, and, in the opinion of Lord Redesdale, might even be deemed a just cause of war. .

We. have examined, with attention, the case of The Republic of Colombia v. Rothschild, upon which the learned counsel for the defendant so strongly relied, and are convinced that the judgment of the court did not at all proceed upon the distinction between a suit by-a'monarch, and a suit by a republic, upon which the counsel insisted. It was not. because the plaintiff was a republic that the' demurrer was allowed, but the doctrine upon which the Vice-Chancellor placed his decision was far broader than that which the counsel asserted, or would have ventured to maintain. To prove this the exact words of the Judge shall be quoted. They are, that “a foreign state must sue in the name of some public officers who are entitled to represent the interests of the state, and upon whom process can be served on the part of the defendant, and who can be called upon to answer the cross-bill of the defendant,” language amounting to a plain denial of the right of any foreign state to sue in its own name, but requiring that, in all cases, the action shall be brought by and in -the name of some person acting on .the behalf and under the authority of the state, and who - is within the jurisdiction of the court, since it is only upon- such a person that its process can be effectually served, and who can be made to answer a cross-bill. The reasons, therefore, which the Vice-Chancellor—a judge far more remarkable for the rapidity than the accuracy of his decisions—assigned for his doctrine, it seems apparent, are just as applicable to a suit by a foreign king, and even by a foreign corporation, as to a suit by a republic, and, if admitted to be valid, would prove that, in all these cases, the nominal plaintiff must be a natural person, within the jurisdiction of the court. •

We deem it needless to cite authorities to show that no such doctrine as this now prevails, or has ever prevailed, in any court of law or equity in England. The Republic of Colombia v. Rothschild is the single case in which it has ever been advanced. We cannot, therefore, agree with our learned brother, from whose order this appeal is taken, that the rule laid down in that case has received the sanction of Lord Eldon, Lord Redesdale, and Lord Brougham. On the contrary, we are of opinion, that by the decision of the House of Lords in the case of The King of Spain v. Huttill, (1 Dow. & Clark, 164,) it was meant to be and is distinctly repudiated and overruled. The defendant in that case demurred to the bill which was brought by the King of Spain, not as a natural person, but in his political capacity. The Lord Chancellor, Lyndhurst, overruled the demurrer, and the appeal to the House of Lords was from his decision. It appears from the report that the first ground for demurrer that was assigned, and that which was mainly relied on, was this: That a foreign sovereign ought not to be allowed to sue in a Court of Equity, inasmuch as by no possibility could process be issued with effect, or equity be done, or a decree be enforced against him.” It seems to me, that this is an exact repetition of the doctrine of the Vice-Chancellor in The Republic of Colombia v. Rothschild, and, consequently, if this doctrine had been followed, the decision of the Chancellor would have been reversed, and the bill have been dismissed. The doctrine, however, instead of being followed, was expressly disclaimed. The decision of the Chancellor, by the unanimous judgment of the law Lords, was very promptly affirmed, and, in delivering his opinion, Lord Redesdale said: “ I have no doubt that a foreign sovereign may sue; otherwise there would be a right without a remedy. He sues here on behalf of his subjects, and if foreign sovereigns were not allowed to do that, the refusal might be a cause of war.” We hold, without hesitation, that this language is just as applicable to the case before us, as to that in which it was uttered. A republic is as truly a sovereign power as a king, and as the king sues by his name of sovereignty on behalf of his subjects, so the republic sues by its name of sovereignty on behalf of its citizens. The right to sue is as clear; the refusal to permit a suit would be as indefensible, in the last case, as in the first.

The first objection to the order appealed from is, therefore, overruled. The second ground upon which it is insisted that the order of arrest ought to be vacated is, that the undertaking not being executed by the plaintiff, is not in the form that the Code requires; and the cáse of Richardson v. Craig, (1 Duer, 666,) was referred to as showing the necessity of such an execution. It was undoubtedly held in that ease, that an undertaking signed by sureties alone was not valid under section 182 of the Code. It must be so executed as to be binding on the plaintiff; but we have not said that an undertaking, binding on the plaintiff, may not be executed by a person having full authority to act on his behalf. Here it is proved that the minister of the republic, M. Almonte, has been expressly instructed by his government to prosecute the present action, and we think that the authority thus given to him carries with it an authority to take any legal proceeding in the progress of the suit, in the name and on behalf of the plaintiff) which, in his judgment, may be necessary to its successful prosecution.

It was justly observed by the counsel for the plaintiff that an undertaking by a foreign government can only be binding on its good faith; and we are satisfied that the good faith of the republic of Mexico is as fully pledged by the undertaking signed and acknowledged by its accredited minister, in his official name, as it would be by any form of obligation that could be adopted. To, hold the undertaking to be void, would be in effect to say that in an action, where a foreign state is the plaintiff, no order for the arrest of the defendant can be made, because no undertaking can be given creating an obligation on the plaintiff, that may be enforced by law. This we will not say, and must, therefore, hold the undertaking to be sufficient.

The next objection to the validity of the order is, that it is not stated in the affidavit upon which it was founded, that the defendant has ■“ embezzled or fraudulently misapplied” the moneys which he received as agent of the plaintiff, and which are now sought to be recovered. The reply to the objection is, that according to the construction which this court has uniformly given to the 2d subdivision in section 179 of the Code, no such statement was necessary to be made. We have uniformly held, and, until overruled by a higher authority, must continue to hold, that to render an agent liable to arrest, all that is necessary to be shown is, that he received the moneys of his principal, for the recovery of which the action is brought, in “a fiduciary capacity,” and that he must be deemed to have received them in. that capacity when it appears that he had no authority to disburse them on account of his principal, but was bound to pay them over on request. All these facts are very clearly stated in the affidavit upon which the order was granted, and, in our opinion, the effect of the statement is not at all weakened or altered by the admission, that the defendant claims that he is entitled to retain the whole sum now in his hands as a compensation, in the nature of a commission, for his services. Whether this claim be valid or not, it is not the less certain that the whole sum when he received it, belonged to the plaintiff, and that its payment over to the plaintiff, according to the statement in the affidavit, might have been instantly demanded. The objection to the sufficiency of the affidavit is, therefore, untenable.

Lastly. It has been earnestly contended, that the defendant is entitled to be wholly discharged upon the facts set forth in the affidavits that have been read on his behalf. It is not denied, that the facts which are relied on as showing that the defendant has a just title to the whole sum which he retains, and consequently, that the plaintiff is not entitled to maintain the action, are distinctly controverted in the counter affidavits on the part of the plaintiff. Nor is it pretended, that the title of the defendant to the commissions which he claims is, upon all the evidence before us, so conclusively established, as to justify us in anticipating the decision of a jury, by declaring that the plaintiff cannot be entitled to recover. All that is asserted is, that, taking into consideration the affidavits on both sides, they raise a fair question for the determination of a jury, and a question which a jury alone is competent to determine; and the argument for the defendants, therefore, so far as the merits are concerned, rests entirely on the assertion, that whenever the affidavits produced render it doubtful whether the plaintiff can recover in the action, a defendant who has been arrested is entitled to his discharge.

The argument entirely overlooks an important distinction, and is founded, we think, upon an erroneous construction of the provisions of the Code, and of the rules that ought to govern us in carrying its provisions into effect.

It is undoubtedly true, that when an order of arrest is founded upon extrinsic facts, wholly unconnected with the right of the plaintiff to maintain the action, as that the debt sought to be recovered was fraudulently contracted, the burden of proof rests upon the plaintiff, and consequently, if the affidavits on the part of the defendant, when a motion is made to vacate the order, deny positively the imputed fraud, and the question whether any was committed, or intended, upon the whole evidence, remains in doubt, the defendant will be entitled to his discharge. It will be the duty of the court to determine the question precisely as it ought to be determined were it submitted to a jury.

But when the facts relied on, in support of a motion to vacate the order, constitute a defence to the action, that if admitted or proved, would bar a recovery, it is the defendant, who, in relation to these facts, holds the affirmative, and it is upon him, therefore, that the burden of proof is necessarily cast; and hence, if he fail to satisfy the court that the defence relied on will certainly be established on the trial, it seems to us clear, that the application for his discharge ought to be denied. The court has no right to say, upon doubtful evidence, that the plaintiff cannot recover in the action, when it is solely upon the truth of this proposition, that the application for the discharge of the defendant is founded.

