Cornell university Library KF9014.T46 The.awandprac«ceo.provis«.n^^ (SnrtipU ICam i>rl|nnl SItbraty S.^ Cornell University m£j Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020195792 THE LAW AND PRACTICE OF PROVISIONAL .REMEDIES, WITH AN APPENDIX OF FORMS. ISAAC GRANT THO MPSON. COUNSELLOR AT LAW. ALBANY, N. T.: W. C. LITTLE, AND WM, GOULD & SON. NEW YORK: DIOSSY & COCKCROFT. 1867. Entered according to Act of Congress, in tlie year 1867, By Isaac Grant Thompson, In the Clerk's Office of tlie District Court of the United States, for the Northern District of New York. J. MUNSELL, PRINTER, ALBANY, N. Y. HON. CHARLES K. INGALLS, JUSTICE OF THE SUPREME COUET OF THE STATE OP NEW TOEK, €his iJDork is Insaibeb AS A TESTIMONY OF EBSPECT FOE HIS PUBLIC AND PBIVATB VIETUBS, AND OF HIS KINDNESS TO THE AUTHOR. PEEFACE. A thorough knowledge of the law and practice of Provisional Remedies is indispensable to the prac- titioner, not only from the constant necessity of resorting to them, but also from the fact that the exigencies of the case frequently demand great haste, and render impossible the requisite reference to scattered authorities. For these reasons among others, a treatise upon these remedies, both accurate in detail and concise in the enunciation of principles, is of great importance. To furnish such a treatise has been my object in the preparation of the following pages. How well I have succeeded, I leave to the just discrimination of a liberal profession to decide. I have sought to collect all the decisions, of any importance, which have been made touching these remedies, and to arrange them for prompt and easy reference. I have depended mainly on the decisions of the courts of this state, where there were any in point, as they are the only controlling sources from xy PREFACE. which an interpretation of these remedies can be derived, especially in what regards the practice. In quoting the sections of the Code, I have varied somewhat from the order in which they are therein given, for the purpose of securing, what I deem to be, a more natural and systematic arrangement. While I have had no hesitation in making use of all works within my reach, treating on the same or kindred subjects, still I have spared no reasonable endeavor to examine for myself the cases cited, I cannot let this opportunity pass without express- ing my grateful acknowledgments to T. S. Banker and Francis Kising of this city, counsellors-at-law, for the kindly aid they have given me in the preparation of this work. That the labor could have been more successfully performed by other hands, I know ; but not, I believe, by any, who could have sought more earnestly, to do it well. "And if I have done well and as is fitting the story, it is that which I desired ; but if slenderly and meanly, it is that which I could attain unto." I. G. T. Trot, October, 1867. CONTENTS. CHAPTER I. Arrest and Bail, - . . . 9 _ 139 Section. I. General Principles. II. Where Defendant is Noii-Kesident. For Injuries to Person, Character or Property. IIL Arrest for Fine; Penalty; on Promise to Marry; or for Fraud of OflScers, Agents, etc. IV. In Actions for the Becovery of Personal Property. V. Fraud in contracting a Debt, etc. VI. Fraudulent Bemoval, etc., of Property ; Arrest of Females. VII. Affidavit to obtain Order. ' VIII. Security on the Part of the Plaintiff. IX. Order of Arrest, by whom made and its Form. X. Arrest, when and how made. XI. Bail, how given. XII. Justification of Bail. Xni. Deposit instead of Bail. XIV. Surrender of Defendant; Action against BaiL XV. Exoneration of Bail. XVI. Sheriff, when Liable as Bail; Bail, when Liable to Sheriff. XVII. Vacating Order of Arrest; Eeducing Bail. XVIII. Arrest on Execution. Vi CONTENTS. CHAPTER II. Claim and Delivery, - - 141-193 Section. I. Nature of the Eemedy, and when allowed. n. The Affidavit. III. Security by Plaintiff — Requisition and how executed. IV. Exception to, and Justification of Plaintiff's Sureties. V. Redelivery to Defendant. VI. Claim by Third Party ; Filing Papers ; setting aside Proceedings. Arrest of Defendant, etc. CHAPTER ni. Injunctions, - - - . . . 195-345 Sbotiok. I. Nature and Purpose, and by whom granted. 11. When granted. General Principles^ in. Trespass and "Waste. IV. Easements and Servitudes. V. Nuisances. VI. Covenants relating to Real Property. VII. Roads, Rail Roads and Bridges. VIII. Taxes and Assessments. IX. Contracts. X. Patents, Copyrights, Trade Marks and Signs. XI. Negotiable Instruments, Deeds and Stock. XII. Restraining Suits and Judgments. CONTENTS. yii Sbotiok. XIII. In Creditor's Suits. XIV. Corporations. XV. Partners, Public OfBcers and otlier Parties. XVI. Eestraining Acts Pending Litigation. XVII. Wlien granted; the Affidavit. XVni. Order to show Cause ; after Answer ; against Corporations. XIX. Security. XX. Form, Service of, and Obedience due Injunction. XXI. Dissolving and Modifying. XXII. Assessment of Damages. CHAPTEE IV. Attachments, 347 - 461 Sbotioh. I. In what Cases granted. II. The Affidavit. III. The Undertaking. rV. The Warrant, by whom granted and what to contain. V. What Property may be attached. VI. How Warrant executed. VII. How served on Property incapable of Manual Delivery. VIII. Perishable Property. Where Property is claimed by Third Person. Vessels. IX. Effect of an Attachment. X. Judgment, how satisfied. Action by Plaintiff. Where Judg- ment is for Defendant. XI. Discharge of an Attachment. Xn. Return of Warrant. Sheriff's Pees. Costs and Allowances. yiii CONTENTS. CHAPTER V. Eecbivbks and other Provisional Remedies, 463-565 Section. I. Receivers, Nature of, and how appointed. n. General Powers and Duties of. m. In what Cases appointed. rv. After Judgment. V. In Supplementary Proceedings. VI. Eeceivers in Creditor's Suits. VII. Eeceivers of Corporations. Vni. Other Provisional Remedies. Deposit of Money, etc., in Court. IX. Satisfaction of Part of Claim admitted due. CHAPTER VI. Wkit OF Ne Exeat, - - 567-575 APPENDIX. Appendix of Forms, - - - 577 - 651 PEOVISIONAL REMEDIES. CHAPTER I. ARREST AND BAIL. Section I. General principles. II. Where defendant is non-i'esident ; For injuries to person, cliaracter or property. III. Arrest for fine; penalty, on promise to marry; or for fraud of officers, agfcnts, etc. rV". In actions to recover personal property.. V. Fraud in contracting debts, etc. VI. Fraudulent removal, etc., of property ; arrest of feriiales. VII. Affidavit to obtain order. Vin. Security on the part of the plaintiff. IX. Order of arrest, by whom made and its form. X. Arrest, when and tow made. XI, Bail, how given. XII. Justiflcation of baU. XIII. Deposit instead of bail. XIV. Surrender of defendant ; action against bail. XV. Exoneration of bail. XVI. Sheriff, when liable as bail ; bail when liable to sheriff. XVII. Vacating order of arrest ; reducing bail. XVIII. Arrest on execution. 2 10 PROVISIONAL REMEDIES. [Oh. I. SECTION I. GENERAL PRINCIPLES. 1. § 178. No peraon to be arrested, except as prescribed. 2. Similarity to the old practice. 3. How the law to be construed. 4. Discretion of court in granting order of arrest. 6. Order must relate to the whole cause of action. 6. Liability to arrest must be personal. 7. Action must be maintainable. 8. Arrests at the suit of assignees. 9. Assignment of cause of action. 10.' What causes of action are not assign- able. 11. What are assignable, la. Corporations may assign. 13. Defendant not liable to be twice ar- rested. 14. When arrests may be renewed. 15. Non-resident may have the remedy. 16. Effect of a stay of proceedings. 1. "IS'o person shall be arrested in a civil action, except as prescribed by this act; but tbis provision shall not affect the act to abolish imprisonment for debt, and to punish fraudulent debtors, passed April 26th, 1831, or any act amending the same, nor shall it apply to proceedings for contempts.'" 2. The provisions of this chapter of the Code are sub- stantially the same in most respects, as the former statutes relating to arrest in civil actions. The intention of the commissioners of the Code, in this behalf, is expressed by them as follows: "We have adhered generally to the principle of the existing laws ; although, in some respects, we have restricted the right of arrest, and particularly by requiring, in all cases, an order of a judge. We have also provided, that, before an arrest, the plaintiff must give security to pay the defendant's costs, and whatever damages he may sustain by the arrest. We have also proposed that the defendant may make a deposit of money, in all cases, instead of giving bail."^ iCode, ?178. 2 See their Report, p. 160. § I.] ARREST AND BAIL. H 3. To justify an order of arrest, proof of actual intent ought, in all cases, to be required. The constructive guilt of a debtor, who is innocent in fact, can never be a suffi- cient ground of imprisonment. Laws like these under consideration which restrain natural liberty, ought to be so interpreted, as to receive all practicable mitigation in favor of equity and humanity.^ 4. The granting or refusing of an order of arrest lies in the discretion of the court, to be exercised according to the circumstances of each case. It should not be granted on light grounds, nor in doubtful cases.^ 5. An order of arrest must relate to the whole cause of action, and not to a part of it ; and therefore where there are two or more causes of action joined, on one of which the defendant is not liable to arrest, no order of arrest should be granted.* A- plaintiff is concluded from resort- ing to a provisional remedy, by uniting in his complaint causes of action to some one of which the remedy does not apply.* 6. The liability of the defendant to arrest must be personal, or an order cannot be granted. Thus, a hus- band, though civilly responsible for the acts of his wife, cannot be apested for those acts.° So, a principal is not liable to arrest for the fraud of his agent, unless he par- ticipate in such fraud or knowingly ratify it.^ But the later decisions hold, that where one partner has been guilty of a fraud in purchasing goods or obtaining credit for the use of the firm, and which were used by the firm, all the partners may be arrested in an action against the firm 'See Pacific Mut. Ins. Co. v. see Smith v. Knapp, 30 N. T. K., Maohado, 16 Abb., 451; Caldwell's 581. case, 35 Barb., 444; Spies v. Joel, *Id. 1 Duer, 669. 6 Anon., 8 How., 134 ; 1 Duer, 613 ; ^SeeDayisv. Scott, 15 Abb., 127; see Baldwin v. Kimmell, 16 Abb., Lapeous V. Hart, 9 How., 541. 353 note; see contra, Solomon v. SMcGoyern t. Payn, 32 Barb., 83 ; Waas, 2 Hilton, 179. Lambert v. Shot^ 2 Hilton, 601 ; eciaflin v. Frank, 8 Abb., 412. 12 PROVISIONAL REMEDIES. [Ch. I. to recover the debt, althougli part of them were ignorant of the fraud.^ 7. To enable a plaintiff to maintain an arrest of the defendant for a wrong committed, he must show himself entitled to maintain an action to redress such wrong.^ Therefore, where the action is barred by the statute of limitation, and the defendant avails himself of that defense by answer, an arrest is not maintainable. But a defendant will, not be discharged from arrest on the ground that the action is barred by the statute of limitation, unless he set up such defense in his answer.' 8. As a general rule, the assignee of a right of action is entitled to the same remedies to enforce such right, as the assignor would have been entitled to ; and a cause of action on which the defendant is liable to arrest, does not lose its character as such, by being-assigned by the original creditor. The assignee may enforce it, by arrest, in the same way as the original creditor might have done.* 9. ■ There are, however, certain causes of action that are not the subjects of a,ssignment. In general, a cause of action for an injury done to the person or personal feelings cannot be assigned. But, if the substantial cause of action arises from an act that diminishes, impairs, or in any way affects property, it passes by assignment. Torts for taking, converting or injuring property, and, in fact, all causes of action that survive to the personal representatives, may be assigned.^ 10. Among the causes of action that are not the subjects iTowasend v. Bogart, 11 Abb., ^Arthurton v. Dalley, 20 How., 355; Coman v. Allen, 21 How., 114; 211. and see Sharp v. Mayor of N, Y., *King y. Kirby, 28 Barb.,49 ; Gro- 4 Barb., 257 ; see contra, Hano- cer's National Bank v. Clark, 32 ver Co. V. Sheldon, 9 Abb , 240 ; How., 160. Wetmore v. Earle, 9 Abb., 58 note ; ^ Butler v. N. Y. & Erie R. R. Co., see further on this subject, post, sec, 22 Barb., 110 ; People v. Tioga Com. 6, pi. 13. Pleas, 19 Wend., 73 ; MoKee v. Judd, 2See Neville v. Neville, 22 How., 2 Kern., 627, per Hand, J. ; Hyslop 500. V. Randall, 4 Duer, 660. §1.] ARREBT AND BAIL. 13 of assignment, are a<;tions for assault and battery, slander, libel, false impK-isonment, malicious prosecution, breach of promise of marriage, and malpractice.^ So, a demand for damages for the seduction of a female servant is not assignable.^ . So, a right of action for damages caused by false and fraudulent representations of the solvency of the purchaser of goods cannot pass by assignment.^ Nor, a cause of action for damages arising from the fraud and deceit of the defendant in the false reading of the hour of appearance named in a summons served upon the plaintiff" in a justice's court.^ 11. Among the causes of action which may be assigned are the following : A cause of action for the taking and conversion of personal property, but the assignee should, after the assignment, make demand of the property, not- withstanding the conversion was before the assignment ; ® a eause of action against a common carrier for loss of goods, or for negligence in not delivering goods ; ° a claim foi* damages to personal property ; ' an action to recover damages for the fraudulent misapplication or conversion of property by an officer or agent of a bankiig association ; ^ or for the conversion of funds entrusted to an agent, and for which he has failed to account ; ' a right of action against a vendor of lands for fraudulent representations as to an incumbrance : '" and a cause of action to recover back 1 Chamberlain v. Williamson, 2 355. These eases overrule, Thurman Maul. & Selw., 408; Nash v. Hamil- v. Wells, 18 Barb., 500. ton, 3 Abb., 35. « Smith v. N. Y. & New Haven R. 'People V. Tioga C. P., 19 Wend,, E., 28 Barb., 605; 16 How., 277; 73. Freeman v. Newton, 3 E. D. Smith, sZabriskie V. Smith, 3 Kern., 322; 246; Waldron v. Willard, 17 N. Y. Hyslop V. Randall, 4 Duer, 660; 11 B,., 466; see contra, Thurman v. How., 97. Wells, 18 Barb., 500. *Lamphere v. Hall, 26 How., 'Butler v. N. Y. & Erie R. R. Co., 509. 22 Barb., 110. sGenet v. Howland, 30 How., 360; s Grocers' National Bank v. Clark, Robinson v. Weeks, 6 How., 161 ; 32 How., 160. McKee v. Judd., 2 Kern., 622; Mc- SGould v. Gould, 36 Barb., 270. Guire v. Worden,- 3 E. D. Smith, "Haight v. Hoyt, 19N. Y. R., 464. 14 PROVISIONAL REMEDIES. [Ch. I. money wMcli the assignor was induced to pay by the false and fraudulent representations of the defendant.^ 12. The attribute of assignability is not confined to causes of action belonging to natural persons, but extends with equal effect to those belonging to artificial persons.^ Where a claim is on contract it is not rendered non- assignable because there is fraud in the transaction.* 13. A defendant is not, in general, liable to be twice ar- rested for the same cause of action ; and it is even more clear that he cannot be subjected to an arrest in two actions in different courts of the state for the same cause.* But the rule does not'apply where the first arrest was absolutely void by reason of the want of jurisdiction in the court or officer awarding it.^ In the latter case it would seem that he must be first discharged from arrest, before the second process is served, for it has been repeatedly held that a defendant illegally arrested cannot be continued in custody under a legal detainer for the same cause.^ So, the rule does not apply where the first arrest was made in another state, and such arrest will not preclude an arrest here for the same cause of action and at the suit of the same plaintiff.' But, if the party was arrested and held to bail in the courts of the United States, he cannot be ar- rested in an action for the same cause in a state court.* 14. If the plaintiffj having acted in good faith and with- out any fault on his part, has been unable to make the first arrest available f or, if the defendant be discharged by reason of some act for which the plaintiff is not responsi- iByxHe v. Wood, 24 N. Y. R., sgoliadlev. Chase, 16 How., 414. 607; Sheldon V.Wood, 2 Bos w., 267. ^Atfy Gen. v. Cass, 11 Price, 2 Grocers' National Bank T. Clark, 345; Att'y Gen. v. Dorkings, 11 82 How., 160. Price, 156 ; Birch t. Prodger, 1 Bos. sBrady v. Bissel, 1 Ahh., 76; & Pul. N. R., 135. French v. White, 5 Duer, 254; and 'Peek y. Hozier, 14 John., 346. see Atwell v. Le Roy, 4 Abb., 438. 8 Hernandez v. Carnobeli, 10 How., * Hernandez T. Carnobeli, 4 Duer, 433; 4 Duer, 642. 642; 10 How., 433; Sohadle t. » Wells t. Gurney, 8 Barn. & Cr., Chase, 16 How., 414. 769 ; Kearney v. King, 1 Chitty, 276. § II.] AKREST AND BAIL. 15 ble — as an alteration by the sheriff, of the order of arrest without plaintiff's knowledge — the arrest inay be re- newed.^ So, if the defendant obtain his discharge by fraud ;'' or where plaintiff at the solicitation of defendant's wife, allowed him to leave jail to attend to business, he may be rearrested ; ^ but where a party has been once arrested and discharged for insufficiency in the affidavits, he should not be again arrested in the same action.* 15. A non-resident has the same right as a resident to the remedy of arrest and bail, but if he attempts to exer- cise it under circumstances of seeming oppression, the court will examine more carefully his proceedings.' 16. An order staying the plaintiff's proceedings in an action, has reference to the ordinary proceedings, but does not prohibit him from obtaining an order of arrest. Thus, where, after verdict for the plaintiff, in an action for an assault and battery, the defendant obtained an order allowing him thirty days to make a case, and directing that all proceedings on the part of the plaintiff he stayed in the meantime, &nd the plaintiff, while such order was in force, obtained an order of arrest, it was held on a motion to set aside the order, that the plaintiff" might obtain such order without violating the order to stay the proceedings.® I Hausin v. Barrow, 6 Term. E., ' Penfold v. Maxwell, 1 Chitty, 218. 275, note. sCantellon v. Freeman, 2 Dowl., * Enoch T.Brnst, 21 How., 96. P. C, 2; Olmires t. Delancy, 2 ^Hyer t. Ayres, 2 E. D. Smith, Strange, 1216. 211. > ^Lapeous t. Hart, 9 How., 641. 16 PEOVISIONAL REMEDIES. [Ch. I. SEOTIOlif n. WHERE DEFENDANT IS NON-KESIDENT : FOB, INJURIES TO PERSON, CHARACTER OR PROPERTY. 1. § K9. ArreBt, in what cases. 2. What is essential to justify an arrest under the first snhdiviBion. 3. Actions not arising ont, of contract. 4.-9. What constitutes a person a non-resi- dent. 10. When defendant is aboat to remove from the state. IJ. For Injury to person or character. 12. What are injuries to person. 13. Actions for orim. cm., seduction, heat- ing servant, etc. 14. Actions for limited divorce, on the ground of cruel conduct, IB. For false imprisonment, or maliciona prosecution. 16. When gi'anted for assault and battery, etc. 17. For injury to character. 18. For injuring, wrongfully taking, detain- ing or converting property. 19. For injuring or withholding real pro- perty. 20. In an action against an innkeeper. 21. For converting stocks. 22. Forconverting promissory notes. 23. Property sold conditionally. ^ 24. For ftaud in foreign country — females. 1. " The defendant may be arrested, as hereinafter pre- scribed, in the following cases : 1. In an action for the recovery of damages, on a cause of action not -arising out of contract, where the defendant is not a resident of the state, or is about to remove therefrom, or where the action is for an injury to person or character, or for injuring or for wrongfully taking, detaining, or converting property. 2. In an acticm for a fine or penalty, or on a promise to marry, or for money received, or property em- bezzled or fraudulently misapplied, by a public officer or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation, or banking association, in the course of his employment as stch, or by any factor, agent, broker, or other person in a fiduciary capacity, or for any misconduct or neglect in office or in a professional employ- ment. 3. In an action to recover the possession of personal property, unjustly detained, where the property or any part thereof has been concealed, removed or disposed of so that it cannot be found or taken by the sheriff, and §11.] ARREST AND BAIL. 17 with tlie intent that it should not he bo found, or taken, or with the intent to deprive the plaintiff of the benefit thereof, 4. When the defendant has been guilty of a fraud, in contracting the debt or incurring the obligation for which the action is brought, or in concealing or disposing of the property, for the taking, detention, or conversion of which the action is brought, or when the action is brought to recover damages for fraud or deceit. 5. When the defend- ant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors. But no female shall be arrested in any action, except for a willful injury to person, character, or property." ^ 2. To justify an arrest under the first clause of the first subdivision ; three things are essential : An action for the recovery of damages ; a cause of action not arising out of contract ; and a defendant who is either not a resident of this state, or who is about to remove therefrom. 3. Actions not arising out of contract, are actions that were formerly known as actions for torts ; included under the two heads of trespass with force and arms, as assault and battery and false imprisonment; and trespass on the case, where the act is not accompanied with force and violence, and is injurious in its consequences only, as slander, malicious prosecution, trover and the like. Among the actions not arising out of contract, may be enumerated the following : Actions for criminal conversa- tion,^ and seduction ; ^ for a limited divorce on the ground of cruelty ; * actions against a common carrier for the loss of goods ; ^ or against an innkeeper for the loss of baggage ;* or actions for the fraudulent representation of another's. 'Code, ?179. * Mcintosh v. Mcintosh, 12 How., ^Delamater v. Russell, 4 How., 289. 234; see 4 Bosw., 627. 6 Buckle v. Ellis, 4 How., 288. 3 Taylor v. North, 3 Code, R„ 9. e people v. Willette, 26 Barb., 78, 15 How., 210. 18 PROVISIONAL REMEDIES. [Ch. I. responsibility ; * but, since the amendment of subdivision four, an arrest on tbe latter ground will come under the last clause of that subdivision, and non-residence, or intended departure need not be shown.^ 4. The- question as to what constitutes a person a non- resident will be discussed fully hereafter, under the head of attachments, as most of the decisions bearing on the question have been made in that proceeding. The princi- ples are the same in both cases, and it will be unnecessary here to give any thing more than the general rules, referring to attachments for a more extended consideration. 5. By the term "resident" or "residence," a legal resi- dence is meant; that is, the place of a man's fixed habita- tion ; where his political and social rights and duties are exercised. The words "legal residence," "inhabitancy" and " domicil," are convertible terms.^ 6. Every person must have a domicil or legal residence some- where, and he can have only one domicil at one and the same time ; every person has a domicil of origin arising from birth or connections, and this he retains until he acquires another. The domicil of a minor follows that of the father and remains until such minor acquires another, which he cannot do until he becomes a person sui juris.* The domicil of the wife follows that of the husband, unless they are living separate by decree of a court having jurisdiction.^ Where the father is dead, the domicil of the children follows that of the surviving mother.® 7. A man's being in a place is prima facie evidence that he is domiciled there ; but it may be explained and the presumption rebutted.' His mode of living is not mate- 1 Smith V. Corbiere, 3 Bosw., 634. * Crawford v. Wilson, 4 Barb., 504, 2 Haalette t. Gill, 19 Abb., 353. 4 Cow., 516, note. ' Crawford v. Wilson, 4 Barb., 504, sVisoher v. Visoher, 12 Barb., 640. Chaine T. Wilson, 16 How., 552, « 4 Cow., 516, note. Houghton Y. Ault., id., 77. '14 How. (U. S.), 401, 16 John., 128. § n.] ARREST AND BAIL. 19 rial, whether on rent, at lodgings, or in the house of a friend.^ There is no fixed period of time necessary to create a domicil. It may he acquired after the shortest tarry under certain circumstances, and under others, the longest tarry may be insufficient.^ There must be both the fact of the abode, and the intention of remaining indefinitely. Both must be proved : the first is readily proved by a sin- gle fact ; the other may be established by the declaration of the party, or his conduct, which is at least as satisfac- tory evidence as his declaration upon such a question.^ 8. Where a person does business in this state, but boards in another state where his family reside ; * or where he does business here during the week, boarding at a board- ing house, but spends his Sundays with his family, who reside in another state, he is a non-resident.' "Where a person has two residences for diflferent seasons of the year, as a city residence and a country residence, that will be his domicil or legal residence, which he himself selects or deems to be his home; or which appears to be the center of his affairs ; or where he votes and exercises the rights and duties of a citizen.® 9. Where a man is temporarily absent from the state, intending to return, he does not become a non-resident ; ^ nor does a temporary sojourn within this state, without intention of settling here, constitute a person a resident.' Absence from the state, in the service of the United States, either in the army or navy, does not render a person a non-resident.' ^Parsonsfieldv. Perkins, 2Greenl., see otherwise, Turner t. Church, 2 411 ; 4 Cow., 516, note. Abb., 299. 2 High appellant, 2 Doug. (Mich.) ^ 27 Miss., 704; Douglass v. Mayor B., 515 ; Vischer v. Visoher, 12 of N. Y., 2 Duer, 110. Barb., 640. 'Hurlbut v. Seeley, 11 How., 507. ' Hegeman v. Fox, 31 Barb., 475 ; ^ In the matter of Fitzgerald, 2 Vischer v. Vischer, supra. Caines, 317 ; Boardman t. House, *Barry v. Baokover, 6 Abb., 374 ; 18 Wend., 51?. Beach v. Lawrence, 17 How., 564. ' Tibbetts v. Townsend, 15 Abb., 6 Chaine v. Wilson, 16 How., 552, 221. 2Q PROVISIONAL REMEDIES. [Oh. I. 10. To justify an arrest on the ground that the defend- ant is about to remove from the state, it is necessary that it appear to the satisfaction of the judge, that such defendant intends to leave the state permanently, and to take up his domicil elsewhere. A temporary departure for pleasure or business, with intent to return is not suffi- cient ; ^ and it must also appear that he is about to remove, or in other words, that he means to remove promptly." 11. The defendant may also be arrested in an action for an injury to person or character. The rights of persons in private life are divided into absolute, being such as belong to individuals in a single unconnected state ; or relative, being those which arise from civil and domestic relations. The absolute rights of individuals may be resolved into the right of personal security, of personal liberty, and the right to acquire and enjoy property.^ The relative rights arise from the relations of husband and wife ; parent and child ; guardian and ward ; and master and servant.* 12. Injuries to person are either such as infringe upon the absolute rights, as assault, assault and battery, rape, false imprisonment, etc., or such as infringe upon the rela- tive rights, as criminal conversation, seduction and the like.. 13. In an action for criminal conversation with plaintiff's wife, it was held that the defendant might be arrested, it being for an injury to the person of the plaintiff. ® So, in an action for the seduction of plaintiff's daughter or ser- vant ; ^ and by the same principle of construction it might be extended to that class of legal injuries arising in the relation of master and servant, parent and child, guardian iBropliy T. Rogers, 7 Leg. Obs., 147; 4 How., 234 ; Straus t. Schwarz- 152. walden, 4 Bosw., 627; Dyott v. 2 30 English L. & Eq. Rep., 272. Dunn, 2 Chitty, 72. 82 Kent, 1. 'Taylor v. North, 8 Code Rep., i 2 Kent, 39. 9 ; Carter t. Drake, 10 Wend., 618. ^ Delamater v. Russell, 2 Code R., ' § 11.] AKKEST AND BAIL. 21 and ward, as to injuries for enticing away tlie servant, beating or maiming tlie servant, ward, or child.^ 14. An action for a limited divorce on tlie ground of cruel and inhuman treatment seems to be an action for injury to the person within this subdivision. But not so, an action for divorce on the ground of adultery. In the latter case the action is founded on the alleged breach of the marriage contract ; and is not technically, nor within the normal or legal sense of the term an action for injury to the person. It stands upon a different footing, and contemplates a different result.^ 15. In an action for false imprisonment the defendant may be arrested, unless it appear that the facts in the original cause made a reasonable ground for the arrest, and that the damages could only be nominal.^ But where a person has, in good faith, merely stated his case, upon oath or otherwise, to a magistrate having jurisdic- tion, he is not liable to an action for false imprisonment upon the consequent arrest of the accused, although such arrest was not justified by either the law or the facts in the case.* 16. In Davis v. Scott,^ Mr. Justice Daly held that an order of arrest should not be granted in actions for assault and battery, libel or slander, unless the defendant is a non- resident or transient person ; or unless in extreme cases 6f violent and cruel batteries. But the language of the statute is clear and explicit, and it is doubtful whether it is susceptible of a construction so limited. 17. As a part of the absolute rights of persons, the preservation of every individual's good name from vile arts of detraction, is justly included.^ And it is probable ' Delamater v. Russell, 4 How., 'Gordonv. Upham, 4E. D. Smitli,9. 234; Mcintosh v. Mcintosh, 12 * Von Latham v. Rowan, 17 Abb., How., 289. 238. 2 Mcintosh V. Mcintosh, 12 How., s 16 Abb., 127. 289. 6 2 Kent, 16. 22 PROVISIONAL REMEDIES. [Ch. I. that, in actions for slander, libel and malicious prosecu- tion, the defendant could have been arrested, even if the words " or character," had not been inserted in this subdi- vision.^ In an action for malicious prosecution the facts which are relied upon as evidence of want of probable cause, must be set forth in the affidavits.^ 18. The defendant is likewise liable to arrest in an action " for injuring, or for wrongfully taking, detaining, or converting property." These actions answer to the old actions of trespass, case, trespass de bonis asportatis, and trover. Cases frequently arise where the plaintiff has his election to proceed either under section 206 of the Code, to recover possession of the goods, or to recover damages for the taking, detention or conversion. When he has once made his election, he must abide by it. He cannot com- mence his action and hold the defendant to bail under this subdivision, and afterwards have the property delivered to him.^ 19. The words " wrongfully taking, detaining or con- verting property," must be construed to apply to personal property exclusively, because the terms are not applicable to real property, which cannot, from its nature, be taken, detained or converted. But it is otherwise as to the term ' ' inj uring ; ' ' therefore, in an action to recover the possession of real property, with damages for the unlawful withhold- ing thereof, the defendant may be arrested.* If, however, the action 'is brought to recover possession of real property without damages,' or for possession and rents and profits simply, it is otherwise, and an order of arrest cannot be had.'' 20. ISov can the defendant who is a resident be arrested, iDelamater -rt Eussell, 4 How., ^Merrillv.Carpenter, 30Barb,,67. 234, ^Brushv. Mullen, 12 Abb., 240. "Vanderpool V. Kissam, 4 Sand., ^ FuUerton t. Fitzgerald, 18 Barb., 715. 441 ; 10 How., 87. 8 Chappell V. Skinner, 6 How., 898. § II.] ARREST AHD BAIL. 23 under this clause of the subdivision, in an action against an innkeeper, on his common law liability, for negligent loss of the baggage of a guest. The gist of the action is tortious negligence, and to hold the defendant to bail, it must be shown that he is a non-resident, or about to de- part from the state.* 21. Abstracting rail road shares, with coupons attached, and converting them into money ,^ or abstracting and con- verting certificates of shares, left with the plaintiff for safe keeping, is such a conversion of property as will render the defendant liable to arrest.^ So, in an action to recover the value of stocks pledged as collateral security for the payment of a usurious loan, the defendant may be held to bail, notwithstanding he was by the terms of the con- tract authorized to hypothecate such stock, and had hy- pothecated it before the action was commenced.* 22. "Where the owner of certain promissory notes agreed to sell them to S, a broker, and delivered them to him without receiving payment, but without agreeing to give credit; and 8 transferred such notes to L, another broker, who sold them and converted the proceeds ; it was held, in an action against both, that both were liable to arrest. It would have been otherwise had L been a bona Jide holder of the notes.* 23. So where the defendant received plaintiff 's property under an agreement to return it at a certain time, or to pay to plaintiff a certain sum for its value, and subsequent to the time limited for its return, the defendant paid to plaintiff a part of the stipulated price, and gave his due bill for the balance, and. afterwards refused either to pay the due bill, or to return the property, it was held that 1 People T. Willett, 26 Barb., 78; ' Northern Railway v. Carpenter, 6 Abb., 37. 4 Abb., 47. 2 Northern Eailway t. Carpenter, * Cousland v. Davis, 4 Boaw., 619. 13 How., 222 ; 8 Abb., 269. 6 Bobbins v. Seithel, 20 How., 367. 24 PROVISIONAL REiyEEDIES. [Ch. I. the defendant was liable in an action for the conversion Of the property and was properly held to bail therein.* 24. A defendant may be arrested in an action for the unlawful conversion of property in a foreign country, where the property has been brought into this state.^ But the concealment, detention or disposal of a piano is not such an injury to property as would justify the arrest of a female.* 1 Person v. Giver, 29 How., 432; ^Blasou v. Bruno, 21 How., 210; reversing same case, 28 How., 139; Nortliern B. R., v. Carpenter, 13 see also Keeler v. Clark, 18 Abb., How., 222. 154. s Tracy v. Leland, 2 Sandf., 729. §m.] ARREST AND BAIL. 25 SECTION" in. ARBEST FOR FINE; PENALTY; ON PROMISE TO MARRY; OR FOR FRAUD OF OFFICERS, AGENTS, ETC. 1. SnbdlTlBion second of 1 179. % Females cannot be arrested in actions on promise to marry. 3. Officers ofa foreign government. 