author: Oakley, Ch. J.,

text:
    Joseph T. Sweet v. Bartlett.
    This court sustains the attorney’s lien for costs on principles of justice and equity, where it can be done without infringing upon the statute of set off.
    Accordingly, where a plaintiff recovered a verdict and judgment in tort, from which the defendant appealed, and plaintiff then assigned the judgment to his brother, and pending the appeal, the parties with the brother compromised the entire claim for two-thirds of the damages recovered, and discharged the judgment and the appeal suit, all without the knowledge o'f plaintiff’s attorneys; it was held, that the latter had a lien for their costs which was not affected by the settlement, and a motion to set aside an execution issued by them was denied unless such costs were paid.
    The lien of the attorney does not attach until a verdict or j udgment fixes the right to costs.
    Therefore, where pending an appeal from a judgment, the parties settled the litigation, leaving unpaid the costs of the attorneys who recovered the judgment, it was held, that they had no lien on the judgment or fund for their costs in the court of appeals.
    (Before Oakley, Oh. J., and Mason, Campbell, and Paine, J. J.)
    October 25, 1851.
    The plaintiff sued Bartlett in this court in 1847, in an action of trespass, the cause was tried, a verdict given for the plaintiff for upwards of fifteen hundred dollars, and a judgment was entered on the verdict. His attorneys in the suit were Messrs. Brown and Mathews. Bartlett appealed to the court of appeals. The plaintiff then assigned the judgment to his brother James Sweet. On the 5th June, 1851, while the cause was on the calendar of that court, the respondent’s attorneys having noticed it for argument, Bartlett and the two Sweets got together and settled the whole suit and litigation, Bartlett paid one thousand dollars in full, and the plaintiff discharged the judgment and the suit in the court of appeals. The attorneys, B. and M., were not present, and knew nothing of the affair. All the parties to it knew that no part of their costs of the litigation had been paid. Bartlett gave the plaintiff’s attorneys notice of the settlement of the suit, which they disregarded, and on the notice of argument previously given, took a default in the court of appeals by which the judgment,of this court was affirmed, obtained a remittitur, and entered a fresh judgment thereon in this court for the amount of the original recovery and the costs in the court of appeals. They then issued an execution on the latter judgment, directing the sheriff to levy the whole amount of the debt and costs. Bartlett thereupon moved to set aside the last judgment and the execution as irregular.

      J, T. Brady, for Bartlett.

      N. B. Blunt, for the attorneys Brown and Mathews.
   By the Court.

Oakley, Ch. J.,

(all the Justices of the court concurring.) — There is good ground to believe, from the circumstances, that the settlement was not made by Bartlett in good faith. On Mr. Brown asking him what they had been doing, he said, “ we have been doing you out of some costs intimating clearly that they had proceeded regardless of the attorneys’ costs. The question of the attorneys’ lien for such costs has been much discussed. In England, the decisions upon it are conflicting, and there were variant decisions in our late supreme court. It is difficult to determine what is now the rule in the supreme court. Whatever that may be, this court decided in Smith v. Lowden, 1 Sand. 696, that it would establish such a practice as would be consistent with equity and justice. We determined that we would sustain the lien of the attorney, whenever it could be done without infringing upon the statute of set off, and that where his right to the costs was established, we would protect it so far as we could, because however the matter might be technically, the costs were in reality his property. We adhered to this rule in Gihon v. Fryatt, 2 Sand. 638.

An attorney has no lien for his costs until a judgment is entered, or at least not till after verdict, and until the lien attaches, the parties can settle the suit regardless of his claim for costs. But after his right to costs is fixed by a verdict or judgment, then the parties are no longer at liberty to settle, disregarding his interests in the matter.

In this case, as to the costs on Bartlett’s appeal, that was a new suit which the parties could settle, as if it were a suit in this court before verdict. The attorneys had no lien for the costs in the court of appeals. But as to the costs in the original-judgment, those were their property, and the plaintiff had no just right to compromise so as to leave them unpaid.

On payment to the attorneys of those costs in the suit in this court, the execution and the judgment last entered will be set aside, without costs of the motion to either party. Otherwise, the motion is denied.


source: Caselaw Access Project

license: Public Domain

text:
    Schneider v. Schultz.
    In an answer to a complaint for an assault and battery, the defendant will not be permitted, first to deny the charge, and then to set up son assault demesne.

    October 25, 1851.

      J. M. Smith, Jr., for the plaintiff.

      O. H. Smith, for the defendant.
   The complaint was for an assault and battery. Tbe answer denied tbe assault, &c., and then set forth that if there were any injury to the plaintiff it was occasioned by an assault which he previously made on the defendant. A motion was made to strike out the latter clause of the answer, which was granted by Mason, J., at chambers, with the concurrence of ail the justices. The judge said that where the assault was put in issue, the party could not plead a justification. If there were mitigating facts, he may give them in evidence on the trial.


author: Mason, J.,

text:
    Meyer v. Schultz.
    An answer in an action of slander, denying the speaking of the words, cannot also set up matter in mitigation of damages.
    Thb code allows that, only where the defendant justifies the slanderous words. Where there is no justification, the rule is the same as under the old system. Evidence in mitigation may be given on the trial of the issue made as to the speaking of the words alleged.
    October 25, 1851.
   These points were decided by

Mason, J.,

at chambers, all the justices concurring, on a motion to strike out part of the answer in an action of slander. The defendant first denied ever speaking the words alleged. He then stated, that if they were spoken, it was in the heat of passion, &c. The latter was the matter objected to. The judge said that the provision in the code permitting the defendant to allege mitigating circumstances in his answer, (Code, § 165,) was limited to cases in which he pleaded the truth of the matter charged as defamatory. Where he does not justify, the rule of pleading has not been changed by the code.

J. M. Smith, Jr., for the plaintiff.

O. H. Smith, for the defendant.


author: Duer, J.

text:
    Garvey v. Fowler and another.
    General averments and general issues in pleading are abolished by the code.
    All the facts which constitute the cause of action must be stated in the complaint, and every fact on which the right of action depends must be deemed constitutive in the sense of the code.
    Where the plaintiff, in an action on a check, relies on facts which excuse notice of presentment and non-payment, he must state such facts in his complaint. An averment of due notice will not be sustained by evidence of facts excusing notice.
    October 25, 1851.
    Motion to strike out an answer as sham or frivolous, heard at chambers by Duer, J., and the point last stated in the note of the case, decided with the concurrence of all the judges. The complaint was upon a bank check drawn by the defendants payable to the plaintiff, and it averred the due presentment of the check at the bank $nd the refusal of payment, and the complaint added 11 of which such presentment, request, and refusal, the defendants had due notice.” The answer denied, on information and belief, the averment of notice. The plaintiff read an affidavit of an officer of the bank, that the defendants had no funds in the bank the day the check was presented. The pleadings were verified in the usual form.

      H. D. Sedgwiclc, for the plaintiff,
    cited, as to the averment of notice, 7 East. 231; 2 Caines R. 121; 12 John. 274; 3 Cow. 252 ; 2 Comst. 488.

      S. P. Nash, for the defendants,
    cited 5 M. & W. 418; 6 Ad. & El. 502 ; Byles on Bills, 319, 320.
   Duer, J.

The answer cannot be struck out as frivolous, since, upon the face of the pleadings, the denial of notice is certainly a material issue; and in judging of the materiality of an issue, I have no right to look beyond the pleadings. Nor can the denial of notice, upon information and belief, be regarded as evasive, since a notice may have been duly served, (by a delivery to a clerk or otherwise,) which never came to the knowledge of the defendants. The rule in equity upon which the plaintiff’s counsel relied, is only applicable where the fact, which is denied upon information, must necessarily have been, if true, within the personal knowledge of the party.

As to the second ground of the motion, I may be entirely satisfied that the answer is put in merely for delay; but, to justify me in treating it as a “ sham” answer, I must also be satisfied that it is false in fact, and was known to be so to the defendants. The answer is verified by the oath of one of the defendants, and whether a motion to strike out an answer thus verified as sham,” can be entertained at all, may be seriously doubted. It is a question, however, which it is not necessary that I should now consider, especially as the objection was not raised by the counsel for the defendants.

If the denial of notice is to be understood in its plain and literal sense, it is not pretended to be false. It is not asserted that notice of' the demand and refusal of payment was in fact given, but it is contended that, as the want of funds in the bank superseded the necessity of such a notice, and could be given in evidence under the general averment in the complaint, the denial ought to be construed as broadly as the averment, and that, thus construed, it is certainly false.

The plaintiff’s counsel was probably justified in saying, that according to the decisions in this state, in suits upon promissory notes and bills of exchange, facts excusing the necessity of a demand and of notice, although not stated in the declaration, might have been given in evidence, under the averments that the demand was made and the notice given ; but he was wrong in supposing that this lax and deceptive mode of pleading, which conceals from the defendant a knowledge of the facts upon which the plaintiff means to rely, is sanctioned by the code. It is one of the merits of the code, that general averments and general issues, which conveyed no information to the opposite party, and were frequently construed in a sense not only different from, but directly opposite to, that which their terms imported, are now abolished. The plaintiff must now state in his complaint, all the facts which constitute the cause of action, and I am clearly of opinion that every fact is to be deemed constitutive, in the sense of the code, upon which the right of action depends. Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to controvert in his answer, must be distinctly averred ; and ¿very such averment must be understood as meaning what it says, and, consequently, is only to be sustained by evidence which corresponds with its meaning.

In this present case, if notice was not in fact given to the defendants, it is upon the want of funds in the bank, that the plaintiff’s right of action entirely depends. It is this fact which if denied by the defendants, he will be bound to prove, and which he must therefore aver in his complaint, in order that they may admit or deny it in their answer. They have a right to say, that the averment in the complaint, as it stands, means that notice was in fact given, not that it was not given and was unnecessary. It is therefore such a notice, and not the want of funds, that they have denied.

