text:
    Andrew C. Getty et al. plaintiffs, vs. Malcom Campbell, defendant.
    1. Two qualifíations ai'e indispensable to a right of pursuit in equity of property or its proceeds when wrongfully converted, into a new form ; first, a violation of a trust, express or implied, or an abuse of authority, and secondly, such a separation of the identical property, or its proceeds, from all other property of the same kind, as to render it readily distinguishable.
    2. No privity is created between a party who has paid money to another person as belonging to the latter, and a third person to whom the latter has voluntarily paid it, (either as an individual or as an officer of a court,) without impressing on such last payment any specific character or condition; and any separate liability of the parties paying and receiving to each other remains the ■ same as before.
    3. Although the sum in question should be paid to, and received by, the defendant as a receiver of a court, he is not bound to investigate the liability to pay it of the party paying it. Having received it, unqualifiedly, in such official capacity, he cannot (according to the order of that court, as an ofiicer of which he received it,) part with it; otherwise'he would be responsible to the parties entitled to it. If paid to him under a mistake, the tourt. can alone order it to be refunded, when it may be used to reimburse the plaintiff.
    4. The power of a court to compel a return of money paid to one of its officers in his official capacity, under a mistake, is entirely different from any liability of such officer to repay it to the party so paying it, produced by a mere modification of any order, under which it may have been paid to the party who paid it to such officer.
    (Before Robertson, Ch. J. at special term,
    April 1864.)

      G. C. Genet, for the plaintiffs.

      M. Campbell, defendant in person.
   Robertson, Ch. J.

It is alleged in the complaint in this case, that while the first order of the court of common pleas remained unchanged, Hague, the predecessor of the plaintiff Genet, in pursuance of the direction contained in such order, paid A. T. Stewart and others, in June, 1857, the sum of $650; and that “said A. T. Stewart and others by their attorney, on or about” some (blank) “day of December, 1857, paid over to said defendant the whole of said sum of $650, to hold the same as such receiver; and that the defendant, pretending to have a right as such receiver to receive the same, did receive the said money in said pretended capacity.” Part of such money, however, ($325) is alleged to have been paid to Stewart and others on the 4th of December, 1857, while such order appears to have been modified on appeal on the 3d of the same month, being the day previous. . It is not therefore very clear, from the complaint, whether Stewart received all of such moneys before or after such modification of the order, and consequently whether he paid them over to the defendant before that time.

It is not alleged in the complaint that Stewart and others delivered to the defendant the identical articles received by them as money, or that they paid him any sum of money as being that received by them. The terms “said sum of money," by themselves, cannot be construed as meaning the same coin or representatives of value. Indeed it could hardly be supposed that Stewart and others retained the money from June to December in the same form in which they received it. The plaintiffs, therefore, cannot recover in this action as in an action of trover, the identical money or representatives of value paid, whose form, or their property in it, had not been changed, at the time it was delivered to the defendant. Eor can they maintain it as one for money had and received by the latter expressly for their use, from Stewart and others, since there is no allegation that the latter paid it to him, or he received it for such purpose.

Stewart and others were liable to refund to the plaintiffs, the money they had received under the order as it was originally made, upon its modification on appeal, which destroyed their right to retain it. They could have been compelled to do so by action as well as by writ of restitution or seire facias. (Scott v. Swezey, 29 Barb. 87, and cases cited.) It is conceded that they could not recover back from the defendant directly, the money paid by them to him. On that point the cases cited by the plaintiffs’ counsel are good authority. (Goodall v. Lowndes, 6 Ad & El. 464. Goodman v. Sayer, 2 J. & W. 263. Sprague v. Birdsall, 2 Cowen, 419.) It is supposed, however, that indirectly hy means of this action, the defendant may be made to pay back the money to the plaintiffs substantially in discharge of the liability of Stewart, &c. to theta.

All the cases which authorize the pursuit by the owner of property or its proceeds improperly disposed of by persons to whom it has been entrusted require some trust violated, or authority exceeded, or else a fraud committed out of which a trust may be created in equity, to warrant it. Story (2 Eq. Jur. § 1258,) lays down the rale in these words : “ Whenever the property of any party has been wrongfully misapplied or a trust fund wrongfully converted into another species of property, if its identity can be traced, it will be, held, in its new form, liable to the rights of the original owner or cestui que trust.” In a note the case of “property rightfully sold by an agent or trustee, provided the proceeds can be distinguished,” (Id. n. 3,) is added. The author bases his view upon a general proposition to the effect, that no mere change of the original state or forms in which property is subject to a trust, can shake off such trust, or give an agent or trustee who thus changes it, or any one who stands in his place, (excluding, of course, purchasers in good faith,) any interest in it free from such trust. These principles make two ingredients indispensable to such right of pursuit in equity of property and its proceeds into a new form, into which it may be wrongfully converted; first, there must have been a violation of a trust, express or implied, or abuse of authority; and secondly, the precise property or its proceeds must be kept separate from other property of the same kind, so as to be readily distinguishable. (Taylor v. Plumer, 3 M. & Sel. 574-576. Hanford v. Lloyd, 20 Beav. 310.) Judge Story admits the determination of the right “when the subject matter is turned into money, and mixed and confounded in a general mass of property of the same description.” (2 Eq. Jur, § 1259.) In this case there was no trust or authority created. The plaintiffs’ predecessor was ordered by a .court having jurisdiction to pay certain moneys to Stewart, &c. and he did so ; afterwards,' by a modification of such order, on appeal, he became entitled to reclaim not the same, hut an equal amount of money generally. No relation of principal and agent, or trustee and cestui que trust arose between the plaintiffs and the parties receiving sueh money. It lost its identity, like any other sum paid by accident or mistake, and there was no duty in regard to it on the part of the recipients; they could dispose of it as they thought proper, leaving only a liability to refund it, in case of a reversal of the order. In like manner the sum received by the defendant, although equal in amount, was not the same property as that previously delivered to the latter by the predecessor of the plaintiffs—it was in the same form; but its identity as the property so delivered, or its proceeds, was lost and was not traceable. It was a voluntary payment incapable of being recovered back by Stewart and others by action; although possibly the court, as an officer of whom under color of his office, as charged in the complaint, the defendant received it, might compel him, if not entitled to hold it as receiver, to refund it. The equitable doctrine of the right of a person entitled,. to follow property to which he is entitled as well as its proceeds into any new shape, into which it has been wrongfully changed by a party entrusted with it, will not, therefore, help the plaintiffs.

The pleadings indeed present the bald case of money paid to one as his property who subsequently becomes bound to refund it, after he has voluntarily paid a like sum to a third party either as an individual or as an officer of court; without impressing on such last payment any specific character or condition. In'such case no privity could be created by any act of the party who received and paid such sum between the parties from and to whom he so received and paid it; and the separate liabilities of each to the other, therefore, remain as before.

The complaint, moreover, alleges that the sum in question was paid to and received by the defendant as receiver. Under such circumustances he was not bound to investigate the liability of the party paying it, to pay it. Having so received it unqualifiedly in his official character, he could only part with it, according to the order of the court, as an officer of which he received it; otherwise he would be responsible to' the parties entitled to it. If paid to him. under a mistake, the court of which he was an officer could alone order it to be refunded, when it might be used to reimburse the plaintiffs. Such a mode of proceeding is entirely distinct from a liability by the defendants directly to- the plaintiffs; because the two sums paid corresponded in amount. The power of a court to compel the return of money paid to one of its officers in his official capacity under a mistake, is, entirely different from a common law liability of such officer to répay it to the party so paying it, created by the act of such court in modifying an order under which it has paid to the party who paid it to such officer. Without preserving the identity of the sums paid, or fixing some duty on the party first receiving it, or the defendant, there was no common law liability. It is undoubtedly true that an action for money had and received would always lie against one who had the money which ex cequo et bono belonged to another, in his possession; but where such money was not, at law, the property of such other, or was held under some implied trust for him, some privity or relation must exist between the parties, creating an obligation to jray it over. The judgment creditor in this case had a right originally to receive the sum in question, and did so receive it; he paid it over to the defendant in his official capacity absolutely; the latter by simply so receiving it did not hold it as belonging to the plaintiffs, or as bound, forthwith, to pay it to them. The modification of the order, on appeal, although it fastened a liability on Stewart and others, did not create one on the part of the defendant.

Whether, therefore, the defendant received such sum indi- • vidually or as receiver, he is not liable to the plaintiffs in this action. This renders it unnecessary to discuss the question, whether they could sue for such sum without an assignment by their predecessor of their right of action. I do not see clearly any mode in which the complaint could he amended so as to hold the defendant; hut still the plaintiffs may be allowed to attempt it if they can, on the usual terms; otherwise judgment must be' given for the defendant.


source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    William Lalor, plaintiff and respondent, vs. George F. Fisher, defendant and appellant. George F. Keller, plaintiff and respondent, vs. The Same, defendant and appellant.
    1. Where orders of arrest are sought to b® vacated on the ground that the retnrn day has been changed, the irregularity should be pointed out, in the moving papers. A statement in the defendant’s affidavit that at the time of his arrest the orders had no legal effect, for the reason that the return day had expired, is not a sufficient notice of the particular ground relied on.
    2. Cotemporaneous acts are always competent as evidence to sustain a charge of fraud.
    (Before Moncrief, Monell and McCunn, JJ.)
    Heard April, 1864.
    Appeals from orders denying motions to vacate orders of arrest in each of the above actions.

      A. H. Heavy, for the appellants.

      S. B. Cushing, for the respondent.
   By the Court,

Monell, J.

