author: Woodruff, J.

text:
    James Stuart v. John Binsse, Executor, &c., of John La Large, deceased.
    1. Where a proposed case is served it is irregular for the adverse party to serve a case drawn by himself as a substitute, by way of amendment.'
    2. The settled practice requires that the lines of the proposed case be numbered, -"and that'the amendments- should beproposed in detail; that they be written on the proposed case, or on a separate paper, with a reference specifying the line and page of the original; and that before the case and amendments are submitted for settlement the place or passage where amendments are to be made or inserted be distinctly marked on the case submitted.

      3. In -addition to this, the?rules of Court (Rules of 1858, No. 36) require that the ¡party .proposing a case or exceptions shall himself examine the amendments and mark upon each his assent or objection,
    4. The same rules forbid the proposal to strike out large" portions of the case in mass, by a'single amendment.
    5.' If a proposed case should beso inaccurate as to render-it practically impossible to correct it without-striking out the whole or nearly all of it, a special application may be made for leave to serve a substitute,, instead of making as many amendments as there are lines or sentences; but where counsel act in good faith this can very seldom, if ever, be necessary.
    (At Special Term, July 21st, 1859;
    Before Woodruff, J.)
    In this action the defendant made a case upon which'to move for a new trial. The plaintiff’s counsel prepared an entire‘case and served it as a substitute, by way of amendment. .
    . Thereupon the defendant moved to set aside the .proposed amendment, and an affidavit was read on the motion stating that the proposed case was very inaccurate, and that the substitute proposed more nearly corresponded with the proceedings on the trial.

      John A. Bryan, for the defendant, in support of the motion.

      Edward P. Cowles, for the plaintiff, in opposition thereto.
   Woodruff, J.

When the proposed review of the proceedings had upon a trial, requires that all or a large portion of the testimony be inserted in the case, and that testimony is voluminous, the labor of examining and settling it, when numerous amendments are proposed, is very great, and the Judge or referee is entitled to all the aid which counsel can give by arranging the papers so as easiest to present to his eye the precise difference between the parties.

To this end the settled practice requires that the lines of the case should be numbered, and that the amendments proposed should either be written on the case served or upon a separate paper, with a reference to the line and page of the original. (Milward v. Hallett, 1 Caines’ R., 344.) And it is usual to require, when the amendments are on a separate paper, that before the case and amendments are submitted for settlement, each place or passage where amendments are proposed to be made or inserted shall be distinctly marked on the case submitted.

And in ■ order, so far as possible, to abbreviate the labor of settlement, number 36 of the present Rules of Court requires that the party proposing a case or exceptions shall himself examine the amendments and mark upon each his assent or objection thereto.

These are rules of convenience, designed to facilitate the settlement of cases, and they must be observed. They are inconsistent with a proposal by the amending party to strike out the whole case and substitute another drawn by himself; and to permit this might lead to an abuse which would render the settlement of a case most tedious and embarrassing.

No doubt it would be a saving of time to the amending cotinsel if he might direct a scrivener to copy his own minutes of the trial, and by a single amendment propose to substitute it for the case served; and this would devolve upon the Judge or referee the labor of comparison in detail, and often when in truth the particulars in which the difference is material are not numerous, and might easily be specified. Besides, if it be supposed, (as may often occur,) that the proposed case in many particulars best agrees with the Judge’s minutes, and in many other particulars the proposed substitute is most accurate, the Judge, instead of briefly marking the amendments “allowed” or “ disallowed,” will be compelled to enter into prolix details in the act of settlement, specifying, (with as much labor, or perhaps even more, than if he were himself proposing amendments to the case,) the allowances or disallowances he makes. Indeed he would find it little less laborious to transcribe the whole case, conforming it to his minutes of the trial.

A practice so inconvenient could not be tolerated. It is the duty of the amending party to specify in detail each amendment which he deems material, and to do it so as to lessen, so far as possible, the labor of comparison and settlement.

It can hardly be supposed that, where counsel are acting in good faith, a case will ever be found so inaccurate, and a proposed substitute so accurate that a single allowance or disallowance would only be necessary. If such a case should be proposed, the Court might give leave to substitute a new case. Ho advantage in such an instance would accrue to either party, or to the Judge, by requiring each line or sentence to be separately amended, and as many amendments proposed as there are lines or sentences in the case. When such an instance occurs it may form an exception to the rule, to be made the subject of a special application for leave to propose a substitute; but to entitle the party to do this he must show that it is not possible to make all material changes without proposing amendments which will in substance amount to a new case, or which will render the comparison and settlement more prolix and tedious than to receive an entire substitute.

The proper meaning and purpose of the rule in like manner forbid the striking out of large portions of the testimony by a single amendment, and, if counsel act in good faith in preparing the case, that can rarely if ever be necessary.

■ In the present case, although the affidavit of the plaintiff’s attorney states that the proposed case is very inaccurate, it is not stated that there is any difficulty in specifying all the amendments of matters of substance in detail. Whole pages of the proposed substitute do not differ materially from the case as proposed. Indeed the language is to a large extent identical.

In conformity with what is unquestionably the general rule the proposed amendment (or substitute) must be set aside.

The plaintiff may serve amendments in detail within a reasonable time. The case is very voluminous, and if every alteration of language which the present substitute suggests should be made the subject of a specific amendment the amendments will be very numerous, but if the counsel look only to the substance of the testimony, and not to the mere form of words used, there will be no difficulty in so proposing amendments that the examination and settlement will not be burdensome.

As there is no reason to doubt that the amendment here was proposed in good faith, though not in conformity with the rule, I do not charge the plaintiff absolutely with the costs.

Amendment set aside, with leave’to the plaintiff to propose amendments in proper detail within twenty days.

Costs of motion $10, to the defendant, to form part of his costs in the action, and abide the event of his recovery herein.


source: Caselaw Access Project

author: Bosworth, Ch. J.

license: Public Domain

text:
    William Cousland and F. E. Bliss v. Dorrance Davis.
    1. Where the owner of stock pledges it as collateral security for the payment of a usurious loan, he may, on a demand of the stock and a refusal to return it, recover its value in an action of trover.
    2. He may maintain such action, notwithstanding the pledgee by the terms of the contract was authorized to hypothecate it, and had hypothecated it before such demand was made.
    3. Where a defendant is ordered to be arrested and held to bail on an affidavit stating positively a cause of action which, per se, gives the right to such an order, the order will not be vacated as a matter of course, on affidavits which merely deny the existence of such cause of action.
    (Special Term, October 28, 1859.
    Before Bosworth, Ch. J.)
    The defendant moves to vacate an order made in this action October 11th, 1859, requiring him to be held to bail in the sum of $13,000.

      The action is trover to recover the value of 260 shares of the stock hereinafter mentioned. i
    The plaintiffs, June 21st, 1859, gave to defendant their note at three months for- $2,500, and on the 18th of July,. 1859-, their further note at three months for $4,000. They deposited with the defendant on giving the first note, and as security for its payment, 100. shares of “American Bank Note Company Stock,” with authority to sell it without notice on failure to pay the note at maturity, “and with authority, to use, transfer, or hypothecate the-same, at option, being required, on payment or tender of the amount loaned- and interest, to return .an equal amount, of. said stock, and not the specific stock deposited.” -
    ■ The plaintiffs, on .giving the second note, and as security for its payment deposited with the-defendant other 160 shares of the same stock,;on the-like terms,-and with like, authority to defendant. . The plaintiffs allege by affidavits,that only $2,375 was loaned for the first note, and $3,800 for the second; that each loan was made: on a usurious agreement; that the difference between- the amount of the notes and moneys loaned was -the usurious- sum agreed :uponthat a return of the stock had been demanded and its return refused;.- and that such stock was worth $13,000. -
    The defendant in his affidavit alleges that he advanced in cash $2,375 on the first.note, and.$3,800 on the second, and that $125 was included in the first note, and $200 in the second, “ for and on account of services, performed for plaintiffs by deponent some weeks previous to that time, and which plaintiffs then owed to deponent.’.’ He also .alleges, that he had hypothecated the stock, by virtue of the authority given to • him in that behalf; that when the plaintiffs demanded the stock of him, the person to whom it was hypothecated was out of the city, and that he so informed them. The affidavits as to the value of the stock are conflicting, several stating it to be worth over $13,000.
    Some -other matters contained in the affidavits are stated in the opinion. —The defendant moves to vacate the order-of arrest, or if that motion should not be granted, to mitigate bail.

      B. F. Dunning, for defendant.

      Chapman & Hitchcock, for plaintiffs.
   Bosworth, Ch. J.

The defendant moves to vacate an order made the 11th October, 1859, requiring him to be held to bail in the sum of $13,000.

The action is brought to recover damages for the wrongful conversion by the defendant of 260 shares of the capital stock of the American Bank Note Company, and which are alleged to be worth $13,000, and to have then belonged to the plaintiffs.

The affidavits show that the defendant has hypothecated or sold 260 shares of such stock, which at the time were the property of the plaintiffs. If the defendant received these shares from the plaintiffs as security for'a usurious loan, and if it was a part of the usurious agreement that these shares should be delivered as such security, and if they were delivered by the plaintiffs and received by the defendant, in pursuance of such an agreement, then the defendant’s possession was wrongful from its commencement, and his disposition of the stock is tortious, and he is liable in this action. Schrœppel v. Corning, (5 Denio, 236; 2 Seld., 107,) are in point, and controlling authorities.