I observe, in conclusion, that the object of the new rules of pleading, which, as established by the j udges, have prevailed in England for several years past, is in many respects tbe same as that of our code, and that, under these rules, it is now settled that facts dispensing with presentment or notice, such as absence of effects in the drawee’s hands, or a countermand of payment by the drawer, must be specially alleged in the declaration, and that proof of these facts is inadequate to'the support of a positive averment of presentment, protest,.or notice. (Byles on Bills, 319, 320.)

The motion in both its branches must be denied, but, as the questions are in a manner new, without costs ; and I shall also permit the plaintiff, without costs, to amend his complaint, by striking out the averment of notice, and inserting one corresponding with the facts as they have now .been disclosed.


text:
    Newman v. Otto and another.
    No allegation, in a complaint or answer, can be deemed material, within the meaning of section 168 of the code, (which provides that material allegations not controverted, Ac., must be taken as true,) unless an issue taken upon it, whether of law or fact, will decide the cause, so far as relates to the particular cause of action to which it refers.
    Facts pleaded in mitigation of damages, in an action for a libel, are not material in the sense of section 168 of the code.
    Such facts are not a defenae to which the plaintiff can demur or reply.
    He may, upon the trial, contest their truth or their admissibility in evidence.
    October 25, 1851.
    This was a demurrer to part of an answer, argued at the Special term, before Duer, J., and the two last points above noted were decided with the concurrence of all the justices.
    The complaint was for a libel. The answer averred the truth of the matters charged as libellous, and then set forth various facts for the purpose of mitigating the damages. The plaintiff demurred to the part of the answer which contained those facts.

      J. Awcc^for the plaintiff.

      L. 8. Ashley, for the defendants.
   Duer, J.

The question which this demurrer was intended to raise, namely, whether the circumstances, which the answer alleges in mitigation of damages, can be properly admitted in. evidence, I must decline to consider, since I am satisfied that matter, which is pleaded only in mitigation of damages, is not a subject of demurrer at all. It is only when the new matter in an answer is alleged as a defence to the action, as a legal bar in whole or in part to the plaintiff’s recovery, that a demurrer can be necessary or proper; and that mitigating circumstances are not a defence in the proper sense of the term, is evident from the fact that if pleaded alone, the answer would be struck out as frivolous, and the plaintiff be entitled to an immediate judgment.

It was said that mitigating circumstances, although not a full,. are certainly a partial defencé, and that a partial defence is just as competent and proper in an action for a tort as upon a contract ; but there is a very material distinction, which was overlooked upon the argument. "Where the object of the suit is. to recover a definite sum of money, the necessary effect of a partial defence when proved, is to reduce pro tanto the amount of the plaintiff’s recovery; but in suits in which the damages are uncertain, and in a measure arbitrary, the effect of the evidence, which is given for the sole purpose of reducing the amount, rests entirely in the discretion of the jury, who, notwithstanding all the circumstances relied upon may be proved, may still give all the damages which the plaintiff claims. Mitigating circumstances are, therefore, not a legal bar to a recovery of any portion of the damages which the plaintiff seeks to recover, and hence it is, that while the rules of just pleading have sanctioned a partial defence in actions upon contract, they have never allowed a defence, which, admitting the cause of action, seeks only to reduce the amount of damages, to be pleaded in any action for an injury to person, character, or property. It is true, that the code now permits a defendant who justifies in an action for libel or slander, to allege in his answer any mitigating circumstances which he thinks may reduce the amount of damages, (Code, § 165,) but the permission thus given has not altered the nature and effect of the circumstances which the defendant thus offers to prove. Whether, if proved, they will operate upon the minds of a jury so as to reduce at all the amount of damages, is still uncertain; and this uncertainty necessarily takes from them the character of a legal bar, in whole or in part, to the plaintiff’s recovery. The true and sole design of this new provision in the code, is to enable a defendant, by giving notice of his intention, in his answer, to prove upon the trial circumstances in mitigation of damages, even when he has. pleaded and failed to prove the truth of a defamatory charge; thus relieving him from the operation of the rule, which was established as law by the memorable decision of the court of errors in Root v. King, (7 Cow. 613.)

Perhaps there are few who have reflected upon the subject, who will not approve of this design, although some may be disposed to think, that its object might better have been attained by a direct repeal of an objectionable rule of law, than by an anomalous change in the forms of pleading.

It is an error to suppose that the plaintiff can be prejudiced by the construction which I give to this new provision in the code. By considering the allegation of mitigating circumstances, not as a defence, but as a notice merely, the plaintiff will be freed from the necessity of replying, as well as of demurring to this part of the answer, and will have his election upon the trial, to controvert the truth of the facts alleged, or deny their admissibility in evidence. The code, indeed, provides, that every material allegation in a complaint or answer, which is not specifically controverted by the opposite party in his answer or reply, must be taken as true; (Code, § 168;) but the effect of this provision depends entirely upon the interpretation of the word “ material.” And as the code has not defined its meaning, it must, of course, be understood in its old and established sense. Adopting this, no allegation can be deemed material, unless an issue taken upon it, whether of law or fact, will decide the cause, so far as relates to the particular cause of action to which the allegation refers. (Stephens on PI. 99, 130, 240.) Hence a defendant was not only not required, but was prohibited, from taking issue upon matter in aggravation of damages stated in the declaration, since, whether such matter be true or false, the plaintiff may still be entitled to recover. (1 Yen tris, 54; 1 Lev. 283 ; Steph. on PI. 243.) ’

And, exactly for the same reason, a denial of circumstances in mitigation would be an improper and immaterial issue. A plaintiff alleging matter in aggravation, if he relies upon it, although it is not traversed, must prove it upon the trial; and such also must be the obligation of a defendant, who alleges mitigating circumstances which are not denied in a reply.

I will allow the plaintiff to withdraw his demurrer upon payment of costs; but if he wishes to appeal, I must render judgment against him. (The plaintiff’s counsel acquiesced in the decision, and withdrew the demurrer.)


author: Duer, J.,

text:
    Comstock v. Halleck and Miller.
    Two defendants, who appeared by the same attorney, put in separate answers, to which the plaintiff demurred. The demurrers were allowed, with leave to the defendants to amend on payment of costs. Held, that the plaintiff was entitled to a separate bill of costs against each defendant.
    Where a demurrer is noticed for the general term, and placed on the calendar, is then ordered to be heard at the special term, and is placed on the calendar and heard at special term during the same month for which it was so noticed, the prevailing party cannot tax a fee of ten dollars for the general term. He is entitled only to the fee of fifteen dollars for the argument at the special term.
    October 24, and 31, 1851.
    In this case, the defeúdants put in separate answers by the same attorney, to which the plaintiff demurred. The demurrers were noticed for argument at the October general term, and placed on the calendar, under section 255 of the code as amended in 1851. The general term ordered the demurrers to be heard at the special term. The cause was thereupon placed on the October special term calendar and argued.
    The plaintiff succeeded on the demurrers, and claimed to tax separate bills of costs; the defendants being allowed to amend on payment of costs. After this question was disposed of in his favor, as noted below, a further question arose on the adjustment of the costs. The plaintiff claimed, besides the fifteen dollars allowed by the code for the argument of the cause at the special term, the fee of ten dollars given “ to either party for every circuit or term at which the cause is necessarily on the calendar and not reached, or is postponed, excluding that on which it is tried or heard.”

      E. D. Culver, for the plaintiff.

      J. P Crosby, for the defendants.
   Duer, J.,

held that the plaintiff was entitled to tax against each defendant a separate bill of costs on his demurrer to each answer, the defences being several, and a distinct issue of law raised by each. Defendants can always obviate this consequence by joining in their answer.

The other question came before Sandeord, J., who decided that the fee of ten dollars could not be taxed. The cause was heard at the October term, for which the fee is claimed. The transfer from one calendar to another does not alter the case. There was but one term of the court within the meaning of the code. The cause was reached, and it was not postponed. (Both decisions were made with the concurrence of all the justices of the court.)


author: Sandfokd, J.,

text:
    Dolan v. Petty and Mullins.
    The court will not make an order for payment, under the last clause of the fifth subdivision of section 244 of the code as amended in 1851, unless the answer admits a specific sum to be due.
    Such au admission is not made by an answer which traverses the plaintiff’s claim, and adds that he is not entitled to more than a sum named, less than that in the complaint.
    The court cannot send to a sheriff’s jury for trial, a cause in which there is an issue of fact.
    October 31, 1851.
    Complaint for work, labor, and services, in making certain militia uniforms at seventeen dollars each-. The answer traversed the plaintiff’s claim as stated, and then set forth that the clothes made were not worth more than twelve dollars each. The plaintiff thereupon moved for an order that the defendants satisfy the plaintiff’s claim to the extent of $12 for .each-uniform, and that a writ of inquiry be executed before the sheriff and a jury with respect to the residue of the claim.

      B. H. Morris, for the plaintiff.

      li. L. Clinton, for the defendants.
   Sandfokd, J.,

with the concurrence of all the justices, denied the motion. He said, the court will not make an order under the last clause of subdivision fifth of section 244 of the code as amended in July, 1851, unless the answer clearly admit a specific amount to be due. Here the defendants do not distinctly admit any sum to be due. They deny the claim made, which was for an agreed price, and say the work was not worth more than a less price named. We feel impelled'to be strict and guarded in making orders under this stringent remedy.

As to the writ of inquiry, the court has no authority to send an issue of fact to be tried by a sheriff’s jury. (Code, § 252.)


author: Campbell, J.,

text:
    Stephens v. Moore.
    An order giving the plaintiff further time to serve his complaint, cannot be granted ex parte, aftér the time for serving it has expired. It must be obtained on notice, or an order to show cause, served on the defendant.
    November 13, 1851.