The application of these" remarks to the case before us is ob vious and decisive. We hold that the proof is conclusive, that the money, which the plaintiff seeks to recover, was received by the defendant in a fiduciary capacity; nor can it be said, that the facts upon which we rest this opinion, are denied by the defendant. He was, therefore, liable to be arrested, and cannot be discharged from the arrest unless he has shown, to our entire conviction, that he has a valid defence to the action; and it is certain that he has no such defence, unless he has proved that he has a just and legal title to the sum which he retains, as a commission, for receiving and paying over the residue of the large fund that, was placed in his hands. His claim for a commission, however, is certainly groundless, if, when he received the fund he was a salaried officer of the government of Mexico, and was prohibited, by a law of the republic then in force, from receiving any compensation for any services he might be directed to perform, beyond the amount of his salary; and it is exactly in relation to these facts, that the evidence before-us is, in no ordinary degree, conflicting and doubtful.. It is impossible for us-to- say, upon the evidence before us, that the republic of Mexico- is not entitled to recover the whole sum for which judgment is demanded, and it is only the clearest proof that it is not entitled to recover any portion of that sum, that could justify us in discharging the defendant. We are convinced, that we ought not, upon affidavits alone, to pass upon the merits of a controversy, that it will be the province of a jury to ' determine, unless the proof that is furnished is not merely sufficient, but conclusive; and it is not pretended that such is the character of the proof that the defendant has given.

The order of Mr. Justice Hoffman, so far as the appeal of the defendant claims its reversal, must, therefore, be affirmed.

We have also concluded, although with much hesitation and doubt, to affirm that part of the order from which the plaintiff has appealed, but in doing so, we are not to be understood as assenting to the views by which Mr. Justice Hoffman, in reducing the amount of the bail that was originally required, appears to have been governed. Whether the defendant is entitled to the whole, or any part, of the commissions which he claims, is a question upon which we do not mean to express or intimate an opinion.

Order affirmed, no costs to either party.

       Sir John Leach.—The distinction between Lord Eldon and Sir John Leach was said to be that it was the custom of the first, “ oyer sans terminer ” and of the second, “ terminer sans oyer.”—(Lord Campbell's Life of Lord Eldon.)

       Vide Republic of Mexico v. Arangoiz. (11 How. Pr. Rep. p. 1.)


source: Caselaw Access Project

license: Public Domain

text:
    The Same v. The Same.
    "When a responsible attorney appears for a party, the court will not ordinarily inquire into the fact whether he was actually authorized to appear or not.
    To warrant such an inquiry circumstances must be shown calculated to raise a suspicion of fraud, or of an attempt to impose upon the adverse party, or to abuse or pervert the process of the court.
    The mere fact that another action for the same cause has been brought in another state or country, furnishes no reason for the discontinuance of that previously commenced in this court.
    When the accredited minister of a foreign state declares that he is acting under the authority of his government, no court of justice, nor even the government to which he is accredited, can rightfully demand a copy of his instructions.
    At General Term,
    January, 1856.
    Before all the Judges.
    Appeal by the defendant from an order made by Bosworth, J., discharging an order on the plaintiff} to show cause why the authority for commencing this action should not be produced, and filed with the clerk of this court, under the oath of the party, who may claim to be so authorized; and also why all instructions to continue or discontinue the same, should not in like manner, be produced and filed; and why, upon default in the premises, or the absence of authority to commence or continue the prosecution of this suit, the same should not be dismissed, or the defendant have such other relief as may be just.
    The order to show cause was founded upon an affidavit of the defendant, stating, in substance, that since this suit was commenced the republic of Mexico had caused another action for the same subjéct matter, to be commenced against him in the said republic, and that the same was then depending; and that he had reason to believe, and did believe, that this suit was prosecuted against him without authority from the republic. The affidavit also stated that the defendant was informed and believed that the suit was brought and prosecuted against him by the direction of the minister-plenipotentiary of the republic.
    The Judge below, when he discharged the order, delivered the following opinion:—
    Bosworth, J. When a respectable and responsible attorney appears for a party, the court will not ordinarily inquire into the fact whether he was actually authorized to appear or not. (Denton v. Noyes, 6 J. R. 296.)
    When no circumstances are shown calculated to raise a suspicion of fraud, or of an attempt to impose upon a party, or to abuse or pervert the process of the court, even the mere fact of authority will not be investigated. In this case the fact of actual authority having been given is sworn to. The position of the party to the plaintiffs and to the defendant, in this transaction, to whom the authority was given, and by whose orders the action was brought, is such as to repel all suspicion or presumption that no such authority has been given, as he swears he has received.
    There is nothing opposed to the positive affidavit of the minister-plenipotentiary of the republic of Mexico, but the affidavit of the defendant, that he has reason to believe and does believe, that this suit is prosecuted against him without authority from the said republic.
    Ho fact is stated on the part of the defendant as the basis of his belief, nor are any of the reasons of the belief mentioned.

      Whether the court would require evidence of the authority to be filed before entry of the judgment, or at the time of entering it, as a greater protection to the defendant, it is unnecessary to decide now. ISTo facts are stated to render it the duty of the court to require it to be filed, in the present state of the action.
    Flo satisfactory reason is assigned for requiring any instructions that may have been given, as to .continuing or discontinuing the action to be filed. To make such an order would be equivalent to requiring an attorney to disclose the orders given him, as to the conduct of the suit, and the contingencies on which he should abandon it.
    ISTo authority is cited in support of such a practice, and an attempt of the court to interfere in that manner, with the ordinary course of litigation would-naturally be viewed with some suspicion.
    The mere fact of the commencement of an action in another state, after this was brought, and its pendency, is no reason for ordering it to be discontinued. It is not averred that the defendant has been personally served with process in that action, or that he has ever appeared in it.
    It is not averred that he has. been arrested in it, or that any of his property has been attached by any proceedings taken in it, or that he has any that can be reached, by any proceedings that can be taken in it.
    If a judgment should be rendered in that action by which the rights of the parties would be concluded before the one pending here is tried, this court would permit the judgment there to be pleaded puis darrein continuance, or by supplemental answer.
    If the two suits should proceed pari passu, to judgment and execution, it would order the one recovered.here satisfied, on payment of the one recovered in Mexico.
    So it would make any order proper, and adequate to protect the defendant, on a state of facts being presented that called for its interference.
    Mothing is shown on this motion rendering it necessary or expedient for the court to make any order interfering with the ordinary modes of procedure in such an action. The motion must therefore be denied, with seven dollars costs.

      J. Anthon, for the defendant.

      D. Lord, for the plaintiff.
   By the Court. Duer, J.

We are all of opinion that the order from which this appeal is taken must be affirmed, with costs, and for the reasons that Mr. Justice Bosworth has clearly and fully stated. To those reasons we have only to add, that, to demand from the accredited minister of a foreign state, who declares that he is acting under the authority of his government, a copy of the instructions given to him, would be, in our judgment, to insult him and the government which he represents. When his character as a minister-plenipotentiary, received as such by our own government, is admitted or proved, we are bound to accept his declaration as conclusive proof of his authority. The instructions of such a minister are only for his personal direction. Hot even the government to which he is accredited can demand a copy or sight of them; and he violates his duty to his own government in making the communication without its direction or authority. (Manuel Diplomatique, ch. 2, § 16; Wheaton’s Internal. Law, vol. 1, p. 268, § 9.)

The order appealed from is affirmed, with ten dollars costs to the plaintiff.


author: Bosworth, J.

text:
    Saltus v. Kipp.
    In an action of assault and battery, in which the defendant has given notice of appearance before the time for answering has expired, it is irregular to apply ex parte, and without notice, for an order that plaintiff’s damages be assessed by a iy-
    In such a case, the defendant will not be permitted to put in an answer which admits the assault and battery, and merely alleges that there was provocation, which should mitigate damages. The real character of the transaction, and any matter which can properly mitigate damages, may be shown on the assessment of damages, on a default to answer.
    At Special Term,
    January, 1856.
    This is an action of assault and battery. Within twenty days after service of the summons and complaint, the defendant appeared by attorney, but made default in answering. When the time to answer had expired, the plaintiff applied ex parte, and obtained an order that his damages be assessed by a jury. The defendant moves to set aside that order for irregularity, and for leave to put in an answer, which he produces. The answer does not deny the assault and battery, but sets up circumstances mitigating its character.

      Henry H. Morange, for defendant.

      Bangs & Ketchum, for plaintiff.
   Bosworth, J.

The order to assess damages could only be granted on an application for the relief demanded by the complaint. No notice of the application having been given, it is irregular, and must be set aside. (Code, § 246, sub. 2.)

The answer contains no defence. On a demurrer to it for insufficiency, judgment would be given for the plaintiff. (Laws of 1855, chap. 44; Lane v. Gilbert, 9 How. Pr. R. 150.) In such a case, the damages would be assessed in the same manner as if no answer had been put in. (Code, § 269.)

The same proceedings may be had under the Code, in assessing damages on a default to answer, as were allowed under the old practice of executing a writ of inquiry. A defendant may call witnesses, and prove any matter which properly goes to mitigate damages. He may, of course, prove all the facts and circumstances relating to any immediate provocation, which, in judgment of law, tends to mitigate damages. (Code, § 469.)

