author: By the Court. Mason, J.

text:
    J. G. King v. Merchants’ Exchange Company and others.
    A court of equity will not open a default, or relieve a party from the consequences of his own neglect, in order to enable him to set up an unconscientious or a dishonest defence.
    So held, where after a decree by default for the foreclosure of a mortgage executed to secure bonds of a corporation, the consideration of which was money advanced to and used by the corporation for the purposes of its creation ; the corporation sought to be let in to defend, on the ground that it had no power to execute such bonds and mortgage.
    (Before Duer, Mason and Campbell, J. J.)
    February 16, 1850.
    Petition for a rehearing. The facts appear in the decision.
   By the Court. Mason, J.

The bill in this cause was filed in the late court of chancery to foreclose two mortgages, executed by the Merchants’ Exchange Company to the plaintiff, as security for the payment of bonds of the company amounting in the whole to $700,000, issued for monies borrowed by them and expended in the erection of the exchange. The company and also several other of the defendants, appeared and answered the bill, and the cause, having been duly transferred to this court, was regularly brought to a hearing at the last June term. The counsel for the company did not attend, when the cause came on to be heard, and the decree was taken against them by default, but the counsel afterwards appeared on the settlement of the decree, before one of the judges, and proposed various amendments, to it, some of which were adopted by the judge.

A reference was ordered to Wm. Mitchell,- Esq., to compute the amount due, and he was directed to give notice by advertisement to all the bondholders to come in and prove their respective demands. Other special directions were, also given, both as to the mode of conducting the reference and as to the subjects on which he was to report. The solicitors and counsel of the .company attended before the referee, under this order, and were heard in relation to the subject matter referred. The referee has made his report, and the cause is now on the calendar of the present term for hearing, on exceptions taken by some of the defendants. No exceptions were taken by the company to the report, nor was any complaint made, when the counsel appeared on the settlement of the decree, that the company had not been heard, nor has any application on the subject been made until the present time. A petition is now presented by the trustees of the company, praying that the cause may be reheard upon the merits, at the same time that the exceptions to the report are argued.

The grounds on which the rehearing is asked for are, in sub-, stance, that the petitioners are advised that the .decree is erroneous in declaring the bonds and mortgages to be valid.—-that the mortgages are not either of them a valid or legal security for the benefit of the bondholders, and that the bonds are not valid obligations against the company. They also say that Mr. Bid-well, who acted as counsel for the company, was accidentally absent from the court when the cause was called, and that he intended to be present and protect the rights and interests of the company.

The petition farther says that the trustees lately chosen by the stockholders have, since their election, employed Augustus Schell, Esq., and that from his investigations it appears that a majority of the former trustees were holders of some of these bonds, and that it was for their interest to have the bonds declared ■ valid, and therefore they took no measures to present to the court obr jections to their validity : that the stockholders, finding their interests neglected by those trustees, at an election held on the 11th of January last, elected other trustees in their stead. That they, the stockholders, ought not to suffer by reason of the accidental omission of their counsel or the neglect of their trustees to attend to their interests, and that they have a good and substantial defence on the merits, as they are advised by their counsel and believe.

The petition also sets forth, that the time for excepting to the report has expired, and that the rights and interest of the petitioners require that exceptions be filed, and they pray that they may have liberty to file them, and that the cause be reheard.

To this petition is annexed a certificate by three distinguished counsel of this court, that they have examined the case referred to in the petition, and are of opinion that the decretal order therein mentioned is erroneous in the particulars specified in the petition.

It appears from the affidavits and other papers read in answer to the petition that, some time in the month of June 1843, one Richard Barry, a judgment creditor of the company, filed a bill against them in the then court of chancery, to obtain payment of his debt, in which bill he insisted that the mortgages and bonds in question in the suit were void, and prayed that they might be so declared. To that bill the company put in an answer, insisting on the validity of the bonds and mortgages, averring that they had been executed and delivered in good faith and for valuable and adequate consideration, to parties who had lent and advanced to the company the several sums of money secured by them respectively; and they, the company, were justly indebted to the holders of the bonds in the sums stated in their condition, and that the moneys loaned to them on the security of the bonds and mortgages had been expended by them in the completion of the Merchants’ Exchange building, which could not have been completed without the aid of such loans.

The suit of Barry was argued with great ability, on the part of the plaintiff, by two of the distinguished counsel who have given the certificate annexed to the petition in this case, and a profound and luminous opinion was delivered by Vice Chancellor Sandford, who, after a laborious investigation of all the objections urged against the validity of the bonds and mortgages, held them to be without foundation and the bonds to be entirely valid, and dismissed the bill with costs. That decision was not appealed from, and is to be deemed the law on the subjected.

On the argument of the petition, the counsel of the company, by direction of the court, submitted the points on which they intended to rely for the purpose of defeating a recovery on the bonds and mortgages, in case the court should grant them a rehearing. The court required to be informed on these points, in order that they might see whether any substantial rights of the stockholders had been sacrificed by the course the cause had taken.

There is not one of these points, however, which affects the equity of the plaintiff’s claim. They do not allege any thing at variance with the facts stated in the answer of the company to Barry’s bill, just referred to. They do not pretend that any fraud was practised on the stockholders, but merely state technical objections to the form of the securities and to the power of the company to raise money upon them, most of which objections had been taken and overruled in the case of Barry.

There is an important difference, however, between that case and the present. In the case of Barry, a judgment creditor of the company attacked the securities, in order that by destroying them, he might himself obtain the payment of his just demand which was otherwise hopeless. In the present case, the parties themselves, who created the securities, who applied for and obtained the money on the faith of them, who expended it upon the building they have erected, and who have been in the enjoyment of its benefits in common with the whole community, are seeking upon mere technicality, to deprive their creditors of the benefit of these very securities on which alone the money was advanced.

Had the questions now sought to be raised been properly presented to the court when the cause was regularly called on for hearing, the court would have given to them a patient and thorough investigation; and if we had been satisfied that the objection to the bonds and mortgages, however technical and unconscientious, were yet legally valid, we should not have hesitated to declare the bonds to be void, and to free the property from the lien of the mortgages, although we might as individuals have been pained at being used as instruments in inflicting an indelible stain upon the mercantile character of the city.

We are, however, spared the disagreeable necessity of considering the question. The time for making objections of this kind in this cause has gone by.

The plaintiff has obtained his decree regularly, according to the course and practice of the court. The defendants suffered a default, and they have moreover slept upon it for nearly eight months. They come before the court asking as a favor, that which they acknowledge they cannot claim as a right. But it is a well established rule that the court will never open a default, or relieve a party from the consequences of his own neglect, in order to enable him to set up an unconscientious or a dishonest defence. The books are full of decisions to this effect. (Gay v. Gay, 10 Paige, 374; Bard v. Fort, 3 Barb. Ch. Rep. 633 ; Beach v. The Fulton Bank, 3 Wen. 561.)

According then to the established practice of the court this application ought to be denied. The object is to enable the defendants to set up a defence contrary to the right and justice of the case, and the granting it would facilitate the prosecution of a scheme, which, if successful, would, upon merely technical grounds, defraud the creditors of the payment of their just demands.

It is said, however, by way of excuse for not having made this application sooner, and indeed as a reason why the defence was not interposed at the hearing, that the former trustees were themselves bond-holders, and therefore personally interested in having the bonds declared valid; that they sacrificed the interest of the stockholders to their private interests, and that in truth the stockholders have not had an opportunity to make their defence until the present time. Admitting this to be so, it does not render the defence less dishonest, or a whit more entitled to the favor of the court.

But the opposing affidavits show that regular elections of trustees have been heid every year since 1836 ; that the plaintiff was put in possesion of the mortgaged premises as mortgagee in the month of October, 1843, and has ever since that time retained possession in that character ; that the case of Barry, in which the trustees upheld the validity of the securities, was decided in 1844, and that this suit was commenced in March, 1848, so that if the stockholders disapproved of the conduct of the trustees, and really wished or intended to contest the validity of the bonds, they had had ample opportunities before the last election, of putting in trustees who would have taken the ground now sought to be taken in this case. If, therefore, they have lost the opportunity of making these technical objections, it has been entirely owing to their own negligence, and they are not entitled on this ground to favor from the court.

But we apprehend that the former trustees were actuated in this matter by highér motives than those which have been attributed to them, motives which unfortunately those who at present control the company’s affairs, do not seem to appreciate.

They knew that the debts were justly due—that the money secured by the bonds and mortgages had been lent upon the application and solicitation of the company themselves; that the particular form of the securities had been offered and devised by themselves ; that but for the monies obtained upon their credit, the noble structure which is the pride and ornament of our city, would never have been erected; and that for them to attempt upon such grounds as were contended for by Barry, and are attempted to be set up here, to repudiate these debts, would shock the moral sense of every honest man.

We think that in the course they pursued, they manifested no more than a proper regard for their own character, and that of their constituents. And it is with feelings of no ordinary satisfaction that we find ourselves, not merely authorized but absolutely required by the established rules of the court to refuse to these petitioners the opportunity of presenting questions, the discussion of which in our judgment injuriously affects the character of the company, and through them of the whole mercantile community.