4. Arrest of attorneys, solicitors and coun- sellors. B. For moneys collected ont of the state by non-resident attorney. 6. Attorney not liable till after demand. 7. Presumed to have received money in official capacity. 8. Liability of attorney for fraud of part- ner. 9. An attorney refusing to pay over money guilty of professional misconduct. 10. Arrest of officers or agents of a corpo- ration, etc. 11. Of factor, agent, etc., for money refc'elved in a fiduciary capacity. 12. When money is not received in a fidu- ciary capacity. 13-14. Liability of commission merchants. IB. When agent may be arrested though not guilty of fraud. 16-17. Cases in which agents, etc., are liable to arrest. Cases in which agents, etc., are not liable to arrest. Where party defrauded settles or takes a note. 20. The effect of a judgment. 21. Arrest for misconduct or neglect in office. 22. Arrest of females. 18. 19, 1. The second subdivision of this section provides that the defendant may be arrested " in an action for a fine or penalty, or on a promise to marry, or for money received, or property embezzled or fraudulently misapplied, by a public officer or by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation, or banking associa- tion, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capa- city, or for any misconduct or neglect in office or in a professional employment." A portion of the subdivision was contained in the Code of 1848, but was changed to its present form in 1849. 2. In an action on a proraise to marry brought against a female, the defendant cannot be arrested, since this sub- division is governed by the latter part of subdivision 5, which provides that no female shall be arrested in any 3 26 PEO VISIONAL REMEDIES. [Ch. I. action, except for a willful injury to person, character, or property.^ 3. "Whether a public officer of a foreign government could be arrested under this subdivision was for some time a matter of doubt ; but it seems finally to be settled that he may be. A foreign government or its duly autho- rized agents, may sue in the courts of this state, and there are no reasonable grounds for excluding them from all the provisional remedies attending such suit which are available to. other creditors.^ 4. An attorney, solicitor, or counsellor may be arrested in an action for money received, or property embezzled, or fraudulently misapplied, in the course of his employ- ment as such. But if the money is received in a private capacity and not as an attorney, solicitor, or counsellor, he stands upon the same footing as a private individual, and is not liable to arrest. "Where, however, an action is brought against an attorney for moneys received by him, the presumption is that he received it in his official capa- city, and it is for him to rebut this presumption and show that it was not so received.' 5. An attorney is not exempted from arrest by the fact that he resides and practices his profession in another state where the money withheld by him was received, upon demands left with him for collection. In such case, the defendant cannot set up, to shield him from arrest. The law of the state where he resides or where the busi- ness was transacted for the lex loci contractus governs only the right and not the remedy by which that right is en- forced.* 6. In general, an attorney is not liable to an action for money collected by him, until after a demand or instruc- iShief V. Tuppey, 3 Code, K., 23. ' See Smedesv.Elmendorf, 3 John., 2 See Peel v. Elliott, 16 How., 481 ; 185. Mexico V. Arrangois, 11 How., 1, *Yates v. Blodeett, 8 How., 278. 676. § III.] ARREST AND BAIL. 27 tions to remit ; ^ but he may waive the right to a demand, and where an attorney in correspondence with his client denied his liability, and set up a claim against his client to a larger amount, it was held to be a waiver of a de- mand.^ 7. "Where a counsel receives money in an action, and pays it over to his attorney, after notice from the client not to pay it over, he will be liable.^ In an action against an attorney for money received by him, the presumption is that it was received in his official capacity, and the bur- den is on him to rebut such presumption.* And where an attorney receives money to invest on bond and mort- gage, but retains the money, and it appears that he would not have been employed, had he not been an attorney, he is liable to be summarily required on motion to pay it.° So, when an attorney receives money to be applied to a specific purpose, and before it is thus applied, the princi- pal demands it back, but the attorney refuses to return it, being under the impression that he cannot do so in justice to a third person, he may be arrested although guilty of no fraud, or intentional breach of trust.* 8. If one of two attorneys, who are partners, receives money collected for a client of the firm and embezzles or absconds with it, the other partner will be liable to an action for the money. Each is responsible for the acts of the other within the scope of the partnership.'' But, whether he could be held to bail is doubtful. Though the latter decisions are, that, in a mercantile partnership, all the partners may be held to bail for the fraudulent acts of 1 Stafford t. Richardson, 15 Wend., ^ Grant's case, 8 Abb., 357. 302 ; see 7 Wend., 320. egohadle v. Chase, 16 How., 413; ^Waldrat v. Meynard, 3 Barb., Gross v. Graves, 19 Abb., 95. 584 ; see 7 Wend., 320. 'McFarland v. Crary, 6 Wend., s Matter of Bleakley, 5 Paige, 311. 297 ; Warner v. Griswold, 8 Wend., *See Smedes v. Elmendorf, 3 605. John., 185. 28 PROVISIONAL REMEDIES. [Ch. I. one of them in purchasing goods for the use of the firm.^ A principal, however, is not liable to arrest for the fraud of his agent, provided he does not participate in or ratify it.^ 9. When an attorney refuses to pay over money col- lected by him in his professional capacity, he is guilty of professional misconduct ; and it is not so much a breach of contract, as a violation or neglect of professional duty, since he is bound to pay over the money as a professional duty imposed upon him, and which the court may enforce by attachment.* 10. An officer or agent of a corporation or banking association is also liable to arrest in an action against him for money received, or property embezzled, or fraudulently misapplied in the course of his employment, as such, or in a fiduciary capacity. But the liability of an officer or agent to arrest does not result from the fact that his liability in the action arises from his agency ; he must be the officer or agent of a corporation or banking associa- tion, and the action must be against him for money re- ceived, or property embezzled or fraudulently misapplied in the course of his employment as such ; or it must be for money received by him in a fiduciary capacity.^ In an action for damages sustained by a stockholder of a corpo- ration, against directors and officers, for their fraudulent acts in disposing of the corporate property, the defendants may be held to bail.° 11. So any factor, agent, broker, or other person may be arrested for money received in a fiduciary capacity. The term "fiduciary" involves the idea of trust and confidence. It refers to the integrity and fidelity of the party trusted, rather than to his credit or ability to pay, " and contemplates good faith, rather than legal obligation iComan v. Allen, 21 How., 114; sgtage v. Stevens, 1 Denio, 267. Townsend v. Bogart, 11 Abb., 355 ; * Stoll v. King, 8 How., 298. 9 Abb., 58. s Crook v. Jewett, 12 How., 19. ^Claflin V. Frank, 8 Abb., 410. § m.] ARREST AND BAIL. 29 as the basis of the transaction. Thus, where an agent is employed to collect money, he acts under a special trust ; the money he receives is not his own, but he is bound to pay it over in specie to his principal, and he acts in a fiduciary capacity.^ The true criterion as to whether or not a person is acting in a fiduciary capacity is to deter- mine whether the specific money received ought in good faith to have been kept and paid over to the principal ; or whether the defendant, upon receiving such money, had the right to use it as his own, holding himself account- able to his principal for the debt thus created.^ 12. A person cannot be said to have acted in a fiduciary capacity who receives money upon an agreement that he may use it for his own purposes in his own business, and hold himself responsible to his principal for the amount. Thus, whfsire the defendant was consignee and agent of a ship owned by the plaintiff", which was sold and the pro- ceeds received by the defendant, and it was the duty of such consignee to take general charge of the ship, pay all expenses relating to her, sell her, pay all expenses of sale, and account to the plaintiff", not for the whole balance of proceeds, less his commissions, but for the balance due on general account, it was held, that he was trusted as a debtor, rather than as an agent in a fiduciary capacity, and was not liable to arrest for not paying over all the proceeds of the ship.* 13. The term " fiduciary capacity " tends to show what is meant by factor, agent, or broker ; that is, one in whom trust is reposed — such as is usually reposed in those per- sons in their ordinary and regular business — or, in other wordsj a trust that they will sell and immediately remit the amount of proceeds after deducting their commis- sions. But factors * or commission merchants, doing 1 StoU V. King, 8 How., 298. oGoodrioli v. Dunbar, 17 Barb., 644. 2 Id. 4 Id. 30 PROVISIONAL EEMEDIES. [Ch. I. business in the ordinary way, that is, receiving property from the consignors from time to time, paying the freight and charges thereon, and making sales and collections in their own names, placing the proceeds to their own credit in their bank account, charging their commissions and payments made on account of the property, and making remittances to, and accepting and paying 'drafts of the consignors, do not act in a fiduciary capacity, and are not liable to arrest.-' 14. Thus, where the plaintiffs made several consign- ments of flour to the defendants, who were commission merchants doing business in Albany, and the defendants paid the freight and charges and opened an account with the plaintiffs, and made sales of the flour from time to time, charging their commissions and payments made on account of the flour, and crediting the proceeds of sales. They made remittances' to the plaintiff, and the plaintiff drew upon them, in one instance at thirty days. They were doing a large commission business, made the sales and collections in their own names, and placed the pro- ceeds of all sales to their own credit at the bank. It was held that the defendants were not acting in a fiduciary capacity, but that the relation between the parties was that of debtor and creditor.^ The case of Schudder v. Shiells,^ which holds that a commission merchant, receiving butter to sell on commission, acts in a fiduciary capacity, is referred to in the above decision, and the judge says : " This case (Schudder v. Shiells), I think can only be sustained upon the understanding that the plaintiff made the defendant (a commission merchant in New York), his agent specially to sell the butter, and to remit to the plaintiff the money received for it." "It does not appear in the case that iDuguid v. Edwards, 32 How., = Dug^ij ^ Edwards, 32 How 254; but see Ostell v. Brough, 24 254. How., 274. s 17 How., 420. § III.] ARREST AND BAIL. 31 there was more than one shipment of buttei', and it does not appear that the defendant paid the freight or any charges, or was at any expense on account of the butter." The case of Ostell v. Brough was not referred to. In the" latter case the plaintiff was a lumber dealer in Montreal, and consigned lumber to the defendant at "West Troy, to be by him sold on commission — such commission being eight per cent, which included a premium for guaranty- ing sales — and to account for the net proceeds after deducting charges and commissions. It was held that the defendant was acting in a fiduciary capacity, and for any failure to remit proceeds could be arrested.^ 15. To render an agent, receiving money in a fiduciary ca;pacity, liable to arrest, it is not essential that he be guilty of fraud or an intentional breach of trust. So, that when an agent receives money for a specific purpose, but before it is applied to that purpose and while it is in such agent's hands, the principal demands its return to him, but the agent refuses to return it, under the impression that he cannot do so in justice to a third party; he is, neverthe- less, liable to arrest.^ So where an agent withholds money from his principal, under the belief that by paying it over he would render himself liable to a third party, who has interposed a claim to such money ; he is not thereby ex- empted from arrest.^ 16. An agent employed to collect money for his princi- pal ; * a factor receiving money to invest in certain goods, or for a specific purpose ; * an agent employed to sell goods and account weekly ;° a person receiving money from another to pay to a third person ; '' one employed to sell goods as a pedler and return to the plaintiff the pro- 1 24 How., 274. 6 Noble v. Presoott, 4 E. D. Smith, 'Sohadle v. Chase, 16 How., 413. 139. ' Gross T. Graves, 19 Abb., 95. « Turner v. Thompson, 2 Abb., 4 Stoll T. King, 8 How., 298. 444. ' Burhaus v. Casey, 4 Sandf., 706. 32 PROVISIONAL REMEDIES. [Oh. I. ceeds of tlie goods sold, with any goods not sold ; ^ an in- dividual receiving property to be delivered to others, and to receive the pay therefor ; ^ an auctioneer receiving goods to sell at auction under an agreement that he shall have all over a certain sum for his services ; ^ a stock broker receiving money for the express purpose of pur- chasing certain stocks ; ^ the surety on a lease entrusted vrith money to pay the rent ; ° and a broker employed to sell exchange on a foreign country, at a certain rate over and above his commissions ; ^ act in a fiduciary capacity, and are liable to arrest for any failure to account, or for a misappropriation of the proceeds. 17. So the clerk of a corporation, abstracting and con- verting its shp,res, whether belonging to, or deposited with, such corporation ; ^ or a party with whom stock is pledged as collateral security for a usurious loan, and who refuses to return such stock on demand, may be arrested and held to bail.' So, where the agent of the plaintiff depo- sited money in the bank to the credit of the defendants, a firm, without their knowledge, and .the plaintiff after- wards wrote them to remit the money by draft, and they remitted instead of the draft, a bill of exchange on a branch of their house, payable at sixty days sight, which the plaintiff refused to accept, the defendants failing before maturity and leaving the bill unpaid, it was held that the defendant, one of the copartners, was liable to arrest in an action against the firm to recover the money .^ 18. But it is only when they act in a fiduciary capacity, that factors, agents and brokers are liable to arrest. 'Redder. V. Whitlock, 12 How., 'Burhaus v. Casey, 4 Sandf., 706. 209. eBarritt v. Gracie, 34 Barb., 20. 2FrostT. MoCarger, 14How., 131. 'N. Railway t. Carpenter, 4 Abb., sHolbrook t. Horner, 6 How., 47; 13 How., 222. 86; see contra. Commonwealth t. *Cousland t. Davis, 4 Bosw., 619. Stearns, 2 Met. R., 843. oBuU v. Melliss, 9 Abb., 58; fully ^Dubois V. Thompson, 24 How., stated 1 Til. & Sher. Pr., 562. 417. § III.] AflREST AND BAIL. 33 "Where the nature of their engagement is such as to im- ply a credit, or a legal responsibility to their principal, as for a balance of account, the relation of debtor and credi- tor exists between them and such principal, and they can- not be held to bail. Thus, where the defendants received goods from R upon conditions of making an advance to him thereon, and consigning the goods to a responsible foreign house for sales and returns, and agreed to pay to E, any surplus over the advance, E. agreeing to make good any deficiency if the returns fell below the advance, and the defendant thereupon consigned the goods to the plaintiff) inclosing R's instructions as to sales, and drew on the consignees for about the amount of their advance to E and their draft was paid. After the sales, there proving to be a deficiency, the defendant collected a part of such deficiency from E, but failed to pay it over to the plaintiffs It was held that the defendants were not act- ing in a fiduciary capacity.^ So, where the defendant, a banker, was employed by the plaintiffs as such to receive their deposits, collect their bills and credit the amount, with the agreement that he might use the money, paying drafts on him when presented and allowing interest on balance at five per cent. And on the 15th of August de- fendant received from plaintiff a draft for $4,000, to be collected and passed to their credit, payable the 25th of same month. On the 24th the defendant knew that he was insolvent, collected the draft on the 25th, and after- ward and on the same day suspended. It was held that the money was not received by the defendant in a fidu- ciary capacity ; that he did not wrongfully convert the property of the plaintiff and that he was not guilty of a fraud in contracting the debt for which the action was brought, nor in disposing of the property, the pro- ' Angus V. Dunsoomb, 8 How., 14. 34 PROVISIONAL REMEDIES. [Ch. I. ceeds of the draft.' So, wliere the defendant was agent iand consignee of a ship owned by the plaintiffs, whose dtity it was to take a general charge of the ship, pay all expenses relating to her, sell her and pay the expenses of sale, and account to the plaintiffs for the balance due on general account. The defendant having sold the ship and retained the proceeds, and an order of arrest having been obtained against him, . the same was vacated by the gene- ral term.^ 19. Where one is liable to arrest for money received in a fiduciary capacity, and the principal takes the note or check of the agent for such liability, and the note or check is dishonored, it is no bar to an arrest in an action on the original liability, if a return of the note has been made or offered. But, if the action is brought on the check or note, it is otherwise, and the defendant cannot be held to bail.^ Where a party has been defrauded and, with full knowledge of the fraud, settles the matter in relation to which the fraud has been committed, he has no claim to relief at law or in equity on account of such fraud.^ 20. The recovery of judgment in the courts of this state, merges the cause of action, and in an action on such judgment the defendant cannot be held to bail, even though he might have been for the original liability. So, also of the recovery of judgment in the courts of any other state of the union.* But the judgment of a sister state can have no greater effect here, than belongs to it in 1 Bussing V. Thompson, 15 How., 20 How., 25; see otherwise, Alliance 97; 6 Duer, 696. Ins. Co. v.. Cleyeland, 14 How., 408. 2 Goodrich v. Dunbar, 17 Barb., * Adams t. Sage, 28 N.Y. B,., 103. 644. ^Mallory v. Leach, 14 Ahh., 449, sghipman v. Shafer, 14 Abb., note; Goodrich v. Dunbar, 17 Barb., 449 ; Merchants' Bank t. Dwight, 64'4 ; Suydam t. Barber, 18 N. T. 13 How., 366 ; Harding y. Shannon, R., 468. § III.] ARREST AND BAIL. 35 the state where it was rendered.^ The rule is otherwise with a foreign judgment ; such judgment is not conclusive between the parties, and the plaintiff has his election to sue either upon the judgment or upon the original cause of action.^ So, a preliminary inquisition on an English extent, though made by a jury and placed on record in the court of exchequer, has not, being purely an ex parte pro- ceeding, the effect of merging the original cause of action or of depriving the plaintiff of a provisional remedy incident to that cause in an action brought in this state. A record to have that effect must be the result of the proceeding of a court in which jurisdiction has been acquired of the person of the defendant.' 21. The defendant may likewise be arrested in an action for any misconduct or neglect in office, or in a professional employment. An attorney embezzling or misapplying money collected for his client is guilty of misconduct in a professional employment. * 22. A female cannot be arrested under this subdivision since it is governed by the latter part of subdivision five, which provides that no female shall be arrested in any action except for a willful injury to person, character or property. 1 Suydam v. Barber, 18 N. T. K., a Peel v. Elliott, 16 How., 481. 468. ■* Stage v. Stevens, 1 Denio, 267. 2 Arthurton Y. Dalley, 20 How. , 311. 36 PEOVISIONAIi REMEDIES. [Ch. I. SECTION" IV. IN ACTIONS TO RECOVER PERSONAL PROPERTY. 1. For concealing, remOTing or diBposing of property. 3. Action must be for recovery of property in specie. 3. Plaintiff cannot have both arrest and delivery of property. 4. What mnstbe shown on the application for the order. 5. Intent, how charged. 6. Where property was disposed of before suit brought. 7. Arrest of females for — 8. Form of the order. 1. The third subdivision of the section provides that the defendant may be arrested : " In an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed, or disposed of so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof." The subdivision was settled at its. present form in 1849, except the latter clause as to the intent which was added in 1851. 2. In order to procure the arrest of the defendant under this subdivision, the action must be for a recovery of the property in specie, and not an action for damages for the wrongful conversion or detention of property. In the ordinary case for converting property, or detaining it in hostility to the claims of the true owner, the order of arrest must be under the first subdivision, which is satis- fied with bail that the defendant shall render himself amenable to the process and judgment of the court. Whereas an arrest under this subdivision can be super- seded only by an undertaking to deliver the property to the § rV.] ARREST AND BAIL. 37 plaintiff, if such delivery be adjudged, and to pay any judgment that may be recovered.' 3. The plaintiff has his election to proceed to recover possession of the property as provided by section 206, or to recover damages for the taking or detention thereof ; and having once made his election, he must abide by it. He cannot have the defendant arrested and have a delivery of the property too, pending the litigation. If he elects to proceed under this subdivision, and has the defendant arrested, he cannot afterwards obtain possession of the property while the action is pending.^ The relief de- manded in the pleadings will determine the character of the action, and if the relief demanded is only a certain amount for damages, an arrest cannot be had under this provision, although it may under subdivision first.* The relief demanded should be the possession of the specific property, or the value thereof, in case a delivery cannot be had, and of damages for the detention.* 4. It was formerly held that the defendant was liable to arrest if the property had been removed, however inno- cently, so that it could not be found by the sheriff; * but it is now well settled otherwise, both by the courts and legislative enactment.* As the law now stands, it must appear to the judge to whom the application is made, that an attempt has been made by the sheriff to take the pro- perty ; that it has been removed, concealed or disposed of so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit ^Code, l^ 187, 211; Seymour v. ^VanNestev. Connover 5 How., Van Curen, 18 How., 94. 148. 2 Chappell V. Skinner, 6 How., 338. « See ? 179, sub 3, as amended in s Seymour v. Van Curen, 18 How., 1851, cited above ; Roberts v. Kan- 94 ; see Elstou v. Potter, 9 Bosw., dall, 5 How., 827 ; Pike t. Lent, 4 631. Sandf., 650. <■ I 277. 38 PROVISIONAL REMEDIES. [Oh. I. tliereof.1 The attempt of the sheriff to take the property and the fact of its removal, etc., may be proved by the sheriff's certificate or return. But the oflS.cer will very rarely be able to certify as to the intent. That must be shown by /acte set forth in the . affidavit upon which the application for an order of arrest is founded. The mere belief of the party or sheriff that the property has been . removed, concealed, or disposed with the intent above stated, will not be sufficient ; but the facts upon which the belief is founded should be fully set forth. 5. It will undoubtedly be proper to charge the intent in the alternative ; that is, to allege that the property was removed, etc., with the intent that it should not be found or taken by the sheriff, or with the intent to deprive the plaintiff of the benefit thereof. In an attachment suit it was held that where there may be one of two several intents coupled with an act, and an attachment is issued on an affidavit alleging the act with one of these intents, it will be sustained by proof of the other intent ; as where an attachment was granted upon affidavits alleging de- parture from the state with intent to defraud creditors, the attachment was sustained by proving the departure with intent to avoid the service of a' summons,^ and from the obvious analogy between the two proceedings, the same rule should be equally applicable to cases under this section. 6. The action for the recovery of the possession of spe- cific property can be maintained, even though the defend- ant has wrongfully parted with the possession of such property before the suit was brought, or even before it was apprehended.^ The decisions to the contrary have all been overruled. But to authorize an arrest in the action, iMulveyv. Davison, 8 How., Ill; 309 ; Ward v. Woodburu, 27 Barb., Watson V. MoGuire, 33 How., 87. 346; Nichols t. Michael, 23 N. Y. ^Morgan v. Avery, 7 Barb., 656. K, 264; Eoss v. Cassidy, 27 How., s Brookway T. Burnap, 16 Barb,, 416. § IV.] ABREST AND BAIL. 39 if the disposition or removal took place before suit brought, it must be shown to have been done to render ineffectual the proceedings in the suit, which the defend- ant knew, or had reason to apprehend, the plaintiff intended to bring to recover the possession of the pro- perty.^ The ground of the arrest is not simply the removal or concealment of the property, but such re- moval or concealment, coupled with a fraudulent intent. So, that if the defendant has parted with the possession in the usual course of business before suit brought, he cannot be held to bail.^ 7. It is not probable that a female can be arrested under this subdivision, although in one of-the earlier cases it was held otherwise.^ The word "property," as used in this subdivision, does not mean plaintiff's interest or estate ; and a concealment or removal of property is not a willful injury to property.* But where a female had disposed of property and converted the proceeds, it was held that she could be held to bail.' 8. The order of arrest granted in an action to recover the possession of specific personal property, should con- form in its recital to the recital in the complaint. An order in such case reciting that the cause of action is a detainer or conversion, and requiring the sheriff to hold the defendant to bail in a specific sum, is unauthorized. The ground of the arrest is the concealment, removal or disposition of the property with a fraudulent intent, and the order must require an undertaking as provided by section 211.^ 1 Mulvey v. Davison, 8 How., Ill ; * Tracy v. Leland, 2 Sandf., 729. Pike V. Lent, 4 Sandf., 650. SNortheru R.B. v. Carpenter, 13 2 Pike V. Lent, supra. How., 222 ; 3 Abb., 259. 3 Starr v. Kent, 2 Code R., 30. CBlston v. Potter, 9 Bosw., 631. 40 PROVISIONAL REMEDIES. [Ch. I. SECTION" V. FRAUD IN CONTEACTING DEBTS, ETC. Tot fraud in contracting a debt. Fraud not to be alleged in tbe com- plaint. Definition of words "deit" and "obli- gation." Purchaser not bound to reveal Ms insolv- ency. tfnless he has made assignment, etc. Where purchaser buys goods with intent not to pay for them. Purchaser held to intend the legitimate consequences of Ms acts. Actual intent to'be proved — when may show similar frauds. As to duty of vendor in making inqui- ries. Various cases of fraudulent representa- tions. When fraudulent representations were made in foreign country. 13. Fraud must be personal ; when princi- pal liable for fraud of agent. 13. When all the partners can be arrested for fraud of one. 14. In actions tot fraud or deceit. 15. What is fraud or deceit. 16. Falsely representing a third party as responsible. 17. Fraudulent representations in the sale of land, etc. ^ 18. What representations are not fraudu- lent. 19. Agent contracting without authority. SO. The effect of taking a note or security for the debt. 21. Of a settlement after knowledge of fraud. 22. Of a judgment for the debt contracted in fraud. 28. Females not arrestable for fraud. 1. " Where the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought ; or in concealing or disposing of the property, for the taking, detention or conversion of which the action is brought ; or where the action is brought to recover damages for fraud or deceit,"^ the defendant may be arrested. The last clause of this subdivision was added in 1863. 2. The grounds on which the order of arrest is sought, under the first clause of this subdivision, should not be set forth in the complaint. The action must be on the debt or obligation, and the right to the order depends upon facts extrinsic to the cause of action, and which are not 1 Code, I 179, sub 4. § v.] ABEBST AND BAIL. 41 identical with or inherent in the cause of action itself. Those facts should only be set forth in the affidavits or other papers relied upon to procure the order of arrest. Fraud is not the gist of the cause of action, although it is of the cause of arrest.^ 3, The words " debt " and " obligation " in this connec- tion imply a liability arising upon contract. " Debt " im- plies a fixed and absolute liability, a. sum actually due from one person to another ; while "obligation" includes an in- choate and conditional liability whose fixed character is to be determined by subsequent events. The section obvi- ously contemplates a debt or obligation arising ex con- tractu on which an action will lie whether contracted or incurred with or without fraud. It has no relation to a cause of action arising wholly out of fraud of the party and which must fail if the fraud is not proved. But the defendant can be held to bail in the action only when he has been guilty of fraud.^ 4. The law does not in ordinary cases impose upon the purchaser the duty of disclosing . to the seller the state of his pecuniary circumstances, no matter how desperate they may be ; and the rule is the same notwithstanding the fact that there has been a long course of dealing between the parties, and the insolvency of the purchaser has occurred during such dealing. Therefore, although ■& purchaser at the time of making a purchase from one with whom he has been in the habit of dealing, is insolvent and knows himself to be so, and intentionally conceals it from the vendor, by simply withholding his knowledge on the sub- ject, and he still retains the possession of property and is iMoGovern v. Payne, 32 Barb., ^McGovern v. Payne, 32 Barb., 83 ; Bee also, Crandall v. Bryan, 15 83 ; Smith t. Corbiere, 3 Bosw., How., 48; Smithy. Kuapp, 8 N. y. 634; see, however, Crandall v. B.., 581. Bryan, 15 How., 48. 42 PROVISIONAL REMEDIES. [Ch. I. pursuing his business as before, he is not thereby guilty of a fraud that would justify his arrest.^ 5. Eut, if the purchaser says any thing or does any thing to mislead, or resorts to any artifice to conceal his circum- stances it is otherwise. So, if at the time of making the purchase he is not only insolvent, but has per- formed an open and notorious act of insolvency, by breaking up his business and assigning his property for the benefit oif his creditors, it is his duty, arising out of his previous dealings with the vendor, to communicate that fact to the vendor, before the sale ; and the violation of that duty amounts to a fraud.^ 6. So, also, if the purchaser conceal the fact of his in- solvency with the design of procuring the goods and not paying for them, it will be a fraud that will render the sale void, and the purchaser liable to arrest.^ And the design or intent will be inferred, from the purchaser's acts, taken altogether, although denied by him under oath.* 7. A purchaser who obtains goods by false representar tions, must be held to intend the legitimate consequences of his acts ; and it will be unavailing for him to say that he did not mean at the time to defraud the plaintiff.® It must be shown, however, that he knew that the representa- tions were false ; for if he believed them to be true at the time he made them, he was not guilty of any fraud, how- ever false in fact they may have been.^ 8. In all cases where fraud is charged, proof of actual intent ought to be required to justify an order of arrest. Fraud cannot be presumed in the absence of all evidence ■ Mitchell V. Worden, 20 Barb., * Morrison v. Garner, 7 Abb., 253; Hall v. Naylor, 18 N. T. E., 426. 588 ; 24 id., 139 ; McDonald v. 6 Whitcomb v. Salaman, 16 How., Christie, 42 Barb., 36. 533. 2 Id. « Gaffney v. Burton, 12 How., 516 ; s Hall V. Naylor, 18 N. T. R., 588 ; 28 Barb., 293. 24 id., 139 ; « 28 id., 486 ; Mitchell v. Worden, 20 Barb., 253. §V.] ARREST AJSTD BAIL. 43 on the subject. The deduction of fraud may be made, not only from deceptive assertiona, but from facts, inci- dents and circumstances connected with the transaction and the parties to it. "Where there is no overt act of fraud, resort is had to the various incidents and circum- stances which are calculated to exhibit the hidden pur- pose of the actor's mind. It is therefore competent to show that the party accused was engaged in other similar frauds at or about the same time ; but the transactions must be so connected in point of time and so similar in their character and other relations that the same motive may be reasonably imputed to them all.^ 9. In case of fraud it is always implied that the injured party has been deceived ; that he did in fact rely upon the fraudulent statements of the defendant ; otherwise it was his own fault or folly, and he cannot ask the law to relieve him. And some of the cases go farther still and hold that where the plaintiff could readily have informed him- self of the truth by making inquiries and neglected so to do he is remediless.^ Where a party has full knowledge of the entire transaction which he alleges to be a fraud upon him, or where it appears that .he had such know- ledge as ought to have put him on inquiry, especially where such inquiry might have been readily and easily made, it may be just and wise to hold that there is no fraud. But such cases extend the rule quite far enough. There ought to be such a thing as a right to confide in the statements of other persons, when deliberately made in business transactions ; and it has been recently held that every contracting party has an absolute right to rely on the express statement of an existing fact, the truth of which is known to the opposite party but unknown to iHallv. Naylor,.28N. Y. R., 486, 22 Parsons on Contracts, 270; 18 N. Y. E., 688 ; see also Hathorne White v. Seayer, 25 Barb., 236 ; 28 V. Hodges, 28 N. Y. R., 486. N. Y. E., 110. 