source: Caselaw Access Project

author: Boswoeth, J.

license: Public Domain

text:
    James J. Woolsey v. Orrin B. Judd, and others.

    Boa-worth, J., dissented on the grounds, 1st. That the questions arising on the merits of the case, had been decided adversely to the plaintiff, by the late Court of Chancery. That this case disclosed no considerations of such cogency or importance as justified a review and reversal of the judgment of that court.
    2. That if this court could take jurisdiction of such an action, it must he for the reason that an author has, at common law, a property in his unpublished manuscripts. That it has no jurisdiction of actions relating to property, unless the matter in controversy, exclusive of costs, exceeds §100. That this action being brought to enjoin the publication of a single letter, possessing no literary merit or actual value, and it not being alleged that such publication would either produce damage, offend good taste, or wound the feelings of any one, the court is precluded by statute from taking jurisdiction.
    8. That this court has no jurisdiction of an action to prohibit acts, merely on the ground that the performance of them would violate the courtesies of life, or be an abuse of private confidence, when such acts will neither affect property of the value of, nor produce injury amounting to, $100.
    4. That it is very doubtful, whether state courts can take jurisdiction of such an action, in any case, since Congress has legislated upon the rights and remedies of authors and inventors, whatever may have been the practice previously.

       This opinion, being mislaid, was not furnished to the reporter in time to enable him to insert it in the report of the case. (Supra, p. 379.) Having since received it, he has deemed it his duty to publish it, although out of its proper place, in the present volume.

   Boswoeth, J.

TRe wRole object of this action is, to obtain tRe judgment of tRis court, enjoining tRe defendants from pub-lisRing a sofltary letter, wRicR tRe plaintiff wrote to Mr. Crowell, on tRe 18tR of June, 1858. TRe complaint alleges tRat “ it was wRolly private in its cRaracter, and was not intended for publication in any event.” TRe complaint does not state tRat tRe letter possesses any value or merit as a literary production, or otRer-wise, nor tRat tRe publication of it would be a damage to tRe plaintiff, or any annoyance to tRe feelings of any one living, or reflect on tRe memory of tRe dead.

The case, therefore, presents the naked question, whet court will take jurisdiction of an action to restrain i of any and every letter which one man may the sole and naked ground that it was private''' and was not intended for publication in any e^ not pretended that it possesses any literary merit, nor that its publication would produce the sli| annoyance to any person whatever.

The argument of the plaintiff’s counsel asserts, “ tüaftñere exists a right of property in private letters, independent of their literary merit or pecuniary value, capable of protection in equity against threatened infringement or violation.” If such a property exists, it is evident that it must be a mere fiction with respect to all letters possessing no literary merit, nor pecuniary value.

In Wetmore v. Scovell, (3d Edw. Ch. R. 515,) the whole subject was carefully examined by Vice-Chancellor McCoun, and all the English cases were fully and critically reviewed by him, and he held, that the Court of Chancery would not interfere by injunction, to prevent the publication of private letters, possessing no attribute of literary composition, notwithstanding they were written in confidence, and the publication might wound the feelings of the writer. The publication of the letters sought to be enjoined in that case, would be a more marked violation of the courtesies and decencies of life, and certainly as gross an abuse of private confidence, as the publication of the letter in question. In deciding Wetmore v. Scovell, Vice-Chancellor McCoun said: “But of one thing I am quite confident; as a Judge appointed to administer the preventive and remedial justice which legitimately belongs to this court to be administered — that the grievance as presented by this bill of complaint, is not such as the court can judicially take cognizance of, as a ground of jurisdiction on which to interpose and prevent the publication of the letters.”

It is nearly thirteen years since that decision was made, and it was made after that able Judge had had eleven years of official experience in the exercise of chancery jurisdiction.

In Brandreth v. Lane, (8 Paige, 24,) the chancellor intimated a similar opinion, and declared that, The utmost extent to which, the Court of Chancery has ever gone, in restraining^ssa^jmblication bj injunction, has been upon the principle of protecting the rights of property.”

In Hoyt v. McKenzie and others, (3 Barb. Ch. R. 320,) the precise question came before the chancellor, on an appeal from an order of a vice-chancellor, enjoining the publication of private letters which the plaintiff had written, and which were alleged to have been surreptitiously taken from his possession, after they had been restored to him by the persons to whom they were written. The chancellor reversed the order appealed from. He observes, that “ a letter cannot be considered of value to the author, for the purpose of publication, which he never would consent to have published, either with or without the privilege of copyright. It would, therefore, be a perversion of a correct legal ¡principle to attempt to restrain the publication of these letters, upon the ground that the writers thereof had an interest in them as literary property..But this court has no jurisdiction to restrain and punish crime, or to enforce the performance of moral duties, except so far as they are connected with the rights of property. The vice-chancellor, in the case of Wetmore v. Scovell, (3 Edw. Ch. R. 515,) very correctly decided that the Court of Chancery could not properly exercise a power to restrain the publication of private letters, on the ground of protecting literary property, where they possessed no attribute of literary composition.”

This court does not possess equity jurisdiction coextensive with that vested in the late Court of Chancery. But its equity powers are as extensive, in the actions of which it has jurisdiction, as were those of the Court of Chancery in relation to the same actions.

As to the class of actions of which it has jurisdiction, it has been intrusted with the administration of equity jurisprudence, as fully and completely, as was the late Court of Chancery. The extent of the jurisdiction of the Court of Chancery of this state, in this ¡class of cases, as expressly and formally determined by the court ijtself, has already been stated.

'⅛1 cannot accede to the propriety or expediency of overruling ;the ¡’deliberate decisions of the late Court of Chancery on that tpóiat,- onrthe' ground that both the chancellor and the vice-chan-tCellor of ithe first circuit, failed to comprehend the grounds on '.which .the English decisions, so fully canvassed in their opinions, proceeded. I think any court succeeding to the exercise of only a part of the powers, so long and so ably exercised by them, should not unnecessarily do it, especially in a case which calls for the protection of no property, except such as exists only by fiction of law, if at all, and in a case, too, in which it is not alleged that the doing of the act sought to be prohibited would either wound the feelings of any one, or occasion the author a particle of pecuniary loss.

If the maxim, de minimis non curat lex, is to be applied 'to any case, as a ground of declining to take cognizance of a cause, it may properly be opposed to an effort to secure the Interposition of the court, to restrain the publication of a solitary letter, which as far as the complaint shows, has no literary merit, is of no actual value, and the publication of which would not be productive of injury, nor offend the most delicate sensibility.

To assert such a jurisdiction by exercising it, and to assert and exercise it, in utter disregard of the decisions of the late Court of Chancery that it had no jurisdiction of such a case on such a state of facts, is equivalent to deciding that this court has jurisdiction, and will exercise it, to restrain by injunction the publication of any and every letter, no matter what it may be, or to what it relates, and although it has no merit as a composition, nor any actual value, if it only appears that “it is wholly private in its character, and was not intended for publication in any event.”

It seems to me, that any court, whose time is insufficient to dispose of the important business interests involved in litigations, which are before it, and pressing for a hearing and determination, would alike consult its dignity and duty, by declining to take jurisdiction of such a case as is made by the complaint, on the ground of stare decisis.

When a principle has been once deliberately adopted and declared, it ought not to be disturbed, as a general rule, unless by a court of appeal or review, and never by the same court except for very urgent reasons, and upon a clear manifestation of error. If the practice were otherwise, the community would be left in a state of perplexing uncertainty as to the law.

Conceding that an author, at common law, has a properly in his manuscript, and may obtain redress when any one attempts to. deprive him of it, by endeavoring or threatening to publish it, it is at least a grave question, whether, since Congress has legislated upon the subject, any state court has jurisdiction of an action to restrain a publication. (Dudley v. Mayhew, 3 Coms. 9.) But even if it be supposed that the jurisdiction of the state and federal courts is co-ordinate, on what ground can it be exercised by the state courts ? If jurisdiction is to be exercised, and on the ground that, in judgment of law, the writer of a letter has a property in it, and that this court is competent to enjoin any invasion of that property, or interference with it by others, then the question arises, whether, on such a state of facts, as. the papers before us present, the statute has not forbidden the court to exercise jurisdiction. The letter in question is not alleged to be of any actual value, nor is it averred that any actual damage will result from publishing it.

The Revised Statutes declare that “ the Court of Chancery shall dismiss every suit concerning property, where the matter in dispute, exclusive of coste, does not exceed the value of one hundred dollars, with costs to the defendant.” (2 R. S. 173, § 37.)

Prior to the enactment of this statute, it was the settled law of that court, that it would not entertain jurisdiction of a cause where the matter in controversy, and for which the suit was brought, was not of a value equal to £10 sterling. It was so held, on a bill filed to recover $28 interest due on a legacy, notwithstanding an answer had been put in, admitting assets, and offering to pay the interest, as the court shall direct. (5 J. Ch. R. 276; Fullerton v. Jackson.) Neither could that court take jurisdiction of an action to foreclose a mortgage, on which less than $100 was due. (2 Paige, 323, Denio v. Selden.)

It will not be pretended, I presume, that the statutory restriction referred to, is not controlling upon the present Supreme Court, and this court.

If it be conceded that, although the plaintiff may have a property in the letter, in consequence of his having composed it, yet that the property is of no actual value, then it follows, that if the Court of Chancery can take jurisdiction of an action to prevent any interference with his property, notwithstanding the statute, it must be on the broad ground, that- it is competent to interfere by injunction, to prevent breaches of private confidence, and social duty, although such breaches of duty infringe no rights of property possessing actual value.

There may be breaches of private confidence and social duty, so gross as to justly subject the offender to the contempt of all right-minded men, but I am not aware of any principle of equity jurisdiction, which authorizes the Court of Chancery to prohibit them by injunction, and to punish the offender, for a contempt of court, if he disobeys it. Jurisdiction cannot be taken in this case, on the ground that its exercise is necessary to prevent irremediable mischief or injury. It is not pretended, in the complaint, that any injury of any kind, will be produced by publishing the letter.

