text:
    Hewlett v. Brown.
    Where a party to an action is made a witness by his adversary, he is as much entitled to witness’s fees, as a condition to creating it his duty to attend and be sworn, as any third person.
    A six days’ notice to appear and be examined, and notifying him that, if he fail to do so, he will be liable as for contempt, and to have his answer stricken out, are not sufficient to authorize an order, (on his default to appear,) striking out his answer, or to punish him for contempt.
    (At Chambers,
    July, 1858.
    Before Bosworth, J.)
    The defendant moves to vacate an order directing his answer to be stricken out; which order was made under the following circumstances:
    On the 9th of June, the plaintiff caused a notice to be served on the defendant, requiring him to appear on the 15th, at 10 o’clock, A. M., before J. S. Bosworth, a justice of this Court, &c.; and “ be examined as a witness, pursuant to the provisions of the Code of Procedure for such purpose.”
    The notice further stated, “and if you refuse or neglect to attend, you will he liable to be punished as for a contempt of Court, and your answer stricken out; and we shall apply for such relief against you, and for such further and other relief as is provided for by said Code.”
    The defendant not attending on the 15th, another judge of the Court, on an affidavit of that fact, and of service of the notice, made an order, that “ the answer of the defendant herein be stricken out.” The defendant now moves to vacate' that order. This motion was founded, on the papers before named, and on an affidavit that he was neither summoned nor subpoenaed to attend, and that his fees for attending as a witness were not tendered, and that, he told the person serving the -notice he should not attend, unless his fees, as a witness, were paid.
   Bosworth, J.

No witness is obliged to attend Court, or before an officer out of Court, to be examined, unless paid the usual fees allowed by law, (2 R. S. 400, §§ 54, 56.) Sections 390, 391, 392, and 394, of the Code, enable either party to mate the other a witness, and prescribe the means for procuring and compelling his attendance. 1 think a party, when made a witness by his adversary, is as much entitled to fees, as a condition to creating a duty to attend and be sworn, as any third person.

Under the notice served on the defendant, he could not be punished for a contempt for not attending, unless first brought up on an attachment, or served with an order to show cause,—■ to the end that he might show, if he could, a sufficient excuse for not attending—such as sickness, or other inability.

The notice does not, in terms, state that a motion would be made on the 15th to strike out the answer, or punish him for a contempt.

When notice of a motion is necessary, it must be served eight days before the time appointed for the hearing. (Code, § 402.) The notice in question was served but six days. The fact, which created the right to have the answer stricken out, if any such fact exists, did not exist when the notice was served, but only occurred on the 15th, the day the order was made. Since its alleged occurrence, the defendant has had no opportunity to be heard in respect to it, except on this motion.

I think the order was irregular, because the defendant was not summoned to attend, and because his fees as a witness were not paid. Whether the answer could have been stricken out, on a motion made for that purpose on due notice, if witness’s fees had been paid, although no summons was served, is a question not before me. The proceedings, to punish for a contempt, or strike out an answer, must be based on affidavits, to be served with a notice of motion for an attachment, or to strike out the answer, according as the one relief or the other is sought.

The notice, actually served, did not advise the defendant, that a motion would be made on the 15th to strike out his answer, and if it did, it was too short to enable the plaintiff to then make such a motion.

If I supposed the Judge, who made the order, passed upon these questions, I should deem it my duty to deny the present motion, and leave the defendant to his remedy by an appeal. But I think I may consider, that the length of the service of the notice was overlooked, as a notice of trial and inquest often is, although in theory, and generally in practice, a parly is required to produce it, and prove due service of it, before an inquest will be permitted to be taken. The motion is granted, but without costs of it to either party. Ho point was made on the hearing of this motion that the defendant’s only remedy, is an appeal from the order he now seeks to vacate.


source: Caselaw Access Project

author: Bosworth, J.

license: Public Domain

text:
    Gelch v. Barnaby.
    A non-resident plaintiff, in an action to recover the possession-of personal property, took proceedings in the action, under § 209 of the Code, to procure the property to be delivered to her, and gave to the Sheriff the undertaking prescribed by that section; and thereupon the defendant obtained a return of the property, under §211.

      Held, that the plaintiff might be required to file security for costs, notwithstanding she had already given an undertaking, under and conforming to § 909. Whether the defendant, after obtaining a return of the property, can maintain an action, upon the plaintiff’s undertaking,—quaere ?

    (At Chambers,
    July, 1858,
    before Bosworth, J.)
    The defendant moves, that the plaintiff, being a non-resident, be required to file security for costs. The facts are stated in the opinion.

      T. W. Barnaby, for the motion.

      E. J. Porter, contra.
   Bosworth, J.

The defendant moves for an order, that the plaintiff file security for costs, on the ground that she has become a resident of Hew Jersey, since the action was comm enced. The motion is opposed on the ground that this action is brought to recover possession of personal property, and that the plaintiff gave an undertaking with sureties, such as is prescribed by section 209 of the Code. To this, it is answered, that the defendant required and obtained a return of the properly, by executing, with sureties, such an undertaking as is provided for, by section 211 of the Code.

The Supreme Court held, in Rogers v. Hitchcock, that a plaintiff in replevin, who had executed the proper bond, would not be compelled to give a further bond as security for costs, although not a resident of this State, (9 Wend. 462.) This was, probably, so decided on the ground, that a bond under 2 R. S. 523, § 7, was as broad as a bond under 2 R. S. 620, § 4; and that, by the bond first given, the defendant had been firmished with all the security, to which 2 R. S. 620, entitled him.

The Revised Statutes did not enable a defendant, in a replevin suit, to procure a return of the property to himself, by merely demanding it and giving prescribed security.

There is much, in the provisions of the Code, in support of the proposition, that, when a defendant, in an action to recover the possession of personal property, requires a return of it to himself and complies with section 211 of the Code, he thereby loses and is deprived of all right to bring an action for any purpose, on the undertaking given by the plaintiff to obtain the possession, pendente lite.

If the defendant succeeds, the only judgment he can recover, is one for costs. It may, at least, be said, that the Code does not in terms allow him to assess damages for the temporary interruption of Ms possession. (Code, 277.)

It is quite clear, that the rights of the defendant, in a suit upon the plaintiff’s undertaking, may be very different from tho'se of a defendant upon a bond given by the plaintiff in an action of replevin under the Revised Statutes. I think, therefore, that the plaintiff is not ■ exempted from liability to file security for costs, because she gave an undertaking under section 209 of the Code, nor because she does not intend to reside permanently in Hew Jersey. Security for costs must be filed in twenty days.


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

text:
    Kendall v. Hodgins.
    A statement made for the purpose of entering a judgment uniler sections 382 and 383 of the Code, which states as the facts out of which the debt arose; “that heretofore at the City of New York, I (Hodgins,) made my certain promissory note for the sum of two thousand dollars, payable on demand, and that I have not paid said note, and that I am justly indebted to the plaintiff, (Kendall,) thereupon, in the said sum of two thousand dollars,” is wholly insufficient to authorize a judgment to be .entered upon it. • '
    A judgment entered on such a statement, and an execution issued on such a judgment may be set aside, on the motion of a land fide purchaser of lands, on which the judgments an apparent lien, as to such purchaser, and the lands so purchased, and such lands be declared to be freed and discharged of and from the apparent lien of such judgment, and of and from any and every proceeding whatsoever, under and by virtue ofj or founded on such judgment.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, and Pierrepont, J.J.)
    Heard, Oct. 9;
    decided, Oct. 23, 1858.
    Appeal from an order setting aside a judgment and execution. This action came before the Court at General Term, on an appeal by the plaintiff from an order made by Mb. Justice Woodruff, on the. 8th of July, 1858, vacating a judgment entered in favor of the plaintiff, against the defendant, under sections 382 and 383 of the Code. The order was made on the application of H. F. Pohlmann, a bond fide purchaser from said defendant of lands, on which such judgment was an apparent lien, and which lands the plaintiff had caused to be advertised to be sold under an execution' issued on such judgment. The statement and confession, on which the judgment was entered, read as follows: “I do hereby confess judgment in this cause in favor of Josiah F. Kendall, for the sum of two thousand dollars, and authorize judgment to be entered therefor against me.
    This confession of judgment is for a debt justly due to the plaintiff arising upon the following facts.
    That heretofore at the city of New York, I made my certain promissory note for the sum of two thousand dollars, payable on demand, and that I have not paid said note. And that I am justly indebted to the plaintiff thereupon, in the said sum of two thousand dollars.
    Signed,
    John Hodgins.”

      Judgment was entered in this Court, on said statement, on the 5th of October, 1856, for $2000, with $5 costs, and a transcript of the judgment was filed, and the judgment was docketed in the office of the Clerk of Queens County, on the same day.
    The deed from the defendant and his wife to Pohlmann, is dated the 10th of October, 1856, and was recorded on the 28th of October, 1856, in Queens County; the real estate conveyed by it being situated in that county.
    Pohlmann’s attorneys were employed by him to search the title of the property so conveyed, and for lie'ns and encumbrances upon it, and they caused the Clerk of Queens County, to search for conveyances, mortgages, judgments, and other liens and charges upon the property. The Clerk made a search, and certified the result, and by his certificate it appeared that no judgment against Hodgins, docketed in Queens County, was found. Pohlmann believing the property to be free from any such encumbrance, and having notice of no facts' calculated to excite a suspicion to the contrary, bought the real estate, and took a conveyance of it, subject to a mortgage upon it for $1000, and subject also to a lease of the lots, for the price or sum of $2750. Pohlmann paid to Hodgins $1750 in cash, and assumed the payment of'the said mortgage as the balance of the purchase, money. The plaintiff having caused an execution to be issued on said judgment, and the lands, so bought by and conveyed to Pohlmann, to be advertised for sale, Pohlmann, on affidavits showing the facts before stated, and on notice, moved for and obtained an order vacating the said judgment as to him, and as to the lands so conveyed to him, and setting aside the execution, unconditionally, and an advertisement of a sale of said lands under said execution, and declaring the said lands to be freed and discharged of, and from the apparent lien of said judgment, and of, and from any and every and all proceedings whatsoever, under and by virtue of the same. Prom that order the plaintiff appealed to the General Term.