44 PEOVISIONAL REMEDIES. [Ch. L him, as the basis of a mutual agreement ; and that such contracting party is under no obligation to investigate or verify statements, to the truth of which, the other party to the contract, with full means of knowledge, has de- liberately pledged his.faith.^ 10. Where a defendant represents himself to be good and responsible for the purchase price of goods, and that he has certain property of a value sufficient to pay for any goods he may buy, and shortly after, without any change in his circumstances having taken place, makes an assign- ment for the benefit of creditors, which assignment shows a deficiency of near fifty per cent, the inference of fraud is clear.^ So, if the purchaser, knowing himself to be insolvent, assures the seller that he is good and able to pay all that he contracts to pay, and the seller, relying on such representations, sells him goods, he is guilty of a fraud.^ It is not indispensable that representations should have been made by the purchaser ; it is enough that the goods were obtained with the fraudulent intent not to pay for them, and under circumstances that deceived, and which it was designed should deceive the vendor and induce him to part .with the possession of the goods.* Where the defendant obtained a large credit by repre- senting himself to be doing a prosperous business and as being able to meet all engagements he might make, and shortly after, suspended business and stopped payment, and fled from his creditors and home ; but refused to dis- close the cause of his sudden embarrassment and change of fortune ; it was held to be strong if not conclusive evi- dence of fraud, notwithstanding a denial on his part of any fraudulent intent.^ So, where a defendant borrows money on a promise to apply it to a particular use, but iMead v. Bunn, 32 N. Y. R., 275. *King v. Philips, 8 Bosw., 603. 2 Scudder T. Barnes, 16 How., » City Bank v. tumlev, 28 How 534. 397. 'Freeman v. Leland, 2 Abb., 479. § v.] ARREST AND BAIL. 45 applies it to another use, lie is liable to arrest for fraud in contracting tlie debt.^ 11. A defendant may be arrested in a civil action here for fraudulent representations made in the purchase of. property in a foreign country, of a foreign creditor, where such property, or its proceeds, are brought here by him, although he could not have been arrested for such act in the country where the goods were purchased. The lex fori and not the kx loci governs in such cases .^ But our courts have no jurisdiction of an action of tort brought by a citizen of one foreign state against a citizen of another foreign state for alleged injuries committed in one or both of those states.* 12. To authorize an arrest the fraud must be personal ; and therefore a principal cannot be held to bail for the fraud of his agent, though committed for his benefit, unless he participate in such fraud, or knowingly ratify it.* IS'or can a husband be arrested for the fraud of his wife.° So, where a husband contracted a debt, on the faith of a specific appropriation of money, part of his wife's separate estate, to the payment, but which she afterwards countermanded, he was not subject to arrest.* 13. Whether copartners can be arrested in cases where goods have been obtained upon fraudulent representations by one of the copartners, has been the subject of much difference of opinion and decision. The later cases, how- ever, hold that where the goods for which the debt was fraudulently contracted, are purchased for the use of the firm, and are received and used by the firm, all the members of the co-partnership are liable to arrest, al- I Lovell V. Martin, 11 Abb., 126. Abb., 165 ; Smith y. Ball, 17 Wend., 2 City Bankv. Lumley, 28 How., 323. 397. * Claflin v. Prank, 8 Abb., 412. 8Latourette v. Clark, 30 How., 6 Anon., 1 Duer, 613 ; 8 How., 134. 242 ; see Mussina v. Belden, 6 « Isaacs v. Gorham, 1 Hilton, 479. 46 PBOVISIONAL REMEDIES. [Ch. I. though part of them were ignorant of the fraud.^ Where goods are obtained for the use of a firm, by means of fraud of one of its members, the other partners by re- ceiving and participating in the use of the goods, will be held to have adopted the fraudulent act of the one who obtained them, and will be placed in the same condition in reference to the rights of the vendor of the goods, as if he had directed his partner to procure the property or had concurred with him in the transaction.^ But a deceit practiced by one of several joint debtors, in inducing the creditor to accept his check, post dated and indorsed by the other, is not a ground for authorizing his arrest in an action on the check against both.^ 14. As has been before stated, the first clause of this subdivision applies only to actions brought to enforce a contract liability; hence until the addition of the last clause in 1863, the defendant could not be held to bail in an action for fraud or deceit, unless he was a non-resi- dent of the state, or about to remove therefrom. But as the Code now stands, where fraud or deceit is the gist of the action the defendant may be held to bail under the latter clause of this subdivision. 15. Fraud which is actionable in a court of justice, con- sists either in intentional misrepresentations or conceal- ment as to the existence or non-existence of some fact or circumstance.* Fraud coupled with damages entitles the injured party to relief." It must now be regarded as settled that if a party makes representations in such man- ner as to import a knowledge in him of the facts, whilst, iComan v. Allen, 21 How., 114; 'Woodruff v. Valentine, 19 Abb., Townsend v. Bogatt, 11 Abb., 355 ; 93. Bull T. Meliss, 9 Abb., 58; and see *Famngton v. Bullard, 40 Barb., Sharp V. Mayor of N. T., 40 Barb., 512 ; AVillink v. Vanderveer, 1 BarTj., 257 ; but see contra, Hanover Co., 599. V. Shelden, 9 Abb., 240; Bull v. ^Baoonv. Bronson, 7 John. Ch., Meliss, 9 Abb., 58 note. ■ 194. 2 Hawkins v. Appleby, 2 Sand., 421. § v.] ARREST AND BAIL. 47 in reality, he has no knowledge of such facts, and the re- presentations are made with the intent that another shall rely on them, and that other does rely on them, and those representations turn out to be false, it is as much a fraud as if the party making them knew them to be untrue.* 16. In an action to recover damages for false and fraudulent representations respecting the pecuniary re- sponsibility of third persons, the defendant is liable to arrest upon proof of the cause of action merely, without proof of non-residence or intent to depart.^ 17. It was held , prior to the addition of the last clause, that fraudulent representations in the sale of land were grounds of arrest under the first clause of this subdivi- sion ; * but since the amendment, an arrest in such case would clearly come under the latter clause. So, false re- presentations by a mortgagee relative to the contents of the mortgage, is a ground of relief, notwithstanding the mortgage is on record ; and the fact that the defrauded party had means of ascertaining the truth of the repre- sentations, or that the circumstances gave him constructive notice that they were false, will be no answer in an action for the fraud.* Every contracting party has an absolute right to rely on the express statements of an existing fact, the truth of which is known to the opposite party and unknown to him, as the basis of a mutual agreement ; and he is under no obligation to investigate and verify statements to the truth of which the other party to the contract, with full means of knowledge, has deliberately pledged his faith." 18. The vendor of an article which has a secret defect unknown to him, such as dry-rot in the timbers of a ves- 1 Sharp V. Mayor of N. Y., 40 decided tefore the amendment of Barb., 256; 25 How., 389. 1863. »Hazlett V. Gill, X9 Ahb., 353; a Crandall t. Bryan, 5 Abb., 164. the case of Smith v. Corbiere, 3 *Mead v. Bunn., 32 N. Y. B., 275. Boaw., 634, to the contrary was ^ Id. ^g PKO VISIONAL REMEDIES. [Oh. I. sel, is not liable for fraud in representing the thing to be sound. If the seller is ignorant of any unsoundness or other defect in the article sold, a mere representation of soundness will not render him liable. To render the ven- dor accountable under such circumstances, he must be required to warrant the thing sound, or free from defect.^ A seller of goods is not bound to answer as to quality or goodness of the article sold unless he expressly warrants the goods to be sound and good; or unless he makes fraudulent representations, or uses some fraudulent con- cealment concerning them, and which amounts to a war- ranty in law.^ 19. Whenever a person enters into a contract as agent for another, he warrants his own authority, unless very special circumstances, or express agreement relieve him from that responsibility. If he contracts as such agent without authority from the principal, the party contracted with on learning the fact, has the right to repudiate the contract, and to hold the assumed agent immediately re- sponsible for damages ; and he may have an action for the deceit.' 20. Where one has been guilty of a fraud in contracting a debt or incurring an obligation, and the creditor or obligee takes the note or check of the party practicing the fraud, and the note or check is dishonored, it is no ' bar to an arrest in an action on the original liability, if a return of the note has been made or oflFered.* Thus where the defendant purchased beef cattle and agreed to pay cash for them on delivery ; and -wfhile the plaintiff and defendant were consulting as to payment, the de- fendant's agent drove off the cattle and had them slaugh- iBrainard t. Spring, 42 Barb., ^ Shipman v. Shafer, 14 Abb., 470; see McDonald t. Christie, Id., 449; Merchants Bank v. Dwight, 36. 13 How., 366 ; see otherwise Alli- '2 Kent Com., 643. anoe Ins. Co. T.CIeaveland, 14How., 'White T. Madison, 26 How., 481. 408. § v.] ARBE8T AND BAIL. 49 tered tte same day ; and the defendant thereupon induced the plaintiff to accept a draft, assuring him that it would be honored at sight ; but which was dishonored and value- less : and arrest for the original fraud was sustained.* Nor does the acceptance by the creditor of bonds, merely as security for the demand, and which are inadequate se- curity, preclude the arrest.^ 21. But if a debt or obligation contracted in fraud is settled, with full knowledge of the fraud' by a new con- tract the defendant cannot be held to bail in an action upon such new contract, by reason of the original fraud. So, where a party has been defrauded and with full know- ledge of the fraud settles the matter in relation to which the fraud has been committed by a new contract upon different terms and upon additional consideration, he has no claim to relief at law or in equity on account of such fraud.* 22. The recoveryof a judgment in the courts of this state, for any debt or obligation contracted in fraud, merges the cause of action, and the defendant cannot be arrested in an action on such judgment.^ The rule is the same as to a judgment recovered in any other state of the union, provided that, by the law of such state, the judgment merges the original cause of action.* But not otherwise as the judgment of a sister state has no greater effect here than belongs to it in the state where it was recovered.* The same rule does not apply in regard to a judgment reco- vered in a foreign country. Such judgment is not conclu- sive between the p'arties, and the plaintiff" has his election to sue either on the judgment or on the original cause of action. So, a preliminary inquisition had on an English ' Harding v. Shannon, 20 How., note; Goodrich y. Dunbar, 17 Barb., 25. 644. 2 Dubois T. Thompson, 1 Daly, ^M. 309; S. C, 25 How., 417. sid., Suydam v. Barber, 18 N. 3 Adams v. Sage, 28 N. Y. R., 103. T. R., 468. * Mallory v. Leach, 14 Abb., 449, 50 PROVISIONAL REMEDIES. [Ch. I. extent, though made by a jury and placed on record, has not, being purely an ex]parte proceeding, the effect of merging the original cause of action, or of depriving the plaintiff of a provisional remedy incident to that cause in an action in this state. A record, to have that effect, must be the result of the proceeding of a court in which jurisdiction has been acquired of the person of the defend- ant.^ 23. A female cannot be arrested for fraud in contracting a debt, or incurring an obligation.^ But it seems that a false representation by a married woman, carrying on a separate business, that she was making the contract for the use and benefit of such business would render her liable for the prices stipulated in the contract ; she could not, however, be held to bail.* iPeelv. Elliott, 16 How., 481. 'Coster v. Isaacs, 16 Abb., 328; "Wheeler v. Hartwell, 4 Bosw., see Baldwin v. Eimmel, 16 Abb., 684. 353. §VI.] ARREST AND BAIL. 51 SECTION VI. FRAUDULENT BEMOVAL, ETC., OF PROPEETT ; ARREST OF FEMALES. 1. Sul)iiivlBion5,§179. Attempt to defrand creditors. 3. Proof of actual intent required. 3. What facts are sufficient to justify order. 4. EfTect of an assignment. G. Eefusal to pay debt not evidence of fraudulent intent. 6. Threat to assign, whien evidence. 1. Eemovlng property tlirougli ignorance of thelavr. 8. Partner cannot arrest co-partner. 9. Fraudulent disposition, etc., in ano- ther state, or country. 10. Concerning the secrecy of the removal. 11. Questions hearing upon the fraudulent disposition of property. 13. Arrest of females. 13. Arrest of married women. 1. The fifth and last subdivision provides for an arrest, "When the defendant has removed, or disposed of his property, or is about to do bo, with intent to defraud his creditors. But no female shall be arrested, in any action, except for a wiUful injury to person, character,^ or property." 2. Proof of an actual intent to defraud creditors must be given to justify an order of arrest under this subdivi- sion since the intent with which the property is disposed of is the gist of the cause of arrest; and the question of intent is one of fact and not of law, and must be proved by the circumstances and incidents connected with the trans- action.* The more humane interpretation should be given to the statute and where there is no evidence of actual fraud in a debtor he should not be subject to arrest for acts only constructively fraudulent.'' So, where the acts or statements of a party are susceptible of two interpretations. 1 Pacific Mutual Ina. Co. v. ' People v. Kelley, 35 Bart., 444 ; Machado, 16 Abb., 451. 13 Abb., 405. 52 PROVISIONAL REMEDIES. [Ch. L one indicating a fraudulent, and the other a lawful and honest purpose, the latter is to be adopted.^ 3. Under the non-imprisonment act of 1831, the language of which is similar to the above subdivision, where it appeared that the defendant had left the state two months before, and had gone to Canada, with intent to remain there, and had taken with him some portion of his per- sonal property; that he had no family and but little property ; that he was offering his property in this state for sale ; that he told the plaintiff that " he would be damned glad if he ever got his pay of him ; " thait no civil process could be served on him, because he kept out of the state; and that he refused to pay any thing on plaintiff's debt. It was held that these facts proved a strong case of intent to dispose of property to defraud creditors.^ So, where the defendant was carrying on busi- ness at his stores on the day on which the plaintiff's demand was presented for payment, and then told the plaintiff to call in three days and he would pay it ; and it appeared that on the third day both his stores were in the possession of other persons, claiming under a bill of sale, dated the preceding day, and that the defendant could not be found on diligent search, it was held to be sufficient to sustain an order of arrest.^ 4. The making of an assignment constructively fraudu- lent is not a ground of arrest in itself; a fraudulent in- tent must be shown. Thus, where an assignment was made by the defendant for the benefit of creditors, and the preferred creditors were therein enumerated, but no provision made for the surplus which might remain ; it was held that conceding the assignment to be void under the statute, it was only constructively so, and could not 1 Flour City National Bank t. Hall, ' Potter t. Sullivan, 16 Abb., 295, 83 How., 1. note. ii Kosenfield V. Howard, 15 Barb., 646. I VL] ARREST AND BAIL. 53 justify an order of arrest.^ But if, after an assignment for the benefit of creditors, the assignor retain and sell a part of the property assigned, the transaction is fraudulent and he may be arrested.' So, where it appeared, on a motion to vacate an order of arrest, that after the defend- ants had transferred their goods to another firm, one of the defendants admitted that they had made such transfer for the purpose of keeping their stock out of the hands of their creditors ; that it was really the same as if they still owned the goods ; and that they, the defendants, were still in possession ; this admission being corroborated by other evidence, it was held that the order of arrest should be sustained on the ground of fraudulent removal of pro- perty.^ 5. A mere refusal to pay or provide for a debt, however gross in its nature, does not necessarily show intent of a fraudulent disposal.^ !N"or, is a mere threat to make an assignment of property, granting preference to others, unless the plaintiff would accept certain terms, made in words which may be construed to mean that he would make a lawful assignment, proof in itself of a fraudulent intent.* l^or is the rule altered by the fact that the de- fendant had originally promised to give the plaintiff col- lateral security for his debt, if it is not shown that such security was to have been given out of the assets of the debtor.* For the debtor has the legal right to dispose of all his property to one or more preferred creditors with- out fraud, and without incurring any liability to attach- ment or arrest.^ 6. But, the debtor will not be allowed to use his power to assign, for the purpose of intimidating creditors from pur- 1 Spies T. Joel, 1 Deur, 669 ; Bir- ' Wilson v. Britton, 26 Bar!)., 562, ohell V. Strauss, 28 Barb., 293; 6 Abb., 97. 8 Abb., 53. • 6 Dickerson T. Benham, 20 How., 2 MoButt V. Hirsoh, 4 Abb., 441. 343 ; 12 Abb., 158. 'Phillips T. Benedict, 33 Barb., »Id., Rigney v. Tallmadge, 17 655 ; 12 Abb., 356. How., 556. *Hathorn v. Hall, 4 Abb., 227. g^ PBOVISIONAL REMEDIES. [Ch. I. suing the remedies allowed by law to collect their debts, without being chargeable with fraudulent intent.^ And, where a debtor refuses to pay a demand against him, and is told by the creditor that he will be sued, and thereupon threatens that if he is sued, he will turn over all his pro- perty, and that the creditor will not get a cent, the fraudu- lent intent is clear.^ 7. Where a judgment debtor, being advised by the officer who levied the execution, that certain property was exempt, carried it openly into another state ; it was held that whether it was so exempt or not, the debtor, not being at, all acquainted "with the law, was justified in doing so, at least as far as any fraud was concerned and could not be arrested under the law of 1831, the text of which is similar to this.* 8. One partner cannot have an order of arrest against a co-partner on an allegation under this subdivision. His only remedy to prevent the removal or disposition of partnership assets is by an action for an injunction and receiver.* Nor, can an arrest be had in a suit in equity to set aside an assignment for the benefit of creditors, or other instrument, on the ground that it was made to hinder, delay .or defraud creditors.^ 9. This provision is not limited to the citizens of our own state, but applies alike to citizens of any other state. So, that where the defendant is the resident of another state, where the fraud was committed, if he afterwards come here, he may be arrested notwithstanding that he could not have been arrested in his own state.' But it is held otherwise as to foreigners. It was decided that a fraudulent disposition of property in a foreign country to I Gasherie T. Apple, 14 Abb. , 64. 6 People t. Kelley, 35 Barb., 444. ^Livermore v. Ehodes, 27 How., ^Paljnerv. Kaufman. N. T. Supe- 506; see p. rlor Court, 1854; Hoff. Pro. Rem., s Krauth v. Vial, 10 Abb., 139. 83. < Gary v. Williams, 1 Duer, 667. § VI.] AEREST AND BAIL. 55 defraud foreign creditors, could not authorize the arrest of the defendant in this state, although he had brought the property with him.^, 10. It was held in one case that to come within the purview of this subdivision, the removal or disposal must be secret.^ But that conclusion is doubtful. The fraudu-' lent intent is the gravamen of the cause of arrest ; and secrecy is only one way of evincing such intent. It is very possible to remove or dispose of property openly and publicly, and yet do it with intent to defraud creditors. It has also been intimated in one case, at least, that an arrest could not be had under subdivision fifth, except in actions for the recovery of money; but the case was decided on other points and the above intimation wholly obiter.^ 11. The question bearing upon fraudulent disposition of property will be more fully considered hereafter under the head of attachments, to which remedy most of the reported decisions refer.'' 12. All of the subdivisions of section 179, are limited by the latter part of subdivision five, which provides, that " no female shall be arrested in any action, except for a willful injury to person, character, or property." Therefore, a female cannot be arrested in an action for a breach of promise of marriage® ; nor for the concealment or disposal of property;* nor for fraud in contracting a debt or incurring an obligation.'^ But a fraudulent con- version of property by a female, was held to be a willfiil injury for which she could be arrested. As where a female fraudulently took certificates of stock, disposed iBlason v. Bruno, 21 How., 112, ^ giefke t. Tuppey ; 8 Code R, 23. 33 Barb., 520. « Traoey v. Leland, 2 Sandf., 729 ; 2 Anon., 2 Code R., 51. overruling Starr v. Kent; 2 Code R.. 3 People T.Kelly, 35 Barb., 444, 30. per Bockes. 'Wheeler v. Hartwell, 4 Bosw., *Chap. IV, sec. 1. 684. 5g PROVISIONAL REMEDIES. [Ch. I. thereof and converted the proceeds to her own use. ^ As a female cannot be arrested before judgment in any action, except for a willful injury, etc., so she cannot be taken in execution after judgment except in the like cases.^ 13. The above provision has no relation whatever to married women, and the common law which exempts them from arrest in all civil actions remains unchanged. So, that even in action for willful injury to person, charac- ter, or property, a married woman is not arrestable.* The superior court of New York, have decided that the Code did not authorize the arrest of the husband either upon the contract or tort of his wife.* But, the iN'ew York common pleas hold that the husband can still be arrested for the torts of his wife, and, that he was bound to put in bail for both; and that though the wife is entitled to a discharge in the first instance, on proof of coverture, she may, nevertheless, be charged in execution with him after judgment.' The recent statutes of 1860 and 1862, regarding the rights of married women, do not profess to touch this question.^ Where a married woman brings an action for the conversion of property, and judg- ment is rendered against her for costs, she is not liable to arrest upon an execution issued against her person for such costs.^ 1 Northern E. R. Co. t. Carpenter, * Id. 13 How., 222. 6 Solomon v. Waas, 2 Hilton, 179. ^HoTey V. Starr, 42 Barb., 435. « gee Schaus v. Putsoher, 25How., 8Anon.,lDuer, 613; 8How., 184; 463. Baldwin v. Kimmel, 16 Abb., 353; 'Hovey t. Starr, 42 Barb., 435. Sohaust y. Putscher, 25 How., 463. §VII.] ARREST AND BAIL. 57 SECTION vn. AFFIDAVIT TO OBTAIN ORDER. 1. §181. Affldflvit to obtain order. 2. How the facts should be set forth. 8. Must be stated positively. 4. When affidavit shovild not be entitled. 5. Should state that an action is com- menced.' 6. When defendant's name Is unknown. 7. When complaint may be used as affida- vit. 8. When the affidavit may charge in the alternative. 9. When examination of judgment debtor may be used. 10. Where arrest is sought under subdivl- Bion 4, § 179. 11. In actions for malicious prosecution and false imprisonment, la. For disposing of property, cHm. con. 13. How non-residence or intended depar-' ture, alleged. 14. How title of married woman to pro perty. 15. Giving baU waives formal defects in affidavit. 16. Sheriff to file affidavits. 1. " The order may be made, where it shall appear to the judge, by the affidavit of the plaintiff, or of any other person, that a sufficient cause of action exists, and thatt the case is one of those mentioned in section 179. The provisions of this chapter shall apply to all actions in- cluded within the provisions of section 179, which shall have been commenced since the thirtieth day of June, 1848, and in which judgment shall not have been obtained." ^ 2. It must clearly appear by the affidavit that a suffi- cient cause of action exists, and that the case is within section 179. These essentials must appear from the state- ment of facts and circumstances, and not from a bare allegation in the words of the statute.^ It is neither neces- sary nor sufficient to allege that a cause of action exists, and "that the case is one of those mentioned in section 179 ; " nor is it sufficient to state the facts generally, as "that the defendant has been guilty of a fraud in con- iCode, ?181. 2 Pindar t. Black, 4 How., 95 ; 15 How., 48. 5g PROVISIONAL REMEDIES. [Oh. I. tracting the debt ; " nor, " that the defendant has removed or disposed of his property with intent to defraud his creditors."' Such statements are legal conclusions de- duced from certain facts, and their adoption as the basis for an order of arrest would be to substitute the conclu- sions of the person who makes the affidavit for that of the judge. 3. It is the duty of the judge to determine whether a sufficient cause of action exists, and whether the case is one of those mentioned in section 179, and to enable him •to do this, the facts constituting the cause of auction, and the facts constituting the cause of arrest, must be plainly and fairly stated. So far as such facts lie within the knowledge of the affiant ; they must be stated positively, but so far as they rest on information derived from others, they may be so stated, when the sources and nature of the information are particularly set forth, and a good reason given why a positive statement of them cannot be had.^ •It must be observed that there is a distinction between stating the sources of information and setting them forth. If the affiant's knowledge is derived from letters, papers or official documents in his possession, or which it is in his power to procure, it would not be sufficient to state that the information was derived from such papers, but the papers themselves, or copies of them must be set forth or presented with the application. If they are not in his possession, or if it is out of his power to procure them, or copies of them, he should so state in his affidavit.^ It is a general rule that if the affidavit be made on the information of another, it should state why the informant did not make the affidavit himself.* But an affidavit on mere unsupported ' Frost T. Willard, 9 Barb., 440. 'De Nierth t. Sidner, 26 How., ^Whitlock V. Eath, 5 How., 143; 419; and oases. Bell V. Mali, 11 How., 256 ; Cook v. *Bell t. Mali, 11 How., 255 ; Bla- Roaoh, 21 How., 162; Satow v. Kei- son v. Bruno, 21 How., 112. senberger, 25 How., 164. § VII.] ARREST AND BAIL. 59 hearsay will be wholly insufficient,^ and where it appears that the facts were only known from information, it will make no dift'erence that the affiant has stated them as of his own knowledge.^ 4. The affidavit should not be entitled in the cause where it is made before the action is commenced ; but if entitled, it is an error that does not affect the substantial rights of the adverse party, and will be disregarded under section 176 of the Code.^ But where the action is already commenced the affidavit should be entitled. 5. In Pinder v. Black it was held that the affidavit need not state either that an action has been, or is about to be commenced.* Nevertheless, the affidavit should contain a statement to that effect. The obvious intention of the law is to guard against the granting of improvident orders of arrest, and it can be no hardship to require a man to state that he has done or intends to do that which it is absolu- tely necessary he should do, or intend to do, before he can have any substantial reason for obtaining such an order.° 6. When the name of the defendant is unknown, and cannot be ascertained, he may be designated by a fictitious name, and when hia true name is ascertained it may be inserted as an amendment.' 7. In cases where the cause of action and of arrest are identical, the complaint, if properly verified, may suffice as an affidavit ; so, where the complaint is before the judge on an application for an order of arrest, based on affidavit, and the affidavit proves defective, the plaintiff may, in opposing a motion to vacate the order, refer to the complaint to sustain the defective affidavit.'^ But under 1 Bell V. Mali, 11 How., 255 ; Cook » See Holmes & Disbrow's Prac, T. Boach, 21 How., 152. 64r sMoorev. Calvert, 9 How., 474. « Pindar v. Black, 4 How., 95: 8 Pindar t. Black, 4 How., 95 ; Code g 175. City Bank v. Lumley, 28 How., 397. ' Brady v. Bissell, 1 Abb., 76 ; Tur- * i How., 95. ner v. Thompson, 2 Abb., 444. 50 PROVISIONAL REMEDIES. [Ch. I. no circumstances should the affidavit state facts incon- sistent with the allegations of the complaint. Thus, where the complaint prayed damages for conversion of property, and the affidavit alleged facts for an order of arrest under subdivision third of section 179, the order was refused.^ But the absence of averments of fraud in the complaint will not invalidate the order of arrest.^ 8. Where there is a clear cause for an arrest under one of two or more clauses or subdivisions of the section, the affidavit may state all the facts, and charge in the alterna- tive. Thus, where the defendant has concealed, removed or disposed of his property, so that it cannot be found or taked by the sheriff, it may be charged that he did it with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof.* This decision is relative to affidavits for attachments, but the principle is equally-applicable to arrests. 9. The examination of a judgment debtor under section 292 of the Code, disclosing grounds of arrest, maybe used as the basis of an application for an order of arrest in a subsequent action on the judgment.* 10. If the order of arrest is sought under subdivision four of section 179, the affidavit should show all the facts necessary to entitle the plaintiff to recover. Thus, in an action for the value of goods which were obtained by fraudulent representations, the affidavit should show " that the defendant, at such a time and place, requested the plaintiff to sell him certain goods on credit ; that for the purpose of inducing the plaintiff to sell such goods on credit, the defendant then and there falsely and fraudu- lently stated and represented to the plaintiff that he, the . L 1 Seymour V. Van Curen, 18 How., 'Van Alstyne v. Erwin, 11 N. Y. 95; Wicker v. Harmon, 21 How., R., 331 ; sfee also Morgan y. Avery, 462. 7 Barb., 646. 2 Mucklan 7. Doty, 20 How., 286 ; * MoButt v. Hersoh, 4 AW. , 441. See Corwin v. Freeland, 2 Seld. ,568. § VII.] ARREST AND BAIL. 61 defendant, etc. (setting forth the exact representationsj ; that the plaintiff believed such statements and representations to be true, and was thereby induced to, and did, sell and deliver to the defendant, upon credit, the goods so applied for by him, and that except for such statements and repre- sentations, the plaintiff would not have made such sale and delivery ; and that all of said statements and repre- sentations for a part of the same, specifying which), were false and untrue when so made, to the knowledge of the defendant ; and that the defendant made the same with intent to defraud the plaintiff by obtaining the said goods upon credit and without paying for them." And, in addi- tion to this, the affidavit must give a detailed statement of all the facts and circumstances within the affiant's knowledge, going to show that the representations were false and fraudulent when made. The respect in which the representations are false must be pointed out ; a gene- ral allegation of falsity will not suffice.' (For form, see appendix N'o. 8). 11. In an action for malicious prosecution, an affidavit for holding the defendant to bail is insufficient, when it states only in general terms the existence of malice and the want of probable cause. The facts which are relied on as evidence of the want of probable cause, must be set forth in the affidavit, so that the judge may determine whether or not there was malice or probable cause." "Where a person has, in good faith, upon oath or other- wise, merely stated his case to a magistrate having juris- diction of the offense supposed to have been committed, and of the person accused, he is not liable to an action for false imprisonment upon the consequent arrest of the I Smith V. Jones, New York Su- * Vanderpool v. Kissam, 4 Sandf. , perior court, Deic, 1865, per Barbour 715. J. ; Draper v. Beers, 17 Abb., 163. 62 PROVISIONAL REMEDIES. [Ch. I. accused, even though such arrest was not warranted by the law or the facts of the case.^ 12. When the charge is that the defendant is about to dispose of his property with intent to defraud his creditors, the judge must have legal evidence tending to convict the defendant of the charge, before granting the order.^ But in an action for criminal conversation vnth plaintiff's wife, an affidavit which states nothing more than a cause of action will be sufficient.^ (See form J!^o. 9). 13. In setting forth the grounds of arrest, it is not enough to allege that the defendant is a citizen of another state, for he may be a citizen of one state and a resident of another.* Nor is the allegation that the defendant is " going out of this state " sufficient. It should appear that the removal is an actual change of residence, and not a mere visit.* (See form H"o. 3). 14. "Where a married woman obtains an order of arrest for the misapplication of property, a general allegation that the property was her separate property will be suffi- cient, without showing how it became so.^ 16. A defendant, by giving bail, admits the sufficiency of the affidavit, . and waives his right to object to any formal defects therein.^ 16. The sheriff must file with the clerk the affidavits on which an order of arrest is made, within ten days after the arrest.^ (For forms of affidavits see appendix Nos. lto9). iVan Latham T. Kowan, 17 Abb., ^Bropliy v. Rodgers, 7 N. Y. Leg, 238. Obs., 162. ^Courter t. McNamara, 9 How., ^Lippman v. Petersburg, 10 Abb., 255. 254. » Sacbo T. Bertrand, 22 How., 95. ' Stewart t. Howard, 15 Barb., 26. ^ McKiernan v. Messingell, 6 Sme. * Sup. Court, rule 7. & Mar., 377. § VIII.] ARREST AND BAIL. 63 SECTION VIII. SECURITY ON THE PART OF THE PLAINTIFF. 1. § 182. Security by plaintiff before order 5. Undertaking to be proved or acknow- of arrest. 2. Absolutely necessary. 3. Sureties not necessary. 4. Plaintiff need not sign imdertaMng. 6. Amoont of undertaking. 7. Judge's approval must be indorsed. 8. Undertaking to be filed. 