The motion for leave to put in the proposed answer is denied.


text:
    Cunningham, assignee, v. M’Gregor.
    A general assignee, for the benefit of creditors, is a trustee of an express trust. If he_fails, in an action brought by him as such assignee, to recover a debt claimed to be owing from the defendant to his assignor, he cannot be charged personally for the costs, unless the court specially so orders, on the ground of his mismanagement or bad faith in such.action. The costs are chargeable upon, and collectable out of the assigned estate.
    The same rule of liability for costs applies to him that is applicable to executors or administrators.
    It is not bad faith to prosecute a suit against the only responsible debtor of the assignor, without having funds to pay the costs of it, if unsuccessful, if the plaintiff believes, and has good reason to believe, that he is justly entitled to recover.
    At Special Term,
    January, 1856.
    The "plaintiff is an assignee, under an assignment executed to him by J. H. & J. D. Lyon, of their property, in trust, to pay their creditors. As such assignee, he brought this action to recover á balance alleged to be owing from the defendant to the assignors at the time of the assignment. The defendant obtained a report of a referee in his favor, and now moves for an order directing the costs to be paid by the plaintiff personally. The assignors assured the plaintiff that the balance sought to be recovered was due from the defendant. Defendant’s affidavits state, (and this is not denied,) that the plaintiff had no funds with which he could pay the costs, if unsuccessful, when he brought the suit; and that at that time the plaintiff knew the assigned estate was insufficient to pay the costs of this action, and that he commenced the action without first asking the defendant to pay, or communicating with him on the subject.

      Hoffman & Pirson, for plaintiff.

      Robert H. Shannon, for defendant.
   Bosworth, J.

The plaintiff is a trustee of an express trust. The Code puts such a trustee on the same footing as an executor or administrator, in respect to the costs of an action brought by or against him. Such a trustee necessarily prosecutes by virtue of his rights as trustee. (Code, §§ 111 and 113.) In such an action, if unsuccessful, the costs of the defendant can only be charged upon, or collected out of the estate he represents. (Code, § 317.)

The same rules must be applied to his case as are applied in actions necessarily brought by executors or administrators in their representative capacity. The Code allows of no discrimination between them. He cannot be charged personally, except for “ mismanagement or bad faith in such action or defence.” (Code, § 317.)

Being assured by the assignors that the balance claimed was justly due, and believing this assurance to be true, and therefore suing, he prosecuted in good faith. The fact that the defendant was, or might have been the only responsible person among the alleged debtors of the assignors, and that the estate might not be sufficient to pay the costs of this action, if successfully defended, is not sufficient to charge the defendant with bad faith in bringing the action. It was, in such a case, as much the duty of the plaintiff to attempt to collect this balance, if he believed the claim to be a just one, as it would have been if there had been other debtors who conceded their liability, and who were abundantly able to pay.

The fact, that no application was made to the defendant before suit was brought, does not necessarily show bad faith: it may have been discourteous. All the affidavits, taken together, show that the plaintiff believed, when he brought the suit, and throughout its progress, -that he was entitled to recover.

There cannot be said to be bad faith in bringing, or prosecuting to a conclusion, any action in which the plaintiff honestly believes, and is advised by counsel, that he is entitled to recover. He cannot, therefore, be charged personally with the costs of this action. (See 2d R. S. 615, §§ 16, 17; Graham’s Prac. 737-739.)

The motion is denied, but without costs.


text:
    Parsons, appellant, v. Travis, et al., respondents.
    When a plaintiff, against whom a judgment has been recovered, appeals from it to the General Term, and, on appealing, deposits $250 instead of giving the undertaking required by the Code, and the judgment- is affirmed by the General Term, and also by the Court of Appeals, on an appeal to the latter, and pending the latter appeal the money, so deposited, is lost, stolen, or embezzled, without any act of the respondent contributing to produce that result, the loss is that of the depositor, as between him and the respondent.
    The court will not direct the amount of the deposit to be deducted from, nor the judgment satisfied on payment of the balance, or'difference.
    At Special Term,
    January, 1856.
    Judgment was rendered in favor of the defendants for their costs of the action. The plaintiff appealed from it to the General Term. Instead of giving an undertaking on sueh appeal, he deposited with the clerk, the sum of $250. The judgment was affirmed at General-Term, and from the latter judgment he appealed to the Court of Appeals. On the latter appeal, he gave an undertaking, in the form and for the amount required to make the appeal operate as a stay óf all proceedings, on the-judgment appealed from, pending the appeal. Having done that, he-moved the court for an order, directing the clerk of the court to pay to him the $250, deposited on appealing from the Special to the General Term. That motion was opposed by the defendants, and denied. (2 Duer, 659.) ■ The Court of Appeals affirmed the judgment rendered by the General Term of this court.
    In the mean time, the $250 has been wholly lost, without any fault of the plaintiff or either of the defendants. The plaintiff now moves for an order that the $250 be deducted from the judgment, entered on the remittitur from the Court of Appeals, and that, on payment of the balance, it may be satisfied of record.

      John Gtraham, for plaintiff and appellant.

      JR. J. Dillon, for defendants and respondents.
   Bosworth, J.

The payment, by the plaintiff of $250 into court, was a voluntary act on his part. It was a substitute for an undertaking executed by himself and at least two sureties. It was made to obtain a stay of proceedings, pending an appeal from the Special to the General Term. (Code, §§ 344 and 348.)

The deposit was made, to furnish to the defendants security for the payment of the judgment appealed from, (if it should be affirmed), and of the costs of the appeal. It continued the plaintiff’s money, and its safety was at his risk.

The fact, that the defendants objected to the plaintiff’s taking it out of court, after he had appealed to the Court of Appeals from the judgment of the General Term, does not alter the position of the parties. The motion to withdraw it from court, was made on the ground, that perfecting security on the latter appeal, released this fund from all claims or liens of the plaintiff. His objection to its withdrawal was, that the court had no right to deprive him of a security which the law had given him. He had a right to such security, as the actual deposit furnished. The depositing of the money, was neither an absolute nor a conditional payment of the judgment, which it was designed to secure. Its safety was not at the respondent’s risk any more than that of the solvency of sureties in an undertaking would have been. If the money on being deposited, had been retained in specie, separated from all other moneys, and had been destroyed by fire, or stolen by a burglar, its destruction or loss, would not have been the loss of the respondent. The statute says to an appellant, instead of executing an undertaking with sureties, you may deposit money with the clerk, as security for the judgment and the costs of the appeal. But the deposit is at the risk of the depositor. If lost, without any act of the respondent contributing to produce that result, the owner and depositor of it must, in such a case as this, bear the loss. The motion must be denied.


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    Giberton v. Fleischel.
    An action, at issue, upon issues of fact only, and noticed for trial and placed on the calendar, if the defendant fails to appear when it is reached in its order, must be tried by the court and jury, or by the court alone, if the plaintiff elects to treat the failure of the defendant to appear as a waiver by him of the right to a trial by a jury.
    If, in such a case, the plaintiff has the defendant’s default entered for not appearing, and obtains an order that the damages be assessed by a sheriff’s jury, the assessment of damages will be set aside.
    At Special Term,
    February 2, 1856.
    Before Bosworth, J.
    This action brings at issue, and the issue brings issues of fact only. It was noticed to be tried before the court and a jury, and placed on the calendar; when it was reached in its order, the defendant did not appear. The plaintiff obtained an order, which recited the defendant’s failure to appear, and directed the plaintiff’s damages to be assessed by a jury before the sheriff. Such an assessment was made, and the defendant now moves that it be vacated, and the cause restored to its place on the calendar.
   Bosworth, J.

An issue of fact, in an action for the recovery of specific personal property, “ must be tried by a jury,” unless a jury trial be waived, as provided in section 266, or a reference be ordered, as provided in sections 270 and 271 of the Code. (Code, section 253.) Such issues must be tried before a single Judge, (section 254.)

Fotice of trial must be given ten days before the term begins, (Id. section 256.) That having -been given, the party giving it may bring it to trial, when reached in its order on the calendar, (section 258.) If the notice of trial also expresses an intention to take an inquest, one may be taken at the opening of the court, on any day after the first day of the court. It must then be tried by a jury, before a Judge of the court, unless the plaintiff elects to treat the defendant’s non-appearance as a waiver of the right to a trial by jury, and in such case it must be tried before the court. Probably no authority can be found for ordering a cause, in which issues of fact are joined, to be tried by a sheriff’s jury. (2 R. S. 409, §§4, 5, 6, 7, 8; id. 419, §53.)

The assessment of damages by the sheriff’s jury must be vacated, and the cause restored to its place on the calendar.


author: Slosson, J.