The petition for rehearing and also for leave to file exceptions o the referee’s report is denied; the plaintiff’s costs of resisting he petition to be taxed and allowed as costs in the cause*

        Barry v. Merchants’ Exchange Company and J. G. King, 1 Sand. Ch. R. 280.


source: Caselaw Access Project

author: Mason, J.

license: Public Domain

text:
    McFarlan, Denison and Bridge, v. Clark and Barton. Bridge v. Clark. Cotheal v. Clark.
    Where three suite were brought against a defendant, in the first of which, prosecuted in the name (with others) of the plaintiff in the second, and for the benefit of the plaintiff in the third suit, the point involved was one which would determine the right of the two plainitffs on which they founded their claim in the second and third suits, (though it would not determine their danbages ;) the court ordered the two last suits to be stayed until the decision of the first, on the defendant therein, stipulating in case he failed in the first, to contest in the two last only the question of damages.
    March 4, 1850.
    The facts appear in the opinion of the court.
   Mason, J.

This is a motion on the part of the defendant for a rule staying all proceedings in the last two causes above men*, tioned, until the determination of the first above entitled cause, or for such other ordef as may be proper in the premises.

The first entitled suit is brought to compel a specific performance of certain articles of association, entered into by the plaintiffs and others, and the defendants, whereby the defendant, Clark, agreed to convey to the plaintiffs, as trustees of the association to be called the Guyandot Land Company, certain lands particularly set forth in the articles; or in case the agreement cannot be specifically performed, then that the plaintiffs may recover [damages against the defendants, or one of them, for the non-performance of the agreement. The plaintiffs sue in behalf of themselves and the subscribers to the agreement, of whom Cotheal, the plaintiff in the third suit, was one.

The defence, as set up in the answer, is that the company1 never was organized, and that the articles are of no binding force.-

The second suit is brought by one of the plaintiffs in the first suit, and also a subscriber to the articles, to recover damages for the breach of a written agreement by the defendant Clark, to transfer and assign to him, after organization of the company; two hundred and fifty shares of the stock thereof; and the de-fence is, that the company never was organized, and of course the agreement to transfer is not binding.

The complaint in the third suit is identical with that in the second, except as to the number of shares, which is only one hundred and twenty-five instead of two hundred and fifty, and the defence is also precisely the same.

It is clear that in all three suits, the great question is, whether the company was organized, so as to render it obligatory on the defendant Clark to convey the land. If it was not, he earn not be called upon to do so, or be made answerable for not transferring shares which, until after such organization, had no existence. The execution of the articles in the first cause; and of the contract in the second ahd third cases, by the defend* ants, is expressly admitted, so that no proof will be necessary Or proper in either of the cases, but such as bears upon the question of organization. But I see no reason for compelling the defendant Clark to litigate this question in three different suits, or to allow the plaintiffs to proceed pdri passu, subjecting him to the heavy costs which each of them must occasion.

If the court shall be of opinion in the first suit, that Clark Ought not to perform the agreement, it will follow, of course; that there is no company, and no shares to be transferred, foi they are based upon the conveyance of the land, and that question ought to be, and in point of law would be, conclusive with the plaintiffs in the other two suits; for the plaintiffs in them are respectively plaintiffs in the first—Bridge, by name and in form; and Cotheal in reality, the suit being in behalf of all the sub* scribers, and one in which they have a common interest. (Bouchaud v. Dias, 3 Denio, 238.)

So on the other hand, if the court should come to the conclusion; in the first suit, that the contract ought to have been per formed by Clark, but that they cannot make a decree for its specific execution as against Clark, because he has disabled himself, or because Barton cannot, by reason of circumstances in his favor, be compelled to convey to Clark, then the plaintiffs will be entitled to damages, and Cotheal as well as Bridges, will be authorized to come in and prove their amount. The rule of damages, I apprehend, would be the loss which each individual subscriber had sustained by reason of the failure of the defendant to fulfil his agreement, and the measure of that loss would be the difference between the value of the shares each were entitled to receive, and the sum agreed to be paid for them, and that would be the precise rule and measure of damages in the second and third suits.

It is only on the supposition that the defendant Clark should be decreed specifically to perform his contract, that all the questions in the second and third suits would not be settled and terminated in the first suit. In the event last supposed, the company would be declared to have been organized so as to oblige the defendant to convey the lands, and of course would have been in default in not having conveyed. The plaintiffs in the second and third suits, would then be entitled to recover damages by reason of the breach of his agreement to transfer the shares. But in the ascertaining of these damages, it would not be necessary, nor ought the defendant to be permitted to litigate again the question of organization. The decision on that point In the first suit, would be conclusive upon him.

Under a view of all the circumstances of the case, the proceedings in the second and third suits should be stayed until the determination of the first suit, provided the defendant will stipulate in the two former, that in case there should be a judgment for specific performance against the defendants, or against Clark in the first entitled suit, the plaintiffs in the other suits may have a judgment for such damages as they shall prove to have sustained; and in such case, they have liberty to apply on due notice to the opposite party, after a decree for specific performance in the first entitled suit, for a rule for such assessment, either before the court or a referee, or in such other way as the court may think proper, and the defendant may take an order to that effect


text:
    Smith, Torrey & Co. v. Greenin and Vine.
    The plaintiff can demur to an answer, only for defects in respect of the new matter set up therein by way of avoidance.
    Irrelevant or redundant matter in an answer, may be stricken out on motion, and in like manner uncertain or indefinite matter may be made more definite.
    Immaterial matter cannot be demurred to.
    The defendant’s omission to answer ah alldghtion Of the complaiht, id no ground of demurrer.
    March, 1850.
    The points presented appear in the decision;
   Mason, J.

The code has enacted some new rules with regard to insufficient and irrelevant pleadings, which have not been attended to in these demurrers.

In the first place, a plaintiff can demur for insufficiency, only to new matter which is set up by way of defence. (Section 153 in connection with section 149.) If irrelevant or redundant matter is inserted, he may move to strike it out; or if an allegation is so indefinite or uncertain; that the precise nature of the defence is not apparent, he may move that it be made more definite. (§ 160.)

The first demurrer taken, falls under the provisions of this last section. If the statement of the agreement between the defendants is immaterial, it may upon application be stricken out; and if the allegation of the defective execution by the plaintiffs of the articles, is too indefinite or uncertain, it may be made more definite or certain by amendment; or it may be stricken out as irrelevant. This last matter, if well pleaded, would be in the nature of a demurrer to the plaintiff's claim. It amounts to this, that upon the plaintiff’s own showing, the defendants were not bound by the agreement, and no demurrer can be taken to a demurrer, whether the issue in law be well or ill tendered. (Steph. on Plead. 256.) The first demurrer must therefore be overruled.

The fifth demurrer is liable to one of the same objections ; it is taken on the ground of the immateriality of the matter demurred to, and must therefore be overruled.

Nor is it a ground of demurrer, that the defendant has not denied any allegation of the complaint in the form and manner prescribed by section 149. The 168th section provides, that every material allegation of the complaint not specifically controverted by the answer, as prescribed by section 149, shall be taken as true. If, therefore, the plaintiff is right in supposing that the defendants’ denial of knowledge of any fact other than from the complaint, is not such a denial as is required by the code, he is saved from the necessity of proving such fact on the trial. This remark applies to the third, fourth and sixth demurrers, which must therefore be overruled, ,


author: Oakley, Ch. J.

text:
    Huff v. Bennett.
    Where any exception is taken .at the trial, the party may make a case, presenting such exception.
    An order enlarging the time to make a case or bill of exceptions, is not a stay of proceedings.
    An ex parte order of a justice at chambers, staying proceedings for moro ban twenty days, is null, and may be disregarded.
    March 16th, 1850.
    This case was tried by a jury before the chief justice, and a verdict rendered for the plaintiff on the 22d of December, 1849. On the 24th of December, the defendant’s attorney obtained from a justice at chambers, on an application without notice, an order giving the defendant thirty days to make a case or bill of exceptions, and “ that in the mean time, and until the case be settled, all proceedings be stayed.” On the 12th of January the defendant served a draft case, and amendments thereto were served by the plaintiff, and notice given by the defendant to attend before the chief justice to settle same. When the parties attended before him, it was objected by the plaintiff that he ought not to settle the case as it had not been served in time, and the defendant was directed to moffe for an order to settle, when the question of the regularity of the proceedings might be discussed. The defendant moved accordingly.

      B. Galbraith, for the defendant.

      A. Nash, for the plaintiff.
   Oakley, Ch. J.

This was an action for libel, tried before me; there, was a verdict for the plaintiff for a small sum; and on the coming in of the verdict, I gave the usual directions to the clerk, and the usual entry of judgment was made. There was no order that the cause he reserved for argument or further consideration.

The attorney for the defendant obtained from a justice of the court of chambers, without notice, an order extending the time to make a case thirty days, and staying plaintiff’s proceedings in the mean time. The plaintiff, notwithstanding this order, entered up and perfected his judgment. The defendant made and served a case, and the plaintiff served amendments thereto. When the parties attended, before me to settle the case, some circumstances that then transpired induced me to direct notice of a motion for leave to settle the case, so that the question might be regularly argued. The motion was made, and it involves in the first place, the question whether any right was reserved to the defendant at the trial to make a case. The right was not reserved in terms, and I am not prepared to say any was reserved, but it is our practice where, in the course of a trial any exception is made, to regard that exception as an implied declaration of an intention to make a case. Wherever such an exception is taken in any case tried before me, I always consider the right to make a case reserved. Such exception was taken here, and the defendant, therefore, had a right to make a case.