1. "Before making the order, the judge shall require a written undertaking on the part of the plaintiff, with or without sureties to the effect that if the defendant recover judgment, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking which shall be at least one hundred dollars. If the undertaking be executed by the plaintiff without sureties, he shall annex thereto an affidavit that he is a resident and householder or free- holder within the state, and worth double the sum specified in the undertaking, over all his debts and liabilities." 1 2. An undertaking is absolutely necessary before the judge can acquire jurisdiction to grant the order ; and an order granted without it will be void.'' 3. But it rests in the discretion of the judge, to deter- mine whether or not he will require sureties. The only restraint upon the exercise of his discretion is, that if no sureties be required, the plaintiff shall justify in the man- ner prescribed. Where the judge sees fit to require sure- ties it is left to him to satisfy himself in respect to the ■ f . 1 Code, g 182. 'Newell v. Doran, 21 How., 427. 64 PROVISIONAL REMEDIES. [Ch. I. sufficiency thereof, and therefore if an undertaking executed by one surety be deemed sufficient by him, the law will be satisfied and the order granted will be sus- tained.* 4. In the superior court it was formerly held that the plaintiff himself must execute the undertaking in all cases, even though a non-resident.^ But it is now well settled, that where sureties are required, the . undertaking need not be signed by the plaintiff", nor any agent of his.* Where a foreign state is plaintiff, the undertaking may be executed by the admitted agent of that state, as its resident minister.* 5. Where sureties are required, they must justify, and the undertaking must be acknowledged, or proved in like manner, as deeds of real estate.' But if the undertaking is otherwise sufficient and there has been an omission to acknowledge it, it may be amended in that respect and be acknowledged nunc jpro tune ; ^ or if it is improperly exe- cuted in any respect it can be amended on motion to the court.^ 6. The undertaking must be in the sum of at least one hundred dollars, but the judge may require it to be in a greater sum. 7. The approval of the judge granting the order, must be indorsed upon the undertaking, or the proceeding will be vacated for irregularity with costs, as if no undertaking had been given.* 8. It is not necessary to serve a copy of the undertaking upon the defendant, but the original must be filed with the 1 Courier V. McNamara, 9 How., *Eepublicof Mexico v. Arrangois, 255 ; see also Ward t. Whitney, 4 5 Duer, 634 ; 11 How., 576. Seld., 442. ^ Sup. Court, rule 6. 'Biohardson v. Craig, 1 Duer, 'Conl^lin v. Dutoher, 5 How., 386. 666. ' Bellinger v. Graham, 12 How., sAskins v. Hearns, 3 Atb., 184 ; 381. Bellinger v. Gardner, 2 Abb., 441 ; 8 gup. Court, rule 4 ; Newell v. 12 How., 381 ; Courier v. MoNa- Doran, 21 How., 427. mara, 9 How., 255. § Vm.] ARREST AND BAIL. 65 clerk of tlie proper county, within five days after the grant- ing of the order, with the approval of the justice indorsed thereon, or the proceedings will be vacated with costs.^ However, where a party omits by inadvertence to file the undertaking as required, the 6ourt may relieve him.^ ' (For form of undertaking, see appendix l^o. 10). 1 Sup. Court, rule 4. 'Leffingwell v. Chaye, 19 How., 66; 10 Abb., 472. 66 PROVISIONAL REMEDIES. [Oh. I. SECTION" IX. ORDER OP ARREST, BY WHOM MADE AND ITS FORM. 1. 8 180. Order of arrest, Tjy wliom made. 5. 1 183. When made and its form ; time to move to vacate. 3. When made by county jndge. In wliat comity. 4. Wliat local ofilcerB may grant. B. In what capacity county judge acts. 6. Judge related to either party cannot grant. 7. Name of defendant, how inserted. 8. Summons need not be served, before granting. 9. What judgment will bar order of arrest. 10. Indorsement on order of arrest for pe- nalty, etc. 11. What amount of bail to be specified in order. 18. As to the time of return of the order. 13. Not to he returnable on Sunday. 14. When time of return may be extended. 15. Order to be subscribed or indorsed by plaintiff or attorney. 16. Within what time judge to decide motion for order. 1. "An order for the arrest of the defendant must be obtained from a judge of the court in which the action is brought, or from a county judge." ^ 2. " (1). The order may be made to accompany the sum- mons, or at any time afterwards, before judgment. It shall require the sheriff of the county where the defend- ant may be found, forthwith to arrest him, and hold him to bail in a specified sum, and to return the order at a time and place therein mentioned, to the plaintiff or attor- ney by whom it shall be subscribed or indorsed. (2). But said order of arrest shall be of no avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant, as provided by law, before the docketing of any judgment in the action ; and the defend- ant shall have twenty days after the service of the order of arrest in which to answer the complaint in the action, and to move to vacate the. order of arrest or to reduce the amount of bail." ^ The second part of section 183 was added in 1862. 1 Code, § 180. » Code, I 183. § IX.] AKEBST AND BAIL. 67 3. Where the application for an order of arrest is made to a county judge it must be to the county judge of the county where the action is triable, or to the county judge of the county in which the attorney for the moving party resides.^ By "the county where the action is triable" is meant the county named in the complaint as the place of trial.^ 4. A local officer elected to discharge the duties of surrogate, or any officer authorized to discharge the duties of a judge at chambers, may grant an order of arrest, al- though there is a county judge in the county not disquali- fied to act.' 5. When the order is made by a county judge or local officer, he acts as a justice of the supreme court at cham- bers, and his order is to be reviewed in the same manner as an order at chambers.* 6. A judge related to either party by consanguinity or affinity, within the degree which would exclude him as a juror cannot grant an order of arrest.^ 7. The order should conform in the christian and sur- name of the defendant vrith the name in the summons ; but if the plaintiff is ignorant of the defendant's name, he may designate him in the order, by any name, and when his true name shall appear, the order may be amended accordingly.* But when the plaintiff is ignorant of the name of the defendant, he should aver that fact in the affidavit on which the motion is made.' 8. It is not essential that the summons be served before 'See Code, g 401, as amended in above decision was as to an injunc- 1859. tion order, but the rule is the same 2 Gould V. Chapin, 4 How., 185 ; on arrests. Bangs V. Selden, 13 How., 163. epjndar v. Black, 4 How., 95; > Seymour v. Meroer, 13How., 564. Code, § 175. iConkliuT. Butcher, 5 How., 386. 'Id. See Crandall v. Beach, 7 6 See N. Y. & N. Haven B. R. Co. How., 271. V. Schuyler, 28 How., 187. The g8 PEO VISIONAL BBMEDIBS. [Ch. I. the order is granted,^ but it should be prepared ; and it is the practice in some of the courts to require its exhibition or proof of its having been issued, before granting the order. 9. The order cannot be granted after judgment; but if the judgment has been vacated, on the application of the defendant with leave to answer, with a provision that the judgment shall stand as security, it is no longer to be regarded as a judgment within the meaning of section 183, and will not bar an order of arrest.^ 10. In actions for penalty or forfeiture given by the statute, an indorsement is required on the order, referring in general terms to the statute upon which the action is brought.* The indorsement should be sufficiently ex- plicit to enable the defendant to ascertain the precise statute upon which the action is brought.^ If practicable it should contain a reference to the chapter, title and sec- tion. 11. The amount of the bail to be specified in the order is to be fixed by the judge who grants the order. The amount will depend upon the cause of action. In suits to recover fines or penalties, or property taken or money received, or for fraudulently contracting a debt,|the amount of bail will generally be double the sum claimed or double the value of the property taken; and in actions for injuries to person or character, it will be such sum as the judge shall &s. upon, in view of the nature and extent of the injuries complained of. In actions of the latter class care should be taken that the bail is not excessive or beyond the power of the defendant to obtain, and a less iSee Gould v. Bryan, 8 Bosw., ' 3 R. S. (5th ed.), 784. 626. *See Andrews v. Harrington, 19 2Mott V. Union Bank, 16 How., Barb., 344; Avery v. Slack, 17 525; 8 Abb., 150; affirmed, 17 How., Wend., 86; Perry v Tynen 21 358; 9 Abb., 106 Barb., 189. ■'■■'> § IX.] AEREST AND BAIL. 69 amount should be required when the parties are perma- nent residents than if they were transient persons.* .12. The order is to be returned at a time and place therein mentioned, to the plaintiff pr attorney by whom it shall be subscribed or indorsed. Such time and place are to be fixed by the judge who grants the order. It must be a reasonable time, so as to enable the sheriff after receiving the order, with proper diligence, to arrest the defendant. But it is not essential to name a day certain. It may be made returnable within a specified time after the arrest of the defendant.^ 13. Care should be taken not to make the order return- able on Sunday. Under the former practice, making such order returnable on Sunday was fatal, and could not be amended.' 14. When the defendant has not been arrested before the return day, the time of the return may be altered by the judge who granted the order. But the time should not be changed by another judge of the court. The better course is to obtain a new or alias order. 15. The order should be subscribed or indorsed by the plaintiff" or his attorney. 16. Whenever any motion for an order of arrest shall be made, it is the duty of the judge, before whom such motion is made, to render and make known his decision thereon within twenty days after the day on which such motion shall be submitted to him for his decision.* (For form of order, see appendix Nos. ,14, 15). 1 Baker v. Swackhamer, 3 Code , ' Stone v. Martin, 185 ; Gould v. R., 248. Spencer, 5 Paige, 541 ; Miller v. ^Continental Bank v. De Mott, 8 Gregory, 4 Cow., 504. Bosw., 696. w made. 38. Cannot be entice'd within jurisdiction, by fraud. 39. Detaining defendant on subsequent pro- cess. , 40. Serving copies on defendant. 41. Making return of the order. 43. Sheriff to retain defendant in custody. 43. To admit him to jail liberties on receiv- ing bond. 44. Duty of sheriff in taking security for the liberties. 45. Sureties in bond may surrender prin- cipal. 46. What is an escape from the liberties. 47. Dutyof the defendant in keeping within liberties. 1. " The affidavit and order of arrest shall be delivered to the sheriff, who, upon arresting the defendant shall deliver to him a copy thereof." ' 2. The plaintiff's attorney having obtained the order of iCode, P84. § X.] ARBEST AND BAIL. ' 71 arrest and filed his undertaking, should at once deliver such order and the affidavits on which it was granted to the sheriff of the county wherein the defendant may be found. He should also prepare and deliver with the order and affidavit, copies thereof. It is really the duty of the sheriff to prepare such copies, but the usual practice is for the plaintiff's attorney to prepare them and give them to the sheriff with the originals. 3. On receiving the affidavit and order it becomes the duty of the sheriff forthwith to arrest the defendant, and thereupon to deliver to him a copy of such affidavit and order., 4. But should the sheriff neglect to serve the copies on the defendant, it will be an irregularity only, and will not entitle the defendant to his discharge ; since the latter provision of the section directing a delivery of the copies is directory merely; nevertheless, in case of such omis- sion the defendant may move for an order on the plaintiff to serve him with a copy of the order of arrest, and his motion will be granted with costs.^ 5. 'Nov is an omission in the copy of the affidavit of the name of the affiant, or of the officer before whom the affidavit was sworn to fatal. It is an irregularity which may be cured under section 174.^ 6. A copy of the undertaking need not be served on the defendant.^ 7. It is the duty of the sheriff to file with the clerk the affidavits on which an order of arrest is granted within ten days after the arrest is made.* 8. " The sheriff shall execute the order by arresting the defendant and keeping him in custody until discharged ' Keeler v. Belts, 3 Code K., 183 ; 2 Barker v. Cook, supra. Courier v. McNamara, 9 How., 257; 'Leopold v. Poppenheimer, 1 Code Barker v. Cooke, 40 Barb., 254; 16 K., 39. Abb., 83 ; 25 How., 190. * Sup. Court, rule 7. rj2 PROVISIONAL REMBDISa. [Ch. L by law ; and may call the power of the county to his aid in the execution of the arrest, as in case of process." * 9. The order may be executed by the sheriff, under sheriff, or general deputy ; or it may be executed by a special deputy appointed for the purpose ; but if such special deputy be appointed at the request of the plaintiff, or his attorney, the sheriff will not be responsible for his acts ; and cannot be compelled to return the process exe- cuted by him.^ 10. The arrest may be made at any time before or on the day limited for the return of the order, at any hour of the day or night ; ' but if made after the return day, or on a Sunday it will be utterly void ;* and so if made on an election day so far as regards any qualified elector.' But if the defendant escape after a proper arrest, he may be rearrested on Sunday or election day by his bail, or their agent or by the officer.^ 11. There are many cases in which the defendant, by reason of his station or other circumstances, is exempt from arrest, and, although an order may have been granted for his arrest, .the sheriff may render himself liable if he execute the same. 12. Thus senators and representatives in congress are exempt from arrest, in all cases, except treason, felony and breach of the peace, during their attendance at the session of their respective houses, and in going to or returning from the same.' This privilege is allowed only while the party is attending congress, or is actually on his journey going to or returning from the seat of government.* 13. So members of the state legislature are privileged 1 Code, ^185. 'IKS. (Sthed.). 118; Laws 1842, nChitt.B,.,6U,note; 4T.E.,119; ch. 130. 2 Est., 591. «Gra. Prao., 149; Sewell, 117, 3 1 Bing., 66 ; 2 Burr, 812; 2 Chltt. 119. B,., 357. 'Const. U. S., art. 1, sec. 6. *2R.S.(5thed.),935; 3Joliit.,259; 82 John.'s Cases, 222. 12 id., 178; 15 id., 177; 12 Wend., 57. § X.] ARREST AND BAIL. 73 from arrest, during their attendance at the session of the house to which they belong, except on process in any suit for a forfeiture, misdemeanor or breach of trust in any office or place of public trust.^ Thisprivilege embraces the period of fourteen days previous to the session, and also ■while going to or returning from such sessions, provided the time of such going or coming does not exceed fourteen days." But this privilege cannot avail a member after he shall have actually arrived home, although the fourteen days have not expired.* The same privilege also extends to a member during an adjournment of the legislature when such ad- journment does not exceed fourteen days, * or while absent with leave of the house to which he belongs ; ° and also to all officers of both houses while in actual attendance upon the house.* , 14. An embassador or other public minister of any fo- reign prince or state, authorized and received ^as such by the president of the United States ; or any domestic, or servant of any such, embassador or other public minister, is exempt from all process in a state court ; and any pro- cess against either of them is void.^ This exemption in- cludes consuls and vice-consuls ; * and the fact that a con- sul is impleaded with a citizen upon a joint contract gives no jurisdiction to a state court.^ Nor can the consul waive his privilege; and. therefore further proceedings will be arrested, at any stage of the case when it appears that the court has no jurisdiction.*" An embassador from one foreign state to another is also privileged from arrest while traveling through a state to which he is not accre- dited, in the execution of the duties of his mission." n R. S. (5th ed.), 455. 8 Act of 1789, ch. 20, g 9; 2 Ball., UK. S. (5thed.), 455, ?7. 299. 'Corey V. Russell, 4 Wend., 204. oValarino v. Thompson, 3 Seld., nR. S. (5thed.), 455, |8. 576. 6Id., §9. "Id., Davis v. Packard, 7 Peters, «Id., pO. 276; 8 Id., 314. 'Act of Congress, April 30, 1790 ; WHolbrookv.Henderson,llSandf., Story's Laws, U. S., 88, ? 25. 619. 6 1^4 PBOVISIONAL EEMEDIES. [Ch. I. 15. In tlie case of an embassador's servant the privi- lege belongs to the embassador and not to the servant, and if the former makes no application for his servant's discharge, the court will not interfere, unless the servant himself shows a clear case of service or hiring.^ Such servant should move for his discharge upon affidavits, set- ting forth the capacity in which he is hired ; ^ that he is a domestic servant ; ^ that he was such at the time of the arrest ; ° and that he performed the duties of his office.^ . 16. All non-commissioned officers, artificers, privates, musicians, seamen and marines, who are, or shall be en- listed, and the non-commissioned officers, artificers, pri- vates and musicians of the militia, or any other officer, who at any time may be in the actual service of the United States, shall be exempt during their term of service, from all personal arrests for any debt or contract ; and in case any person belonging to either of these classes shall have been arrested, either on mesne or final process, it is made the duty of the judge of the district court of the United States, and any court or judge of the state authorized to issue writs of habeas corpus, respectively, on application by an officer, to grant a writ of habeas corpus returnable before himself; and upon due hearing and examination in a summary manner to discharge such person from ar- rest taking common bail if required in any case upon mesne process and commit him to the applicant or some other officer of the same corps.^ 17. So, persons belonging to the militia of the state are privileged from arrest while going to, remaining at, or returning from any place at which they may be required 1 Fisher v. Begrez, 2 Dow., P. C, n Do^., P. C, 588. 282. n Story's Laws, U. S., 543, 709; 2 Holmes v. Gordon, Hard., 3; 2 id., 835; act Jan. 11th, 1798, g 5; Midmore v. Alvarez, Fitz., 200. act March 16th, 1799, 3 9 ; act March s Barnes, 870; 3 Dow. & Byl., 25. 30th, 1802, 2 23; see Barnes K., 96, * 4 Burr, 2015. 114. § X.] AREEST AND BAIL. 75 to attend for election of officers, or other military duty,* and also on parade days, from the rising to the setting of the sun.^ 18. E'o acting commissioner, superintendent of repairs, collector, or lock keeper on any canal, shall be held to bail or taken by warrant in any civil suit for any act done or omitted to be done by him in the exercise of his official duties.* 19. The privilege also includes all members of the metropolitan,* or capital police,* v/hile actually on dutys Although, by a rule of the police commissioners, the me- tropolitan police officers are deemed to be always on duty, yet to entitle them to an exemption from arrest they must be actually on duty.^ 20. Attorneys and counsellors are exempt from arrest during the sittings of a court where they are employed in some cause pending and then to be heard in such court ; '' also, while attending court for the purpose of making a special motion.' But the exemption does not extend to an attorney or counsellor while attending before a judge 0M< of court;' nor where he has ceased to practice for A year and has entered into other employment.*" liTor when he is sued with any other person." Such attorney or counsellor is not privileged from arrest while remaining at home, although about to attend court.*^ The exemption from arrest being a personal privilege, can be waived by the attorney ; and such waiver may be presumed from his conduct.*' 21. So all other officers of the several courts of record, 1 1 R. S. (5th ed.), 771. ' 3 K. S. (5tli ed.), 480, ? 74. 2Id., 742. sjjmnpjireyT.Cummmgs, 5Wend., 31 R. S. (5thed.), 588, §61. 90. *Laws 1857, ch. 569, J 18. » Cole v. MoCIellan, 4 Hill, 59. B Laws 1865, ch. 554, \ 27. i" 2 John.'s Cases, 102. " Hart V. Kennedy, 15 Abb., 290, " 3 R. S. (5th ed.), 480, ? 74. 14 Abb., 432; 23 How., 417; 24 How., 12 Corey t. Russell, 4 Wend., 204. 425 ; see Squires case, 12 Abb., 38. • " Cole v. McClellan, 4 Hill, 59. r^g PROVISIONAL KEMEDIBS. [Oh. I. including sheriffs, are privileged from arrest during the actual sitting of the court of which they are officers, except when sued with any other person, in which case they are not privileged even during the sitting of the court.' Jurors are likewise exempt while going to, attending and returning from the Sourt to which they were summoned. A sheriff is privileged only during the actual sitting of the court of which he is an officer.^ 22. Parties to a suit are likewise privileged from arrest while going to, attending and returning from any court, reference or arbitration, for the purpose of attending the trial or hearing of such suit ; also, while awaiting the ver- dict of the jury, or attending upon other proceedings in the cause.^ But they are not privileged while waiting for the referee's report; or while engaged in preparing papers to move to set the report aside.* "Where a party attends in good faith, before the day of trial, he is enti- tled to the privilege.* But one convicted of an assault and battery at a court of special sessions is not protected in returning therefrom, from an arrest in a civil action for 'the same offense.^ A non-resident party to an action here who attends court as a witness is also privileged from arrest.'^ 23. Every person, duly and in good faith subpoenaed as a witness to attend any court, officer, commissioner or referee, or summoned to attend any judge, officer or com- missioner in any case where the attendance of such wit- ■ ness may be enforced by attachment or commitment, shall be exonerated from arrest in any civil suit while going to the place where he shall be required by such subpoena to 1 3 R. S. (5tli ed.), 480, § 74. « Clark v. Grant, supra. 2 Hill v. Lott, 10 How., 46, m East, 439 ; 1 Camp., 229. 3 Clark T. Grant, 2 Wend., 257; « Lucas v. Albee, 1 Denio, 666; Sanford v. Chase, 3 Cow., 381 ; see see Williams v. Bacon, 10 Wend., also 1 Edw. Ch. R., US ; 4 Dal., 878, 636. 1 H. Black, 636. ' 'Mewill v. George, 23 How., 331. § X.] ARBE8T. AND BAIL. 77 attend, while remaining at such place and while return- ing therefrom.^ By the common law witnesses had all the privileges of parties to a suit, whether subpoenaed or not ; ^ but the revised statutes confines the privilege to wit- nesses duly subpoenaed. So, that a witness who attends voluntarily without a subpoena is not ^ rotected,^ unless he came from another state, in which case he is protected even though not subpoenaed.* The exemption does not extend to one who appears and testifies under a subpoena, and afterwards, on the adjourned day, reappears voluntarily ; * nor to persons not in attendance strictly as witnesses.* 24. The court or officer before whom any person shall have been in good faith subpoenaed to attend as a witness, shall discharge such witness from arrest made in violation of this privilege ; and if such court shall have adjourned before such arrest was made, and before application for such discharge be made, any judge of such court, or the county judge shall have the same power to discharge such witness. Every, arrest of a witness made contrary to the foregoing provisions, shall be absolutely void, and shall be deemed a contempt of the court issuing the sub- poena; and every person making such arrest shall be responsible to the witness arrested for three times the amount of the damage, which shall be found by the jury, and shall also be liable to an action at the suit of the party who subpoenaed such witness, for the loss, hind- rance and damages sustained by him in consequence of such arrest. But no sherifi" or other officer, or person shall be liable, unless the person claiming an exemption from arrest shall, if required by such sheriff or officer, make an affidavit stating : 1. That he has been legally subpoenaed as a witness to attend before some court or 1 3 R. S. (5th ed.), 685. i Searer v. Robinson, 3 Duer, 622 ; 2 Cole V. MoClellan, 4 Hill, 60, Merrill v. George, 23 How., 331. note o; Norrisv. Beach, 2 John., 294. ^Hardenhrook'scaae, 8 Abb., 416. » Hardenbrook's case, 8 Abb., 416. « Cole v. McClellan, 4 Hill, 60. ij-g PEOVISIONAL REMEDIES. [Ch. I. officer, specifying sucli court or officer, the place of attendance, and the cause in which he shall have been subpoenaed; and 2. That he has not been subpoenaed by his own procurement, with the intent of avoiding the service of any process; which affidavit may be taken by such officer an(J when so taken shall exonerate such officer from all liability for not making such arrest.^ IN^otwithstanding the declaration of the statute that the arrest of a witness made contrary to its provisions shall be absolutely void, it is held that ; the exemption may be waived by the witness, by willingly submitting him- self to the custody of the officer, or by putting in bail, or by a general appearance.^ 25. Voters at any election or town meeting are exempt from arrest on the day of such election or town meeting. It is possible, however, that, should an elector be found in any other town than that in which he is entitled to vote, he would not be protected by the language of the statute.^ 26. No female shall be arrested in any. action except for a willful injury to person, character or property ; * and the concealment and disposal of a piano is not a willful injury within the meaning of the Code.° A female cannot be arrested in an action for a breach of promise to marry ; ^ nor for fraudulently contracting the debt on which the action is brought.' A married woman is exempt from ar- rest in all cases.* 27. A person in the custody of the law is exempt from arrest. Thus, where a prisoner has been duly arrested in a civil or criminal case, and is in the custody of the sheriff, whether in jail or upon the limits, he cannot be »3 R. S. (5th ed.), 685. 6 Tracy v. Leland, 2 Sandf., 729. 2,Stewart v. Howard, 15 Barb., « Siefke v. Tuppy, 3 Code R., 23. 26; Petrie t. Fitzgerald, 1 Daly, 'Wheelerv. Hartwell, 4Bosw., 684. 401. "Anon., 8 How., 134; 1 Duer, 618; SIR. S. (5th ed.), 418, g 3, Id. see, however, Solomon v. Waas, 2 819, ? 22. Hilton, 179. *Code, gl79, sub 5. § X.] ARREST AND BAIL. 79 arrested or taken out of the custody of the officer upon any subsequent process or execution in a civil or criminal matter, except upon a writ of habeas corpus ; and if the officer having him in custody under such first process allows him to be taken out of his custody, he will be liable for an escape.^ A person under arr^t on a justice's war- rant is in the custody of the law, and cannot he arrested on. subsequent process ; if he be so arrested, all persons con- cerned in the second arrest, with knowledge of the previous arrest, are answerable as for an unlawful act.^ But a prisoner under arrest on a criminal charge may be arrested on a civil process, provided leave of the court be first ob- tained.^ If, while the defendant is in custody on a civil process, any other bailable writ or order for arrest is lodged with the sheriff, he is bound, at his peril, to detain such defendant until he is regularly discharged from the second writ or order.* But, if the first arrest was made without process, or on void process, or after it was return- able, or while the defendant was privileged from arrest, he cannot be detained by virtue of any subsequent process at the suit of the same party.° 28. Where one has been arrested and discharged by reason of being temporarily privileged from arrest, as where he is attending the trial of a cause as attorney or party, or as an elector on election day, he may be again arrested by the same officer, on the same order, after the privilege has expired.^ 29. Should the sheriff refuse to arrest a defendant claiming to be exempt, the burden is on him of showing, in an action against him for such refusal, that the claim of such person to exemption was well founded. The 1 Brown v. Tracy, 9 How., 93. Ch., 113 ; Willard v. Sperry, 1 Wend., 2 Love T. Humphreys, 9 Wend., 204. 83; Humphrey v. Cummings, 5 3 Williams v. Bacon, 10 Wend., 686. Wend., 90 ; Seoor v. Bell, 18 John., * Sewell, 108. 52 ; see also Petrie v. Fitzgerald, 1 SGrahan^'sPr., 144; Sewell, 180. Daly, 401. ^VanWezelv. Van Wezel, 1 Edw. 30 PEOVISIONAL REMEDIES. [Ch. I. sheriff does not render himself liable to an action for ar- resting any defendant claiming exemption, except embas- sadors or other public ministers or their domestic servants, or for refusing to release a witness who has made, or offered to make, the proper affidavit to entitle him to his discharge. The safer course for the sheriff to pursue, except in the cases above stated, is to arrest the defendant and leave him to apply to the court for a discharge. He should, however, not arrest any member of congress, nor any member of the legislature, during the period of their exemption ; nor any canal officer, nor any female, unless it appears from the papers in his hands that it is not a case in which they are exempt.' In the case of attorneys and counsellors, it is the duty of the sheriff to make the arrest, and to leave them to their application to the court, and for a neglect so to do he will be liable. 30, The arrest may be made at any place within the county to the sheriff of which the order has been de- livered. If the party be arrested in any other county than that to the sheriff of which the order has been de- livered, he will be discharged ; ^ but on an application for setting aside the arrest on that ground, the defendant must show that the arrest was not made on the border, and that there is no dispute as to the boundaries.^ 31. The arrest may also be made upon the premises, or in any building of the defendant or of any other person, or even in the defendant's dwelling house, provided the outer door be open.* But the officer cannot break open the outer door of such dwelling for the purpose of executing the order; and a breaking in such case need not be a violent forcing of the lock or fastening of the door, for if the outer door be latched, it will be a breaking to merely 1 See Crocker on Sheriffs, g 306. a ] Dow., 0. S., 24 ; 3 Barn. & Crea., ' 2 B. & Aid., 408 ; 4 Man. & Sel., 158. 414. 4 3 Coke, 92 ; Cro. Eliz., 909 ; Hag- gerty v. Wilbur, 16 Jolin., 287. § X.] ARREST AND BAIL. gl unlatch it and enter the house.' So, if on rapping or ringing at the door, the door is opened by any person to see who is there, and the officer forcibly rushes in and makes an arrest, the entry and arrest are unlawful ; but if, on knocking at the outer door, any proper person appears and invites him ipto the house, he may lawfully enter and execute the order .^ It is a time honored principle of law that every man's house is his castle, and cannot be broken open by process. So that if an officer gain ad- mission by fraud or force, and attempts to make an arrest, the defendant or any person in the house may lawfully resist such attempt.^ 32. This privilege attached to a dwelling house protects not only the owner but also his farnily, including servants, permanent boarders, and all persons who make the house their hom§. But it does not protect strangers, and persons who flee there to escape the process of the law.* If a stranger is in the house, it is the duty of the owner to open the door, on a proper demand by an officer having process against such stranger, and if he refuse so to do, the officer may lawfully break the door and make the arrest." But in such case the officer's justification depends wholly upon the fact of the party against whom he has process being found in the house, ^o matter how recently the defendant may have been there before the entry, nor how reasonable the cause to suspect that he was then in the house, if the fact turns out to be that he was not in the house at the time of the entry and search, the officer will be liable to an action of trespass.* 1 People T. Hubbard, 24 Wend., Glover v. Whittenhall, 6 Hill, 599, 369; Curtis ». Hubbard, 4 Hill, note. 487 ; Glover v. Whittenhall, 6 Hill, * 3 Black. Com., 288 ; 6 Taunt., 246 ; 697, 599, note. Allen, 109 ; 6 Coke, 93. 2 Crocker on Sheriffs, g 312, citing ^ id. Impey, 74. 6 2 Dow. & Lown, 199;" 18 Mees. s People V. Hubbard, 24 Wend., & W., 52. 369 ; Curtis v. Hubbard, 4 Hill, 437 ; 32 PROVISIONAL REMEDIES. [Oh. I. 33. The privilege is also limited to a dwelling and to the out-houses immediately connected therewith, and which are parcels thereof. The officer may, therefore, break open any store, warehouse or barn, or any building not occupied as a dwelling, nor annexed to a dwelling, nor forming any part of the curtilage. But a demand should be first made.^ To exempt a building from lia- bility to forceful entry, it must be actually used at the time as a dwelling house. The fact that a man's house- hold goods are in a house will not make it a dwelling unless some one abides therein ; and the mere casual use of a tenement as a lodging will not exempt it ; as where a servant sleeps in a barn for some nights to watch thieves, or where a party lies in a warehouse to watch goods.^ But where the owner has once entered upon the occupa- tion and possession of a dwelling house, by himself or some one of his family, it will not cease to be his dwell- ing on account of any temporary or occasional absence though no person. be left in it. But where the owner is so absent, there must be an intention on his part of returning, for if he has quitted it without any intention of returning and continuing to dwell there, it ceases to be a dwelling. ' 34. If the whole of a house is let to lodgers, or tenants, and the owner does not inhabit any part of it, though there is but one door common to all the inmates, yet every separate apartment is the distinct mansion of its respec- tive possessor. But if a man let out part of his house, and himself occupies another part, he is considered in law the occupant of the whole house and an officer having gained admission through the outer door may break the inner doors, having first made a demand.* iHaggerty t. Wilbur, 16 John., ' Russell on Crimes, §805. 287; Hubbard v. Maoe, 17 John., ^ Sewell, 110 ; Williams v. Speuoer, 127. ■ 5 John., 352 ; Radoliflf t. Burton, 3 2 See Russell on Crimes, §? 803, Bos. & Pul., 228 ; see Hubbard v. 805 ; also post oh. iv, sec. T, pi. 21. Maoe, 17 John., 127; Allen, 423. § X.] ARREST AND BAIL. g 35. If any of the outer doors of a dwelling are open the officer may lawfully enter the house and arrest the defendant if found therein; and having peacefully and lawfully entered, he may break open any inner door, room or closet to make such arrest. He should, however, demand that the door, room or closet be opened before breaking it.