We have inspected the orders of arrest in these actions, but are unable to determine from such inspection alone, whether the return, day was changed by the justice who made the orders or by the plaintiff’s attorney. The initials of the justice appear opposite the alteration, and, in the absence of proof to the contrary, we must presume they were put there by the. justice, at the time the alteration was made.

Mr. Coleman, one of the plaintiffs attorneys, substantially swears so.

But the motions to vacate the orders of arrest do not appear to have been made upon any such ground. The irregularity, if it was such, was not pointed out in the moving papers, so 1 that the respondent could have met it by proof. The statement in the defendants’ affidavit, that at the time of his arrest the orders had no legal effect, for the reason that the return day had expired, was not a sufficient notice of the particular ground relied on. It is too late to take the objection on the appeal.

The affidavits of the plaintiff, or his clerk, standing alone, were not sufficient to authorize the orders of arrest; but taken in connection with, and supported by the proof of cotemporaneous acts of the defendant, a case of fraudulent intent is clearly made out. Ootemporaneous acts are always competent as evidence to sustain a charge of fraud. The defendant, although he denies generally any fraudulent intent, leaves undenied and unexplained much of the indicia of fraud sworn to by Brady, Ungrich, Keller and McMann. The defendant has failed to satisfy me that he honestly contracted the debts to recover which these actions were brought. And I am, therefore, of opinion that the orders appealed from should be affirmed, •with ten dollars costs in each case.


author: Robertson, Ch, J.

text:
    Louis F. DeFiganiere, plaintiff, vs. William F. Young, defendant.
    1. Although, on a mere motion to set off judgments, courts can protect their officers, by refusing to set them off, so as to defeat an attorney’s lien for his costs, yet'the statute-respecting set-offs overrides the lien of an attorney in an action.
    2. An attorney who does not talse an assignment of costs to accrue in an action before their recovery, cannot avail himself of the statutes of set-off, which'are confined to cases of contract reduced to judgment, and do not reach costs, or damages on a contract or for a tort, not yet reduced to judgment.
    3. Judgments cannot be set off against each other, where one of them has been appealed from, and the appeal is still pending and undetermined.
    (Before Robertson, Ch. J. at special term,
    April, 1864.)

      Chas. N. Black, for the motion.

      F. H. B. Bryan, contra.
   Robertson, Ch, J.

The plaintiff seeks to stay proceedings by the defendant on a judgment obtained by the latter against the former in the Supreme” Court of this state in June last, for nearly one hundred dollars His application is founded on the recovery by .him in January last of a judgment in this court against the defendant for over two hundred and sixty dollars, and the insolvency of the latter. The defendant sets up that such judgment in his favor does not belong to him, but to his attorney, (Mason,) by whom it was assigned to a Mr. Corey ; by whom it was re-assigned to -such attorney ; that such judgment was wholly for costs, and- that it now belongs to and is sought to be collected by such assignee and attorney. Hone of the affidavits show any absolute assignment by the present defendant, to any one, of the judgments in his favor : indeed the notice by his attorney to the plaintiff was of a lien merely. The right of the assignee, therefore, depends on the right of the attorney, as such) to a lien, without an assignment, on the judgment for costs.

Although, on motions to set off judgments, courts can protect their officers by refusing to set them off, so as to defeat an attorney’s lien for his costs ; yet it is fully settled that the statute respecting set-offs overrides the lien of an attorney. (Nicoll v. Nicoll, 16 Wend. 446. Gay v. Gay, 3 Sar. Sent. Ch. 50. Roberts v. Carter, 24 How. Pr. 44. Martin v. Kanouse, 17 id. 146. 9 Abb. Pr. 370, n. Brooks v. Hanford, 15 id. 342. Hayden v. McDermott, 9 id. 14.) This reduces the attorney’s lien to something less tenacious than a pledge or common law lien ; in fact makes it a mere claim on the favor of the court, not to deprive the attorney of it on a mere motion. Indeed in some cases it has been said that he trusts to the responsibility of his client, and his right must be subordinate to the equities of the parties, (Cragin v. Travis, 1 How. Pr. 157. Noxon v. Gregory, 5 id. 339.) The attorney in this case, by not taking an assignment of the costs to accrue, before their recovery, has lost the right of availing himself of a strict construction of the statutes of set-off, by which it seems to be confined to cases of contract reduced to judgment, (2 R. S. 354, § 32 ; Id. 174, § 40,) and does not reach costs or damages on a contract or tort, not yet reduced to judgment. (Robinson v. Weeks, 6 How. Pr. 161. Countryman v. Boyer, 3 id. 386. 2 Code R. 4. Van Pelt v. Same, 8 id. 319. Nash v. Hamilton, 3 Abb. Pr. 35.) The supposed lien of the attorney is, therefore, no obstacle to the continuance of the injunction.

But the plaintiff has appealed from the judgment in favor of the defendant, which appeal is now pending undetermined. This is contrary to the rule that both causes of action must be mutual subjects of set-off against each other, (Hepburn v. Hoag, 6 Cowen, 613 ; Hart v. Brady, 1 Sandf. 626 ; 2 R. S. 354, § 18, subd. 5 ;) and they must be certain and determinate on both sides. (Duncan v. Lyon, 3 John. Ch. 351.) While such appeal is pending, the defendant could not commence an action to set off that judgment against the one recovered by the plaintiff against him. If security were given on such appeal, it would of course stay all proceedings until its determination. If any judgment is to be given in this action, it must be that the judgments be absolutely set off, not merely .in case one be not reversed on appeal. If so set off the plaintiff could not recover the amount, in any form, even if the judgment against him was reversed on appeal. It is no hardship upon him, therefore, to be required to elect to abandon his injunction order or his appeal. The injunction now sought can only be granted as preliminary to the final judgment in the action; it ought not to be granted to be employed instead of an order for a stay of proceedings on the appeal, and giving the necessary security to obtain it. It would be so if the plaintiff could obtain it and then abandon or continue this action according to his success on appeal. Besides, supplementary proceedings have been taken upon the judgment against the plaintiff; to the costs on which the defendant may be entitled. The injunction order, therefore, cap only be continued upon the plaintiff consenting to a dismissal of the appeal brought by him with costs, without prejudice to his filing a supplemental bill in this action to set off his judgment against such judgment for costs; and also upon paying the costs of the supplementary proceedings, if any are pending against him, to be awarded by the officer before whom the same are pending, as they cannot be converted into a judgment.

It does not very clearly appear from any statements in the papers before me on what ground the ex parte order made by the defendant’s consent for the discontinuance of the action in which the defendant recovered judgment, and the satisfaction piece thereof acknowledged by him, were set aside by the court who granted it. As well as I could gather from the statement of counsel, it seems to have been that such act was in fraud of the attorney’s lien. That decision, however, does not involve the same question as this action, since the fraud there complained of must have been some collusion between the plaintiff and defendant, not a right by the former to affect a claim against the latter ; but even if that question had been involved, as it was a mere decision on a motion, by which both parties were left to pursue their separate remedies, it would not control the decision of. the rights of the parties in this action.

I have already disposed of the consideration of the operation of the present injunction order to defeat an action or stay proceedings in it, in another court, by requiring the plaintiff to consent to make the judgment in that action final against him, and yield any resistance thereto on appeal. Other topics, and a great deal of matter foreign to the real questions involved, have been introduced in the papers before me and dragged into the discussion, that scarcely need noticing. The merits of the original causes of action on which the judgments were obtained and the regularity of such judgments are not proper subjects' of collateral inquiry. The actual employment of the attorney whose name appears on the record, or the insufficiency of the defendant as bondsman, are also irrelevant. Even the insolvency of the defendant is immaterial. If there are any other important matters overlooked, it must be attributed _ to the painfully and scarcely legible, and as to some words undecipherable, hand writing of some of the affidavits introduced on which the motion is made and resisted.'

The injunction order may therefore be continued upon the terms already suggested in regard to the appeal and supplementary proceedings, with ten dollars costs to the plaintiff, to abide the event of this action.


author: Robertson, Ch. J.

text:
    William Stephens et al. plaintiffs, vs. Austin Hall, Asa Hall et al. defendants.
    In a creditpr’s actiqn, brought to set aside an assignment by one defendant to another of the property of a special partnership, where no answers have been put in, or pleadings between the defendants, no proofs have been ■taken on the main subject of litigation between the plaintiff and defendants, and- there is nothing to show whether judgment was obtained by the plaintiffs against the defendants, or any of them, by default; or any issues formed between them, of law or fact, or any disposition made of such issues; the court has no -jurisdiction or power to give judgment in favor of one defendant against two others, merely upon the confirmation of a referee’s report, (hiding a certain sum due by the latter to the former.
    (Before Robertson, Ch. J. at special term,
    April, 1864.)

      W. C. Barrett, for the defendant Dempsey.

      Tuthill & M. Hoffman, for the defendants, Halls.
   Robertson, Ch. J.

I am called upon, in this case, to give judgment in favor of one defendant (Dempsey) against two. others (Halls,) upon the confirmation of a referee’s report alone, finding a.certain sum due by the latter to the former. The only pleading furnished me is a complaint; nothing before me shows whether judgment was obtained by the plaintiffs-against the defendants, or any of them, by default; or whether any issues have been formed between them, of law or fact, and any disposition made of such issues. It is true the order of reference in pursuance of which the report was made, on which judgment is asked, contains a denial of a motion on the part of the Halls to dismiss the complaint, and counsel hWe argued the question, how far the court can give judgment between the defendants, without disposing of the case as between them and the plaintiffs.