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    Forsyth v. Edmiston.
    A statement of the tenor and effect of the words complained of, in an action for slander, is bad pleading. The words spoken should be stated.
    Whether an action for slander will lie against two, for words alleged to have been uttered in pursuance of a conspiracy between them?—Query,

    At Special Term,
    February, 1856.
    Demurrer to a complaint.
    This was an action of slander, brought by William R. Forsyth against John Edmiston and James Edmiston. The complaint stated three causes of action.
    The third count of the complaint alleged that the defendants, with intent to injure the credit of the plaintiff, and to impair his business, &c., did falsely and maliciously utter, in the hearing and presence of sundry merchants and other citizens, “certain false and defamatory words and statements of the following tenor and import, and to the following effect, that is to say, that his, the plaintiff’s, credit was gone; that he had failed to pay his debts, and that they had obtained a judgment against him for a large amount; and that for the purpose of causing such statements to be believed, they exhibited, in connection with the conversation, copies of a record of judgment alleged in the complaint to have been fraudulently or irregularly procured by the defendants against the plaintiff; and meaning, by these words and acts, that the plaintiff was insolvent, and that the defendants had a valid judgment against him, which he could not pay. The count contained a further allegation, that all this was done by the defendants in combination with each other, they being partners and acting in concert in respect thereto.
    The defendants answered as to the first two causes of action, and demurred as to the third:—on the ground that there was a defect of parties defendant, in that the defendants were sued jointly for an offence which could only be committed by one, and that the count did not state facts sufficient to constitute a cause of action.

      John Townshend, for the demurrer.

      Asa Child, opposed.
   Slosson, J.

I think the demurrer well taken in this, that the expressions charged to have been spoken, are not alleged to have been the identical words spoken, or even as in substance the words spoken which, perhaps, would be good, but as words and statements of a certain tenor, import, and effect, which is bad. (Maitland v. Joldney, 2 East. 427; Cook v. Cox, 3 Maule & S. 110; Ward v. Clarke, 2 Johns. R. 10.)

As a general rule an action of slander will not lie against two, though an action for composing and publishing a libel may. (Chitty’s Plead. 74; Bul. N. P. 5; Johns. R. 32.)

Whether, where the slander is alleged to have been uttered in pursuance of a conspiracy between the defendants, a count to that effect would be good, is unnecessary to decide, since the demurrer is sustained on the other ground; but I am inclined to the opinion that such a count would be good.

There must be judgment for the defendants on the demurrer with costs—with liberty to plaintiff to amend his count within twenty days.


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    Burrall v. Moore.
    When the plaintiff gives notice of a motion for judgment, on account of the frivolousness of the answer, the defendant, if the time to amend has not expired, may amend, as a matter of course. Service of the amended answer before the time specified, in the notice for hearing the motion, will be an answer to it.
    Such a motion is a summary demurrer, within the meaning of the provision of the Code, which allows a pleading demurred to, to be amended as a matter of course.

      If the amendment is thought to have been made for the purposes of delay, the remedy is a motion to set aside the amended pleading.
    At Special Teem,
    March 10th, 1856.
    The plaintiff gave notice that he would move on the 10th of March, 1856, for judgment, on account of the frivolousness of the answer.
    The answer set up new matter, which was claimed to constitute a? defence.
    On the 8th of March, 1856, and within twenty days after the answer had been served, the defendant amended his answer, and served a copy of the amended answer. That fact was shown as being an answer to the motion.
    To this it was replied, that as no demurrer had been interposed to the answer, and as it could not be replied to, but was put at issue by the Code, the defendant could not amend without leave of the court, and that the amendment attempted-was unauthorized, and should be disregarded.
    Burrill, Davison & Burrill, for plaintiff.

      Loomis & Haynor, for defendant.
   Bosworth, J.

The motion for judgment, on account of the frivolousness of the answer, should be regarded as, in effect, a summary demurrer, within the meaning of the provision of the Code, which allows a pleading demurred to to be amended.

A formal demurrer might have been interposed to the answer as being insufficient. In that case there could have been no doubt of the defendant’s right to amend.

That right ought not, by any construction of the Code, to be made to depend upon the plaintiff’s volition. It would depend on that, if he could amend, had the plaintiff formally demurred, and if it be true that he cannot amend, merely because the plaintiff chooses to test the sufficiency of the answer by a motion for judgment upon it, instead of demurring to it, and moving for judgment on the demurrer.

If a defendant amends an answer which sets up new matter as a defence, and the plaintiff thinks it is done for delay, his proper course is to, move to set the amended pleading aside. (8 How. Pr. R. 451-466; Code, § 172.)

I think the defendant had a right to amend, and the present motion must be denied, without costs, solely on the ground that an amended answer has been regularly served since the notice was given, and therefore the answer, on which the motion was noticed to be made, does not exist as a pleading in the action.


author: Bosworth, J.,

text:
    Harsen v. Bayaud.
    A complaint containing several causes of action, all of which belong to one of the classes named in section 16*7 of the Code, and affect all of the parties to the action, and do not require separate places of trial, cannot be demurred to, on the ground that such causes of action are improperly united, merely because they are not separately stated. In such a case the remedy is a motion, that the complaint be made more definite and certain, so as to show on its face, clearly and precisely, what distinct part of it is relied upon as constituting a separate cause of action.
    At Special Term,
    April 6, 1856.
    This action comes before the court, on a demurrer to the com plaint, assigning as causes of demurrer, that several causes of action are improperly united, and that they are not separately stated.
    The court was of opinion, that all the causes of action belonged to one of the classes mentioned in section 167 of the Code, and did not require separate places of trial. The question most discussed was, whether they were improperly united, within the meaning of those words, as used in sub. 5 of section 144.

      J. Larocque, for defendant.

      J. K. Platt, for plaintiff.
   Bosworth, J.,

held, that several causes of action are not im properly united, within the meaning of those words, as used in sub. 5 of section 144 of the Code, if they all belong to one of the classes mentioned in section 167, and affect all the parties to the action, and do not require separate places of trial, although they may not be separately stated. The requirement of sub. 7 of section 167, that they “be separately stated,” is not a fact or condition that must exist, to prevent a demurrer being taken on the mere ground that they are improperly united. That provision relates solely to the form of the complaint. If the complaint be defective in that particular, the remedy is a motion that it be made more definite and certain, so as to show what part of it is relied upon as stating facts constituting a distinct cause of action.

The words “improperly united,” as used in sub. 5 of section 144, refer to the nature of the causes of action united, and not to the form of stating the facts which constitute them. They are properly united, however unartificially they may be stated, if they all belong to a specified class, and affect all the parties to the action, and do not require separate places of trial. Judgment must be ordered for the plaintiff, with liberty to the defendant to answer, in ten days, on payment of the costs of the demurrer.


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    Blydenburgh v. Borst.
    When an answer sets up, among other defences, a prior action pending for the same cause, and on a reference of the latter issue by consent, the referee has reported upon it in favor of the defendant, the court will order the complaint to be dismissed without a trial of the other issues, if no valid exceptions be taken to the report of the referee.
    At Special Term,
    April 12, 1856.
   The answer of the defendant contained several defences, and among others, that a former action brought by the plaintiff for the same cause was still pending. The single issue raised by the latter defence, was referred to J. W. Edmonds, Esq., who reported upon it in favor of the defendant, with his opinion, that the complaint should be dismissed, with costs. A motion was made before Bosworth, J., at Special Term, for an order confirming the report and dismissing the complaint. The Judge held, that, inasmuch as all the objections made against thnreferee’s report were untenable, the complaint must be dismissed, at last, however the other issues might be determined upon a trial of them, and therefore such a trial would be utterly useless. Enough having been ascertained and determined, in the due course of judicial proceedings, to entitle the defendant to a dismissal, at all events, and in any contingency, the motion must be granted, with costs. (Code, section 144, sub. 3; and sections 147 andT48.

       This decision has been affirmed by the court at General Term.


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    Candee v. Ogilvie.
    Whether the costs of a plaintiff “ for all proceedings before notice of trial,” shall • be $7 or $12, depends solely apon the nature of the action, .and not at all upon the fact whether an answer is, or is not put in. (Code, section 307, sub. 1.)
    After the cause had been two terms on the calendar on the plaintiff’s notice, he moved out of court on a five days' notice, and obtained judgment, on account of the frivolousness of the answer. Held, that .he coul4 not tax $10 a term for , .either of those terms.
    At Chambers,
    February 15, 1856.
   Bosworth, J.,

(with the concurrence of the other Justices,) held, as above stated. He held, that $12 could be allowed under sub. 1 of section 307, in those actions only, in which an application for judgment, when a defendant fails to answer, must be made to the court. In all others, only $7 can be allowed whether an answer or demurrer is, or is not, interposed.

That the plaintiff could have obtained a judgment without noticing the action for trial or placing it on the calendar. And having, in fact, obtained a judgment, on a motion made to a Judge out of court, under section 247 of the Code, he was not at liberty to take the ground that the cause had been necessarily placed on the calendar, whatever might have been his rights, if it had been called in its order on the calendar, on due notice of trial, and a verdict had been taken, then before the court, or a jury.