Then has this case been made in pursuance of the rules of practice. The supreme court rules which apply also to this court, require the case to be made within ten days of the trial. Herd the case was not made within ten days, but within the enlarged time granted by the order of the judge. The question is raised, whether the justice had a right to make that order. There was no foundation for questioning the right of the judge to make an order in the cause, although he could not stay the plaintiff’s proceedings for more than twenty days. He had power to enlarge the time to make a case, and the order to stay the plaintiff’s proceedings for thirty days was undoubtedly improvidently granted, and we so consider it. (Code, § 401.) An order enlarging the time to make a case, does not operate as a stay of proceedings, and the defendant therefore had a right to enter and perfect his judgment.

The order extending the time was regular, the defendant’s attorney has acted in accordance with the practice, and we think, therefore, the defendant has a right to have his case settled, and so decide.


author: By the Court.

text:
    Comstock v. Bayard and others.
    Where in a suit against three, for the recovery of money, two suffer judgment by default, and the third defends the suit and has a verdict in his favor, he is entititled to costs against the plaintiff under section 305 of the code.
    April 25, 1850.
    Thes was a suit against Bayard, Brinkerhoff and Weeks, to ¡recover the proceeds of goods alleged to have been left with them as partners, for sale. Bayard denied his liability. The other two defendants suffered judgment to go)by default. On the trial, there was a verdict for Bayard, who now claims costs.
   By the Court.

The 304th section of the code allows costs of course to the plaintiff, in an action like this, where he shall recover fifty dollars or more. Section 305 gives costs to the defendant in the same actions, unless the plaintiff be entitled to costs therein. Section 306 permits the court to grant costs to defendants not united in interest or in their defences, who succeed, when the plaintiff recovers against others. This section applies to other actions, than those specified in the two previous; sections.

If the costs rested in our discretion, we would grant them to Bayard; but he is clearly entitled to them by the code.. This, follows from the- nature of the action and the fact that the plaintiff is not entitled to costs against him. Section 305 gives the defendant costs in such case, and it applies to any defendant prevailing in the suit against the plaintiff.


text:
    Grinnell, Minturn & Co. v. Schmidt & Balchen.
    Section one hundred and eleven of the amended code, which requires that every action shall be prosecuted.in the name of the real party in interest, is an enactment of the rule respecting'parties which has always prevailed in courts of equity ; and it should be applied, as far as practicable, according to the principles adopted! in those courts.
    A factor or other mercantile agent, who contracts' in his own name, on behalf of hie. principal, is a trustee of an express trust, within- the meaning of section one hundred and thirteen of the code, and is the proper party to bring'an action upon the-contract.
    After judgment, a defendant will not be permitted to open the cause so as to set up that the suit has not been brought in the name of the real party in interest, provided the plaintiff have the right to receive the money recovered, and can give a valid discharge;
    April, 1850.
    The plaintiffs purchased and shipped in their own names, a cargo of corn on board the brig Selma for Sligo, under an agreement with the defendants, who had chartered the vessel; and took a bill of lading from the master in the ordinary way. The vessel put in at St. Thomas in distress, and the com being damaged,, was sold and the proceeds received by the defendants. This suit was brought to recover these proceeds. It was tried in March last,, when a verdict was given in favor of the plaintiffs, and judgment was subsequently rendered on the verdict.
    On the twenty-third of April, the defendants presented to one of the justices at chambers, affidavits that one of the plaintiffs had admitted to one of the defendants, in conversation on the ninth of April, after the verdict and judgment had been rendered, that the plaintiffs had no interest in the cargo, but that the same was purchased by them solely as agents of Baring & Brothers, of London; and that neither of the defendants had any reason to believe, until after verdict and judgment, that the plaintiffs had acted as agents in the matter. They thereupon obtained an order to show cause, why the verdict and all subsequent proceedings, should not be set aside and the defendants allowed to amend their answer in conformity with the facts alleged in the affidavits,

      N. D. Ellingwood, for the defendants.

      D. Lord, for the plaintiffs.
   By the Court. Mason, J.

This motion is founded upon the. one hundred and eleventh section of the amended code, which declares that “ every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 113,” and the question presented is, whether the defendants are entitled, after verdict and judgment, to have the whole case opened, for the purpose of introducing, by way of defence, the fact not previously discovered, that the plaintiffs made the contract on which the suit is brought, as agents or factors of the Messrs. Barings.

This is nothing more than a statutory enactment of the rule respecting parties which has always prevailed in courts of equity. Adopted by those courts on grounds of public policy and convenience, they will never suffer it to be so applied as to defeat the ends of justice, and therefore it has received numerous qualifications and exceptions. Some of these have been incorporated in the subsequent sections of the code. Although from its being placed on the statute book, it cannot be so easily moulded as before to suit paiticular cases, yet we are bound in its application to adopt, as far as practicable, those principles which the courts have found to be best suited to advance the ends of justice. Ordinarily the objection of want of necessary parties, is taken adVantage of in courts of equity by plea or demurrer, or upon the hearing. If the absence of necessary parties should not be discovered until after decree enrolled, the only way of presenting the fact to the court, was by bill of review ; but it rested solely an the discretion of the court to allow such bill to be filed; and permission would therefore be refused,- although the facts it admitted, would change the decree,- where the court, looking to all the circumstances, should deem it unadvisable. (Story's Eq. Pl. 417.)

Notwithstanding the statute, we think the court is now at liberty to look into the circumstances of the case, and exercise its discretion in granting or refusing a motion which is analogous to a motion for leave to file a bill of review. If it were made to appear that the plaintiffs had no right to the receipt of the1 monies recovered by the judgment, and no title whatever to be parties to the suit, and that fact should not be discovered till after judgment, I should conceive it to be the duty of the court to interfere by opening the judgment, and to allow this fact to be put in issue.But that is not this case. In the first place, the plaintiffs are proper, if not necessary parties to this suit. The contract was made by them in their own names, the corn was purchased and shipped by them, and they were personally liable for the freight. Had a suit in chancery been brought on this contract,a careful pleader would have joined them with the Barings, or the true owners, as plaintiffs, and would hardly have considered the suit complete without them. (Calvert on Parties, 218, 229.) But there is nothing in the code to prohibit them from being parties to the suit, although they be agents. All that the code requires is that the real parties in interest should be before the court. The statute was intended, as we have intimated, not to establish an entirely new rule, but to apply the old chancery rule to all cases. (See remarks of the commissioners to Title III of the Code of 1848, p, 124.)

In the next place, admitting the plaintiffs to be the mere factors of the Barings, yet they have, by the terms of the contract, the right to receive the monies payable under it. The defendants would not only be safe in paying them, but bound to do so1 until actual notice from the principals not to pay.- The knowledge of the fact that the plaintiffs are agents of the Barings, does not in any manner affect the obligations of the defendants to pay them.

Suppose then this application were granted, and the answer of the defendants amended, the present plaintiffs would still be proper parties, and the only effect of the amendment would be to compel the Barings to be brought in as plaintiffs. But the right of the present plaintiffs to receive the moneys recovered, and to discharge the claim, would still remain the same. It is manifest, then, that by the judgment as it now stands, no substantial rights have been violated, and that no protection would be secured to the defendants. The whole question resolves itself into a matter of mere form ; and the granting the motion would be to allow form to over-ride and control the justice of the case.

I am of opinion, therefore, that at this stage of the suit, it is not imperative on the court to allow this application, but that it is a matter resting in discretion, and that in the exercise of a sound discretion it ought not to be granted. The only effect of granting it would be to delay the rightful owners of the money from its speedy collection, and to afford to the defendants a new trial, when they cannot attain it in any other way.

The preceding observations have been based on the idea that the Barings ought by force of the 111th section to have been made parties to the suit. That section, however, excepts from its operation the cases enumerated in section 143, which reads as follows : “ An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the persons for whose benefit the suit is prosecuted.”

It has been generally supposed that the words1£ express trust” in this section, refer to trusts of land authorized by the revised statutes, and which are in the statutes themselves termed express trusts,” and to them alone. It is not necessary, however, to give to the words this restricted meaning. They are capable of a more extensive signification, so as to include all contracts in which one person acts in trust for or in behalf of another. Of this kind are contracts made by factors, and other mercantile agents, who act in their own names, but for the benefit of and without disclosing their principals. So complicated and so extensively ramified are mercantile transactions, that it is frequently impossible to tell who are the real parties in interest. The parties who execute an order, or make a contract in pursuance of instructions from their correspondent, may be themselves entirely ignorant of the names or residence of the real principals. In the case before us, Messrs. Baring Brothers, although they gave the order to the plaintiffs in their own names, may themselves have been the agents of some house in Sligo, from whom they received their instructions, and that house may have acted under the directions of several dealers there .who may have united in the purchase of the cargo. Now, if the verdict and judgment of the court on the merits is to be set aside, and the whole controversy opened, whenever the discovery shall be made that some person has an interest in the recovery who was not a party to the suit, it will be extremely difficult hereafter to hold a judgment upon a mercantile contract. If the defence now proposed were to be allowed, and the Barings made parties to the suit, it might turn out after a second trial, verdict and judgment, that the house in Sligo was interested, and by the same rule the judgment must be opened again.