      J. O. Robinson, for the plaintiff.

      R. G. Campbell, for the defendant.
   This was decided by

Campbell, J.,

at chambers, with the concurrence of all the justices. After the time for serving the complaint, prescribed by section 130 of the code, had expired, the plaintiff applied to one of the justices of the court, ex parte, and obtained an order giving him five days further time in which to serve the complaint. It was held that under section 405 of the code, an order enlarging the time, &c., could not be made, after the time had actually expired, unless the adverse party had notice of the application.


author: Sandford, J.,

text:
    Sturtevant v. Fairman.
    Where ati order requires a party to amend or tlie like, and directs him to pay costs, the payment of the costs is not a condition precedent to the amendment. . In order to have that effect, it must be expressed to be on payment, cite., or in other equivalent express terms.
    November 13, 1851.
   This point was decided by

Sandford, J.,

at chambers, with the concurrence of all the justices. ' On the plaintiffs motion an order was made requiring the defendant' to make his answer more definite in certain particulars, and directing him to pay tbe plaintiff ten dollars costs of the motion. The defendant then tendered a definite answer, but did not pay or offer the costs of the motion, for which reason the plaintiff refused to receive the answer, and proceeded as if no such answer had been offered. On a subsequent motion, the practice was settled as above stated.

L. B. Marsh, for the plaintiff.

G. L. Isham, for the defendant.


text:
    The Holyoke Bank v. Haskins.
    In a suit by a foreign corporation, the complaint need not state the act of incorporation or charter at large, or even by the title of the act or grant, or the date of its passage.
    November 13, 1851.

      F. B. Marie, for the plaintiffs.

      M. G. Gray, for the defendant.
   This point was ruled by

Campbell, J.,

with the concurrence of all the justices of the court, on a demurrer to the complaint argued before him at the special term. The counsel referred to 2 Eev. St. 457, 459, §§ 1 and 13.


text:
    Mitchell v. Montgomery.
    In exercising the discretion of the court as to issuing commissions to tafce testimony, the court will not allow one to issue, where the object is to procure cumulative testimony on a point on which there was conflicting evidence at a former trial, and the expense of executing the commission will exceed the amount involved in that point.
    November 15, 1851.
    Motion by tbe defendant for a commission to examine a witness in California. Tbe claim in suit was for demurrage of a ship. The causé was once tried and the plaintiff recovered for nine days demurrage at fifty dollars a day. The court, on a case made, granted a new trial, unless the plaintiff would reduce his verdict to fifty dollars, which he declined to do. The cause was again noticed for trial.

      II. D. Sedgwiclc, for the defendant.

      W. M. Evarts, for the plaintiff.
   Oakley, Ch. J.,

(with the concurrence of all the Justices.)— The defendant has sufficiently accounted for his omission to examine this witness conditionally or on the former trial, and for the delay in making this application. But it appears the witness is expected to testify to a point on which, there was conflicting evidence on the trial. We consider it a dangerous practice to issue a commission for such a purpose ; a practice we are not at all disposed to encourage, though we will not say that there may not be a case in which it would be proper. Here, so far as this witness is concerned, the whole controversy is respecting two days demurrage at fifty dollars a day. The granting of a condition is discretionary; and under the circumstances stated, with the fact that the expenses of both parties in executing it will greatly exceed the sum to be influenced by the testimony, we think the cause should not be delayed to examine the witness.

Motion denied.


author: Oakley, Oh. J.,

text:
    Hoard v. Garner.
    Where a remittitur from the court of appeals contained a direction that the respondent should recover his costs in that court, and also interest on the judgment below “ by way of damages for the delay and vexation caused by the bringing of the appeal,” it was held, that the respondent was not entitled to recover double interest on the judgment, once as interest under the statute, and again as damages on the appeal.
    The statute authorizing the appellate court to award such damages in its discretion, seems to contemplate the granting of a specific sum as and for damages.
    November 15, 1851.
    The defendant appealed from the judgment in this cause, (ante Yol. 3, p. 179,) to the court of appeals, where the judgment was affirmed, October 25th, 1851. The remittitur from that court was filed with the clerk of this court, the costs were adjusted, and the original judgment and interest thereon together with those costs were paid. The plaintiff claimed in addition, a further sum equal to the interest on the judgment, by way of damages on the appeal. The clause in the remittitur on which this claim was founded, was in these words:
    “And it is further ordered and adjudged, that the respondent recover against the appellant his costs of appeal in this court, and also interest on the amount of the judgment of the superior court by way of damages for the delay and vexation caused by the bringing of the appeal in this cause.”
    The question was presented on a motion to enter judgment upon the remittitur.

      G. JET. Smith, for the plaintiff.

      H. D. Sedgwick, for the defendant.
   Oakley, Oh. J.,

(with the concurrence of all the Justices.)— We have come to the conclusion that the plaintiff is not entitled to this double interest. ■ This formula has been used in remittiturs from the court of errors for many years. It was adopted at a period when judgments did not bear interest. At common law interest was not collectible on any judgment. The statute at first allowed its collection on judgments recovered upon contract ; and finally, in 1844, the statute extended the provision to all judgments. The statute relative to writs of error and appeals provides that on the affirmance of a judgment, the defendant in error shall recover “ damages for the delay and vexation, to be assessed in the discretion of the court of error,” and on an appeal, “ the court may, in its discretion, award damages for the delay and vexation caused by such appeal.” (2 R. S. 618, §§ 32, 35.) It seemed to contemplate that the court, whenever it exercised the discretion conferred, should award some specified amount as and for damages.

It is argued that as interest is now recoverable on all judgments, this clause in the remittitur is nugatory, unless it have the effect to give double interest, and so we consider it. The formula used is not an assessment of damages under the statute giving damages, and it does not show to us clearly that the court intended to give any thing as damages beyond the interest on the judgment once computed. The clerk of the court of appeals, in a letter which was produced on the motion, states that the court never allows double interest. And we think that on principle, we ought not to allow the double interest claimed by the plaintiff.


author: Oakley, Ch. J., Duer and. Sand-, ford, Justices.)

text:
    Castellanos v. Jones.
    Where security for costs has been filed pursuant to an order, and twenty days have elapsed without objection to the amount of the bond, the court will not entertain an application for an increase of the amount of the. security.
    November 29, 1851.
    The defendant obtained an ex parte order requiring tbe plaintiff, a non-resident, to file security for costs. The plaintiff’s attorney immediately prepared and filed as such security a bond in the penalty of $250, notified the same to the defendant, and proceeded to trial. No exception or objection was taken to the bond or the sureties. More than twenty days after notice of filing it was served, the defendant moved, that the plaintiff should give further or additional security for costs, on affidavits showing that the defendant’s costs in the suit were already greatly beyond $250, and that the plaintiff was proceeding to obtain a new trial.

      A. L. Brown, for the defendant.

      H. P. Hastings, for the plaintiff.
   Oakley, Ch. J.,

(with the concurrence of

Duer and. Sand-, ford, Justices.)

The question is, whether the court will entertain, this application after twenty days have elapsed without objection to the bond, and after considering the point we conclude that the motion should not be granted.

When a bond is executed in the lowest penalty that the stat-; ute prescribes, (2 R. S. 620,) and the defendant does not object to it within the time permitted him for excepting to the sureties, he will not afterwards be heard to object to the amount. We will not say that we will not order the penalty to be larger on sufficient cause shown in the first instance, but here the party comes too late.

Motion denied.


author: Oaklet, Ch. J., Sandford and Duer, Justices.)

text:
    Arnold v. Dimon and another.
    A defendant -will not be permitted to set up two defences which are inconsistent with each other, and one of which, from its nature, must be within his personal knowledge.
    Thus, a carrier by water will not be permitted to answer, 1. That he was not the owner of the vessel; and, 2. That the property shipped was delivered to the plaintiff.
    November 29, 1851.
    Motion to strike out part of an answer. The complaint alleged that certain merchandise was shipped at Charleston, on board a ship of the defendants, to be delivered to the plaintiff at New York, and that it had never been delivered. The answer set up, 1. That the defendants were not the owners of the ship. 2. That the merchandise was brought to New York and delivered to the plaintiff.

      T. J. Glover, for the plaintiff.

      G. F. Betts, for the defendants.
   Oaklet, Ch. J.,

(with the concurrence of

Sandford and Duer, Justices.)

The answer sets up two distinct defences. The first, if true., puts an end to the claim, and the fact averred is .within the defendants’ personal knowledge. We think the rule must be, that where facts are alleged in an answer, which from their nature must be within the personal knowledge of the defendant, and which, if true, are a complete answer to the claim, he shall not set up in addition another state of facts not consistent with the previous defence. Here the defendants must rely upon one or the other of these defences, and they may elect which they will retain. They cannot stand upon both. If they were not owners of the ship, it is no matter to them whether the goods were delivered or not. If they were the owners, they ought not to deny it, and if the goods were delivered, or there was some. good cause for not performing their contract, let them state that defence and rely upon it.

Motion granted.


author: (Mason, J.,

text:
    Stone v. De Puga, impleaded with A. B. Tripler.
    Pacts, and not the evidence of facts, are to be pleaded, in suits for legal relief.
    In a suit on a note, against one sought to be charged as a general partner, who was ostensibly a special- partner with the trader who made the note, the proper course is to charge the defendant in the complaint as a general partner, and if the special partnership be ,set up as a defence, then to state in reply the acts alleged as constituting him a general partner. If such acts be set forth in the complaint, they will be stricken out on motion.-
    (Before Oakley, Oh. J., and Sandford and Duer, J. J.)
    December 6, 1851.
    Motion to strike out part of a complaint. The action was on a promissory note made by Tripler in his own name. The complaint stated that fact, that the note was given for goods sold to the firm of A. B. Tripler, that the defendants composed the firm or partnership doing business in that name, and commenced business as such partners, and that the note was made by the firm or partnership. The complaint then set forth a special partnership entered into between Tripler and Be Puga, in which the latter was the special partner, and it charged various acts done by them, which, under the statute, would make Be Puga liable as a general partner, such as his not putting in the capital specified, his withdrawing capital, and the like. The defendant moved to strike out all of the complaint that related to the special partnership and the acts done under it.