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    Halsted v. Halsted.
    When the judgment of divorce fixes the sum to be paid as permanent alimony, without prejudice to the right of the plaintiff, on a change of circumstances, to apply for an increased allowance, such an application will not be granted merely because her expenses have been increased, by the addition to her family of a person, whom the defendant is under no obligation to support, although his ability to pay may have been improved subsequent to the judgment.
    At Special Term,
    April, 1856.
    The parties were divorced in 1846, and the amount'of the plaintiff’s permanent alimony fixed, without prejudice to her right to move to have it increased, on a state of facts, making such increase proper.
    She now petitions for an increase, on the grounds, that the defendant’s circumstances have been much improved since the divorce was decreed, that her’s have not been materially, and that her expenses have been increased by reason of her contributing to the support of a person named in the petition. But it does not allege, that her own means are not abundant for her own support.
   Bosworth, J.,

denied the motion, ón the ground, that the defendant is under no obligation, legal or moral, to support the person whose maintenance adds to the plaintiff’s expenses. To increase the amount of her alimony merely on account of such expenses, would, in effect, compel the defendant to support such third person, as the plaintiff might permit to eat up her own estate.

That there may be cases in which the improvement of the pecuniary condition of such a defendant subsequent to the judgment of divorce, when considered in connection with the amount of alimony allowed by the judgment, and the social position of the parties, and their general mode of life previously, would make a further allowance just, it is not necessary to deny.

The papers.on which the present motion is based do not make such a case.


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    Kurtz & Dunbar v. McGuire.
    Hew matter in an answer, which, although it may constitute a good cause of action, is, palpably, no defence, either total, or partial, nor a counterclaim as defined by the Code, may be struck out on motion, as an irrelevant defence,
    At Special Term,
    April 6, 1856.
    Before Bosworth, J.
    The complaint states a sale and delivery by the plaintiffs to the defendant of liquors, for cash, at an agreed price of $890.20, and claims a balance due of $208.06.
    The answer denied that he had received the quantity of liquors stated, or that they were worth, or that he agreed to pay, the'price named, and averred that they were worth about $200, and no more. It then proceeds thus:—
    “ And this defendant further says, that on or about the 20th of October, 1856, the said plaintiffs, without the knowledge or consent of the defendant, took and appropriated to their own use eighty-seven and a half gallons of whiskey, belonging to this defendant, of the value of $2.75 per gallon, which this defendant claims to offset against the plaintiff’s claim herein, and also five gallons of gin, worth.the sum of $1.50 per gallon, and this defendant denies that he is indebted to the plaintiffs in any sum or amount, wherefore he demands that the complaint herein be dismissed, with costs.”
    The plaintiff moves to strike out this part of the answer, as “irrelevant and redundant,” because it is not matter constituting a counterclaim, or a defence, either total or partial.

      George O. Hulse, for plaintiffs.

      Patterson & Sheehan, for defendant.
   Bosworth, J.

An irrelevant defence, as well as an irrelevant answer may be stricken out on motion. (Code, section 152.) The fact that the plaintiffs wrongfully took and converted to their own use property of the defendant, constitutes a good cause of action. As a defence is irrelevant, because it cannot be made available in this action, it does not give a right of set-off. (2 R. S., 354, § 32, sub. 1.) It does not create a demand arising on contract.

It does not constitute a counter-claim, because it does not arise out of contract, nor out of the transaction set forth in the complaint, as the foundation of the plaintiffs’ claim, nor is it connected with the subject of their action. The motion must be granted.


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    Wandle v. Turney & Coman.
    When a vendor of real estate conveys it by a full covenant warranty deed, and a prior outstanding mortgage, unsatisfied of record, is discovered, which the holder of it declares to be valid, and that money is due upon it, and the grantor insists nothing is due or owing upon it, the grantee may bring an action to have it satisfied of record on paying what may be found due. He may make his grantor a defendant, so, that a complete determination of the controversy may be had in one action. To that end, he is not only a proper but a necessary party. Such a complaint does not improperly unite several causes of action.
    At Special Term,
    April 26, 1856.
    This action comes before the court on a demurrer by Turney to the complaint, assigning the grounds that several causes of action are improperly united, and that it does not state enough to constitute a cause of action as against him. The complaint shows that Wandle bought real estate of Coman, which the latter conveyed to the- former by a full covenant warranty deed. The discovery of a prior mortgage recorded, which Turney owns as assignee of it, and oh which he claims some $1,400 to be due, while Coman insists that nothing is due upon it, and that the plaintiff is ignorant of the truth of the matter. He brings this action against Coman, his grantor, and Turney, the owner of the mortgage, to ascertain whether any thing, and if so, how much is due upon it, and to obtain a judgment that it be cancelled of record, on his paying the amount that may be found to be due, and a further judgment that, on his paying such amount, the grantor refund it to him. The mortgage, by its terms, has been due several years, and payment of principal or interest has not been recently demanded, but the holder refuses to cancel it, except upon being paid the balance which he alleges is due.
   Bosworth, J.

There is no misjoinder of several causes of actions. They all arise out of transactions connected with the same subject of action. (Code, § 167, sub. 1.)

The only point of controversy, viz., whether any thing is due upon the mortgage, affects one defendant as much as the other, and it is proper that both should be concluded, in relation to it, by one suit; the grantor has an interest in the controversy, adverse to the plaintiff, and is a necessary party to a complete settlement of the question involved in the controversy.

The mortgage is a cloud on the plaintiff’s title. If actually satisfied, it is his right to have it discharged of record. And though it may not have been fully paid, it is equally the right of the plaintiff, on paying any‘balance justly due, to have it can-celled of record. Any balance that may be due, if paid by the plaintiff, should be refunded by Coman.

Legal and equitable causes of action may be united, when they arise out of transactions connected with thesame subject of action, and affect all the parties to the action. (Code, § 167, subs. 1 and 7.) "Whether any thing, and, if so, how much, is due, affects both defendants, and one as much as the other.

Demurrer overruled, with liberty to answer in ten days, on payment of costs.


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    E. Spies, by her next friend, v. The Accessory Transit Company.
    A complaint, in an action by a married woman, which states, that a passenger carrier undertook to carry her and her baggage from California to New York; that the baggage was her separate property, and was stolen on the passage, is good in substance. If further particulars, as to the time or manner of her acquisition of the baggage, as separate property, or to show it to be such, are material, the remedy is by motion, under § 160 of the Code. The defect, if any, cannot be reached by demurrer. Her husband is not a necessary party to such an action.'
    At Special Teem,
    April 26, 1856.

      This action comes before the court on a demurrer to the complaint.
    The complaint states that E. Spies is a married woman; that defendant, being a common carrier, undertook to carry her and her baggage safely from San Francisco to New York; that the baggage, which was her separate property and paraphernalia, was stolen and damaged while in the custody of defendant and its agents, and claims to recover the damage consequent thereon. Defendant demurs, because, first, the plaintiff" is a feme covert, and has no legal capacity to sue; second, that there is a defect of parties, in that her husband is not joined with her, and that a judgment in this action would not protect the defendant against an action by the husband, the contract being made in California, and not in the state of New York.
   Bosworth, J.

The demurrer must be overruled. The husband need not be joined with the wife, when the action concerns her separate property. (Code, § 114.) Whether the plaintiff is a citizen of California or of New York, is of no consequence, so far as concerns the remedies and the forms of proceedings, when she prosecutes in the courts of this state. The demurrer admits the truth of the allegation, that the baggage was her separate property, and the court does not know that a California wife may not have a separate estate. The legal presumption is, that she may.

If the defendant has a right to be informed, by the complaint, of the particular facts which constitute the baggage her separate property, his remedy is by motion under § 160 of the Code. A demurrer will not reach such a defect, as the complaint is good in substance.

The defendant may answer, on paying the costs of the demurrer.


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    Depew v. Leal.
    After a dissolution of a partnership, and an action brought by the partner entrusted with the settling of the business, against his copartner for an account, the court will not order a general bill of the particulars of the plaintiff’s claim to be furnished.
    When the complaint states claims not evidenced by the books of the firm, and particulars of such claims are sought, the application should be special, and directed to the specific transactions of which particulars aré sought, and the moving affidavits should state the grounds creating the necessity, or establishing the propriety, of granting the application.
    At Special Term,
    May 5, 1856.
    The defendant moves for a bill of the particulars of the plaintiff’s demands. The parties were partners, and dissolved, agreeing that Depew should close the business of the firm. He brings this action against Leal, to obtain an accounting, and a judgment, that either should pay to the other any sum, in which he might be found indebted. An order had been made ón defendant’s motion, that the plaintiff deposit all books and papers relating to the business, so that the defendant might inspect and take copies of them. The defendant now moves, under § 158 of the Code, that a “ bill of particulars of the claim of the plaintiff,” in this action, be furnished by him.

      A. R. Dyett, for plaintiff.

      Wm. H. Taggard, for defendant.
   Bosworth, J.

Section 158 of the Code does not apply to such a state of facts. Unless such a plaintiff makes a claim for moneys contributed to, or paid for his firm, not evidenced by, or intelligible from the entries upon the books of the firm, one partner has presumptively as much knowledge of details as the other.