It is, therefore, the duty of the court to apply the words 11 trustees of an express trust,” to cases like the present, if it can be done without violence to language ; and we think it can. Mercantile agents and factors who, according to the usage and custom of merchants, do business in their own names, but for other Parties, are trustees in the strict sense of the term. They are so m fact, and they have always been held liable as such, to account in a court of equity. The trust, though not created by a formal deed or instrument, yet appears upon the face of every order contained in the correspondence of their principals, in pursuance of which they act, and may therefore well enough be called an “ express trust.”

We know, too, that in the code words are not always used in the strict technical sense, but in such a sense as would be apparent to persons unskilled in legal phraseology. There is, moreover, high authority for the construction we have given to the words in question. In the code submitted to the legislature at their last session, but not acted upon, sections 597 and 598 correspond to sections 111 and 113 of the present amended cede, and are proposed to be re-enacted in the same terms, but with this addition to section 599, “ a person with whom or in whose name a contract is made for the benefit of another, is a trustee of an express trust within the meaning of this section.” The commissioners add a note as follows: “ Amended Code, § 113. The last sentence is added to remove a doubt which has been expressed.”

The construction put on this section is, then, the construction of the commissioners, who seem to have anticipated the very question raised in this case. If I am correct in this view, the plaintiffs were the proper and the only proper persons to bring this action, and the defence of want of parties, even if allowed to be interposed, would be unavailing. On this latter point I have consulted with two of my associates, Judges Duer and Campbell, and am authorized by them to say that they concur in this interpretation of the words trustee of an express trust,” in the 113th section.

In any view of the case, therefore, this motion ought not to be granted, and it is denied with costs.


author: Paine, J.

text:
    Townsend v. Townsend.
    An agreement made during coverture, between a husband, his wife, and a trustee of the latter, that in consideration of her enjoying separately and absolutely controlling her separate property, she would relinquish her dower in his lands, is invalid, and cannot be enforced against her in an action for her dower.
    In a complaint under the code, asking to have dower set off and admeasured, it was held that it might be regarded as a substitute for the former petition for ad-measurement, or the former bill in equity; and thus it was no objection that the defendant, who was seized, was not in the actual possession of the lands, or that six mouths had not elapsed since the death of the husband.
    April, 1850.
    Demurrer to an answer. The complaint stated the marriage of the plaintiff to Benjamin Townsend in 1839, his death in August, 1848, and that during her coverture he was seized of various lands in the city of New York, particularly described. That her husband devised the lands to the defendant, some for life and some in fee, who is in possession of the lands described, either personally or by his tenants, and in the receipt of the rents and profits; and that the plaintiff is entitled to dower therein. The complaint prayed judgment for one equal undivided third of the premises as and for her dower, and that it might be admeasured and set off to her by commissioners.
    The defendant, by his guardian ad litem, answered, among other things, that a large part of the premises lie vacant and unoccupied, and are wholly unproductive; a portion of them were let to and possessed by tenants at B. Townsend’s death, and the rents were collected for the defendant’s use and benefit, but he is not personally in the actual occupation or possession of any part of the premises. The answer then set up an indenture executed between B: Townsend, the plaintiff, and a trustee on her part, in 1845, for the expressed purpose of assuring to each of the former, their separate lands, free from any claim of the other for dower or curtesy, by which the plaintiff was to be at liberty to receive the rents of her own lands during her life, to sell or mortgage the same, and to devise the same, and in all these acts B. Townsend agreed to execute all necessary instruments. The trustee, with her assent, agreed she should never claim dower in B. T.’s lands, but would, whenever required, release the same. The indenture was duly acknowledged. The answer stated that the plaintiff, after its execution, enjoyed all the fruits of her separate property, as if she were sole ; and it submitted that she was not entitled to dower in any of the lands claimed by her.
    To this answer the plaintiff demurred, and stated the following causes of demurrer, viz:
    1. That the indenture in the answer alleged did not release the plaintiff’s right of dower in and to the premises mentioned and described in the complaint.
    2. That it appears that the plaintiff and Benjamin Townsend, before its execution, had been lawfully married, and were at the time of such execution cohabiting together as husband and wife, and therefore such indenture was, as to the plaintiff, void, and the alleged covenant or agreement therein contained was of no binding force or effect upon her.
    3. That it does not appear that there was any sufficient valid or legal consideration for the indenture.
    4. That the answer does not set forth facts sufficient to form a defence.

      M. S. Bidwell, for the plaintiff.

      J. A. Lott, for the defendant.
   Paine, J.

The only question upon the merits of this case is, whether a contract entered into between husband and wife during coverture, by which it was agreed that in consideration of being permitted to control and enjoy the property which she had at the marriage, she should relinquish her claim to dower, can be enforced against her by depriving her of dower.

I know of no such doctrine, nor any case in support of it. Contracts made by the wife with her husband, may, under some ■circumstances, by compelling an election, be incidentally enforced against her. It was, upon this ground, very evidently, that the chancellor proceeded in disposing of the case of Livingston v. Livingston, 2 Johns. Ch. Rep. 539. There the wife, who was dead, was represented by her infant children, for whom the court asserted its right to make, and did make the election. There, the property on each side having survived the marriage, there was a subject for election. But here probably the husband’s legal right to all the wife’s property ceased at his death. At any rate, the answer does not set up that the widow is enjoying, or has enjoyed, since his death, any of the property to which he or his heirs are entitled. The doctrine of election, therefore, cannot be applied to the case.

What the chancellor says about the contract between the husband and wife, in Livingston v. Livingston, refers only to the possibility of such a contract, and whether, if bona fide, it may not be carried into effect under some circumstances. The authorities which he cites, go no further than this; and I imagine that neither he nor they thought of asserting that such a contract can be enforced against the wife at law, or in any way, except where some kind of equitable relief can be found.

The defendant, on the argument, insisted on two technical grounds of defence, both of them based upon the supposition that this is an action of ejectment. These grounds are, first, that six months had not elapsed after the death of the husband, before the suit was brought, (2 R. S. 303, § 2, subd. 2;) and, secondly, that the defendant is not the actual occupant, nor exercising acts of ownership upon any parts of the premises, nor claiming title thereto.

It would be a sufficient answer to both these objections, to say that they are not set up as grounds of defence by the answer. With respect to the first, there is not the slightest indication in the answer, that such a defence was thought of; on the contrary, the language of the answer, echoing the complaint, states the time of the husband’s death so vaguely that it is impossible to decide upon this demurrer, that six months may not have expired. Nor does it any where appear upon the pleadings, when the suit was commenced. This is hardly a compliance with the existing law as to a statement of the defence.

As to the second objection, the answer merely says that a portion of the premises are occupied by tenants who pay the defendant rent; that the greater portion is unoccupied; and that the defendant is not personally in the occupation of any part of the premises. But the answer does not say that as regards any part of the premises, the defendant is not a proper party ; that any other person should have been made a party; or that either of these grounds will be insisted upon as a defence. This, also, it seems to me, is not precisely according to the existing law.

But supposing these defences to be well set up, have they any validity 1

The code abolishes the forms of existing actions, and the distinction between suits at law and in equity, and provides that there shall hereafter be but one form of action, (§ 69;) and that all rights of action given or secured by existing laws, may be prosecuted in this single form of action, (§ 468.)

Now, before the code, there was, besides the action of ejectment for dower, a petition for admeasuring the same; and they both sought and obtained the same relief, viz., admeasurement of dower by commissioners. That is precisely the relief which the complaint in this case prays for, and therefore it may quite as well be in the place of the petition as the ejectment; and if so, it is free from both these objections.

But it is said the petition is preserved by the code, (§ 471,) and as this is not a petition, it must be the ejectment. It is true the petition is preserved, but a party may either adopt that, or the summons and complaint. ($ 468.) The two sections construed together, merely secure him an election between the two modes of proceeding. This is construing them so that they both stand.

But suppose further, that the form of the petition must be adhered to, and that this, therefore, is not a substitute for that, still there is nothing to prevent its being a substitute for a bill in equity, which undoubtedly lay for the admeasurement of dower, (Badgley v. Bruce, 4 Paige, 98,) and which is also free from these technical difficulties.

The plaintiff must have judgment upon the demurrer.


author: Campbell, J.

text:
    Shore v. Shore.
    Under the code, a married woman may sue for a limited divorce, without the intervention of a next friend.
    April, 1850.
    The material facts appear in the judgment pronounced.
   Campbell, J.

The complaint was in the name of the wife, against the husband, asking for a limited divorce. An order was made allowing alimony. A motion is now made to vacate that order, and to dismiss the complaint, on the ground that the wife cannot sue without a next friend. Section 114 of the code provides that when a married woman is a party, her husband must be joined with her, except, 1. that she may sue alone when the action concerns her separate property; and 2. she may sue or be sued alone, when the action is between herself and her husband.

It would seem as if the mere reading of the last subdivision of this section was 'all that was requisite. She may sue or be sued alone. If the word “ alone ” has any meaning, it cannot refer to her husband. We cannot construe it, when the action is between herself and her husband, that she may sue or be sued without her husband. The law only means that she may sue or be sued without the intervention of any other party. Under the former law, the wife might sue in her own name alone, where she sued for an absolute divorce. It was held, however, that where she sued for a separation from bed and board, she could do so only by her next friend. The language of the statute Was however different in respect to the two proceedings.