The complaint is in form a creditor’s action, to set aside an assignment by the defendant Austin Hall, to the defendant Asa Hall, of the property of a special partnership in which the former was a general partner, and the defendant Dempsey a special partner ; and also to compel the latter to return a certain amount received by him from the assets of such copartnership. An order was made in this action, in the year 1855, ordering such complaint to be deemed to have, been exhibited on the part of all the creditors of such special partnership, and, strangely enough, making such order itself a part of the plaintiff’s complaint, without amending it in any way.

The order of reference in question was made in 1858, directing an account to be taken of all the assets of such special partnership and its liabilities, on a certain day; also, of the amount thereof collected by the defendant Austin Hall during a certain period, and of the amount which passed into the hands of the defendant Asa Hall by such assignment, and his disposition thereof, taking previous reports of the same referee, under orders in this action as a basis ; also, of the amount of the debts of such firm paid by any of the defendants, and which, respectively; also, the amount of debts unpaid, and the sum in the hands of the receiver appointed in such action ; and whether the defendant Dempsey has disposed of the mortgage ; also, the amount paid by Asa Hall as assignee. And it was further ordered by said order, that the receiver, out of moneys in his hands, should pay the referee’s fees of conducting the reference.

The referee’s report has undergone the ordeal of exceptions, a confirmation of it at special term, and the affirmance of such order of confirmation at general term, and it is now supposed that this court can, and is bound to give a judgment between the defendants, founded on such referee’s report.

There is no doubt that the Code permits affirmative relief to be given to a defendant, as against the plaintiff, and where equities arise between defendants by reason of.relief granted in the action to a plaintiff, as against one or more of them, possibly such relief may be given, in some peculiar cases, to defendants against each other, in order to do complete justice, (Livingston v. Mildrum, 19 N. Y. Rep. 440 ;) but there is not a disposition in courts to make the exercise of such right general, (Wells v. Smith, 7 Abb. 261; Tracy v. Steam Faucet Co., 1 E. D. Smith, 349,) and it is even doubted if, under the Code, it can be given in any case. (Mechanics &c. Inst. v. Roberts, 1 Abb. 381. Norbury v. Seely, 4 How. Pr. 24.) Whenever, however, such relief is granted, it would seem the proper course to enable the court to pass upon proper issues would be, that statements in the nature of pleadings should be framed between the parties, (Decker v. Judson, 16 N. Y. Rep. 439, per Denio, J.;) although in the casa before cited, (Livingston v. Mildrum, ubi supra,) the defendant did not claim relief against his co-defendant in his answer. But relief, even in such cases, can only be granted in respect to matters immediately connected with the subject matter of the action, (Morrill v. Sandford, Cl. & Fin.; S. C. 8 Jur. 967 ; Elliott v. Pell, 1 Paige, 263,) and not as to those not litigated therein, (Jones v. Grant, 10 Paige, 348 ; Elliott v. Pell, ubi supra ;) and particularly not as to transactions in the course of the action, incapable of being set up in a pleading, although they referred to property to be affected by the litigation. (Jones v. Grant, ubi supra.) In courts of equity, formerly, when such relief was granted by and against defendants, it could only be on pleadings and proofs. (Jones v. Grant; Elliot v. Pell, ubi supra. Benwick v. Macomb, Hopk. 277. Chamley v. Dumsay, 2 Sch. & Lef. 710. Conry v. Caulfield, 2 Ball & B. 255.)

In the present case there are no answers put in ; no pleadipgs between the parties ; no proofs on the main subject of litigation between the plaintiff and the defendants, to wit, the fraudulent assignment and transfer; and although the facts found by the referee may be useful in determining how much each of the defendants ought to pay the plaintiff or other creditors, in case such assignment and transfer be adjudged on the trial of the issues in the action fraudulent; yet I can find no jurisdiction to base thereon a judgment by one defendant against another as on an accounting between partners, unless they are adjudged to pay the plaintiff and other creditors their debts in this action.

It is barely possible that if any funds have been paid to the receiver, by the defendants, and in consequence of the discontinuance of the action any moneys are to be paid back by him, to them, the referee’s report may be of some use in determining what should be repaid to each; or, if the' reference in this case is ancillary to the order previously made, that the parties deliver over to the receiver the assets of the special partnership in their hands, an order may now be made that they deliver over to him what the referee has found to be in their possession. The plaintiff’s counsel, in bis brief, speaks ,of money paid by the receiver to creditors. I find no evidence before me of such payment, or any authority for it; nor do I see how it could be authorized, until the final determination of the issues in this action between the plaintiff and defendants.

I cannot now undertake to determine that the reference ordered was not necessary, or within the power of the court for some of the purposes of the action, and that the defendants, the Halls, have agreed by not appealing from the order of reference, to submit their rights to the decision of the referee. But the order itself does not make the referee’s report binding on the parties ; on the contrary, it leaves every thing open to the future action of the court, in the cause; ¡

This action is not in a fit state for any decision in it, nor do I see how defendants can make use, against each other, by any mere consent between themselves, of the machinery of the court necessary to be put in motion in an action against them by a third party. The right of suing each other, of submitting to arbitration, or presenting a case for the decision of a court, belongs to them. But I cannot see how, by a pretended action by such third party (as this would be if the plaintiff disappeared from it,) and a consent between defendants, with a new style of- pleadings between themselves, jurisdiction can he conferred on. the court to render judgment in favor of one against the other. Either can file a complaint against the other, it is true, which the latter can answer, and they may agree to refer the issues to the same referee, agreeing that the proofs already taken may be used before him ; but it will be a new action, and not that in which the present plaintiff is plaintiff, and the present defendants are defendants.

It is not necessary to portray or dilate on the inextricable confusion to which such a practice as is now invoked would lead ; it is alluded to by Judge Denio, in Wright v. Delafield, (25 N. Y. Rep. 267.) I regret not to have been able to find any mode of assisting the parties after a tedious and expensive inquiry, but the expense is somewhat lightened by the direction to the receiver to pay the referee's fees.

I must decline making any order, or giving any judgment, at the present stage of the proceedings in this action.'


text:
    Marx Kahn vs. Philip Freytag.
    Where the defendant, under a promise of marriage, seduced the plaintiff’s minor daughter, finally accomplishing her ruin by force, in a house to' which he had lured her by false pretenses; after which the intercourse between them continued and she became pregnant by him, but neither made any complaint to her parents of the outrage, or disclosed her condition, and they allowed her to absent herself from home at night, without excuse or inquiry; Held that although it was a proper case for holding the defendant to bail, in an action for seduction, such circumstances should mitigate the amount of bail.
    (Before Robertson, Ch. J. at special term,
    April, 1864.)
    Motion to reduce the amount of bail, in an action for seduction.

      A. H. Reavy, for the defendant, and motion.

      H. L. Clinton, for the plaintiff, contra.
   Robertson, Ch. J.

The affidavits on which the order of arrest was made disclose a right of action. The plaintiff’s daughter was a minor, living with her parents, and the plaintiff had not parted with a right to her services at the time of the assault complained of. She has been pregnant several months, and necessarily less capable of profitable labor. (Clark v. Fitch, 2 Wend. 460. Hewit v. Prime, 21 id. 79. Bartley v. Richtmyer, 4 Comst. 38.) In the case of Knight v. Wilcox, (14 N. Y. Rep. 415,) there was no pregnancy or other incapacity to render service caused by the assault, stated or proved.

In this case, the acquaintance of the defendant with the plaintiff’s daughter began in July, 1862, by her going to his shop to purchase groceries for her parents. In September following, he first promised to marry her;. and continued to do so until November, 1863, when he succeeded in accomplishing her ruin by force, in the second story of a house into which he lured her by representing that a friend of his sister’s lived there. After that time the illicit intercourse between them continued Until her pregnancy was discovered. The ordinary intercourse between these parties took place in the evenings, during all the time of their acquaintance, and was clandestine, without the knowledge of the plaintiff and his wife. The plaintiff’s daughter is now seventeen. These facts appear in the plaintiff’s affidavits, but it does not appear therefrom when the pregnancy commenced.

Such a case undoubtedly calls for highly punitive damages against the defendant, unless mitigated by some circumstances not now apparent. Some matters do appear, however, requiring explanation, in order to justify holding him to bail in an-.extravagantly large amount. He promised his victim (if such) to marry her in a short time after their first acquaintance, and he continued to do so for upwards of fourteen months.. Their meetings were clandestine and at night, although she was quite young, without any apparent inquiry on her parents’ part, or any reason assigned why he did not pay his addresses to her, at their house ; or why she was satisfied to meet him- elsewhere. Although he had never before taken any liberties with her, he gratified his desires by force, in a place where she was induced to go, not to see á relative or friend of his, but a friend of a sister. After that outrage, instead of any complaint, she continued, from time to time, to yield to his desires, and said nothing of her condition until it was discovered. The defendant may have taken advantage of his experience and her inexperience to delude her; but some consideration is due to the readiness with which she first listened to a promise to marry and then'to its constant repetition for a year, without disclosing it to her parents, continuing all the time to meet her promissor secretly; and absent herself from home at night, apparently without excuse .or inquiry, and, after a gross outrage had been committed on her by force, continuing the improper connection voluntarily, • and concealing it and her pregnancy. Making every allowance for the effect of the influence of protestations off affection, attentions and promises to marry,-in inducing a woman to yield, I- do not feel entirely satisfied, in this case, that the -person debauched .was so entirely pure and misled solely by her affections and the. defendant’s acts, -as to have been a- -wholly.-innocent and reluctant victim; nor that the plaintiff was entirely blameless in refraining from exercising a proper supervision over his'daughter’s conduct. ■ I cannot, therefore, consider it as such an extreme case of reckless, unfeeling and inexcusable libertinism as to merit unbounded punishment. Still, the defendant deserves no light punishment. In violation of morality, he has destroyed the plaintiff’s child’s prospects and blasted her character .for a selfish gratification,- and done so under, a promise of marriage, after secret attentions, concealed from her family, by which he -secured her affections. Although they, on her promise to marry, may have been too easily -won, this did-not entitle him- to take advantage of that facility to ruin her. He had no right to remove any of the guards of her virtue and create intimacy and confidence by his promises to marry, if he did not intend to fulfill them.