To furnish a bill of particulars, is to furnish a copy of the books. When the pleadings show that claims are made, the nature or extent of which is not shown by the books of the firm, if particulars are sought, the application should be special, and directed to particular transactions, and the moving affidavits should state specially the grounds, creating the necessity, or showing the propriety of granting it.

Motion denied, with $7 costs to plaintiff, to abide the event.


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    Ormsby v. Douglas.
    "When the answer to a complaint, in an action of slander, denies each and every allegation of the complaint, and also justifies, by alleging that the plaintiff was guilty of the misconduct which the words impute, the court will not, on motion, direct one of the defences to be stricken out, nor coerce the defendant to elect between them, and rely on one alone. Especially, this will not be done, when the defendant swears that the answer is true, for it may be true, that he did not speak the words charged, and that the plaintiff committed the offence they impute. His right to justify does not depend upon his admitting the speaking of words which he never did speak. The right is absolute to set up as many defences as he may have.
    At Special Term,
    May 5, 1856.
    The plaintiff moves that the defendant elect, between certain defences set up in his answer, by which he will abide, and that the others be stricken out, or in default of such election, that certain defences referred to, in the notice of motion, be stricken out. The complaint states the speaking of slanderous words. The answer denies each and every allegation of the complaint, and also sets up as a defence, that the plaintiff was guilty of the misconduct which the words impute. The motion is made on the theory, that a denial of the speaking of the words, and an allegation that the plaintiff is guilty of the misconduct they impute, are inconsistent with each other, and that the defendant should be coerced to rely on one of these defences alone The defendant makes affidavit that the whole answer is true.

      Pike & Galpin, for plaintiff.

      Fullerton & Dunning, for defendant.
   Bosworth, J.

When the answer to a complaint, in an action of slander, denies each and every allegation of the complaint, and then sets up a justification, the court will not compel a defendant to elect one of the defences, and abide by it, and strike out the other. They are not necessarily inconsistent; both may be true. The court will not, on motion, decide that both are not true, when they may be, and the defendant swears that they are. A defendant has an absolute right to set up as many defences as he has, and if he fails, by the death, absence or imperfect memory of his witness, to prove one, it is no reason why he should not be permitted to have the benefit of the other.

It may be true,-that a defendant never spoke the words ohárgéd, and yet it may be true that a plaintiff has committed the offence they impute, and that the defendant can prove it. • It may not betrue, that the defendant spoke the words charged, and yet the misunderstanding, misrecollection, or erroneous impression of those who heard him, may result in testimony establishing, prima, facie, that he did. He may justify, if he had spoken them; and if contrary tó defendant’s conviction of the truth, it shall be proved'he'did speak them, when he did not speak them, the defendant should be allowed to justify. In order to justify, he should not be compelled to- expressly a-dmit that he spoke words which he can conscientiously swear he never did' speak: • The only question submitted being, whether-an answer, in such an action, which denies all the allegations of the complaint, can also be permitted to contain the defence of justification, and .being of the opinion that it can, the motion is denied, but without costs to either party.


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    Powell v. Finch, and others.
    In an action against several, for the specific performance of their joint contract, to . purchase real estate of the plaintiff, and secure a part of the price by their bond and mortgage, payable at a future day, all of them must be served with the summons, or appeal in the action, to enable the court to render a judgment'which will be a complete determination of the controversy.
    If brought to trial, upon the answers of a part of the defendants only, when the others have not been served with process, or appeared in the action,' the court will not permit the trial to proceed.
    At Special Term,
    May, 1856.
    Before Bosworth, J.
    . This action was called in its order on the calendar, and the plaintiff arid the defendants who had appeared in the action, submitted their proofs." The action is brought by the plaintiff, against three defendants, to compel the specific performance of their joint contract, to purchase land of the plaintiff, and pay a part of the price on the day fixed for the delivery of the deed, and secure the balance by their bond, and by their mortgage of the premises in question, payable at a future day. That day had not arrived, at the time of the trial. On its being discovered that only two of the defendants had appeared in the action, and that the third had neither appeared, nor been served with process, the Judge suggested his doubts, whether the action was in a condition to be tried, and to admit of a judgment in favor of the plaintiff, which could be enforced. Opportunity was given to the counsel of either party to refer the court to authorities on the subject.
    E. S. Vanwinkle and H. S. Cowdrey, for plaintiff.

      D. E. Wheeler, for defendants.
   Bosworth, J.,

on a subsequent day, held, that the action is not in a condition to be tried. The defendant, who has not appeared, or been served, is not before the court.

A judgment that he execute such a bond and mortgage as the contract calls for cannot, rightfully, be rendered, nor enforced, as against him, if rendered.

A complete determination of the controversy cannot be had, without the presence of the third defendant. Service of a summons upon him, or his appearance in the action is indispensable. (Code, § 122.)

The trial which has been had must be treated as a nullity. The defendant, who has not been, must be served with process. When the action is in a condition, as against all the defendants, to be tried, it must be regularly noticed for trial, and be tried, as if no attempt to try it had been made.


author: By the Court. Slosson, J.

text:
    Platt & Platt v. Townsend.
    An order for a bill of particulars, and a stay of proceedings until the bill is furnished, no longer operate, per se, to enlarge the time to plead. The only way in which such an extension can be procured, is by an order expressly granting it, founded on proper affidavits.
    Before all the Judges,
    May, 1856.
    This action comes before the court, on an appeal from an order, vacating a judgment in favor of the plaintiff, for irregularity.
    The complaint was upon a note for $2,500, made by defendant, and also stated that he owed the plaintiffs $19,659.95, on account ; that he paid them $21,000; that they applied enough of this on the account to satisfy it, and the residue on the note, leaving due, on the note, $1,216.65, for which they prayed judgment. The time to answer expired the 26th of December, 1855. On the 19th of December, the defendant, upon an affidavit, not professing to state a defence on the merits, obtained an order that plaintiffs deliver a “ bill of particulars” of the account mentioned in the complaint, and that, in the mean time, all proceedings on their part be stayed. On the 27th the bill of particulars was served, and on the next day the plaintiffs entered a judgment for want of an answer. On motion, an order was made, vacating the judgment for irregularity, on the ground that the order operated to extend the time to answer. From that order the plaintiffs appealed to the General Term.

      Benj. V. Abbott, for appellants.

      S. Sanxay, for respondents.
   By the Court. Slosson, J.

The ground upon which the order vacating the judgment in this case is appealed from is, that an order for a bill of particulars with stay of proceedings, no longer operates of itself to enlarge the time to plead, inasmuch as the time is now determined by statute, and can only be enlarged by an order of the court applied for on an affidavit of merits, pursuant to the rules and practice of the court.

The Code expressly provides, (§ 143,) that the answer must be served within twenty days after the service of the complaint. The only power which the court has to enlarge this time is that given by section 405 of the Code, which provides that the time within which any proceeding in an action may be had, except on appeal, may be enlarged, upon an affidavit' showing grounds therefor, by a Judge of the court, &c. Rule 20 of the Supreme Court, rules (adopted 1854) by which also the practice of the court is regulated, provides that no - order, extending the time to answer or demur to a complaint, shall be granted, unless the party applying for it shall present an affidavit of merits as therein prescribed.

We have considered the matter, and all the justices of the court, including the one granting the order appealed from, are of opinion that an order for a bill of particulars, though accompanied by a stay of the adverse party’s proceedings, does not, since the Code, operate to enlarge the time to answer; but that the only way in which an extension of time can be procured, is by an express order to that effect, founded upon an affidavit of merits, as provided by the rule.

Where the defendant procures an order for a bill of particulars, a clause, extending his time to answer, should, if he deems such extension necessary, be inserted in the order for the bill. If the bar understand this, it can work no hardship. But the other construction, if sustained, might very often lead to unjust delay, as the defendant, by procuring an order for particulars with a stay of proceedings, which is granted almost as a matter of course, might, though he had no merits, delay the plaintiff; and often, by delay, in effect defeat the satisfaction of his claim.

The order appealed from is reversed. The defendant may apply to the court for leave to answer on the merits, and, meantime, the plaintiff’s proceedings should be stayed.


author: Duer, J.,

text:
    Price v. McClave.
    A complaint upon a promissory note against maker and endorser, is not sufficient, under section 162 of the Code, if it fails to aver that the maker made the note, and that the -endorser endorsed it, although the complaint contains a copy of the note and of its endorsements. An averment that a note was -protested, is not equivalent to an averment that it was duly presented for • .payment to the maker, and payment was refused. (3d Abbott, 253.)
    At Special Teem,
    May, 1856.
    This action came-before the court on a demurrer to the complaint.
    G. Carpenter, for plaintiff.

      Mr. Mitchell, for defendants.