It is unnecessary here to refer to the provisions of the revised statutes on the subject, but it may be remarked that in the leading case of Wood v. Wood, 8 Wen. 357, it was held, by Chief Justice Savage and a very considerable minority of the court for the correction of errors, that even under those provisions, the wife could sue for a separation without a next friend. If under the code, a wife cannot sue for a separation without a next friend, neither can she, it would seem, sue alone for an absolute divorce. Her right to sue for one or the other, is now given together in the same section, and without any distinction. She may sue or be sued alone when the action is between herself and her husband. She may sue him, or he may sue her, for a divorce absolute, without any intervening party. No one doubts this, and yet the same language is applied to all cases between husband and wife. I cannot see how the distinction can be taken, and I must hold that where the action is for a limited divorce, the wife may sue in her own name alone. The motion ‘ must be denied without costs. My associates, Judges Duer and Mason, to whom this opinion has been submitted, concur with me.


text:
    Carpenter v. Spooner.
    This court will not sanction any attempt by fraud or misrepresentation, to bring a party within its jurisdiction.
    Where a party having been induced by a false statement, to come within the jurisdiction of the court, for the purpose, was then served with a summons and complaint in an action in this court, the service was, on motion, set aside.
    May 25, 1850.
    Appeal from an order made at chambers, setting aside the service of a summons, with costs. The facts appear in the decision.

      A. Crist, for the plaintiff.

      Spooner, for the defendant.
   By the Court.

This was an action for libel. Both parties reside in Brooklyn, and out of the jurisdiction of this court. The plaintiff, however, was desirous of having the cause tried in this court. In order to bring the cause within its jurisdiction, it was necessary that the summons should be served within this city. A clerk of the plaintiff’s attorney, therefore, procured a person to write to the defendant, requesting him to call on the writer next day, in this city. The defendant came, in order to comply with the request in the letter, and when he was leaving the ferry boat, was met by the person who had written the letter, and was then served with the summons in this action. The whole proceeding was a trick, for the purpose of giving this court jurisdiction.

The excuse alleged by the plaintiff is, that he had been so libelled by the defendant and others in Brooklyn, as to raise the public feeling there against him, and he could not hope for a fair trial in the County of Kings. If so, there is a sufficient remedy by moving the supreme court; and we have no doubt, it will, on application, be properly applied. An application was made to set aside the service of this summons, and we think it was' well founded. This court will not sanction anj attempt to bring a party within its jurisdiction by fraud anG misrepresentation. And where by a false statement or frauda-lent pretence, a party is brought within the jurisdiction, and. there served with process, the service will be set aside. We recollect a case where a party was entrapped into this state out' of another state, and then served with process, and there the service was set aside.

If a party who is not within the jurisdiction voluntarily come within it, he thereby becomes amenable to the process of the court, but not unless he comes voluntarily. The court will not countenance any proceeding of the nature adopted in this case.

Appeal dismissed with costs.


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

text:
    Bank of Charleston v. Emeric and Davenne.
    Where at the trial, documentary evidence which proves itself, and on which no question can arise in the cause, except such as is apparent on its face, is unadvisedly omitted, and an objection taken thereupon ; the court will nevertheless permit the document to be produced upon the argument of the case ; and if there be no surprise apparent, or any point in which the defence was prejudiced by the omission at the trial, the court will regard it as having been produced at the trial.
    A co-defendant, who is primarily liable for the debt claimed, is, under the code, a competent witness for the plaintiff.
    (Before Oakley, Ch. J., and Sandford, J.)
    May 25, 1850.
    The suit was brought to recover money advanced by the plaintiffs to Edward Davenne, in Charleston, for the purchase of cotton, on the joint account of himself and Emeric. Davenne drew a bill on E. for the advance, which E. did not accept. The bank, having retained the bill of lading of the cotton, sold the cotton, on failing to obtain satisfactory security from E,, and brought this suit to recover the balance. The defence was, that Davenne’s purchase was not on joint account, it not being conformable to the authority from Emeric, Upon the trial, the testimony of Davenne, taken on a commission, was offered in evidence by the plaintiffs and received; Emeric objecting that he was not a competent witness.
    The plaintiffs having closed their proof, the defendant Emeric moved for a non-suit, on the ground that they had not given proof that they were a corporation. The judge overruled the motion, and the plaintiffs had a verdict. The defendant moved for a new trial on a case. Several points were presented, the decision on which is not reported.

      F. B. Cutting, for the defendant Emeric.

      J. Larocque, for the plaintiffs.
   By the Court. Oakley, Ch. J.

On the case being moved for argument, the plaintiffs produced, and proposed to read, an exemplification in due form, of their act of incorporation by the legislature of the State of South Carolina; and the first question is as to the admission of this document.

We think they have a right to produce it at the argument. It ought, no doubt, to have been proved at the trial, and the omission to require it on the part of the judge, was erroneous ; but it is a well settled and useful practice, in respect of documents which speak for themselves, and on which no questions can arise except such as are apparent on their face, to permit them to be produced on the argument, when they have been inadvertently or unadvisedly omitted at the trial. As for example, the record of a judgment, when the execution only was produced at the trial. If it be apparent that there is any surprise upon the adverse party, or that there was or is any point in his case which is prejudiced, or has been weakened by the omission of the evidence at the proper time, it will not be received at the argument. But it is surely not worth while to send this cause back for another trial, merely to have this document, bn which no question arises, given in evidence. *

2. As to the competency of Davenne. The plaintiff by the code, was entitled to examine him as a witness against his co-defendant. (Section 390, 397.) Neither is he a person for whose immediate benefit the suit was prosecuted, within the meaning of section 399 of the code, if he had not been a party to the suit. That section applies only to a person into whose hands the money collected in the suit will necessarily go when it is received, or who might take it from the sheriff or the attorney as his own. It does not apply where the money cannot immediately, though it may ultimately go into his hands, as in the case of a stockholder in a suit brought by a corporation.

New trial denied.


author: By the Court. Sandford, J.

text:
    Leggett v. Mott. Haight v. Prince.

    The party deeming himself aggrieved by the report of referees, may appeal at once to the general term, from the judgment entered on the report, on the matters of ' law Involved.
    Or, he may apply to a judge for an order staying proceedings on the report, with a view to move for a rehearing. The judge will grant a stay with or without terms, or will refuse it, as he may deem just.
    Where a report of referees Is complained of as against evidence, the party has no redress except by a motion for a rehearing.
    If a stay of proceedings be obtained, the party must proceed to settle his case, and bring it to a hearing at the special term.
    The court at the special term, may in its discretion, consider and determine the errors of law alleged, as well as the weight of evidence; but where matters of law alone are involved, the party complaining of the report will, in general, be required to appeal at once to the general term.
    From the order of the judge at the special term, granting or denying the motion for a rehearing on the referees’ report, an appeal may be brought to the genera] term, which will be heard with other calendar causes.
    May 29, 1850
    r The questions arising in the first case, appear in the opinion of the court.

      C. Nagle, for the plaintiff.

      A. L. Brown, for the defendant.

       In note at the end of the principal ease. And see Lusk v. Lusk, 4 Howard’s Pr. Rep. 418; Graham v. Milliman, ib. 435.

   By the Court. Sandford, J.

In the case of Haight v. Prince, it was held by Campbell, J., after consulting Duer and Mason, Justices, that a report of a referee upon the whole issue, might be brought before the special term on a motion for a rehearing, when such order might be made, granting or denying the application, as to the judge should seem just. (2 Code Rep. 95.) The question being presented in this case in our branch of the court, we have conferred with our associates, (the six justices being present,) and it is the unanimous conclusion of the court, that the decision of Campbell, J., was correct. Whether the court will look into the matters of law, as well as of fact, arising upon the report of the referee, and direct a rehearing in respect of erroneous rulings of the law; will of course be in the discretion of the court, at the special term. Where the report is complained of as being contrary to the evidence, an examination of the legal points involved will generally be convenient and proper in connection with the argument on the evidence. Where however, the report is assailed in respect of its legal conclusions alone, the judge will be inclined to refuse a stay of proceedings with a view to a motion for a rehearing, and will leave the party to his remedy, by appeal from the judgment.

The considerations which lead us to this result, will be briefly stated. The amended code of 1849, allows of no appeal from a judgment, upon the facts involved. The appeal to the general term from a judgment, is limited to matters of law. (Am. Code, § 348.) This would cut off entirely, any review of the finding of a referee upon the facts, or of the verdict of a jury, or the decision of a judge upon the facts on a trial without a jury; unless there be some mode of reaching it, other than an appeal from the judgment. In Droz v. Lakey, we decided in January last, that a motion to set aside a verdict as against evidence, might be made at the special term, on a case settled in the usual manner; and that such motion might be made after judgment, the party obtaining a stay of proceedings for the purpose. We see no good reason, why the motion may not be made, without any formal case, before the judge who tried the suit, founded on his notes of the testimony, if he think proper so to direct. As to reports of referees, the code it appears to us, is explicit in making a provision independent of an appeal in the first instance. Section 272, after providing that the report may be reviewed in like manner as the decision of the court on a trial, enacts that a re-hearing may also be granted by the court. A rehearing, as we understand it, is obtained on a motion only; and this is brought on before a judge, either at chambers or at special term. If it be for a new trial on the merits, it must be moved before the judge, in court, i. e. at the special term. (Amended Code, § 400, 401, and 350.)