Neither can jurisdiction be exercised on the ground that, by publishing the letter, the defendant wifi, be guilty of a breach of trust, which the court can restrain by injunction. It is not alleged that he received the letter upon any trust, nor that it was written upon any trust or confidence, or with any intent that the person to whom it was sent would not make its contents known to others. If there was any trust, it was one, according to the theory of the plaintiff’s case, relating to property, and the property is not alleged to possess any actual value. The court cannot presume it worth $100. In an action to recover possession of it, if the paper as well as the composition were the plaintiff’s property, a jury could not assess its value at over six cents, without proof that it was worth more. And in suits concerning property, the statute is peremptory, that, if the matter in dispute, or, in other words, if the property sought to be protected, or the damages to be recovered, or the injury to be averted, is not of the value, or does not amount to $100, the suit must not only be dismissed, but the plaintiff must be ordered to pay the costs.

I think the injunction should be dissolved on the following grounds:

, First. It was deliberately adjudged by the late Court of Chancery, that it had no jurisdiction of such an action as this, on such a state of facts as is presented by this complaint. There are no reasons arising from the facts of the case, as they are presented by the papers before us, of such cogency or importance as to justify this court in reviewing and reversing the judgment of the Court of Chancery.

Second. As the action is brought to restrain the publication of only a single letter, which is not alleged to possess literary merit, or actual value, and the publication of which, it is not averred, would either produce damage, offend good taste, or wound the susceptibilities of any one, the court is precluded by statute from taking jurisdiction of it. It has no jurisdiction of actions purely equitable, and relating to property, unless the matter in controversy, exclusive of costs, exceeds $100 in value.

Third. That even if it was alleged and not denied, that the publication of the letter would wound the feelings of the author, however gross and censurable the breach of confidence and good morals involved in making the publication, neither this court nor any other has jurisdiction of an action to restrain an act merely on the ground that it would violate the decencies and courtesies of life, or be an abuse of private confidence, unless the act will affect property of the value, or produce injury amounting to over $100.

Fourth. It is extremely doubtful, in the. most favorable view of the merit of the case which can be taken for the plaintiff, whether a state court can now take jurisdiction of an action like the present.

       This objection to the jurisdiction of the court, is not stated in the answer of the defendants, nor was it taken by their counsel upon the argument; and it was, therefore, not adverted to in the opinion of the court. It seems proper, however, now to state, that it was considered in the consultation of the Judges, and that all the Judges who concurred in the judgment delivered, were of opinion, that the statutory provision is not applicable at all, where the only relief sought by a. complaint is a perpetual injunction; in other words, is only applicable where specific property, or a debt or damages are sought to be recovered. The jurisdiction of the Court of Chancery in England, is subject to a limitation similar to that imposed by our statute, (£10 sterling,) but in none of the reported cases is an intimation to be found, that a bill filed to restrain the publication of private letters, must contain an averment of their pecuniary value, and it is obvious, that to require such an averment, is to place it in the power of the defendant, by denying its truth, to compel the production of the letters, and thus, by enforcing their publication, defeat the only object of the suit. Indeed, the objection that private letters, the unauthorized publication of which is sought to be restrained by an injunction, possess no pecuniary value, is only a different form of stating the objection that they do not possess “ the attributes of literary compositions,” and hence it was plainly overruled by Lord Eldon, when he retained the injunction in a case, in which it wa3 expressly admitted that the letters of the plaintiff, as literary compositions, had no merit or value whatever. (Supra, p. 403.)


author: Hoffman, J.

text:
    Mahaney v. Penman.
    A defendant -who voluntarily appears and answers, although the answer, in terms, reserves the right to object to the jurisdiction of the court, is precluded thereby from objecting that the court has not acquired jurisdiction of his person. A voluntary appearance is equivalent to the personal service of the summons.
    The proceedings authorized by the Code to be taken in suits brought against defendants jointly liable upon contract, may be taken in a suit brought upon a judgment rendered against defendants jointly, upon a contract on which they were jointly liable.
    (Before Hoffman, J.)
    Special Term, Oct., 1854.
    This action came before tbe court,, on a motion by Daniel Penman for a new trial.
    Tbe action was brought against him and two others, upon a judgment alleged to have been recovered against them by the plaintiffs, in the “ Circuit Superior Court of Law and Chancery, for Frederick county, in the state of Virginia, for $800.”

      The complaint averred that such court was a court of record, that the plaintiff owned the judgment, and that the defendants owed him thereon" the sum of $800, for which, with interest and the costs of this action, it prayed judgment.
    The case did not disclose that either of the defendants had been served with the summons. Daniel Penman, alone, answered, and by the answer, in terms, reserved his right to object to the jurisdiction, and that the complaint disclosed no cause of action. It also put in issue the allegations of the complaint, and set up new matter as a defence.
    The record of the alleged judgment was produced at the trial, and by it, the recovery appeared to have been had on a contract made by the defendants jointly.
    A verdict passed in favor of the plaintiff. A case was made, with liberty to turn it into a bill of exceptions.
    A new trial was claimed on the grounds, among others, that the defendants being non-residents, no jurisdiction of the person of either could be acquired, except by the personal service of a summons, or his voluntary unconditional appearance. That having reserved in his answer, the right to object to the jurisdiction of the court, this objection to the jurisdiction of the court could be taken at the trial. That the defendants were not jointly liable on contract, and that the court had no jurisdiction to proceed in the action against either defendant, until all of them had been served with the summons, or had appeared in it.

      J. Livingston for plaintiff.

      B. Galbraith for defendant.
   Hoffman, J.

There aTe but two questions to be considered — • Eirst. Is Penman’s an appearance and answer an implication of his residence or of his being personally served within the city or of a consent to jurisdiction? Next. Is he one of several defendants jointly liable on contract ?

1. In Burckle v. Eckhardt, 3 Comst. 132, the Court of Appeals held, that where a bill was filed against persons not residing within the circuit of a vice-chancellor, and the residence elsewhere appeared on the face of the bill, bis voluntary appearance by a solicitor did not give jurisdiction, and bis allowing tbe bill to be taken as confessed, did not bind bim. “ Tbe residence witbin tbe circuit was' a jurisdictional fact, wbicb must exist before tbe court can act at all, either by issuing processes or accepting tbe appearance of a defendant. It is necessary to give jurisdiction of tbe ■ cause, not of tbe person. In sucb case there can be no waiver. Tbe want of jurisdiction appears on tbe record.” (Per Gardiner, Justice.)

Upon this point, tbe case of Bucknell v. Field and another, 8 Paige, 442, deserves much attention. A judgment bad been recovered by tbe defendants against tbe complainant and one Stevens, in a court in tbe state of Massachusetts. An action of debt on judgment was commenced in tbe Supreme Court of this state by tbe defendants against tbe plaintiff. Tbe bill was to restrain the prosecution of sucb action upon certain alleged equitable grounds. It was filed before tbe vice-chancellor of tbe first circuit, neither of tbe defendants residing in sucb circuit, but one in Westchester county and tbe other out of tbe state. Tbe chancellor held, that, tbe subject matter having no locality, tbe question depended upon tbe fact whether tbe suit instituted in tbe Supreme Court was a cause or matter of action arising witbin tbe first circuit. If a bill could have been sustained before sucb suit was commenced, it was evident that tbe vice-chancellor bad no jurisdiction. He inclined to tbe opinion that be possessed it on tbe ground of sucb suit in tbe Supreme Court. (See 9 Paige 151.)

' Tbe case of Burckle v. Eckhardt was decided in December, 1849, and in April, 1851, tbe 139th section of tbe Code was amended by adding to it tbe following clause: “A voluntary appearance of a defendant is equivalent to personal service of a summons upon bim.”

In Granger v. Swartz, (11 Legal Obs. 346,) in this court, tbe learned justice says, 'that tbe voluntary appearance of defendants under this section has- tbe same effect as a service of a summons on them upon tbe day of appearance would haye bad. Tbe clause referred to takes away, then, tbe right to appear with a reservation of an objection to jurisdiction when sucb objection is purely personal. Tbe defendant here cannot appear with protest, and now say that the record does not show that he was a resident or was served personally.

2. Another question then remains — Is he jointly liable with the other defendants on contract ?

The case of Bealey v. Palmer, (1 Hill, 482,) is referred to. Proceedings were taken by attachment under the absent debtor’s act. The attachment was against the property of three persons who had been originally indebted on a joint and several promissory note, on which they had been sued in Indiana. One of them only was arrested, and judgment given against him alone. His property was attached in this state.

It was held that the remedy did not extend to attachment on a judgment in another state; the third section (1 Rev. Stats. 765, 2d ed.) extending only to judgments obtained here. And next, that the party could not go behind the judgment and put the case under the final section which covered a debtor on contract. The judgment extinguished the simple contract debt, as to the defendant arrested.

But the arrest in that case was only of one of the parties jointly liable, and the judgment was against him alone. As to him the joint contract was gone, and a separate liability was established upon the judgment. Here the original joint liability upon contract is continued in a joint liability on judgment. And I think that, under a fair construction of the Code, this may be treated as still a joint liability on contract.

As to the other points raised on the bill of exceptions, I do not think a doubt can be entertained that the ruling of the Judge was correct.

Motion for a new trial denied.

Oaklet, Ch., J. and DueR, J., on consultation, concurred in the decision.

        Watson v. The Cabot Bank, 5 Sand. 423-428. The judgment in this action has been affirmed by the Court of Appeals.