^ 36. So the protection of a man's house extends to the original arrest only ; and where the defendant has been legally arrested, and breaks away, and shuts himself up in his house, the officer is justified in attempting to retake him, in breaking open the outer door without a pre- vious demand and refusal, where the pursuit is fresh and the party consequently aware of his obj ect.^ But the better practice is to first make a demand in all cases. Where the arrest is made by the officer putting his hand through an open window and touching the defendant, or where the defendant's hand is out of the window and the officer seizes it, he may break open the outer door to come at such prisoner.* So, if the arrest be made in the house and the officer be thrust out of it, he may immediately break in without first making a demand.* 37. K'o manual touching of the body or actual force is absolutely essential to constitute a valid arrest. It is sufficient if the party be within the power of the officer and submit to the arrest.^ But if he do not submit, mere words, such as " You are my prisoner," or the like, with- out touching the body, are insufficient and do not amount to an arrest.^ However, if an officer enters the room wherein the defendant is and locks the door and says to him "Tou are my prisoner," the arrest will be good, for V iHaggerty t. Wilbur, 16 John., « Allen v. Martin, 10 Wend., 301. 287; Hubbard v. Mace, 17 John., 5 (jold v. Bissell, 1 Wend., 215; 127. Allen 96; 1 Backus, 116. 2 Allen T. Martin, 10 Wend., 300 ; «Russen v. Lucas ; 1 Carr & Payne, Glover t. Whittonhall, 6 Hill, 597. 153. 3 6 Modern, 173. 34 PROVISIONAL REMEDIES. [Ch. I. the defendant is in his power.^ The arrest is generally- made by an actual seizure of the defendant's body ; and any touching, however slight^ will amount to a seizure ; as where an officer lays his hand on the defendant and says, '*I arrest you." ^ Nor is it necessary that the officer, act- ing within his county, show the order on which the arrest is made ; nor that he inform the defendant at whose suit nor on what process the arrest is made.* He should, how- ever, immediately serve a copy of the order and affidavits. 38. If the defendant is not within the jurisdiction of the officer holding the order of arrest, such officer cannot make the arrest unless the defendant come voluntarily within such jurisdiction. And, therefore, if the defend- ant be enticed, by false representations, into the sheriff's bailwick for the purpose of arresting him, an arrest so made will be discharged.* 39. Where a party has been legally arrested in one action, and is in custody, he may be detained under or- ders of arrest obtained at the suit of other plaintiffs.^ But if the first arrest was illegal, as where it was made without process or under void process, or by the collusion of the sheriff or parties, he cannot be detained under valid orders already in the sheriff's hands;,* nor under a subsequent valid process at the suit of the person by whose instigation he was so arrested, or of any person in any way connected therewith.' So, if he was arrested while privileged from arrest, he cannot, upon being dis- charged be rearrested before he has had time to take any real advantage of his discharge.* So if the defendant has 'Watson, 90; Williams t. Jones, « Pearson v. Yewens, 7 Dow., P. Hardwick, 801. C, 451 ; Spencer v. Stuart, 3 East., 2 1 Backus, 116. 89. 8 Arnold T. Stevens, 10 Wend., 514. » Ex parte Scott, 9 Barn. & Ores., 1 Goupil V. Simonson, 3 Abb., 474. 446 ; Att'y Gen. v. Cass, 11 Price, Carpenter v. Spqoner, 2 Code E., 345. 140 ; 3 Sandf., 717. ^Barrattv. Price, 9 Bing., 566; 5 Barclay T. Faber, 2 Barn. & Aid., Spencer v. Stuart, 3 East., 89. 743; 1 CMtt..R., 679. § X.] AREEST Airo BAIL. 85 been arrested tinder a criminal process used merely as a pretext, he cannot be detained under an order of arrest obtained by the instigator of such criminal proceeding ; ^ but if the criminal charge was made in good faith, he may be detained in a civil action if leave of the court be first obtained.'' 40. Having made the arrest, the sheriff must serve upon the defendant copies of the affidavit and order.' But should he neglect so to do, it will be an irregularity only, and will hot entitle the defendant to his discharge. The plaintiff, however, will be required on motion to serve such copy, with the costs of motion.* 41. The sheriff must also indorse his return on the order and return it to the person subscribing it within the time limited therein ; and he must also file the affidavit with the clerk within ten days after making the arrest.^ Should he neglect to make return of the order within the time specified therein, it may be enforced by attachment.^ 42. After the arrest the sheriff must keep the defendant in custody until discharged by law ; that is, until he shall have given the requisite bail or made the necessary deposit ; or until the order of arrest shall have been vacated. The practice is, however, where the defendant remains in custody, to allow him the liberties of the jail on his ex- ecuting a proper bond. So, a defendant is entitled to the liberties of the jail on being surrendered by his bail.^ 43. The revised statutes provide that : " Every person who shall be in the custody of the sheriff of any county, by virtue: 1, Of any capias ad respondendum^" (order' of arrest), "or 2, Of any execution in a civil action;, or 3, Of any attachment for non-payment of costs in a civil action; 1 Williams t. Bacon, 10 Wend., Barker v. Cook, 40 Barb., 254; 16 636. Abb., 83 ; 25 How., 190. 2 Lucas V. Albee, 1 Denio, 667. ^Code, g 192 ; Sup. Court, rule 7. 3 Code, ? 184. 6 gup. Court, rule 8. < Keeler v. Belts, 3 Code R., 183 ; ' See 3 K. S. (5th ed.), 733 ; Sar- Courter y. McNamara, 9 How., 267 ; tos v. Mereeanes, 9 How., 188. 36 PROVISIONAL REMEDIES. [Oh. L or 4, In consequence of a surrender in exoneration of his bail ; shall be entitled to be admitted to the -liberties of the jail which shall have been established in such county ac- cording to law upon executing a bond to such sheriff and his assigns." ' Such bond shall be executed by the defendant, with one or more sufficient sureties, being householders of the county in a penalty of not less than double the sum named in the order of arrest, or in the execution or attachment.^ And it shall be conditioned that the defend- ant shall remain a true and faithful prisoner, and shall not at any time or in any manner escape or go without the limits and boundaries of the liberties established for the jail of such county until discharged by due course of law.' (See form Fo. 37). 44. The sheriff is primarily liable for the escape of the prisoner, and it is his right and duty to require the most ample security before allowing the defendant the liberties of the jail. Should he discover after such bond is taken, that any surety thereto is insufficient, he may recommit the prisoner to close confinement in the jail until other good and sufficient sureties be found.^ The conditions of the bond should conform substantially to the terms of the statute or it will be void.' But if the bond is in due form it shall be valid and shall be held for the indemnity of the sheriff, and of the party at whose suit the prisoner shall be confined.* 45. The sureties in such bond may surrender their principal at any time before judgment shall be rendered against them on such bond, but they shall not be thereby exonerated from any liability incurred before making such surrender.' To effect such surrender their bail may take their principal to the keeper of the jail, and upon 13 K. S. (5th ed.), 733. 6 Sullivan t. Alexander, 19 John , 2 Id. 233. 8 Id. «3 R. S. (5th ed.), 733. 4 Id. 'Id. § X.] AEREST AND BAIL. 87 the written requirement of such bail, the keeper shall take the prisoner into custody, and shall thereupon indorse upon the bond an acknowledgment of such surrender ; he shall also, if required, give the bail a certificate acknowledging such surrender.^ If the keeper refuse to take the defendant into custody, when properly required so to do, the sureties will be discharged.^ (See forms Nos. 38, 39). 46. The going at large of any prisoner who shall have executed such bond or of any prisoner who would be entitled to the liberties of any jail upon executing such bond, within the jail liberties of the county where he is in custody, shall not be deemed an escape. But in case any such prisoner shall go at large without the liberties of such county, without the assent of the party at whose suit he is in custody, it shall be deemed an escape, and a forfeiture of the bond so executed ;. and the sheriff in whose custody such prisoner shall have been, shall have the same authority to pursue and retake such prisoner, as if such escape had been made from the jail. The retak- ing such prisoner, and his giving a new bond does not take away the sheriff''s right of action against the sureties on the first bond, in consequence of his having been sued for an escape. But it is a good defense to a suit upon the bond, that the prisoner was retaken, or surrendered himself before suit.^ 47. The keeper of every jail to whom a certified copy of the minutes of the county court, establishing the liberties of such jail, shall be delivered, shall keep the same exposed to public view, in some open and public part of such jail; and it shall be the duty of such jailer to exhibit the same to every person who shall be admitted to the liberties of such jail, at the time of executing the bond for the liberties.* 1 3 R. S. (5th ed.), 733, 734. s 3 R. S. (5th ed.), 734. 2 Babb V. Oakley, 5 Cal., 98. * Id. 733. 38 PROVISIONAL EBMEDIES. [Ch. I. But a person who has given security for the liberties of the jail is bound, at his peril, and at the risk of his sure- ties, to keep within the liberties; and though the limits established by the court are in any part vague and indefi- nite, it is the duty of the prisoner to keep in places clearly defined and within the limits ; for he is bound to know and observe the limits. It is not the duty of the sheriff to ascertain the bounds of the liberties.^ 1 Kip V. Brigham, 7 John., 167. §XI.] ARREST AND BAIL. 89 SECTION XI. BAIL, HOW GIVEN. 1. § 186. Defendant to be diBcharged on bail or deposit. 2. § 187. Bail, how given. 3. §194. Qnaliflcationaofbail. 4. When bail may be given. 5. Bail for arrest under sub 8 of 1 179. 6. Bail may be given before arrest. 7. To whom the undertaking should be given. 8-9. Concerning the quaMcations of bail. 10. What species of property will qualify. 11. Common law disqualifications. la. Members of congress and of the legis- lature. 13. Oficers of courts cannot be bail. 14. Attorneys and their clerks. IB. Other persons who are disqualified. 16. TTndertakiDg to be acknowledged— How disposed of. 1. " The defendant at any time before execution shall be discharged from arrest, either upon giving bail, or upon depositing the amount mentioned in the order of arrest, as provided in this chapter."^ 2. "The defendant may give bail, by causing a written undertaking to be executed by two or more sufficient bail, stating their places of residence and occupations to the effect that the defendant shall at all times render himself amenable to the process of the court, during the pendency of the action, and to such as may be issued to enforce the judgment therein, or if he be arrested for the cause men- tioned in the third subdivision of section 179, and under- taking to the same effect as that provided by section 211." ^ 3. "The qualifications of bail must be as follows: 1. Each of them must be a resident and householder or freeholder within the state. 2. They must each be worth the amount specified in the order of arrest, exclusive of property exempt from execution ; but the judge or a justice of the peace, on justification, may allow more than two 1 Code, ? 186. 2 Code, g 187. 90 PBO VISIONAL REMEDIES. [Ch. I. bail, to justify severally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two sufficient bail."* 4. Where the defendant is in custody, bail may be put in at any time, even after verdict or final judgment, pro- vided he has not been charged in execution ; under execu- tion the plaintiflf's remedy ceases of course to be provi- sional and becomes absolute.'' The bail required by this section is a substitute for the special bail of the former practice, and in many respects subject to the same rules.* 5. It must be observed that, while the ordinary cases of arrest are satisfied with bail that the defendant shall ren- der himself amenable to the process and judgment of the court, an arrest for any cause mentioned in subdivision third of section 179, can only be superseded by an under- taking to deliver the property to the plaintiff if adjudged and also to pay any judgment that may be recovered.* But unless the case is brought clearly within the terms of the subdivision, the court will not enforce it, but will only require the more ordinary security.* Tor form, see appendix Ifo. 17). 6. It is not essential to the validity of the proceeding that the sheriff personally arrest the defendant before taking bail, for it will be good though no arrest be made.* So it may be taken before the writ or order is delivered to the sheriff for execution, but not before it is issued.'^ In relation to an undertaking given in an attachment suit by the defendant, to procure the discharge of the goods seized, it was held, that it was not essential to the validity of the undertaking that the plaintiff should »Code, gl9*- sPike v. Lent, 4 Sandf., 650; 21 BurrlU's Prac, 109, and oases. Mulvey v. Davison, 8 How., 11. ' Stewart v. Howard, 15 Barb., « Graham's Pract 145 26; In re Taylor, 7 How., 212. 'Watson, 88. * Code, U 187, 211 ; Van Nest v. Conover, 5 How., 148. § XI.] ARREST AND BAIL. 91 compel its execution by actually suing out an attachment and making a levy ; and that if they chose, the parties could waive the issuing of an attachment and a seizure of goods under it, and the defendant give and the plaint- iff accept such an undertaking as the defendant would have been required to give on an application to discharge an attachment actually issued.^ From the analogy of the two proceedings, the principles of the latter decision should be equally applicable to an undertaking of bail taken under like circumstances. 7. The Code does not designate to whom the undertak- ing should be given, and the usual course is to give it generally without naming any one as obligee. It will be valid, however, if given in the name of the plaintiff in the action.'' "Where the bail is taken by the sheriff, he must confine himself strictly to the authority conferred by the statute ; but where the defendant is discharged from arrest by the plaintiff in the action, such plaintiff may take any security he pleases.^ 8. Each of the bail must be a resident and householder or freeholder within the state. The question as to who are, and who are not residents will be fully discussed here- after under the subject of attachment.* A householder is the occupier of a house, or more correctly one who keeps house with his family ; the head or master of the family, one who has a household, or who is the head of a household.' A " freeholder " is the owner of an estate of inheritance, or for life, in real property, whether it be a corporeal, or an incorporeal hereditament.* The ownership of a freehold in any part of the state will meet the requirements of the Code.^ 1 Coleman v. Bean, 82 How., 370. * See post ch. iv, sec. i, pi. 13-20. 2 Slack V. Heath, 4 E. D. Smith, SBurrill's Law Die, " House- . 95. holder." 3 See Decker v. Judson, 16 N. Y. 04 Kent's Com., 24. K., 439. 'Hoff. Pro. Rem.. 74. 92 PROVISIONAL REMEDIES. [Ch. I. 9; Each bail must also be worth the amount specified in the order of arrest, exclusive of property exempt from execution ; but the judge or justice of the peace, on justi- fication, may allow more than two bail to justify seve- rally in amounts less than that expressed in the order, if the whole justification be equivalent to that of two suffi- cient bail. The affidavit attached to the undertaking should include the statement that each of the bail is worth the sum specified over and above all debts and liabilities. 10. The species of property, in respect to which the bail derives his qualification is immaterial ; but it must be in his own right, and within the jurisdiction of the court,^ for the Code evidently precludes a property qualification, where the property is without the state.^ 11. There are certain common law disqualifications of bail which remain unaffected by the Code,^ and of which the court will take judicial notice, although such bail be unopposed.* But if persons .disqualified for bail execute the undertaking, ^e plaintiff cannot treat it as a nullity ; if he would take advantage of the disqualification, he must except to the bail, and they will be rejected on justification.' 12. By the English law, members of the house of com- mons are disqualified for bail from the time of their election until the prorogation or final dissolution of parlia- ment;" but the question as to whether members of congress and of the legislature are disqualified, seems never to have been decided here. 13. The officers of the different courts of justice, except justices of the peace, are disqualified.' Hence the judges,' 1 Til. & Sher. Pr., vol. 1, 586 ; and 4 3 Dow., 110. cases. 6 Miles T. Clark, 2 Bosw., 709. 2 Hoff. Pro. Bern, 76. 6 Petersdorf on Bail, 49. 3 Wheeler t. Wiloox, 7 Abb., 73 ; ' Graham's Pr. (3d ed.), 574. Miles V. Clark, 2 Bosw., 709 ; Aff., 4 ^Earl of Leicester v. Mandv. 2 id., 682. Sid., 31. ' § XL] ARREST AND BAIL. 93 and clerks^ of any court, all sheriffs and their officers,^ jailors, turnkeys, etc.,^ and all persons indemnified by any of them, are ineligible as bail in a civil action.* 14. An attorney is likewise disqualified, even though not in active practice; and the rule is general in its appli- cation and not limited to cases in which he is engaged.^ But if he has been long out of practice he will be quali- fied.^ This disqualification extends to an attorney's clerk, except as bail for his employer ; ' and it has even been extended to an attorney's partner, though not himself an attorney.' Persons indemnified by an attorney are also disqualified, as otherwise, it would be a mere evasion of the above rule.' 15; A person of infamous character where such infamy would disqualify him as a witness, is incompetent.*" But the mere fact that the bail is the keeper of a gambling house, or brothel, is no valid objection, regard being had more to the suflSciency of the property of the bail, than to his moral character." Persons who have been once rejected,*^ except when such rejection was on account of their being indemnified by an attorney ;^ persons liable for outstand- ing dishonored bills ; " or who have compromised their debts but are again in debt ; ^ or who profess ability to pay their debts but are unwilling so to do ; ** a son who allows his father to receive relief from the county ; " or a 1 Payne v. Fry, 1 Strange, 546. Laing v. Cundall, 1 Hen. Black., 2 Bailey v. Warden, 20 John., 129. 76. 'Daley v. Brooshoft, 2 Brod. & « Matter of Tates, 1 Dow. & Eyl., Bing., 359 ; but see 2 Bosw. & Pul., 9. 150. 9 Peters, on Bail, 281; Capon v. * 1 Chitt. Arohb. (7th ed.), 601 ; Dillamore, 1 Bing., 423. but Bee 1 Chitt. Bep., 714, note. "Rex. v. Edwards, 4 T. E., 440. SMilesT. Clark., 2 Bosw., 709; "l Dow., P. C, 160; 8 id., 320. 4 id., 632; Wheeler v. Wilcox, 7 >2 3 Petersd. Abr., 103. Abb., 73 ; Coster v. Watson, 15 John., ^> 1 Dow. & Byl., 488. 535. "Anon., 1 Dow., P. C, 183. « Rex T. Sheriff of Surrey, 2 East., « 3 Petersd. Abr., 111. 182; Bell v. Gate, 1 Taunt., 162. « Id., 112. ' Dixon V. Edwards, 2 Anstr., 356 ; " Holm v. Booth, 2 Chitt. B.., 78. 94 PEO VISIONAL REMEDIES. [Oh. I. father who suffers his children to live in a work-house,* have all been held by the English courts disqualified. 16. The undertaking of bail must be proved or acknow- ledged in like manner as deeds of real estate, before it will be received or filed,^ but any defect in this respect may be remedied by amendment on motion,* When com- pleted, the undertaking must be delivered to the sheriff, who will thereupon release the defendant, provided the undertaking is in proper form and the sureties therein are competent. Otherwise the sheriff may refuse the bail and retain the defendant in custody. If the bail is given before the return of the order of arrest, the sheriff must deliver a certified copy of the undertaking of bail to the plaintiff or attorney by whom the order is subscribed, at the time of making return of such order.* The original undertaking of bail remains in the hands of the sheriff, until the justification. When the justice before whom the justification is had, is to annex the examination to the undertaking, indorse his allowance thereon, and cause the same to be filed with the clerk.^ (For form of undertak- ing, see appendix 'Eo. 16. 1 Anon., 2 CMtt., 77. * Code, ? 192. 2 Sup. Court, rule 6. 6 Code, 1 196. 3 Conklin t. Dutoher, 5 How., 386. §xn.] AREE8T AND BAIL. 95 SECTION xn. JUSTIFICATION OP BAIL. 1. §192. Delivery of nndertaklng to plaint- iff and its acceptance or rejection by Mm. 2. Notice of non-acceptance. 3. §198. Notice qf jnetijlcatlon: new bail. 4. Notice of jnetification, wbat to contain. 5. Time whenjostlflcation to be made. 6. Before whom jnetlflcatlon may be made. 7. Notice of exception extends to new ball. 8. § 195. Jmtiflcaticm qt bail. 9. Opposition to bail ; wben time allowed to get new ball. 10. Failure of justification. 11. Proceedings on justification. 12. Wben to take place, 13. Effect of a failure to Justly. 14. Qualifications ol bail. 15. Plaintiff to procure certificate of failure of justification. 16. §196. Allowance 0/ bail. 17. Disposition of undertaking. 18. Allowance of bail conclusive. 1. " Within the time limited for that purpose, the she- riff shall deliver the order of arrest to the plaintiff, or attorney by whom it is subscribed with his return indorsed, and a certified copy of the undertaking of the bail. The plaintiff, within ten days thereafter, may serve upon the sheriff a notice that he does not accept the bail, or he shall be deemed to have accepted it and the sheriff shall be exonerated from liability." ^ 2. If the plaintiff is satisfied with the bail given, nothing more need be done on his part ; but if he be not satisfied with such bail, his only remedy is to serve the notice as above provided. He cannot treat bail as a nullity, although he knows them to be incompetent or dis- qualified. He can only object to them in the manner prescribed.* The plaintiff's notice should be in writing and should be entitled in the cause ; but any defect or irregularity in such notice will be deemed to be waived I Code, g 192. 2 See' Miles v. Clarke, 4 Bosw., 632; 2 id., 709. 96 PEO VISIONAL REMEDIES. [Ch. I. by the defendant's giving notice of justification.^ (See forms, No. 18). 3. " On the receipt of such notice, the sheriff or defend- ant may, within ten days thereafter, give to the plaintiff or attorney by whom the order of arrest is subscribed, notice of the justification of the same or other bail (speci- fying the places of residence and occupation of the latter) before a judge of the court, or county judge, at a specified time and place ; the time to be . not less than five nor more than ten days thereafter. In case other bail be given there shall be a new undertaking in the form pre- scribed in section 187." ^ The words "justice of the peace" were formerly in the section after the words " county judge," but were stricken out in 1851. 4. The notice of justification should be entitled in the action and should carefully state every fact required, by the foregoing section, to be therein stated. The time and place of the justification and the officer before whom it will be made ; and, where new bail is given, their names, places of residence and occupation should all be set forth with precision, as any misdescription by which the plaintiff is misled would render the notice defective.^ "Where the bail live in a large village, or a city, their resi- dence should be specified by street and number. The place of justification must be within the county where the defendant was arrested, or where the bail reside.* And it is probable that a notice of justification given for the wrong county, would be a nullity unless the plaintiff waived the objection by appearing or otherwise. (See forms, l^os. 19, 20). 5. The time at which the justification is to be made, is to be not less than five nor more than ten days from iSee Rogers v. Maplebaok, 1 H., R., 88 ; Brown's Bail, 5 Dow. P. Blacks., 106. C, 220. 2 Code, g 193. i Sup. Court, rule 5. 8 Coleman v. Roberts, 1 Chitty, §XII.] ARREST AND BAIL. 97 the service of the notice on the plaintiff. But such time may he extended beyond the limits prescribed in the notice, on good cause shown ; an order must, however, be duly obtained to that effect, and a new notice of justifica- tion given.^ So the time in which the notice of justi- fication is to be served, may be extended on motion for good cause.^ (See forms IS'os. 21, 22). 6. The justification can only take place before a judge of the court in which the action is pending, or a county judge. An inadvertence or blunder in amending the Code, has led many into the error of supposing that the justification could be made before a justice of the peace. By the amendment of 1851 the words "or justice of the peace" were stricken out of section 193. So that the justification cannot be noticed before a justice of the peace; and although the words are retained in sections 194, 195, 196, they become inoperative. 7. "Where^ after notice of exception, the defendant serves notice of the justification of new bail, the exception to the first bail extends to those substituted and they must justify. If new bail is given, a new undertaking must be entered into.* 8. "For the purpose of justification, each of the bail shall attend before the judge, or a justice of the peace, at the time and place mentioned in the notice, and may be examined on oath, on the part of the plaintiff, touching his sufliciency in such manner as the judge, or justice of the peace, in his discretion may think proper. The examination shall be reduced to writing, and subscribed by the bail if required by the plaintiff." * / 9. Opposition to the bail is usually made on the ground either of some defect or irregularity in the form of the undertakings or of th? notice, or the service of the notice 1 Burns v. Kobins, 1 Code R., 62. ' g 193, supra. 'Tidd's Prao'., 272 ; Code, § 405. " Code, J 195. 93 PROVISIONAL REMEDIES. [Oh. I. of justification, or that the bail are not properly qualified. TJnder the former practice, if the bail did not attend to justify at the time appointed, and no further time was given they were said to be out of court. But further time was sometimes given, either to justify the same bail or to add and justify others.' Thus, if they were prevented from justifying by circumstances happening after they were put in, as by their subsequent bankruptcy, or insolv- ency, or by their having given up housekeeping, further time would usually be allowed to add and justify other bail.^ So, further time was generally given, where the bail, from any unforeseen accident, could not attend ; ^ or if after notice of justification they refused to attend ; * or if one or both of them failed to justify, by reason of the decision of the court upon a doubtful point of law as to their right to justify.^ But, where bail offered them- selves, and were rejected on account of some personal in- sufficiency, existing at the time they were put in, as by their being then attorneys ;° or insolvent debtors, or by their not being then housekeepers, time would seldom be allowed to add and justify others.^ Leave to extend the time and to add other bail must be obtained from the court on affidavits setting forth the facts. (See forms l^os. 21, 22). 10. On receiving notice of the justification, it becomes the duty of the plaintiff' to attend at the time and place therein mentioned, unless there is some irregularity in the notice, and if he fails so to do, the bail will stand perfected and the sheriff' discharged. The absence of the plaintiff is a waiver of this objection, even though the sureties themselves fail to attend.* Should the sureties fail, from 1 Tidd's Pr., 272. « 1 Chitty E., 8. n Chitty E., 11; id., 3, 4, 6; 1 U Chitty, 788, 144; 1 Tidd's Pr., Tidd's Pr., 273, 297. 287 ; see Voorhies Code, 882, citing 8 2 Chitty E., 107. the above oases. * 1 Aroh. Pr., 113. 8 See Ballard v. Ballard, 18 N. Y., 61 Chitty B., 287; 1 Aroh. Pr., 193. E., 491. § XII.] ARBEST Airo BAIL. 99 any cause, to be present and justify, the sheriff will re- main liable. So, a failure to justify on the part of either surety amounts to a failure of the justification ; and a re- jection of one of the bail was, usually, under the former practice, a rejection of all, unless time was given to pro- cure others.^ The judge may allow others to be substi- tuted for the defaulting surety ; but a new undertaking would be required, and the new bail must attend on new notice, and complete the justification. 11. The examination of the bail is under oath; and is in the nature of a cross-examination, based upon the affi- davits of sufficiency attached to the undertaking.^ Con- siderable latitude should be allowed in the examination, that the officer may be satisfied, beyond a doubt, of the sufficiency of the security. Should the plaintiff omit to attend, the affidavits of sufficiency will be sufficient to authorize an allowance of the bail without examination.^ (See forms No. 23). 12. The justification must take place in the county where the defendant was arrested, or where the bail reside ; and must be before a judge of the court, or county judge. A justice of the peace Jias no jurisdiction in the matter.* 13. If the bail are excepted to and fail to justify, they cease to be bail and are entitled to an exonereter ; to take effect from the exception, or from the expiration of the time to justify, if there is no waiver of the exception before that period.® The undertaking is in the nature of a contract with the plaintiff in the action, and it is optional with him to accept it or not. Should he refuse to accept it, it ceases to have any effect, unless the bail justify in ■Lewis V. Gadderer, 5 Barn. & » Hoff. Pro. Rem., 78. Aid., 704. * See supra, pi. 6. 2 1 Bur. Prac, 401 ; Van Wezel v. ^people v. N. Y. Sup. Court, 20 Van Wezel, 3 Paige, 38 ; Laporte's Wend., 607, and cases. Bail, 3 Dow., 110. 100 PROVISIONAL EEMBDIES. [Cd. I. the manner prescribed. "Where the plaintiff refuses to accept the bail and they fail to justify, their only liability is that given by section 203, in an action by the sheriff, not on the contract, but for damages which he may have sustained by reason of their omission or neglect.^ The plaintiff may waive his objections to the bail, .provided; it be done before the time for justification has expired; afterwards a waiver would be useless as the: contract is at an end.^ ••'■ .14. The qualification of bail has been before treated of.' They must each be resident freeholders, or householders within the state, and worth the amount specified in the order of arrest, exclusive of property exempt from execu- tion ; unless more than two bail justify, in which case the bail may justify severally in ainounts less than that expressed in the order, if the whole justification be equi^ valent to that of two sufficient bail.* The following- per^ sons are disqualified for becoming bail : All officers of courts of record, including judges, clerks of courts, sheriffs and their officers, turnkeys, jailors, etC; ; alfeo attorneySj attorneys' partners and clerk, and all persons indemnified by, an attorney;; persons who have been once rejected as bail, and all persons of infamous character." 15. In case the bail fail to attend at the time and place of justification, or if on examination the justification proves insufficient, a certificate; of the fact should be ob- tained by the plaintiff from the judge Or officer, in order to the establishment of the sheriff's liability, if necessai^.*' 16. If the judge or justice of the peace find the hail sufficient, he shall annex the examination to the under* taking, indorse . his allowance thereon, and cause the 1 Clapp T. Sohutt, 44 Barb., 9 ; » See supra, p. 101. People T. N. Y. Superior Court, 20 < Code, § 194. , Wend., 607. 5 See ante p. 101. 2 People V, N. Y. Superior Court, 1 1 Whitt. Pr., 429. 20 Wend., 607. '^^ OCT 20 T937 § XII.] ARKB8T AND BAIL. same to be filed with the clerk; and the sheriff shall thereupon be exonerated from liability.' (See forms Nos. 24-25). / 17. "Where the bail is found to be sufficient the judge must comply strictly with the foregoing section, as the justification will not be completed until he shall have done so, and shall have indorsed his allowance on the undertaking and filed it with the clerk.^ The undertak- ing passes out of the possession of the sheriff into that of the clerk, in whose custody it shall thenceforth remaiii, subject to the direction of the court. 18. When once the justification has been completed and the bail allowed, the matter is concluded, and the justification cannot be opened on the ground of the subse- quent insolvency of the sureties. The discharge of the sheriff' is absolute.^ But the allowance of bail has been set aside on motion, when obtained through gross fraud on the part of the bail, and wilh knowledge in the defend- ant or his attorney. But not when such fraud was com- mitted without the knowledge of the defendant or his attorney.* (For forms on justification, see appendix K'os. 18 to 26). 1 Code, § 196. ■» 1 Till & Sher Pr„ 589, citing : 1 2 O'Neil T. Durkee, 12 How., 94. Chitt., R., 372 ; id., 143; 5 J. B. 3 See Dudley t. Goodrich, 16 How., Moore, 321 ; 2 Br. & B., 619 ; 5 Taunt., 189 ; Willett v Stringer ; 6 Duer, 776 ; but see 1 Bing., 365, 2 Dow., 686 ; 15 How., 310. P. C, 438. 102 PBOVISIONAL EEMEDIES. [Ch. I. SECTION xm. DEPOSIT INSTEAD OF BAIL. 1. § 197. Deposit with the sheriff.^ 3. § 198. Payment of deposit into court. 3. § 199. SubBtitutlng hail for deposit. 4. § 300. Deposit, how disposed of. B. Deposit after hail has heen given. 6. Duty of sheriff on receiving deposit. t. Koney deposited at the risk of the depositor. 8. Attaching the deposit In another suit. 9. Application of the money in satisfiiction of judgment. 10. When moneyto he returned to depositor. 1. " The defendant may, at tlie time of his arrest, instead of giving bail, deposit with the sheriff the amount men- tioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defend- ant shall be discharged out of custody." ^ 2. " The sheriff shall, within four days after the deposit, pay the same into court, and shall take from the officer receiving the same, two certificates of such payment, the one of which he shall deliver to the plaintiff and the other to the defendant. For any default in making such pay- ment, the same proceedings may be had on the official bond of the sheriff, to collect the sum deposited, as in other cases of delinquency." ^ 3. "If money be deposited as provided in the last two sections, bail may be given and justified upon notice, as prescribed in section 193, any time before judgment, and thereupon the judge before whom the justification is had shall direct, in the order of allowance, that the money de- posited be refunded by the sheriff to the defendant, and it shall bC' refunded accordingly."