We are referred to the 24th rule of the supreme court, adopted in August last, as imperatively restricting the examination of the reports of referees, to an appeal to be heard at the general term. As this rule, in the broad application claimed for it, would conflict with the latter part of section 272 of the amended code, allowing a re-hearing, we think it was intended to apply, as in its literal terms it does apply, only to a review of the referees7 report, for which purpose a case must be made; and as the appeal is limited to the law of the case, it follows that rule 24 applies only to the review of the report of a referee, on matters of law. It is nevertheless a convenient practice to make a case on which to found a motion for a rehearing, in the manner prescribed by the rule of the supreme court, and that course will be required in our court in future.

The practice therefore in" respect of reports of referees, maybe thus stated. The party deeming himself aggrieved by such a report, may prepare his case, and appeal from the judgment on the matters of law involved. Or he may apply to a judge of the court, for an order to stay the proceedings on the referee’s report, for the purpose of moving for a rehearing. The judge will exercise a discretion, as to staying the proceedings, regulated by the nature of the action, the points proposed to be raised, and the danger of loss if collection of the demand be delayed j and he may impose terms on granting a stay. If the report be complained of as against evidence, there is no redress, except by the motion for a re-hearing. On obtaining a stay, the party must proceed to make and settle his case, and bring it on to be heard before the court at special term. An order will thereupon be made, either granting or denying the motion for a re-hearing. From this order either party may appeal to the general term, as provided in section 349 of the amended code. And such appeals xvill be heard, with other calendar causes, at the general term.

Rule accordingly.

Note.—The opinion of Campbell, J., in Haight v. Prince, referred to in this decision, was as follows:

Campbell, J. An order was granted staying the proceedings of the plaintiff for twenty days, to enable the defendant to prepare and serve a case. The cause was heard before a referee, who reported in favor of the plaintiff. The report has been filed, and a motion is now made to vacate the order staying the proceedings of the plaintiff, er to modify it so far as to allow the plaintiff to enter judgment, and also that an additional allowance be made to the plaintiff for costs. Section 272 of the code provides that the report of referees upon the whole issue, shall stand as the decision of the court, and judgment may be entered, and the decision of the referees may be excepted to and reviewed in like manner as if the action had been tried by the courtbut the same section also provides that a rehearing may be granted by the court in which the judgment is entered. Section 268 provides that where a judgment is entered upon the decision of the court after a trial by the court, (which trial must be before a single judge, § 255) either party desiring a review upon the evidence appearing on trial either of the questions of fact or of law may at anytime within ten days after notice of judgment make a case which shall be settled according to the existing practice. Section 278 provides that judgment upon an issue of law or of fact shall in the first instance be entered upon the direction of a single judge or report of referees, subject to review at the general term.

It would seem that where a review of a report of referees is sought, that review must be had before the general term, and to obtain it an appeal must be had, and security given, the same as in cases of appeal from the decisions of the court at special term. But section 272 gives an alternative relief, and provides that a rehearing may be granted by the court in which the judgment is entered.

This last section, as originally reported by the commissioners of the code, was without this latter provision. The clause authorizing the court in which judgment should be entered on the report of referees, to direct that the case be|re-heard, was one of the amendments made in the legislature. It may often occur that referees may err on points of law, and their errors may be corrected and the report sent back by a judge at special term, in a shorter time and at much less expense than if the case was reviewed at a general term. I think it must follow that the party who eels aggrieved by the report of the referees, has his election either to appeal to'the goneral term for a review, or to apply to the special term for an-order that the' cause be re-heard. It may be that in case such an application should be made, the party applying should point out the particular parts of the proceedings which- he considers erroneous, and that the re-hearing should be confined to those parts.

The facts in this cause are not before me, and I am not enabled to form any opinion as to the merits, and as-1 shall not at present vacate the order staying the plaintiff's proceedings, and as the cause may be ordered to be re-heard, it would not be-advisable at present to pass upon the question of extra allowance for costs.

The defendant must settle the case before the referee without delay, and must within ten days make his election to apply for a-re-hearing, or to appeal in order to obtain a review at the general terra.

       Ante, page 681.


text:
    In the Matter of Henry D. Smethurst.
    A judge under section 302 of the code, has power to punish as for a contempt, alf disobedience of orders made by him in “ proceedings supplementary to the execution.” . An attachment issued by him for such contempt, may therefore properly be made returnable before him, at his office.
    Although the code gives the power of punishing disobedience of his orders to the judge, reference must be had to the revised statutes as to the mode in which th aS power is to- be exercised. (2 R. S 535.)
    Under this statute a judge, upon due proof, may, in his discretion, issue an attach- • ment in the first instance, against the party accused, to1 appear and answer, or he m'ay grant an order to show cause. In either case', copies of the affidavits-upon which the application is founded, should be served with the' attachment or order. It is not necessary that the party accused should first have an opportunity of being heard upon an order to show cause before an attachment can issue. The attachment is not issued in such instances, for the purposes of punishment, after a final adjudication. It is only1 a mode- of bringing the party before the court.
    It seems, that in the first judicial district, the ordinary practice is, to give notice' of motion for an attachment, or obtain an order to show cause.
    Whether the affidavits upon which an attachment is issued, are sufficient to warrant its issuing, is a matter that cannot be reviewed on habeas corpus.
    June, 1850.
    This was a habeas corpus, granted to inquire into the cause of the imprisonment of the petitioner, Henry D. Smethurst.
    A judgment had been recovered against the prisoner, in the supreme court, in favor of one David Osterhout, and upon proof of an execution on such judgment having been returned unsatisfied, the usual order Was made by Mr. Justice Harris, requiring him to appear before a referee, and make discovery on oath concerning his property. He appeared in pursuance of the order, with his counsel, and after the examination had been continued some time, a motion was made by his counsel for an adjournment until the next day, which was denied by the referee, and the counsel thereupon took his hat and left the room. The prisoner then peremptorily refused to answer any further questions, in consequence of the absence of his counsel, and shortly after he also left the room. Upon proof by affidavit, of these facts, the judge issued an attachment, directed to the sheriff of this city and county, by which he was commanded to attach the defendant so as to have him before the judge, at his office in the city of Albany, on a day therein named, there to answer, as well touching the contempt which was alleged he had committed, as also such other matters as should be then laid to his charge, &c. A copy of the affidavits on which the attachment was granted, was served on the prisoner simultaneously with the attachment.
    He then sued out his habeas corpus, and notice having been given to the plaintiff in the suit, the case came on to be heard on the sheriff’s return.
    The prisoner, in reply to the return, alleged that the attachment was illegal and void :
    1. Because it was granted ex parte, without the service of any previous notice or order requiring him to show cause why the process should not be issued.
    2. Because the affidavits on which the same was granted, did not show sufficient cause for the issuing of the same; and
    3. Because it was void on its face.

      N. B. Blunt, for the prisoner.

      A. K. Hadley, for the plaintiff in the suit.
   Mason, J.

The last objection I shall consider first. Is the attachment void on its face 1 The counsel for the prisoner earnestly insisted that it was so, because it was made returnable before Justice Harris, ad his office, whereas it should - have been before the court at a special term, and he referred to the sections of the revised statutes on the subject of contempts, (2 R. S. 534, &c.) which provide in all cases for the party being brought before the court, and not before a judge. The answer to this objection is very simple and decisive. The 302d section of the code, in express terms, confers on the judge, power to punish as for a contempt, all disobedience of orders made by him in these proceedings supplementary to (he execution. The revised statutes gave this power of punishing for contempt only to courts of record; and attachments were then necessarily returnable before the court. A judge now, under the code, having this power conferred upon him in this special case, cannot exercise the power unless the person was brought before him. The court, as such, cannot punish, because no contempt is shown to its authority; and no power is given to it to punish for con-témpt of the orders of the judge. If the party, therefore, cannot be brought before the judge on the attachment, he cannot be punished at all, and this section of the statute is a dead letter. This objection, therefore, must be overruled.

It was also insisted that the attachment was illegally issued, because no order to show cause was previously served on the defendant.

It was properly urged by the counsel for the defendant, and assented to by the opposing counsel, that although the code gives the power of punishing disobedience of his orders to the judge, we must refer to the revised statutes as to the mode in which that power is to be exercised.

The objection of the learned counsel was founded on the. third section of the act in relation to proceedings as for con-tempts to enforce civil remedies, (2 R. S. 535,) which provides that where the misconduct mentioned in the first section is not committed in the presence of the court, the court shall, be satisfied by due proof by affidavit of the facts charged, and shall cause a copy of such affidavits to be served on the party accused, a reasonable time, to enable him to make his defence, except in cases of disobedience to any rule requiring the payment of money, or of disobedience to any subpmna.

The fourth section authorizes a precept of commitment in case of disobedience of an order requiring the payment of a sum of money ; and the fifth section provides that in all other cases “ the court shall either grant an order on the accused person to show cause, at some reasonable time to be therein specified, why he should not be punished for the alleged misconduct, or shall issue an attachment to arrest such party and to bring him before the court to answer for such misconduct.”

It was insisted that according to the plain meaning of the third section, an attachment cannot issue until the party complained of has been afforded an opportunity of being heard in his defence, and that the proper and ordinary mode of doing this is by an order to show cause.

This would be the case, if an attachment were the punishment of the offence, and was founded upon a final adjudication of the matter by the court. But it is not pretended that this is the case ; all that the learned counsel insisted on in his argument, was that an attachment was a preliminary adjudication that the party had been guilty of a contempt.