As he is now held to bail in an .action for a breach of the promise to marry, for two thousand five hundred dollars, the order in this action must be reduced to two thousand dollars, which will probably equally secure his attendance on the final result of the action. And this may be, without prejudice to a motion on the part of the defendant to reduce it still farther, on affidavits on his part.


text:
    Philo Johnson, plaintiff, vs. George Mallory, defendant.
    1. The “account” alleged in a pleading, the refusal to deliver a copy of which by the party alleging it, to the adverse party, precludes him from giving evidence of it under the Code of Procedure (§ 158,) is some written instrument existing before the commencement of the action, evidence of the existence and contents of which is to be material to the party alleging it. In other words, an account claimed to have been rendered and acquiesced in; that is, an account stated.

    2. It is not necessary, in an action for the completion of a piece of work by numerous successive acts of service, all of which contributed to such completion, to set out in the plaintiff’s bill of particulars each service so contributing, and its character.
    3. Whenever the successive efforts of a party are directed to accomplishing, to which they al( contribute, and there is no customary mode of measuring the compensation for every act or series of acts tending to bring about the final result, it is not necessary to furnish a bill of particulars of the services, although it may be necessary to describe the nature and character of the services, and the result at which they were aimed.
    4. If a complaint is not sufficiently definite and certain in these respects, the remedy is by motion to make it so.
    (Before Robertson, Ch. J. at special term,
    April, 1864.)

      J. S. Stevens, for the motion.

      A. R. Dyett, contra.
   Robertson, Ch. J.

The plaintiff’s claim, as set out in the complaint, was for “ work and labor, care and diligence about the business and affairs of the defendant,” * * “ performed and bestowed ” by “ the plaintiff from about the 20th of December, 1861, until June, 1862, and from the 15th of December, 1862, to the 1st of June, 1863, in the Island of Cuba.” No account is alleged therein, nor are any items of work specified. A demand was made on the plaintiff’s attorney, for “ a copy of the account alleged in the complaint, duly verified.” The plaintiff's attorney afterwards served two different bills of particulars; the last after the service of an ex parte judge’s order of this court requiring the plaintiff to deliver a further account stating particularly the items of the account, with the dates and amounts thereof.” Both of such bills are verified by the plaintiff’s oath that “ the foregoing items of account of his demand alleged in the- complaint in this action against defendant, he believes it to be true but he does not verify any copy of an account. A motion is now made to preclude the plaintiff frqm giving evidence of such account on the trial.

The last clause of the 158th section of the Code provides that a court may in all cases order a bill of particulars of the claim of either party to be furnished this-of course furnishes a sufficient remedy in all cases where a claim consists of several items or particulars ; and as no sanction is affixed to a compliance with1 such order, the only mode of enforcing it is probably by proceeding for a contempt; unless the former practice in regard to bills of particulars remains unchanged. The first clause of such 158th section provides in substance, that where an account is alleged in a pleading, the party alleging it shall be precluded from giving evidence of it unless he deliver to the adverse party a copy of it, duly verified by an oath that-the affiant believes it to be true, if the complaint is verified in ten days after a demand thereof. It also relieves a party from the necessity of setting forth in a pleading the items of an account so alleged in it. In the ninth subdivision of the 64th section of the Code in relation to proceedings in justices’ courts which is in somewhat “pari materia,” it is declared to be sufficient for a party to deliver to the court the “ account or instrument for the payment of money on which the suit is brought,” which are thus put on the same footing, and to state there is due to him “ thereon ” from the adverse party a specified sum. In both these sections, but particularly the former, the term “ account ” cannot be meant to designate a mere list of items like a tradesman’s bill prepared for the occasion. The 158th section requires the account of which a copy is to be furnished to be alleged in the complaint. The copy is to be of it, and the evidence excluded is to be of it and not of the items contained in it. It evidently therefore means some written statement existing before the commencement of the action, evidence 'of which is to be material to the party alleging it. In other words, the language can only be understood to apply to an account claimed to be rendered and acquiesced in ; in other words, an account stated. It is included in a chapter entitled “ General Buies of Pleading,” and can only be construed to be intended to point out the mode of pleading an, account, as well as to enable the adversary to ascertain what account was intended. What is meant by the second clause, that where an account delivered is defective, a “ further account ” maybe ordered, is not so clear, unless it apply to an incomplete copy of the account alleged. The last clause of such section would clearly cover the case of a failure to furnish items in' a bill. .

It is not necessary in an action for a claim for having com-' pleted a piece of Work by numerous successive acts of service, all contributing to such completion, to set out each service so contributing and its character. There is scarcely an article made or work accomplished that has not been so' by means of á series of efforts. The painting of a picture, building a machine, or trying a cause, are illustrations of such a course of action. Every blow of an artizan’s hammer is a separate labor; yet the aggregate of a day’s work is charged, because it is the usual mode of measuring such services consisting of a great many particulars. Whenever, therefore, the efforts of a party are directed to the accomplishing of a work to which they all contribute, and there is no ordinary mode of measuring the compensation for each act or series of acts bringing about or tending to do so, the -final result, it is not necessary to furnish a bill of particulars of the services. It is necessary, however, to describe the nature and character of the services, and the result at which they were aimed. If a complaint is not sufficiently definite and .certain in these respects, the remedy is by motion to make it so.

I think in this case that so much of the plaintiff’s labor as consisted of his services in obtaining a patent in the Island of Cuba are sufficiently described in the last bill of particulars served; the description however of the suits carried on by the plaintiff was insufficient; the services in each suit should' be • charged separately. The labor of procuring testimony or taking it, if its value can be separately measured, or it can be charged for, should also be specified, with dates and names. The service also of consulting with a professional adviser,- as also the period of it, should be separately stated. So also should the presentation of petitions and obtaining injunctions from courts, the services of employing and keeping Chinese laborers and the seizure of goods, not being necessarily connected with each other, although perhaps tending to a common end. The gross compensation claimed evidently depends on the aggregate of the values of all the services ; the claim, is on a quantum, m&ruit only. The defendant could disprove the claim, by proving the small value of each service ; why should not: the plaintiff be required to state and prove its large value in the same way ? Dates are necessary to enable the defendant to meet the charges ; the plaintiff cannot so soon have forgotten them, and may at all times correct a mistake. All the defendant is entitled to now is the plaintiff’s best recollection. The plaintiff must therefore be required to furnish a bill of particulars amended as before mentioned, within fifteen days, or have his complaint dismissed.

Ten dollars costs of this motion are to abide the event of this suit.


author: Robertson, Ch. J. Barbour, J.

text:
    James Watt, Jr. plaintiff and respondent, v. Archibald Watt, defendant and appellant.
    1. An order directing the defendant to deliver to the plaintiff an account in " writing of the particulars of the payment or payments of the plaintiff’s demand, and of the set-off alleged in the answer, or show cause why he should not deliver such account, &e. is-not appealable.
    2. Where the answer sets up a full and complete defense by averring the absolute payment of the whole amount due the plaintiff, and satisfaction of his claim, the plaintiff cannot require a hill of particulars of the payments set up in the answer, under section 158 of the Code.
    3,. If the answer, in such a case, is defective in any particular in which it ought to be precise, the remedy is by motion.
    (Before Robertson, Ch. J., and Barbour and McCunn, JJ.)
    Heard May 7, 1864.
    Appeal from an order made at special term.
    The complaint alleged that the defendant, on the first day of January, 1841, at the city and county of Few York, was indebted to the plaintiff, in the sum of twenty thousand dollars, for money before that time lent and advanced by the plaintiff to the defendant, and at the special instance and request of the said defendant; and for other money by the plaintiff before that time paid, laid out and expended for the defendant, and at the like request of the defendant; and for other money by the defendant before that time had and received to and for the use of the plaintiff; and being so indebted, the defendant, in consideration thereof, afterwards, to wit, on &c. at the place aforesaid, undertook, and then and there promised the plaintiff to pay him the said sum of money on request. And that the defendant afterwards," to wit, on &c. and at the place aforesaid, accounted together with the plaintiff of and concerning divers other sums of money before that time due and owing from the defendant to the plaintiff, and being in arrear and unpaid ; and upon such accounting the defendant was found to be in arrear and indebted to the plaintiff in the further sum of twenty thousand dollars ; and being so found in arrear and 'indebted to the plaintiff, the defendant, in consideration thereof, after-. wards, to wit, on &c. undertook, and promised the plaintiff well and truly to pay him the said sum of money last mentioned,- when he the defendant should he thereunto afterwards requested. A neglect and refusal to perform was then alleged.
    The defendant, in his answer, denied generally the allegations of the complaint, and alleged that all moneys due and owing from him to the plaintiff for or by reason .or on account of any of the matters in the complaint alleged, were, prior to the commencement of this action, paid and satisfied ; that heretofore, and prior to the commencement of this action, the plaintiff and the defendant had mutual dealings and transactions ; in the. course of which said dealings the defendant paid, laid out and expended divers sums of money for and on behalf, and at the request of the plaintiff, and said plaintiff became indebted to the defendant therefor, .and for ■ money by him had and received to and for the use of the defendant, apd on other accounts, in a large sum of money; and after crediting the plaintiff with all moneys with which he was entitled to be credited, there was due and owing from the plaintiff to the defendant, at the timé of the commencement of this action, a balance of said account, amounting to a large sum of money, to wit, the sum of twenty thousand dollars, which amount the defendant claimed from the plaintiff.
    The plaintiff put in a reply denying that there was due and owing from the plaintiff to the defendant, at the time of the commencement of this action, or is now due, a balance of account amounting to a large sum of money, to wit, the sum of twenty thousand dollars, or any other sum whatsoever.
    The plaintiff, upon the pleadings and affidavit, applied to •the court, at a special term, and obtained an order directing that the defendant’s attorneys deliver to the plaintiff's attorney an account in writing of the particulars of the payment or payments of the plaintiff’s demand in this action, and also of the set-off against the plaintiff’s demand in this action, alleged in the answer of the defendant, by a day specified, or show cause why the defendant should not deliver spch account, or in default of doing so, why he should not be precluded at the trial from giving evidence of said alleged payment and set-off.
    From that order the defendant appealed.