      W. G. Noyes, for Be Puga.

      D. JE. Wheeler, for the plaintiff.
   By the Court,

(Mason, J.,

concurring.) — The rule of pleading, in actions for- a legal remedy, is the same as formerly in this, that facts,-and not the evidence of facts, must be pleaded. This suit is brought to charge JDe Puga as a dormant partner, doing business under the style and firm of A. B. Tripler.” The objection to this portion of the complaint is, that the matters stated are evidence to prove him to be such general partner. He is thus called upon to answer on oath these matters of evidence, and is thereby compelled to make a discovery in his answer, which under the code the plaintiff has no right to demand.

We think the regular and proper course was for the plaintiff to charge De Puga in the complaint as a general partner. In his answer' he will set up the special partnership, and the plaintiff may then reply 'the facts on which he relies to show that he was not a special, but a general partner.

Motion granted.


text:
    Fraser v. Phelps.
    Where an action against a trustee for an. account is referred to a referee to determine the issues and take and state the account, the court will grant to the referee power to compel the production of books and papers.
    Upon amotion for an, attachment for disobedience of an order for production made by the referee, the court will look into the propriety of the order.
    The code does not limit or abridge the powers which courts of equity were accustomed to exercise in suits for an account.
    (Before Oakley, ,Ch. J., and Duee and Campbell, J. J.)
    December 13, 1851.
    This was an appeal from an order made at chambers, giving power to the referee to compel the production of books and papers containing evidence relating to the merits of the action or defence, and in the possession, or under the control of either of the parties. It was insisted on the part of the defendant, who was the appellant, that this power could not be delegated to a referee, but under tbe terms of section 388 of tbe code, could only be exercised by the court in term, or by a single judge. It was also urged.as a strong reason for not granting the power, upon the supposition that it might be granted, that its improper exercise by the referee might be the cause of irreparable mischief, since, as it would not be in the power of the court to review his decision until the coming in of his final report, it might be under the necessity of punishing disobedience by an attachment, although it might afterwards be convinced that the order disobeyed ought never to have been made.

      B. F. Butler, for the defendant.

      H. W. Warner, for the plaintiff.
   By the Court.

Duer, J.

We think it needless to determine in this case, whether, in an action at law, properly so called, an authority may be given to a referee to compel the production of books and papers, although it seems to be reasonable that he should possess the power, in all cases in which he is authorized to determine all the issues in the cause. But, as we have frequently had occasion to say, the code has not abolished the essential distinctions between suits at law and in equity, nor ought it to be construed as limiting and abridging the powers which, in suits like the present, courts of equity have been accustomed to exercise.

The object of the complaint in this case is to compel the defendant to render and settle his accounts as a trustee, with the plaintiff as a cestui que trust. The suit is therefore equitable in its nature, and it will be the duty of the referee, under the terms of the original order, not only to determine the issues made by the pleadings, but to take and state the accounts between the parties. The same duty is therefore imposed upon him, that, when a decree for an account was made, was formerly imposed upon the master, to whom the taking of the account was referred; and to enable him to perform that duty, he ought to be clothed with the same authority. Although the power of compelling the production of books and papers, -which in this case is given to the referee, is expressed in the language of the code, yet it is substantially the same, and certainly not more extensive than that which in similar cases it has been the invariable practice of courts of equity to confer upon the master, and which hitherto has been judged indispensable to the proper discharge of his duties.

As to the second objection, we are of opinion that upon the hearing of a motion to show cause why an attachment should not issue against a party disobeying an order made by a referee, the question whether the order was properly made may be determined by the court, and all the relevant facts be brought before us either by a special repqrt from the referee, or by affidavit. By this course of proceeding, the objection which, when first stated, it seemed to us difficult to answer, is completely obviated.

The order appealed from is affirmed, but without costs, as the question, from its novelty and importance, was properly brought before us.


author: Bosworth, J.,

text:
    Gilmartin v. Smith.
    The adjustment of costs without notice, where the adverse party is entitled to notice, does not affect the regularity of the entry of judgment.
    The insertion of the costs' in the entry of the judgment, is irregular, and will be vacated; as also the judgment roll, the docket of the judgment, if perfected, and the execution, if issued.
    The case of. Elson v. The JY. Y. Equitable Insurance Go., (2 Sand. S. O. R. 654,) qualified and limited to the proceedings subsequent to the entry of the judgment.
    A plaintiff, whose proceedings subsequent to the defendant’s default and the entry of judgment were irregular, refused to open the default or vacate such proceedings, on a suitable explanation and offer on the part of the defendant; on the defendant’s motion to set aside the proceedings and the default, costs were given against the plaintiff.
    January 10, 1852.

      The defendant on affidavits, &c., moved to set aside the judgment and execution in this action.
    The summons, with a complaint upon a note made by the defendant, was served on him personally, December 1st, 1851. The defendant intended to defend the action, but mislaid the papers, and on looking for them could not find them. Having the impression that only a summons had been served, on the the 22d of December, he caused notice of appearance by A. J. Yanderpoel as his attorney to be served on plaintiff’s attorney, together with a written demand of a copy of the complaint.
    No attention was paid by plaintiff’s attorney to either the notice or the demand. Defendant’s attorney discovered on the 27th of December, that a copy of the complaint had been served with the summons, called on the plaintiff’s attorney to obtain time to answer, and was then informed that a judgment had been entered and execution issued on it, on the 23d of December. Costs of the action were inserted in the entry of judgment without any service on defendant’s attorney of a copy of the same, or of a notice of adjusting them. On the 29th of December, the defendant’s attorney tendered to plaintiff’s attorney an affidavit of merits, offered to pay the costs of the default, to answer issuably, and take short notice of trial for the then next term of the court. The plaintiff’s attorney refused to open the default. He opposed the motion by an affidavit which stated that, as notice of appearance was served on the last day to answer, and a copy of the complaint was also then demanded, he then believed, and still believes, that defendant’s only object in serving the notice was to procure delay.

      A. J. Yanderpoel, for the defendant..

      O. W. Sturtevant, for the plaintiff.
   Bosworth, J.,

(all the Justices concurring.) — The defendant insists that, according to the settled practice of this court, the entire judgment is irregular, and should be set aside on that ground. He relies on Elson v. The New York Equitable Insurance Company, 2 Sand. S. C. R. 654, and also cites The Bank of Massillon v. Dwight, 2 Code R. 49; and Doke v. Peck, 1 Code R. 54. (Tide, contra, Goldsmith v. Mapes, 2 Code R. 49, and Dex v. Palmer, 5 How. Pr. R. 233.)

The mistake in respect to the provisions of the code, which induced the decision made in The Bank of Massillon v. Dwight, and in Doke v. Peck, is disclosed by the last sentence of the opinion in the latter case of the learned judge before whom the motions in those two actions were heard. It states that, “ now the clerk adjusts the costs, and then enters up judgment,” &c.

If the proceedings are conducted according to the code, the judgment is to be entered before the costs are adjusted. When the time to answer espires, it is the duty of the clerk, on being furnished with the summons and complaint, proof of due service thereof and that no answer has been received, to “ enter judgment for the amount mentioned in the summons.” (Code, § 246.) This must be entered in a book for the entry of judgments,” to be kept by him and to be called the “judgment book.” (§§ 279 and 280.) So much might regularly have been done, and so much it was the duty of the clerk to have done, on the 23d of December. It is difficult to understand why the entering of a judgment for the debt, which was regular, should itself become irregular, because the costs were afterwards inserted in the entry of judgment without notice. The inserting of the costs was irregular, and only that; that, and only that, should be stricken out as irregular. There seems to be no more reason for vacating the entry of judgment for the amount due, than for setting aside the summons and complaint. So much of the proceedings as are irregular should be set aside, while those that are regular should not be vacated on the mere ground of irregularity, on account of subsequent irregular proceedings.

The code provides then, that when a plaintiff is entitled to judgment, the clerk shall enter in a book for the “ entry of judgments,” (Code, § 279,) á judgment, for the amount mentioned in the summons, if entered under subdivision 1 of § 246 of the code, or if entered under § 280, a judgment that “ shall specify clearly the relief granted, or other determination of the action.” That upon two days notice, &c., the clerk shall insert in the “ entry of judgment, the costs and charges.” (Code, § 311.)

“ A copy of the judgment” is to be annexed to the other papers specified in § 281; all are to be filed and together constitute the judgment roll. This copy of the judgment necessarily means a copy of the judgment entered in the judgment book. The costs having been irregularly inserted, it would follow that the words of such insertion should be stricken from the entry of judgment, and that the judgment roll and the docket of the judgment should be vacated. So much is irregular, and no more. The judgment for the amount mentioned in the summons is regular. Subsequent irregularities do not invalidate or affect that. That should not be set aside as irregular. If the defendant procures that to be set aside and liberty to answer the complaint, it must be on other grounds than irregularity. If only the irregular proceedings are set aside, the defendant would have no right to put in an answer. The plaintiff might then, on two days notice, have his costs inserted in the entry of judgment, file a judgment roll, and issue execution.