       Perhaps a judgment may properly be regarded as a contract -within the meaning of that word, as used in the phrase, “jointly liable on contract,” in § 83, sub. 2, of the Code. It is a contract, within the meaning of that word, as used in that clause of the United States Constitution which declares, that no state shall pass any “ law impairing the obligation of contracts.” (Art. 1, sec. 10, sub. 1.)


author: Oakley, Ch. J.

text:
    Tufts v. Braisted.
    Section 71 of the Code, does not prohibit the borní jide assignee of a judgment from commencing an action upon it, without first obtaining leave of the court.
    It is so obviously for the interest of an assignee, in many cases -which can he suggested, to sue upon an assigned judgment and obtain a recovery in his ovn name, that the natural meaning of the -words, “ between the same parties,” found in § 71, should not be enlarged by judicial construction, so as to deprive on as-signee of that right.
    (Before all the Judges.)
    Nov., 1854.
    This action came before tbe court, on an appeal by tbe plaintiff, from an order dismissing bis summons and complaint. Tbe plaintiff, as assignee, brought an action upon a judgment recovered in this court, April 5, 1852, by A. D. Sage, against Braisted & Averill, tbe defendants. Tbe defendants moved to dismiss tbe summons and complaint, upon tbe ground that tbe court bad not granted leave to tbe plaintiff to bring tbe action, as required by section 71 óf tbe Code. Tbe motion was granted, and tbe plaintiff appealed to tbe general term.

      Breckenridge for plaintiff.

      S. W. Genet for defendants.
   Oakley, Ch. J.

Prior to tbe Code, a plaintiff, in a judgment, could bring an action upon it, as a matter of course, and of strict right. An assignee of a judgment could do tbe same, only be was obliged to sue in tbe name of tbe assignor. Tbe only way in which a judgment debtor could arrest such a pro- ' ceeding, was by paying tbe judgment. ,

Tbe Code not only allows but requires, tbe assignee of any demand to prosecute any action that may be brought upon it, in bis own name, (§ 111.)

Omitting what is said of judgments -in justices’ courts, § 71 declares that “ no action shall be brought upon a judgment rendered in any court of this state, between tbe same parties, without leave of tbe court, on good cause shown, on notice to tRe adverse party.” Whether the order appealed from is erroneous, depends upon the construction that should be put on the words “ between the same parties.”

We think the natural meaning of the words is, that no party in whose favor a judgment is rendered, shall bring an action upon it against those against whom it is rendered, without leave-of the court. The Code did not intend to prohibit the bringing of an action on a judgment by any and every person, without the express permission of the court. If it had, it would have omitted the words between the same parties.” This is not nominally, nor in substance, an action between the same parties. The plaintiff was not interested in, nor privy to, the recovery of the judgment. He has become the owner of it, by purchase and assignment.

We suppose the objeet of the statute was to prohibit suing ■ upon a judgment, when there could be no motive for it except to accumulate costs. But the reason of the statute, if that was the sole reason for it, would seem to apply with as much force to the assignee as to the assignor of a judgment.

We are not aware, however, of any complaints, that suits have been brought, with such motives, at the instance of the assignees of judgments. The advantages to an assignee, in recovering a judgment in his own name, are obvious. Such a recovery furnishes record evidence, that no equities existed between the assignor and the judgment-debtor, at the time of the assignment, which entitle the latter to exemption from paying the debt. It puts it out' of the power of the assignor to discharge the judgment, or affect the rights or remedies, -of his assignee. The latter is not subjected to the necessity of relying on the uncertainty of human memory, to prove notice to the judgment1 debtors of the fact of the assignment, nor of the time when such notice was given. We do not feel at liberty to extend, by construction under such circumstances, the common and natural meaning of the words, “between the same parties.” As the Code only prohibits an action between such parties, we do not feel authorized to hold that parties, not prohibited by that section from bringing an action, shall mo.t bring one. Under this view of that- section of the Code, the order appealed from must be reversed, but without costs.


text:
    Allaire v. Lee.

      When a plaintiff voluntarily submits to a nonsuit after evidence has been given on both sides, and while the defendant’s counsel is summing up, it cannot be objected to an application by the defendants for an allowance, under § 308 of the Code, that a trial has not been had.
    (Before Oakley, Ch. J.)
    At Chambers,
    Dec., 1854.
    Motion for an allowance.
    After the evidence in the action Rad been closed, and while the defendant’s counsel was addressing the jury, the plaintiff’s counsel proposed to submit to a nonsuit, and was nonsuited. The defendants moved for an allowance under § 808 of the Code. It was objected that no trial had been had.
   Oakley, Ch. J.

This is a proper case for making an allowance, unless the objection that no trial has been had, was well taken. The defendants have recovered a judgment. A regular trial was had, witnesses were examined by both parties, and after the evidence was closed, the plaintiff was nonsuited. If he had been nonsuited on the defendant’s motion, without any attempt on the part of their counsel to address the jury, no one, I presume, would doubt that a trial had been had. What took place was none the less a trial because the nonsuit was voluntarily submitted to, before the defendant’s counsel had concluded the address he was intending to make to the jury. I think the case too clear to need illustration or argument. A proper allowance will therefore be made.

The other justices to whom the point was stated, concurred.


author: Oakley, Ch. J,

text:
    Cudlipp v. Whipple.
    A complaint to recoyer for money lent to, and paid, laid out and expended for, the defendant, at his request, is sufficient under the Code; though as general in its allegations of the particulars of the cause of action as the old form of a declaration in indebitatus assumpsit. If the defendant wishes a more detailed statement, his remedy is to demand in wilting a copy of the account or the particulars of the cause of action.
    (Before Oaklet, Ch. J.)
    At Chambers,
    Dec., 1854.
    The defendant moved for an order requiring the plaintiffs to amend their complaint, so as to make it more definite and certain.
    The plaintiffs brought this action, as assignees of a demand which one James Whitney had against the defendant.
    The facts in relation to the demand were stated thus, in the complaint.
    “ The defendant was indebted to one James Whitney on the 3d of November, 1853, in the sum of $5,046 ⅛⅛, being a balance of account due from said defendant to said Whitney, on an account for money lent by said Whitney to said defendant, and for money paid, laid out and expended by said Whitney to and for the use of said defendant, and at his request”
    The defendant moved that the plaintiff be compelled to make this part of the complaint more definite and certain.

      J. H. Harter for the motion.

      K Terry opposed.
   Oakley, Ch. J,

The Court of Appeals in Allen v. Patterson, (3 Seld. R. 476,) decided that a complaint in an action to recover for goods sold, substantially in the old'form of a declaration in in-debitatus assumpsit, was good under the Code. There seems to be no distinction in principle between that case and this.

This action is brought to recover a balance alleged to be due upon an account for moneys loaned to and paid, laid out and expended for the defendant, at his request.

Section 158 of the Code, expressly declares, that it shall not be necessary for a party to set forth, in a pleading the items of an account therein alleged, but he shall deliver to the adverse party, ■within ten days after a demand thereof, in writing, a copy of the account.

This section has provided that a complaint in a case like this may be as general in its statements as the old indebitatus assumpsit counts. It also enables the adverse party to obtain a detailed statement of the particulars of the cause of action without an application to the court. He has only to demand in writing a copy of the account, and it must be furnished. The complaint in this case is therefore as specific and full in its allegations as the Code requires. If the defendant has any doubt as to the items in respect to which a recovery is sought, his remedy is, to demand a copy of the account constituting the cause of action stated in the complaint.

The motion must therefore be denied.

DueR, Campbell and Boswoeth, J. J., concurred.


text:
    Mason v. Whitely.
    On amending a complaint, -when it is done under § 172 of the Code, as a matter of course and of right, a plaintiff may add a new cause of action.
    The only restrictions imposed on a plaintiff are, that he shall not amend for the purposes of delay, nor to prevent a trial at a term for which the notion is or may be noticed to be tried; and that the cause of action added be one that may properly be united with the one contained in the original complaint.
    (Before Oakley, Ch. J.)
    At Chambers,
    Dec., 1854.
    Motion to strike out an amended complaint.
    The original complaint in this action was by husband and wife, for an assault and battery, alleged to have been committed by defendant upon the wife; and was drawn substantially in the common form. The defendant answered without awaiting the expiration of the twenty days, making a general denial.
    Subsequently, and within twenty days from the service of the original complaint, the plaintiffs served an amended complaint. The amendment consisted in the addition of a second count, set-ting forth that at the time and place of the alleged assault and battery, averred in the original complaint and repeated in the amended one, the defendant also unlawfully restrained the female plaintiff of her liberty, &c.
    The defendant moved at Special Term before the Chief Justice, to .strike out the amended complaint, upon the ground that the' amendment amounted to the addition of a new and distinct cause of action.

      B. Skaats, in support of the motion,
    cited Hollister v. Livingston, 9 How. Pr. R. 140.

      B. V Abbott, in opposition.
    It has been understood in this court, that the plaintiff may thus amend, as of course. {Penny v. Van Gleef, 1 Hall, 165; Margareth v. Van Wyck, 2 Sandf. 651; Jeroliman v. Cohen, 1 Duer, 629.) This practice is upon the whole supported by the practice of the Supreme Court, as adopted since the Code. (1 Mon. Pr. 2d ed. 371; Getty v. Hudson River B. R. Co. 6 How. Pr. R. 269.)
   Oakley, Ch. J.

The complaint was amended under § 172 of the Code. The motion is made on the ground, that under that section a plaintiff cannot amend, by adding a new and distinct cause of action. There is no such restriction imposed by that section of the Code. The only limitation upon the right to amend, or upon the nature of the amendments to be made is, that it shall not be done for the purpose of delay, nor under such circumstances as to prevent a trial at a “ term for which the cause is, or may, be noticed.” Neither of these objections is alleged to exist. Under the rules and practice of the courts, as they existed prior to the Code, a party, on amending, as a matter of course, could add new counts or pleas.

Supreme Court. Rules of 1829. Nos. 20 and 21..

Superior Court. Rules of 1834. No. 33.

New York Com. Pleas. Rules of 1834. Nos. 28 and 29.

The Code allows, on an amendment made under § 172, the insertion of any new causes of action that can properly be united in a coinplaint.

The motion must be denied.

Dues, Campbell and Boswobth, J. J., concurred.


text:
    In the Matter of Brown.
    The New York Superior Court will not take jurisdiction to issue a commission of lunacy.
    The nature and extent of the power, to take the persons and property of lunatics and habitual drunkards into judicial custody, reviewed.
    (Before Hoffman, J.)
    At Special Term; Dec., 1854.
    Application for a writ in. the nature of a commission & luná-tico inquirendo.