      C. Burrill, for the defendant, (appellant.)

      D. D. Lord, for the plaintiff, (respondent.)
   Robertson, Ch. J.

It was not necessary in this case, to obtain any order of the court for the delivery of a bill of particulars by the' defendant, if the set-off was of an account. within the meaning of the 158th section of the Code, It would only have been necessary .in case it was a claim within the meaning of the last clause of such section, and not an account. What is meant by an account in such section, is not very clear. It requires a copy of an account alleged in a pleading, to be delivered in ten days after a demand thereof, “ which (copy,) if the pleading is verified, must be verified by” the oath of the party or his agent that “ he believes it to be true.” The meaning of being, true is equally obscure; a copy that is true means nothing more, than a correct transcript of some original; it does not at all resemble the verification required pf a pleading by the preceding section. In the very outset it speaks of the allegation of an account, and not items forming one. Perhaps, however, it may be gathered from .the' whole section, that its object was to prevent prolixity in pleading, and to substitute a list of items in a separate inventory for their insertion in a pleading, in analogy to. a bill of particulars as required under the 'prior practice, resembling, somewhat, a bill of parcels. (Bagley’s Pr. 204.) If that be the proper meaning of account, in such section, the plaintiff was entitled to demand of the defendant such an account of his set-off, and on proof of service of such demand, and a failure to comply therewith, to preclude him from giving any evidence thereof.

I think it extremely doxxbtful whether the plaintiff could ' require a bill of particulars of the payments set up in the answer. Partial payments of money, to be applied to an account generally, do not constitute a defense either to the whole or any part of the items composing it; they merely mitigate the damages, and therefore need not be pleaded, or they may amount to an offset. If pleaded, they would not give the plaintiff any more right to.a bill of particulars than he would have had if they had not been pleaded. Payment in full satisfaction and extinguishment of a claim must be pleaded, in order to be given in evidence, because it is a defense. If the mode of pleading it be defective, the remedy is by a demurrer, or motion to make definite and certain. I cannot understand the answer as setting up any thing but a full and complete defense by the absolute payment of the whole amount due the plaintiff, and satisfaction thereby of his claim. If defective in any particular in which it ought to be precise, the remedy is by motion.

But the plaintiff has not yet obtained any effective or final order affecting the merits of the case, or a substantial right. The order appealed from is merely one to show cause, in case the defendant did not furnish the required bill of particulars within the time specified. If the court, at special term, should commit any error on hearing that motion, it may be corrected on appeal; but the present is not an appealable order, under the 349th section of the Code, and the appeal, therefore, should be dismissed, with costs.

McCunn, J. concurred.

Barbour, J.

I concur in the conclusion of the chief justice, upon the.ground that the order is not ah appealable one.


author: Garvin, J.

text:
    Charles E. Appleby, plaintiff and respondent, vs. John Barry, defendant and appellant.
    In March 1864, the plaintiff’s attorney filed a request in the office of the clerk of this court requiring him to docket a judgment against the defendant. The ' clerk filed it, and gave the plaintiff a transcript, on the same day, which was filed in the county clerk’s office, as required by law; but no actual entry was made in the judgment book, by the clerk of this court, until May following, (1864,) after an execution had been issued upon the judgment. Held that this was a substantial compliance with section 280 of the Code, as between the parties to the judgment; and that the docket in the county clerk’s office was a sufficient foundation for the execution.
    (Before Barbour and Garvin, JJ.)
    Heard June 18, 1864.
    This is an appeal from an order denying a motion to set aside an order for the examination of the defendant, in proceedings supplementary to execution, and to dissolve the temporary injunction.

      Wm. C. Clifford, for the appellant.
    The defendant contends that there was no judgment against him upon which proceedings could be taken by execution or otherwise; and that until judgment was regularly entered up against him, no valid execution could issue; and that consequently no order to examine him on proceedings supplementary to execution would be regular, and if granted should be set aside.
    I. The Code requires the clerk of the court to keep a book, to be called the “ Judgment Book,” in which shall be entered the judgment, and after entering the judgment, the clerk shall file the judgment roll. (Code of Procedure, §§ 279, 280, 281. Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. Pr. 226. Blydenburgh v. Northrop et. al., 13 id. 289.)
    II. There can be no judgment, unless the same is regularly entered by the clerk in the judgment book required to be kept by law. “ The decision of the court in writing is not the entry of judgment; in such a case, as in all others, the clerk must, enter the judgment in the judgment book.” (Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. 226. Lentilhon v. Mayor of New York, 3 Sandf. S. C. R. 721.)
    III. “ There is no suit, no recovery, or adjudication, either actual or formal, of any court or officer, until the judgment is entered by the clerk; and it is the act of this officer that not only creates the lien, but the judgment. * * * * * * Until this clerk enters and records the adjudication thus authorized, there is no judgment at all.” (Opinion of Judge Emott in Blydenburgh v. Northrop and others, 13 How. Pr. R. 289.)
    IV. “ A judgment is not perfected under the Code until entered in the judgment book.” “ Then, and not before, the judgment would be complete and perfect, and the clerk could make up the judgment roll, and the judgment could be docketed and collected.” (Sandf. J. in Lentilhon v. The City of New York, 3 Sandf. S. C. R. 721.)
    V. A mere direction of an attorney to the clerk to enter up judgment, is not an entry of judgment. In the present case the judgment was not entered up, and therefore no execution could issue. Entry of judgment is a condition precedent to the issuing of execution. See section 283 of the Code, which says, “execution may be issued at any time within five years after the entry of judgment."

    VI. If the execution is not valid, no proceedings can be taken on it by the plaintiff, and he has no right to examine the defendant on supplementary proceedings. Therefore, the order of May 10 th, requiring- the defendant Barry to be examined as a judgment debtor, should be set aside.
    VII. ’The defendant ought not to be examined as a judgment debtor, on a judgment docketed against him two days after the order of examination was served, and which judgment has not yet been entered in the judgment book of this court.
    VIII. Filing the judgment roll is not the entry of judgment. Section 281 of the Code directs that the clerk immediately after the entry of judgment, shall 'file the judgment roll. If judgment be never entered up, the clerk has no right to file the'judgment roll.

      IX. The judgment was not entered in the docket until May 4, 1864, and it has never been entered in the “judgment boob.”

      P. W. Turney, for the respondent.
    The judgment is in effect docketed in the court in which it is rendered, from the time of the filing the judgment roll. (1 Van Santvoord’s Equity Practice, p. 138.) The roll is the evidence of the judgment, and the roll and indorsement are the original docket.
    IL It is not requisite that the judgment should be entered in the alphabetical index in the Superior Court clerk’s office, although it is done in practice. The Code, § 279, only requires it to be entered in the judgment book, which was done in this case. The provisions as to the docket, in the Code, (§ 282,) are clearly applicable only to the docketing in the county clerk’s office. § 289 of the Code requires the execution to state the county where the judgment roll is filed, and the time of docketing in the county; there is no reference to any other docket than that in the county clerk’s office.
    III. The statute has been substantially complied with. No party could be misled. A search against. John Barry, in the county clerk’s office, would have produced a return of the judgment. A substantial compliance with the statute is all that is necessary. (Sears v. Burnham, 17 N. Y. Rep. 445. Hunt v. Grant, 19 Wend. 90.)
    IV. There is no necessity for docketing the judgment in the county clerk’s office, as between the parties ; the docket being intended as a protection and notice to third parties. (3 Cowen, p. 50, note.)

    V. The defect (if any) is a mistake of the clerk, and it is a settled principle with the courts, that its suitors shall not be prejudiced by the mistakes of its officers. (Welles, J. 9 How. Pr. 18. Sears v. Burnham, 17 N. Y. Rep. 448. Close v. Gilespey, 3 John. 526. Sommerindyke v. Drake, 1 C. R. 9. Chichester v. Cande, 3 Cowen, 39.)
    In Sears v. Burnham, (17 N. Y. Rep. 448,) Judge Strong says: “ A substantial observance of the requirements of the statute, having reference to the object the legislature had in view of affording information to all who might be affected by the judgment, I am satisfied is all that was designed, or is necessary. Those provisions are merely directory; and omissions and variances, "which cannot work any prejudice, are immaterial. ° «• $ The mistakes of the clerk are to be overlooked when no prejudice results. In the present case the error in the docket could not possibly prejudice the appellant, * * the like search which would have beeh required if the dockets had been correct would have disclosed the judgment and the mistake.”
    The alleged defect, is one of those specified in § 176 of the Code, and it appearing that such alleged defect does not affect the substantial rights of the appellant, the court must disregard it, and the judgment cannot be affected by reason of such defect. (2 Edwards’ Stat. at Large, p. 442, § 4 and 37, div. 12 and 13. Code, § 176.)
   By the Court,

Garvin, J.