      H. D. Lapaugh, for the appellant,
    insisted that none but judgment creditors could move to vacate the judgment, that the plaintiff, who was a mere grantee under a deed containing full covenants that the lands conveyed were free and clear of all encumbrances, (except the mortgage and lease recited in it,) was not in a position to make such a motion, and that the execution could not be set aside absolutely.

      J. B. Scoles, for the respondent.
   By the Court. Bosworth, Ch. J.

The statement on which the judgment was entered is insufficient. (Chappel v. Chappel, 2 Kern. 215.)

H. F. Pohlmann, who moved to vacate it, is a bond fide purchaser of the premises on which it is an apparent lien, and which the plaintiff had caused to be advertised to be sold under an execution issued on such judgment.

The effect of an insufficient statement, or who may move to vacate a judgment entered on a statement which does not authorize such entry, the Code has not declared. (Code, §§ 382,383, 384.)

In Dunham v. Waterman, 17 N. Y. R. 14, Selden, J., in speaking of the section of the Code, which prescribes the particulars essential to a sufficient statement, and of its design and meaning, employs this language:—

“ The provision does not relate to a mere matter of form, or the manner of conducting a judicial proceeding, but is one which affects substantial rights. It virtually constitutes a condition precedent to the right of the party to confess the judgment at all. Although the Code does not, in terms, enact, as was done by the act of 1818, that a judgment confessed, without a compliance with its provisions, shall ‘be decreed and adjudged fraudulent ’ in respect to ‘ other bond fide judgment creditorsyet, considering the object in view, it must be plain that such must be its meaning.”

Section. 6 of the Act of 1818, declares that if a judgment be confessed without complying with the provisions of that act, “such judgment shall be taken, decreed, and adjudged fraudulent, as respects any other bond fide judgment creditors, and every bond fide purchaser for valuable consideration of any lands bound or affected by such judgment."—Sess. Laws of 1818, chap. 259.

If the object and meaning of the two statutes are the same, then it follows that the judgment in question is as absolutely fraudulent, as against a subsequent bond fide purchaser, as against a subsequent judgment creditor. The right of the former to be relieved against it is as perfect as that of the latter.

It is settled that a'judgment creditor may obtain relief against such a judgment by motion: Chappel v. Chappel, and Dunham v. Waterman, supra. Relief was granted on motion, because that is held to be an appropriate proceeding to obtain such relief, and because a judgment creditor is a person whom the statute was passed to protect.

But when it is once conceded, or is established, that a bond fide purchaser is protected by it equally with a judgment creditor, no good reason can be assigned why the former should not be relieved by the' same kind- of proceeding, in which relief will be granted to the latter.

The general rule is, that no one except a judgment creditor can come into Court to obtain relief against a transfer made, or judgment confessed by his debtor, as being a fraud upon creditors. The general rule is not that a creditor at large cannot obtain relief by motion which he might) in such a case, obtain by action, but that he cannot be heard at all. But a party, who, by statute, is entitled to particular relief, can obtain it by motion, when that is a proceeding in which it is proper for the Court to examine the matters to be considered, and to grant the desired relief.

If a bond fide purchaser for a valuable consideration cannot obtain relief by motion, it is not apparent that he can obtain any by action. The objection that he is not a judgment creditor, if of any force, is as fatal to his right to maintain a suit, as to make a motion. If held a fatal objection to his right to maintain an action, it must be on the ground that the statute was not designed for his protection.

The Act of 1818, in terms, protected him as fully and absolutely, as it did a judgment creditor. In that respect it created an exception to the general rule that no person, except a judgment creditor, can institute a suit to set aside a transfer or charge made or created by a debtor, in fraud of his creditors.

But if the óbject and meaning of the provisions of the Code, now under consideration, are the same as that of the Act of 1818, the purchaser should be permitted to resort to the same remedies as the judgment creditor. A proceeding, by motion, to set aside an unauthorized judgment, may always be taken by any person, whose right, to be relieved against it, is absolute and perfect.

If the judgment could be treated as absolutely void for defects appearing on its face, so that a purchaser, at a sale under an execution issued on such a judgment, could not acquire any title, it might not be necessary for the protection of a bond fide purchaser that it should be vacated. But that view would apply with equal force to a judgment creditor, and if entitled to consideration, would tend to the conclusion that the interposition of the Court was not required for the protection of either.

But the Courts have not acted on that view of the matter, when a subsequent judgment creditor has moved to vacate such a judgment. We think the true view is, that a subsequent bond fide purchaser for a valuable consideration, is entitled to the same relief, and may obtain it, by the same mode of procedure as a subsequent judgment creditor. And that as Pohlmann’s character, as such a purchaser, is not questiohed, it was proper to , grant to him, upon motion, the relief to which he is entitled. (Martin v. Martin, 3 Barn. & Ad. 934; Reed v. Bainbridge, 1 Southard, 351; Bonnell v. Henry, 13 How. Pr. R. 142; Barrow v. Bispham, 6 Halsted, 110; Howland v. Ralph, 3 J. R. 19; Seaving v. Brinkerhoof, 5 J. Ch. R. 329.)

The authorities, cited in the opinion of Judge Hoffinan, in connection with those to which we have referred, seem to us to sustain the practice pursued in this case. The order, therefore, will be so modified, as to set aside the said “execution,” and all proceedings had under it, “ so far as they relate to, or affect the said real estate,” and in all other respects will be affirmed, with $10 costs.

Hoffman, J.

The principal question is, can a purchaser,

for a valuable consideration from a judgment-debtor, without actual notice of the existence of a judgment by confession, but misled, after due diligence, into a belief that it did not exist, obtain relief, upon motion, against such a judgment, on the ground of its being fraudulent and void?

The judgment in the present case is undoubtedly void as to every person entitled to question it. The statement is insuffi.cient, and such as to render the (confession) totally inoperative, and hable to be deemed and adjudged fraudulent as to bond fide judgment-creditors.” The condition precedent on which a confession can alone be supported, has not been complied with.” (Dunham v. Waterman, Ct. of App. 6 Abbott, 257; Chappel v. Chappel, 2 Kernan, 215.)

The 3d chapter of Title 12 of the Code, under the head of “confession of judgment without action,” prescribes in what cases the confession may be made (§ 382); the essential particulars of such statement, and that it shall be verified and may be filed (§§ 383, 384). . It is silent as to the parties who may take advantage of any omission or violation of the requisites of the statement, or other directions.

The statutory provisions of 1813 and of 1830, regulated the course upon confessions to a certain extent, but are equally silent as to the parties entitled to interfere, or as to whom the defective statement shall be void. (1 R. L. 416, § 3; Ibid, p. 501, § 5; 2 R. S. 1830, 360, § 10.)

In 1818 it was enacted, that if the plaintiff, in any judgment "by confession on warrant, omitted to file the specification or statement therein prescribed, “such judgment should be deemed and adjudged to be fraudulent as respects any other bond fide judgment-creditors, and every bond fide purchaser for valuable consideration.” (Laws, 1818, ch. 259, § 8.)

I have found the following cases, expounding or depending upon this act: Lawless v. Hackett, 16 John. Rep. 149; White v. Williams, 1 Paige Rep. 502; Brinkerhoff v. Marvin, 5 John. Ch. Rep. 320; Seaving v. Brinkerhoff, Ibid, 329; and James v. Morey, 2 Cowen, 246.

A purchaser under a junior judgment was held within the act (1 Paige, 506). And a voluntary assignee for the benefit of creditors generally, was held not within it. He was not a purchaser for a valuable consideration, in the sense of the act. The term purchaser was used in its common and popular sense. (5 John. Ch. Rep. 329.)

In James v. Morey, Justice Woodworth considered that a mortgagee was a purchaser under the act, and Chief-Justice Savage held otherwise. The former was of opinion that notice of the judgment was of no importance. The party had a right to consider it fraudulent. If notice of such a judgment was a substitute, the statute would be a nullity.

It has escaped attention (as far as I am aware) in all the cases, that this statute was repealed in 1821 (Sess. Laws, 9 Eeb. 1821, ch. 38). It was also repealed in the general repealing act of 1828 (3 R. S. 130, § 265). And Ch. J. Savage remarks, “that when the Courts carried it so far as to require every item of the plaintiff’s demand to be stated in the specifications, the Legislature seem to have considered the remedy worse than the disease, and repealed the act” (2 Cowen, 314).

Yet we find it to be settled law, by the cases in the Court of Appeals referred to, that the object of the Code, and of the Statute of 1818, was the same; that the particularity exacted by the latter, is requisite under the former; and that a judgment confessed without a compliance with the provisions, is as void and fraudulent under the Code, as it was under the Statute. As to whom it is so void, is left an open question, except as to judgment-creditors.

Whatever may have been the motives for repealing the Act of 1818, the question remains: Did the statute give originally to bond fide purchasers a right which they never possessed before, or, upon general principles, would not possess, to interfere with and procure the cancelment of a judgment fraudulently confessed? or, was the statute only an enumeration of those who, being entitled before, upon general principles, should be entitled under the act, when its requirements were neglected or violated ?