The usury as effectually vitiates that part of the agreement which authorized the defendant “ to use, transfer, or hypothecate” the stock, as the part which pledged the stock.

Is a case of usury made out? The affidavit, on which the order was granted states facts with great precision and in detail, which, if true, establish usury. It is insisted that the defendant’s affidavit contains an explicit denial of the allegations in that respect. The opposing affidavits, if true, show usury.

The cause of action is trover; whether such a cause of action exists, depends upon the truth of the allegations on the part of the plaintiffs as to usury. If the affidavits of the plaintiffs and of the defendant are in this regard in direct conflict, the order should not, for that reason, be discharged. (Bedell v. Sturta, 1 Bosw., 634.)

If the plaintiff succeeds in this action, his right to an execution against the body of the defendant is perfect and absolute. (Code, § 179, sub. 1, § 288.) The defendant’s affidavit, at most, denies the existence of a cause of action. Under the former practice, where the plaintiff swore positively to a cause of action, the defendant’s affidavit, merely denying it, was disregarded, although he was, in the discretion of the Court, permitted to confess the cause of action and avoid it. (6 Wend., 524.)

I do not think a defendant is entitled to have an order of arrest, made in an action of trover, vacated merely because he denies the cause of action; its existence having been sworn to by the plaintiff with clearness and precision.

But on the papers before me, the defendant’s allegation that $125 of one note, and $200 of the other, was for so much due him, for services, is denied; and what the services are, or when they were rendered, is not stated by the defendant, and it can hardly be said that the defendant’s affidavit states facts, uncontroverted or entirely satisfactory in the relation he gives of them, to establish that the agreement was not usurious.

As to the amount of bail it is sufficient to say, that there is too much evidence that the stock is worth $13,000 to justify me in reducing it, on the ground that it is excessive or even unreasonable. The motion must be denied with $10 costs to the plaintiffs, to abide the event of this action.

From the order denying the motion, the defendant appealed to the General Term. The appeal was argued November 26th, 1859, at a General Term held before Bosworth, Gh. J., and Hoffman, Woodruff and Moncrief, J. J., and the order was unanimously affirmed.


text:
    Burnett et al. v. Phalon et al.

    1. A new trial wm not be granted on the ground of newly discovered evidence, where such evidence is merely cumulative,
    2.. Where the trial has been had before the Court without a Jury, and a motion is made for a new trial on the ground of newly discovered evidence alone; such motion will be decided, on the assumption that the Court found the facts correctly upon the evidence given, and that his conclusions of law - upon the facts as found, are free from error.
    (At Special Term, October 29, 1859.
    Before Bosworth, Ch, J.)

      The defendants move for a new trial, on the ground of newly discovered evidence. The action is brought by the plaintiffs to restrain the defendants- from imitating their trade mark and selling a preparation of the defendants’ manufacture under a label so closely imitating the alleged trade mark of the plaintiffs as to deceive dealers; and to recover damages for injuries to the plaintiffs, which they allege they have sustained by reason of such misconduct.
    The action was tried before the Court without a Jury. The Court decided in favor of the plaintiffs, and ordered a reference to ascertain the amount of the plaintiffs’ damages. Pending such reference, the defendants now move for a new trial, on the ground of newly discovered evidence, the nature of which is fully stated in the opinion of the Court.
   Bosworth, Ch. J.

This action was tried before a Justice of this Court without a Jury, who decided “that the word, noun, name, title or device, ‘Cocoine,’ is a spurious and unlawful imitation by the defendants of the word, name, title or device, ‘Cocoaine,’ the aforesaid trade mark of the plaintiffs,” and adjudged that the defendants be perpetually enjoined from using either of those words.

The defendants move for a new trial on the ground of newly discovered evidence; that evidence consisting of the facts, that M. Weill & Co., from in 1846 into 1855, at Strasbourg, in Europe, manufactured toilet soaps from cocoanut oil, and used for that purpose about fifteen casks of cocoanut oil per month, and made and sold such soap in cakes of different sizes, having impressed upon each cake the words “ Savon Cocoíhe,” and that specimens of it were exhibited at the “ Exposition TJniversalle ” in Paris, in 1855, and that such soap had been extensively advertised, &c.

"• In disposing of this motion, I must assume that the Judge at Special Term found the facts correctly upon the evidence there given, and that his conclusions of law upon the facts he found are free from error.

His decision as to those matters must be deemed to be correct, for all the purposes of this action, except upon an appeal to the General Term, from the judgment, (to be entered on Ms decision.)

•Disposing of this motion, on that assumption, it must be denied. It was proved on the trial- that the word “ Cocoine ” was in a French Dictionary, and is an adjective. The newly discovered evidence merely proves that this adjective could be found on soap used in Europe as=well as in- the dictionary: If the fact that' there" was such- a word in existence, and in a scientific work, in connection with the evidence given in relation to" its adoption by Phalon & Son, and the form and style of the label on which they impressed it, will not justify them In using it as they did ;• the newly discovered -evidence cannot affect the force of the evidence given on the trial to prove that “ Cocoaine ’-' is a new term,-and was unknown to any one-until after the plaintiffs had invented it. Such evidence is purely cumulative. If it be daw, as was decided at the Special Term, this motion should be denied.

If the defendants are dissatisfied with the decision there made, either upon" the law or the facts, their- remedy is an -appeal. On that appeal, an appeal from an order denying, the present motion can also be heard, and thus the whole matter will be' brought before-' 'the Court at General- Term. "The - main question ds undoubtedly one of interest" and importance, and if the parties are so disposed, they can facilitate an appeal and avoid'the delay of the reference ordered to ascertain the plaintiffs’ damages.

Motion denied. •


text:
    John F. Butterworth, Receiver, v. John W. Warth.
    1. Where, on a motion for a new trial, on the" ground of 'newly discovered evidence, consisting of proof that the footings of the account contained in. tire book kept by the bank of which plaintiff is receiver, showing its daily cash balances, w,ere erroneous; and which footings had been read to the. iury as being accurate; a new trial will be granted where the judge is satisfied by the case, that if the book so read in evidence had contained accurate footings of said account, the verdict would have been for the defendant,
    (At Special Term, October 29, 1859.
    Before Bosworth, Ch. J.)
    The defendant moves at Special Term . on a-.case, and on affidavits of newly discovered evidence, for a new trial. The action is brought by the plaintiff, as Receiver of the property and effects of the Island City Bank, against one H. Anton Miller, as the maker, and defendant Warth as the indorser of a note for $550, dated June 13, 1857, at three months, to recover the amount of such note and interest, which note the Bank owned when the plaintiff was appointed Receiver, (September 25,1857,) and which was then past due.
    The defense was, that on or about the 22d day of August, 1857, the defendant, Warth, left at the Island City Bank $300, to be deposited to his credit, which sum had not, in fact, been credited to him on its books, and he claimed that this sum and a balance (exclusive of this $300) of $275.54 standing on the books of the Bank to his credit, should be set off against the note, or enough to satisfy it. The defendant gave evidence tending to show, that at the time he left the $300 he was in a great hurry, and so stated, and put the money and his bank book on the counter of the Bank, in the presence of, and with the knowledge of an officer who was accustomed to receive money , of customers and enter the deposits. There was some slight evidence favoring the hypothesis that the money and book were not seen by any officer of the Bank when they were so left, so that the money was exposed, and liable to be taken by any one who might have chanced to witness the transaction.
    The Bank’s book, showing its daily cash balances, and kept by the second Teller, to verify the accuracy of his account of daily transactions, was produced and read in evidence. As the , entries in it, which were read to the jury as being accurate, were footed up, they showed a deficiency of twelve cents in the Bank’s cash account on the day of the alleged deposit, and on the day next subsequent thereto, of $3.24. The affidavits of newly discovered evidence show, that on a correct addition of the items entering into that account, and which had been so footed up as to show the deficiency of twelve cents, there was an excess of cash on hand at the close of the day of the alleged deposit, of $749.88.
    The defendant Warth also testified, that he had promised Miller to take up the note, and that he told the President of the Bank that he was to pay it, and had money enough in Bank to pay it, and the President said he would take care of it.

      Eo objection was made against allowing the $275.54 to be credited upon the note, but the contest was, whether the $300 had been so deposited as to bind the Bank and entitle Warth to have enough of that sum applied to satisfy the note in full. The Jury found a verdict of $217.45 for the plaintiff. The cause was tried before Boswobth, Ch. J.r in February, 1859.

      Mr. Andrews, for defendant, Warth.

      C. A. Peabody, for plaintiff.
   Bosworth, Ch. J.

I think the verdict is against evidence, if it be assumed that the evidence shows, that on the day on which, as the defendant testified, he left in the Island City Bank $300, to be deposited to his credit, the Bank’s balance account for the day showed an excess in its favor of $749.88. The bookkeeper testified that the footings in the book of the Bank produced, showed a deficiency against the Bank, of twelve cents. That was true, and only true because the items were erroneously footed. He testified in good faith, and his statement of the result shown by the books, was taken as the truth of the matter.

My conclusion at the trial was, and now is, that if this book had not been produced and the testimony given in relation to the fact above stated, which was given, the verdict would have been in favor of the defendant.

I'think a new trial should be granted on the terms of the defendant’s paying the costs of the trial, and that the costs of the subsequent proceedings be costs in the cause, and abide the event, (Kennedy v. The Harlem R. R. Co., 3 Duer, 659.)