I think, however, that the affidavits show a state of facts which make it proper for the court to vacate the whole judgment and give the defendant liberty to answer. The only question is, upon what terms, if any, the relief should be granted? The insertion of the costs in the entry of judgment, the filing of the roll and docketing of the judgment being irregular, it is the right of the defendant to have them vacated on that ground; and also to have the execution set aside. The terms offered were such as the plaintiff should have accepted. Not accepting them, but insisting on his irregular as well as his regular proceedings, he is not entitled to costs, but should pay cost to the defendant. An order will therefore be entered,’ vacating the judgment and setting aside the execution, (upon the defendant’s stipulating not to bring any action by reason of any levy under the execution,) and giving the defendant ten days time to answer the complaint and directing the plaintiff to pay to the defendant ten dollars costs of this motion; the issue to be dated as of the 22d of December, 1851, unless the answer be replied to, and in that event, so many days after that date'as shall elapse between the service of the answer and of the reply thereto.


text:
    Wiggins v. Arkenburgh.
    In a suit- for a partnership account, a fee for the trial of issues of law, is taxable on the cause being heard on the special term calendar, and a reference to take an account directed.
    Where there are issues of fact in an equity case, and on the reference of the cause, the referee determines the questions of fact involved, the prevailing party is entitled to the fee for the trial of issues of fact, although the order of reference reserve all other questions.
    On a motion for a re-hearing in such a case, before the general term, a fee for the trial of issues of law is taxable.
    January 17, 1852.
    This was a suit for an account of a joint adventure. The cause was on the calendar for hearing at the special term in .June last, and the judge, after hearing counsel, made an order referring the cause to a referee to take an account between the parties, and to report the amount due from the defendant to the plaintiff. The order contained the usual powers and directions, and reserved all further questions until thb coming in of the report. The referee took the account, and reported a balance due to the plaintiff.
    The defendant prepared to move to set aside the report, or for a re-hearing, and both parties noticed the cause for argument for the November and December general terms. The motion was not made, and the plaintiff had judgment for the amount due to him -with costs. On adjusting the costs by the clerk, he allowed to the plaintiff the following items : Trial fee at special term, $15; trial'fee before referee, $20; term fee, November term, $10 ; trial fee, December term, $15. The defendant objected to the allowance of more than one trial fee; and moved the court to correct the adjustment.

      T. J. Gbver, for the defendant.

      H. A. Oram, for the plaintiff.
   Sandford, J.,

with the concurrence of all the Justices, held that the trial fee at the special term was properly allowed, the cause being on the calendar, and the issue of law being disposed of, so far as to decide that an account should be taken.

The issues of fact in the case appear to have been all tried before the referee, and in all equity cases where there are issues of fact, and the reference determines those questions, the proceeding before the referee is, in regard to costs, the trial of the issues of fact in the cause. The points of law consequent on his report were reserved, and the trial before him canuo't therefore' be deemed a trial of the issues of law also. The clerk should have allowed only fifteen dollars for the trial before the referee.

The subsequent fee at the general term was taxable. The cause was on the calendar on the motion for a re-hearing. Where there is no argument on the equity reserved, and judgment is at once entered pursuant to the report, the court is not inclined to allow a fee as for the trial of an issue of law, on moving for such judgment.


text:
    Post v. Westervelt.
    Where the plaintiff, ia a suit commenced before the code, omitted to try his suit when called, by reason of which it was placed at the bottom of the calendar at the next term, and although noticed, was for that cause not reached on the calendar, but the plaintiff had been placed under a stipulation to try the cause at the last-mentioned term; it was held, that he was entitled to the costs of that term as costs in the cause.
    January 11, 1852.
   The above point was ruled by

Sandford, J.,

with'the concurrence of all the Justices. At the June term, 1850, the plaintiff noticed the cause for trial, it was reached and called on the calendar, but the plaintiff did not move it. By the statute, it thus became the clerk’s duty to place the cause on the calendar, when again noticed, as of the date of its being so called. The defendant moved for judgment as in case of a nonsuit, from which the plaintiff was relieved on paying costs and stipulating to try the cause at the next term. He accordingly noticed the cause for the next term, but it was not reached on the calendar. It would have been reached, if it had stood upon the date of the issue as it was prior to the neglect to try it at the June term.

A. L. Brown, for the defendant.

L. 8. Thomas, for the plaintiff.


text:
    Currie v. Baldwin.
    A motion for judgment on the ground that a demurrer put in to the complaint is frivolous, may be made, although twenty days have not elapsed since the service of the demurrer. If, within the twenty days allowed for amending, the party so amend the demurrer that it is no longer frivolous, the motion will be denied without costs.
    January 17, 1852.

      A. J. Vanderpoel, for the plaintiff.

      L. 8. Thomas for the defendant.
   The above points were ruled by

Sandford, J.,

at chambers, with the concurrence of all the Justices.


author: Sandford, J.,.

text:
    Church v. Erben.
    Under the code of procedure as amended in 1851, the report of a referee, after a trial before him, must, in the first instance, state separately the facts found and the conclusions of law.
    January 17, 1852.
    The action was for lumber sold and delivered at various times, part of wbicb had been paid for. Issue was taken on the price and value of the lumber, as well as the amount. The cause was referred to a sole referee, to report upon the whole issue. In December, he made his report, finding in the general form heretofore used in actions at law, that there was due to the plaintiff, $248.82. There was no statement of the facts found, or conclusions of law, and on this ground the defendant moved to set aside the report as irregular.

      S. Smales, for the defendant.

      F. B. Sherman, for the plaintiffs.
   Sandford, J.,.

(with the concurrence of all the Justices.)— The statute is so explicit that it seems to us there is no room for doubt on the subject. It is true, the necessity for these special matters in the referee’s report, under the code of 1848, arose from the provision in section 222 of that code, which, on a trial by the court, required the judge’s decision to contain the facts found by him and then the conclusions of law upon them; and that this provision was omitted in the corresponding section (§ 267) of the code of 1849. Hence under the latter code, a general report by a referee was proper in the first instance, and we provided for a report of the facts and law, when necessary, by our 18th general rule adopted January 18th, 1851.

But the amendments made to the code in 1851, while they leave trial by the court as it was enacted in 1849, have en-grafted upon “ Trial by Referees,” the provision as to stating the facts and conclusions of law, which in the code of 1848 was applied to trials by the court. In order to give to § 272 of the existing code the construction sought by the plaintiffs, it is necessary to interpolate the words “ when required by a rule of court,” or the like, which we have no right to do.

The practice enforced by the provision in question is a very salutary one, and although in a majority of instances there is no occasion for the special finding, in reference to any ulterior action on the report, the labor of complying with it in those instances will be quite insignificant. In those cases where the report is likely to be reviewed, the statement of its grounds can be made while the subject is pending before the referee, with much less labor to himself and more satisfactorily, than -it can after the cause has passed from him and its circumstances are no longer fresh in his mind.

The report is clearly irregular, but the plaintiff may supply it by a supplemental report on payment of the costs of the motion.


text:
    Caroline Heyde v. Charles L. Heyde.
    In an action for a divorce on the ground of adultery, an order of reference on the default of the defendant to answer will not he made, where the complaint contains no specification of the person with whom, or the place where, the offence was committed.
    An allegation that the defendant, in November, 1851, committed the offence in the city of New York, with a female whose name is unknown to the plaintiff, and the particular circumstances of which are unknown to the plaintiff, will not suffice. ■
    If the person be unknown, the complaint should state particularly the place where the offence occurred, as at a house specified, or the like.
    January 17, 1852.
   The above points were held by

Sandford, J.,

at special term, wjth the concurrence of Duer, Campbell, and Bosworth, J. J. Upon- the default of the defendant to answer, a motion was made by the plaintiff for a reference to take proof of the adultery charged in the complaint. The charge in the complaint was, that the defendant, since the marriage, viz., in the month of November, 1851, committed adultery with a female in the city of New York, whose name is unknown to the plaintiff, and the particular circumstances whereof are unknown to the plaintiff, but which she expects to be able to prove at the trial of this cause.”

The judge said it would be dangerous to proceed on such an indefinite allegation. ^ If the party have information sufficient to warrant the belief that the offence has been committed, or the expectation that it can be proved on the trial, that information must extend, at least to the particular place or locality where it occurred, though the name of the person with whom may be unknown. He referred to Wood v. Wood, 2 Paige, 113; Codd v. Codd, 2 J. C. R. 224; and 2 Barb. Ch. Pr. 256.


author: Paine, J.,

text:
    Anonymous.
    It is no objection to a notice of the adjustment of costs, that it was given before the right to recover costs was established, provided the right to such costs as were noticed .exist at the date for which the notice was given.
    So held, where the plaintiff, in an action for money only, in anticipation of a default, gave notice of adjusting the costs to which he would be entitled on taking judgment by default, for a day subsequent to the time when he could regularly enter the default.
    January 22, 1852.
   The above points were held by

Paine, J.,

at chambers, with the concurrence of all the Justices, on a motion to set aside the adjustment of the costs on the ground of irregularity. The notice of adjustment was given before any default was entered or was due; but at the time specified in the notice, the default for not answering had been entered, and the plaintiff was entitled to judgment for such costs as he had inserted in his notice.


author: Sandford, J.

text:
    Todd v. Crooke.
    In a proceeding supplemental to an execution, where other creditors have commenced like proceedings, they are entitled to notice of an application for a receiver, but not to service of a copy of the examinations on which it is founded.
    The proceeding is summary, and in theory it follows directly on the close of the debtor’s examination, he being present and no notice being necessary.
    Where other creditors are proceeding they must have notice, and so must the debtor when his examination has been taken before á referee.
    Although it appear by the debtor’s examination that the property, which the judgment creditor seeks to reach as his, is such and so situated, that the creditor may seize it on a new execution, he will not be driven to that remedy if the property be claimed by a stranger. He may have a receiver, and contest in a suit brought by him-, the title to the property.
    January 31, 1852.
    Proceeding supplementary to an execution returned unsatisfied. It appeared by the examination of the judgment debtor, that he had formerly owned, or was in possession using as his own, certain vessels navigating the Hudson river; but which he alleged were all bought for, or were now owned by, his sisters. That these vessels were laid up for the winter season, at a designated place, where a new execution might .be levied upon them without difficulty.
    It also appeared that several other creditors had instituted similar supplemental proceedings against this defendant. The plaintiff now applied for the appointment of a receiver of the defendant’s property, under sections 298 and 299 of the code. Notice of the application had been given to all the creditors who were proceeding in the same manner, but no copy of the examinations was served with the notice.