In my judgment, the latter is the true conclusion, and is warranted by settled principles and authorities of the common law.

The writ of audita querela was anciently the mode of obtaining relief against judgments, either by a party to the record, upon matter which he could not have pleaded, or by strangers (5 Taunton, 558; 2 Bingham, 41; 2 John. Cas. 258; Ibid, 227). So late as 1824, it was said by Best, J., that it was neither an obsolete nor difficult proceeding. (2 Bingham, 41.)

But it has been superseded to a very great extent, if not entirely, in our State, by a motion to vacate the judgment; upon, which, whenever the question offered is not clear, an issue may be directed. In Wardell v. Eden (2 John. Ca. 258), however, the Supreme Court left the party to his writ of audita querela, in a case of disputed facts; and in Brooks v. Hunt (17 John. Rep. 484), it was said not to be an uncommon thing to refuse the relief in a summary way, on motion, and to put the party to this writ,

Now it was settled at the common law, that if one man acknowledge a statute merchant or statute staple to another, who afterwards releases it; and the conuzor aliens his land to a stranger, the stranger may have audita querela against the conuzee after execution sued out, though not before. (17 Ed. 3. 27 b. cited 3 Viner Ab. 321, with other cases from the year books.) • These authorities are recognized in Waddington v. Vredenbergh, (2 John Ca. 229.)

So a purchaser could have this writ to compel a judgment or statute creditor to comprise in his extent, every parcel of land bound by the judgment or statute, although in the hands of various feoffees or tenants. He was to make the debt out of the rents and profits, and the various holders under the conuzor or judgment debtor, were thus by the common law made to contribute proportionately to the payment (Brookes Ab. Tit. Audita Querela. Coke’s Reports, 3, 14 b. Viner’s Ab. vol. 3, p. 339, fol. 9. Ibid. 343, fol. 5, Ibid. 349 M. Pl. 1.)

The statute 16 and 17 Oar. 2d. cap. 5, made perpetual by 22 and 23 Oar. 2, cap. 2¡ recited this to be the rule of the law; and provided, that where a judgment, statute, or recognizance had been extended, it should not be avoided or delayed, because part of the lands extendible were omitted out of the extent; saving, however, to the party whose lands were extended, the right of contribution from those whose lands were omitted.

In Prynne v. Houghton, (2 Ventris 104) it was held, that the statute only applied, when the extent had been executed, and the tenant brought audita querela. But it did not apply before execution; and hence upon a scire facias to revive a judgment, one tenant could plead that others were not warned.

So in one of the cases cited in the abridgements before referred to, it was held that this writ did lie on behalf of an alienee of a conuzor in a statute staple, to compel the conuzee to extend lands still held by the conuzor, before his own could be resorted to. And this ancient authority is the foundation of the rule now settled, that a Court of Chancery will compel the sale of premises subject to an incumbrance, in the inverse order of alienation. (Clowes v. Dickenson, 5 John Ch. Rep. 239; Gouverneur v. Lynch, 2 Paige 300; Aichen v. Maclin, 1 Drury & Walsh, 621.)

Nothing can be more striking than these old authorities to show a preventive power in a court of law, through the medium of its own process, to avert the infliction of a wrong upon even third parties, by color of its own judgments, or execution under them, or under instruments, to enforce which process from the Court must be resorted to.

In Harrod v. Benton (8 Barn. Cres. 217) Lord Tenterden said, “ I think the Court has a jurisdiction over a warrant of attorney, ¿which it may exercise at the instance of any party who has an interest in supporting it, or setting it aside.” The applicant was, it is true, an execution creditor»

In Martin v. Martin, (3 Barn. & Adol. 934) a landlord was allowed to impeach a judgment confessed by a mother-in-law to her son-in-law. There was misrepresentation and deceit on the part of the debtor and creditor, which induced the delay of a distress. Taunton, J., said, “ I also doubted whether we could interfere at the instance of a third person, but I think in this case the Court may do so by virtue of its general jurisdiction over warrants of attorney, and because this is a fraudulent transaction. The landlord, by his lien, would have been quasi owner of the property, and in that respect he may be considered for the present purpose as representative of the debtor."

In Reed v. Bainbridge, (1 Southard’s Rep. 35) it was expressly decided that such an application may be made on behalf of a bond fide purchaser from the judgment debtor.

In South Carolina there is a statute that confessions may be taken before a clerk, in a manner prescribed, and judgment entered thereupon. It is then provided that every person aggrieved by such confession, may file a suggestion, and impeach the judgment. In Sutton v. Pettus, (4 Richardson’s Reports, 163) it was held, that a purchaser from the judgment debtor was within the act.

In both these cases, that of Howland v. Ralph, (3 John. Rep. 20) is referred to as an authority, that a purchaser could have this redress, McNee was, there, a purchaser from the defendant, the judgment debtor by deed in 1804. A judgment was docketed in favor of the plaintiff in 1803. The motion was to set aside the execution, on the ground of the debt being paid, and that the judgment was collusively kept in force. The affidavits of the plaintiff met these charges fully, and insisted that the bond was stiff lawfully due. The Court disposed of a question of regularity against McNee, and then said, that if there was fraud, (and there was color for the suggestion on the affidavits) he was undoubtedly entitled to relief. But it could not interfere effectually upon the present motion. The sheriff had sold under the judgment, and an order staying the delivery of the deed had been made.

This was extended to the next term, “ so as to give McNee an opportunity to apply in the meantime to the Court of Chancery for relief, or to put the question of fraud and collusion in a train for trial at law, by an issue in fact.”

This case fully sustains the right of a purchaser to affirmative relief in some form, and indicates strongly that it can be had by an issue directed in the Court of Law.

Swan v. Saddlemire, (8 Wendell, 676,) determined that case will lie by a purchaser against the plaintiff and defendant in a judgment for fraudulently setting it up as unsatisfied, when it was paid, and causing an execution to be issued thereon against the land of the purchaser.

In Neusbaum v. Keim, (7 Abbott, 23 C. P. Gen. Term,) it was held that a judgment founded upon an insufficient statement, was void as to the debtor’s grantees, although it might be valid as to the debtor himself. The case arose upon an action by the judgment creditor, to set aside a conveyance of real estate as fraudulent, and the complaint was dismissed.

In Bonnell v. Henry, (13 Howard Pr. Rep. 142,) Mr. Justice Haréis states, that he does not understand the right to have an illegal judgment removed, to be confined to a judgment creditor. Of course he was not intimating that other creditors possessed it.

It is true, that the same careful Judge held in Beekman v. Kirk, (15 Howard, 230,) that a voluntary assignee for creditors at large could not resort to such a motion. But there appears to me to be a marked and important distinction between such an assignee, and a purchaser for valuable consideration; and that the learned Judge would be wholly free from inconsistency if he granted the relief on behalf of the latter. Indeed, Chancellor Kent, in a case before cited, arising under the act of 1818, takes and acts expressly upon this distinction. (Seaving v. Brinkerhoff, 5 John. C. H. R. 329.)

It is urged that the grantee of a judgment debtor, can stand in no better position than his grantor; and hence, upon the concession that the debtor was bound by the judgment, the grantee cannot impeach it.

But in numerous instances a bond fide purchaser has a better standing, and is entitled to higher rights and immunities than his grantor, or volunteers under him possess.

Under the Statute of 27 Elizabeth, it is the English rule to this day, that a purchaser for valuable consideration, even with notice of a prior voluntary deed, acquires the better title, and can set it aside. (Cathcart v. Robinson, 5 Peters’ U. S. Rep. 264; Newman v. Rusham, 9 Eng. L. & Eq. Rep. 410.) The rule as laid down by the Supreme Court of the United States is, that the voluntary conveyance is merely presumptively fraudulent, as to a subsequent purchaser without notice. The presumption there was not repelled.

Now under either rule, the grantor himself could not set aside the conveyance; neither could his heir or devisee. (Jackson v. Garnsey, 16 John. 189 ; Anderson v. Roberts, 18 Ibid, 515.)

So a grantee in a subsequent voluntary deed cannot avoid a prior voluntary grant, (Roberts on Fraudulent Con. p. 646;) and it is held in the Queen’s Bench, that a purchaser from an heir or devisee of the grantor could not avoid the voluntary grant of the ancestor. (Newman v. Rusham, 17 Queen’s B. Rep. 723.) Yet it is clear that a purchaser for value from a voluntary grantee becomes vested with a better title than his grantor, and renders the voluntary deed, in effect, a purchase. (Ibid.)

It is justly observed by Judge Sutherland, that a voluntary conveyance is a deed without any valuable consideration; and the character of purchase or voluntary is determined by the fact whether anything valuable passed between the parties. (4 Wendell, 304.)

Again, a deed may be asserted as fraudulent in fact, by a bond fide purchaser, while it remains valid as to the grantor and bis heirs, (Wadsworth v. Havens, 3 Wendell, 411.)

And so, a purchaser for valuable consideration without notice, acquires a title, although he buy of one who obtained a conveyance by fraud, and had no title. (Jackson v. Walsh, 14 John. Rep. 407.)

These examples show how extensively the law protects and aids a bond fide purchaser, when his grantor would be left without redress.

It is true that in the vast majority of cases, such applications are made on behalf of judgment creditors. But many circumstances will account for the infrequency of a motion by a purchaser. He usually is apprised by his searches, of judgments and procures their removal, or regulates his purchase money accordingly, or if in possession, is content to wait and resist any action on the part of the judgment creditor,

It is an argument of no little weight against this application, that the invalidity of the judgment appears upon its. face, and that the power of a Court of Equity cannot be invoked to remove or cancel an instrument so void, upon the ground of its being a cloud upon the title. (Craft v. Merrill, 14 N. Y. Rep. 456; Heywood v. The City of Buffalo, ibid, 542; Ward v. Dewey, 16 ibid, 520; Scott v. Onderdonk, 14 N. Y. Rep. 9.)