Ordered accordingly.


text:
    Straus v. Schwarzwaelden.
    1. In an action against a defendant for criminal conversation with the plaintiff's wife, he may be held to bail on an affidavit which states a cause of action, and nothing more.
    2. Such an action is one for “ injury to person,” within the meaning of those words as used in section 179 of the Code, subdivision 2.
    (At Chambers, November, 1859.
    Before Bosworth, Ch. J.)
    The plaintiff, on affidavits showing that the defendant had been guilty of criminal conversation with the plaintiff’s wife, moved ex parte, in an action brought to recover damages therefor, for an order to arrest and hold the defendant to bail. The Judge expressing some doubts, whether the defendant could be held to bail, under the Code, on an affidavit which stated merely a cause of action, and did not show that the defendant was not a resident of the State, or was about to remove therefrom, took the papers for consideration. The next morning he granted the order, assigning the following reasons:
   Bosworth, Ch. J.

If the question were res nova, whether a defendant, in an action of crim. con., could be held to bail on an affidavit which established a cause of action and only that, and did not show that the defendant was a non-resident of the State, or was about to remove from it, I should hesitate about holding the wrong to be an injury to the person of the plaintiff (the husband) within the meaning of section 179 of the Code, subdivision 1.

It is an injury to the personal rights of the husband. But this section has been construed to embrace such a cause of action, under the description of an “injury to person.” It was held that this language was used in its established legal signification; and that among injuries to person, are included the abduction or beating of a wife, or criminal conversation with her, for which trespass vi 'et armis would lie at common law at the suit of the husband. (4 How. Pr. R., 234; 3 Code R., 9; 3 Black. Com., 139, 140; 4 Cow. R., 412.)

An execution against the body would, according to the practice as established prior to the Code, issue as a matter of course in such an action. If a construction so limited be given, that an order of arrest cannot be made on proof of a cause of action alone, it must follow that no ca. sa. can be issued on the judgment. It is difficult to believe that the Legislature, from any considerations of public policy, designed to abolish this remedy.

I am, therefore, inclined to think, that the construction given by Mr. Justice Parker, and subsequently by Mr. Justice Mason, on consultation with his brethren, (3 Code R., 9,) is tenable. The order applied for is granted.


author: By the Court—Hoffman, J.

text:
    D. and A. Sturtevant, Plaintiffs and Appellants, v. Brewer & Caldwell, Defendants.
    1. In an action against the charterers of a vessel to recover the sum covenanted to be paid for a voyage from Galveston to New York, brought by an assignee of the charter party after the voyage has been performed, where it appears that the vessel, which by the charter party was to be kept by the owners staunch and tight, was, at the time the charter party was executed, at Galveston, in Texas, and S., S. & Co., of Galveston advanced $3,971.43 for port charges and putting the vessel in a condition to perform the voyage for which she was so chartered, (she being disabled and in distress, and the master having no moneys to repair her;) and where it also appears that S., S. & Oo. have commenced an action in another court in this State, to establish a lien upon the freight moneys earned on said voyage to reimburse them said advances and obtained an injunction restraining the defendants from collecting any of such freight moneys, and have also obtained an order for the appointment of a receiver of such part of said freight moneys as the defendants have collected; the plaintiffs will be compelled to amend the summons and complaint so as to make said S., S. & Oo., parties defendants, to the end that their claim to such freight moneys may be determined in this action, so as to conclude the present plaintiffs in respect thereto.
    2. The liability of the defendants to the plaintiffs upon the charter party, depends upon the question whether S., S. & Oo., have a right to all of said freight moneys; and that question, and to how much of said moneys S., S. & Oo. are entitled, if not to all of them, should be determined by a single trial, so as to conclude all the parties thereby.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff and Moncrief, J. J.)
    Heard, November 26;
    decided, December 17, 1859.

      Jambs L. Ferris was, on the 10th of December, 1858, or claimed to be sole owner of the baric .Convoy, and through his attorney, G. A. Ferris, entered into a charter party with the defendants, dated that day, chartering the vessel to them on her voyage from Galveston, Texas, to the port of New York. The owner was to keep the vessel tight and strong, in the usual language of such an instrument. The defendants were to provide and furnish for such vessel cargo sufficient for ballast, and were to pay for the charter or freight during the voyage $2,250 on the right delivery of the cargo at the port of New York.
    The charterers were to have sufficient time to take in a full cargo at the port of Galveston, Texas, and dispatch in discharging at the port of New York.
    Ferris assigned this charter party to the present plaintiffs, by assignment dated the 22d of June, 1859.
    The bark was at the date of the charter party in the port of' Galveston, where she was loaded with cotton, under the superintendence of Sorley, Smith & Co., her consignees. Bills of lading were signed by her master, to the order of the shippers, or consigning the cargo to various persons in New York. She arrived in New York about the 80th of March, 1859.
    Sorley, Smith & Co., it is alleged, disbursed about the sum of $3,971.43 for the expenses and port charges of the vessel at Galveston. To cover this they drew a draft on the defendants, without authority, and the acceptance thereof was refused.
    „ The defendants were proceeding to collect the freight when they were interfered with by the master, who received $600 of such freight, and gave notice to the consignees not to pay the freight to the defendants.
    By instrument dated April 8, 1859, the master of the vessel assigned to Sorley, Smith & Co. all his interest in the freight money, and his lien thereon, for his advances and claims.
    This action is brought on the charter party for the $2,250.
    The homeward freight is stated to amount to $2,130. The defendants are said to have collected about $1,000.
    Sorley, Smith & Co. have commenced an action in the Common Pleas claiming a lien on the homeward freight to reimburse them their advances, have obtained an injunction in said action restraining the defendants from collecting any of said freight moneys; and also an. order for the appointment of a receiver of the freight moneys collected by the defendants, which injunction and order are in full force. The owner of said vessel is insolvent.
    On a motion made upon notice to the plaintiffs, and on the hearing of which Sorley, Smith & Co. appeared by counsel;
    Bosworth, Oh. J., on the 26th of September, 1859, on affidavits establishing the facts above stated, made an order that the plaintiffs in this action, within ten days, amend their complaint and summons by making Sorley, Smith & Co. defendants, and inserting therein the proper allegations to show the claim made by the latter in their action against the present defendants; and staying all proceedings in this action until such amendments were made, and the amended summons and complaint were served on Sorley, Smith & Co., or their due appearance herein.
    Prom this order the plaintiffs appealed to the General Term.

      R. H. Shannon, for appellants.

      Jeremiah Larocque, for respondents.
   By the Court—Hoffman, J.

The claim of Sorley, Smith & Co. to a lien upon the freight, by force of their own advances, and under the assignment from the master, is apparently valid. In this country, the master has a lien on the freight and cargo for his necessary advances made and responsibilities incurred in a foreign port. (Flanders on Maritime Law, 180.) In Sorley v. Brewer & Caldwell, in the Common Pleas, the right is distinctly recognized by Mr. Justice Hilton, (18 How. Pr. R., 276;) and the lien upon the vessel in admiralty is sustained in Sorley, Smith & Co., by Justice Betts, upon the facts of the case.

This lien, if it exists at all, will be paramount to the title of the charterers to the freight. Then the consequence will be, that the defendants have a valid, equitable defense to the action of the plaintiffs for payment of the hire of the ship. The fault or neglect of the ship owner, in not providing funds at Galveston, caused the existence of the lien, which deprives the defendants of the homeward freight. His act has defeated the consideration of the promise to pay the charter money. The equities, then, of the parties seem to be, that the plaintiffs must allow, as against the demand on the charter party, the amount of freight which will be necessary to discharge Sorley, Smith & Company’s lien. This the counsel appears to concede.

Thus we have the case of the liability of the defendants to the plaintiffs in this action dependent upon the question, to whom the home freight belongs. The act or neglect of the plaintiffs’ assignor has vested third persons with an apparent right to it, which they are asserting. If the defendants pay the charter money, they may be also compelled to pay the freight they have received, or may be liable for.

The exposition of the 122d section of the Code appears to be, that other parties are to be brought in when it appears that their rights in the subject of the action must be settled before the rights of the parties to the suit can be determined. The court cannot definitely and correctly say what are the rights of the parties before it, in the subj ect matter of the suit, until the claims of others to it are determined. There are many cases in which a defendant may require other parties to be brought in, so that the judgment of the court in the action may protect him against the claims of such other parties. (McMahon v. Allen, 12 How., 39.)

The substantial point, and a main object of the action as now framed, is the determination of the right to the freight. The present seems to me to be a case in which the defendants have a right to the presence of Sorley, Smith & Co. for their protection." The act of the plaintiffs’ assignor gave rise to the adverse claim.

The existence of the suit in the Common Pleas, in which, probably, every right can be properly settled, is not, in the present stage of that suit, an answer to the application to re-forn! and perfect the action here.

I do not examine whether this court can proceed by publication to bring in Sorley, Smith & Co., under the 135th section, subdivision 4, of the Code. As observed by the Judge below, they may, perhaps, be served here, or voluntarily appear. They did appear by counsel on the motion below.

One of the points made by the plaintiffs’ counsel on the appeal is, that they admit that the defendants are entitled to set off the amount of freight which may be proved to have been earned by the Convoy on her home voyage against the sum claimed under the charter party.