      P. A. Cowdrey, for the plaintiff.'

      P. S. Oroolce, for the defendant.

      J. Moncrief and B. Ten Broedc, for other creditors.
   Sandford, J.

The counsel for one of the other creditors objected preliminarily that the plaintiff ought to have served on the other creditors, a copy of the debtor’s examination and other papers on which his application is made. The proceeding of the objecting creditor, it was said, was prior in time to the plaintiff’s, and it being in the nature1 of the former judgment creditor’s suit, is prior in right'.

The objection is not well founded. This is a summary proceeding. In theory, the application for a receiver, is made to the judge at the time the examination is taken, founded upon it, without any copy being made by or for either party. The examination is taken in the presence of the judge, and at its conclusion, the defendant being present, the plaintiff moves upon it at once.

This is the usual course. When the examination is directed to be taken before a referee, the application is still made upon the original examination, but the defendant must have notice of the time and place. So in all cases where it appears that other creditors are proceeding against' the debtor in this mode, the code, as amended in July last, requires notice of the application to be given to such creditors. But it requires nothing more. It places the practice on the same footing that it was in the late court of chancery on appointing receivers in creditors’ suits.

The counsel for the judgment debtor objected that the only property claimed to have been discovered, was such as could be taken in execution, and was accessible and open to seizure and sale; and therefore the plaintiff ought to take a new execution and sell the property, leaving its claimants to bring an action to try the title, instead of resorting to a receiver. We have considered the subject, and see no reason to depart from the course pursued under the former system, for which this is a substitute. The title to the property can be tried with as little expense in a suit by a receiver, as in one brought by the adverse , claimants, and the appointment of a receiver will cost quite as little as a new execution and a levy and sale by the sheriff. (All the Justices of the court concurred in the decision made in this case.)


text:
    Lord and others v. Chesebrough and others.
    In a complaint upon an instrument for the payment of money only, if the plaintiff’s name do not appear in or upon the instrument, he must connect himself with it by some suitable averment. It does not suffice,'under section 162 of the code as amended in 1851, merely to set forth a copy of the instrument with an averment that a specified sum is due to the plaintiff thereon.
    Accordingly, where the complaint set forth a copy of a note and indorsement, by which it did not appear that the plaintiff was a party to either the note or indorsement, and then further averred that there was due to the plaintiff on the note the amount thereof with interest, it was held that the complaint was insuffi- , cient.
    An answer is not frivolous, which denies a fact essential to the plaintiff’s recovery, although there be no averment of such fact in the complaint.
    January 31, 1852.
    Motion to strike out an answer as frivolous and for judgment. The complaint states, on information and belief, that the defendants made and indorsed a promissory note, of which the following is a copy:

      “ New Yorlc, March 15, 1851.
    “ $2261.01. Eight months after date we promise to pay to the order of Chesebrough, Stearns & Co., twenty-two hundred and sixty-one w. dollars, value received in merchandise of Hammerling, Mayet & Co.
    (Signed,) “ Chesebrough, Stearns & Co.
    (Indorsed,)
    “ Chesebrough, Stearns & Co.”
    The complaint then alleges “ that there is due to the plaintiffs on the said note, from the defendants, $2261.01, with interest,” &c.; for which they demand judgment.
    The answer sets forth that the defendants have not any knowledge or information sufficient to form a belief, 1. whether or not the note was ever transferred or delivered to the plaintiffs ; or 2. whether or not the plaintiffs are the lawful holders or owners of the note. The answer also objects to the complaint that it does not state facts sufficient to constitute a cause of action.

      Soioe & Treadwell, for the plaintiffs.

      A. Hilton, for the defendants.
   Sandford, J.,

(with the concurrence of all the Justices of the court.) — The answer traverses two facts, one or the other of which must be proved to give the plaintiffs a right to maintain their suit. But neither of these facts is alleged in the complaint. It may be a fair inference that one or both are true, from the allegation that there is due to the plaintiffs on the note the pum for which it was given, but that is very different from an allegation. Although not in answer to any thing stated in the complaint, we cannot say an answer is frivolous which denies what is essential to the plaintiffs’ right of action.

We think, on-a full consideration of the subject, that the complaint is defective. It should show in some way the connection between the plaintiffs and the note, i. e., that it was indorsed or transferred to them, or that they are the holders or owners of the note. As it now stands, there is no such allegation. The indorsement as copied, if that be deemed a part of the- instrument, is in blank, and there is no averment that the note was delivered to the plaintiffs. The inference is rather, that the defendants, when they made and indorsed the note, delivered it to Hammerling, Mayet & Co., from whom the consideration proceeded.

The plaintiffs have proceeded on the supposition that section 162 of the code of procedure, as amended in July last, authorizes this mode of pleading. It provides that when the action or defence is founded on an instrument for the payment of money only, it shall be sufficient for a party to give a copy and to state that there is due to him thereon a specified sum, &c. We cannot imagine that it was intended by this to dispense with the necessity of the claimant’s connecting himself -in some mode with the instrument when his name does not appear upon it in any manner. When such is the fact, the action is founded on something more than the instrument, and that something must be averred.

In this case, the plaintiffs’ names do not appear in the note or the indorsement. The action is founded not only on what does appear by a copy of the instrument, but upon the fact that the note was delivered to them on its transfer by the blank indorsement, or that they became the holders or owners of the note. The 162d section of the code does not relieve the plaintiffs from making one or the other of these averments. Without anticipating other questions that are suggested by this new provision of the code, we are clear that this complaint is insufficient.

It was said that this amendment of section 162, was a virtual re-enactment of the statute which allowed a copy of a bill or note to be served with a declaration on the money counts against all or any of the parties. Rut that statute made no change in the form or rule of pleading. The defendant, in a suit under it, never pleaded to the bill or note indorsed on the declaration; his plea was to the declaration itself, the common counts. Hence, there is no analogy between the two enactments so far as the question of pleading is concerned.

Motion denied, without costs, and with leave to the plaintiff to amend his complaint.


text:
    Cooper v. Jones.
    After a demurrer to an answer, the defendant may serve an amended answer of course within twenty days, although before demurringto the answer the plaintiff had obtained on motion an order to strike out parts of it, with leave to the defendant to amend on terms, which he had not done.
    The only limit in the code to the right to amend of course after a demurrer is, that it shall not be done for the purpose of delay.
    February 5, 1852.

      F. Sayre, for the defendant.

      F. F. Treadwell, for the plaintiff.
   These points were held by

Sandfokd, J.,

at special term, with the concurrence of all the Justices. The question arose on the defendant’s motion to strike the cause from the calendar, where it had been placed on the demurrer to the answer.

The plaintiff, on motion, obtained an order, December 20th, 1851, to strike out of the answer certain portions to which he objected, with leave to the defendant to amend the answer on payment of costs. The time in which these terms were available to the defendant, were extended to January 13th, 1852, when he served an amended answer, but it was irregular and was the next day returned on that ground. On the 15th January, the plaintiff demurred to 'the answer originally put- in, as it was left on the parts being stricken out, and noticed the demurrer for argument at February special term. On the 20th January, the defendant served an amended answer, which the plaintiff refused to receive, except on payment of ten dollars as costs of the demurrer.

The court held that section 172 of the code gives the right to amend, of course, after the receipt of a demurrer, without any restriction as to what has previously occurred in the cause. The only exception made by the code is, that the party shall not amend for the purpose of delay. If it be made for delay, the court will strike it out or impose terms on the party.

Motion granted.


author: (Sandford, J.,)

text:
    Watrous v. Lathrop.
    A creditor cannot, by a proceeding supplementary to hia execution returned unsatiafied, reach movables which the debtor assigned for the benefit of hia creditors while the execution was in life in the sheriff’s handa.
    He might have levied his execution on such property after the assignment, but his priority over the assignee ceased when hia execution was returned without levying it.
    The lien of the execution was then spent, and the supplemental proceeding does not revive it as against the assignee.
    February 13, 1852.

      J Palmer, for the plaintiff.
    Proceeding supplementary to an execution. On examining the judgment debtor, it appeared that while the execution was in full life-in the sheriff’s hands, the debtor made an assignment of movable property, which was subject to the execution, to a trustee for the benefit of his creditors. The execution was returned wholly unsatisfied, without levying or attempting to levy, on the property in question. The assignee appeared on a summons from the judge and claimed the property. The parties consented in writing to submit their rights to the decision of the judge, with the same effect as if a receiver had been appointed and had brought a suit for the property against the assignee.
   The Justice at chambers,

(Sandford, J.,)

with the concurrence of all the Justices, decided that the assignee was entitled to retain the property. That although the plaintiff by his execution obtained a right to take the property, which, if it had been followed by a levy after the assignment would have defeated the latter, that right ceased when the execution was returned. The execution was then spent, and it could not be made to effect a lien by relation. (See Weed v. Pierce, 9 Cowen, 728, 729, per Walworth, Circuit Judge, and afterwards Chancellor.) The supplementary proceeding, being subsequent to the assignment, cannot affect the rights of the assignee.


text:
    Morris v. Brower and others.
    Where from the nature of the questions of law involved, or the amount in issue, a decision of the case or bill of exceptions at the special term will not be likely to terminate the cause, the same will be ordered to be heard in the first instance at the general term, on suitable terms for the security of the party who obtained the verdict.
    Especially will this be ordered, where there are exceptions on points ruled adversely at the trial.
    The circumstance that the party moves to set aside the verdict as against evidence, as well as on exceptions, will not prevent the order from being made. Motions and proceedings, by way of appeal from one judge to another in the same court, should always be avoided, if possible.
    February 14, 1852.
    This cause was tried in. December, and a verdict rendered for tbe plaintiff against all the defendants. They prepared a case with leave to turn it into a bill of exceptions, intending to move for a new trial both for misdirection of the judge and because the verdict was against the weight of evidence. They now apply to the'judge who tried the cause, for an order that the case and bill of exceptions be first brought to a hearing at the general term, and for a stay of proceedings in the mean time.