      P. Y. Cutler for petitioner.
   Hoffman, J.

The question, whether this court has jurisdiction to issue such a commission as is sought, and jurisdiction in a number of similar cases, distinct from equity authority in an action, has been found to be so novel and unsettled that it has engaged the consideration of most of the Judges.

The-custody of lunatics was not vested in the English Court of Chancery as such. • It was lodged in the crown. That branch of the prerogative might be exercised by any officer the king thought fit. It was ordinarily delegated to a great officer of state, but not necessarily to the Keeper of the Great Seal. A warrant under the sign manual was usually delivered to the lord chancellor or lord keeper upon his coming into office. (4 Bro. Ch. Pr. 228; Shelford on Lunacy, 157.) But the right of the crown to the management and control of lunatics and their estates did not commence until the finding of the office or inquisition of lunacy. (8 Rep. 170 b.) . And the method of ascertaining whether the party was a lunatic, was a petition to the lord chancellor, suggesting the lunacy, and verified by affidavits. He then issued a writ to the sheriff of the county where the party resided, to try by a jury, and personal examination, whether the suggestion was true or not. It was the ordinary writ upon a supposed forfeiture to the crown. (Natura Brevium, 581.)

As rights accruing to the crown, by forfeiture or other means, ■were inquirable into by commission as well as writ, tbe former superseded tW latter in practice. (Ex parte Soutbcot, Ambler, 111.) Botb issued under tbe great seal from tbe common law side of tbe Court of Chancery, and were returnable to tbat court. (Ibid.)

In Sherwood v. Sanderson, (19 Ves. 285,) tbe lord chancellor says, tbat tbe application is made to tbe lord chancellor, not as chancellor, but as tbe person baying, under the especial warrant of tbe crown, tbe right to exercise tbe duty of tbe crown, to take care of those who cannot take care of tbemselyes. Tbe application has therefore no concern with any thing passing in tbe Court of Chancery; but is made to tbe person bolding tbe great seal in whom tbe crown has usually thought proper to yest this jurisdiction, as it would be made to any other person baying tbat authority. (See also Lord Redesdale, Ex parte Fitzgerald, 2 Sch. & Lef. 435.) Justice Story, (Eq. Jur. § 1,364, n.) sums up bis yiew of tbe origin of tbe jurisdiction thus: “ Tbe truth seems to be, tbat tbe lord chancellor acts merely as delegate of tbe crown, and exercising its personal prerogative as parens patrios in chancery, and not as a Court of Equity.”

And M. Eonblanque, in bis learned note upon Mr. Hargrave’s ■ observations, expressly considers tbe custody of lunatics as a delegation of a power conferred by Parliament; noticing tbe fact tbat at common law tbe custody of lunatics and idiots, at least such as held lands, was not in tbe king, but in tbe lord of tbe fee. (2 Eonblanque, 230, n.) To some extent, at any rate, it is inaccurate to say tbat tbe custody of tbe estates of lunatics existed before tbe statute- of Edward, and was independent of it. (Ambler, 707; 2 John. Cb. R. 237.)

Upon our revolution, tbe people succeeded to tbe duties and prerogatives of tbe crown; and at a very early period they expressly delegated tbe authority in this matter to tbe chancellor. Tbe successive statutes were substituted for tbe king’s sign-manual, to each lord chancellor or lord keeper. It is on this basis tbat tbe jurisdiction in our state is most clearly and safely vested, and tbe express delegation of tbe authority of tbe state as to tbe custody of tbe person and estate of lunatics, implied tbe right of judicially ascertaining who were such; and tbe course of proceeding almost necessarily followed tbat of tbe English chancery.

The statutes of Edward, chs. 9 and 10, afford the model on which our statutes have been framed. The first of these was the act of February 6, 1588, (2 Greenl. 25,) enacting that the chancellor should have the care, and provide for the safe-keeping, of all idiots, and of their lands and tenements, goods and chattels. (§ 1.) The second section gives the care and custody of persons and estates of lunatics to the chancellor, in like manner, and very nearly in the words of the statute of Edward.

The statute of the 10th March, 1801, embodied these two sections into one. Such was also the enactment in the revision of 1813. (1 Rev. Laws, 147, § 1.) The Revised Statutes of 1830 adopt it, with slight change of language. (2 Rev. Stat. 52, § 1.)

The circuit judges, under the Constitution of 1822, and the Revised Statutes of 1830, were vested (in cases within their circuits) with all the original jurisdiction and powers which now are, or hereafter may be, vested in the chancellor, in all causes and matters in equity, and in all causes or matters of which the cognizance is or shall be vested in the chancellor by virtue of any statute (2 Rev. Stat. 108, § 2.)

The act of 1831, appointing a vice-chancellor, gave to him the same powers in the first circuit, and under this act the vice-chancellor issued commissions of lunacy. (3 Edw. Rep. 380.)

As it is admitted that the jurisdiction was not in the chancellor, by reason of his being the head of the Court of Chancery, it follows, that the jurisdiction of the vice-chancellor and circuit judges was conferred by that clause of the act giving them power, “ in all causes or matters of which the cognizance is or shall be vested in the chancellor by virtue of any statute.”

It results, also, that the establishment of a court with general equity jurisdiction would not confer this particular power. This would also result from the general doctrine, that a newly created court can have no other jurisdiction than such as is expressly conferred. A new court cannot prescribe. (4 Just. 200.)

The original jurisdiction of the Superior Court, conferred by the statute of 1828, and as varied or enlarged by any statute down to 1847, confessedly does not extend to such a case.

By the Constitution of 1846, (art. 6, § 5,) it was provided, that the legislature shall have the same powers to alter and regulate the jurisdiction and proceedings in law and equity as they have heretofore possessed; and by the 14th section, inferior local courts of civil and criminal jurisdiction may be established by the legislature in cities. By the 12th section of article 14, the Superior Court was to remain, until otherwise directed by the legislature, with its then existing powers and jurisdiction.

It is important, in order to determine the present question, to advert to the legislation in respect to habitual drunkards. The first act upon that subject was that of the 10th of March, 1821, entitled, “ An Act concerning the estates of habitual drunkards.” (Laws of 1821, ch. 119.) It was declared to be lawful for the Court of Chancery of the state to exercise a jurisdiction and power in regard to the estates of persons who shall be incapable of conducting their own affairs in consequence of habitual drunkenness, similar to the jurisdiction and power exercised by'that court in regard to the estates of lunatics.

The second section provided that the overseers of the poor might make application to the chancellor for the exercise of such power. By the third, a mode of revising the action of the overseers by a jury before a justice of the peace was pointed out.

Under this statute, the court had no power over the person of the drunkard, but only over his estate. This was so held in ex parte Lynch, 5 Paige, 120. By the Revised Statutes, the power of the court was extended to the person as well as the estate, and its authority was placed precisely upon the same footing as over lunatics and idiots. It was declared that the chancellor should have the custody of all idiots, lunatics, persons of unsound mind, and habitual drunkards, and of their real and personal estate; and he was to provide for their safe-keeping and maintenance out of their real and personal estates. (2 Rev. Stats. 52, § 1.) This statute, the chancellor observed, gave the court a perfect control over the person of an habitual drunkard, which it could exercise through a committee. (Ibid.)

The statute of 1880 gave the like jurisdiction to the Court of Common Pleas of the county, as to the chancellor, where the drunkard’s property was less than $250. In vacation, the application might be made to the first judge of the county. There was an appeal to the Court of Chancery. (2 Rev. Stats. 52, §§ 3, 4, 5, 6.) Other sections provided for the mode of obtaining a sale or mortgage of the real estate to satisfy debts. (§§ 11, 12, 13.) This statute formed a. complete and uniform system upon the whole • subject, down to the 1st of March, 1856, when the third edition of the Revised Statutes was published. In defining the jurisdiction of the Court of Common Pleas, the Revised Statutes, (2 Rev. Stats. 208,) declared, among other things, that they should have and exercise the power and jurisdiction conferred upon them by law, over the persons and estates of habitual drunkards,

Down to this period, the Courts of Common Pleas had no jurisdiction as to lunatics, and a defined jurisdiction as to drunkards, nearly coextensive with that of the chancellor, where the property was less than $250.

The Constitution of November, 1846, (see article 6, § 14,) provided for the election of a county judge, who should hold the county court, and that the county court should have such jurisdiction in their county as the legislature should prescribe.

Then followed the Judiciary Act of May 12,1847, and the 29th section of article 4 provided, that the county courts should have jurisdiction to hear and determine all matters and proceedings especially conferred upon, and heretofore triable and cognizable by Courts of Common Pleas of the several counties.

It appears to me, that the power of the Courts of' Common Pleas as to drunkards, vested in the county courts by force of this provision.

Then, in the 31st section, it was provided, that the said county court “ should have equity jurisdiction in suits, and proceedings in the following cases,” among them — “ for the care and custody of lunatics and habitual drunkards residing in such county.”

The clause as to drunkards was, as I view it, superfluous. What extent of jurisdiction was then given by the words as to lunatics ? It is to be,observed that it is a legislative grant of new jurisdiction to a tribunal of limited powers created by statute, and must be construed strictly. I apprehend it could not possibly be extended beyond the care and custody of the person.

The separation between the power over the person and over the estate, is strikingly shown by the case before Chancellor Wal-worth, in 5 Paige, 120, befoye noticed, where he held, that the statute of 1821 only gave him power over the estate. And in England it is quite common to have separate committees, espec-' ially if the lunatic is a female; when the committee of the person is generally one of her own sex; and a male for the committee of the estate. (Shelford, 138, &c.)

The 21st section of the amended Judiciary Act of December, 1847, enacted, that the Superior Court and Court of Common Pleas of the city and county of New York, shall, respectively,* have and possess the same equity jurisdiction which is conferred upon the several county courts of the state, by § 31 of the chapter referred to, (the Judiciary Act,) or by any other act. See also the 22d section.

At this period, then, the Superior Court may be considered as having jurisdiction as to the person, but none other.