But the counsel did not assent that such freight was the $2,130 as stated in the complaint of Sorley, Smith & Co, On the contrary, he was understood to say that it was only about $500. It is necessary to settle the amount to be deducted, as well as the right to a deduction.

The order must be affirmed, with costs.

Ordered accordingly.


author: By the Court—Woodruff, J.

text:
    Augustus Miles and another, Plaintiffs and Respondents, v. Alexander Clarke, Defendant and Appellant.
    1. A practising attorney isj disqualified to become special bail in a civil action.
    2. If such bail be put in for the defendant, the plaintiff cannot treat it as a nullity: he must except to the bail, if he would insist upon the disqualification ; and, on such exception, the bail will be rejected.
    3. The Code, in prescribing the qualifications of bail, has merely declared the pre-existing practice by prescribing in terms the same requisites which were essential by long-established rules; and it has not removed the disabilities of attorneys and some other classes of persons to become special bail.
    (Before Bosworth, Ch. J., Woodruff and Moncrief, J. J.)
    Heard December 10;
    decided, December 17, 1859.
    On exception to the bail put m by the defendant on his arrest in this action, and on appearance to justify, it appeared that the bail was a practising attorney of this Court and of the other Courts of this State. On that ground, the bail was rejected. (See Case and Opinion, 2 Bosw., 709.) From the order disallowing such bail, the defendant appealed to the General Term.

      David P. Hall and Skeffington Sanxay, for the defendant (appellant).
    I. Attorneys were not disqualified to be bail by the common law. The practice of excluding attorneys is of recent date, and is founded entirely upon rules of the Court of King's Bench and Common Pleas. (George v. Barnsley, 1 Chitty R., 8, n; Laing v. Cundale, 1 H. Bl., 76; Boulogne v. Vautrin, 2 Cowp., 828; 1 Tidd Pr. 230, 270; 1 Dunl. Pr., 170; Grah. Pr., 179, 180.)
    In this State the Supreme Court adopted the rule of the King’s Bench. (15 J. R., 535.)
    II. When the statute has prescribed another practice, the rule of Court is abrogated. (Barnett v. Pardow, 10 Wend., 615; Grah. Pr., 953; Walker v. Holmes, 22 Wend., 614; 2 R. S., 597.)
    ITT. This is a suit for relief. It is in the nature of a Chancery suit, and a solicitor might be a surety on an appeal bond. (Richardson v. Richardson, 5 Paige, 58.)
    IY. The Code of Procedure has abrogated all rules and practice except that which itself prescribes. If the bail offered be householders or freeholders, and worth the amount specified in the order of arrest, this Court has not the power to exclude them because they are attorneys. (§§ 194, 469.)
    Y. The Court below erred in holding that the Code had not substituted a new rule. (Stewart v. Howard, 15 Barb., 26.) It is error to suppose that the Code was merely declaratory of the affirmative qualifications of bail, and that attorneys were disqualified by the common law.
    The practice is not “nearly three hundred years old,” as the Justice in his opinion states, but is founded in a rule adopted by the King's Bench (12 Geo. II), about one hundred years ago.

      Geo. W. Parsons, for the plaintiffs (respondents).
    I. The Code has not altered the rule by which attorneys are disqualified to become bail. ‘
    1. The provisions of the Code are similar to those of the Revised Statutes. (§ 11, title 1, ch. 6, part 3.)
    2. If it is absolutely true that all persons possessing the qualifications named in the Code (§ 194) are sufficient bail, then minors and married women may become bail.
    II. There is no hardship in excluding such bail.
    M. The opinion of the Justice at Special Term correctly states the history of the rule and the operation of the Code. (See authorities there cited, 2 Bosw., 709.)
   By the Court—Woodruff, J.

We are of opinion that the order appealed from should be affirmed, upon the grounds stated as reasons for the decision given by the Justice by whom the order was made. (2 Bosw., 709.)

We, therefore, think it unnecessary to enter into an extended discussion of the point decided.

It will be sufficient to notice some of the cases which were urged on our attention on the argument of the appeal.

Neither is it important to inquire into the antiquity of the rule which prohibited attorneys from becoming bail; but so early as in Michaelmas term, 1654’ it was ordered in the Court of King’s Bench, in England, that no attorney be bail in that Court, and a similar rule is found among the rules of the Common Pleas of the same term. (Hawkins v. Magnall, Doug., 466, and notes.) What was then declared by the rules of Court, has continued to be the practice of the courts in England to the present time. Whether this practice be described as “ nearly three hundred years old,” or as over two hundred years old, can hardly be worthy the importance given to that inquiry on the argument; nor is there anything in the books to indicate decisively whether the practice then had its origin, or was at that time reenacted in the body of rules then promulgated. Its being found in the rules of that term is not conclusive on that point; for it appears by the report of Laing v. Cúndale, and the note thereto, (1 H. Bl., 76,) and by Bolland v. Pritchard, (2 Wm. Bl., 799,) that in 1733, (6 Geo., 2,) the rule was again promulgated in the Common Pleas, and by Boulogne v. Vautrin, (Cowp., 828,) that in 1741 (14 Geo., 2,) the same rule was again promulgated in the Court of Bang’s Bench. (See Tidd’s Pr., title “Special Bail;” George v. Barnsley, 1 Chitty’s R., 8; 1 Taunt. R., 164, 165.)

It is not denied that the same rule of practice was declared in this State in Coster v. Watson. (15 J. R., 535.) The language imputed to the Court in the report of that case, referring to the rule prevailing in the Courts of King’s Bench and Common Pleas, in England, approving of the rule, and adding, “ we therefore adopt it,” is supposed to indicate that the rule had not before existed in this State; but the Court, in Satterlee v. Satterlee, (8 J. R., 327,) in reference to another point of practice, state that the practice of the Court of King’s Bench in England, is the practice of the Supreme Court in those cases in which a different practice has not been established. Not only so, in Coster v. Watson, if such was not already the binding practice in this State, the bail put in was regular, and no attachment against the Sheriff could have issued for want of compliance with a rule to bring in the body for want of bail; and yet the motion for an attachment was granted. The Court would not adopt a new rule and at the same time regard a previous proceeding as irregular because it did not conform to it. The Court must be deemed to have recognized the existence of the rule, approved of it and declared its binding force, and not to have then announced it as a future guide. Nor was it then promulgated as a rule of Court; it was decided to be the rule of practice, and the case itself is a decision and not" an enactment. So the subject was treated in Bailey v. Warden, (20 J. R., 129,) where the decision reported is, “We have decided that an attorney is not good bail if excepted to, and for the same reason we think a Sheriff ought not to become bail; and such is the rule of the English Courts.” The Court, therefore, granted a motion to set aside a justification.

Although some cases are referred to in this State which are supposed to show that under our present statutes the objection cannot now be urged, it is pertinent' to observe that no case can be found in which it is held that an attorney, if excepted to, will be held sufficient as special bail. The Revised Statutes contain no enactment inconsistent with the previous practice. Unless, therefore, the Code of Procedure (first enacted in 1848) contains in its declaration of the qualifications of bail language which should be held to abrogate the rule, it is still in force, for by the 469th section of the Code, it is only the rules and practice of the Courts which are inconsistent with the Code which are abrogated.

The Code in prescribing the qualifications of bail have simply set down in terms what were already, by long practice and constant decision of the Courts, the requisites to constitute good bail. On this subject the Code simply embodied in the form of enactment what was already long settled. The provisions form part of a system, collected, digested, and in very many particulars largely altered and improved, but in this left unaltered. In our judgment there is no warrant for saying that the Legislature intended to change the qualifications, or affect the competency of bail in any particular. He must still be competent to enter into a valid binding contract of this description, and be amenable to the ordinary process of our courts of justice; this we think is not doubted.

It is insisted, however, that, inasmuch as the former settled practice has been embodied in the Code in the form of statutory enactment, the courts have now no power to recognize as exceptions those cases which were, by that practice, clear exceptions.

We have no hesitation in saying that the qualifications prescribed in the Code are to be understood as they were before the statute was enacted, viz., persons otherwise competent shall' be received as bail if they reside in the State, are housekeepers or freeholders, and are worth the requisite amount. In this there is no inconsistency with the provisions referred to.

Before considering the cases in this State which are supposed to sustain the defendant’s claim herein, it is proper to observe that because, under the settled practice already stated, attorneys are not sufficient bail, it does not follow that, therefore, when they are put in the bail piece as bail, the putting in of such bail can be treated as a nullity. If excepted to they would be rejected, but if not, then for many purposes they would be regarded as bail to the action. And this consideration will, we think, serve to show what is to be deemed the true force and meaning of whatever in those cases is supposed to be inconsistent with the views we entertain.

Thus in Thomson v. Roubell, (cited in note to Doug. R., 466,) an attorney became bail, the plaintiff did not except, but treated it as a nullity. The Court held that the bail piece was not void, and that the plaintiff by not objecting had accepted his security. So in Bell v. Gate, (1 Taunt., 161,) and Rex v. The Sheriff of Surrey, (2 East., 181,) in which last case the Court say, “it is too well settled to admit of dispute, the plaintiff must except to the bail and cannot consider it as a nullity.”