But, if this doctrine is applicable to motions to set aside judgments, under the common law power of a Court over its records, it would be in general as applicable when a prior judgment creditor moves, as in other cases. Particularly would it be so, when a purchaser, under a prior judgment, applies, who it has been held may do so. (1 Paige 506, before cited.)

I apprehend that an exception to this rule exists in the case of judgments, and upon the principle, that a Court possesses power and control over its own records, so that it may always remove and cancel them, when they are fraudulently obtained or supported, and when innocent parties are aggrieved by them, who have not become expressly, or by clear legal implication, bound by them. (20 John’s Rep. 296; 2 John. Ch. Rep. 144; 12 Wendell, 222; 5 John. Ch. Rep. 324 ; 9 John. Rep. 80; 6 Halstead’s Rep. 110; Reading v. Reading, 4 Zabriskie’s Rep. 361.) When the facts are plainly made out, the Court decides at once;’ when they are doubtful and contested, an issue is directed. The 72d section of the Code, abolishing feigned issues, sanctions such course in the form there prescribed.

My conclusion is, that the order should be affirmed, with the modification that the execution and levy be set aside, only so far as relates to the premises in question.


author: Bosworth, Chief-Justice.

text:
    Laura Keene v. John La Farge.
    If a sole defendant die pending an action after issue joined .therein, and before trial, Ms personal representatives have no right to an order requiring the plaintiff to continue the action against them, as the defendants therein. In such a case, the plaintiff, at Ms election, may require it to be discontinued.
    (Special Term,
    October 28, 1858,
    before Bosworth, Ch. J.)
    The defendant having died, leaving a last will and testament, by which Louisa La Large and John Binsse were appointed his executrix and executor, and letters testamentary having been issued to them, they, on an affidavit of these facts, and on the pleadings, now move “for an order to continue this action in the name of Laura Keene, as plaintiff therein,” against them as such executrix and executor, “ as defendants therein, and to declare said action to be in the same plight and condition as the same was at the time of the death of John La Large.” The action was at issue on complaint and answer when La Large died. The complaint sets out a written and sealed lease, executed by John La Large, to the plaintiff, of the Metropolitan Theatre, and alleges performance of all the covenants on her part, and that John La Large, during the term granted, “ wrongfully, and in violation of the covenants of said lease, evicted this plaintiff from said premises, and refused to fulfill the covenants of said lease.” The answer denies that she kept the covenants on her part, and avers that she failed to pay the rent when due, and was, for that cause, dispossessed by summary proceedings, pursuant to statute, which are set forth.

      H. A. Cram, for the motion.

      E. L. Hearne, contra,
    insists, 1st. That the cause of action does not survive; and 2nd, That the executrix and the executor cannot make such a motion, and that the plaintiff alone can make it; and 3rd, That she does not desire to have the action continued.
   Bosworth, Chief-Justice.

In so far as this action proceeds on the idea of a breach by John Lafarge of his implied covenant of quiet enjoyment by the plaintiff (3 Kernan, 151), it sounds in contract, and continues. In so far as it is based on the allegation of a wrong done by John Lafarge- to the rights of the plaintiff, as his lessee, it continues by force of section 1 of 2d Revised Statutes, p. 447.

The only other question is, whether the representatives of the deceased defendant may move for and obtain an order continuing the action, or whether the option is given to the plaintiff alone to move, or to omit to move, for such an order? The only authority for such a motion is that furnished by section 121 of the Code. By that, after the lapse of a year from the death of a party, the Court cannot allow the action to be continued, except upon “a supplemental complaint;” such a proceeding cannot be taken by a defendant.

Prior to the Code, the death of .a sole plaintiff or of a sole defendant, before verdict or interlocutory judgment, abated an action at law, and it could not be continued by or against the representatives of the deceased (2 R. S. 386-389): The Chancellor decided, in White v. Buloid (2 Paige, 475), that the personal representatives of a sole complainant who had died, might, on their own motion, be substituted as complainants under section 115, 2 Revised Statutes, p. 184. The language of this section is as general as that part of section 121 of the Code, which applies to motions made within a year after the death of a party, with the exception that section 115 applies only to the case when a complainant shall die.” But I find' no provision in the Revised Statutes broad enough to enable the representa? fives of a deceased sole defendant to -make such a motion, Section 126 (120) evidently applies to the case of the death of me of two defendants, and not to the death of a sole .defendant.

If only the representatives of such a deceased party can make a “ motion," within one year after the death, as cap be allowed

after the year, “on a supplemental complaint,” to continue the' action, then it would appear that section 121 was designed to confer on the representatives of a deceased sole plaintiff only, the election to continue the action or to abandon it, and that it was not designed to enable the representatives of a deceased sole defendant to compel the plaintiff to continue the action against his will: Such a construction does not deprive the representatives of a deceased sole defendant of any rights which they had prior to the Code, nor confer on the representatives of a deceased sole plaintiff any rights which those of a deceased sole “complainant in a suit in equity” did not possess, although, in actions at law, it enlarges the remedies of the representatives of a deceased sole plaintiff. This construction accords with the vieyr taken of the Revised Statutes by Chancellor Walworth, in Souillard v. Dias (9 Paige, 393).

Motion denied, without costs; but an order may be entered, that the action be discontinued, unless the plaintiff serve within ten days after written notice of the order to be entered hereon, a consent that an order be entered continuing the action.


author: By the Court. Woodruff, J.

text:
    William Chaine v. Lewis O. Wilson and Others. Four Other Suits v. The Same Defendants.
    A defendant whose family is occupying, and for several years has been occupying, a dwelling-house in another State, hired by him, and who habitually passes the night of each day, and the Sabbath, with his family, is a non-resident of the State of New York, within the meaning of the statutes of the latter State, authorizing an attachment, in an action, of the property of a non-resident defendant.
    On such a state of facts, he is a non-resident, although he is in business as a merchant in New York city, and passes eight hours of every business day there, (unless sick, or absent on business of his firm,) and has all his business capital in such business, keeps his bank account there, and had selected such family residence on account of its proximity to the city, and for economy in living, and although he might be served with process in such action, any day, during business hours.
    Whether a man’s absence from his family be for eight hours in each day, or six days in each week, if he has a family living in aneighboring State, for whom he provides, to whom he resorts for comfort, relaxation and repose, and with whom he abides whenever the immediate demands of his business upon his attention will permit; whenever sickness disables him from conducting that business;, and when those days successively return on which business ceases, and man rests from his labor; he resides in such neighboring State, where (in every proper sense, as understood no less by those who are learned in the law, than by the common intelligence of every-day life,) is his home.
    Where one has a 7wme, as that term is ordinarily used and understood among men, and he habitually resorts to that place for comfort and rest, relaxation from the cares of business and restoration tq health, and there abides in the intervals when business does not call; that is his residence, both in the common and legal meaning of the term: When a man has such a home, and habitually uses it as such, and a place of business in another State, such place of business is not his residence, within any proper definition of the term.
    It is not enough that one intends to change Ms place of residence: The intent and the fact of such change must concur. Nor is it enough that he intends to change his residence, and sincerely believes that what he has done amounts in law to a change of his residence. His opinion will not produce that result, nor affect the question, if the actual change have not taken place.
    Upon an appeal from an order, founded upon a decision, of a question of fact, upon conflicting affidavits and doubtful circumstances, the order should not be reversed, unless the Appellate Court is satisfied that the decision of the Judge who made it, upon such question of fact, is clearly wrong.
    Order affirmed, with costs.
    (Before Bosworth, Ch. J., and Hoffman, Slosson, Woodruff, and Pierrepont, J.J.)
    Heard, Nov. 21;
    decided, Dec. 18, 1858.
    This action comes before the Court on an appeal by the defendants, from an order made on the 9th of October, 1858, by Mr. Justice Hoffman, in five several actions in this Court, denying a motion made by them to discharge attachments, that had been issued against the property of the defendant, Wilson, on the ground that he was then a resident of Korwalk, in the State of Connecticut.
    The motion was made on affidavits, which, (as the defendants claimed,) established that Mr. Wilson was a resident in the city and State of Kew York, at the time the attachments were issued, In the suit brought by Chaine, the attachment was issued on the 13th of April, 1858.
    In that of Wütkr and others, it was issued, May 23d, 1858. In that of Parker and others, on the 4th of June, 1858. In that of The Middlesex Company, on the 18th of June, 1858. In that of Paige and others, on the first of July, 1858,

      The motion to discharge the attachments was based on an affidavit made by Mr. Wilson, on the 30th of July, 1858, and on five other affidavits. The affidavit of Wilson is in these words, viz.
    “ City and County of New York, ss.:

      Lewis 0. Wilson, one of the defendants above named, being duly sworn, saith: That an attachment has been issued in this action against the defendant, Lewis 0. Wilson, and levied upon property which belonged to him, on the alleged ground that at the time of the issuing of such attachment on the 25th day of May, 1858, he was not a resident of the State of New York, but resided in the State of Connecticut.
    That deponent was for some years a resident of Norwalk, in the last mentioned State, having gone to reside there on a farm belonging to his wife, when he retired from business in the city of New York; and in the year 1856, he resolved to become a permanent resident of the city of New York.
    That in that year he conveyed to his fourth son Oliver, on his attaining his majority, all the real estate deponent owned at Nor-walk, together with all the personal property and moveables connected therewith. And the said Oliver took possession of said property, and the farm aforesaid, and what had been the homestead, and assumed the entire and exclusive control of each and every of them, as his own, and has continued to hold and own them, and each and every of them, from that time to this.
    That at the time of such transfer deponent, with his wife and youngest boy, now aged about seven years, resided together in said homestead, and composed then, as they have since, his entire family or household, his children, other than said youngest, not dwelling with him.
    That soon after deponent had ceased to be a resident of Nor-walk, and up to the present time, his wife and child have been for long periods at Norwalk, in the house of his son Oliver; but deponent had a room and was a permanent boarder at the Astor House for a long time prior to the fall of 1857, and spent most of his time in this city, going to Norwalk usually on Saturday, andremaining over until the following Monday, and sometimes going on Wednesday and returning the next day, though his visits of the latter kind were not common.
    That in order to select a date, in reference to which the question of evidence may be presented in this suit, and not to admit that his residence was different at any prior date, deponent states that there was no time in the years 1857 or 1858, when, according to his knowledge, information, belief, opinion or intent, he was a resident of the state of Connecticut, but during the whole and any part of said 1857, and so much of 1858 as has elapsed, he has been, and now is, as he believes, a resident of the city and State of Eew York.
    That in the fall of 1857, when the defendants became affected by the commercial embarrassments then so general throughout the United States, it was suggested to deponent that some question might be raised as to his place of residence, and he met the suggestion by the confident declaration, that no such difficulty could arise, as he was a resident of this State. To this position deponent then adhered, as he now adheres, in good faith.
    That one of the persons who spoke to him on this subject was Eathan Hendrix, a clerk in the house of defendants, who advised that, notwithstanding deponent’s confidence on the point, it was better that all doubts concerning it should, if possible, be removed by deponent’s taking his wife and son away from Eorwalk, keeping them domiciled here, and establishing the ostensible, as well as the actual character of his residence, by unequivocal indications.
    Influenced by such advice, deponent, in the fall of 1857, engaged for himself and said family a parlor and bedroom, at the St, Eicholas Hotel, in said city of Eew York, and they with him took possession of and occupied said apartments as their only home, from the Igth day of October, 1857, until about the twenty-second day of January, A. D., 1858, when deponent’s said youngest bóy being ill, and Doctors Pratt and James 0. Smith, of said city, being called to attend him, they advised that said boy should, for the benefit of his health, be taken to the country, for which reason (and for which alone,) deponent’s wife went with said child to the residence of Oliver, aforesaid, in Eorwalk.
    That deponent, a few days afterwards, went to see them, intending the visit to be temporary. That while in Norwalk he became indisposed; afterwards, seriously ill, and continued to be inca pable of resuming business, until towards the latter part of May, A. D., 1858, for which reason he was detained, and he continued at Norwalk, without, however, entertaining at any time the intention or idea of ceasing to be a resident of New-York, but intending all the time that his residence should, as he believed did, continue in that city.
    That in the month of March, A. D., 1858, deponent’s wife returned from Norwalk to New York, with the aforesaid son, and resumed the apartments in the St. Nicholas Hotel, which they had before occupied, deponent expecting and promising that he would follow them to said city, in a few days, but his illness prevented his doing so.
    That from the time they left said hotel, in January, until the aforesaid return thereto, in March, some of their personal property had been left there, from the intent and design that they should resume possession of it on their contemplated return from Norwalk.
    That about the first of April deponent’s said wife went with said' boy to Norwalk, aforesaid, and has remained there since with her said son Oliver; but, since deponent was able to remain in the city, and give any attention to Ms affairs, viz., since the latter part of May, he has been residing at the aforesaid St. Nicholas Hotel, visiting Ms wife and child, at Norwalk, occasionally, and having recently passed some time at Saratoga Springs, for the benefit of his health.
    That at the last mayoralty election held in this city, in November last, tMs deponent gave and deposited his vote, as an elector, of the city and county of New York, at the polls in said city, believing then, as he now believes, that he had full legal right to do so.
    That the various visits made either by deponent’s wife or Ms child, or himself, to Norwalk, as hereinbefore described, were all in fact, and all intended to be temporary sojoumings for the pleasure of social intercourse with their son, or other members of their general family, or change of scenery or air, or the safety or improvement of health, but all of them with the intent and determination, in good faith, that deponent’s residence in New York, and the, right or duties connected with it should remain unaffected and unaltered by such sojournings.
    That the chief reason why deponent did not have any tenement other than in a hotel, was that it has long been his resolution not to occupy a house in Hew York, with his family, until he owned one, but to have a home in a hotel, and he has conferred with several of his friends, and made efforts to obtain an eligible- property in the city, wherein to have himself and his family permanently established.
    And this deponent lastly saith, that since the year 1846, when he resumed mercantile business, in the city of Hew York, his business has been at all times in said city.”

      Nathan Hendrix, in his affidavit, deposed that he had read the affidavit made by Wilson, and “ that deponent, in the fall of 1857, had a conversation with said Wilson, and gave him advice, the substance and purport of which is correctly stated in said affidavit.
    That deponent heard at the time of Mrs. Wilson leaving the St. Hicholas Hotel, with her son, for the improvement of such son’s health, as stated in said Wilson’s affidavit.
    That a few days after her departure, said Wilson informed deponent of his intention to visit his family at Horwalk; saying, in substance, that he thought he should have some recreation, and that he expected to be absent about ten days, but not to exceed, at the utmost, two or three weeks. That as the defendants had then suspended regular payments, in their business, the presence of the said Wilson was not deemed so important as it had been on former occasions-; and the embarrassment of the house had given him so much uneasiness, that deponent also thought said Wilson required respite from labor;
    That in the month of April, A. D. 1858, deponent saw said Wilson at' Horwalk; and deponent states that said Wilson was then quite unwell, and incapable, in deponent’s opinion, of attending to his ordinary affairs and business by reason of indisposition.”

      Robert B. Coleman, made an affidavit, stating, “that previously to the 12th day of October last,” (1857,) “ said Wilson engaged rooms at the St. Hicholas Hotel aforesaid for himself and his family, and he removed with them to said rooms on said last mentioned day. Such family consisted of Mr. Wilson’s wife and child, and said Wilson occupied said room with them regularly and uninterruptedly from said day until the 12th day of January last, when in consequence of the child’s illness, as deponent was informed and believes, Mrs. Wilson and such child went to Connecticut.
    Mrs. Wilson and the child returned to said hotel on the 22d day of March then next; and on the 80th day of March following she left the hotel with the child to go again to Connecticut, as deponent was also informed and believes;”
    ■ “ James 0. Smith, of said cityj being duly swdrh¡ saith: That he is a practising physician in said city, and has been such for thirty-three years. That on the 17th, 18th; 19th and 20th days of January last, he was called to attend in his professional capacity a child about ten or eleven years of age, who was, as • deponent was informed and believes, a son of L. O. Wilson above named. Deponent found the boy with his mother in apartments at the St. Nicholas Hotel, in the city of New York. The said child was taken by his mother to Connecticut for the change of air, and other benefits which deponent thought would result from the removal; such advice was given professionally, and as the spontaneous result of deponent’s observation and judgment.”

      " Ira Gregory, being duly sworn, deposes and says: That he resides in the town of Norwalk, in the State of Connecticut, and is a physician duly licensed to practise medicine and surgery, and knows Lewis 0. Wilson, one of the defendants named in each of the above entitled actions. And deponent further says, that he visited the said Lewis 0. Wilson at Norwalk, aforesaid, in a professional capacity, several times during the months of February and March last.
    That at these several times or visits in February and March, 1858, deponent found said Lewis 0. Wilson suffering with very severe rheumatism, accompanied with tumors about the head and neck, and a stiffness and pain in his neck, and incapacitated to attend to any business away from his room; that said Lewis 0. Wilson was then and there advised by deponent not to return to New York until he recovered himself from the severe attack of rheumatism he then labored under.

      That deponent believed and looked on the said Lewis 0. Wilson as being a citizen and resident of New York for the last three years, or since he sold and conveyed his homestead property in Norwalk to his son, Oliver Wilson.
    That said Lewis 0. Wilson was not in the habit of attending town meetings or elections in this State since he conveyed his said property as above mentioned.”
    Of the opposing affidavits, several were made by residents of Norwalk, Connecticut, and were to the effect, that Mr. Wilson has resided in Norwalk for many years past, and that the affiants had frequently seen him at his residence there, during the winter and spring, and summer of 1858. That they had also, up to the date of their affidavits, (August and September, 1858), every few days, seen his wife and family there, during the winter, spring and summer, then just past. That they had always heard him spoken of at Norwalk, as a resident of that place. The other opposing affidavits are to the effect, that he voted at Nor-walk, at the Presidential election in 1856. He was assessed as a resident of Norwalk in 1858, the usual .poll tax, and was regarded and treated by the Board of Assessors as a resident of that town. His wife regularly attends church at Norwalk.
    Up to October, 1857, during the active business season, he was at the Astor House several months at a time, at other periods, two or three days, or a week at a time, and the intervals he passed at Norwalk. He at no time, had more than an ordinary bed room at the Astor House, and paid the usual price of a guest of said hotel. He had no permanent lodging room, except during the business season; at other times he had no regular room, but occupied such as was assigned him. He had very little baggage there, and usually only a carpet-bag. That he went, to the St. Nicholas Hotel, with his family, in October, 1857, and they left in January, 1858, and then gave up the apartments he had occupied with his family. While there he paid his bills weekly. In March 1858, his wife and part of his family returned and stayed a few days, and then left, giving up the apartments they had occupied. When Mr. Wilson has been there since, he has been assigned some vacant room, and he has been charged as other temporary guests. That applications were made, at the St. Nicholas Hotel in September, 1858, for

      Mr. Wilson, in order to serve papers on Mm. He could not be found there, and the answer made, to enquiries for him, was that he was not staying there, and had no room there.
    No notice of any application to vacate or set aside the attachments, was given until the 31st of July, 1858, after judgment had been perfected in each action, and an execution on such judgment, had been issued, and levied on the property of Mr. Wilson.