^ 4. " Where money shall have been so deposited, if it 1 Code, ? 197. 2 Code, 1 198. 'Code, ? 199. § Xin.] ARREST AND BAIL. 103 remain on deposit at the time of an order or judgment for the payment of money to the plaintiff, the clerk shall, under the direction of the court, apply the same in satis- faction thereof ; and, after satisfying the judgment, shall refund the surplus if any, to the defendant. If the judg- ment be in favor of the defendant, the clerk shall refund to him the whole sum deposited and remaining unap- plied." 1 5. Whether the words "at the time of his arrest," in sec- tion 197, are to be construed strictly or not, does not appear to have been decided. There would seem to be no reasonable objection to allowing the deposit to be made, after bail had been given, and thereby relieve the bail. 6. It is the duty of the sheriff, upon receiving the deposit, to discharge the defendant, without any order of the court ; and he must carefully comply with the provi- sions of the foregoing sections. He is to pay the money into court within four days after the deposit, by paying it to the clerk of the court. Should he make default in pay- ment, proceedings may be had on his official bond, to col- lect the sum deposited ; ^ and it is probable that he could be proceeded against summarily, to compel such payment according to the statute.^ (See forms K'os. 26, 27). 7. The money deposited is at the risk of the depositor, and should it become lost or stolen during the pendency of the action, and without any fault of the plaintiff, the defendant must bear the loss.* "Where a person arrested, while privileged from arrest, made a deposit to obtain his release, and afterwards made application to the court, the ' money was ordered to be restored to him absolutely.* iCode, ?200. *ParsonsT. Travis, 5 Duer, 650; "See Bupra, ^198. see 2 Wend., 78. »2R. S., 534. spittT. Coombs, 4 Nev. & Man., 536. 104 PEO VISIONAL REMEDIES. [Ch. I. And where a third party deposited money in behalf of an arrested person, who afterwards surrendered himself, the depositor was allowed to take the money back, the sur- render being held equivalent to bail.'^ 8. In one instance whiere money was deposited by a party under arrest, and bail afterwards perfected, and the usual order of restitution made, it was held that the money so deposited was liable to attachment before such restitution, in another suit against the Same defendant ; notwithstanding it was shown that the money belonged to a third party, and not to the defendant.^ But this decision is said to have been reversed on appeal.' 9. By the English practice, under similar provisions, the plaintiff, on obtaining judgment, is bound to resort to the fund on deposit in the first instance, and cannot pass that by and issue execution for the whole amount of the judgment.* 10. If judgment is obtained in favor of the defendant, he will be entitled to all the money deposited, unless some portion of it has been used in satisfaction of interlocutory orders, entered in the action in favor of the plaintiff. (For forms on deposit, see appendix ISTos. 26, 27). 1 Douglass V. Stanborough, SAdol. 'See Voor. Code, note to § 200, also & Ellis, 316. 1 Til. & Sher., 594. 2 Salter v. Weiner, 6 Abb., 191. * Lush's Priio., 540, and oases. §XIV.] ARREST AND BAIL. 105 SECTION XIV. SUEUENDER OF DEFENDANT — ACTION AaAINS^P BAIL. 1. §188. Surrender of defendant. 3. § 189. Surrender of defendant. 8. Seizure of defendant by his bail, wben and wliere made. 4. Authorizing anottier to seize defendant. 6. When the sheriff becomes bail may sur- render defendant. 6. At wliat time bail may make surrender. 7. § 190. Bail, how proceeded against. 8. When liable. 9. What bail may show in defense of action. 10. What they may not show. 11. May show collusion between plaint- iff and defendant; may defend suit against principal. 12. Where there are several defendants. 13. Bail liable for costs on appeal. 1. " At any time before a failure to comply with the undertaking, the bail may surrender the defendant, in their exoneration, or he may surrender himself to the sheriff of the county where he was arrested, in the following manner : 1. A certified copy of the undertaking of the bail shall be delivered to the sheriff, who shall detain the defendant in Ms custody thereon, as upon an order of arrest, and shall, by a certificate in writing, acknowledge the surrender. 2. Upon the production of a copy of the undertaking and sheriff's certificate, a judge of the court, or county judge, may, upon a notice to the plaintiff of eight days, with a copy of the certificate, order that the bail be exonerated ; and-, on filing the order, and the papers used on said applica- tion, they shall be exonerated accordingly. But this section shall not apply to an arrest for the cause men- tioned in subdivisipn 3 of section 179, so as to discharge the bail from an undertaking given to the effect provided by section 211." ^ The concluding words, " so as to dis- charge the bail, etc.," were added in 1851. 2. " For the purpose of surrendering the defendant, the 1 Code, ? 188. 106 PROVISIONAL REMEDIES. [Ch. I. bail, at any time or place, before they are finally charged, may themselves arrest him ; or, by a written authority, indorsed on a certified copy of the undertaking, may empower any person of suitable age and discretion to do so." ' 3. One let to bail in a civil case, is, in the theory of the law, in the* custody of his sureties, who are considered as his keepers. Such sureties may seize their principal at any time or in any place, and surrender him in their own exoneration. They may take him at any time of the day or night, either upon a week day or Sunday, at any place, whether within the county where let to bail, or in another county, or even in another state or country. He may be seized even in church, or while he is attending court as a suitor ; and his dwelling ceases to be a castle to him, for his bail have as much a right to go into his house as he him- self, and when they please to take him, and if entrance is refused, they may break open his doors to come at him. If the principal resides in the house of another, the bail may enter, if the door Is open, to seek for him, whether he is found there or not. And the executor or administrator of the bail may, in like manner, surrender the principal of the deceased. In making the arrest, and in surrendering their principal, the bail may command the cooperation of the sheriff or any of his officers.^ 4. The bail may, also, by a written authority, indorsed upon a certified copy of the undertaking, deputize any person of suitable age and discretion to seize the defend- ant; and such person will have the same powers in respect thereto as the bail themselves.* Where a sheriff or other public officer is so authorized, he acts simply as agent for 1 Code, §189. 138; Barb. Cr. Law, 583; see 2 Crocker on Sheriffs, g 132 ; citing Metoalf v. Stryker, 31 N. T. R., 255. 2 Hill, 218 ; 7 John., 147 ; 1 John. 'Harp y. Osgood, 2 Hill, 218; Ch., 413 ; 6 Mod,, 231 ; 2 H. Black, NichoUs v. IngersoU, 7 John., 144. 120 ; 1 Boa. & Pul., 62 ; 8 Pick., § XrV.] ARREST AND BAIL. 107 the bail, and not in an official capacity ; and any note or agreement taken by such agent, conditioned for the ap- pearance of the prisoner at the. proper court, is not within the statute against the taking of security colore officii by a public officer.^ Such agent may, like the bail, arrest the defendant out of the county or state ; and, after a demand, may break open the outer door of his residence, and arrest him, even on a Sunday.^ Bail may surrender the de- fendant even though they have' been excepted to, and have failed to justify ; and in any case it is not necessary for all the bail to join in the surrender, or to sign the authority empowering another to arrest the defendant.* (See forms No. 31.) 5. Where the sheriff become's bail by force of section 201, he is entitled to the same rights and privileges as other bail, and may surrender his principal by rearresting him. ISo special process is necessary to enable him to make that arrest, but it may be in the same manner and within the same time as arrests by other bail.^ 6. The bail may make the surrender at any time within twenty days after the commencement of an action against them, or within such further time as may be granted by the court.' By the English rule, further time will not in general be granted to make the surrender. But the in- dulgence will sometimes be granted in cases where a refusal would work extreme injustice.* Such relief is discretionary with the court, and will not be granted where there is connivance or IcLohes on the part of the sureties.' The application for ah extension of time should be made before the twenty days have expired, but the I Harp V, Osgood, 2 Hill, 218. Buokmau 7. Carnley, 9 How., 180. ^NiohoUs V. Ingersoll, 7 John., s gee Code, g 191. 145. sPetersdorf onBail, 403 ; Harris 'In re Taylor, 7 How.-, 212, per v. Glors, 2 CUtty R., 101. Humphrey, county judge. 'See Baker v. Curtis, 10 Abb., *■ Seaver t. Genner, 10 Abb., 266 ; 279. 108 PROVISIONAL REMEDIES. [Ch. I. Court has authority to make such extension even after the expiration of the twenty days.' Where, however, the haU apply for leave to surrender after the expiration of the legal period, they should be required to show that they are not indemnified by their principal.^ After the twenty days, the bail cannot surrender their principal, nor can the sheriff hold him, if surrendered^ without the order of the court.' 7. " In case of failure to comply with the undertaking, the bail may be preceded against by action only."* 8. By the practice under the revised statutes, and which is mainly applicable under the Code, the bail could not become charged, or liable to an action, until an execution against the property of the defendant had been duly issued and returned unsatisfied in whole or in part, and an execution against the defendant's body issued and returned that the defendant could not be found within the county." But it must be observed that this would not apply where the arrest was under subdivision three of section 179. 9. And by the same statute it was provided that in such action, the bail may plead that execution against the property and against the body of the defendant in the ori- ginal suit, were not issued as herein directed ; or that they were not issued in suflBcient time to enable the sheriff to exe- cute the same ; or that directions were given by the plaintiff, or his attorney to prevent the service of said writs, or either of them ; or that any other fraudulent or collusive means were used to prevent such service ; and that if any such defense be established it shall entitle the bail to a ver- dict." The fraudulent or collusive means intended, must 1 Gilbert v. Bulkley, 1 Duer, 668 ; ^Code, ? 190. Baker y. Curtis, 10 Abb., 279. 63 r. S. (5th ed.), 664, § 29; 2 Bank of Geneva t. Reynolds, 20 Pearsall t. Lawrence, 3 John., 514. How., 18; 12 Abb., 81. 6 3 B. S. (5th,ed.), 665; 2 31. 8 Baker v. Curtis, 10 Abb., 279. § XrVJ ARREST AND BAIL. 109 be chargeable to the plaintiff or his attorney, or it wUl form no defense, for the misconduct or neglect of the sheriff, not showJi to be caused by the plaintiff or his agent, is not enough.^ 10. But in an action on the undertaking, the bail cannot question the liability of their principal to arrest. They are estopped by their undertaking. Exemption from arrest is a personal privilege which may be waived by the de- fendant, but the sureties cannot avail themselves of it.* Nor can they defend on the ground of the illegality of the order of arrest, or that no ca. sa., could issue upon the judgment; their only remedy being to move for an exone- ratur to be entered on the bail piece or undertaking, upon surrender of the judgment debtor.' Nor will the sureties, in general, be allowed to show that the practice or pro- ceedings in the action, in which the defendant was arrested, were irregular. These will be corrected on motion.^ Nor can they show either in bar of the action or in mitigation of damages, that before the recovery of judgment against their principal, he was, and has since been utterly insolvent, and had no property whatever that could be or was hable to be applied toward the payment of the judgment.^ 11. But the bail may show in defense of an action against them, that the plaintiff agreed with the defendant in the original action, without the knowledge of such bail, that he might leave the state and that all proceeding should be staid until his return ; and such defense will discharge the bail.* The bail may also be allowed to defend the action against their principal.' 12. "Where the plaintiff has the right to take the per- 1 Bradley v. Bishop, 7 Wend., 352 ; * Jewett v. Crane, 35 Barb., 208. Bishop r. Earle, 17 Wend., 316. 6 Levy v. Nichols, 19 Abb., 282. 2 Gregory V. Levy, 12 Barb., 610 ; SNiblo v. Clark, 3 Wend., 24; 7 How., 37 ; see Haggart v. Morgan, Aff 'd 6 Wend., 236. 5N. Y. R., 428. J Id. »Id. IIQ PROVISIONAL REMEDIES. [Ch. I. sons of several defendants in satisfaction of his judgment, it carries with' it the right to proceed against the bail of one of them, as to whom there may be a return of non est inventus? 13. The bail are liable not only for the amount of the judgment recovered against their principal on the trial, but also for costs, etc., adjudged against him on his appeal. And an action and recovery against them by the plaintiff for the amount due upon the first judgment, even though satisfied by them, is not a bar to a new action for the amount awarded against their principal on appeal.^ 1 Penn v. Kemsen, 24 How., 503. * Appleby v. Kobinson, 44 Barb., 316. §XV.] ARREST AND BAIL. Ill SECTION XV. EXONERATION OP BAIL. 1. § 191. Ball, how exonerated. 2-3. By the death of the defendant. 4. When death of principal will be pre- sumed. 5. By the imprisonment of defendant. 6. By a judgment for the defendant. t. Where the principal has obtained dis- charge from his debts. £-9. By a surrender of the principal. 10. Extending time to surrender. 11-lS. What is good excaae for not surren- dering within the time. 13. What papers should be presented on motion for exoneration. 14. Order of exoneration and papers to be filed. 1. " The bail may be exonerated either by the death of the defendant, or his imprisonment in a state prison, or by his legal discharge from the obligation to render himself amenable to the process, or by his surrender to the sheriff of the county where he was arrested, in execution thereof, within twenty days after the commencement of the action against the bail, or within such farther time as may be granted by the court." ^ The words "or by his imprison- ment in a state prison " were added in 1849. 2. It was provided by the revised statutes that where the defendant in a suit shall die after the return of the ex- ecution against his body and before the expiration of eight days from the return of the process served on his bail, the court shall relieve such bail, on the same terms as if they had surrendered their principal at the time of his death.^ 3. This provision is still in force and not repealed by the Code. There is no longer a " return of process," in the sense used in that statute, but the expiration of the twenty days to answer, or to appear, is to be deemed the time. So that, under the revised statutes, where the ' Code, g 191. ' 3 R. S. (5th ed.), 665, g 32. ]^J2 PROVISIONAL EBMEDIES. [Oh. I. death of the principal occurs within eight days after the expiration of the time allowed to answer the complaint, or to appear in the action, the bail may be exonerated. So, if the principal die within twenty days after the com- mencement of the action against the bail, or within such further time as may be granted by the court for the sur- render of the principal, such bail may be exonerated under the Code.^ 4. If the principal is dead, the bail are entitled to a dis- charge, and they have themselves a right to move for such discharge. The death of the principal may be pre- sumed, and there is no arbitrary or positive rule in respect to the time when the presumption of death may be drawn from the continued absence of a person. Neither seven years,, nor any specific period need elapse, to lay the foundation for such presumption, but it may be drawn whenever the facts in the case will warrant it.^ 5. It was the practice before the Code, to discharge the bail, when the principal had been imprisoned for a long term of years or for life; but not where the imprisonment was for a short period.^ Where a defendant was sentenced to state prison in another state for thirteen years, it was held that he was taken out of the power of his bail, and an exoneratur should be granted.* "Where the defend- ant was imprisoned on a charge of felony he was brought up on a writ of habeas corpus and surrendered by his bail, and they were thereupon discharged.* 6. Bail will be discharged where their principal reco- vers judgment in his favor in the action ; but it must be a final judgment, for, if before an exoneratur is entered, the judgment be reversed or set aside with leave to the ' Hayes v. Carrington, 12 Abb., Cases, 28 ; Phcenlx Fire Ins. Co., v. 179 ; 21 How., 143. Mowatt, 6 Cow., 599 ; Xofliu t. Fow- ' Merritt v. Thompson, 1 Hilton, ler, 18 John., 336. 550, and cases, * Loflin v. Fowler, supra. . 'Cathoart t. Cannbn> 1 John.'.s 'Bignell v. Forrest, 2 John., 482. §SV.] AKBE8T AND BAIL. 113 plaintiff to proceed in the action, their liability is re- vived.^ If the judgment be against the principal, and his bail, instead of surrendering him, upon execution is- sued against the body, elect to pay the amouht while an appeal is pending, such payment will not discharge their liability as bail." Nor will an exoneratur be granted. on the ground that the debt in the suit against the principal has been satisfied. ' Such matter must be pleaded.* 7. If the principal obtains a legal discharge from his debts under the insolvent debtor's act, his bail will be exonerated on motion ; since an actual surrender would be an idle ceremony, as the principal must be imme- diately liberated.* But if the discharge has been obtained at such stage of the action as to allow the debtor to plead it, he must do so, or his bail will be concluded.? On a motion for an exoneratur, the discharge cannot be ques- tioned on the ground of irregularity or fraud.* Where before the time to surrender has expired, the right to im- prison the principal has been abolished by the legislature, the bail are entitled to an exoneratur on the ground that the statute is equivalent to a surrender.'^ 8. The bail may also be exonerated where they surren- der their principal within twenty days after the com- mencement of an action against them ; or within such further time as the court may grant.* They may make the surrender within the twenty days whether they are indemnified or not;' but no further time will be granted where bail are indemnified." I Von Gerhard v. Lighte, 13 ATab., ^ Cunningham v. Brown, 5 Cow., 101 ; Appleby V. Eobinson, 44 Barb., 289 ; Trumbull v. Healy, 21 Wend., 316. 670. 'ApplebyT.Bpbinson, supra. 'White v. Blake, 22 Wend., 612; 8 Mechanics' Bank v. Hazard, 9 Dunham v. Macomber, 5 Wend., John., 892. ■ 113. * Seaman y. Drake, 1 Caines, 9 ; 8 g X9i, supra. Franklin T. Thurber, 1 Cow., 427; ' Brownelow t. Forbes, 2 John., White V. Blake, 22 Wend., 612. 101. s Campbell v. Palmer, 6 Cow., 596 ; J" Bank of Geneva v. Reynolds, 20 Mechanics' Bankv. Hazard, 9 John., How., 18; 12 Abb., 81. 392 ; Post V. Kiley, 18 John., 54. 1X4 PBOVISIONAL EBMEDIBS. [Ch. I. 9. After the twenty days have expired the bail cannot properly surrender their principal, and if they do the sheriff cannot hold him.' But the court may in the exer- cise of its discretion exonerate the bail after the expira- tion of that period for good cause shown.'' 10. Before the Code the practice was well settled, that where the bail, by circumstances over which they had no control were prevented from making the surrender within the prescribed time, the court would enlarge the time to surrender, and this might be done although no application had been made, or order to stay proceedings obtained, within the regular time for making the surrender.* This practice has not been changed by the Code.* (See forms ]S"os. 35, 36). 11. The sickness of the bail is a good excuse for not making the surrender within the time limited.* So when the surrender is delayed by the sickness of the principal, and the bail are ignorant of the fact, so as to be unable to obtain a stay or further time they are not prejudiced there- by, but will be granted leave to surrender and enter ex- oneratur.® So the impossibility of procuring a copy of the bail-piece in time is a good excuse.'^ , 12. So, any contrivance or misstatement by the plaintiff whereby the bail have been deceived or thrown off their guard, so as to prevent their surrendering the principal within 'the time, will be sufficient excuse for enlargement of the time.' So, where the plaintiff on receiving part of his debt from the principal, entered into a stipulation not to proceed against him until after a certain day, and ' Baker v. Curtis, 10 Abb., 279. « Thomas y. Bulkley, 5 Cow., 25. 'Gilbert v. Bulkley, 1 Duer, 668. 'Van Kensselaer t. Hopkins, Col. 'Bank of Geneva v. Keynolds, 20 & Cai., Cases, 481; NicholsT. Sutfin, 7 How., 18, and cases. Cow., 422; see Baker v. Curtis, 10 4Id., Gilbert v. Bulkley, 1 Duer, Abb., 279. 668. 8 Livingston, v. Bartles, 4 John., BBoardmanv. Fowler, 1 Johns.'s 478. Cases, 413. § XV.] ARREBT AND BAIL. 115 this stipulation induced the principal to leave the state, the bail were held to be exonerated.^ So, where the plaintiff, after having recovered judgment, but before exe- cution, agreed with the principal without the knowledge of his bail, that he might leave the state, and that all proceedings, on the judgment should be stayed until his return, the bail were held to be discharged whether the agreement was made with or without consideration.'' 13. "Where the bail seek exoneration on the ground of a surrender, they should obtain from the sheriff a certifi- cate of that fact ; and where they seek it on the ground of his death, they should present affidavits of such death, or of the facts upon which the presumption is based ; and if on either of the other grounds mentioned in section 191, the application should be based upon a certified copy of the record. A copy of the undertaking must be also produced before the judge.^ Such certificate, affidavit, or certified copy of the record, together with a notice of motion, must be served upon the defendant at least eight days prior to the application, and the application must be to a judge of the court or county judge.* (See forms Nos. 32, 88, 34). 14. The order of exoneration, with the papers used on the motion, should be immedfately filed with the clerk of the county in which the action was brought.^ (For forms, herein, see appendix E"os. 32 to 36 inclusive). iRathbone v. Warren, 10 John., ^§188, see Barker v. Russell, 11 587. Barb., 304. a Clark v. Niblo, 6 Wend., 236. 5 x 188. >See|188. 116 PROVISIONAL REMEDIES. [CH.L SECTION XVI. SHERIFF WHEN LIABLE AS BAIL- SHERIFF. -BAIL WHEN LIABLE TO 1. § 301. Sheriff, when liable as baU. S. §S03. FroceedingBon judgment against Bheriff. 3. Action may be either for the escape or as bail. 4. When sheriff may show Insolvency of principal. 5. Sheriff's liability same as other bail. 6. Sheriff giving bail. 7. Measure of liability. 8. What is an escape. 9. Sheriff liable to plaintiff for an escape. 10. Whatcaseshavebeenheiatobeescapes. 11. When sheriff may permit defendant to go at large. 18. Sheriffllable for a rescue. 13-14. Becapture after am escape. 15. Discharge of the prisoner by sheriff. 16. § 203. BaU liable to sTierif- 17. When bail liable to sheriff. 18. Nature of the liabllit?. 1. " If after being arrested, the defendant escape or be rescued, or bail be not given or justified, or a deposit be not made instead thereof, the sheriff shall himself be liable as bail. But he may discharge himself from such liability by the giving and justification of bail, as pro- vided in sections 193, 194, 195, and 196, at any time before process against the person of the defendant, to enforce an order or judgment in the action;" ^ 2. " If a judgment be recovered against the sheriff upon his liability as bail, and an execution thereon be returned unsatisfied, in whole or in part, the same pro- ceedings may be had on the official bond of the sheriff to collect the deficiency, as in other cases of delinquency."" 3. The plaintiff has his election to proceed against the sheriff as bail, or for an escape, and that election is mani- fested by the complaint. If he proceed against him as bail, he must set forth the proceedings to and including the escape, and allege that the defendant is bail, and he must 'Code, ?201. 'Code, ?202. § XVI.] ARREST AND BAIL. 117 also demand an appropriate judgment. If the plaintiflf ' elects to proceed for an escape, the complaint should con- tain the same matters, with the exception of the allegation as to the character of the defendant as hail.^ The action for an escape is given by the common law, and its exist- ence is recognized by the 94th section of the Code which limits the time for the bringing of such action to one year. 4. If the action be against the sheriff as bail, he will not be allowed to show the insolvency of his principal, in relitigation of damages, but if it be an action for escape, it is competent to give in evidence the circumstances of the principal in order to limit the recovery to what the plaintiff has actually lost.^ 6. Whenever the sheriff shall become liable as bail, his liability is the same as that of any other bail ; and he is also entitled to the same privilege. He"may rearrest and surrender the defendant in the same manner and within the same period ; he is entitled to the same extension of time in which to make the surrender under like circum- stances, and to a discharge or exoneratur for the same causes,' Where the defendant has been held to bail under the third subdivision of section 179, the sheriff's liability is commensurate with the liability of bail under section 211.* But to render the sherijff liable in such case, there must be a judgment under which the property might be taken and delivered on execution. Therefore, where a judgment, in replevin or claim and delivery, is for damages only, and not for the delivery of the property, the sheriff is not liable for such damages by reason of the failure of the sureties to justify, in an undertaking for the delivery of the igmithv.Knapp, SON. Y. B,.,581, Sartos v. Meroeques, 9 How., 188; at p. 592. Seaverv. Genner, 10 Abb.,,256. " Id. 4 MoKenzie v. Smith, 27 How., 20. ^Buckman v. Carnley, 9 How., 180; IJ^g PROVISIONAL REMEDIES. [Ch. I. property, if adjudged, and for the payment of such sum as may for any cause be recovered against the defendant.* 6. Should the sheriff seek to relieve himself from his li- ability by giving and justifying other bail, he must do so before process issues against the person of the defendant, or his liability will not be discharged. And the bail must be likewise adapted to the action and conform to the ori- • ginal order of arrest ; therefore where the original order was to hold the defendant to bail under section 211, the bail put in must be under that section.^ 7. The measure of his liability is the judgment obtained against his principal, with the interest thereon, and where the principal appeals he is, like other bail, liable for the costs of the appeal, if awarded against his principal.^ If the action be against him as bail he will not be allowed to show, either in bar of the action, or in mitigation of da- mages, that before the recovery of judgment the principal was, and has since remained insolvent.^ But if the action is for an escape, it is otherwise, and the plaintiff can only recover his actual damages.^ 8. An escape is where one who is under lawful arrest, evades such arrest and restraint, either violently or pri- vily, or is suffered to go at large by the officer having him in custody, even for the shortest time, before deli- very by due course of law.* It must have been a lawful arrest ; therefore, if the process by virtue of which the arrest is made, is void, an evasion of the arrest will not be an escape, and the sheriff will not be liable.^ An escape is either negligent or voluntary; it is negligent when made without the knowledge or consent of the officer having custody of the person, whether it be from the iGallaroti v. Orser, 27 N. Y. R., 80 N. Y. E., 581 ; Levy v. Nichols, 324. 19 Abb., 282. 2 McKenzie v. Smith, 27 How., 20. 6 1^. 8 Appleby T. RobinBon, 44 Barb., » Crocker on Sheriffs, 245, and 316. cases cited. ^MetoalfT. Stryker, lOAbb., 12; ' Carpenter v. Willett, 21 How., 31 N. Y. R., 255; Smith v. Knapp, 225. § XVI.] AREEST AND BAIL. 119 officer on the arrest, from the jail, or from the liberties of the jail ; it is voluntary when made with the assent of the officer having the defendant in custody.^ 9. If any prisoner committed to any jail, by virtue of any capias ad respondendum (order of arrest), or other mesne process, or upon surrender in exoneration of his bail, made either before or after judgment rendered, shall go or be at large without the limits and boundaries of the liberties of such jail, without the assent of the party at whose suit such prisoner shall have been committed, the same shall be deemed an escape of such prisoner, and the sheriff having charge of such jail shall be answerable therefor to such party, in an action of trespass on the case, to the extent of the damages sustained by him.^ Such action being for an escape the sheriff may show the insolv- ency of the prisoners in mitigation of damages.^ 10. Should the sheriff, after arresting the defendant, leave him in the custody of one not an officer, it will be an escape, as such person has no authority to detain him,* So, if one is on the jail liberties, and knowingly and voluntarily goes beyond such liberties, even for the pur- pose of avoiding a snow-bank, it will be an escape, and the sheriff will be liable. So, where a prisoner went beyond the jail liberties, into a building supposed to be within the liberties and stayed an hour, it was held to be an escape.* But the sheriff may suffer the defendant to go at large within the jail liberties, even without the bond usually required, and if he eS9ape from such limits, such escape will be negligent only.* 11. The sheriff may permit one arrested on mesne iLookwood V. Meroereau, 6 Abb., * Palmer v. Hatch, 9 John., 829. 208 ; Crocker on Sheriffs, 245. STallmadge v. Richmond, 9 John., 2 8 R. S. (5th ed.), 737 ; (2 R. S., 89. 437, §62). 63 R. g. (5th ed.), 734; Lock- 3 Smith v. Knapp, 30 N. Y. R., wood v. Mercereau, 6 Abb., 208. 581 ; Metoalf v. Stryker, 31 Barb., 62, 10 Abb., 12. 120 PROVISIONAL REMEDIES. [Oh. I. process to go at large, provided he has him in custody at the return day of the writ; but he cannot suffer him, to go at large after such return day, or he will be liable for an escape.* 12. The sheriff, in executing an order of arrest, has fall authority to call to his aid the power of the county, and it is his duty to do so where a rescue is apprehended or attempted. He is therefore liable in all cases of rescue.^ 13. After a negligent escape, or rescue, the sheriff may on fresh pursuit, recapture the defendant at any time or in any place. He may pursue and take him in any othpr county,* or in another state if the government does not object.^ He may break open, after demand and refusal, any outer door ; ° and may retake him even on the Sabbath day.^ 14. The sheriff may recapture the defendant after a voluntary escape, on an order of arrest, or mesne process, at any time before the return day of the order ; but not afterwards. And if, after a voluntary escape, the sheriff is obliged to pay the plaintiff the amount of the judgment, neither the sheriff nor his officers can maintain an action against the defendant for the money thus paid.' But it is otherwise where the escape was negligent. In such case the sheriff can retake the defendant and detain him until he is satisfied by him for the escape, if the plaintiff re- cover of the sheriff for a negligent escape.* 15. The sheriff must discharge the defendant from cus- tody on receiving orders from the plaintiff or his attorney to that effect, and if a plaintiff direct a discharge, the de- 1 Crocker on Sheriffs, g 589, and ^AHen v. Martin, 10 Wend., 300 ; oases. Glover v. WMttenhall, 6 Hill., 597. 2 Code, ? 201, supra ; 1 K. S. (5th 6 Anon., 6 Modern, 231 ; Parker v. ed.), 750. Moore, id., 95 ; Jones T. Pope, 1 8 Bigeway's, case, 3 Codlb K., 52. Saund., 35. * Look-wood V. Mercereau, 6 Abb., 'Graham's Pr., 149; Pitcher v. 210 ; Nichols v. IngersoU, 7 John., Bailey, 8 East., 171. 145. ^ Watson, 150. § XVI.] ARREST AND BAIL. 121 fendant cannot be held on a counter order from the at- torney.^ But should the sheriff discharge the defendant on his own responsibility, he will himself be liable as bail, and if he recieve a reward for such discharge it will be a misdemeanor, and might also, perhaps, be treated as a con- tempt of court. If he should take any bond or security to indemnify him for such discharge, it will be absolutely void.^ 16. ." The bail" taken upon the arrest, shall, unless they justify, or other bail be given or justified, be liable to the sheriff by action, for damages which he may sustain by reason of such omission."' 17. Since the bail who have failed to justify are liable to the sheriff for the damages merely which he may sustain by reason of such failure, it follows that he must have sustained such damage. before he will have a cause of action. He cannot bring the action against the bail until he shall himself have been proceeded against and damnified as bail.* 18. The liability of the bail to the sheriff under the fore- going section arises, not on contract, nor on the undertak- ing, but for damages sustained by reason of their omission or neglect ; and the complaint should contain, not only the facts preliminary to giving the undertaking, the neglect to justify, or to substitute other bail, and the recovery of judgment in the original action, with the execution, but also that the sheriff has received damage" by reason of such neglect, and a statement of what that damage was.' iGorham v. Gale,- 7 Cow., 739; *Clapp v. Sohutt, 44 Barb., 9 ; 29 Taylor v. Braucler, 1 Esp. Rep., 45. How., 255, 19 Abb., 121. 2 3 B. S. (5th ed.), 736 and 476 ; 6 Clapp v. Sohutt, 44 Barb., 9 ; 29 Webber v. Blunt, 19 Wend., 190. How., 255, 19 Abb , 121. 3 Code, ? 203. 122 PROVISIONAL REMEDIES. [Ch. I. SECTION xvn. VACATING ORDER OF ARREST, OR REDUCING BAIL. 1. § 204. Vacating order of arrest, or re- dncing bail. 3. § 205. Affldavits on motion. 3. When motion may be made. 4. Defendant lias twenty days before judg- ment to move. 5. Wben not limited to twenty days. 6. Cannot move after judgment. 7. Where, and to whatjadge, motion to be made. 8. Motion on plaintiffs papers. 9. When the order will be set aside. 10. When it will not be set as(de. 11. Effect of not haying an irregular order Bet aside. 12. Motion on opposing affidavits, where made. 13. Two kinds of motion to vacate on affi- davits. 