The Code of April, 1848, provides, first, that the courts enumerated (among them this court) shall continue to exercise the jurisdiction now vested in them respectively, except as otherwise prescribed by this act. (Title 1, § 10.)

. The 29th section of the same Code, repealed all statutes then in force, defining or conferring the jurisdiction of the county courts so far as they conflicted with that act; and declared, “ that those courts should have no other jurisdiction than that provided in the next Section.” The 30th section then proceeded to enumerate the cases in which the county court should have jurisdiction, and among them is the authority as to idiots, lunatics, and drunkards.

But a marked distinction between the provisions of the Code and those of the act of 1847, must be noticed. The whole enactment of the latter was, that the county court should have equity jurisdiction “ in a suit or proceeding for the care and custody of lunatics and habitual drunkards residing in such county.” .But in the Code the provisions are, first, by subdivision 8 of section 30: The care and custody of the person and estate of a lunatic or person of unsound mind, or an habitual drunkard residing within the county,” and next, by subdivision 6: “ The sale, mortgage, or other disposition of the real property, of an infant or a person of unsound mind, situated within the county.”

The jurisdiction expressly conferred by the Code upon this court, does not include the power in question. The 33d section read in connection with the 123d, bestows jurisdiction in certain enumerated cases where the cause of action shall have arisen, or the subject of the action shall be situated within the county, and in the other cases specified, of personal residence or the service of a summons -within the same. These actions are enumerated in prior subdivisions of section 128. Among them is an action for partition and for the foreclosure of a mortgage. But this express delegation of power is in actions, and relates to actions in the legal sense, — between contesting parties, — and as distinguished by the Code from special proceedings.

The legislature in this provision has selected two of the cases of equity proceedings from the 31st section of the act of 1847, and gives this court authority in those cases by express enactment. It omits the other cases, such as admeasurement of dower, sale of infants’ estates, and the care of lunatics. The argument that this amounts to an implied exclusion of such cases is very strong.

The Court of Common Pleas was placed by the 33d section of the Code in almost precisely the same situation as this court, in regard to jurisdiction, expressly or by implication conferred. The judiciary act, as amended, had placed each court in a similar position as to its authority in the present case. Yet it was deemed advisable or necessary to pass an act on the 12th of April, 1854, declaring that the Court of Common Pleas has power and jurisdiction of the following proceedings': to remit fines, &c.; and to exercise all the powers and jurisdiction now or hereafter conferred upon or vested in the said court, or in the county courts in their counties, and the powers and jurisdiction which were vested in the Court of Common Pleas for the city and county of New York, before the enactment of the Code of Procedure, passed April 12, 1848.

By this express enactment, all the jurisdiction given to county-courts by the 30th section of the Code, is now vested in the Common Pleas. It is true, the language pf the act is a declaration that “ the said court has power and jurisdiction to exercise all the authority,” &c., — but even supposing the phraseology has been intentionally and technically used, it is too slight a ground on which to imply our own authority. - ,

It is clear, that if this court possess any jurisdiction, it could only be to issue the commission and appoint a committee of the < person. We could do nothing as to the estate, and a very inadequate power would thus be vested in us.

The result of my examination is, that at least the point of jurisdiction is, even as to the person, so doubtful as to warrant our refusal to attempt its exercise in a matter where questions of title, as well as other serious consequences, may depend upon its existence, and when the most ample and sure relief is open in other tribunals.

Application denied.

       What jurisdiction is the legislature competent to' confer, on the County Courts? Vtde Kundolf v. Taalheimer, et al,, 2d Kern. 593.


text:
    The Union India Rubber Company v. Babcock.
    The proper practice, in respect to the form of entering judgment in the court below, upon remittitur from the Court of Appeals, when the appeal is dismissed by reason of the appellant’s failure to serve printed copies of the case, considered and declared. ⅝
    The proper practice is, to direct by order that the judgment of that court be made the judgment of the court below, and to insert the costs of appeal when adjusted, in the latter judgment. Form of a judgment, in such a ease, upon filing the re-mittitur, given.
    (Before Hoffman, J.)
    Special Term, Dec., 1854.
    MoTion for judgment upon a remittitur from the Court of Appeals.
    The plaintiffs’ cause of action arose on contract for goods sold and delivered. Upon the report of a referee, judgment was entered in favor of the plaintiffs- for $1,352⅛⅜. Both parties appealed to the General Term. Both appeals were dismissed, and the judgment below affirmed. The defendant then appealed to the Court of Appeals. But he having served no printed copies of the case, the appeal was dismissed by the respondent by an order entered of course. In accordance with the provisions of this order, the record as returned to the Court of Appeals was transmitted to the Superior Court, under a certificate of the clerk. ' . •
    The plaintiff now moves for judgment upon the remittitur, with costs of the appeal.

      T. H. Rodman, for plaintiff.

      J. R. Ward, for defendant.
   Hoffman, J.

The plaintiffs recovered a judgment against the defendant, on the 22d day of December, 1853, for the sum of $1,352 92. This was an affirmance by the General Term, of a judgment obtained at Special Term on the 9th of July, 1853. The defendant appealed to the Court of Appeals, on the 24th of December, 1853. And on the 4th of December, 1854, an order of that court was made, dismissing the appeal, with costs, for want of service of printed copies of the case, as required by the 7th rule of that court, more than forty days having elapsed since the appeal was perfected. The order also directed the record and proceedings to be remitted to the Superior Court, there to be proceeded upon according to law. This has been done by transmitting to this court the record as returned to the Court of Appeals, under a certificate of the clerk.

By the 12th section of the Code, the judgment of the Court of Appeals shall be remitted to the court below, to be enforced according to law. The provision of the Revised Statutes was similarthat when an appeal shall have been heard and determined, all the proceedings, together with the decree or order therein, should be remitted to the Court of Chancery, where such further proceedings should be had as might be necessary to carry it into effect. (2 Rev. Stats. 167, § 29.)

The 469th section of the Code retains all the former rules and practice of the courts, not inconsistent with the act. And although the order to dismiss an appeal is entered as of course, with the clerk, yet the theory is, that it is the same thing as if made in open court, by the judges themselves. It may also be well considered that such an order is a judgment within the meaning of the 12th section of the Code. Justice Parker, in Tillspaugh v. Dick, (8 How. Pr. R. 33,) calls a dismissal of a complaint for want of prosecution, a judgment.

The practice upon remittitur of appeals was well settled. Application was made to the Court of Chancery for an order or decree making the decree of the Court of Errors the decree of that court, and that it be carried into effect. Occasionally, the decision above rendered it necessary to make an entirely new decree, as in the case of the James wilL But where there was a mere decree of affirmance "with costs, the decree in the court below recited the remittitur, and the amount of the costs as taxed, and thereupon adjudged and decreed, that the judgment of the court for the correction of errors, and the decree of this court thereby affirmed, be carried into full execution and effect, and that the party have execution for the costa directed to be paid by the judgment of said Court of Errors, and the said decree of this court thereby affirmed. (Decree in Gregory v. Dodge, stated 3 Hoff. Ch. Pr. 220; Bowen v. Idley, ibid. 211.)

In Dale v. Roosevelt, (1 Wend. 25,) the practice on writs of error is pointed out. It was held that the remittitur could be filed in vacation, that an entry on the original record of the writ of error and remittitur, was unnecessary, that the costs taxable after the record had come down, were to be inserted in the remittitur, and an award of execution for such costs, I apprehend, would be proper. It appears settled law that no new rule for execution as to the original judgment was necessary. (2 Cow. 510.)

The theory of this course of proceeding was, that the original decree remained in full force, dating from its original entry, and, of course, if for a money demand and docketed, retaining its lien. Then the decree made upon the remittitur operated in cases of affirmance, simply to give and declare a right to the costs of the appeal, and direct an execution to issue for them, and also where execution for recovery of money or performance of an act had been decreed, to award execution for that also.

I apprehend that a similar course may be pursued under the Code, and that an order may be entered upon the filing the re-mittitur, substantially in the form used in the Court of Chancery in similar cases of appeals.

In Hosack v. Rogers, (7 Paige, 108,) the chancellor adverted to the practice in the Supreme Court and the Court of Chancery upon filing remittiturs, and settled, as the future course in the latter court, that they must either be presented to the chancellor in the first instance, or the party to whom the remittitur was delivered might give notice for a regular motion day in term or vacation, that he would file the remittitur and ask for such decree or orders as he considered himself entitled to, upon it.

There is one point, however, which requires consideration. The costs of the appeal have been adjusted by the clerk of this court. The question is, whether this is regular.

By the course of the House of Lords, a specific sum is usually inserted in the decree or judgment, as the amount of costs to be allowed. As there is no officer of the House authorized to tax costs, if the agents cannot agree, and the House does not fix the amount definitely, a reference is sometimes made to a solicitor agreed upon by the parties. (Palmer’s Pr. 74, 2 Daniel’s Pr. 1,371.) It appears also that the House of Lords may order a party into custody for a contempt in not paying them, or direct the recognizance to be estreated into the Exchequer. Ibid. 1,372.)

The original 19th rule of the Court of Errors, adopted in April, 1827, directed the costs to be taxed by the chancellor or judge of the Supreme Court or clerk of the Court of Errors. (9 Cow. 289.) This was considered to be inconsistent with the fee bill, (2 Rev. L. 4,) directing taxation of costs in the usual manner of the respective courts. Accordingly in April, 1829, the rule was amended, to conform it to the language of the fee bill, and the costs of that court were afterwards taxed by the regular taxing officers of either court. This could be done after the Tecord had been sent down. (Legg v. Overbagh, 4 Wend. 188.)

The Code has nowhere in terms prescribed, either that costs shall be taxed, or by whom they shall be taxed. The power is deduced from the 311th section, and is considered as belonging to the clerk, from the language there used, that he shall insert in the entry of judgment the sum of the charges for costs as provided in the Code, and the disbursements and fees of officers allowed by by law. (Whipple v. Williams, 4 How. Pr. R. 28; Nellis v. De Forrest, 6 How. Pr. R. 413.)