The first case urged upon our attention is Barnett v. Pardow. (10 Wend., 615.) In that case no question arose whether an attorney could become bail or not. The only point in discussion was whether bail in error could justify ex parte, without notice to the defendant in error. It does not appear that the bail in error was an attorney or other officer of the court. The decision was, that inasmuch as the Revised Statutes had provided that the sureties should, if excepted to, justify within ten days, by an affidavit in a prescribed form, and a copy of the affidavit should, before the expiration of the ten days be served on the defendant in error, (2 R. S., 597, § 35,) it was sufficient if there was a compliance with the statute.

In the previous statute (1 R. L., 143, ch. 25, § 2,) which was in substance a transcript of the provisions of the English statute of 3 James I, chapter 8, as modified by 13th Charles II, statute 2, chapter 2, section 9, the sureties were to be approved by the court in which the judgment was given, and the practice was for the sureties, if excepted to, to justify on notice. (4 Burr, 2501; 1 Wils., 213; 8 Durnf. & East., 639.) In Moody v. Baker, (5 Cow., 414,) the Supreme Court state the practice to be substantially as in case of bail to the action.

All the Court decided in Barnett v. Pardow, is that the Revised Statutes have prescribed a new form or mode of justification, viz., by affidavit and service of a copy, and therefore such justification maybe ex parte without notice, since this is a compliance .with, the statute and no benefit could result from the attendance of the defendant in error at the time and place of justification. Whether an attorney was, under the Revised Statutes, competent to become bail in error, was not a question in any manner before the Court, and not a word is contained in the report of the case on the subject. Doubtless he was incompetent under the English practice within the rules of 6th and 14th Geo. II, since their phraseology would include bail in error. (See 2 R. S., 598, § 35; Laws of 1844, p. 466, ch. 312; Laws of 1845, ch. 10.)

The next case cited is Walker v. Holmes, (22 Wend., 614,) in which it is held that an attorney may become surety for the payment of costs by a non-resident plaintiff; the Court, as in the last case saying that the plaintiff had complied with the statute which regulated that subject. (2 R. S., 620, tit. 2.) Before the statute as well as under the statute the attorney was liable for costs to the extent of $100. (Rules of Jan’y, 1799.)

So that it was no change of the rule on that subject to hold that an attorney could become voluntarily and expressly bound for the costs; he never was disqualified. (Gr. Pr., 52 and 508, and cases in this State and England cited; 2 Cow., 460; 6 Wend., 660; 10 id., 621; 4 J. R., 484; 20 id., 475; 13 id., 125; 1 Hopk. Ch. R., 117; Ch. Rules of 1806; 1 John. Ch. R., 202.)

The remaining case cited is Studwell v. Palmer, (5 Paige, 57,) in which the point decided was that on a motion to dismiss an appeal it was not a sufficient ground, that one of the sureties in the appeal bond was a solicitor.

It has already been shown that in the common law courts such bail was not a nullity, and it had been previously decided that this was not a ground for quashing a writ of error, although it would have been a good exception. (Scott v. Craig, 1 Wend., 35.) The case in Paige, therefore, does not conflict with what has already been said. Besides the Chancellor says, neither the statute regulating appeals nor the rules of the Court of Chancery contain any prohibition against a solicitor becoming a surety in an appeal bond. If so, he was doubtless competenti This proposition has no application to special bail in this Court, in respect to whom, long settled practice had declared attorneys to be incompetent. And we are not aware of anything in the Code which makes the practice of the late Court of Chancery on appeals to that Court apply to bail to the action in this Court.

These considerations seem to us to dispose of the cases cited, and it only remains for us to say that, we concur in the reasons assigned at Special Term for holding an attorney incompetent to become special bail, against the objection and exception of the plaintiff.

The order appealed from should be affirmed, with $10 costs.

Ordered accordingly.


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    Thomas H. Bate v. Lewis S. Fellowes et al.

    1. Prior to the enactment of the Code of Procedure, if a pleajpuis darrein continuance was offered in due season and was not palpably insufficient or pleaded for delay, it was a matter, of course, to permit it to be filed-Although the plea was in form by leave of Court, it was so in such case in form only. But such plea, if it set up new matter of defense not going merely to the plaintiff’s remedy, waived the former plea.

      2. Under like circumstances, leave should be given to file a supplemental answer which, under the Code, is a substitute for a plea puis darrien continuance, and no larger discretion was designed to be given to the Court on that subject by the Code (§ 177) than was previously exercised in respect ■to such a plea.
    3. Although the putting in of a supplemental answer does not, under the Code, necessarily waive the former answer, yet, where the matter sought to be introduced thereby would, before the Code, have required a plea puis, which would have waived such former answer, the Court may, where the new defense is of doubtful sufficiency and of doubtful equity, require the defendant to waive his former answer, and rest solely on such new matter, as a condition of granting leave to file such supplemental answer.
    4. Whether a judgment of nonsuit in a proceeding by way of intervention to claim goods which are attached by the defendant as the property of a third person is, by the laws of Louisiana, a bar to an action by the intervener for damages for taking the goods, is a question of fact to be proved, and the Court will not, on an application for leave to put in a supplemental answer to set up such a judgment rendered after the former answer, undertake to determine that question upon conflicting affidavits.
    (At Special Term, December 31st, 1859.
    Before Woodruff, J.)
    Motion by the defendants for leave to file a supplemental answer. The facts sufficiently appear in the opinion of the Court.

      Barzillai Slosson, for the defendants, in support of the motion.

      David Dudley Field, for the plaintiff opposed.
   Woodruff, J.

The defendants move for leave to file a supplemental answer herein, settingup in barof the plaintiff’s action a judgment rendered in one of the courts of the State of Louisiana, and alleged to be, by the laws of that State, conclusive against the plaintiff. It appears by the papers submitted, that this is an action brought by the plaintiff to recover the value of certain goods taken by the defendants on an attachment issued in New Orleans against a third person in the possession of the goods. That the plaintiff claims that the goods were his property and not the property of the defendant in the attachment.

By a proceeding authorized by the laws of Louisiana, the present plaintiff, in that State, after the seizure, interposed a claim to the goods attached, asserting title thereto. His claim, as intervenor, was put in issue and brought to trial, together with the principal suit in which the attachment was issued} but the plaintiff, so intervening, offered no proof of title and submitted to a nonsuit, and judgment bf nonsuit was accordingly entered against him.

This judgment was entered since the answer of the defendants in this action was put in.

If the judgment of nonsuit so entered in the Louisiana Court is conclusive, by the laws of Louisiana, against the plaintiff# (the intervenor there,) then it is -obvious that .had it been rendered before the answer in this action was put in, and had it been set up by the defendants in their answer, it would have been conclusive in the defendants’ favor, since we should be bound to give to that judgment the same force and effect which it would have if that action were prosecuted in Louisiana for the taking of the same goods.

But it is entirely certain that a judgment of nonsuit in our own courts does not, by the laws of this State, prevent another action founded upon the same claim which the party had set up in the action wherein the nonsuit was ordered.

It is further entirely certain that the merits of the controversy between these parties have not in fact been tried. Whether the plaintiff was or was not the owner of the goods taken under the defendants’ attachment, has not been ascertained or settled upon any proofs taken and submitted to the Louisiana Court.

The most that has been done is this: The plaintiff set up his claim of title, and had an opportunity .to establish it by proof, but chose to retire from the contest, offer no evidence, and submit to be nonsuited.

The objection to ‘the present motion rests mainly on two grounds alleged by. the plaintiff in resistance of the motion: First, that a judgment of nonsuit is not, by the laws of Louisiana, a bar to another independent action for the same goods, and therefore, (such a judgment not being a bar by our laws,) to grant the motion would be to permit the defendants to embarrass the litigation by setting up an insufficient defense, and. at the-same time subject the. plaintiff to great expense and delay in procuring testimony to show what the law- of Louisiana is on the subject. And second, if it be possible that, by the laws of Louisiana, a judgment of nonsuit entered upon such an intervention as .appears, by. the record of the proceedings there, is by their laws a bar to another action, the law is harsh and inequitable, and operates to deprive a party of his property by a merely technical rule, when the merits of his claim have never been investigated.

As to the first objection, the affidavits submitted are contradictory, and it is not clearly shown that, by the laws of Louisiana, their judgment does not bar a new suit, and yet I shall deem it very extraordinary if so marked an exception to the rules which apply to that subject, wherever the common law prevails, be found to exist by the laws governing the conduct of judicial proceedings in that State. Especially, since I think it quite clear that in general a judgment of nonsuit in one action is no bar to another suit for the same cause, by the express provisions of their Code. Nor can I perceive any reason why a nonsuit, ordered upon such an intervention as was had under the proceedings on attachment against the third person, should conclude the plaintiff any more than a like judgment in an action for the taking of the goods would have done.

But I do not deem it proper to try this question upon aflfida- , vits. Whether the nonsuit is or is not a legal defense, is not a mere question of law which I can judicially declare. It must depend on proof of the foreign law, and may, under proper instructions, be a question for a jury. I must, therefore, decline deciding this motion on an assumption that the defense sought to be interposed will be insufficient. As to the other objection, viz.: that if the defense be strictly legal it is not equitable, and therefore, since the defendants cannot interpose it without the express leave of the Court, that leave should be withheld, two observations are pertinent.