14. Where the cause of arrest and of action are the same. 15. In actions to recover personal property. 16. Where the groands of arrest are extrin- ' sic to the cause of action. 17. Effect of a denial of plaintiff's allega- tions. 18. On what groniids.thB order will not be vacated. 19. When the arrest was effected by fraud — second arrest. 20. When plaintiff may introduce additional affidavits and what to contain. 21. When judge may order reference on motion to vacate. 22. Conditions on vacating order. 23. Bearresting defendant after discharge. 24. Motion to reduce bail. 25. Eenewing motion to vacate order. 26. Appeal from decision of motion, 27. Within what time judge to decide mo- tion to vacate. 1. " A defendant arrested may, at any time before judg- ment, apply, on motion, to vacate the order of arrest, or to reduce the amount of bail." [This section was amended in 1858 by substituting the word ''judgment" for the words "the justification of bail."] 2. " If the motion be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the order of arrest was made." ^ 3. Prior to the amendment of section 204 made in 1858, the motion to vacajte the order of arrest, or to reduce the bail could only be made before the justification of the bail ; . Code, ? 204. 2 Code, g 205. § XVII.] AREE8T AND BAIL. 123 but since that amendment such motion may be made at ' any time before judgment, without regard to the fact as to whether bail has been justified or not.^ (See forms No. 28). 4. By the amendment of section 183 made in 1862, it was provided, that the order of arrest shall be of no avail, and shall be vacated or set aside on motion, unless the same is served upon the defendant, as provided by law, ■ before the docketing of any judgment in the action ; and the defendant shall have twenty days after the service of the order of arrest, in which to answer the complaint in the action, and to move to vacate the order of arrest, or to reduce the amount of bail.^ 6. Before such amendment the plaintiff could serve the order of arrest before, but so near the entry of judg- ment, as to preclude the defendant from moving to set it aside.* The amendment was made to prevent such prac- tice, and to give the defendant a reasonable time, under all circumstances, to move to vacate the order, or to reduce the bail. It does not shorten the time allowed by section 204, but extends it in those cases where the arrest is made within twenty days of the day on which judgment could be entered; so that the defendant may move to vacate the order, or to reduce the bail, at any time after the arrest and before judgment ; but he shall, in all cases have twenty days after the arrest to make such motion. The various cases as. to within what time the motion was to be made before the above amendment of section 205, have been superseded by such amendment and need not be given.* 1 Wicker v. Harmon, 21 How., ber v. Hubbard, 3 Code B., 169; 462 ; 12 Abb., 476 ; Warren v. Wen- Dale v. Kadoliff, 15 How., 70 ; Qye- dell, 13 Abb., 187. rill v. Durkee, 2 Abb., 883, reported "Code, § 183, ante. as O'Niel v. Durke, 12 How., 94 s See Barker V, Wheeler, 23 How., Lewis v. Friesdell, 3 Sandf., 706 193. Wilmerding v. Moon, 1 Duer, 643 * For some of those oases see Bar- 8 How., 213. 124: PROVISIONAL REMEDIES. [Oh. I. 6. As has been before stated, the motion may be made at any time before judgment, whether bail has been given and justified or not; but after judgment in the action the motion cannot be made.' ' But such judgment must' be final ; therefore, where a judgment is entered for default of an answer, and the defendant is afterwards let in to defend, the judgment standing in the meantime as se- curity, the defendant may be arrested on the original cause of action, and a motion made to vacate the order of arrest.^ After a motion to vacate the order has been made and denied, it cannot be renewed without leave of the court.' 7. Where the motion is made on the plaintiff's papers without introducing affidavits on the part of the defend- ^ ant, it may be made ex parte, and at chambers before the judge who granted the order ; but if made before any other judge, or if made on affidavits on the part of the defendant, it must be made to the court, on notice, in the same manner that other motions are made.* But a county judge has no power to hear the motion where it is made on notice, as he has only the powers of a supreme court at chambers ; he may, however^ vacate an order of arrest made by him on au'ex parte application.' 8. Where the defendant makes the motion on the plaint- iff's affidavits alone, the sole question is, whether such affidavits authorize the granting of the order.® Th6 plaintiff cannot introduce additional, evidence in support of the order, but it must stand or fall on the original papers.' But such papers, being uncontradicted, will be 1 Barker v. Wheeler, 23 How., Bank t. Warfield, 13 How., 489 ; 193; 14 Abb., 170 ; Roberts v. Car- Rogers v. MoElhone, 20 How., 441. ter, 17 How., 479; 9 Abb., 106, 6 Roger? t. MoElhone, 12 Abb., note. 292 ; 20 How., 441. « Union Bank v. Mott, 16 How., 6 Martin t. Vanderlip, 3 How., 625; 8 Abb., 150; Aff'd, 17 How., 265. 354; 9 Abb., 106. ' See Peel v. Elliott, 16How.,481; 'LotbUv. Martin, 21 How., 288. Martin v. Vanderlip, supra. * See Code, g 824 ; Cayuga County ' § XVII.] AEREST AND BAIL. 125 taken as true, and if they establisTi a prima fade cmQ, the order should stand. They will, however, be strictly con- strued against the plaintiff,^ It was held before the amendment of section 2Q4, in • 1858, that the putting in and perfecting bail was a waiver of any defects or insuffi- ciency in the plaintiff's affidavits ; ^ but this is probably not the rule now.' The motion should be made without any unnecessary delay. 9. Where the plaintiff's affidavits fail to make out the offense charged, or to establish a prima fade case ; * or where they are founded on hearsay without setting forth the sources of information, the order will be set aside." So, a fatal defect in the complaint ; * or a variance, show- ing clearly that the ground of arrest and the cause of action are inconsistent ; ^ or a joining in the complaint of causes of action to which the remedy of arrest extends, with others to which it does not, are grounds for vacating the order on an ex parte application.* So, the order may be set aside, where the undertaking filed on obtaining the order is not indorsed with the approval of the justice.' 10. But the order will not be vacated on an objection merely technical, which is independent of the cause of arrest, and which may be remedied by amendment, such as a misjoinder of. parties ; ^" [or an error in entitling the summons ; " or because the summons has been amended, since granting the order.'^ Nor will it be vacated on the ground that the case made by the complaint varies from iLovell v. Martin, 21 How,, 238; sBell v. Mali, 11 How., 254; Ne- Hathorne v. Hali; 4 Abb., 227 ; yille v. Neville, 22 How., 500. Moers V. Morro, 29 Barb,, 361. ' Seymour v. Van Curen, 18 How., 2 Stewart T. Howard, 15 Barb., 26; 94; Wicker v. Harmon, 21 How., see Bedell v. Sturta, 1 Bosw., 634 ; 462 ; 12 Abb., 476. 6 Abb,, 819, note. s Lambert v. Snow, 9 Abb., 91; 3 See Til. & Sher.. Pr., 597; Co- 17 How., 517; MoGovern t. Payne, lumbus Ins. Co. t. Force, 8 How., 32 Barb., 83. 353. ■ ' ' 'Newell V. Doran, 21 How., 427. * Sachs V. Bertraud, 22 How., 95 ; i» Webber v. Moritz, 11 Abb., 113: 12 Abb. , 433. u Bedell v. Sturta; 1 1 Bosw. , 634. 5 Cook V. Eoaoh, 21 How., 152. " Union Bank v. Mott, 6 Abb., 316. 126 PEOVISIONAL REMEDIES. [Ch. I. that made by the affidavits, if the affidavits are themselves flufficient and disclose a ground of arrest, which is consist- ent with the allegations of the complaint ; ^ nor because the defendant has been proceeded against for the same cause in a foreign tribunal ; " nor because the action is barred by the statute of limitation, where no such defense is set up in the answer ;^ nor because the copy of the affidavit served contains no signature of the affiant, or of the officer before whom it was sworn to, such omission being an irregularity only which may be amended.* Nor is it a ground to vacate the order, that the defendant, at the time of the arrest, was privileged from arrest. The arrest itself may be set aside, but the order should stand, that the arrest may be made when the exemption expires.' But if the action is one in which the defendant is not lia- ble to arrest, and he has given bail, he should move to vacate the order of arrest, and not for an exoneration and discharge of, his bail.' 11. If the defendant be arrested before judgment on an order of arrest, when he is not liable to arrest ; or on an order ever so irregularly obtained, if he does not move to set it aside before judgment, he can be legally arrested on an execution against his person.'^ ■ 12. "Where the motion to vacate is made on opposing affidavits on the part of the defendant, it must be on a notice of eight days, and to the court, at term. Neither the judge at chambers, nor the county judge has power to hear such motion.* The notice to the plaintiff must be accompanied by copies of the defendant's affidavits ; and 1 Stelle V. Palmer, 7 Abb., 181. « Holbrook t. Homer, 6 How., 86. aArthurton v. Dalley, 20 How., 'Smith y. Knapp, SON. Y. R., 581. 311. • ^Rogers v. McElhone, 20 How., 'Id. 441; 12 Abb., 292; Lancaster t. * Barker v. Cook, 40 Barb., 254; Boorman, 20 How., 421 ; Cayuga 26 How., 190. Bank v. Warfield, 13 How., 439. 6 Hart V. Kennedy, 16 Abb., 290. § XVn.] ARREST AND BAIL. ' 127 the plaintiff may 9pp68e the motion by affidavits, or other proof in addition to those on which the order was granted.* 13. Motions to vacate on opposing affidavits may be divided into two classes : 1. Where the. cause of action and of arrest are the same, and the grounds of arrest form an integral part of the cause of action, and of the issue to be tried ; and 2. Where the grounds of arrest are extrinsic to, and independent of, the cause of action ; as where the ground of arrest is fraud in contracting the debt for which the action is brought ; or where the defendant has remove^ or disposed of his property, or is about to do so, with intent to defraud his creditors. 14. In the first of these ca^es, or where the rightto ar- rest is derived from the nature of the action, the burden of proof, on a motion to vacate, is on the defendant.^ The order will not be set aside on the merits, unless the defend- ant clearly makes out such a case as would call on the judge at the trial, either to nonsuit the- plaintiff, or to direct a verdict for the defendant ; and the defense must be clearly proved, for the court has no right to say upon doubtful evidence, that the plaintiff cannot recover in the action.^ If there is any ambiguity as to the nature of the cause of action, the court will determine, not what cause of action the plaintiff has intended to set forth, but rather what cause of action he must rely upon for recovery.* 15. The right to arrest the defendant, in an action to recover the possession of specific personal property, does not depend upon the character of the action, but on the question as to whether or not the defendant has disposed 1 See g 205, supra. Levins v. Noble, 15 ABb., 475 ; 2 Republic of Mexico y. De Aran- Causland v. Davis, 4 Bosw., 619; gois, 5 Duer, 634, 641 ; 11 How., Frost v. McCarger, 14 How., 142, 576 ; Falconer v. Ellas, 3 Sandf., and cases cited above. 731. 4 Peel v. Elliott, 7 Abb., 433 ; 28 » Barrett y. Oracle, 34 Barb., 20; Barb., 200; 16 How., 486. 3^28 PEOVISIONAL REMEDIES. [Ch. I. of, or concealed . Ms property, with a fraudulent intent. Hence, the ground of arrest is not inherent, in the cause of action, and the court may try the fact of removal, and the question of intent upon the affidavits.^ But in an action to recover the value of goods converted by the defendant, the defendant cannot entitle himself tp a vaca- tion of the order of arrest, by showing that he has a claim against the plaintiff for a larger amount.^ 16. When the grounds of arrest are extrinsic to, and independent of, the cause of action, the burden of proof, on a motion to vacate rests, upon the plaintiff, and if he does not make out his case, the defendant will be dis- charged. The test is whether, upon the whole case, as made by the affidavits on both sides, the court, if called upon to act on the application as res nova, would grant the order. The court will determine the , question precisely as it ought to be determined if submitted to a jury.* 17. Where the defendant absolutely and unqualifiedly ■ denies the facts alleged in the plaintiff's affidavit on which the arrest was granted, the order will be vacated, unless the plaintiff produce additional proofs. The ba- lance of proof must be in favor of the plaintiff.* 18. The order will not be vacated on the ground that the allegations of the complaint vary from those of the affi- davit, if the affidavit is itself sufficient, and discloses a ground of arrest, which is consistent with the complaint,? Nor because the summons has been amended since the granting of the order ; * nor because an attachment suit is 1 Jananique v. DeLuo, 1 Abb. (N. " Allen v. McCrassen, 32 Barb. S.) 419 ; Manly v. Paterson, 8 Code 662 ; Brodsky v. Ihrna, 25 How ' K.. 89. 471 ; 16 Abb., 251 ; Mecklia t. 2Huelet V. Eeyno, 1 Abb. (N. S.), Berry, 23 How., 380; see an obiter 27. " dictum to the contrary in Philips t. sChapinv. Seeley, 13 How., 493; Benedict, 20 How., 265- see also Barron T. Sanford, 14 How., 443; anon., 6 Abb., 319, note. 6 Abb., 820, note; Allen v. Mo- ^ Bedell t. Sturta, 1 Bosw., 634. Crassen, 32 Barb., 662; Frost v. "Union Bank v. Mott, 6 Abb . 316. MoCarger, 14 How., 142. ' § XVn.] ARREST AND BAIL. 129 pending between the same parties and for the same cause of action, in another state ;^ nor because there is an im- proper join'^pr of parties plaintiff;'' nor because the debt is barred by the statute, of limitation,, unless such defense is set up in the answer ; ' nor for laches in serving the com- plaint, if excuse for such laches is shown.* 19. But the defendant will be discharged from arrest where it appears that the arrest was affected by. enticing him within the bailwick of the sheriff having the order, by means of false represeintations." So, when the defendant has been already arrested, for the same cause, under the valid process of another court, he wijl be discharged, or the plaintiff put to his election.* But it is otherwise where such prior process was notlegal.' Where a defendant has been arrested at a time when he was privileged, from arrest, he shoulcL move for a discharge from arrest, and not to vacate the brder.* 20. When the motion of the defendant to vacate the order is made on affidavits, the plaintiff can oppose such motion by affidavits supplemental and additional to those used in obtaining the order. But such affidavits cannot be introduced to supply defects in the original affidavits ; ' nor can they set forth a ground for retaining the order, not set forth as the original ground of the order ; ^^ except that evidence of other similar and concurrent frauds, com- mitted by the defendant, is admissible, as proof "of the in- tent in committing the particular fraud charged." The plaintiff 's affidavits should be drawn for the express pur- 1 Litheau v. Turner, 1 Code B. (N. » Hart v. Kennedy, 15 Abb., 290. S.), 210. 24 How., 425. " Webber V. Moritz, 11 Abb., 113. » Martin v. Vanderlip, 3 How., 'Arthurton t. Dalley, 20 How., 265. 311. "iCadjT.Edmonds, 12How., 197. *Ferris v. Seeley, 23 How., 422. " Ballard v. Fuller, 82 Barb., 684 ; 6 Goupil V, Simonson, 3 Abb., 474. Scoitt v. Williams, 14 Abb., 70 ; 23 6 Hernandes v. Carnobeli, 4 Duer, How., 393 ; see also Hall v. Naylor, 642; 10 How., 433. 8 N. Y. R., 588; Hatborne v. ' Sohadle V. Chase, 16 How., 413. Hodges, 28 N. Y. K., 486.- 130 PROVISIONAL REMEDIES. [Ch. I. pose of meeting and repelling the case made in the defendant's affidavits.^ Where the original affidavits are defective in form, leave will sometimes be given to amend them.^ A sworn complaint may be used as an affidavit ; and if the complaiiit and affidavits are together sufficient to warrant the order, it will be sustained.^ 21. "When the cause of arrest is not identical with the cause of action, and the affidavits are conjlicting, the judge or court may order a reference to take testimony, and ad- journ the proceedings on the motion till the coming in of the referee's report.* The reference will be to take the evidence ; and it will be the duty of the referee to take all that is offered, and leave it to the' court on hearing of the motion to determine what is, and what is not, competent." He should, however, reject statements made on informa- tion and belief, unless it be shown j^hether the in- formation was in writing or not, and, if in writing, unless the writing be produced, and if not in writing, then, unless the source of the information be particularly set forth.* A reference should only be ordered in those cases where the affidavits and other proofs are conflicting, and the judge unable to come to a definite conclusion on the facts before him.'' 22. The court will, in some cases, especially where it appears that the arrest was without malice and for pro- bable cause, require, as a condition of vacating an order of arrest, that the defendant stipulate not to bring any action ■ for false imprisonment, or for damages by reason of the arrest ; * but it seems that this condition can only be re- 1 Cases cited above. 6 Sturm t. Van Camp, cited in 2 Bell V. Mali, 4 How., 254 ; Web- Hoff. Pro. Kem., IQO. ber v. Moritz, 11 Abb., 113. ' Stelle v. Palmer, 7 Abb., 181. 'Brady v. Bissell, 1 Abb., 76; ^ Northern R.R. Co. v. Carpentier, Turner V. Thompson, 2 Abb., 444. 4 Abb., 47;' Alden v. Sarcon, 4 * Barren v. Sandford, 14 How., Abb., 102; Merchants' Bank v. 448; 6 Abb.,' 320, note. Dwight, 13 How., 871; Eigney v. eScottv. Williams, 23 How., 893. Xallmadge, 17 How., 558; MoGo- vern v. Payne, 32 Barb., 83. § XVn.] AEREST AOT5 BAIL. • 131 quired where the court has a discretion in granting the order of vacation.!' Where on an appeal from an order denying defendant's motion to vacate an order of arrest, the order was to be reversed on defendant's stipulating not to sue for the arrest, or in default of such stipulation the order was to be aflEirmed ; the defendant declined so to stipulate ; the court held that the order was conclusive on the defendant, on his motion to set aside an execution against his person, and that they would not review the order on the ground that the condition was oppressive.^ (See forms No. 30). 23. Where the order of arrest has been vacated and the defendant discharged from arrest, the matter is res judicata, and he cannot be rearrested, even though adjudged guilty of fraud at a trial had upon his default to appear upon the call of the cause.^ It is probable that this rule applies only to those cases where the grounds of arrest are ex- trinsic to, and independent of, the cause of action. If the defendant be released from arrest by consent of the • plaintiff or his attorney, he may nevertheless be arf ested on execution.* 24. The motion to reduce the bail is addressed to the discretion of the court, and it may be made on the plaint- iff's own showing, where the amount required is clearly excessive.* But, ordinarily, the amount of bail fixed by one judge should not be reduced by another, unless new facts are presented bearing upon the question, and justi- fying an interference.* A motion to vacate an order of arrest does not embrace a motion to reduce the bail, although it includes an application for further or other 1 Decker T. Judson, 16 N. Y. R., *Meeoli v. Loomis, 28 How., 209. 446. 6 Bakery. Swackhamer, 5 How., 2 Edgerton T. Ford, 11 Abb., 415. 251. 3 Steele 7. Palmer, 11 Abb., 62; e Union Bank v. Mott, 6 Abb., 315. Enoch V. Ernst, 21 How., 96. 132 • PEOVISIONAJL REMEDIES. [Ch. I. relief. The questions involved in the two motions are entirely distinct, and depend on different facts.^ 25. Where a motion to vacate the order of arrest to reduce the bail, has been made and denied, it cannot be renewed on any state of facts without leave of the court.^ And after the defendant has moved on the i plaintiff's affidavits, he should not have leave to renew it on affir davitg contradicting those of the plaintiff; for by moving on the. plaintiff's affidavits, he admits those affidavits to be true.* , , . 26. An appeal from a decision upon a motion to vacate the order, or to reduce the bail, will lie to the general term, but not to the court of appeals;* and such appeal will not be prejudiced by the entry of judgment against the defendant pending the appeal.* Such appeal, lies frqm an ex 'parte order of a county judge vacating ah order of arrest granted by him.^ But after defendant has given bail and is at large, an appeal from an order denying a jnotion to vacate the order of arrest will not be encou- raged.^_ So, an order reducing the amount of bail will not, under ordinary circumstances, be reviewed on appeal,* The court at general term cannot, on appeal from a judg- ment, consider whether an order of arrest in the action, was properly granted.'i Where a motion to vacate the order of arrest, has been denied, with leave to renew the motion on additional affidavits, if the defendant avails himself of that leave, he will be precludeid from appealing from, the order denying his, first motion.^" 1 Smith V. Spaulding, 30 How., ^pacificMut'lIns. Co. v. Maohado, 339. 16 Abb., 451. ^liovell V. Martin, 21 How., 238; •Lanoastsr v. Eoorman, 20 How., 12 Abb., 178 ; Union Bank v. Mott, 420. 6 Abb., 815. ' Moers T. MoMo, 17 How., 280 ; 3 Lovell T. Martin, supra j Hathorn 29 Barb., 361 ; 8 Abb., 257. V. Hall, 4 Abb., 227. 8 Hart v. Kennedy, 15 Abb., 290. *Code, ? 349; Col. Ins. Co. t. « Ross v. West.-S Bosw., 360. Force, 8 How., 353 ; Genin t. Tomp- " Noble v. Preaoott, 4 E. D. Smith, kins, 1 Code R, (N. S.), 415. 139. § XVII.] ARREST AND BAIL. 133 27. It is the duty of the judge to render and make known his decision upon a motion to vacate, . modify or set aside an order of arrest, within twenty days after the motion is submitted to him for his decision.' (For forms herein, see appendix Nos. 28, 29, 30). 1 Code, 2 401, sub 8. 134 PROVISIONAL REMEDIES. [Oh. I. SECTION xvm. AEKEST ON EXECUTION. 1. § 288. Execution against tlie person. 2. Wiere tlie complaint unnecessarily con- tains allegations of fraud. 3. Wlien the afreet in execution depends on a prior order of arrest. 4. Arrest on execution after a discharge from an order of arrest. 5. In actions to recover property, real or personal, 6. Wlien execution against body may issue. 7. When without order of the court. 8. When defendant may mpve to set aside execution. 9. Arrest of plaintiff for costs. 10. The effect of taking the hojy in execu- tion. 11. Defendant entitled to jail liberties. ia-13. Supersedeas. 14. Bail must be exonerated before motion for. 15. Computing time for charging in execu- tion. 16. When creditor may notify sheriff to dis- charge defendant. 1. " If the action be one in which the defendant might have been arrested, as provided in section 179 and section 181, an execution against the person of the judgment debtor may be issued to any county within the jurisdic- tion of the court after the return of an execution against his property unsatisfied in whole or in part. But no exe- cution shall issue against the person of a judgment debtor unless an order of arrest has been served, as in this act provided, or unless the complaint contains a statement of facts showing one or more of the causes of arrest required by section 179. " ^ The last sentence of this section was added in 1862. 2. The amendment of 1862 was but confirmatory of a long line of decisions made prior thereto. But there is one case which may not be covered by the amendment ; that is, where the complaint unnecessarily contains allegations vrhich would justify an order of arrest, but which have no 'Code, §288. § XVIIL] ARREST AND BAIL. 135 real connection with the cause of action, and the defend- ant allows judgment to be taken by default, is there such an admission of the fraud as would justify an execution against the body, there having been no order of arrest. It was thought prior to the amendment of the above sec- tion, that there was not.* 3. When the action is for either of the causes of action enumerated in the first two subdivisions of section 179, the facts authorizing the arrest will generally be stated in the complaint, and when a judgment is rendered in favor of the plaintiff, the right to imprison the defendant on an execution is conclusively established. But when the ac- tion is for any other cause of action, except that men- tioned in the last clause of subdivision four, section 179, • the facts cannot properly be stated in the complaint, and reference must be had to the affidavits, made to procure the order of arrest, in order to ascertain whether the case is one in wMch the defendant may be arrested on a ca. sa? 4. After a defendant has been arrested on an order of arrest which is afterwards vacated, he is not liable to ar- rest on execution because the jury have found him guilty of fraud in contracting the debt. The question of fraud in contracting a debt or incurring an obligation for which the action is brought, is not a part of the resgesta, and the decision vacating the order of arrest is conclusive.' But after a defendant has been arrested, pending the suit, a mere release from imprisonment by the consent of the plaintiff, on giving security, will not exempt him froni an execution 'against his person. K the order of arrest has been vacated, it seems the defendant cannot again be ar- rested on final process.* 5. An execution against the person cannot issue on a 1 Humphrey v. Brown, 17 How., sstellev. Palmer, 11 Abb., 62. 481. «MeeohT. Loomis, 23 How, 484; 2 Smith T. Knapp, 30 N. Y. K., 581, 14 Abb., 428. per Mullin, J. J36 PROVISIONAL EEMEDIES. [Ch. I. judgment in an action to recover possession of specific personal property, unless an order of arrest has been is- sued and served' before judgment.^. In an action to recover tbe possession of real property and damages for the detentioii, an execution against the person' can issue on the judgment;" but not if the action was to recover possession of lands simply, without damages for deten- tioh.3 ;kI 6. The execution against the person may be issued at any time after the actual return of that against the pro- perty. It is not necessary that sixty days should inter- vene between the issuing of the two executions.* N'or is it necessary that the iexecution against the property should be issued to the sheriff of the county where the plaintiff resides.^ If the execution against the body be issued be- fore the return of that against the property, it will be an irregularity only, and will not invalidate the execution against the person.® So if the sheriff neglect to indorse his return on the execution against the property,, before filing it, and an execution against the body be issued, the latter will be upheld by indorsing the return upon the former nunc pro iuncJ 7. "When the defendant has been arrested on a provi- sional remedy, an execution against his person niay be issued by the plaintiff after judgment without an order of the court.' But if the execution against the person is not authorized, it will be void, and the parties issuing it will be liable for false imprisonment.^ " 1 Purchase v. Bellows, 14 Abb., *Fake v. Edgerton, 3 Abb., 229; 357; 23 How., 421;Aff'd, seel6 Abb., 5 Duer, 681. j 105. 6 Id. ^Merritt v. Carpenter, 30 Barb., ^Reniokv. Orser, 4 Bosw., 384. 61. 'Hall T. Ayer, 9 Abb., 220; 19 'See FuUertou v. Fitzgerald, 18 How., 91. Barb., 441 ; 10 How., 37; Brush v. s-Bull v. Mallss, 13 Abb., 241.» Mullen, 12 Abb., 242. » Sleight v. LeaTenwotth', 5 Duer. 122. § XVra.] ARREST AND BAIL. 137 8. Where tlie party was not liable to arrest on an order of arrest, or where a case was not made which justified the issuing of that process, or the proceedings to obtain the order were irregular, or where judgment is recovered for a cause of action for whiph the defendant is not liable to arrest, he may move to set aside the execution against the person.* So, it has been held that a defendant might move after judgment to be discharged from arrest on such execution, on the ground that the affidavit on which the order of arrest was granted was. fatally defective.* « And such motion may be made although the defendant has, before th^ judgment, moved to vacate the order of arrest and his motion has been denied.' 9. The plaintiff who fails in an action of tort, in which the defendant was liable to arrest, may be arrested by an execution against his person, for the costs of such action, although the defendant was not in fact arrested, and no order had been made for his arrest* But as a female can- not be arrested before judgment in any action, except for a willful injury to person, character or property, so she cannot be taken in execution, except in the like cases ; and as a married woman is not liable to arrest in any civil action, she cannot be taken for costs where she fails in an action for the conversion of property.* I 10. The effect of taking the body of a party in execu- tion is, as a general rule, a satisfaction of the judgment for the time being ; * but if the party die in execution, or is rescued or improperly discharged, a new execution may 1 Smith V. Knapp, 30 N. T. K., 581 ; see Keoppenburg v. Neefus, 4 Sandf., People v.Wmett, 26 Barb., 78; 10 655. Eo^if., 210; SHoTey v. Starr, 42 Barb., 435. ^Popev. Newcomb, cited in Smith SFassell v. Tallmadge, 15 Abb., v. Knapp, 80 N. Y. B,., 581. 205; BaukofBeloity. Beale, 7Bosw., 8 Id., Smith V. Knapp, 30 N. T. E., 611. 581. _ 'Weseen v. Chamberlain, 3 Corns., * Corwin v. Freeland, 6 How., 245 ; 331. Merritt v. Carpenter, 30 Barb., 61 ; 10 138 PROVISIONAL REMEDIES. [Ch. I. 11. A defendant seized on execution against the body is entitled, on executing the required bond, to be admitted to the liberties of the jail.* (See forms Ifos. 37, 38, 39). 12. The provisions of the revised statutes in relation to a supersedeas are as follows : " "When any defendant, at the time judgment shall be rendered against him in any court of record, shall be in the custody of the sheriff or other officer, either upon process in the suit in which such judgment shall have been rendered, or upon being sur- rendered in discharge of his bail in such suit, the plaintiff in such judgment shall charge such defendant in execution thereon, within three months after the last day of the term next following that at which such judgment shall have been obtained. And where any defendant shall be in custody upon a surrender in discharge of his bail, made after a judgment obtained against him and such bail shall be thereupon exonerated, the plaintiff in such judgment shall charge such defendant in execution thereon, within three months after such surrender, or if an execution against the property of such defendant shall have been issued, within three months after the return day of such ex- ecution." ^ " Tf any plaintiff shall neglect so to charge any defendant in execution as required in the last section, such defendant may be discharged from custody by a supersedeas to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the 'contrary be shown p and after being so discharged, such defendant shall not be liable to be arrested upon any exe- cution whicli shall be issued upon such judgment." ' 13. It was remarked by Justice Mullin, in Smith v. Knapp that there may be some doubt as to whether these provisions are now in force, in view of section 283 of the Code, which gives to the party in whose favor judgment ' See further on this subject, ante; « 3 K. S. (5th ed.), 870, § 38. sec. X, pi. 43, et seq. ^3 R. S. (5th ed.), 871, \ 89. § XVIII.] ARKBST AND BAIL. 139 is entered, four years from the entry of sucli judgment within which to issue executions, as provided in the 9th title, of which said section 283 is a part.^ 14. A motion for a supersedeas cannot be granted on the ground that plaintiff has neglected, for three months, to charge the defendant in execution, unless the bail have been exonerated, and the moving papers should show that fact.2 15. The time for charging in execution is to be com- puted from the date of the actual entry of judgment, and not from the date when the plaintiff might have entered it. The mere acceptance of an offer to allow judgment, is not obtaining judgment within the meaning of the statute.' So where the defendant has been surrendered by his bail, the time within which the plaintiff must charge him in execution, will run, not from the actual surrender, but from the exoneration of the bail.* 16. "When any person shall have remained charged in execution for the space of thirty days from the date of his imprisonment, any creditor at whose suit he shall have remained charged, may, by a written notice, require the sheriff of the county in which such person shall be impri- soned to discharge him from imprisonment, and, therefore, such prisoner shall be discharged from imprisonment so far as he is held under such execution, and thereafter such creditor may have- the same civil remedies to enforce pay- ment of the judgment upon which such execution was issued as if such execution had not been issued, and such /person so discharged had not been charged in execution at the suit of such creditor. But no further execution against the body of such person shall be issued on such judgment.' iSee 30 N. Y. E., at page 590. < Hills v. Lewis, 13 Abb., 101, note. ^Hillsv.Lewis, 13Abb.,101,note. ^S R. S. (5th ed.), 108, last part 'Lippmany. Petersberger, 18How., of i 17. 270; 9 Abb., 209. CHAPTER II. CLAIM AND DELIVERY. Sbction I. Nature of the remedy, and when allowed, n. The affidavit. III. Security by plaintiff — Bequisition, and how executed. rV. Exception to, and justiflcation of, plaintiff's sureties. V. Eedehvery to defendant. VI. Claim by third person ; filing papers ; setting aside proceed- ings ; arrest of defendant, etc. SECTION" I. NATURE OF THE REMEDY, AND WHEN ALLOWED. § 206 of the Code. Delivery of personal property. Xatnre of the action. Object of the action. Time for obtaining the remedy. Title of plaintiff. Flea of property in a stranger. Who may have — executors, etc. When the action lies. For a wrongfkil taking. Against an ofScer. Against a fraudulent purchaser. By a mortgagee. By one having a lien. For goods sold conditionally. For a wrongful detention. When the action does not lie. 17. For property taken for tax, fine, etc. 18f. Property taken on execution. 19. Property taken by replevin. 30. Does not lie between partners, etc. 21. Where title is in third person. 22. For what property. 23-31. What articles are personal property. 32. Where property is confused. 33. Voluntary confusion. 34. What damages may be recovered. 35. Form of verdict. 86. Form of judgment. 87. Costs in the action. 88. Form of execution. 39. Abatement of the action. 40, Discontinuance^ 1. "The plaintiff, in an action to recover the possession of personal property, may, at the time of issuing the summons, or at any time before answer, claim the imme- 242 PROVISIONAL REMEDIES. [Ch. U. diate delivery of such property, as provided in this chap- ter."^ This section remains unchanged since 1849. 