It has been decided in several cases, that the power of the clerk, under the Code, to tax costs, is limited to a taxation upon final judgment. (Nellis v. De Forrest, 6 How. Pr. R. 413; Mitchell v. Westervelt, ibid. 265; Burnside v. Brown, 6 District, January, 1852, cited 6 How. Pr. R. 415; Echerson v. Spoor, 4 How. Pr. R. 361; Morrison v. Ide, ibid. 304.)

In Van Schaick v. Winne, (8 How. Pr. R. 5,) Justice Harris held, that the taxation of costs by a Judge at chambers was a nullity. The clerk was the only officer authorized by the Code, to tax or adjust costs. His authority was limited to the taxation of costs upon tlie entry of judgment. The amount of costs upon interlocutory proceedings should he fixed by the order allowing them, and he, as well as Justice Hand, hold, that the court has clearly the power in all other cases to make a reference to the clerk to adjust the costs.

The authority to tax the costs has been for many years the subject of legislative enactment. By the 37th section of the Revised Statutes, records of judgment should be signed and the costs be taxed, by one of the justices, or by the clerk, a circuit judge or Supreme Court commissioner. (2 Rev. Stats. 282, § 37.) The 8th section of the act of 1813, (1 Rev. Stats. 320,) gave the same power to the clerks.

So in the Court of Chancery, an act of April 15, 1814, (Sess. Laws, 1814, 163, p. 187,) authorized the chancellor to designate masters to tax costs who should have exclusive jurisdiction to do so during the pleasure of the court., (See the authority continued in 2 R. S. 169, § 5.)

The language .of the 311th section of the Code is, that the clerk shall insert in the entry of judgment the sum of the charges for costs as above provided, with the necessary disbursements, and the expense of printing the papers upon appeal.

By the 307th section and the seventh subdivision, an allowance - is to be made on appeal to the Court of Appeals, and such costs appear to fall within the phrase “as above provided,” as well as any other. The clerk therefore has, as to these, the same authority that he has as to any other costs.

The proper mode then appears to be, that the judgment of the Court of Appeals be directed to be made the judgment of this court, and that the costs of appeal, when adjusted, be inserted in such judgment.

       His Honor, with the concurrence of three other justices, approved of the following order: remarking that if, on presenting the remittitur, the court deemed a notice proper, the order would be so far varied as to be made an order to show cause why the judgment of the Court of Appeals should not be made the judgment of the Superior Court, and a judgment entered in the Superior Court conformably theretoa copy of the proposed judgment to be served .with such order to show cause.
      Title ok Cause. • “At a Special Term,” &c.
      “This cause having been brought on upon the remittitur herein sent down from the Court of Appeals and now filed in this court, by which remittitur it appears that an appeal was taken by the defendants from the judgment of this court to the said Court of Appeals, and that such appeal had been dismissed by such court with costs for want of prosecution, and that the record and proceedings had been directed by said Court of Appeals to be remitted to this court, and this court directed to enforce the said judgment of the Court of Appeals according to law. How, therefore, on motion of Mr. Rodman of counsel for the plaintiffs, it is ordered and adjudged that the judgment of the said Court of Appeals be, and the same is hereby made, the judgment of this court; and that the plaintiffs have execution against the defendants for the costs when adjusted by the clerk and inserted in this judgment, as well as for the amount adjudged to be recovered in and by the judgment of this court in this cause, entered the 9th of July, in the year 1853; and that this order or judgment be annexed to the judgment record herein."


author: BoswoRTH, J.

text:
    McMasters v. Vernon.
    In actions at common law, pending in Courts of Record when the Code took effect, and tried afterwards, the right to costs, and the rate of compensation, are governed by the statutes in force at the time the Code took effect.
    Costs of proceedings, subsequent to the verdict, to review decisions made at the trial, and taken in the mode prescribed by the Code, are governed by the provisions of the Code.
    (Before Boswokth, J.)
    Special Term.
    This was an action of assumpsit. It was commenced and issue was joined in it before tbe Code. It was tried in 1852. Tbe jury, under tbe direction of tbe court, found a verdict for tbe defendant. Tbe questions of law arising in tbe case were directed, by tbe justice trying tbe cause, to be first beard at tbe General Term, and tbe entry of judgment to be in tbe mean time suspended. Tbey were so beard, and judgment was there directed to be entered in favor of tbe defendants.
    Tbe costs prior to and including tbe verdict, at tbe rates
    prescribed by tbe acts of 1840 and 1844, are ‡63 02

      ' “ “ after verdict, at tbe Code rates, are . . 137 50
    “ “ “ “ at tbe rates prescribed by tbe fee
    bill of 1840 and 1844, are . . .99 43

      The questions now presented are, by what rule are the costs prior to and including the verdict, to he adjusted? and are the defendants entitled to $187 50, or to $99 48, for their costs, subsequent to the verdict?

      H. D. Sedgwick for plaintiff.

      D. D. Lord for defendant.
   BoswoRTH, J.

This was a common law action, was at issue before the Code was enacted, and was tried after section 459 was incorporated into the Code, by the amendments made by the act of July 10, 1851. (Laws of 1851, p. 876.)

Are the costs for services rendered before this amendment took effect, to be taxed under the fee bill of 1840, and those for services subsequently rendered, under the Code ? or are they to be wholly taxed under the one law or the other, and if so, under which of them? I speak now only of the costs down to, and including the verdict.

The principle is deemed well settled, that the right to costs and the rate of compensation, depend upon and are controlled by the statutes on that subject, in force at the time the right to costs, if any exists, accrued. (Supervisors of Onondaga v. Briggs, 3 Denio, 173; The Brooklyn Bank v. Willoughby, 1 Sand. S. C., 669; Rich v. Husson, 1 Duer, 618.)

What laws were in force, in respect to costs in such cases, when the verdict in this action was rendered ? The acts of 1840 and 1844 had not been absolutely repealed. They were left by the Code in full force and effect, as to all actions pending in courts of law at the time the Code went into operation.

Section eight of the Code, expressly provides, that part two of the Code relates only to such civil actions as may be commenced after the 1st of July, 1848, except when otherwise provided therein. Title ten of part two, entitled “ Of the costs in civil actions,” contains the provisions of the Code in relation to costs. There is nothing, in any part of that title, which provides, or implies, that its provisions shall affect any suit commenced before the Code took effect. It necessarily follows, that section eight in effect declares, that section 303, which repeals all statutes establishing or regulating costs, applies only to actions commenced after tlie 1st of July, 1848.

It was for that reason that section 2, sub. 1, of the act to facilitate the determination of existing suits, passed April 11, 1849, provided that section 315 of the Code should apply to suits pending on the 1st of July, 1848. (Laws of 1851, p. 147 of the Appendix.) Section 315 is found in title ten of part two of the Code, and regulates the costs that may be allowed on a motion. This shows clearly enough, that the legislature not only did not intend that an absolute repeal of the pre-existing statutes in relation to costs should be effected by section 303, but, on the contrary, understood that section 8 left thenl in force, and in all respects applicable to actions at law pending on the 1st of July, 1848.

It necessarily follows that all the costs, except the costs of motions, are to be taxed by the fee bill of 1840, as amended by the act of 1844, unless section 459 of the Code, as it now is, provides a different rule as to all or a part of the costs. That section reads thus:

“ The provisions of this act apply to future proceedings in actions or suits heretofore commenced and now pending, as follows: ⅝ “ 1. If there has been no pleading therein, to the pleadings and all subsequent proceedings.
“ 2. "When there is an issue of law, or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings.
“ 3. After a judgment or order, to the proceedings to enforce, vacate, modify, or reverse it, including the costs of an appeal.”

If the effect of applying the provisions of that act to future proceedings, necessarily, or by fair construction, was to make the rate of compensation fixed by the Code, the rule or measure of compensation for all future services in pending suits, why provide expressly in sub. 3 of this section, that those rates should apply to the proceedings upon an appeal from a judgment or order?

If such a provision was deemed necessary to justify such a construction, in respect to the costs of a future appeal from an order or judgment in a pending suit, it is not to be inferred that the like interpretation was expected to be given, with respect to the costs of the future proceedings, provided for by subdivisions one and two of the same section, in the absence, apparently designed, of a similar provision relating to them. (Rich v. Husson, 1 Duer, 620, 621; Fitch v. Livingston, 4 Sand. S. C., 712, 714.)

Section 459, as construed by this court, means, that the mode and form of proceeding prescribed by the Code, to be had in actions commenced under it, shall be pursued in actions commenced prior to July 1, 1848, from the time that section took effect: Which party was to have the costs of such proceedings, and the rate of compensation the Code left, as it always had to be determined by pre-existing statutes. To that construction there is no exception, except in the single instance made by the Code itself, in the concluding part of sub. 3 of the same section, viz: the costs of an appeal from an order or judgment. It is not to be denied that section 459 has been construed otherwise.

It is thought by some, that the effect of section 459 on section 803, clearly is, that subsequently, the old fee bill was repealed as to all fixture proceedings, and in force as to all past proceedings. If section 459 has any effect on section 303, or works a repeal either total or partial of section 8, so far as the latter relates to the costs of suits commenced before July 1, 1848, why is this limited effect given to its operation ?

If section 459 has the effect to apply the provisions of title ten of part two of the Code, to pre-existing suits, then why are not the provisions of that title to determine as well the right to costs, as the rate of compensation ?

• The costs of an appeal from a judgment, are in the discretion of the court in two cases only. (Code, § 306, sub. 1 and 2.) Subdivision 3, of section 459, in effect provides that the costs of an appeal, as well the right to them as the amount to be recovered, must be determined by the Code, and as they would be, if the action had been commenced after the 1st of July, 1848.

If a verdict is a “ proceeding” subsequent to the trial, within the proper meaning of that word, as used in section 459, then it is upon the amount of the verdict, that the right of a plaintiff to recover, or his liability to pay costs, is made by the provisions of the Code to depend.

A recovery of just $50, in this case, as in that of Rich v. Husson, would entitle the plaintiffs to costs. (Code, § 304, sub. 4.) By the Revised Statutes, unless the plaintiff recovered over $50, he must pay costs. (2 Rev. Stats., § 614.)