      James T. Brady, for defendants
    and appellants, upon the question, what constitutes domicil? and of its continuance; and of the effect of intent, and other circumstances in determining the place of one’s domicil, cited and commented on, Putnam v. Johnson, 10 Mass. 488; Parsonsfield v. Perkins, 2 Greenl. 411; 23 Pick. 170; 3 Shep. 479; 10 Pick. 377; 3 Greenl. 455; 11 Pick. 410; 13 Mass. 501; 2 Harr. 138; Parsons on Contracts, vol. 2, p. 90; Note to 1st Binney, 340.
    He contended, that, Wilson was a resident of New York, within the meaning of the statutes prior to the Code, allowing attachments against non-residents, and that tMs proposition was established by the decisions in, Matter of Thompson, 1 Wend. 43; Matter of Wrigley, 8 Wend. 134, and Frost v. Brisbin, 19 Wend. 11.
    He insisted, that the affidavits established certain facts, wMch showed that Wilson was a resident of New York, when the attachments were issued, viz.:
    “1. Bis business and property of every kind were in New York, and always had been, since 1856.
    “2. He had no tenement or "habitation in Norwalk. When there he was a mere guest of Ms son.
    “ 3. He came here from Norwalk to make Ms ' home’ here, and so declared.
    “ 4. It was Ms Mterest to continue Ms residence here, so as to " avoid an'attachment of Ms property.
    “5. He returned here as soon as his health would permit, after his temporary absence from January to May.
    “6. After returning he remained here with the contmued intent to reside here. And he was no' more a resident of Nor-walk than of Saratoga, where he went for the benefit of his health.”

      He insisted, that the order appealed from was erroneous, and should be reversed.

      John W. Edmonds, for the respondents,
    in four of the actions, and

      David Dudley Field, for the respondents, in the other action, analyzed the various affidavits and commented on the facts relied upon, on the one side to show that Wilson’s residence was in New York, and on the other to show that it was in Connecticut, and also made and argued the following points, viz.
    I. —This is the ordinary case of a person doing business in New York, and being in the city only while his business required him here, and for all purposes of family or residence, living in Connecticut.
    II. —His avowed intention to be a resident in New York might serve to characterize a doubtful act, but is not enough to overthrow the fact of actual residence abroad.
    HI.—The defendant was actually resident in Connecticut, within the meaning of the Code and of the various cases on this subject. (Roosevelt v. Kellogg, 20 J. R. 208; Matter of Wrigley, 4 Wend. 602; S. C. in Error, 8 Ibid. 134; Frost v. Brisbin, 19 Ibid. 11; Crawford v. Wilson, 4 Ibid. 505; Drake on Attachments, § 67; Houghton v. Ault, 16 How. Pr. R. 78; Barry v. Bockover, 6 Abbott, 374; 1 Bradford’s Rep. 85-90; Code, §§ 33, 125, 135, 292, 391.)
   By the Court. Woodruff, J.

We held, in the case of Barry v. Bockover, at the General Term of April, 1858, that a defendant, whose family have for more than seven years occupied, and still occupy, a dwelling in Jersey city, in the state of New Jersey, hired by him, and who habitually passes the night of each day, and the Sabbath, with his family, is a non-resident of this State, within the meaning of our present statute authorizing an attachment of the property of a defendant in an action, although such defendant was engaged in business as a merchant in this city, spent eight hours of every business day (unless sick, or absent on business of his mercantile firm,) in this city; had all his business capital invested in such business; kept his individual hank account here; and had selected New Jersey as his family residence solely on account of its convenience for access to the business portion of this city, and for economy in living; and, notwithstanding process in the action, might at any time within the business hours of the day, have been served upon him personally, and was in fact served upon him in the action in which the attachment was issued.

It is therefore to be deemed settled, in this Court, that the right of a plaintiff to have the property of a defendant attached on the ground of his non-residence, does not depend upon the question whether the defendant can be served with the summons in the action, but that the attachment may issue, however convenient it may be to serve the defendant personally with process.

Also, that the carrying on of a mercantile business in this city, and staying within our limits, for the purposes of business, during all the hours usually devoted to business here, do not alone constitute residence within the meaning of the statute. And it follows, as a necessary consequence of this proposition, and is involved in the principle of the ruling, that, whether a man’s absence from his family be for eight hours in each day, or six days in each week, if he has. a family living in a neighboring State, for whom he provides, to whom he resorts for comfort, relaxation and repose, and with whom he abides whenever the immediate demands of his business upon his attention will permit; whenever sickness disables him from conducting that business; and when those days successively return on which business ceases and man rests from his labor; he resides-in such neighboring State, where (in every proper sense, as understood no less by those who are learned in the law, than by the common intelligence of every-day life,) is his home.

We did not deem it necessary for the purposes of that case, and do not deem it necessary for the purposes of the present, to review or recite the various learning to be found in the books, upon the question, how far residence and domicile are synonymous, or how, in certain eases, they differ.

In the case above referred to, the State of New Jersey was the defendant’s domicile, within every definition of that term, and it was not less clearly his residence. It was his abiding-place. He left it, with intent to return so soon as his labors were remitted: He returned to it with intent to remain until called to resume those labors. Hew York was his place of business, Hew Jersey his place of abode. In Hew York was his workshop. In Hew Jersey was his house, his shelter, his fireside, his bed and board. We know of no definition of either domicil or residence which the former will satisfy, nor of any in which the latter will not answer in every particular.

And for like reasons we did not then, and do not now, think it necessary to review the cases in this State in which a man has been held a non-resident within the “spirit” of our former statutes, who has an actual residence out of the State, though he have a family within this State, or have a domicil here, (see those cases collected and discussed by Mr. Justice James in 16 How. P. R. 77, and further by Mr. Justice Hoffman at Special Term in this case.) That long-continued absence in a fixed location, carrying on a business permanent in its nature; or long-continued absence in such location for the purposes of business, the duration of which was uncertain; or absence for several months, in pursuance of an intention to make a permanent location for residence and for business, and an actual location and commencement of such business, though the removal of the family have not yet taken place—should be held to constitute non-residence within the spirit of those statutes, proves nothing in reference to such a case as the one above referred to: the question of their present actual residence, was the question considered in those cases, and was decided in favor of the attaching creditor.

But in no case has it been decided that where the debtor lives with his family in this State, returning to them from day to day or from week to week, he is an actual non-resident, (even within the “spirit” of any law touching non-residents,) merely because he passes the business hours of the day, or the business days of the week, when his health will permit, and his business requires it, in his store or manufactory without the bounds of the State.

In such a case the liability of the party to taxation, to render service as a juror, or to enrolment as one of the militia, we apprehend would not be seriously questioned.

Ordinarily one’s residence and domicile (if they do not always mean the same thing) are in fact the same, and where .they so concur they are that place which we all mean when we speak of one’s home.

And it may safely be asserted that where one has a home, as that term is ordinarily used and understood among men, and he habitually resorts to that place for comfort, rest, and relaxation from the cares of business and restoration to health, and there abides in the intervals when business does not call—that is his residence, both in the common and legal meaning of the term. And to one who has such a home, and habitually uses it as such, a place of business elsewhere, is not his residence within any proper definition of the term.

When the question, where is his residence, arises, some of the proofs, or the indicia by which the place is to be determined, vary with the circumstances of the party. One has a family, another has none—one lives in a state of alienation and separation from his family, another lives with them—one owns or hires a dwelling-house, another has lodgings at an inn—and another may have a much more uncertain shelter. None of these circumstances are necessarily alone conclusive—they are not decisive tests—they are only aids to an answer to the question to be considered in connection with all other pertinent facts which may appear.

So when the fact of residence in a place is ascertained or conceded, it is to be deemed to continue until there is proof of a change of location, with intent to make such location a new home, in the sense above already described, not merely for a temporary purpose, but with a fixed purpose to remain, and without a present intention to return when some temporary purpose is accomplished.

And again, it is not enough that one intends to change his residence. The intent and the fact of such change must concur. Nor is it enough that he intends to change his residence, and sincerely believes that what "he has done amounts in law to a change of his residence, his opinion will not affect the question, " if the actual change have not taken place.

Enough has now been said (and probably more than enough) . to make our views of the case before us intelligible.

The defendant, Wilson, was confessedly a resident of Nor-walk, in the State of Connecticut, in the year 1856.

It will throw light upon the proper weight to be given to his affidavit (upon which the claim to discharge the attachment mainly depends), if it be noticed, that he states that he then “ resolved to become a permanent resident of the city of Hew York,” and that he further states that “ during the whole and any part of the year 1857, and so much of the year 1858 as has elapsed, he has been and now is a resident of the State of Hew York.”

What then did he do in 1856, which made him a resident of the State of Hew York ? The answer to this question may perhaps aid us not only in determining what he means when he swears to residence, and what sort of sojourn in Hew York he intended by what he calls a resolution to become a permanent resident, and what he understands and means by “permanent residence.”