Although it is true that a judgment of nonsuit does not necessarily determine the rights of the parties, and in this case no actual investigation of those rights has ever been had, yet, if the plaintiff has once set up his title in a court of justice, and had full opportunity to establish his rights, (if they.exist,) and has put the defendants to the labor and expense of preparation to show that the plaintiff has no such rights or title, and they had procured and had ready the evidence in Court for that purpose, it is not clearly and inevitably unjust to deny to the plaintiff the privilege of withdrawing and afterwards vexing the defendants by a new suit for the same cause of action. And if by the laws of Louisiana, the failure of the plaintiff to offer any proof of his claim, and the judgment for the defendants thereupon will conclude him, I cannot say that it is palpably unjust and inequitable to permit the defendants to avail themselves of that protection.

Again, prior to the enactment of our Code of Procedure, the defendants would have been entitled, as of course, to interpose this defense by plea puis darrein continuance. Although the plea was in form by- leave of Court, yet it was so in form only. By long settled practice, if the plea was duly verified, was offered in due -season, and was not palpably insufficient or pleaded for delay, it was received of course. I cannot think that, in respect to matters which might before have been properly set up by plea puis darrein'continuance, and which are offered in proper season, the Code was designed to alter the rule so as to leave the reception of the plea open to a larger discretion than the Courts previously exercised on the same subject. When such a plea would, on motion, have been ordered off the files, on the ground of fraud or gross injustice, the Court may now refuse to receive it as a supplemental answer; but under the circumstances of this case, I have no doubt the plea now proposed would have been received.

But it was well settled that, where a plea puis darrein continuance set up new'matter in defense of the action, and, not going to the plaintiff’s remedy merely, it waived the former plea.

The manner in which provision is now made for filing supplemental answers, has made it doubtful, at least, whether such answers are not in all cases (unless the Court otherwise orders) to be deemed an addition to, and not substitutes for, the previous answers. But I have no doubt of the power of the Court to impose it as a condition that the defendants shall, if they interpose this new defense, submit to the same consequences which would have followed a plea of the same matter, puis darrein continuance, before the Code.

And this is a case in which it - is peculiarly proper to impose such terms. If the defendants be permitted to avail themselves of what was matter of right under our former system, they may properly be required to submit to the same consequence which would have followed under that system, if they exercised the right.

Notwithstanding what has been above suggested, I deem the defense one of such doubtful equity, and also of such doubtful sufficiency, that it is proper to require the defendants, if they insist upon it as a defense, to rest upon that defense alone, and take the hazard of sustaining it. The motion is, therefore, granted, with $10 costs of motion to either party to abide the event of the suit, on condition that the defendants waive their previous defense.


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    McCreery et al. v. Willett, Sheriff.
    1. In an action under the Code, brought against a Sheriff for the escape from his custody of a debtor imprisoned on a ca, sa., the sheriff is liable for the amount of such judgment.
    2. It is not a defense, either total or partial, that the debtor at the time of such escape was insolvent
    3. The Code, by abolishing all the forms of pleading theretofore existing; has not affected the measure of a Sheriff's liability, for the escape from his custody of a debtor imprisoned on execution against his body, as declared by 2 Revised Statutes. (437, § 66. [See. 63.])
    4. A complaint which states facts establishing the Sheriff’s liability for such an escape, and concludes by averring that the Sheriff thereby became indebted to the plaintiff in the amount of the judgment on which the .execution issued, and that the action is brought to recover that sum, and prays judgment for that sum, indicates clearly that the action is brought under 2 Revised Statutes, (437, § 66, [63,]) to recover the sum authorized by that section. -
    (At Special Term, January, 1860.
    Before Bosworth, Ch. J.)
    This is a demurrer by the plaintiffs to a part of defendant’s answer, which is pleaded as a separate defense. The facts appear fully, in the following opinion.

      A. Matthews, for plaintiffs.

      A. J. Vanderpoel, for defendant.
   Bosworth, Ch. J.

The complaint states the recovery of a judgment by the plaintiffs against one Gottschalk Brown, and facts showing a right to an execution thereon against the body of Brown, the issuing of such an execution to the defendant, as Sheriff of the county of New York, the arrest by him of Brown on such execution, and an escape of Brown from the custody of the defendant after such arrest was made.

The defendant pleads as a separate defense, the insolvency of Brown in mitigation of damages. To this part of the answer the plaintiffs demur, on the ground that it does not state facts constituting a defense, either total or partial.

The point of the defendant’s argument is, that as the Code has abolished all the forms of action existing at the time it took effect; that it has abolished the action of debt given by 2 Revised Statutes, (437, § 63,) and compelled the plaintiffs to resort to an action on the case, and therefore has restricted their right to recover, to the damages actually suffered; and that in an action on the case, it was always competent for the Sheriff to prove the insolvency of the debtor who had so escaped.

This Court, in Renick v. Orser, (4 Bosw., 384,) held that section 140 of the Code, by abolishing “ all the forms of pleading ” theretofore existing, had not affected the measure of a Sheriff’s liability, for the escape of a person committed on a ca. sa., as. declared by 2 Revised Statutes. (437, § 66. [Sec. 63.] )

• I see nothing in the system of practice established by the Code, or in the provisions of the Code, favoring the idea that it was designed to modify or abrogate rights as established by preexisting law. The design was to simplify the forms of procedure, and that only, when not otherwise declared by the Code itself.

Section 468 [388] of the Code declares “ that all rights of action given or secured by existing laws, may be prosecuted in the manner prescribed by this act.” Section 471 [390] declares that the second part of the Code shall not affect “.any existing statutory provisions relating to actions, not inconsistent with this act, and in substance applicable to the actions hereby provided.”

Section 291 [246] declares that “ the existing provisions of law, not in conflict with this chapter, (ch. 1, of title IX.,) relating to executions and their incidents, * * the powers and rights of officers, their duties thereon, and the proceedings to enforce those duties, and the liabilities of' their sureties, shall apply to the executions prescribed by this chapter.”

The complaint alleges the recovery. of a judgment against Brown for $4,876.09, and after stating facts showing the Sheriff’s liability for the escape of Brown, proceeds thus: “.Wherefore the plaintiffs aver that said defendant, as such Sheriff, became indebted to the said plaintiffs in the said sum of $4,876.09, for the recovery of which this action is brought,” and demands judgment for that sum.

This is a clear indication that the plaintiffs sue under 2 Revised Statutes, (437, § 66, [63,] ) to recover the precise sum which that section declares a plaintiff (in such a case as it describes) is entitled to recover as a matter of course and of right.

In Hutchinson v. Brand, (5 Seld., 208, 210, 211,) the Court said: “ The permitting of the defendant to go at large after his arrest upon the process, and before his actual commitment within the four walls of the prison, was an escape, entitling the plaintiff to recover his whole debt against the Sheriff. (2 R. S., 437, § 63; 8 Wend., 545.)”

While it does not appear that the question of the debtor’s insolvency was attempted to be proved in that case, as a ground for mitigating damages, it is nevertheless quite evident, from the language - of the Court, that it did not imagine that the new system of pleadings affected the measure of the Sheriff’s liability, for the escape from his custody of a debtor arrested on a ca. sa.

Renick v. Orser, (supra,) requires me to sustain the demurrer, and I think the views above suggested furnish some additional reasons supporting the decision made in that case.

Judgment is ordered in favor of the plaintiffs on their demurrer.


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    Kedenburgh et al. v. Morgan.
    It was decided in this case, that in an action on contract for the recovery of money, no execution can be issued on the judgment, against the body of the defendant, unless prior to judgment an order was made to arrest and hold him to bail.
    Heard at Chambers, before Moncrief, J.
    Heard in General Term, before Bosworth, Ch. J., and Wood-ruff, Pierrepont and Moncrief, J. J., December 31,1859; decided, January 14, 1860.
   See the points decided, in the index to this volume, under the title, “Practice—Arrest."

And see the motion and appeal reported at length, with the opinion of the Court at General Term, in 18 How. Pr. R., 469.


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    The Bank of Toronto v. William B. Hunter.
    1. Although at law, one who accepts a bill for the accommodation of the drawer, is regarded in favor of a tona fide holder as the principal debtor, yet as between such acceptor and the drawer, the former stands in the relation of surety, and in equity he is entitled, on payment of the bill, to be subrogated to the position of such holder of the bill, in respect to any securities of the drawer held by such holder to secure the payment thereof.
    2. Hence, in an action against the accommodation acceptor by a non-resident holder of the bill, the drawers having become insolvent, the defendant may, under the Code, (which authorizes the Court to give equitable as well as legal relief in the same action,) put in an answer in the nature of a cross bill in equity, demanding such subrogation upon payment of the amount due to the plaintiffs.
    (At Special Term, January 14th, 1860.
    Before Woodruff, J.)

      Demurrer to the defendant’s answer. The plaintiff is a foreign corporation, doing business in Toronto, Canada. The action is brought against the defendant, as acceptor of a bill of exchange. The answer avers that the bill was accepted solely for the accommodation of a firm of Tisdale & Co., the drawers thereof, without any consideration, and this was known to the plaintiffs when they took the bilk That securities belonging to the drawers were lodged by the latter with the plaintiffs to secure the payment of the bill; that such securities are sufficient to provide for the payment of the bill, that the drawers of the bill are insolvent; that the defendant has offered, and he in the answer offers to pay to the plaintiffs the amount of the bill on a transfer to him of such securities; and the defendant prays, that on payment of the amount due to the plaintiffs, a transfer of such securities be made- for his indemnity, by way of subrogation to the rights of the plaintiffs in respect thereto.