       In Prindle v. Caruthers, decided by the Court of Appeals, in June, 1857, “the complaint averred that the defendant made ‘his contract in writing, (giving a copy,) by which, for value received, he promised to pay H. 0. or his wife, annually, on the first day of April, during the life of the longest liver of them, the sum of two hundred dollars, if called for, or neededthat such contract is, and was, prior to April 1, 1854, the property of plaintiff by purchase; that H. C. died March 30, 1854; that H. C.’s wife is living; that after the 1st of April, 1854, plaintiff demanded the two hundred dollars payable on that day; that defendant has not paid, and is justly indebted in that sum, with interest. Held, on demurrer, that the complaint is sufficient. The remedy for such formal defects as in this case, to expressly aver, a consideration for the contract, and to state from whom the plaintiff purchased, is by motion under section 160 of the Code, to make the pleading more definite and certain.
      “ If the complaint should be held insufficient, as a common law pleading, on the ground that the plaintiff does not make title to the contract, it is sufficient, under section 162 of the Code. Reversing unanimously." (S. C. 10 Howard, Pr. R. 33.)
      The foregoing note of the decision made by the Court of Appeals, is taken from The Evening Post, for which an abstract of its decisions in June, 1857, was prepared by the reporter of that court. If Prindle v. Caruthers, as reported in 10 How. Pr. R. 33, was unanimously reversed, and on the grounds above stated, then it may well be doubted, whether the complaints in Lord v. Chesebrough, (4 Sand. S. 0. R. 696,) and Alder v. Bloomingdale, (1 Duer, 601,) should not have been held to be good on general demurrer.

   Duer, J.,

held the proposition first above stated, on the authority of Lord v. Chesebrough, (4 Sand. 696,) and Alder v. Bloomingdale, (1 Duer, 601,) and also referred to Bank of Geneva, (8 How. Pr. R. 51.)

He held the second proposition on the ground, that although notice of protest is valid as a notice of dishonor,, it by no means follows that an averment of protest is a sufficient allegation, of a due presentment ■ of the note to the maker and of his* refusal to pay it, in a complaint, in which ¿11 the facts constituting the cause of action are required to be stated. The fact of a protest, however irregularly or improperly made, would prove an. averment of mere actual protest.

On appeal to the General Term, the order sustaining the demurrer was affirmed.


text:
    The Hamilton Building Association v. John M. Reynolds.
    When a complaint, filed by a mortgagor, to set aside a mortgage, has been dismissed upon pleadings and proof, he is estopped from disputing its validity in a suit against him for its foreclosure.
    A mortgage to a building association in the usual form, is a valid security only for the monthly payments stipulated to be made, not for fines and other dues.
    At Special Teem,
    June, 1856.
    Before Duer, J.
    On foreclosure of mortgage—the cause was heard upon pleadings and proofs—and the case, on the part of the plaintiff, as stated in the complaint, being proved, it was insisted, on the part of the defendant, that the provisions in the mortgage designed to secure monthly payments and fines, and the disposition of any surplus from the sale of the mortgaged premises were illegal and void, and that he was entitled to be relieved, and to have the mortgage cancelled, upon the repayment, with interest, of the sum originally advanced to him by the company.
   To repel this defence, the plaintiff gave in evidence the record of a judgment in the Supreme Court, dismissing the complaint of the defendant in a suit instituted by him against the association for the purpose of obtaining exactly the same relief that he now claimed, and it appeared from the record, that the judgment was rendered upon the ground, that upon the pleadings and proofs, the plaintiff, (the present defendant,) was not entitled to the relief he demanded.

Held, that this judgment, as it was rendered in a suit betweeen' the same parties, and involving the precise question now at issue, was conclusive between the parties, and created an estoppel from which it was beyond the power of the court to release the defendant. That the mortgage must, therefore, be adjudged to be valid, but that, in the opinion of the court, it was a valid security only for the stipulated monthly payments, and not for fines or other dues. Judgment would therefore be given only for the amount of those payments proved to be in arrears.

Judgment for plaintiffs accordingly.


text:
    Hobart, receiver, v. H. R. & W. I. Frost.
    A judgment-debtor who appears pursuant to an order for his examination, which, hy its terms, is returnable before “ one of the Justices of the court,” instead of “ the Judge” who made it, and without objection to the form of the order, submits to an examination, and omits to appeal from a subsequent order appointing a receiver, waives all objection to the jurisdiction of the Judge to take the examination and make the appointment. In an action by such receiver against such debtor and his assignee, to set aside an assignment by the debtor to the latter as fraudulent, under a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, the defendant cannot avail himself of the objection that the appointment of the plaintiff appears by the complaint to be invalid.
    That objection can only be raised upon a demurrer specifying as its ground, that the plaintiff has not legal capacity to sue.
    At Special Term,
    June 4, 1856.
    The action was brought by the plaintiff, a receiver appointed in a supplementary proceeding to set aside an assignment made by the debtor, as made with an intent to defraud creditors. The defendants were the judgment-debtor and the assignee. The demurrer specified as its only ground, that the complaint did not state facts sufficient to constitute a cause of action, and the argument in its support was, that it appeared on the face of the complaint, that the Judge making the order for the appointment of the receiver, bad no jurisdiction, inasmuch as the original order for the appearance of the debtor, which was set forth in the complaint, was returnable before one of the Justices of the court, and not before the Judge making the order. •
   Duer, J.,

held, that the demurrer must be overruled; that the objection to the jurisdiction of the Judge, by whom the debtor was examined, and the order appointing a receiver made, ought to have been taken when the debtor appeared before him; that it was an objection which it was competent to the debtor to waive, and that, by his submitting to be examined and not appealing from the order appointing the receiver, it was effectually waived; that, if the original order for his appearance was a nullity, he was not bound to appear, nor, when he appeared, to be examined; that his appearance and submission to an examination must, therefore, be regarded as voluntary acts, and that a valid order for the appointment of a receiver might be founded upon a voluntary appearance and examination of a judgment-debtor, could not reasonably be doubted; that it is only when a Judge or court has no jurisdiction of the subject-matter of the proceeding or action in which an order is made or judgment rendered, that the order or judgment is wholly void. It is to such cases only, that the ma.xim applies, that consent cannot give jurisdiction. In all other cases, the objection to the exercise of jurisdiction may be waived, and it is waived whenever it is not urged in proper season—that is, when the exercise of the jurisdiction is first claimed. (Carthew, 124; Cro. Eliz. 562; 1 Strange, 177; 3 Sand. S. C. Rep. 605.) Here the general authority of the Judge to make the order appointing a receiver—in other words, his jurisdiction over the subject-matter of the order—was unquestionable.

Held, further, that if the objection to the jurisdiction were valid in itself, it would not be taken under a demurrer, specifying, as its only ground, that the complaint “ did not state facts sufficient to constitute a cause of action.” The ground that ought to have been specified to enable the court to listen to the objection was, that the plaintiff had not “ legal capacity to sue.” (Code, section 144, sub. 2.) The facts set forth in the complaint were plainly sufficient to constitute a cause of action; for if true, the assignment impeached was certainly void; nor had this been denied. The objection was, not that the action was not maintainable at all, but that the plaintiff had not a personal right to maintain it.

Note.—If it appeared by the complaint, that the order appointing the receiver was absolutely void, and not merely erroneous, might not the objection be taken under a demurrer, specifying, as its ground, that the complaint did not state facts Sufficient to constitute a cause of action? Might it not be said of such a complaint, that it did not show a cause of action in favor of the plaintiff, but the reverse ?

Is not the objection, that “ the plaintiff has not legal capacity to sue,” applicable to a complaint, which may show a cause of action in his favor, while it also shows the plaintiff to be under some disability, as non-age, or otherwise, which incapacitates him from suing in his own name ? (1 Whittaker’s Pr., 460.)—J. S. B.


text:
    McGinity v. The Mayor of New York, &c.
    In an action against a city municipal incorporation, to recover damages, sustained in consequence of a grating over an area in a sidewalk being in a defective or unsafe condition, it is not enough to entitle the plaintiff to recover, to prove that the covering was insecurely fastened at the time of the accident, and that by reason thereof, and without fault on his part, he was injured. Notice to the defendant of the defect, or negligence of duty, in not ascertaining, and remedying it, must be shown.
    At Special Teem,
    June 4, 1856.
    The action was brought to recover damages for personal injuries sustained by the plaintiff, in consequence of the neglect of the defendants, in not keeping a sidewalk in Prince street in proper repair. It appeared, upon the trial, that in December, 1854, the plaintiff was walking, in the evening, on a sidewalk in Prince street, and, in consequence of a grating, covering a vault, on which he had stepped, giving way or turning over, fell through, and was seriously injured. Upon examination, it was found that a chain which had secured the grate was broken, but from what cause, or how long before the accident, did not appear. The jury gave a verdict for the plaintiff for $1,000 damages.
   Duer, J.,

held, that the plaintiff was bound to show affirmatively, that there had been a neglect of duty Tpy the corporation, and that this was not shown merely by proving that the grate was insufficiently fastened at the time of the accident. There was no reason to believe, from the evidence, that the grate was improperly constructed, or that the defendants had any notice, or were chargeable with knowledge of its defective state. The chain might have been broken by an act of violence, which, for ought that appeared, may have been committed only a short time before the plaintiff was injured. The verdict, therefore, was not sustained by the proof that the plaintiff was bound to give, and must be set aside.