It appears that on the 3d of March, 1864, a request from the plaintiff’s attorney ivas filed in the office of the clerk of this court, requiring him to docket a judgment against the defendant and others for $1785.25, and interest from April 1, 1859, being the deficiency reported by the referee in the action. The clerk filed it,- and gave the plaintiff a transcript, on the same day, and it was filed in the county clerk’s office, as required by law, but it is alleged that no actual entry was made in the judgement book by the clerk of this court, until the 14th day of May, 1864; that an execution was issued upon the judgment, on the 3d day of March, 1864, and returned wholly unsatisfied. On the 10th of May, 1864, an order was made requiring the judgment debtor to make discovery of his property, and forbidding the transfer thereof. It is now contended on the part of the defendant, that there was' no judgment against the defendant at the time of the issuing of the execution, and making the order for his examination. The transcript in question was filed under the law passed in 1840, p. 327, wherein it is provided that no judgment shall be a lien upon real estate, unless the same shall be docketed in the clerk’s office of the county where the lands are situate. (§ 25.) Sections 27 and 28, carry out this provision in regard to this court; and section 29 provides that the judgments of the Superior Court, and common pleas, may be docketed in other counties. _ The primary objects of these sections relating to the docketing of judgments and decrees, in the several counties, was to make the clerk’s office of the county the only place where search need be made to ascertain what liens and charges existed upon any lands in that county. It is a good provision, and of great convenience, arid is now so interwoven with all the business habits of the community, that it is generally known, and all judgments are thus docketed in the county clerk's office, and no one thinks of 'going elsewhere to look for liens, or charges by way of judgment or decree. It is true, the Code requires that the judgment shall be entered in the “judgment book,” and shall specify the determination of the action. (§ 280.) This was in effect done by the clerk of this court, when he filed the roll and gave the transcript, which on the same day was docketed in the county clerk’s office, in the “judgment book,” as we must assume, nothing appearing to the contrary; and before this motion was heard at the special term, the judgment had been docketed, in fact. We must hold this to be a substantial compliance with section 280 of the Code, as between the parties to the judgment. The rights of third parties are no way affected ; and it is difficult to see how they could in any way be injured'. All necessary infoririation is afforded to third persons at the. clerk’s office where inquiries are made, and information sought; and the docket in the county clerk’s office is a sufficient foundation for the execution in this case.

It has been held that a substantial compliance with the. requirements of a statute having reference to the object of the legislature in affording information to all who might be affected by the judgment, is all that was designed or is necessary. (17 N. Y. Rep. 446.)

The order of the judge at special term should be affirmed, with costs.


author: Barbour, J.

text:
    Babette Betz, plaintiff and respondent, vs. Charles Betz, defendant and appellant.
    1. An act of condonation, to be effectual, must be • one to which both husband and wife assent, and in which each participates. An unaccepted offer of the wife to return to the matrimonial bed is not,- of itself, a condonation, but only an expression of a willingness to condone.
    2. The mere expression of a desire on the part .of the plaintiff to make an agreement with the defendant, whereby the injury shall be condoned at a future period, and on the latter’s assenting to and' performing certain conditions, is not an absolute condonation..
    3. Tlie term “ condonation” necessarily includes that operation of the mind, evinced by words or acts, known as forgiveness ? the. free, voluntary and' full remission of a matrimonial offense. Unless accompanied by that operation of mind, even cohabitation without fraud or force, is insufficient to establish a condonation.
    4. Where the offer of a wife to return to her husband was made for the purpose of obtaining a support for herself and her child during the pendency of the suit, and because tlie order of the court required her to do so, as a condition . upon which such support Was to be obtained; such support being intended by the court as a substitute for an {award of alimony during the progress of the suit, and being so accepted and acted upon by the wife; Held that this did not amount to a condonation.
    (Before Barbour and Garvin, J.J.)
    Heard June, 1864.
    Appeal from an order made at special term.

      Ed. Randolph Robinson, for the appellant.

      Kapp & Goepp, for the respondent.
   By the Court,

Barbour, J.

This is an appeal from an order denying the petition of the defendant for leave to put in a supplemental answer, in a suit for a divorce a mensa et thoro, for alleged cruelty and abandonment. The facts are as follows : After the commencement of the suit, and on the 21st of March, 1863, upon an application made for alimony pendente lite, the court directed, by its order, that “the plaintiff must offer to return to the society of the defendant, in case he shall provide a place for her support within a week from the making of this order; and, in case she does so, the defendant must provide such place and support; if she does not, the motion must be denied ; if she does, and he does not supply such place and support, there must be an order for his allowing her »$>8 a week, until the determination of- the cause, and $30 counsel fee.” The plaintiff, being quite poor, and having no means of support for herself and infant child, thereupon offered to the defendant, in writing, to return to his society on his providing a suitable abode and support for her, in accordance with the terms of the order. Seventeen days after this, the defendant notified the plaintiff that he had, in pursuance of the order of the 21st of March, and the offer of the plaintiff under the said order, provided a suitable place for her abode at No. 1258 Broadway, and also a suitable support for her at said house. The plaintiff .thereupon caused the proposed residence to be examined, and finding it, in her opinion, unsuitable, declined to reside there, and notified the defendant thereof.

The proposed supplemental answer simply avers that on the 25th of March, 1863, the plaintiff offered to return to the society of the defendant on his providing a suitable place of abode and support for her; that on the 11th of April, 1863, the defendant offered to and did provide a suitable abode and support for her, and offered to receive her back, and that she refused and still refuses to accept such offer.

The defendant claims that this offer of the plaintiff to return to her husband and live with him, was a condonation of the injuries complained of, and, therefore, constitutes a bar to further proceedings in the action. I am satisfied upon an examination of the authorities, that this position cannot be maintained. For, the proposed supplemental answer does not aver that the offer of the wife was accepted by the defendant, and it expressly states that his offer, which was not made until the lapse of seventeen days, and which appears from such supplemental answer to have been a distinct proposition on the part of the husband, entirely unconnected with the offer the plaintiff had previously made to him, was refused by her. There was no time, therefore,, when the minds of the parties met upon the offer on the one side to forgive, upon the specified conditions, and the acceptance of such forgiveness and the performance of those conditions by the other ; and an act of condonation, to be effectual, must be one to which "both husband and wife" assent, and in which each participates. An unaccepted offer to return to the matrimonial bed is not, of itself, a con-donation, but only an expression of a willingness to condone. In the case made by the supplemental answer, it was, at most, merely the expression of a desire on the part of the plaintiff to "make an agreement with the defendant whereby the injury should be condoned at a future period, and on the latter’s assenting to and. performing certain conditions. That was not condonation. (See 2 Bishop, 347. Popkin v. Popkin, 1 Hagg. Ecc. R. 766. Ferrars v. Ferrars, 1 id. 781, n. Quarles v. Quarles, 19 Ala. R. 363. Peacock v. Peacock, 1 Swab. & T. 183.)

Again: The term condonation necessarily includes that operation of the mind, evinced by words or acts, known as forgiveness ; the free, voluntary and full forgiveness and remission .of a matrimonial offense. Unless accompanied by that operation of the mind, even cohabitation without fraud or force, is insufficient to establish a condonation. (2 Bish. Mar. & Div. §52. D’Aguilar v. D’Aguilar, 1 Hag. Ecc. R. 773. Popkin v. Popkin, supra. Curtis v. Curtis, 1 Swab. & T. 192. Reese v. Reese, 23 Ala. R. 785.) In this case, it appears to iné, there is no evidence of an intention on the part of the wife to forgive her husband voluntarily, and to reinstate him in her affections, nor even to abandon her suit. But, on the contrary, it is quite clear that her offer to the defendant was made for the" purpose of obtaining support for herself and her child during the pendency of the suit, and because the order of the. court required her to do so as a condition upon which such support was to be obtained. It was intended by the court as á substitute for an award of alimony during the progress of the suit; and was so accepted and acted upon by the plaintiff.

. The proposed supplemental answer, therefore, would have constituted no defense; and, for that reason, the rejection of the petition Was proper. The order should be affirmed with costs.


author: Moncrief, J.

text:
    Clement Heerdt et al. plaintiffs, vs. Henry A. Wetmore et al. defendants.
    1. A referee has the power to adjudge that a party examined before him is guilty of a contempt.
    2. Although the court retains its inherent original power, concurrently with a referee, to punish for a contempt of court, in a matter pending before him, he ought first to pass upon the question of contempt, even if he reports his facts, conclusions and other necessary matters to the court, in order that the attachment may issue from it. Per Moncrief, J.
    3. A referee, having heard testimony, in an action committed to him to hear and determine, it is his duty to render a decision. Until some determination has been made, by him, the court cannot review his proceedings.