In a case like that of Rich v. Husson, would it be sound to bold, tbat for all proceedings down to tbe time tbe amendment of July 10, 1851, took effect, tbe plaintiffs-must pay costs, because tbe Revised Statutes wbieb determined tbe right to costs; and tbe act of 1840 wbieb regulated tbe rate of compensation, applied to all proceedings to tbat time, and tbe amount of tbe verdict by those statutes entitled tbe defendant to those costs, but tbat for all subsequent proceedings tbe plaintiff should recover costs, because as to those, section 459, and title 10 of part 2 of tbe Code, controlled, and by tbe provisions of tbe latter, tbe plaintiff was entitled to costs, because bis verdict was for a sum, which, by those provisions, carried costs ?

It must be borne in mind, tbat tbe right to costs, in actions at law, prior to tbe Code, did not depend upon tbe acts of 1840 and 1844, but upon tbe Revised Statutes. Those acts only regulated tbe rate of compensation.

Section 803, of tbe Code repealed neither tbe one nor tbe other, as to actions commenced before tbe first of July, 1848, but as to such actions left them in full force and effect, in all respects, except as to tbe costs of motions in pending suits.

Section 459, with a view to assimilate tbe practice in suits commenced before and after it was enacted, provided by subdivisions one and two, tbat tbe forms of subsequent procedure should be tbe same in both, to tbe recovery of a judgment.

Tbe words “all subsequent proceedings,” as used in those two subdivisions of tbe section, are limited to proceedings terminating in tbe judgment, for tbe obvious reason, tbat subdivision three of tbe same section provides for all proceedings after judgment, and for tbe costs of those proceedings.

It being conceded, and uniformly decided, tbat independent of section 459, of tbe Code, both tbe right to costs, and tbe rate of compensation, in suits commenced before tbe 1st of July, 1848, were regulated exclusively by pre-existing law, it seems to me quite clear, tbat tbat section has not repealed that law as to any proceedings in such actions, nor applied to them tbe provisions of tbe Code relating to costs, except as to tbe costs of an appeal. Tbe costs down to and including tbe verdict must, therefore, be adjusted at tbe rates prescribed by tbe acts of 1840 and 1844. As to tbe costs of the proceedings to review tbe decisions made at tbe trial, it is to be observed, that the defendant could pursue either of two modes.

One, that which was taken pursuant to section 265 of the Code.

The other was, to allow a judgment to be entered; and then • appeal from it. Such an appeal would bring up for review all exceptions taken to the decision of the Judge. If the latter course had been taken, there can be no question that the costs of review- ■ ing the decisions made, would be governed by the Code.

In either mode of reviewing them, the proceedings would be the same throughout, except that in one case notices of appeal must have been served. In either mode the same questions would be reviewed and upon the same papers, except that if an appeal had been taken, the papers on which the cause would be heard before the General Term, would show that a judgment had been entered on the verdict.

The proceeding to review was one .provided by the Code, was in substance an appeal from the decisions made at the trial, and was as emphatically a distinct proceeding had under the Code, and by authority of its provisions, as a formal appeal from a judgment. It falls within the spirit of the provisions contained: in subdivision 3, of section 459, though not within its strict letter, and the costs for those proceedings must, therefore, be allowed at the rates prescribed by'the Code.


author: Boswobth, J.

text:
    Metropolitan Bank v. Lord.
    "When a complaint upon a promissory note, in an action against the maker, and payee, to show title in the plaintiff, avers an endorsement by the payee, and a delivery to the plaintiff, hut not saying by whom, and that the plaintiff is “ the holder and owner of such note,” an answer which puts in issue the latter allega- ; tion, and denies that the payee ever delivered it to the plaintiff, hut on the con- ¡ trary alleges that he delivered it to a third person, whose name is stated, is not '■frivolous.
    ’An answer putting in issue all the material allegations of a complaint, which are employed to show that the title to a note sued upon is in the plaintiff, and that he is the actual party in interest, is not frivolous.
    (Before Bosworth, J.)
    Special Term, Jan., 1855.

      Motion for judgment on frivolous answer.
    The complaint -states, as the facts constituting the plaintiff’s cause of action, that Lord made a note dated July 6th, 1854, for the sum of $1,000, payable four months after its date, to the order of Searls, at the Suffolk Bank, “ which said note was afterwards indorsed by the defendant E. C. Searls, and delivered to the plaintiff. The due protesting of the note, and notice thereof to Searls: and “That the plaintiffs are holders and owners of such note, and that there is due to them thereon from the defendants the sum of $1,000,” for which it prays judgment.
    Lord answers: 1st, that Searls did not deliver the note to the plaintiff, but to the Suffolk Bank.
    2d. That he has not any knowledge or information sufficient to form a belief whether or not the plaintiffs are the owners or holders of said note, and he therefore controverts and denies the allegations in that behalf contained in the complaint.
    3d. That the plaintiffs have not legal capacity to sue, inasmuch as it does not appear in or by the said complaint that they are a corporation, or in any way or manner empowered to act or sue under the name or style of the Metropolitan Bank.
    4th. That the complaint does not state facts sufficient to con-. stitute a cause of action, inasmuch as it does not appear that the plaintiffs have any legal power or capacity to own or hold the said promissory note, or any legal existence whatever. It claims the same benefit of the 3d and 4th defences, as if the defendant had demurred to the said complaint for the causes respectively set forth in said 3d and 4th defences.
    The plaintiff now moves for judgment against the defendant, Lord, on account of the frivolousness of his answer.

      P. TJ. Turney for plaintiff.

      Mr. Smales for defendant.
   Boswobth, J.

The third and fourth defences, so called, consist, neither of denials of any allegations in the complaint, nor of any averments of new matter: the insertion of them in the answer is an attempt to demur to, as well as to answer the complaint. Neither of them, however, states objections, which would sustain a formal demurrer, assigning them as cases of demurrer. (The Union Mutual Ins. Co. v. Osgood, 12 Leg. Obs. 85.)

An action must be brought in the name of the real party in interest. (Code, § 111.) To make title to the note, the endorsement of it by Searls, and a delivery of it to the plaintiffs, and that they are the holders and owners of it, are averred. It is not directly alleged that Searls delivered it to the plaintiffs. If the complaint can be construed as meaning that, then that allegation is denied, and the answer also avers, that on the contrary, it was delivered by him to the Suffolk Bank. If it does not mean that, then there is no averment that it was delivered to the plaintiffs by any one shown to have a right to deliver it, unless it be the further allegation that the plaintiffs are the owners and holders of such note. But this is put in issue by the answer. The answer denies it, in a manner allowed by the Code. The allegations made to show that the title to the note is in the plaintiffs, are controverted by the answer. If the issues made by the denial of these allegations should be found in favor of the defendant, the plaintiff could not recover. The answer, in this view of it, is clearly not frivolous.


author: Oaklet, Ch. J., Hoffman, J.,

text:
    The Ninety-nine Plaintiffs v. Vanderbilt.
    The court has power to compel an attorney, bringing several suits, on behalf of a number of persons, as plaintiffs, against one defendant, on a state of facts precisely similar in each, to disclose the names and residences of his clients, when required to protect the rights of the defendant.
    The Court may also require him to exhibit his authority to bring the action.
    (Before Hoffman, J.)
    Special Term, Feb., 1855.
    This action came before the court on an order to show cause why the plaintiffs should not furnish certain information.
    Although the motion was in fact before Justice Hoffman, at Special Term, it was argued before all the Judges, on a motion day in: General Term. The facts disclosed by the papers are aa follows:
    There were ninety-nine suits brought in behalf of ninety-nine different plaintiffs, against tie proprietor of the line of vessels known as “Vanderbilt’s line for California and Nicaragua.” Nineteen of these suits were brought in the Supreme Court, forty-six in the Superior Court, and thirty-four in the Common Pleas. They were all brought by the same attorney. The causes of action in the suits were alike, the same printed form of complaint being used in each case.
    The complaint contained six counts. The ground of each action was, in substance, that the defendant was a common carrier, and owner of a certain line of vessels and conveyances, used in the transportation of passengers and baggage,from the port of New York to the port of San Francisco, in California, by the way of Nicaragua. That on the — day of-, 1852, he received the plaintiff on board of one of the vessels of said line as a passenger, to be conveyed from the city of New York to San Francisco aforesaid, for hire and reward. That it then became his duty to carefully convey him as soon as he reasonably could, without delay — furnish him with bed and accommodation, good and sufficient food, &c.; to have provided sufficient room, and not to have overcrowded the same. The complaint then stated various violations and neglect of the obligations thus assumed, the injury and damage resulting from them, and demanded judgment for the damages.
    Early in October, 1854, the defendant obtained in the Superior Court an order in the suits brought in that court, requiring the attorney for the plaintiffs to show cause as follows:
    1. Why he should not furnish to the attorney of the defendant, a sworn statement, showing the Christian names in full, and the residences of the plaintiffs in the actions respectively, and specifying the state, county, and town, or village, where such plaintiffs respectively resided; and if they, or any of them, resided in a city, the street and number of their residence.
    2. Why he should not be required to produce such plaintiffs personally in court, or to furnish proof that the plaintiff in each case is living.
    3. Why he should not furnish proof of his authority to prosecute the actions, and disclose the means by which such authority was communicated; if in writing, why he should not deposit the writing with the clerk.