It would be more correct to say, that like an order to show cause, it is evidence that in the opinion of the court the party applying for it has made out a prima facie case—rendering it proper that the party accused should be called on for his defence, or in the language of the fifth section, to answer for such misconduct. It is only a mode of bringing him before the court.

The evident meaning of the third and fifth sections taken together, it appears to me, is this—a party shall not be punished for any misconduct not committed in the presence of the court, except in the cases specially mentioned, unless the same shall be proved by affidavit to the satisfaction of the court, and unless after having been served with the affidavits containing such proof, the accused party shall have been heard in his defence, and he is to be called upon to make his defence either by an order to show cause why he should not be punished for his alleged misconduct, or by an attachment arresting him and bringing him before the court to answer for such misconduct. In both cases, the affidavits must be served on him. When an order to show cause why he should not be punished for his misconduct is granted, he answers by counter affidavits. If an attachment be granted, he answers to interrogatories then propounded to him.

The third section declares the manner in which the complainant is to prove his charge, and the general principle that the accused is not to be condemned unheard.-

The fifth section provides two modes in which he may be called upon to defend himself. If the first mode is adopted, and no sufficient cause is shown, he may then be punished without any further proceedings, and this, perhaps, would be the most appropriate mode in some of the instances of misconduct specified in the first section, as in the case of a juror charged with improperly conversing with parties to a suit to be tried at the court for which he is summoned. If the latter method, by attachment, is pursued, unless the contempt is admitted, the party is punished only in case he shall be found guilty after his answers to the interrogatories shall have been taken, and such other proofs contradictory and in confirmation thereof shall have been received.

I am of opinion therefore, from the best examination I have been able to give to the subject, that the course pursued in this case of issuing the attachment in the first instance, and serving with it the affidavits on which it was granted, was warranted by the provisions of the statute. It is also in accordance with the view taken by the supreme court in The People v. Nevins, (1 Hill, 168,) and by the chancellor in the Albany City Bank v. Schermerhorn, (9 Paige, 372.) In this last case, however, an order to show cause why an attachment should not issue, had been previously served, and the question now before me was not raised.

It is, I apprehend, the ordinary course in this district, to give notice of motion for an attachment, or obtain an order to show cause, and it is, as a general rule, the most advisable course. Cases may, however, arise, in which it may be important for the rights of the party prejudiced by the alleged contempt, that the defendant be brought into court on an attachment in the first instance, and for that reason, doubtless, the statute has bestowed power to do so on the court or the judge, as I have endeavored to show. It is a matter resting in his discretion, with the exercise of which I have no right to interfere.

The third and last objection taken, viz., that the affidavits on which the attachment was issued were not sufficient to warrant its being given, is one of which I cannot take notice on this application. Judge Harris had jurisdiction both of the subject matter in controversy and of the person of the defendant. If he erred, it was an error of judgment as to the sufficiency of the evidence, to be corrected on motion to himself or by appeal; the attachment was in the usual form—was issued in a case allowed by law, and was authorized by the provisions of the law • so that it does not fall within the cases specified in the forty-first section (2 R. S. 568,) in which prisoners, in custody by virtue of civil process, may be discharged. If upon the return to a writ of habeas corpus, the officer issuing it can sit in judgment upon the correctness of the legal conclusions of a judge or court, in the lawful discharge of his or their duty, any inferior officer may annul or reverse the judgment and proceedings of the highest court, when they in the least affect the liberty of the citizen. (The People v. Nevins, 1 Hill, 159.) It is not for such purposes that the right of habeas corpus is secured, and the provisions ■of the act sufficiently guard against such a construction being put upon it.

Upon the whole, I see no ground upon which I can interfere in this case on behalf of the prisoner, and he must be remanded.


text:
    Tracy v. Leland.
    The concealment, removal and disposal of a piano by a female, does not subject her to be held to bail, under the 179th section of the code.
    A female can be arrested only for wilfully, wantonly, or maliciously injuring property ; but not for a detention or conversion of it.
    June, 1850.

      This was an action brought to recover the possession of personal property wrongfully detained. Part of the property claimed, viz. a rosewood piano, has been concealed or removed, and disposed of by the defendant, so that it could not be found by the sheriff. On due proof of these facts, the plaintiff obtained an order of arrest, under which the defendant has been actually arrested. A motion is now made in her behalf to discharge her, upon the ground, among others, that this is not a case in which a female can be arrested.

      E. Ward, for the defendant.

      C. Tracy, for the plaintiff.
   Mason, J., (after consultation with Duer and Campbell, J. J.)

The decision of this question depends upon the construction to be given to the 189th section of the code. The third subdivision of that section expressly authorizes the arrest of a defendant in cases like the present, but with the proviso that no female “ shall be arrested in any action except for a wilful injury to person, character, or property.” If this ease is embraced in either of the exceptions, it must be in the last, a wilful injury to property. But it is difficult to understand how the mere detention or concealment of a piece of furniture is a wilful injury to it. It may be preserved with- the utmost care, although kept out of the reach of the plaintiff Had the defendant broken it to pieces, or damaged it intentionally, so that its value was thereby lessened or destroyed, that would be a wilful injury within the meaning of the act. But nothing of this kind is pretended. The plaintiff rests his right to an arrest, on the sole ground that a wrongful concealment and withholding of the property, is in itself a wilful injury to it. I cannot so understand it. The two things are in their nature entirely different, and the distinction between them is clearly stated in this very section, which authorizes an arrest generally, “where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property.” Injuring property, therefore, is not within the meaning of this section, the same as taking, detaining, or converting it. A female can, however, be arrested only for injuring property, and not for taking, detaining, or converting it; and even then it is not for every injury done to it, but only for a wilful, or wanton and malicious injury. No doubt an injury is done to the plaintiff himself, by withholding from him his property, and the defendant is guilty of a wrong, or in the old phraseology, of a tort in so doing ;—but that is certainly very different from an injury to the particular piece of property itself.

I should not have thought it necessary to have dwelt upon this at such length, if it were not for the case of Starr v. Kent, 2 Code Rep. 30, which the counsel for the plaintiff pressed with much earnestness in support of his position. That was a motion to discharge the defendant, who was a female, from arrest; and according to the report, it was contended on behalf of the plaintiff, that “ the concealing or removing of the property, so that it could not be found or taken by the sheriff, was a wilful injury to the plaintiff’s property in the property so removed or concealed—and of that opinion,” the report adds, “ was his honor Judge Daly, and the motion was denied.” His honor did not, however, give any written opinion himself, and I cannot but think that there must be some mistake or omission, or misapprehension of some important fact, on which the decision of the judge was founded.

The report, if it mean any thing, means that the detaining of property is a wilful injury to the estate or interest of the plaintiff, in the property detained, and therefore subjects a female who detains it, to arrest; thus giving an entirely different signification to the word “property” from that evidently intended by the code. With the greatest respect, therefore, for the learned judge, I cannot regard the report of his decision as an authority for the position which it purports to sustain.

This view of the principal question renders it unnecessary to consider the other questions discussed on the argument.

The motion to discharge the defendant must be granted on the ground that the facts do not warrant her arrest under the code, with ten dollars costs; but on condition that the defendant stipulate not to bring any action.


author: By the Court.—Oakley, Ch. J.

text:
    The New York and Erie Rail Road Company v. Cook.
    Upon a case made, a party cannot move to enter a non-suit, or for a new trial, on a ground not distinctly taken at the trial, if it be such as might have been obviated by proof, had it been presented at the trial.
    A stockholder of a stock corporation, is a competent witness for the corporation under the recent statutes.
    (Before Oakley, Ch. J., and Paíne, J.)
    May 24;

    June 8, 1850.
    This was an action against a stockholder, to recover calls on his shares made by order of the board of directors.
    On the trial, Morris Ketchum was called as a witness for the plaintiffs, and it being admitted that he was then a stockholder of the company, the defendant objected to his competency, the objection was overruled, and the defendant excepted.
    After the plaintiffs rested, the defendant moved for a non-suit, which was denied, and an exception taken. The plaintiffs had a verdict, and the defendants on a case, moved, for a new trial. The opinion of the court states all that is material to the points reported,
    S. Sanxay, for the defendant,

      H. E. Davies, for the plaintiffs.
   By the Court.—Oakley, Ch. J.

We have no doubt that Mr. Ketchum was a competent witness, under the recent provisions of law on that subject.

At the trial, the defendant moved for a non-suit, without specifying any ground for it. He now states, as a ground for a non-suit, that some material allegations were not made in the declaration, and that others were not proved. As for example, that there was no proof of the organization of the company, and none that the defendant had received notice of the calls made on the stock, or that any notice was given as required by the charter. The others are of the same description.

It is a well established rule, that a party Cannot move for at new trial, or for leave to enter a non-suit, on a point not distinctly taken at the trial, if it be such a point as might have been obviated by proof, if it had been then raised. In this case, every ground now presented to us, is of that character. All might, as we cannot fail to see, have been obviated, either by amending the declaration or by evidence.

If the objections were in their nature such that they could not have been obviated if made at the trial, probably a different rule would be applied.