He left his family in Horwalk on the farm, theretofore occupied by them, came to Hew York on Monday, devoted himself to his business here, sometimes until Wednesday, and then returning to his family, and again returning to Hew York on Thursday—but usually staying in Hew York until Saturday, and then returning to his family in Horwalk. While in the city boarding at a hotel as an ordinary guest, and occupying a bedroom only—and this continued until the fall of 1857.

After what has been already said of such a course and habit of life, it is only necessary to add, that this neither in fact nor in law made him a resident of the city of Hew York. And if we assume that in doing this he did, what he states he resolved to do, we see what he means when he says he resolved to become a permanent resident” of the city of Hew York.

In this there is no doubt intimated of Mr. Wilson’s sincerity. On the contrary, the more sincere he is, and the more confidently he insists that he was a resident of Hew York at that time, the more probable it is that his apprehension of the force and meaning of the terms employed in his affidavit is inaccurate, and that if he had explained in detail whát he means by permanent,” and, “ temporary,” “ home,” and “ residence,” or rather if he had given us the particulars embraced in those words, instead of testifying in terms, which, if taken in their legal signification, dispose of the whole question upon his mere opinion, it might have appeared that his affidavit is not less inaccurate in other respects, by reason of similar mistakes in his judgment on the subject.

He was then, a resident of Norwalk down to the time of his failure or embarrassment in business in the fall of 1857;° and he was then admonished by a friend that he might be deemed a non-resident, and it was best to establish “ the ostensible as well as actual character of his residence by unequivocal indications.” It is doubtless true, that the motive with which a change of residence is made, is wholly immaterial, if the change be an actual change, with intent permanently to abide in the new location. But in weighing the evidence, and where there is a conflict of testimony and circumstances detracting from the evidence of the alleged change, the motive under which the party is acting, and the purpose he has in view, may properly be regarded in determining what was the actual intent.

The question we are considering is not whether, if he intended an "actual “permanent residence” in New York, and in pursuance of that intent brought his family here; took possession, of apartments here as his and their “ only home,” and occupied them without any intention to return to Norwalk when a temporary purpose was accomplished, that would make him a resident of this city ? But the very question is, what was his intent in these respects, and what did he do ?

He conveyed his farm and the chattels connected therewith to his son, and when he became embarrassed the deed was placed on record. But that farm has been as open to him and to his family, and has been as freely used as a home to him and them, according to his own affidavit, as it ever was before. Whether his wife’s farm is still retained, or whether that is the farm referred to, is left in doubt by the affidavits.

He took rooms in October, 1857, at a hotel in this city, and with his wife and child, occupied them for three months, paying his bills weekly, but then gave up the apartments, and has not since had any permanent apartment in the hotel; nor does it appear, that he was in the city at all afterwards, until after one, if not two, of the attachments were issued which it is moved to discharge.

It is shown that his child was sick; and that, under the advice of his physicians, was a sufficient reason for taking him from the city. So, also, that Mr. Wilson was sick; and that, if he was too ill to be removed, was a very satisfactory reason for his not returning until sufficiently recovered. But it is not shown that his child continued' ill—nor that he himself might not have returned, if in truth this was his home. Such continued absence would, however, under the circumstances, be far less significant if it were not, that, according to the tenor of his own affidavit, that of Mr. Hendrix, and that of his physician, it is apparent that it was because he had no motive to be here; either because he could not attend to business, or because his firm had suspended payment, and his presence in the city was not deemed so important as it had been on former occasions. And since the month of May, when he has been able to attend to his affairs, he has been merely an occasional transient lodger at the hotel—his family residing at Norwalk.

The indication is not slight, that the purpose under which his family were brought to the hotel, was to continue here only until the embarrassments of his firm had ceased, and with an expectation of their returning to Norwalk, or, if any more protracted stay was contemplated, that the design was abandoned some time before these attachments were issued; and that his subsequent visits to the city were only occasional and .for purposes of business, while his actual residence was with his family at Norwalk.

There are other statements in Mr. Wilson’s affidavit which tend strongly to support the motion for the discharge of the attachments, and it is doubtless true that if that affidavit is to be taken without qualification, and in the very terms therein employed, it would prevail.

Among the other statements, is one, that his wife and child returned to New York in March, and resumed the apartments they had before occupied. With what intent and purpose did they come ? How long did they propose to remain ? How long did they in fact remain? His affidavit does not inform us.

He states that when he and his family left in January, some of their personal property was left there. What property ? Hów far did its character indicate an intention to return ? His affidavit is silent on this subject. While another witness states that he gave up his apartments, and neither he nor his family have ever had any permanent apartments there since.

Is it usual for actual residents to have no house nor apart? ments, by a tenure more permanent than to take and occupy from time to time such rooms, as happen at the moment to be vacant at a hotel ? Probably we cannot say that it is not, and yet we cannot avoid the feeling of surprise, if it be so.

So, also, he states that it has long been his resolution not to occupy a house in New York, until he owned one, and he has conferred with several of his friends, and made efforts to obtain an eligible property in the city, wherein to have himself and his family permanently established. At what time, during the long period here mentioned, did he make these efforts ? Was it before he went to Norwalk to reside ? With whom did he confer? What were the efforts which he made ? And did he even in fact intend to purchase a house here, and if so, when did he have such an intention?

It would seem strange that, in relation to a fact so important. as this on the question of a change of residence, some, at least, of these particulars have not been disclosed.

The review thus given of the affidavit of Mr. Wilson may, perhaps, be deemed minute and critical. But it should be borne in mind that this is the main affidavit upon which the motion is founded—the motion is a very important one to all the parties —the affidavit comes from one who knows all the facts, and some of the facts stated relate to the operations of his own mind, and it is reasonable to expect, under such circumstances, and especially when a severe contest might well be anticipated, a statement less liable to abatement in the particulars above referred, to.

We do not think it necessary to giye a recital of the details found in the numerous affidavits read in opposition to the motion. They tend to show the habits of Mr. Wilson, not only down to 1857, but since; down to the time when the motion was noticed, bearing on the question of residence, and without apparent change in that respect.—The belief of his neighbors and acquaintances in Norwalk founded thereon, or derived from their acquaintance with him.—The efforts made to find him in this city,

«—The apparently transient character of his lodging at the hotels here, from time to time.—The general reputation at Norwalk induced by his habitual actual presence there, as in former years. —The action of the public officers there based upon all the circumstances. And other particulars of less moment.

On the other hand, Mr. Wilson is corroborated, in some particulars of an opposite tendency.

Without entering into any further detailed discussion of the particulars of these affidavits, it must suffice to say that, upon a careful examination of all the affidavits, we are not satisfied that the conclusion of the Judge, at Special Term, that, as matter of fact, Mr. Wilson was a resident of the State of Connecticut when these attachments were issued, was clearly wrong.

The controversy is rather about facts than about the legal principles involved. As to the meaning of the term residence, or non-residence, in reference to this motion, we think there is no ground for difference.

We are sitting as an appellate tribunal, upon a question of fact arising on conflicting affidavits and doubtful circumstances. We should not reverse an order, unless clearly satisfied that the finding of the Judge was wrong. We incline rather to the opinion that, sitting as jurors and acting under instructions touching the law, such as we deem the law to require, we should come to the same conclusion.

The order should be affirmed.

Pierrepont, J., dissented: All the other Justices concurred in the opinion of Mr. Justice Woodruff.

Order affirmed, with costs,


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

text:
    Charles Squire, Jun., v. Charles M. Young.
    A proceeding instituted under § 292, of the Code, can be terminated as absolutely by the plaintiff’s abandonment of it, as by an order of the judge before whom it was commenced.
    In this case, the day to which it was last adjourned, either by the judge or by the consent of the parties, was the 9th of July, 1857. On that day the plaintiff neither moved the matter before the judge, nor called his attention to it, nor did he again move in the matter until the following October. .On the 16th of December, an order was made, based on the original order (granted on thfe 11th of March), and on an examination of the debtor, and of a witness had on the lfth . and 24th of April, appointing a receiver of the debtor’s property.

      EM, that the order of the 11th of March, and the proceedings had thereon, must be deemed to liave been absolutely abandoned and terminated, and that the subsequent order of the 14th of December was unauthorized and erroneous.
    In proceedings, under chap. 2 of title 9, of the Code, the judge can exercise no powers except such as it confers, either in express terms, or by necessary implication.
    (Before Bosworth, Ch. J., and Hoffman, Slosson, Woodruff, Pierrepont, and Moncrief, J. J.)
    Heard, December 4th;
    decided, December 30th, 1858.
    This is an appeal, by the defendant, from an order made by Mr. Justice Hoffmah (in proceedings supplementary to execution), on the 16th of December, 1857, appointing a receiver of the property of the defendant. On the 11th of March, 1857, the said justice made an order requiring the defendant to appear before him, on the 13th of that month, “and on such further days as the Court, or referee duly appointed, shall name, to make discovery on oath concerning .his property.”
    On the 13th, it was discovered that $39,54 was due to the defendant from S. S. Mangan, and by consent of the parties it was paid to and received by James Clinton Bolton (defendant’s attorney), “ to be held by him until the final determination of the said proceedings, or until the further order of the Court in the premises,” and Mr. Bolton signed a receipt, entitled in the action, stating that fact, and that he had received “ the said sum of $39,54 as the agent and attorney of the parties to this suit.” Proceedings were adjourned from time to time, until the 17th of April, 1857, when the defendant was examined, and disclosed that he had' another small claim against a third “person, which latter claim, it was agreed, should he held on the same terms as the $39,54.
    An adjournment was then had until the 24th of April, when a witness was examined. Proceedings were then adjourned from time to time, by a judge of the Court, ■until the 18th of June, 1857. On the 17th the defendant and plaintiff’s attorney, by agreement between themselves, extended the adjournment until July 9th.
    On the 18th of June, defendant’s attorney attended before the judge, and not knowing of the agreement made on the 17th, obtained from Mr. Justice Hoffman an order, vacating the order of March 11th, and declaring it to be of no further force and effect.