      8. B. H. Judah for the defendants.

      J. Anthon, for the plaintiff.
   Sandfokd, J.,

(all the Justices concurring.) — By the amendments made to the code of procedure last summer, the justice Who tries the cause, may order an intended motion for a new trial, to be made in the first instance at the general term. (Code, §§ 265, 268.) Where there are exceptions to be argued, as well as a motion to set aside the verdict on the ground of the weight qí evidence, it is a great convenience to parties and a saving of time to the court, that the exceptions and motion be heard together.

We think that in every ease, where from the nature of the questions of law presented, or the amount in controversy, a decision at special term will not be likely to terminate the cause, the better practice is to order the case or bill of exceptions at once to the general term. The circumstance that there are facts to be examined as well as points of law, should make no difference. • Especially ought this practice to be pursued, where the points of law were ruled adversely at the trial. An argument of the bill of exceptions at special term is, in such a case, nothing more than an appeal from one judge to another in the same court, which should never be permitted where it can be avoided.

Suitable terms can always be imposed, on staying the proceedings in cases like this, so that the party who succeeded at the trial shall not be deprived by the delay of the fruits of his victory.

In this instance, there is no question on that point, and as the case falls within the rule we have suggested, the motion is granted.


text:
    Reynolds v. Freeman.
    From an order sustaining or overruling a demurrer, an appeal may now be taken to the general term, without security.
    Such an appeal is an enumerated motion, the cause must be placed on the calendar, and the requisite papers be printed and furnished as in other calendar causes.
    If a judgment have been entered on the order, the appeal must be from the judgment and not from the order.
    Where the decision on the demurrer is final in the cause, giving no leave to amend, or to plead over, it should be appealed from as a judgment.
    February 13, 1852.
    In a suit commenced by Reynolds against Freeman and several others, Freeman demurred to the complaint. The demurrer was argued at the special term in December, 1851, and was allowed by the court, with leave to the plaintiff to amend. The plaintiff thereupon served a notice that he appealed from the order allowing the demurrer. At February term, 1852, he noticed the appeal for argument, placed the cause on the calendar of the general term, and when it was reached on the second day of the term, took an order by default, reversing the order or judgment below. The plaintiff did not give any security on appealing, nor serve any printed copy of the papers on the appeal, and no judgment had been entered on the demurrer when the appeal was taken. The defendant moved to set aside the order entered at the general term as irregular, insisting that the appeal was void.
    (?. F. Betts, for the defendant.

      A. Nash, for the plaintiff.
   Sandford, J.,

(with the concurrence of all the Justices.)— Section 849 of the code, as amended in July last, permits an appeal from a decision upon a demurrer, as from an order, as distinguished from a judgment. We suppose that under this provision, if a judgment have been perfected upon the decision of the demurrer, the appeal must be from such judgment, as formerly; but if no judgment have been entered, the party may appeal from the order of the judge sustaining or overruling the demurrer.

In this case, no judgment has been entered. The plaintiff was correct in appealing from the order, and on such appeals no security is required. (Allen v. Johnson, 2 Sand. S. C. R. 629.) Appeals from orders, according to our rules and practice, have heretofore been heard in the general term, on Saturdays only. If the appeals from orders allowing or overruling demurrers fall within the same class, the plaintiff was irregular in taking a default on the second day of term, which was Tuesday.

According to the 80th rule of the supreme court, demurrers are still, what they have always been deemed in our courts, enumerated motions, and such motions go upon the calendar, and are heard in their regular order. Then, as a calendar cause, the plaintiff was irregular in omitting to print the pleadings, &c., and furnish copies to the adverse party, as prescribed by rules 31 and 32 of the supreme court, and as was previously required in this court, by our general rule adopted May 26, 1849. In either view of the matter, -the plaintiff has erred in taking his default, and it must be set aside.

The court deem it a proper occasion to settle the practice on this subject. The appeal must be brought as already stated, if a judgment have been entered. Until judgment, it may be from the order drawn up -and entered in the minutes. If, however, the decision is final, giving no leave to amend or to plead over, it should be appealed from as a judgment in, all cases. Such appeals, whether from orders or judgments, are enumerated motions, and are to be placed on the calendar for argument; and the necessary papers are to be printed, served, and furnished, as are required in other calendar causes at the general term.


author: Demurrer

text:
    Schwab v. Furniss, impleaded, &c.
    On a demurrer to parts of an answer, the defendant is at liberty to raise the objection that the complaint does not state facts sufficient to constitute a cause of action; and if the objection be well taken, the complaint will be dismissed.
    February 20, 1852.
   Demurrer

to portions of an answer. On the argument at the special term before Sandford, J., the defendant took the ground that the complaint did not show facts sufficient to constitute a cause of action against him, and that therefore judgment should be given in his favor and the complaint dismissed. The argument proceeded on the questions presented by the demurrer. Before examining those, the judge took the advice of his associates on the point raised by the defendant, and with the concurrence of them all, decided that, on a demurrer to a pleading, or portions of it, the rule now is the same as it was before the code of procedure, that judgment shall be given against the party who committed 'the first substantial fault. That is, if the demurrer be to an answer, and it appear that the complaint does not show a cause of action, judgment shall be given against the plaintiff and the complaint dismissed. (Code, § 148.) If the demurrer be to the reply, the plaintiff may show that the answer is insufficient, and have judgment in his favor.

J. N. Taylor, for the plaintiff.

M. iS. Bidwell, for the defendant, Furniss.

S. Sherwood, for other defendants.

There is no more reason now than formerly, that a plaintiff should have judgment on demurring to an answer, when it appears upon the face of the record that he has no cause of action; or that the defendant should suceded on a demurrer to the reply, when it is apparent upon his answer that he has no defence.

(The judge, thereupon, looked into the complaint, and directed a judgment that it should be dismissed.)


author: Sandford, J., Duer, Paine, and Bosworth, J. J.,)

text:
    Barber v. Bennett.
    If is no objection to a motion to strike out of a pleading irrelevant matter, that tbe moving party does not show affirmatively that be noticed bis motion within twenty days from the service of the pleading.
    If the notice were not served in time, tbe adverse party desiring tbe benefit of ' that fact must show it in bis defence.
    February 20, 1852.
    Motion to strike out portions of the reply. The plaintiff made a preliminary objection, that it did not appear in the defendant’s affidavit that the motion was noticed within the twenty days prescribed by rule 43 of tbe supreme court. He cited tbe rule, and Bogers v. Bathbme, 6 How. Pr. Rep. 67.

      B. Galbraith, for tbe defendant.

      L. Gardenier, for the plaintiff.
   Sandford, J.,

(with the concurrence of

Duer, Paine, and Bosworth, J. J.,)

held that it was not necessary for the moving party to show affirmatively that his motion was in time. If the notice is not given within the twenty days, the adverse party must show the fact in- the same way that he establishes any matter of defence not apparent in the moving papers.


author: Sandeokd, J.,

text:
    Burhans v. Casey.
    Where it appears by tbe pleadings, that the plaintiff deposited money with the defendant to pay for him to a third party, (the defendant being surety for the payment thereof to such third party,) which money is in the defendant’s possession, the court will order it to be deposited in court or paid to such third party, under subdivision fifth of section 244 of the code as amended in J uly, 1851.
    December 6, 1851.
    Motion that the defendant pay over money, &c. The complaint was for money had and received by the defendant in a fiduciary capacity, praying for its payment with interest, or for other relief. The answer stated that the defendant was the surety for the plaintiff for the payment of the rent in a lease to the latter executed by Florence & Harpel. That on the 7th of August, 1851, the plaintiff being in arrear for the rent, he paid to the defendant $150, to be applied on account of the rent of which it was only a part. That the defendant still holds the $150 under his control, and no request or demand had been made by plaintiff to pay the amount back to him, which the defendant has been at all times willing to do.

      A. Mathews, for tbe plaintiff.

      J. Parlcer, for the defendant.
   Sandeokd, J.,

(three other Justices concurring,) held that the answer in effect admitted that the defendant had in his possession, or under his control, money, the subject of the litigation, which was held by him as trustee for another party, or which belongs to another party, and that the plaintiff was entitled to an order that the same be deposited in .court or delivered to such party pursuant to the fifth subdivision of section 244 of the code of procedure as amended in July last. An order was entered to the effect, that the defendant should, within ten days, pay to the clerk of the court the $150, to abide the further order of the court, or deliver to the plaintiff’s attorney the receipt of Florence & Harpel for that sum as paid by the plaintiff through the defendant, on account of the rent in question. (The order was subsequently affirmed on appeal to the general term, all the Justices concurring.)


author: By the Court.

text:
    Burhans v. Casey.
    One who receives money from another to pay directly to a third person, may be arrested, under the code of procedure, on his. omission to pay it over.
    He is liable to arrest as having received it as an agent, as well as by reason of his fiduciary character.
    (Before Oakley, Oh. J., and Sandford and Campbell, J. J., the other Justices concurring.)
    March 6, 1852.
    Appeal from an order denying a motion to vacate an order of arrest. It appeared that the plaintiff was a tenant of Florence & Harpel, and defendant was his surety for the payment of the rent. Early in August last, the plaiiitiff, not being prepared' to pay all the rent due on the 1st August, delivered to the defendant $150, a part of the amount, for him to pay over to E. & H., which he promised to do. He never paid over the same, although F. & H. were ready to receive it, and he told them several times that he would pay it over.