      Hinsdale, Swan and Sands, for the plaintiffs,
    In support of the demurrer, cite Fentum v. Pocock, (5 Taunt., 192,) Murray v. Judah, (6 Cow., 484,) Grant v. Ellicott. (7 Wend., 227.)
    I. The acceptor is to be treated as principal, and not as surety.
    II. The defendant should, before suit brought, have made an unconditional tender of the amount due, and filed an original bill after such tender. (Hayes v. Ward, 4 Johns. C. R., 123.)
    III. The right of subrogation depends upon various conditions, and cannot be examined in this suit.

      Wm. H. Leonard, for the defendant.
    I. In equity, the defendant was surety merely, and the plaintiffs knew it.
    II. The right of the defendant to subrogation is, in equity, clear, and the plaintiffs cannot divert the securities even with the consent of the drawers, so as to deprive defendant of indemnity.
    III. No actual tender before suit brought was necessary. (Cherry v. Monro, 2 Barb. C. R., 618.)
   Woodruff, J.

Although at law the defendant is to be regarded as the principal debtor, as between him and the plaintiffs, yet as between himself and Tisdale & Co., the drawers of the bills, he stands in the relation of surety for such'drawers, and in respect of any securities belonging to the drawers held by the plaintiffs to secure the payment of the bills, his equity is the same as it would be if his suretyship appeared on the face of the bills.

If, in ignorance that the defendant was a mere accommodation acceptor, the plaintiffs have given any further credit to Tisdale & Co. in reliance on those securities, which should defeat the defendant’s prima facie 'equitable right of subrogation, it will be for the plaintiffs to set it up for that purpose; but, taking the facts as they are stated in the answer, to be true, I think the defendant’s right of subrogation to be clear. And as the principal debtors are insolvent, and the plaintiffs are a foreign corporation coming into our jurisdiction for the purpose of collecting - the debt, and whom, if the defendant first pays the bills he cannot reach by any process of our Courts, he would in respect of his right of subrogation be remediless, if he might not, by his answer, in the nature of a cross bill in equity, assert and maintain his claim to affirmative relief, under sections 150 and 274 of the Code.

There is no well founded objection to the determination of all the rights of the parties, legal and equitable, in relation to the same subject matter in one suit, and as the right claimed by the defendant to be subrogated to the position of the plaintiffs upon payment of the debt for which, in equity, he is surety only, is, I think, clear, the demurrer of the plaintiffs to his answer must be overruled, with costs; but with leave to the plaintiffs to withdraw the demurrer and reply, if so advised upon payment of the costs of the demurrer and proceedings thereon. ’ (Curtis v. Tyler et al., 9 Paige, 432; Wilkes v. Harper, 2 Barb. C. R., 338; Mathews v. Aikin, 1 Comst., 595; Pitts v. Congdon, 2 id., 354; Eddy v. Traver, 6 Paige, 521; Cherry v. Monro, 2 Barb. C. R., 618.)

Ordered accordingly.


text:
    Charles French v. James C. Willet, Sheriff, &c.
    1. In an action against a Sheriff for not delivering to his successor in office a prisoner taken by him and committed to jail on an execution against the body, averred to have been duly issued upon a judgment in an action brought to recover a debt which was fraudulently contracted, it is not essential that the complaint should also state that an order for the arrest of the defendant was obtained.
    2. Where an execution is regular on its face and there is no defect of jurisdiction, neither irregularity nor error in issuing the execution will -justify the Sheriff in refusing or neglecting to execute it.
    3. Otherwise if the execution be void.
    4. A complaint, which, after stating the due commitment of the prisoner by the defendant as Sheriff to the county jail, then proceeds to state the expiration of the term of the defendant’s office, the election of a new Sheriff, the due qualification of the latter and the service upon the defendant of the certificate of the County Clerk that such new Sheriff had qualified and given the security required by law, (2 E. S., 438,) and avers that the defendant did not, within ten days after such service, deliver to the said new Sheriff the prisoner, then in the defendant’s custody on the said execution and confined within the jail liberties, shows a clear and explicit neglect of duty and violation of the statute for which the defendant is liable, and is enough to put the defendant to his defense.
    (At Special Term. Before Woodruff, Ch. J.,
    January 19th, 1860.)
    Demurrer to complaint, on the 'ground that the same does not state facts, sufficient to constitute a cause of action against the defendant.
    The complaint stated the recovery of a judgment by the plaintiff in this Court for $12,588.56 against one Plin White. That the action was brought to recover the amount of a debt fraudulently contracted, the issuing to the defendant of an execution against the property of the said White, and its return by the defendant unsatisfied. That, thereupon, on the 14th of April, 1856, an execution against the person of the said White was duly issued to the defendant, who was then Sheriff, and was delivered to him as Sheriff by which he was required to arrest the said White and commit him to the jail of the county until he should pay the judgment or be discharged according to law. That the defendant, as such Sheriff, arrested the said White on the said execution, and committed him to the said jail. That on the 1st of January, 1859, the defendant’s term of office as Sheriff expired, and that a new Sheriff, to wit, John Kelly, was elected Sheriff in his place, and duly qualified and gave the security required by law. That the certificate of the clerk of the city and county under his official seal, that the said Kelly had duly qualified and given security was duly served on the defendant on the '11th day of January, 1859. And that “ the defendant did not, within ten days after the service on him of such certificate, deliver to his successor, the said new Sheriff, the said Plin White who then remained in the custody of the said defendant on the said execution confined within the liberties of the jail of the city and county of New York.”
    Wherefore, the plaintiff prays judgment for the sum of $12,-588.56, with interest thereon; damages by him sustained by reason of the premises, with his costs, &c.

      A. J. Vanderpool, for the defendant in support of the demurrer.
    I. The plaintiff has not shown a valid execution against the person. The complaint does not aver that an order of arrest was obtained, nor a judgment for a cause of action which per se warrants an arrest, nor facts showing that an order of arrest might have been obtained. (Corwin v. Freeland, 2 Seld., 560; 6 How., 241; Alden v. Carsen, 4 Abb., 102.)
    Whenever the execution is void, that is a defense to the Sheriff. (Jones v. Pope, 1 Saund. R., 38 [6]; Turner v. Eyles, 3 Bos. & Pul., 456; Brazier v. Jones, 8 B. & C., 124; Edwards v. Lucas, 5 id., 339; Ginochio v. Orser, 1 Abb., 433.)
    The allegation that the action was brought to recover the amount of a debt fraudulently contracted is. not sufficient; A demurrer admits only facts which are well pleaded. (Wells v. Jewett, 11 How., 242; Graham v. Machado, 6 Duer, 514; Lawrence v. Wright, 2 id., 673.)
    II. The question, what is an escape, is now defined by statute. (2 R. S., 434, § 47, 437, §§ 61-63; 3 id., 746, note to § 47.)
    Escapes must now be actual. (Johnson v. Macon, 1 Wash. R., [Ct. of App., Va.] 4.)
    White did not escape. No escape is alleged.

      III. The failure of the old Sheriff to deliver over the prisoner does not relieve him from custody. The new Sheriff may take him and may compel the delivery of the process, &c. (2 R. S., 439, § 73.)
    The statute gives no action against the Sheriff for not delivering, nor has it declared that it shall be deemed an escape. Such neglect does not work a general jail delivery.
    Until the prisoners are delivered they remain in the custody of the old Sheriff. (Hempstead v. Weed, 20 J. R., 64; Curry v. Worthy, 2 Jones [N. C.] R., 104.) Our statute is only declaratory of the common law rule. (See Revisers’ Notes, 3 R. S., 748, note to § 69; Partridge v. Westervelt, 13 Wend., 500; Arthur v. Bokenham, 11 Mod., 150; see also Hinds v. Doubleday, 21 Wend., 223; 28 Barb., 614.)

      Jno. B. Parsons, for the plaintiff.
    I. The statute peremptorily requires the old Sheriff to deliver to his successor all persons confined, &c., within ten days after service of the certificate of the County Clerk. (2 R. S., 438, §§ 88, 89, 90.)
    II. A person confined on civil process, if not so delivered to the new Sheriff, is at liberty to go at large, and the new Sheriff cannot control him. (Hinds v. Doubleday, 21 Wend., 223; Partridge v. Westervelt, 13 id., 500; Crocker on Sheriff, 5, § 7.)
   Woodruff, J.

1. The 179th section of the Code of Procedure authorizes the arrest of a defendant when he has been guilty of a fraud in contracting the debt for which the action is brought. The 288th section provides that an execution against the person of the judgment debtor may be issued “if the action be one in which the defendant might have been arrested as provided in section 179.”

The averment that the plaintiff recovered a j udgment in an action against the defendant therein, which action was brought to recover the amount of a debt fraudulently contracted, shows a case in which, therefore, by the terms of sections 179 and 288, the plaintiff had a right to have an execution against the person of the defendant. The court had jurisdiction of such an action, and power to issue such an execution in the case which is stated. The farther averment, that the execution was duly issued, is, at most, all that .is, as against the Sheriff, necessary to show that it was his duty to execute the writ. Such an execution is regular on its face, and is issued by competent authority; and, upon the facts alleged, the plaintiff was, prima facie, entitled thereto.