      On the 9th of July the defendant did not attend before the • judge, nor was the matter moved before him by any one on the part of the plaintiff. A Mr. 'Freeman, on behalf of the plaintiff’s attorney, had the defendant called by an officer of the Court, in the room in which the judge at chambers was sitting. But even this fact was not called to the attention of the judge—neither the defendant, nor any one in his behalf, answering when the defendant was called; Mr. Freeman left.
    Early in October, the plaintiff’s attorney, on being informed of the granting of the order of the 18th of June, moved before Ch. J. Duer for an order that the defendant attend and be further examined under the original order of March 11th; and Ch. J. Duer denied the motion, on the ground, as is alleged, that if the plaintiff could have any relief, it could be granted by Judge Hoffman only, on an application to him.
    On the 13th of November, 1857, the defendant obtained from Judge Hoffman an order to show cause, &c., and on the hearing upon such order the judge vacated, the order of the 18th of June, but denied plaintiff’s motion, that the defendant attend and submit to a further examination, or that he show cause why he should not be punished, for a contempt; and by consent of parties, designated the 5th of December as a day on which he would hear the plaintiff on the question whether “ the payment over of the moneys alleged to have been discovered upon the examination or examinations heretofore (theretofore) had ” should be ordered.
    Op the 14th of December, 1857, he denied that motion,
    “ without prejudice to any action by a receiver to recover the same,” and granted an application, then made, to appoint a receiver. The order, appointing a receiver, was signed on the 16th of December, 1857, and having been duly entered, the defendant appealed from it to the General Term,

      James Clinton Bolton, for appellant.

      S. B. Brownell, for respondent.
   By the Court. Bosworth, Ch. J.

An order, made by a Judge of the Court, under § 292 of the Code, requiring the defendant “to appear and answer concerning bis property, before such Judge, at a time and place specified in the order,” and forbidding (by § 298), “ a transfer or other disposition of the property of the judgment debtor,’ not exempt from execution, and any interference therewith;” will not continue in force, as a matter of course, until it is formally vacated by another order of the Judge, if the plaintiff should.fail to have it adjourned from time to time, or to move in respect thereto, on the return day of the order, or on an adjourned day, before the Judge who granted it.

When such an order is obtained and served, if the plaintiff should designedly omit to appear before the Judge on the day, and at the place named, we think he must be deemed to have abandoned the proceeding, and that his voluntary failure, to move the matter before the Judge on that day, will operate as a discontinuance of it, although no order should be made vacating the proceedings.

If such a consequence would result from a conscious and intentional omission of the moving party to attend on the return day of the order, then it would seem to follow, that the result would be the same, whatever the cause of Ms non-attendance. We think it cannot justly be held, that if his non-attendance was voluntary, the proceedings are thereby determined, but if it was involuntary or inadvertent, they will not be determined until an order is made, declaring them vacated.

So too, when the examination of a judgment debtor has been completed, if no motion is thereupon made to the Judge, but on the contrary, both parties leave without an adjournment, or the ■ appointment of a receiver being applied for by the judgment creditor, the proceedings must be deemed to have been then abandoned.

If this be not the correct view, then it would seem to follow, that the proceedings must be treated as pending, until they have been formally vacated by order. Such a construction would treat tMs proceeding as if it were an action, and as operative and continuing until determined by order. The remedy given by § 292 was designed to be summary. The order which it authorizes is a proceeding in the action. It was designed to enable a judgment creditor to obtain promptly, a discovery of the debtor’s property, and an application of it upon the judgment. It is found in Chap. 2 of Title 9. That title is, “ of the execution of the judgment in civil actions”—and Chap. 2 is entitled, “ Proceedings supplementary to the execution.”

To hold, that at the end of several months after an adjourned day, and after any appearance of the creditor before the Judge upon the proceeding, that it continues in force provided no order , vacating it has been made, would be treating it as an action, and might operate unjustly to the debtor, and to his other creditors.

If an operative proceeding, in the case last supposed, the defendant, if he should dispose, after the lapse of two or three months from the last adjourned day, of any little items of property he may have had when the original order was served, could be punished for a contempt, because he had disposed of some of his property contrary to the prohibition contained in such order. If, in such a case, he could not be punished for a violation of the injunction, we think a receiver of his property-could not be appointed. We cannot think, that in such a case, the original order is so far operative as to continue the proceedings in force for some purposes, unless it keeps them in force for the purpose of all the remedies, to which the creditor might resort while they were continued by regular adjournments.

So too, if, in this case, another judgment creditor of this defendant had instituted similar proceedings in September, and had discovered property which belonged to the defendant on the 11th of March, the present plaintiff would have the benefit of such discovery, if his proceedings are to be treated as pending, notwithstanding his neglect to move in them, on or subsequent to the 9th of July.

In Edmonston v. McLoud, 16 N. Y. R. 543, one Stiney, a judgment debtor, was served on the 4th of December, 1850, with an. order obtained on the 2d, requiring him to appear on the 6th. Stiney did not appear, and the plaintiff did nothing on the 6th under his order, except that he obtained an attachment which could not be served, as Stiney had left the State! On the 30th of December, the defendant, who owed Stiney $300, when the order of the 2d of December was served, with full knowledge of all the facts, paid the $300 to Stiney’s wife.

Harris, J., remarks, “But these proceedings,” (the proceedings on the order of the 2d of December), “were abandoned by the plaintiff, and it is now too late for him to derive any benefit from them.”—Id. 545.

We think it quite clear, that such proceedings can be, as effectually, terminated by the creditor’s abandonment of them, as by a formal order of the Judge before whom they were commenced.

If the order appealed from is regular and valid, as a proceeding based upon the order of the 11th of March, we think that, by relation, it vests in the receiver all the property the debtor had on that day. If that be the correct view of it, then, it would seem to follow, that the receiver can, as such, recover of Mr. Bolton the $39Ts¥4<r mentioned in his receipt, although he may in perfect good faith have paid it, in August or September, to some creditor of the defendant, by his direction.

We think the only just conclusion, from the facts before us, is, that these proceedings have been effectually terminated by the plaintiff’s abandonment of them, and that the Judge, who made the order of the 11th of March, had no authority or power, by reason thereof and of the subsequent proceedings had thereon, to grant an order, upon the motion made before him in November, appointing a receiver of the debtor’s properly.

We see no alternative, "between holding the proceeding to be an action, which will be depending from the time it is commenced until it is terminated by an order of the Judge; or a statutory proceeding, which will cease to be operative whenever the party instituting it fails to appear and move in it, on any day to which it may have been adjourned.

The Code defines an action, and this proceeding does not fall within that definition. (Code, § 2.)

Chap. 2 of title 9 of the Code enables a judgment and execution creditor to obtain the examination of his debtor, and of third persons indebted to the latter, or holding property which belongs to him, and of witnesses. This examination is permitted, to enable the creditor, summarily, and without action, to obtain an application of the debtor’s property to pay the judgment, either by an order of a Judge of the Court, or of a county Judge directing such application, or through the intervention of a receiver to be appointed by such officer. It is not a proceeding had in Court, but it is had before a Judge out of Court. It is not a proceeding incident to the action. It is wholly a creature of the statute. ¡No authority is given to the Judge to revive or continue it, if the creditor fails to appear on the day at which the original order is made returnable, or on any day to which he may have adjourned- it.

When such a failure of the creditor occurs, we think: his proper course is to obtain a new order, on an affidavit conforming to the Code and excusing his previous neglect or default. In the proceedings on such order he will be restricted, as a matter of course, to such relief as it would be proper to grant, if the prior proceeding had not been instituted. He can reach only such properly as the debtor has when the new order is served, unless the debtor has previously disposed of his property fraudulently: In that event it may be recovered by a receiver, to be appointed by the Judge.

In proceedings under chap. 2 of title 9 of the Code, the Judge can exercise no powers except such as it confers, either in express terms or by necessary implication.

To hold that such proceedings, when once commenced, will continue operative until formally vacated by order, and that, too, although the creditor fails to appear on the return day, or on an adjourned day, or to move in the matter for months or for years thereafter, is giving a character and effect -to them not declared by the Code,, and in nowise necessary to the execution of all, or any, of the powers it expressly confers.

Cases of apparent hardship may arise, as they occasionally do, in actions themselves: Such cases, if of frequent occurrence, and involving considerations of importance, may be addressed to the Legislature, as inducements to amend the law. The Courts can only administer the laws as they are enacted. They cannot legislate, to meet the exigencies of cases of hardship or misfortune. Whenever they attempt it, they furnish new illustrations of the maxim: that hard cases make bad precedents.

-To avoid misconstruction, it is proper to remark, that we must not be understood to deny the power of the Judge to appoint a receiver of the debtor’s property, or to punish him, as for a contempt, if he disposes of his property, contrary to the injunction, provided the proceeding has been continued by adjournments agreed upon, in writing, by the parties, although not ordered by the Judge: No such question is before us on this appeal. At the same time, we think it more prudent, that all adjournments should be made by order of the Judge.

Without discussing further the questions presented by this appeal, the order in question, for the reasons already stated, must be reversed.

But as the question is new, and as the loose practice pursued has given rise to views in relation to these provisions of the Code, which we think no one would entertain oh a reading of them, however careful,- no costs of the appeal will be allowed to either party.

Order reversed, without costs to either party.