      J. Parker, for the defendant.

      A. Mathews, for the plaintiff.
   By the Court.

We think the arrest may be supported on two grounds:

1. On the ground that the money was received by the defendant in a fiduciary capacity, even if as was contended those words are to be limited to cases of express trusts. This was an express trust to pay over the money in question.

2. The defendant was an agent to perform a particular duty, that is, to pay this money, which the plaintiff put into his hands, to the landlords. He was a mere depositary of the money for the purpose of paying it over to them. The code as amended in 1849, (§ 179,) expressly provides for this case, in addition to those where the money is received in a fiduciary capacity strictly.

Order affirmed.


author: Oakley, Ch. J., Sandford, Duer, and Campbell, J. J.)

text:
    Richardson v. Wilton.
    Where the complaint alleges a fact which is presumptively within the defendant’s personal knowledge, he will not, in general, be permitted to answer that he has not knowledge or information sufficient to form a belief, and therefore he denies the same.
    If, from lapse of time, or other circumstances, he cannot admit or deny the charge positively, he must set up such circumstances, either in his answer or the affidavit of verification.
    March 6, 1852.
    The complaint was for an assault, charging that the defendant spit in the plaintiff’s face. The answer as to this allegation ■was, that the defendant has not knowledge or information sufficient to form a belief, whether he did spit in the plaintiff’s face or not, and therefore he denied the same. The plaintiff moved to strike out the answer as sham, irrelevant, or frivolous.

      H. A. Griswold, for the plaintiff.

      G. Shaffer, for the defendant.
   Oakley, Ch. J.,

(with the concurrence of

Sandford, Duer, and Campbell, J. J.)

The motion gives rise to this question, whether the defendant may put in an answer in this form to a fact which is presumptively within his own personal knowledge. We think that as a general rule he cannot. There may be cases in which, although apparently within his knowledge, he does not know or remember the facts alleged. If so, he must in his answer, or in the affidavit verifying it, state the lapse of time or other circumstances, which he supposes will warrant the qualified denial permitted by the code when the party, has not knowledge or information sufficient to form a belief.

Motion granted.


author: Bv the Court.

text:
    Gale v. Vernon.
    An order imposing terms as a condition of relief from a default, is not appealable in respect of such terms; e. g.: on giving a plaintiff leave to stipulate, when through his default the defendant is entitled to judgment as in case of a nonsuit.
    A plaintiff in such case should give the required stipulation, and if, by reason of facts beyond his control, he cannot comply with it, should then set up such facts in answer to the defendant’s motion founded on his omission to comply.
    (Before Oakley, Cm J., and Sandfobd and Campbell, J. J, all the Justices concurring.)
    March 6, 1852.
    Appeal from an order at chambers, granting a motion for judgment as in the case of nonsuit, unless the plaintiff should stipulate to try tbe cause at tbe next term. Tbe defendant was entitled to his motion according to the practice of the court, and the plaintiff was permitted to stipulate as a term on which he should be relieved. The plaintiff, in resisting the motion, read affidavits tending to show that by reason of the residence of his witnesses at New Orleans, he would be unable to try his cau'se at the then next term. On the appeal being moved, it was objected that the terms on which plaintiff was relieved from an acknowledged default, were not the subject of an appeal.

      M Sandford', for the plaintiff.

      D. Lord, for the defendant.
   Bv the Court.

We consider that orders of this kind, relieving a party from a default on certain terms, are not appeal-able in respect of the terms imposed. The party is not entitled to relief in such cases as matter of right. The judge in his discretion allows him to be relieved on certain conditions. These are matter of favor purely, not of right, and are exclusively 'discretionary with the judge.

In this case, the plaintiff’s proper coufse was to stipulate as required, and on the defendant’s moving for judgment on his default at a subsequent term, then to present his matters of excuse in answer to the motion founded upon his neglect.

Appeal dismissed.


author: Duer, J.,

text:
    Smith and Knapp v. Olssen.
    Though the answer of the defendant admit part of the plaintiff’s claim to be just, the court will not make an order upon him to satisfy it under section 244 of the code, when it appears that before answering he made to the plaintiff a written offer allowing the latter to take judgment for the part of the claim so admitted.
    While the mode of enforcing such an order is unsettled, tne court will, under such circumstances, leave the plaintiff to his ordinary and ascertained remedies.
    March 6, 1852.
    Motion that the defendant be ordered to satisfy a part of the plaintiffs’ claim, which by his answer he admitted to be just.
    It appeared by the answer, that before answering the defendant had made to the plaintiffs .a written offer under section 385 of the code, to permit them to take judgment for the amount admitted to be due by the answer, which offer the plaintiff had declined to accept. It was objected to the motion, that section 24A of the code, as amended in 1851, did not apply to a case where the plaintiff had an opportunity to take judgment for the amount admitted to be due to him.

      Smith & Woodward, for the plaintiffs.

      R. B. Roosevelt & H. Brewster, for the defendant.
   Duer, J.,

(on advisement with all the Justices of the court,) said, that the court would not make any order for payment by the defendant, under the last clause of subdivision five of section 24Á of the code, upon his admission in the answer, where it was made to appear that the defendant had, previous to answering, made to the plaintiffs an offer in writing, allowing him to take judgment for the sum admitted to be due by the answer, as prescribed in section 385. The court does not feel called upon to grant such an order to the plaintiff, under such circumstances, so long as it is not clearly settled to what extent the court may be compelled to go in enforcing the order “ as it enforces a provisional remedy.” (Code, § 244, last paragraph.) If lie insist upon claiming more than the sum for which the defendant has offered him a judgment, let him pursue the ordinary and ascertained remedy.

Motion denied.


author: Bosworth, J.

text:
    Fitch and others v. Livingston and another.
    An order denying a motion to enter on the docket of a judgment from -which an appeal has been brought, the -words “ secured by appeal,” pursuant to section 282 of the code, is not appealable.
    That section does not apply to judgments docketed before it took effect on the 10th July, 1851.
    (Before Dube, Paihe, and Boswoeth, J. J.)
    March 6, 1852.
    Appeal from chambers. The defendants appealed from the judgment entered after the decision of the cause, {ante, page 492,) and then moved for the order in question. The facts appear in the decision.

      J. O. Dimmick, for the plaintiffs.

      M O. Benedict, for the defendants.
   By the Court.

Bosworth, J.

The defendants appealed to the court of appeals from a judgment rendered against them in this action at general term, and gave the requisite security to stay proceedings on the judgment. The appeal was perfected July 7th, 1851. The defendants moved at special term, under section 282 of the code, for an order directing the clerk to enter oil the docket of the judgment, that the same is “ secured on appeal.” An order was made denying the motion. From that order the defendants appeal.

I think the order is not appealable. The relief asked could not be claimed as a matter of right, but merely as a favor, no matter how perfect may be the security given on the appeal. The court may grant such application, but is not required to do it, and on granting it may impose such terms and conditions as it sees -fit. No appeal lies from an order- made upon an application to the court for a matter of mere favor. (Wakeman v. Price, 3 Comst. 334; Fort v. Bard, 1 Ibid. 43 ; Lansing v. Russell, 2 Ibid. 563; Code, § 11, sub. 3, and § 349, sub. 5.)

The 282d section does not, in its terms, unequivocally apply to judgments rendered and docketed before it took effect, which was on the 10th of July, 1851. Under such circumstances, it should not be so construed as to give it a retrospective effect, which would produce injustice to the plaintiffs. By the law as it Stood when this suit was commenced and the judgment recovered, the plaintiffs, by the recovery and docketing of their judgment, acquired a lien on all the real estate of the defendant, in any county in which it might be docketed, as security for the payment of the judgment. If an appeal be brought and such security given as would stay the execution of the judgment pending the appeal, such security would be cumulative to that of the lien on the real estate, and not a substitute for it. The effect of the order applied for, if it would be such as the code declares, would be to put it in the power of the debtors to alien their whole real estate, and divest the plaintiffs of the security which the laws existing at the time of the recovery provided should accrue upon the rendition and docketing of a judgment. If this section should be construed to apply to judgments, recovered before it was amended on the 10th of July last by incorporating the provision on which it is insisted this motion should be granted, then the section is in substance and effect a legislative declaration, that a creditor by judgment, may be compelled to relinquish his lien by judgment, for the promise of such third persons to pay it as the court may deem entirely responsible. If this be so, the legislature may retrospectively enact, that a general or specific lien on real estate may be discharged by substituting for it a law suit, or an undertaking on which at some future day an action may be brought. I do not think we should find from the language of this section of the code, that the legislature intended it should operate upon judgments previously docketed, to divest liens which were perfect and absolute before the section as amended took effect. (Quackenbush v. Danks, 1 Denio, 128; S. C. in Court of Errors, 3 Ibid. 594; McCracken v. Hayward, 2 Howard, U. S. R. 608.)

It is insisted that section. 459, sub. 3, expressly declares such to have been the purpose of the legislature. The word “proceedings,” as there used, and so far as it is applicable to this case, means that a judgment recovered after the first of July, 1848, can be reviewed only upon an appeal taken in the manner provided by the code. (Vide § 457.) It includes and designates the practice requisite to be pursued to secure a right to have the judgment reviewed. Every thing essential to that object had been done when the appeal was perfected. The motion now made is not a part of the proceedings to be had to reverse the judgment. It is a proceeding to div.est it of its lien, as against a certain class of persons, while the appeal is pending. Whether granted or not, the appropriate and prescribed proceedings to obtain a reversal of the judgment are not affected. It in no way affects the notice of appeal, the undertaking, the case on which the appeal is to be heard, or the mode or time for bringing the appeal to a hearing.

The appeal must be dismissed, but without costs to either party. (All the Justices of the court concurred in this decision.)