New trial denied.


text:
    Smith v. Lynes.
    On appeal to the general term, from a judgment at the special term, the costs to be allowed, are those expressed in the sixth subdivision of section three hundred and seven of the code of procedure.
    June 8th, 1849.
    This case came before the court by way of appeal from the adjustment of costs by the clerk. There had been an appeal to the general term, from a judgment entered on verdict at the special term; and the judgment below was affirmed. The appellant claimed that the respondent was not entitled to costs, on the ground that costs were expressly excluded by the latter clause in the sixth subdivision of section 307 of the code.

      C. W. Sandford, for the appellant.

      B. W. Bonney, for the respondent.
   By the Court.

There are two classes of appeals in our present practice, first, from orders, and secondly, from, judgments. Section 307 of the amended code, provides that, “ when allowed, costs shall be as follows”Eight classes of cases or stages of suits are then enumerated. The sixth clause of the section reads thus:—“ To either party on appeal, excepting to the court of appeals, before argument, fifteen dollars ; for argument, thirty dollars; but this provision shall not- apply to appeals in cases other than those mentioned in section 349.”

The 349th section, referred to, is the one providing for appeals from orders, as distinguished from judgments. Therefore, if literally carried out, this sixth clause of section 307 would deprive the successful party of all costs on an appeal to the general term, from a final judgment. This must be contrary to the intent of the legislature. There are other clauses in the code, which certainly contemplate the allowance of costs on such an peal in certain cases.

The difficulty is, that the section referred to so distinctly in the sixth clause, is pertinent; it relates to an entire class of appeals ; and it is embarrassing for a court to say that the legislature did not mean what is so plainly and unequivocally written. It is most probable that an error was made in engrossing the code, which causes the difficulty.

The question has been considered in the supreme court, by Judge Barculo, in the second, and by Judge Harris, in the third district; and both have decided that the exception made by the concluding paragraph of the sixth clause must be rejected as repugnant to other parts of the code, and the prevailing party is entitled to costs on an appeal from a judgment. (Livingston v. Miller, 4 Howard’s Practice R., 42; Wilson v. Allen, ib. 54.)

Uniformity of decision on the subject, is very desirable, and we incline to conform our views to those of the judges whose decisions we have cited. We therefore advise the clerk to insert the costs of the appeal in the record of judgment. If this be wrong, it will be an error which may be examined by the court of appeals. i

Order accordingly.


text:
    Bulkeley v. Keteltas and others.
    When a party obtains a postponement of the trial to a subsequent term on payment of costs, on the cause being moved for trial; on his omission to pay the same, the adverse party may insist on having the trial proceed ; or he waive that right, and the court, on motion, will compel the moving party to pay them.
    If, however, the party entitled to receive such costs, neglect to apply for an order for their payment without delay after the term; his costs of the term will abide the event of the suit.
    June 29, 1850.
    At the June term in 1849, on this cause being called for trial in its order on the calendar, it was postponed to the next trial term on the plaintiff’s application, on payment of costs. The costs were not paid during the term, nor subsequently. The defendants, who appeared separately, afterwards, without any motion or direction of the court, entered an order in favor of each, requiring the plaintiff to pay to each the costs of the term. At the December term 1849, the cause was tried and the plaintiff recovered a verdict against all of the defendants. The defendants claimed on adjusting the costs, to have their costs of June term deducted from the plaintiff’s bill, or to have them set off; while the plaintiff contended that the orders entered for the payment of those costs, were irregular and void.

      C. B. Smith, C. H. Smith, and J. H. Brush, for the defendants.

      L. E. Bulkeley and J. T. Brady, for the plaintiff.
   Mason, J.

The only rule granted by the court, on the plaintiffs application to put off the trial, was the usual rule in such cases, that the cause go off on payment of the costs of the term by the plaintiff. These costs were payable instanter, their payment being the condition on which the trial was put off; and if they were not paid, the court would have allowed the defendants, if they had themselves noticed the cause as they may do under the code, to have brought it on for trial. The defendants however might have waived this right to proceed, and the court would then on application, have made a rule requiring the plaintiffs to pay the costs. In the supreme court this motion must have been made at a special term, the judge at nisi prius under the old practice not having the power to make such an order. In this court however all trials are at bar, and the application in this case might have been made either to the judge who was holding the trial term, and who conditionally postponed the ’•cause, or to the judge holding chambers, and the payment if directed might have been enforced by attachment. If however, the party entitled to the costs neither insists on the trial proceeding because the costs imposed as a condition of its postponement are not paid, nor applies for a rule or order requiring the party obtaining the postponement to pay the costs at the earliest opportunity, in such case the costs abide the event of the suit. This appears from the authorities to have been the practice of the supreme court. (Judson v. Pell, 19 John. R. 270; Kirby v. Sisson, 1 Wend. 83; Mix v. Brisban, 2 Wend. 286; Bagley v. Ostrom, 5 Hill, 516.)

The defendants however, instead of insisting upon bringing on the cause, or asking for a rule on the plaintiff requiring him to pay them, of their own motion draw up separate rules in their own favor, requiring the plaintiff to pay to each of them the costs of the term and witness fees. This they had no right to do. Even if the rule actually granted by the court, imposed on the plaintiff as a condition of the postponement of the trial the payment of costs to each of the defendants, it plainly did not require him to do so; and as it is not pretended by the defendants that any other rule was granted by the judge than merely that the cause go off on payment of costs, the rules taken out by the defendants Smith & Brush were entirely unauthorized. They are therefore set aside as null and void. And as a year has elapsed since the cause was put off, and neither of the defendants have applied for an order requiring the plaintiffs to pay the costs, they must abide the event of the suit. The disposition made of the principal question involved in this motion, renders it unnecessary to decide whether under the rule postponing the cause the defendants are entitled each to a separate bill of costs. 11 will be time enough to settle that point if the defendants shall Ultimately prevail on the merits; and the remaining part of the motion, to wit for -a set-off, also falls to the ground.


text:
    Minturn v. Main & Co., and several other suits in favor of the same plaintiff.
    Where á (stipulation Was given in several suits depending on the sanie principal point, to the effect that all should abide the event of the one first tried, and the suits were noticed for trial several terms thereafter, though notes of issue weri filed in one only ; it whs held, that the plaintiff on recovering might tax a 'coun’sel ffce for attending at those terms in each of the causes.
    iThe stipulation provided for the entry of judgment, in case of a recovery, for $335, with interest, in one of the causes. When the judgment came to he entered, the interest made the amount over $350. field, that the judgment was properly entered for the entire sum, and the costs Were 'to be taxed as upoh a recovery for over $350.
    •{•Before Oakley, Gh. J., and Campbell and Paine, J. J.)
    July 15, 1850.
    The facts appear in the opinion of the court.
   By the Court. Oakley, Ch. J.

Several suits were instituted by the plaintiffs, who were auctioneers in the city of New York, against the defendants and others respectively, to recover the amounts of purchases by them at an auction sale. After the causes were at issué, and after they had been noticed for trial, for the October term, in 1848, but before notes of issue had been filed, a stipulation was entered into between the parties, by which it was agreed that the several suits should abide the •event of the first one tried, which was ultimately that ef the defendants, Main & Co, The causes were also noticed again for the December and January term following, but at neither ef the three terms were notes of issue filed, except in the case against the defendants Main <fc Co. The suit resulted in favor •of the plaintiffs. Upon the taxation of hosts, it was urged that the plaintiffs were not entitled to the counsel fee for attehdancS in those causes which were not placed on the calendar. Thé taxing officer, however, allowed it. The defendants appeal from that decision.

We See no reason for disturbing the decision Of the taxing Officer. We think the costs properly allowed. .R'he causeé havitig been noticed for trial, the plaintiffs had a right to hold the defendants to the effect of the notice. The Stipulation entered into, was purely for the benefit of the defendants. It is the practice to construe the Allowance of Counsel fees for attendance at the terms, in a liberal way. Oftentimes terms fall through from various causes, but that is never deeitied to be a good reason for rejecting this item in the bill of costs.

Another question comes before us upon the taxation in ond Of the cases, that of Seaman & BrOwn. it was Stipulated between the parties^ that judgment might be entered tip in all the suits fot the amount annexed to each catise, with interest' from May, 1848. In the Suit against Seaman & BrOwn, the' amount annexed was $235, but with the interest amounted td Over $250, and the Costs were taxed on the higher scale, agreeably to the latter amount. We think the principle Of taxation adopted, was the correct one. The Stipulation is, thstt judgment may be entered for the aitiount dtie, with interest. Of cotirse,1 the ititerest was to be estimated, and added to the verdict, and costé should he taxed accordingly;


text:
    Stone v. Carlan and others.

      Ah Appeal from an Aider granting an injunction, does nAtetay tie ópAratióá Af thii injunction; and if the defendant Violate it pénding thé appeSl, An attachment kill issue against him.
    October, 1850.
    An injunction was granted in this casé, restraining the defendants from using certain names and designations on their1 carriages. They appealed to the general term from the order of the justice granting the injunction, and pending the appeal, continued to use the prohibited names. An order was thereupon made, requiring them to show cause why an attachment should not issue.

      R. D. Holmes, for the defendants,

      H. A. Mott, for the plaintiff.
   Paine, J.

The defendants claim that by their appeal proceedings are stayed, and that this suspends the effect of the injunction. This is an entire mistake. The sections of the code cited, (§ 334, 342 and 348,) do not apply to such appeals as this, which is from an order, not from a judgment; and on which no security is given. The injunction must be obeyed so long as it is in force, and as it appears to have been violated, an attachment must issue.