If it was necessary to the regularity of an execution against' the person of the debtor that an order of arrest should have been previously obtained, it does not follow that such an execution would be void though issued without such an order. . That question relates to the regularity of the process, and to its legal validity,, as against the debtor. He may acquiesce therein, or may move to discharge the process; but where there'is no defect *’of jurisdiction, neither irregularity nor error in issuing the execution will justify the Sheriff in refusing or neglecting to execute it.

This doctrine has been often discussed in the analogous case of actions against a Sheriff for the escape of a prisoner taken on a ca. sa. In such an action, the Sheriff cannot require the plaintiff to allege affirmatively the successive steps upon which the regularity of the process depends, no more than, on refusal to execute an order of arrest before judgment, he can require the plaintiff to allege that the Justice approved the sureties taken on granting such an order. As to the Sheriff, the process being regular on its face, and the Court or Justice having jurisdiction, omnia presumuniur rite esse acta.

This distinction between void process and that which is irregular, erroneous and voidable, is familiar, and was substantially conceded on the argument. (Bushe’s case, Cro. Eliz., 188, where a ca. sa. had been issued more than a year and a day after judgment without a previous sci.fa.; Shirley v. Wright, 2 Salk., 700; Jaques v. Cesar, 2 Saund., 101, e, note 2, p. 101, y; Bissell v. Kip, 5 Johns., 100; Jackson v. Walker, 4 Wend., 464; Ontario Bark v. Hallett, 8 Cow., 192; Savacool v. Boughton, 5 Wend., 170; Ames v. Webbers, 8 id., 545; Parmelee v. Hitchcock, 12 id., 96; Ginochio v. Orser, 1 Abb., 433.)

To this view of the subject it may be added that, if there exist extrinsic facts which, being shown, render the arrest invalid, the Sheriff must show them as a defense; so that, if the want oí an order of arrest, made before judgment, would entitle the debtor to be discharged or to set aside the execution, and it were conceded that that would avail the Sheriff as an excuse for not detaining him, it is matter of defense.

2. In regard to the gravamen of the action, to wit, the averment that the defendant (the Sheriff) did not deliver- the debtor, then being in custody, &c., to his successor, the new Sheriff, the complaint states the expiration of the defendant’s term, the election of his successor, that the latter qualified and gave the security required by law, and that the Clerk of the county granted the certificate of such qualification and the giving of security by the new Sheriff, and the service of such- certificate on the defendant.

The statute provides that, “ upon the service of such certificate on the former Sheriff, his powers as such Sheriff, (except when otherwise expressly provided by law,) shall cease,” (2 R. S., 438, § 89 [68];) and, “ within ten days after the service of such certifi cate upon such former Sheriff, he shall deliver to his successor, 1st, the jail * * *; 2d, all prisoners then confined in such jail; 3d, all process * * * authorizing or relating to the confinement of such prisoners; * * (Id.-, §90 [69].) Section 91 [70] provides for the execution of an instrument reciting the property, process, prisoners, &c., delivered. And section 94 [73] authorizes the new Sheriff, in case the other neglects or refuses to deliver, to take possession of the jail and custody of the prisoners, and to compel the delivery to him of such process and documents.

The statute has thus explicitly' defined the duty of the defendant. The plaintiff had an interest in his performance of that duty, by-delivering the plaintiff’s debtor, held by him in execution of the judgment, to the new Sheriff. In the case of Hinds v. Doubleday, (21 Wend., 228,) where the prisoner, as in this case, was on the limits or liberties of the jail, Bbonson, J., expresses a decided opinion that, after the expiration of the ten days, if there be no assignment of the prisoner to the new Sheriff, the latter cannot detain him, and that he is no longer in the custody of the old Sheriff, whose power over him is at an end; that, in such case, the prisoner may go at large.

It is not necessary to sustain the present complaint that the power of the new Sheriff to take the prisoner should be denied. It is sufficient to say, that the averment that the defendant (the Sheriff) did not deliver the debtor held under the execution to his successor in office, shows a clear and explicit violation of the statute and breach of the duty which the defendant owed to the plaintiff. Eor this the defendant is, prima facie, liable. This is enough to put him. to his defense. He is, in every aspect of the case, (this averment being admitted, and no excuse or avoidance of liability being set up,) liable to nominal damages at least.

If, in truth, the defendant, by delivery of the jail, and the execution of an instrument reciting the property, process and prisoners delivered, complied with the statute, that will be a subject of proof on denial of the plaintiff’s averment.

If the prisoner remained in custody under such circumstances that the new Sheriff had a right to hold him, and did hold him, or if the new ■ Sheriff did, notwithstanding the neglect of the defendant to deliver him,- take the prisoner into his possession under section [73] 94 of the statute in such wise that he had a right to detain him, and does detain him in custody, this may be available in mitigation of damages or perhaps to show that no damages have been sustained; but, as the case stands in the complaint, a cause of action is shown, to which the defendant is bound to answer, or he is liable.

This is, I think, the necessary result of the provisions of the statute, (2 R. S., 438, 439, §§ [67-73] 88-94,) and the inevitable inference from the opinion of the Court in Binds v. Doubleday, above referred to.

The demurrer must.be overruled, with costs, with leave to the defendant to withdraw his demurrer and answer within twenty days, on payment of the costs of the demurrer and proceedings thereon.

Ordered accordingly.


author: By the Court—Bosworth, Ch. J.

text:
    Josiah Carpenter, Plaintiff and Appellant v. Wm. S. Wright and Cyrus Curtis, Special Receiver, Respondents.
    1. Where a plaintiff, on commencing a suit and obtaining an injunction, gives an undertaking to pay to the defendants such damages as they may sustain by reason of the injunction, if the Court shall finally decide that the plaintiff was not entitled thereto, the damages to be ascertained by a reference or otherwise, as the Court shall direct, and where, on motion of the defendants, the Court by order dissolves such injunction, and thereupon the plaintiff discontinues the action, and pays the costs, the Court may thereupon order a reference to ascertain the damages sustained by the defendants.
    2. Such an order having been made, should not be reversed unless it.be perfectly clear that no action will lie on the undertaking.
    3. It should not be reversed on the idea that on such a state of facts it is clear the Court has not finally decided that the plaintiff was not entitled to the injunction, and therefore no action will lie on the undertaking.
    4. A dissolution of the injunction by order of the Court, upon a hearing of the parties, though on motion, followed by a discontinuance of the action by the plaintiff, makes the order of dissolution a final decision in such sense, that it cannot be reviewed on appeal, nor reinvestigated in that action.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Moncrief and Robertson, J. J.)
    Heard, January 28;
    decided, February 11, 1860.
    This is an appeal by the plaintiff from an order made by Mr. Justice Pierrepont, on the 14th of November, 1859. On commencing this action, on the 29th of September, 1859, the plaintiff obtained an injunction restraining the defendants from doing certain acts therein specified, which injunction was served on the defendants. To obtain it, he gave such an undertaking as section 222 of the Code requires. The undertaking declared that the damages secured by it “ may be ascertained by a reference, or otherwise, as the Court shall direct.”
    The injunction, on motion of the defendants, andón a hearing of all the parties, was vacated by order of the Court on the 7th of October, 1859. On the 8th, an order was entered, at the plaintiff’s instance, discontinuing the action pn payment of costs, which were paid.

      Subsequently, and' on the 14th of November, 1859, an order was entered on motion of the defendants, and upon notice to the plaintiffs, appointing a referee “ to ascertain the damages sustained by the defendants in said action, or either of them, on account or by reason of said injunction, or the issuing thereof,” and to report in the premises with all convenient speed. From that order the plaintiff appealed to the General Term.-

      S. Sanxay, for appellant,
    Contended that no action would lie on the undertaking; that the Court had not finally decided that the plaintiff was not entitled to the injunction; that it had not tried the cause upon the merits; and could not hereafter pass upon it, as the cause was out of Court, the action having been discontinued; that there was no authority to make the order appealed from, and it should be reversed. He cited and commented on 7 Abb. Pr. R., 308; 18 N. Y. R., 463; and 14 id., 60.

      A. Roe, for respondents,
    Insisted that the order of reference was in accordance with established practice, and cited 11 How. Pr. R., 269.
   By the Court—Bosworth, Ch. J.

The- order appealed from should not be vacated, ^unless it is perfectly clear that no action will lie upon the undertaking. That provides for ascertaining the damages by a reference. The question of liability can be better and more fitly determined in an action upon the undertaking. The reference will settle the measure of liability, if the parties to the undertaking shall be held liable, but not the fact of liability. It has been determined in this action that the plaintiff was not entitled to the injunction. By the plaintiff’s acquiescing in that -decision, and immediately abandoning his action, that decision became a final one in the action, in such sense, that it cannot be reviewed on appeal, nor be reinvestigated in any other manner in that action. There is, therefore, much reason for considering that decision a final one within the meaning of the undertaking, and of section 222 of the Code.

In Coates v. Coates, (1 Duer, 664,) the practice was sanctioned which has been pursued in this case. The case in 7 Abb., Pr. R., 308, contains no intimation in conflict with it. There, no decision had been made upon the question of the plaintiff’s right to the injunction. (See 11 How. Pr. R., 269; 12 id., 170.)

In 18 New York Reports, 463, the order of reference was made after a judgment entered dismissing the complaint. I do not think the defendants (if entitled to damages) have lost the right to an assessment by a referee, solely because the action has been discontinued. It is not thereby terminated more absolutely than by a dismissal of the complaint. The order should be affirmed.

Affirmed accordingly.