      4. Where a witness,-at the time of a direction to produce books, is not in a condition to comply with it, and no reasonable time, or_any time, is allowed within which he is to do so; but the order is in the present tense and absolute “ to produce a bank book and a check bookwithout any prior notice of the necessity then to produce them; and he has not been summoned to produce them, and swears he cannot at that time and place produce them before the referee; he cannot be punished for a contempt in not producing the books.
    6. It is highly improper for counsel to interrupt the orderly proceedings of a court of justice by instructing a witness not to answer questions. The right to refuse to answer resides with the witness, alone, and its exercise is at his personal peril.
    6. For such conduct, if not overlooked, or excused, as not an intentional contempt of court, it is the duty and within the power of the referee to adjudge such counsel to he guilty of disorderly or contemptuous behavior, to issue an attachment and commit him.
    7. The authority to punish for such misconduct pertains solely and exclusively to the court in which it occurs in its immediate view and presence; and cannot be delegated to a judge of this court, .
    (Before Moncrief, J. at special term,
    June, 1864.)
    Three applications are made on behalf of the plaintiff in this action; first, "for an order that an attachment issue herein against the defendant Morrison, for contempt of court, in refusing and omitting to produce and deposit with Philo T. Buggies, Esq. the referee herein, the check book and bank pass book of H. A. Wetmore with the Shoe and Leather Bank, * * and in refusing and neglecting to produce and deposit with said referee the individual books of account of the defendant Wetmore, as well as the check book of the defendant Morrison, with the Orange Bank;” second, “why an attachment should not issue against John M. Pinkney, the attorney and counsel for the defendant Wetmore, for contempt of court, in advising and instructing said defendant to refuse to answer the questions and produce the check hook mentioned in the certificate of the refereeand third, “ for an order that an attachment issue herein against the defendant Henry A. Wetmore, for contempt of court, in refusing, on his examination before the said referee, to answer the question in respect to the check mentioned in the certificate of the referee, and in refusing to produce the same, although directed by said referee to produce' the same,” &c.
    The witness Morrison was not required by a subpoena duces tecum to produce the books alleged to be in his possession, &c.; while under examination he was directed to produce some books, and it appears that this order was complied with; at a subsequent day he was ordered to produce other books “in reasonable time,” and in response thereto, he stated that he had none other in his possession or under his control; the referee thereafter directed that the defendant Morrison produce forthioith, and deposit with the referee, certain other books, and they were brought within the presence of the referee ; and he offered to make oath that those ten produced were the only books in his possession or under his control. Finally, an order is made to produce a bank book and check book not then in the possession of the witness, and not within his control, save at a place other than where such examination was being taken ,' it also appearing that such books were taken away by the counsel for the witness, who was present before said referee, and was not directed to produce them. No time was given in which to obey this direction.
    The counsel, Mr. Pinckney, instructed and advised his client, White, under an examination as a witness, not to answer certain questions put to him, &c.
    The defendant Wetmore, being under examination, as a witness, was asked to produce a certain check which had been in his possession, and undoubtedly was then under his control, if not upon his premises, elsewhere than at his place of examination, and he answered that he could not do so, and thereupon the counsel for the plaintiff moved that the referee instruct the witness to produce the check, and the referee so instructed him; the witness replied that he could not produce it.

      A. F. Smith, for the motion.

      I. M. Pinkney, opposed.
   Moncrief, J.

The learned referee has not in either instance adjudged that the party was guilty of contempt; he has the power so to do ; (§ 2 Code;) the propriety of so doing is illustrated by the proceedings which have taken place in his presence, as narrated in his report. It has been held that the court retains its inherent original power, concurrent with the referee, to punish for a contempt of court in a matter pending before a referee appointed by it; (Burnett v. Phalon, 11 Abb. Pr. R. 163, and Byas v. Smith, 4 Bosw. 679;) hut, generally, it would at least be useful that the referee should first pass upon the question, even if he reports his facts, conclusions, &c. to the court, in order that the attachment may issue from it. Whether, when an action has been referred, the court should retake it until the function of the referee has ceased by a final disposition by him, need not now be determined, as the counsel for the respective parties submitted to the jurisdiction of the justice at special term. A referee, under our present system, bears no resemblance to the former master in chancery; the latter, at best, was but quasi judicial; his duties were generally purely ministerial; his acts and whole function was as an auxiliary or amanuensis of the court of which he was acting as an officer; the former, however, is by statute possessed of the like power as the court in which the action is brought. (Code, § 272.) Having heard testimony in an action committed to him to hear and determine, it is his duty to render a decision. (O'Brien v. Bowes, 4 Bosw. 657.) Until some determination has been made by the referee, the court cannot review his proceedings. The witness Morrison was not in a position, at the time of the direction “ to produce the hooks,” to comply with it, and no reasonable time, of any time, was given within which he could obey the order ; it was present and absolute, “ to produce a bank book and a check book.” Of the necessity, then, to produce, he had not been notified ; to produce which he had not been summoned : and which he distinctly averred, under oath, he could not at that time and place produce before the referee. Whether an oral summons to a witness under examination, to produce at a future time books and papers in his possession, or under his control, of itself is sufficient to predicate a committal for contempt in case of disobedience, need not now be determined; my present conviction would lead me to doubt any other mode of obtaining them than by the agreement of the witness (while in court) to produce them, in ob'edience to the oral directions or by the usual method of a subpoena duces tecum.

It is highly improper for counsel to interrupt the orderly proceedings of a court of justice by instructing a witness not to answer questions. The right to refuse to answer resides with the witness alone, and its exercise is at his personal peril. The conduct of counsel in this case, therefore, must be assumed to have been overlooked, or excused," as not intended to be a contempt of court; otherwise it was the duty of the learned referee, then and there, to have adjudged the counsel to be guilty of disorderly or contemptuous behavior committed during the sitting before such referee, in his immediate view and presence, and directly tending to interrupt the proceedings, or to impair the respect due to his authority, and to have issued an attachment and committed him. The authority to punish for such misconduct pertains, solely and exclusively, to the court in which it occurs, in its immediate view and presence ; and .the power can no more be delegated to a judge of this court than it could legally be assumed 'by a judge of some other tribunal.

The same remarks made relating to Mr. Morrison apply to the application against Mr. Wetmore ; the check was not then in court, and he stated, in his examination, and now avers, in . an affidavit, that he gave as a reason for its non-production, ' that it was not then in his possession or under his control.

The motions are denied, with ten dollars costs.


text:
    Elisha Burrill, plaintiff, vs. James C. Jewett and Joseph D. Crockett, defendants. Samuel Lupton, plaintiff, vs. The Same, defendants.
    1, An attachment may he issued against the property of a defendant who left the United States for a distant country to take charge of three trading vessels in which he was interested, which actually performed several voyages from and to different distant foreign ports, and who was absent on that business for about two and a half years ; as a non-resident of New York within the statute relative to attaelments against non-resident' debtors; notwithstanding he had continued to keep up his house in the city of New York as before.
    2. The nature of the business in which the absent party intends to be engaged may be looked at, to determine as to the uncertainty or probable duration of his absence.
    (Before Robertson, Ch. J. at special term,
    September, 1864.)
   Robertson, Ch. J.

I think enough is admitted hy the defendant to justify the issuing of the attachment in these cases.

He, it appears by such admissian, left this country for China, to take charge of three trading vessels in which he was interested ; they performed several voyages to different ports in the Chinese and Eastern seas, and he has been absent "on that business for about two and a half years. That was enough to render him not a resident of Hew York, so as to bring him within the statute relating to such attachments. The case of Haggart v. Morgan, decided in the court of last resort, is conclusive on this point. (1 Seld. 422, affirming S. C. 4 Sandf. 198.) In that case, absence abroad, in attendance on business, for three years, was held sufficient to constitute non-residence, notwithstanding the debtor, as in this case, kept up his house in Hew York as he had previously done. It was also there held that the statute contemplated actual residence, without regard to domicil. Of course, the object of the statute was to provide for cases where the party would probably not subject himself to the process of our courts, within a reasonable time after judgment, by voluntarily coming within its reach; Hurlbut v. Seeley, 11 How. 507. 2 Abb. 138.) Such decision does not conflict with those in. Barry v. Bockover, (6 Abb. 374 ;) Chaine v. Wilson, (1 Bosw. 673 ; 8 Abb. 78 ;) Greaton v. Morgan, (8 Abb. 64;) Lee v. Stanley, (9 How. 272;) and Bache v. Lawrence, (17 How. 554,) where the debtor, having his domicil in another state, came daily, or with short intervals, to this state, to transact his business, but as constantly returned to the place of his domicil; thus making his absences, however numerous, only temporary. Nor does it conflict with that of Burrows v. Miller, (1 How. 349,) where the stay was uncertain, and depended upon the contingency of commencing business. The former Supreme Court of this state, as far back as The matter of Thompson, (1 Wend. 43,) made the test of residence abroad, engagement in business for a time, whether temporarily or permanently, and Chief Justice Nelson adopted the same criterion, of an intention to remain, at least for a time, for business or other purposes. (Frost v. Brisbin, 19 Wend. 11.) The distinction between the two kinds of stay abroad is, therefore, of long standing ; while, on the other hand, cases which seem to place residence and domicil on somewhat the same footing, (Thorndike v. City of Boston, 1 Metc. 245 ; Cadwallader v. Howell, 3 Harr. 144,) are rendered clearly inapplicable. (See Douglass v. Mayor, &c. of New York, 2 Duer, 110.)