      4. Why lie should not (in ease the court should permit the actions to proceed) file security for costs in those actions in which the plaintiffs should appear to be non-residents of the state.
    5. Why (if the court should permit the actions to proceed) the complaints should not be set aside as not conformable to § 142 of the Code; or why the plaintiffs should not be compelled to elect on which of the counts or causes of action they would rely, and why the residue should not be stricken out.
    6. Why the proceedings in all the actions except one, should not be stayed, until such action should be determined; and why the defendant should not have such other order as might be proper.
    From the affidavits on the part of defendant on which this application was based, it appeared that the defendant was the owner of the line called Yanderbilt’s line for California and Nicaragua; but was not the owner of the S. S. lewis, the vessel by which passengers were to be carried from San Juan del Sur to San Francisco. It was between these two latter points that the delay complained of, took place. One D. B. Allen was, however, agent for the whole line, and he sold tickets to San Francisco, to passengers, at the only office of the defendant’s line. Allen, as agent of the line, engaged the S. S. Lewis to sail from New. York in March, 1852, to go to San Juan del Sur, and take passengers from thence to San Francisco; but she was delayed in going.round Cape Horn, .in consequence of which the passengers were delayed at San Juan del Sur, and obliged to betake themselves to a sailing vessel, of which Mead & Co. were agents, to take them to San Francisco. It was also stated that Mead & Co. received in payment for the passage on board their vessel, the tickets issued by Allen for the S. S. lewis.
    The affidavits also stated that some of the plaintiffs were, dead,— that some of the complaints did not furnish the full Christian names of the plaintiffs, but only their initials, — that the attorney of the plaintiffs being called upon for his authority to commence these suits, declined to exhibit any-except the passenger tickets for the S. S. lewis, issued by Allen.
    Mead. & Co. reside at San Juan del Sur. One of that firm, however, being casually in New York, made affidavit that they authorized the suits, and did so by virtue of a verbal and written power of attorney from each, of the plaintiffs, and that the written power had been burnt.
    An application substantially similar was subsequently made in the Supreme Court, and also in the Common Pleas, in the suits brought in those courts. After argument, in each court, a consultation upon the subject was had among the judges of the three courts, and they agreed in opinion that they might, and under the circumstances ought to, require the attorney of the plaintiffs to disclose the names and residences of his clients, and his authority to bring the suits. The decision to this effect was rendered early in January; and an order requiring the attorney to furnish that information, and meantime staying proceedings in the several suits until further order of the court, was drawn up by Mr. Justice Hoffman of the Superior Court, and Judge Woodruff of the Common Pleas, and was made and entered in each of the suits in those two courts. This order„is given in full in the opinion of Mr. Justice Hoffman, below. The order in the Supreme Court was left to be settled-pursuant to the opinion rendered in that court.

      W. Silliman attorney for plaintiffs, and of counsel.

      JET. F. Clark attorney for defendant, and of counsel.
   Oaklet, Ch. J.,

(Orally.) — A question presented in this case is, how far this court can control the action of its attorneys. Upon consideration, we have come to the conclusion, both on principle and authority, that we have the power, and that it is our duty, if the case demands it, to order the attorney to disclose the residence and occupation of his clients, who they are, and where they are to be found.

The defendant cannot always be aware who are his opponents. It may happen, and in this case it does, that he may be attacked by a number about whom he knows nothing. We think this power is involved in the general powers of the court over its attorneys. We have therefore made an order, — in concurrence, I may remark, with the Judges of the other courts, — the substance of which is, that the attorney, by affidavit, should disclose formally what he has probably disclosed in effect in the other courts. The reasons for our decision are more fully stated in an opinion by one of the justices of the court. The questions as to a stay of proceedings, and the right of the plaintiffs to go on with the suit, may be considered hereafter.

Hoffman, J.,

(after stating the facts in the case at length.) — 1. The authorities cited are decisive of the right of. the court to call for the residences and occupations of the plaintiffs respectively. In Johnson v. Birley, (5 Barn & Ald. 540,) this was done in the case of an assault, where numbers were present,'and the defendant could not ascertain on inquiry, who the plaintiff was. The court said that the rule had generally been confined to actions of qui tam and ejectment, because it is only in such cases that the defendant is generally ignorant of the plaintiff or his person. Bayley, Justice, said, that previous to the statute of‘Westminster, a plaintiff appeared in person, unless he had a special writ, authorizing him to appear by attorney. Then the pleadings were ore temes, and a defendant had the privilege of seeing and knowing who the plaintiff was. After stating some further reasons, he says: — It is necessary, in order that both parties may have a fair trial, that the information required by this rule should be given. In Worten v. Smith, (6 J. B. Moore, 110,) which was an action on the case for a libel by three plaintiffs, a rule was made absolute that the plaintiff give the particulars, in writing, of the places of residence and occupations of the two other plaintiffs, and in the mean time, all further proceedings to be stayed. It was submitted that the knowledge was important to enable the defendant to justify or otherwise tp shape his defence. See also McRoeman v. Patrick, (4 Howard’s Miss. R. 533,) and West v. Houston, (3 Harring. 15.) The good sense of such a rule is apparent, wherever the justice of the case seems to require its application.

It is here sworn that several of these nominal plaintiffs are dead, and facts are stated to show that some others are probably so. Again, it is not improbable that Mead & Co., of San Juan del Sur, hold the whole or most of these tickets as beneficial owners or assignees. See affidavit of Thompson and Cross. The defendants are entitled to the names of the plaintiffs, and their residences, to prove this fact by their own evidence if necessary, and to show that Mead & Co. have the right to sue. Again, he has a right to such information, in order to enable him to obtain security for costs from non-residents. And as it appears that many of them ■were forwarded by Mead & Co., from San Juan del Sur to San Eraneisco, by sailing vessels in 1852, the presumption is strong that some of them are non-residents. The difficulty of complying with such a requisition in this case, forms no objection to its being made. We consider that an attorney, who sues in a court, is bound to know the place of residence and occupation of his client, that it may be disclosed if the rights of the defendant require it. This part of the application must be granted.

2. The next branch of the motion relates to the exhibition by the attorney, of his authority to sue in the mames of these numerous plaintiffs. It is true, that in general, the authority of an attorney is to be presumed from his appearing on the record. And the statute has only expressly provided for the production of his power in cases of ejectment. (2 Rev. Stats. 4th ed. 567, § 12.)

But the present case is very peculiar. Upon the affidavit produced by the defendant, it is made out, that certainly many of these passage tickets have been transferred to Mead & Co., and are, perhaps, owned by them. The right of action.to all such is, it may be assumed, vested in that firm. A single suit, then, in their name, for all such tickets would be the proper and the only action which could be sustained, to such extent as any right of action was assignable. It appears, by the affidavits produced by the plaintiffs’ attorney, since the argument of this motion, and agreed to be used by us, that a power or powers of attorney, were executed by a number of the plaintiffs to Mead & Co., authorizing them to employ attorneys and counsel, for the purpose of enforcing their claims. It is alleged that this power has been burnt. It is not alleged that a draft or copy is not in existence, nor that the parties cannot give a satisfactory statement of its general contents. If the draft or copy was directed to the attorney, no doubt the court would ask for its production. The case cannot be varied, where it is an authority to another, to employ the attorney. In various cases, the undoubted right of the court to call for an exhibition of the power of an attorney is declared. In a few it is considered as an absolute unqualified right of the defendant. Thus, in Clark v. Holliday, (9 Miss. R. 711,) it was held that the court would inquire, whenever requested, into the authority of an attorney to appear. The court in Tennessee recognized the same rule in Gillespie's case, (3 Yerger, 325.) In McAlexander v. Wright, (3 Monroe's R. 194,) it was so far qualified as to impose upon the defendant the task of showing that his rights might he jeoparded, unless it was observed. The general power was recognized in Allen v. Green, (Bailey’s R. S. Car. 448.) See also Cantwell v. Merrifee, (2 Pike R. 355,) and West v. Houston, (3 Harring. 15.) In 5 Halstead, 251, it was held that it was not the proper subject of a plea that the attorney had no authority -to prosecute the suit. The proper mode was by motion to the court to stay proceedings. It seems to be the settled law in England, that if a plaintiff questions the attorney’s power to sue for him, and makes an affidavit. denying it, nothing but a written authority will suffice. (Maires v. Maires, 23 Eng. Law & Eq. R. 22; Allen v. Bone, 4 Beavan, 493.) We consider the circumstances of this case as calling upon the court to exercise its power, to require the best and most perfect exhibition of the power under, which he acts, that can -be given, the original authority under which his authority is derived, being lost. The order will be as follows:

Upon reading and filing the order to. show cause herein, and the affidavits of the defendant and William K. Thome and others, submitted on the part of the defendant, and also the affidavits of William Silliman, Esq., and William H. Mead, submitted on the part of the plaintiffs respectively, and also upon reading the several complaints of the said respective plaintiffs, and, on hearing of counsel in behalf of the parties respectively, — it is, on motion of Horace E. Clarke, Esq., of counsel for- defendant, ordered,

That the attorney for the plaintiff, in the several above entitled causes, furnish in writing and verify by oath, to the attorney for the defendant, the names and present places of residence off the said plaintiffs respectively, in the manner and to the extent specified in the order to show cause; that is to say, with the Christian names of the plaintiffs in each of said causes in which such Christian name is not stated in the complaints respectively, and specifying the state, county, town, and village where each of the plaintiffs respectively resides, and if they, or any or either of them, reside in a city, then giving the street and number of such residence, and also specifying the occupation of the plaintiffs respectively.

And it is further ordered, that the said attorney for the plaintiffs in the said above entitled suits do also deliver to the attorney for the defendant a sworn copy of the power of attorney under or in pursuance of which the said suits are alleged to be instituted, mentioned in the said affidavit of William H. Mead so Tead and filed on the behalf of the said plaintiffs upon this motion, and therein stated to have been executed by the said several plaintiffs to the said Mead, if the draft or- any copy of the said power of attorney or written authority is in existence, and if not, then that he deliver a statement, verified by oath, of the substantial contents, extent, purport, and effect of the same, and of the powers conferred therein, and the consideration expressed therein or upon which the same purported to be given, the interest, if any, thereby given or purported to be given to the said Mead, or to Mead <& Co., and for whose use and benefit the suits alleged to have been thereby authorized were to be prosecuted, and at Whose risk, cost, and expense, so far as such particulars or any or either of them were contained in such power of attorney or written authority, and as nearly in the words of the said power as he may be able to furnish the same, or as may be practicable.

And all proceedings in the said several suits are hereby stayed until the further order of this court, with leave to either party to apply to the court for further or other relief, as he maybe advised.