Mew trial granted, upon payment of costs.


text:
    Second American Building Association v. Platt, and others.
    A provision, in a mortgage given by defendant to the plaintiff, to secure certain monthly payments to be made by him, as a member of the association, to the effect that, if default should be made “ in the said monthly payments for the space of six months after they, or any of them, should become due,” it should be lawful for the association to advertise and sell the mortgaged premises at public auction, according to the statute, is equally a bar to an action brought within the six months to foreclose the mortgage, as to a proceeding under the statute.
    At Special Term,
    June 4, 1856.
    This action comes before the court, on a demurrer to the complaint, in an action to foreclose a mortgage.
    The mortgage was given to secure certain monthly payments stipulated to be made by the defendant, as a member of the association, and it contained a provision that if default should be made “ in the said monthly payments, for the space of six months after they, or any of them, should become due,” it should be lawful for the association to advertise and sell the mortgaged premises at public auction, according to the statute. The complaint averred that default had been made in monthly and other payments, and that there was due from the defendant the sum of $244.19, but did not aver that any one monthly payment had been due six months. The defendant demurred, on the ground that it did not appear on the face of the complaint, that the plaintiff had any right of action.
   Duer, J.,

held, that the provision in the mortgage was not to be limited to an exercise of the power of sale by advertising, according to statute, but by its reasonable interpretation, operated as an extension of the term of credit, so as to preclude the association from commencing any action upon the mortgage until the expiration of six months from the time any monthly payment, remaining unpaid, had become due; and hence, that the complaint, as it did not allege nor show that there had been a default in any one monthly payment for that period, was fatally defective.

Demurrer allowed, with liberty to plaintiff to amend complaint within twenty days; costs to the defendant, to abide event.


text:
    Mechanics’ Building Association v. Stevens, et al.
    In an action by a building association, against one of its members, to recover monthly dues, in arrear, it is no defence that the association is a “ moneyed incorporation,” within the provisions of the Bevised Statutes, and that its charter, as such, had become void before the commencement of the action, from its failure to comply with the provisions of §§ 29, 30 and 31, of the statute. (1 B. S. 635.)
    At Special Term,
    June 4, 1856.
    This action came before the court, on the trial thereof, having been brought to foreclose a mortgage.
    The mortgage, in this case, was given to secure the payment of the monthly dues of a member of the association. The cause was heard on the pleadings and proofs, and it was proved that the association was duly incorporated under the general act for the incorporation of building and other associations, passed April 10, 1851, and that default had been made in thcpayment of the sums set forth in the complaint. The only defence relied on was, that the association was a “ moneyed incorporation,” within the provisions of the Revised Statutes, and that its charter, as such, before the commencement of the suit, had become void, from its failure to comply with the provisions contained in §§ 29, 30 and 31, of the statute. (1 R. S. 535.)
   Duer, J.,

held, that this is not a defence of which the defendants can avail themselves; that, admitting that the association was a moneyed corporation, subject, as such, to the provisions of the Revised Statutes, and that, by its failure to comply with those provisions, it had forfeited its charter, it belonged to the state alone, by a proceeding instituted for that purpose, to enforce the forfeiture, and that the association, until by a judicial sentence its charter was declared to be void, was a corporation de facto, and that no private person, more especially no person dealing with it, could be permitted to say that it was not also a corporation de jure. (Triton Ins. Co. v. McGarian, 4 Denio, 392; Brower v. Appleby, 1 Sand. S. C. R. 107; Palmer v. Lawrence, 3 id. 161, 170.)

Judgment for plaintiff, directing salé of mortgage and premises.


author: Woodruff, J.,

text:
    Coster v. N. Y. & Erie R. R. Co. and D. Drew.
    Four persons, joint owners of a vessel, leased her, and two of them afterwards brought suit for the hire.

      Held, 1st. That a legal action could only he sustained by all four suing together. 2d. That fewer than all might proceed upon equitable rights, and enforce them in equity.
    8d. That to entitle themselves to do so, they must show in their complaint facts which excused them from joining the other co-owners as plaintiffs, and in such case must join them as defendants, unless it be shown that they had ceased to have any interest in the matters in controversy.
    The complaint averred that the defendants had, some months after the lease was given, with intent to defraud the plaintiffs, purchased from the other parties interested, their shares in the vessel

      Held, 1st. That the suggestion of fraud was immaterial, since, as respected the plaintiffs, the defendants had a right to purchase those shares.
    2d. That the averment, of the sale of those shares, did not present any reason or excuse for not making the former owners of them parties, although it was a reason for proceeding in equity; it not appearing that they had transferred their interest in the hire which accrued prior to the sale of their shares in the vessel itself.
    A cause of action, to restrain some of the part owners of a vessel from disposing of her, in derogation of the rights of other part owners, being the plaintiffs, cannotbe joined with a cause of action for the hire of the vessel.
    This court, at General Term, in July, 1856, held, as above stated, on appeal from a judgment in favor of the defendants, upon demurrers interposed by them to the complaint.
   Woodruff, J.,

announced the judgment, and his opinion, in which all the Justices concurred, is reported, with the pleadings and proceedings, in 3 Abb. 322.


author: By the Court. Woodruff, J.

text:
    Peabody, et al. v. Bloomer, et al.
    In .an action against several for a debt due by them as partners, one of them set up as a counter-claim, a claim for damages sustained by him, by alleged misconduct of the plaintiffs, in the management of his affairs under an agency formerly held by them from him.

      ffeld, 'that this counter-claim was bad, because—
    1. If the demand were regarded as based on contract it was a fatal defect, that there was no mutuality between the two contracts, and such demand was due to Bloomer alone.
    2. If it were deemed to be based upon tort, then it was not connected with the subject of the plaintiffs’ action.
    Before all the Justices,
    July, 1856.
    This action came before the court, on an appeal by defendant Bloomer, from an order made by Mr. Justice Hoffman, sustaining a demurrer by the plaintiffs to so much of the answer to the complaint as set up, as a counter-claim, a demand of Bloomer alone against the plaintiffs. The reasons of Justice Hoffman, assigned in support of his decision, are reported in 3d Abb. 355. The character of the pleadings is sufficiently disclosed, in the opinion of Woodruff, J., who announced the judgment of the court, on the appeal.

      J. Moody, for appellant.

      H. G. De Forest, for respondents.
   By the Court. Woodruff, J.

This action is brought to recover money alleged to be due to the plaintiffs, in their own right, and as assignee of their co-partner, Flint, from the defendants as joint debtors, for money lent and advanced to the defendants, and paid, laid out, and expended for their use, as co-partners.

The defendant Bloomer, answering separately, among other defences, sets up a set-off, or counter-claim, in his own favor, individually, for damages sustained by himself by reason of the plaintiffs’ and the said Flint’s fraud and negligence, in this, that he appointed the plaintiffs and the said Flint his agents, under a power of attorney, to manage and to attend to his interests in California, which power of attorney, he avers, the plaintiffs and the said Flint received, and undertook to perform, keep and execute the trust, duties and obligations thereby given, conferred and imposed. By the fraudulent violation of their duty, in this respect, the defendant avers that he has sustained damages, which he insists upon as a set-off, or counter-claim, in this action.

We fully agree with the conclusion at which Mr. Justice Hoffman arrived, in the examination of the demurrer to this defence, at the special term, that, to an action against several joint debtors, for a debt due by them as copartners, one of them cannot avail himself, either by way of set-off or counter-claim, of such a defence. If the defence have any foundation, as very imperfectly, we think, exhibited in the answer, it belongs to Bloomer alone. If it can be regarded, under the averments in the answer, as arising upon contract, then it is a fatal defect that there is no mutuality between the two claims which are exhibited. If it be deemed a tort, as set up in the answer, then it is not so connected with the subject of the action that it constitutes any ground of recoupment; and in no respect is the defence such that in this action there can be a separate judgment against the defendants, who are jointly liable, and who do not and could not set up the defence upon which the defendant Bloomer relies. The case of Parsons v. Nash, (8 How. Pr. R. 454,) instead of sustaining such a counter-claim, appears to tend to the contrary.

Where one of the joint debtors pays the debt, that is payment for all, and any or all of them may set up the payment in bar. Here there is no pretence that either of the other defendants could have set up the defence in question. But, without pursuing the subject, it must suffice to say, that the elaborate opinion pronounced at Special Term, by Mr. Justice Hoffman, appears to us to be entirely sound in its conclusion, and it is unnecessary to enlarge upon the subject here.

The judgment appealed from must be affirmed, with costs.