The derivation of the two words, domicil and residence, fully points out the distinction in their meaning. A home (domus,) is something more than a temporary place of remaining (residendi,) however long such stay may continue. Lexicographers recognize such difference in their definitions of the two, and it is adopted as a legal distinction in several cases, (Roosevelt v Kellogg, 20 John. 208 ; Bartlett v. Mayor, &c. of New York, 5 Sandf. 44 ; Douglass v. Same, 2 Duer, 11besides that of Haggart v. Morgan, already referred to. But still, the nature of the stay in a place, which renders it a residence, remains to be determined. The permanence which is to make it so, does not depend solely upon past duration ; but the probability of a future continuance, growing- out of the object of the, sojourn in such place. One piece of business does not seem to be sufficient, (Matter of Fitzgerald, 2 Caines, 318 ; Boardman v. House, 18 Wend. 512 ; Crawford v. Wilson, 4 Barb. 504; Hurlbut v. Seeley, 11 How. Pr. 507; S. C. 2 Abb. 138 ;) unless it continue a great length of time. (Haggart v. Morgan, ubi supra.) "Nor is the continuous conduct of a business in a place not one’s domicil sufficient where the returns to the latter are constant and frequent, with only daily or other short intervals of absence. (Barry v. Bockover, 6 Abb. 374. Greator v. Morgan, 8 id. 64. Chaine v. Wilson, 1 Bosw. 673. Lee v. Stanley, 9 How. 272. Houghfon v. Ault, 16 id. 77. Id. 87, n. Bache v. Lawrenee, 17 id. 554.) Of course, for the. length of time necessary, no fixed rule can be established ; while three years and a half was held enough in Haggart v. Morgan, four months in Crawford v. Wilson, and even ten months in Hurlbut v. Seeley, was held not enough ; but where an .absent plaintiff was required to give security for costs, a year was considered sufficient. (Wright v. Black, 2 Wend. 258.) The nature of the business in which the party intends to be engaged may be looked at to determine the uncertainty or probability of the duration. In these cases," the defendant Crockett was absent two years and a half, and the nature of the business in which he was engaged was suc-h as to render the .time of his return very problematical,, and the duration of his absence such, as, probably, to delay the plaintiff an unreasonable time from the benefit of the process of our courts, in compelling an appearance or collecting his judgment, if he obtained one. A creditor is not bound to wait until a debtor shall, at some remote and uncertain period, finish his errand abroad, and return to his domicil, whether such errand be the collection of the charter money, and performance of voyages by three or any other number of vessels, or be the conducting of an established business. The evidence before me establishes such an absence abroad of the defendant Crockett as to constitute him a non-resident, so as to subject his property to the attachment at the time it was issued.

I am aware that the term resident, for many purposes, has been differently construed, such as in case of the examination of a witness, (Pooler v. Maples, 1 Wend. 65;) successions to estates, (Roosevelt v. Kellogg, 20 John. 208; Isham v. Gibbons, 1 Bradf. 69 ;) taxation, (Douglas v. Mayor, &c. of New York ; Bartlett v. Same, supra;) a discharge from debts, (In re Wrigley, 8 Wend. 134;) and exercise of political rights, (Chaine v. Wilson, ubi supra ;) but it will be found that in such case the object of requiring a residence was different from that in case of a debtor.

The motion to renew must be denied, with seven dollars costs in each case.


text:
    Julius C. Salhinger, plaintiff, vs. Samuel Adler, defendant.
    Where a defendant in an action pending in a court was arrested in the street, near the place where such court was held, but before it had commenced its session, whither he had gone to attend either its trial or its removal to another court, upon the justification of sureties, while he was preparing to go home, because he thought nothing would be done; Meld that he was entitled to go to ascertain if . any thing would be done in the action, and to return unmolested. And that merely stopping to announce to the counsel of the opposite party that no steps would be taken, was not such a deviation on his journey as authorized his arrest.
    (Before Robertson, Ch. J. at special term.
    October 31, 1864.)
    Motion by the defendant, to be discharged from arrest.
   Robertson, Ch. J.

The defendant asks to be discharged from arrest, bn the ground that he was arrested in the court room of a district court while attending there to wait for the trial of an action to which he was a party. The deputy sheriff, (Mr. Gronegal,) who arrested him, swears that he did so in Clinton street, and not in the-court house, at about ten o’clock in the morning, and went with him to see his lawyer, at his request, in such distrjct court, before the justice had arrived or any court was in session, but the defendant did not tell him he had any case on trial. The plaintiff, his counsel, and a witness who attended to justify as surety, corroborate such statement, and also swear that the defendant had previously informed them that he was going home; that his case would not.be brought on that day: that his attorney was not ready, and he had nothing further to do there. The defendant and his counsel swear that the former was arrested in the hall of the court room, and taken away from the presence of the' justice. The latter certifies that the defendant had, on the day of arrest, an action on his day calendar against the plaintiff and others, for trial. The plaintiff and his attorney testify that such cause was adjourned to that day merely for the justification of sureties, on his proposed removal of such action to the court of common pleas. .

The legislature of this state, which reduced the common law privilege from arrest of counsel and witnesses in attending judicial proceedings to a statutory one, (2 R. S. 290, § 86; Id. 402, § 51,) has left that of suitors Unregulated. Under those statutory provisions, a witness is only protected when actually subpoenaed, and a counsel when attending court for a trial actually pending. (Cole v. McClellan, 4 Hill, 59.) Liberality is exercised in regard to the reasonableness of the time forgoing, staying and returning, (Lightfoot v. Cameron, 2 W. Bl. 1113; Meekins v. Smith, 1 H. Bl. 636; Randall v. Gurney, 3 B. & A. 252, S. C. 1 Chit. 679; Strong v. Dickenson, 1 M. & W. 493; 13 East. 16 n. a. Tidd’s Pr. 195,) and the burden of establishing a deviation rests on the arresting party. (Selby v. Hills, 8 Bing. 166.) Stopping to attend to other matters is recognized as a deviation. (Chaffee v. Jones, 19 Pick. 260. Clark v. Grant, 2 Wend. 257.) Every thing of a judicial character seems to be embraced in the proceedings, an attendance at which protects a suitor. (Moore v. Booth, 3 Ves. 350. Willingham v. Matthews, 6 Taunt. 356. Sandford v. Chuse, 3 Cowen R. 381. Clark v. Grant, ubi sup.)

In this case, although the preponderating evidence shows that the defendant was arrested in the street before the court in which his action was pending commenced its session, yet it also appears he came to attend either its trial or its removal upon the justification of sureties, and was leaving to go home because he thought nothing would be done. He was entitled to go to ascertain if any thing would be done that was expected, and return unmolested. Merely stopping to announce to opposing counsel that nothing would be done is not a deviation. He must be discharged from arrest, on stipulating not to bring an action, with ten dollars costs.


text:
    Cadwell vs. Goodenough.
    1. Even if the court has the power to order a bill of particulars, after the issues have been referred to á referee to hear and determine, it will not be exercised to interrupt the progress of the trial actually proceeding before spell referee,
    g. There can be no necessity for a formal written bill of items, where the plaintiff has been partly examined as a witness, although she has not already upon her direct examination disclosed the nature of her claim, since she can be compelled to do so, upon her cross-examination,
    (Before Moncrief, J. at special term,
    October, 1884.)
   Moncrief, J.

This is an application by the defendants for • a bill of particulars of the plaintiff’s demand.

It appears that the action was commenced in July, 1863 ; that issue was joined in August,-1863 ; that the action was referred to Hon. W. F. Allen to hear and determine in November, 1863 ; that the plaintiff has given testimony on her own behalf upon several occasions, and the further trial of the cause stands over for the cross-examination of said plaintiff by the defendants,

The order to show cause why a bill' of particulars should not be furnished, and in the meantime staying all proceedings, would not have been granted had thesé facts been presented to the judge who granted the order; there can be no necessity for a formal written bill of items when the plaintiff, if she has not already upon the direct, can, upon her cross-examination be compelled to disclose the nature of her claim with the nicest particularity.

It was held in Andrews v. Cleveland, (3 Wend. 437,) that when a bill of particulars is applied for by a defendant after issue joined, it is a suspicious circumstance and the officer granting the order should be well satisfied that the object of the party is not delay ; and he should require a good excuse for the late application.

Assuming the court to have the power to order a bill of particulars after the issues have been referred to a referee to hear and determine, I am quite clear that it will" not be exercised to interrupt a trial actually proceeding before him.

The motion must be denied, with $10 costs. The order staying proceedings is vacated.


text:
    Gross, plaintiff, vs. Graves, defendant.
    Á receipt by the defendant, of money, as the attorney of the plaintiff, no part of which he has paid to her, gives the plaintiff a right, as of course, to an order of arrest, under subd. 2 of sec. 179 of the Code, and upon obtaining judgment, she can issue execution against the person of the defendant, irrespective of any order of arrest having been granted.
    (Before Moncrief, J. at special term,
    October, 1864.)
    Motion to vacate order of arrest.
   Moncrief, J.

It is admitted -by the defendant that he received money as the attorney for the plaintiff, and that he has not paid the amount so received, or any part thereof, over to her. Under such circumstances, the plaintiff is entitled, as of course, to an ordey of arrest under subdivision 2 of section .179 of the Code, and upon obtaining judgment in this action, can issue an execution against the person of the defendant, irrespective of any order of arrest having been granted. If the defendant believed that the defendant, in the action in which the money was paid into court, would have a legal claim against him, in case the money was paid to the plaintiff, he possibly could have relieved himself from all apprehension by obtaining leave to pay the money back into court. Whether the plaintiff will recover the whole amount claimed by her, or the defendant be allowed to set off charges for services alleged to have been rendered, will be best ascertained upon the trial of this action; I am constrained to deny the motion to discharge the order of arrest, with ten dollars costs.