2. The provisions of this chapter are a substitute for the action of replevin, as given by the revised statutes ; and such an action may now be brought in all cases .where replevin would formerly lie, and is as full, general and complete as that action was under the revised statutes." The old action of detinue was abolished in this state by the revised statutes, and that of replevin extended, so as to serve all the purposes of both actions. The actions of replevin were of two kinds, one in the cepU and the other in the detinet. The wrong upon which reple- vin in the cepii was founded, was the wrongful taking from the owner the possession of his property. While replevin in the detinet was founded upon a wrongful deten- tion of property, arid was a substitute for the old action of detinue, and a remedy concurrent with trover.^ Under, the revised statutes, the action of replevin would lie when- ever any goods or chattels had been wrongfully distrained, or otherwise wrongfully taken, or detained, for the recovery thereof, and for the recovery of damages sus- tained by reason of such unjust caption or detention; with the exception that no such action should be for any property taken by virtue of any warrant for the collection of any tax, assessment or fine, in pursuance of any statute of this state; nor for goods or chattels seized by virtue of any execution or attachment, unless such goods and chattels are exempt by law from such execution or attach- ment.^ The provisions of this chapter being a substitute for replevin, the old practice is to be resorted to, in con- tingencies not provided for by the Code.' iCode, § 206. 4 3 R. S. (5th ed.), 845. 2 Boss V. Cassidy, 27 How., 416; 6Brook,way t. Burnap, 16 Barb., Brockway V. Burnap, 16Barb., 309; 309; Roberts v. Randall, 5 How., Nichols V. Michael, 23 N. Y. R., 264. 327. ' Barrett v. Warren, 3 Hill, 348 ; , Ross V. Cassidy, 27 How., 416, § I.] CLAIM AND DELIVERY. 143 3. The object of this action is the recovery of specific personal property ; with such damages as have been sus- tained, by reason of the wrongful taking or detention ; but such damages are merely incidental to the action. If, before action brought, the defendant offers uncondi- tionally to restore the property, the object, is already attained and the proceeding under this chapter is unneces- sary. Such an offer is equivalent to a tender before suit brought.^ But after the action has been commenced, a voluntary taking of the property, not from the defendant himself, but by the plaintiff's picking it up where he chanced to find it, does not extinguish his right of action.^ The judgment prayed for in the complaint determines principally the character of the action ; and, therefore, if the judgment sought is damages for the taking, detention, or conversion, and not for the specific property, this remedy is wholly unwarranted.' Nor can the plaintiff elect, as under the revised statutes, to take judgment for the value of the property, but he is entitled only to a judgment in the alternative, for the return of the [pro- perty, or for the value thereof, in case a delivery cannot be -had, together with damages for the detention thereof.* 4. The plaintiff may obtain this remedy at the time of issuing the summons, or at any time before answer ; or he may wait the final determination of the action and then ask for the return. K the plaintiff is willitig to give the security, he may have the return before answer, but if he be either not willing, or not able to do so, it deprives him of no benefit, and gives the other party no special advantage ; he may still, in the ultimate judgment, ask for a return. These provisions were intended to give a 1 Savage v. Perkins, 11 How., 17. * Code, ? 277, Dwight v. Enoa, 5 2 Tracy v. N. Y. & Har. R. E. Co., 9 Seld., 470 : Fitzhugh v. Wiman, id., Bosw., 396. 559. 'Savage v. Perkins, llsHow., 17: Seymour v. Van Bureu, 18 How., 94. 144 ' PKOVISIONAL REMEDIES. [Ch. II. privilege or election to the plaintiff; since there doubt- less would arise cases where the property was of such a peculiar character, that neither its value, nor anyda-- mages that might be awarded for its detention would afford the true owner any adequate compensation for its loss or permanent deprivation ; while in others such an amount would afford a full indemnity ; or he might be willing to wait, and run his chance of restitution upon the fing,! judgment.^ The usual pratice, however, is to deliver the summons and the requisition to the sheriff at the same time ; as the remedy may be defeated, by delaying until after- the complaint is served, for the defendant may answer at once. 5. In order to obtain this renaedy the plaintiff must show an absolute title to the goods, of which he seeks to obtain possession, with a right of immediate possession; or such a special property therein as to entitle him to an ' immediate and lawful possession of them.^ Eight to the possession and dominion of the goods and chattels for the time is essential.^ If the action is brought for an unlaw- ful taking, the plaintiff must establish, either that he was in actual possession, or that he was entitled to the immediate possession of the property at the time it was taken.^ But where there is an actual possession of the property by the plaintiff, coupled with an equitable interest therein at the time of the seizure by the sheriff, ■ and such seizure is made upon an execution against the former owner, the plaint- iff may niaintain the action, although the general property and the right of immediate possession are at the same time in a stranger, provided the defendant does not show any privity between himself and such stranger. A purchaser of property, to whom the title is actually transferred may "Corbin v. Milton, 27 How., 76, 105; Dodworth v. Jones, 4 Duer, per Bacon, J. ; Togel v. Baboock, 201. 1 Abb., 176. 'Rogers v. Arnold, 12 Wend., 30. ^McCardy v. Brown, 1 Duer, 101, *Eedmanv.Hendriok, lSandf.,32. §1.] CLAIM AND DELIVEEY.- 145 maintain this action, although he has not paid for the goods.^ 6. The plaintiff must be. entitled to the immediate pos- session of the property, so that where an agent or factor has a right of possession, having a lien, the action cannot be maintained by the owner.^ But the lien, to be- a defense to an action of replevin must be a legal and suf- ficient lien, for otherwise the defense will be unavailing.* It is well settled, as a general rule, th^t, in an action to recover the possession of personal property, the plea of pro- perty in a third person is good, and entitles the defendant to . .have a return thereof without connecting himself with the right of such person, or in any manner connecting himself with such title.* But where the plaintiff has an interest in the property which would have sustained trespass or replevin it will constitute a good reply to the plea of property in a stranget. The property, then, whether in the defendant or in a stranger, sufficient to sustain a defense, must be such as goesto destroy the interest of the plaintiff, which, if existing, would sustain the action ; or in other words, such as would defeat an action of trespass if brought in place of this, in case of wrongful taking, or Grower if brought for awrongfal, detention. All that can be material for the plaintiff to maintain against a plea in bar is an interest in or eonneciian _ with the property, which would give to him the action of replevin as an appropriate remedy for a wrongful taking or detention." 7. Whenever, by any statute, executors or other per- sons, suing in the right of another, are authorized to 1 Johnson t, Carnley, 10 T^. Y. E. * Ingraham v. Hammond, 1 Hill, 570 ; see Frost t. Mott, 34 N. T. R. "853 ; Proser v. Woodward, 21 Wend., 253, at p. 257. 205 ; Rockwell v. Saunders, 19 a Wood T. Orser, 25 N. T. R., 348 ; Barb., 473. see otherwise NeflF V. Thomjpson, 8 ^ Rogers 7. Arnold, 12 Wend., 30, Barb., 213. per Nelson cited Johnson v. Carn- ' Moffat V. Van Buren, 4 Bosw., ley, lO N. Y, R'., 570. 609. ]^46 PROVISIONAL REMEDIES. [Ch. II. maintain actions of trespass for any personal property wrongfully taken, such persons may maintain actions of replevin for such property.^ But one partner cannot maintain the action against his copartner for partnership property ; ^ nor can one tenant in common against his co- tenant.^ 8. Some conflict has existed in the courts, as to whether an action, under the Code, could be maintained, to reco- ver the possession of personal property, when the defend- ant had not the possession, either in fact or in law, at its commencement.* But it is now well settled that it can be; that notwithstanding the defendant has wrongfully parted with the possession, before suit brought, the action will lie.* If thte defendant has once been in possession, • and has parted with that possession wrongfully, that is, with- out being authorized by law, he is liable in an action to recover possession.* Thus the true owner may maintain an action to recover the possession of his property, or its value, against a person who has purchased it in good faith from the wrong doer, and has sold it in good faith, and without notice of the owner's rights, before the commence- ment of the action. And the purchaser of goods, from a person having no title nor right to sell, acts wrong- fully in selling the same, though he make the sale in good faith, and in ignorance of the owner's rights.' So, where the defendant, a jeweler, received from A a set of diamonds, supposing that A was the owner, and as his agent and for his accommodation negotiated the sale thereof to B and received • and paid over to A the pro- 1 3 K. S. (5th ed.) 845, ? 2. SBrockway v. Burnap, 16 Barb., 2 Azel T. Betz, 2 E. D. Smith, 188, 309, reversing 12 Barb., 357; Ni- 8 Bussell V. Allen, 3 Kern., 173. chola v. Michael, 23 N. Y. R. 26 4 *The following cases hold that it Ross v. Cassidy, 27 How., 416. cannot'; Roberts v. Randall, 3 Sandf., ^ Id. 707; Brockway V. Burnap, 8 How., 'Ross v. Cassidy, 27 How., 416; 188 ; 12 Barb., 357 ; Elwood v. Smith, see also Linnen v. CrUger, 40 Barb., 9 How., 528. 638. § I.] CLAIM AND DELIVERY. 147 ceeds, in ignorance of the plaintiff's title, and without any charge for his services, it was held, that he was liable in an action of trover, to the true owner for the value of the property ; ^ and since replevin in the deiinet is a remedy concurrent with trover, the same state of facts would have sustained an action under this chapter.'' 9. The action lies for a wrongful taking of goods, or in the cepit, whenever an action of trespass can be maintained for such wrongful taking ; ' but the plaintiff must show that he was either in actual possession, or entitled to the immediate possession at the time of such taking.* The action does not lie for a wrongful taking, against one, who innocently, and without fraud, obtains the goods from a wrongful taker ; but he must show affirmatively that he came into possession of such goods, in good faith, and for a lawful purpose, or he will be considered as much a wrong doer as the taker, and will not be entitled to a demand before suit ; but if 'it appears affirmatively that he came into possession in good faith and with the belief that he would acquire a good title, he will not be liable to an action of replevin at the suit of the owner, until a de- mand has been made, and an opportunity thus afforded him to restore the property.' 10. A mere levy upon personal property, by an officer, when it is not authorized by law, without either a sale or removal, is a trespass, and replevin lies against the officer who made the levy, and against the plaintiff who directed ■ it.' So of a levy under an execution, made after the re- turn day.^ So, an actual levy, and sale of personal pro- 1 Dudley T. Hawley, 40 Barb., 397. 'Bedinan v. Hendrick, 1 Sandf., 2 See -Barrett v. Warren, 3 Hill, 32 ; Stockwell v. Phelps, 34 N. Y. R. 348; Eosa y. Cassidy, 27 How., 363. 416. 5Tallman v. Turck, 26 Barb., 167; SAUen v. Crary, 10 Wend., 349; Barrett v. Warren, 3 Hill, 348; Nash Rogers v. Arnold, 12 Wend., 30 ; v. Mosher, 19 Wend., 431. Stewartv. Wells, 6 Barb., 79; Brook- 'Stewart v. Wells, 6 Barb., 79; way T. Burnap, 16 Barb., 309 ; and Marsh v. Backus, 16 Barb., 483. cases. 'Vaily. Lewis, 4 John., 460. 148 PROVISIONAL REMEDIES. [Ch. H. perty, which belongs to a person who is not defendant in the execution, is a trespass, even though there is no actual interference with the property, and replevin will lie against both the officer and the purchaser, especially when the plaintiff in the execution is the purchaser ; and the fact, that the officer professed to sell merely the right of the defendant in the execution, will not change the rule, for if the defendant in such execution have no right in the property, the act of selling will be a trespass.^ So, an action lies, at the suit of A to recover possession of his property, taken by virtue of an execution, warrant or attachment against B,^ even though the property when taken, was in the actual possession of B, provided the general property in the goods and the constructiye pos- session be in A.^ So, where goods of the owner are taken by the sheriff" from the owner's servant while employed in the owner's business, on an execution against such servant, the action lies at the' suit of the owner.* So, replevin lies against a plaintiff by whose direction an exe- cution is levied upon the* property belonging to another than the defendant in the execution.' In such a case, the property taken is not in the custody of the law as regards the real owner ; but only as between the plaintiff and the defendant in the execution.' But where property of a firm was attached in an action, not against the members of the firm liieraUj/, but against some of them, it was held that claim and delivery could not be maintained.^ 11. Whenever property is obtained from another fraudu- lently, the vendor, on discovering the fraud, may avoid the contract, and bring an action to recover possession of such property, unless it has passed into the possession of iNeff V. Thompson, 8 Barb., 213. » Allen t. Crary, 10 Wend., 349; 2 Judd V. Fox, 9 Cow., 269. Knapp t. Smith, 27 N. Y.E., 277. s Dunham v. Wyokoff, 8 Wend., « Clark v. Skinner, 20 John., 467. 280. , 'Smithy. Orser, 43 Barb., 187. 4 Clark V. Skinner, 20 John., 465 ; Hull V. Tuttle, 2 Wend., 475. § I.] CLAIM AND DELIVERY. 149 a hona fide holder for value.* But it is tlie general rule that the party that would rescind or disaffirm the contract must, return or offer to return, whatever he has received thereon, but such return may be made after suit brought and at the trial.^ Where one fraudulently obtains pro- perty and afterwards makes a general assignment for the benefit of creditors, and such property goes into the pos- session of the assignee, a joint action lies against both assignor and assignee to recover possession of such property; but a demand should first be made of the assignee.^ So, an action to recover possession of property fraudulently purchased lies against a third party after demand, who takes such property from the vendee as security for an antecedent- debt.* It lies also where the creditor obtains his title by a levy and sale on an execu- tion against the property of the Vendee, for an antecedent debt.' So, if the vendee, has mortgaged the property, the claim of the vendor will be preferred.® 12. The mortgagee of a chattel mortgage, whose title to the property has, by a default in payment, become absolute may maintain the action .against one who wrong- fully takes such property from the mortgagor.' When there is a provision in the mortgage that the mortgagee may take possession at any time he deems himself inse- cure, he may maintain an action against a wrongful taker, although the money secured by the mortgage is not due.^ But, if by the terms of the mortgage, the mortgagor is to retain possession until default made, the mortgagee can- not maintain this action against a defendant who took 1 Nichols V. Michael, 23 N. T. K., 'Woodburn v. Chamberlain, 17 364; Hunter v. Hud. E. Ins. & M. Barb., 446. ■Co., 20 Barb., 494, 'Fuller v. Acker, 1 Hill, 473; 2 White V. Dodds, 28 How., 197. Bank of KocheBterT. Jones, 4 Corns., s Nichols T. Michael, 23 N. Y. E., 497. 364; White V. Dodds, 28 How., 197. schaiwick v. Lamb, 29 Barb., «Eoot V. French, 13 Wend., 570. 518 ; Shuart v. Taylor, 7 How., 251 ; 6 Mowrey v. Walsh, 8 Cow., 288. Stewart v. Slater, 6 Duer, 84. 150 PROVISIONAL REMEDIES. [Ch. II. the mortgaged property by virtue of an execution or other process, before any default made.^ So, where the mortgagor is to retain possession of the property, until default made in payment, unless the mortgagee shall sooner demand the. same, the mortgagor may maintain an action to recover possession of such mortgaged property against the mortgagee, who took it without the knowledge or consent of the mortgagor, and without any demand of possession.^ 13. A person, who has a valid lien on goods and chat- tels, may maintain this action, even against the owner who has fraudulently obtained possession thereof;' as a common carrier, where a consignee of chattels obtains possession by a false and fraudulent, promise to pay such common carrier the freight on delivery.* But a voluntary surrender without friaud waives the lien.^ So, a vendor of goods, to be paid for on delivery, has a lien for the price, if they are not paid for when the delivery is completed, and there is no waiver of the condition.* 14. An action also lies against a vendee of goods sold conditionally, to recover possession of such goods, where the condition is not performed ; as where goods are sold upon the condition that the title shall not pass until they are paid for ; ' or where goods are sold to be paid for on delivery, which is not done, and there as no waiver of the condition.* And such action lies against the creditor who receives such goods from the vendee to secure an antecedent debt ; or against an assignee for* the benefit of creditors ; or against a purchaser from such vendee, with notice ; ' or lEedman v. Hendriok, 1 Saudf., 'Fleming y. MoKean, 25 Barb., 32. 474 ; Leven v. Smith, 1 Denio, 571, ^Newsamv, Finch, 25 Barb., 175. and cases. 'Bakery. Hoag, 7 Barb., 113 ; 3 sjd; Keeler v. Field, 1 Paige,' Seld., 555. 812 ; Eussell v. Minor, 22 Wend., *BigeloWT Heaton, -6 Hill,-43. 659. 6 MoFarland V.Wheeler, 26 Wend., 'Id; Haggarty v. Palmer, 6 John. 467. Ch., 437. « Palmer v. Hand, 13 John., 434. §1.] CLAIM AND DBLIVEBY. 151 where goods are to be paid for on delivery, against one who buys them from the vendee before delivery is com- pleted.^ So,' upon a sale of merchandise for cash to be paid on delivery, the defendant offered the plaintiff's ser- vant, who made the delivery, a note of the plaintiff's which had become payable, for nearly the amount, and cash for the residue, which the plaintiff declined to re- ceive ; the defendant refused to give up the goods, or pay the money ; it was held, that no title passed, and that the plaintiff could maintain replevin for the property.^ The vendor and vendee of chattels sold on condition that no. title shall pass until payment, do not hold the relation of bailor and bailee simply ; and a judgment recovered by the vendee against a trespasser for damages for taking and converting the chattels, will not bar a second action by the vendor for their value, after his right of possession reverts by non-payment.^ 15. Where the taking was not wrongful and the action is based upon a wrongful detention of the property, or in the detinet, a demand must be made before suit is brought.* The fact that the defendant has not the possession -of the goods either in fact or in law at the time of the demand, will not defeat the action. If he has once been in posses- sion, and has parted with that possession without lawful authority, he will nevertheless be liable.® A purchaser of personal property, though in good faith and for a valu- able consideration, obtains no title from a person who wrongfully took the same from the owner, and he is bound to deliver it to the owner on demand. He cannot rightfully deliver it to any person other than the owner ; and having no title, acts wrongfully in selling the same, though he make the sale in good faith and in ignorance 1 Palmer v. Hand, 18 John., 434. * Fuller v. Lewis, 3 Abb., 383, 13 2 Leveu V. Smith, 1 Denio, 571. How., 219 ;• Howell t. Kroose, 2 a Hasbrouck v. Lounsburry, 26 N. Abb., 167, 4 E. D. Smith, 357. Y. ■&., 598. 6 Ross V. Cassidy, 27 How., 416. ]^52 PROVISIONAL REMEDIES. [Ch. n. of the owner's rights. The true owner may maintain an action to recover the possession of his property, or its value against a purchaser who had purchased it in good faith from a wrong doer, and had sold it in good faith and vrithout notice of the owner's rights, and beforfe the com- mencement of the action.^ Where the defendant, a jew- eler, received from A a set of dia,monds, supposing that A was the owner, and as his agent and for his accommo- dation negotiated the sale thereof to B and received and paid over to A the proceeds, in ignorance of the plaint- iff's title, and without any charge for his services, it was held that he was liable, in an action of trover, to the true owner for the value of the property ; ^ and since replevin in the detinet is a remedy concurrent with trover, the same facts would have sustained an action under this chapter.^ But it must be borne in mind that the inno- cent purchaser from a wrong doer, is not liable to an action to recover the possession of the goods until a demand has been made upon him and an opportunity thus afforded for him to return the goods.* If chattels wrongfully in the possession of a testator or intestate con- tinue still in specie, in the hands of his executor or admini- strator, replevin will lie against such executor or admini- strator to recover back the specific goods.° 16. The action of replevin does not lie for the recovery of any property taken by virtue of any warrant for the collection of any tax, assessment or fine in pursuance of any statute of this state ; nor at the suit of any defendant in any execution or attachment to recover goods or chat- tels seized by virtue thereof, unless such goods or chattels lid ; see also Linnenv. Cruger, 40 * Mellspaugh v. Mitchell, 8 Barb., Barb., 633. 333 ; Tallman v. Turok, 26 Barb., 2Dudleyv.Ha-vrley, 40Barb., 397. 167. s See Barrett v. Warren, 3 Hill, ^ Brown on Par., 285 ; Le Masin 848 ; Ross v. Cassidy, 27 Hflw. v. Dixon, Sir W. Jones, 173. 416. § I.] CLAIM AND DELIVERY. 153 are exempt by law from such, execution or attachment ; nor shall replevin lie for such goods or chattels at the suit of any other person, unless he shall at the time have a right to reduce into his possession the goods taken.^ 17. The case must clearly fall within the provision for- bidding replevin of goods taken for a tax, fine or assess- ment, or the action can be maintained. The property seized must be either the property of the person assessed, or the goods must be actually in his possession when seized. Where goods aer seized and taken from the pos- session of the owner's servant on a warrant for tax or fine against another person the owner may maintain replevin to recover such goods. So, where the levy was made upon goods which the taxpayer or defendant in the w;ar- rant held for sale in commission, and which he had deposited with a warehouseman for storage, where they were seized, it was held that the warrant and levy did not divest the owner and that he could replevy them.^ So, on a warrant for tax or fine against a member of a firm, possession by the firm is not possession by such member, within the meaning of the stiatute.^ But if the chattels are actually in the possession of the defendant in the war- rant, the officer may seize them, and no action of replevin can be sustained by the owner, but the officer will be liable to an action of trespass or trover.^ The non- liability to replevin is not limited to property taken for any tax, fine or assessment in pursuance of any statute of this state, but extends to property so taken in pursuance of any statute of the United States. Thus property levied upon to collect a tax against the owner under the inter- nal revenue act cannot be replevied.* 18. Where goods, belonging to a third person, are 13 E. S. (5th ed.), 845. ^People v. Albany Com. Pleas, 7 'Stookwell T. Veitch, 15 Abb., Wend., 485 ; see als6 Sheldon v. Van 412. Buskirk, 2 Comst., 473. ' Id. 6 O'Reilly v. Good, 18 Abb., 106. 11 154 PEO VISIONAL REMEDIES. [Ch. II. levied upon, by virtue of an execution or attachment against a defendant, in whose possession such goods happen to be, the owner may maintain an action to recover their possession, not only against the officer who levied, but also against the plaintiff who directed such levy.^ And this is true, even though there is no actual interference with the property. The fact that the officer professed to sell only the right of the defenxiant in the execution, will not change the rule ; for if the defendant in such execution have no right in the property, the act of selling will be a trespass.^ "Where goods of the owner were taken from the owner's servant, while employed in the owner's business, on an execution against such ser- vant, the action lies at the suit of the owner.^ But the plaintiff must show right of possession at the time the action is commenced, and, therefore, the action will not lie where the property was originally wrongfully taken by the sheriff, but before the replevin action was commenced, had been levied on by him, by virtue of a legal execution,^ If the action of replevin is brought for an unlawful taking, the plaintiff must establish either that he was in actual possession, or that he was entitled to the immediate possession of the property at the time it was taken." So that, where an agent or factor has a right of possession, having a lien, the action cannot be maintained by the owner.^ But the lien, to be a defense, must be a legal and sufficient lien, or otherwise it will be unavailing.'' It is the policy of the law that property in the custody of the law- should not be replevied ; but where the property iKnapp T. Smith, 27 N. T. B., 6 Redman t. Hendriok, 1 Sandf., 277; Marah v. Backus, 16 Barb., 32. 483; Steward v. Wells, 6 Barb., 79; eWood v. Orser, 25 N". Y. E., 348; NefpT. Thompson, 8 Barb., 2'13. see otherwise Neff v. Thompson, 8 2NefF T. Thompson, 8 Barb., 213. Barb., 213. ' Clark V. Skinner, 20 John., 465 ; ' Moffat v. Van Buren, 4 Bosw., Hull V. Tuttle, 2 Wend., 475. 609. ' Sharp V. Whittenhall, 3 Hill, 576. §1] CLAIM AND DBLIVEET. 155 of one is taken on an execution or attachment against another, the property taken is not deemed to be in the custody of the law, as regards the real owner ; but only as between the plaintiff and the defendant in iJie execu- tion.^ Where the property of a firm was attached in an action, not against .the members of the firm literally as such, but against some of them individually, it was held that claim and delivery could not be maintained.'' 19. So, the action will not lie at the suit of a third person, for goods belonging to him, but taken by the sheriff in a proceeding of claim and delivery, against one in whose possession they were. There is only one way in which a third party can assert his claim to chattels taken in pursuance of the provisions of this chapter, and that is by proceedings under section 216.^ But this section applies only where the property is taken by the sheriff in the. proper discharge of his duty ; as where the property of a stranger is taken from the possession of the defendant or his agent, and it is the property described in the affidavit and requisition.- But if the property be not that described in the affidavit, or if the sheriff has taken it from the pos- session of any person other than the defendant or his agent, the true owner may maintain an action of trespass or replevin against the sheriff fo^" a recovery of the pro- perty.*^ 20. One partner cannot maintain repleviu against his copartner for partnership property ; ° nor one tenant in common against his cotenant ; ° nor can several persons having separate and distinct interests in a chattel main- tain replevin therefor .'' N'either, by the common law, will the action lie against a corporation aggregate.* 1 Clark T. Skinner, 20 John., 467 ; * King v. Orser, 4 Duer, 431. 2 Smith V. Orser, 43 Barb., 187. 5 Azel v. Betz, 2 E. D. Smith, 188. 'Edgerton v. Boss, 6 Abb., 189 ; eRussell v. Allen, 3 Kern., 173. Stimpson v. Reynolds, 14 Barb., ' 3 Harrington, 339. 506. 8 Kyd on Corp., 205. 156 PBO VISIONAL REMEDIES. [Ch. II 21. EigTit to the possession and dominion, of the goods and chattels for the tinie, is essential to sustain an action of replevin ; and, therefore, if such right be not in the plaintiff, he cannot succeed. It has long been settled, that, in replevin, the plea of property in a third person is good, and entitles the defendant to have a return thereof, without connecting himself with the right of such person. But the property, whether in the ddfendant or a stranger, sufficient to sustain a defense, must be such as goes to destroy the interest of the plaintiff; or, in other words, such as would defeat an action of trespass, or trover, if brought in the stead of replevin.' Thus, where goods are leased for a term, the lessor cannot, before the expira^ tion of such term, maintain replevin for them against a third person ; for during the term the title, that is, the right of possession, is in the lessee.^ So, where the goods ai-e in the possession of an agent or factor, who has a lien thereon for advances, the owner has not the title.^ But a lien set up as a defense to an action of replevin must be a legal and sufficient lien, or the defense will be unavailing.* But where the plaintiff has actual possession of the pro- perty, coupled with an equitable interest therein, at the time of the seizure by the sheriff, and , such seizure is made upon an execution against the former owner, the plaintiff may maintain the action, although the general property and the right of immediate possession ire at the same time in a stranger, provided the defendant does not show any privity between himself "and such stranger.' Thus A. bought certain chattels of B, with the condition that the property should belong to B until paid for ; and lEogers v. Arnold, 12 Wend., 80 ; a -Wood v. Orser, 25 N. Y. K., 848 ; Johnson v. Carnley, 10 N. Y. R., see otherwise Neff v. Thompson, 8 570 ; Ingraham v. Hammond, 1 Hill, Barb., 213. 353 ; Prosser v. Woodward, 21 * Moffat v. Van Bnren, 4 Bosw., Wend., 205. 609. 2 Bruce v, Westeryelt, 2 E. D. ^ Johnson v. Carnley, 10 N. Y. K., Smith, 440. - 570. §1.] CLAIM AND DELIVERY. 157 • A sold tlie same to C before he had paid Bin fujl. After- wards, on an execution p-gainst A, the sheriff seized said property, which was at the time in possession of A, and C brought an action to recover possession thereof. The court held that, inasmuch as the defendant showed no privity between himself and B, that the action could be maintained.^ But, where an attachment upon which pro- perty was taken was not really against the plaintiffs, in the replevin suit, but only against some of them, it w^as held, that though the property of all the plaintiffs was taken, yet the action for a return was contrary to the spirit of section 207, subdivision 4, and coulcSnot be main- tained.^ 22. The Code expressly limits the remedy of claim and delivery to actions for the recovery of personal property, which term includes money, goods, chattels, things in action, and evidences of debt.^ It will often be difficult to determine whether an article is to be deemed personal, or real property. The line of demarkation between these two kinds of property is sometimes not easily drawn ; and an article will often be found to assume the charac- ter of the one or the other according to the circumstances in which it is placed. If, however, the defendant has severed any fixture from the plaintiff's free hold, such fixture, after severance, becomes personal property* It is unnecessary in a work of this kind, to enter into an ex- tended consideration of the subject of fixtures and there- fore but a few of the leading cases will be noticed. 23.' The questions as to what are personalty and what realty, arise chiefly between executors and administrators and heirs, landlord and tenant, vendor and vendee, and mortgagor and mortgagee ; and it will be observed, that ' Johnson t. Carnley, 10 N. T. R., scode, g 463. 570. iCressen v. Stout, 17 John,, 116 ; " Smith T. Orser, 43 Barb., 187. Oarduer v. Finley, 19 Barb., 317. •]^58 PROVISIONAL EEMEDIES. [Oh, H. articles that are treated as of one kind as between one class, are sometimes treated as of another kind, as between another class. But, ordinarily, the same general princi- ple exists in all cases. The statute regulating the question as between execu- tors, administrators and teirs-at-law, provides that the foUo'^ing among other property, shall be deemed personal, and go to the executors and administrators : Things annexed to the freehold, or to any building for the pur- poses of trade and manufacture, and not fixed into the walls of a house, so as to be essential to its support: the crops growing on the land of the deceased at the time of his death ; and every kind of produce raised annually by labor and cultivation, except grass growing and fruit not gathered.^ The policy which has created exceptions to the general rule, that whatever is affixed to the freehold cannot be riemoved without the consent of the owner of the inheritance, applies as well to erections for agricultural a,nd other purposes, as to erections for the purposes of trade.- 24. Growing crops, as wheat and corn and vegetables, which are the annual produce of labor and cultivation, are personal property ; but, growing trees, fruit or grass, the natural produce of the earth, are parcel of the land itself and not chattels.^ ' However, trees planted by a te- nant, who has no freehold estate in the premises, for the purpose of transplanting and sale, as in the case of a nur- seryman, may be regarded as personalty.' So, hops, growing and maturing on the vines, which are produced by the annual cultivation of the owner, are personal property within the meaning of the statute of frauds,* 1 3 R. S. (5th ed.), 187, sub 4-5-6. s Miller v. Baker, 1 Metoalf, 27; 2 Green v. ArmstroM, 1 Denio, Whitemarsh v. Walker, 1 Metoalf, 550, and cases cited ; ^t see Lane 313. V.King, 8 Wend., 584; Shepheard * Frank v. Harrington, 36 Barb., V. Philbriok, 2 Denio, 174. 415. §1.] CLAIM AND DELIVEBT. IQg Thougli grass-growing, is in general, parcel of the realty, yet when it is owned by one who does not also own the. land, it is personal property.^ 25. So, stills, kettles and tubs erefcted by a tenant of a distillery, though affixed to the building ; ^ and engines and machinery in a mill, though firmly fixed to the build- ing, put in by a tenant for the purpose of manufacturing ; * and looms in a factory, connected to the motive, power by leather belts, andfastened to the fioor by screws;* also machinery for spinning flax or tow, and carding machines, used in manufacturing and attached slightly by cleats, ° are personal property and not part of the realty, where they can be removed without permanent injury to the freehold. So, gas fixtures owned by .a tenant, though affixed to the building,* and stoves temporarily attached, may be removed.' 26. But the keys of locks upon doors, fire-frames, doors, windows, blinds, mill-stones, and irons taken out of a mill for repairs ; hop poles, though taken down for the purpose of gathering the hpps ; and rails' of a fence, aje part of the freehold.' So, manure made upon the farm in the ordinary manner, even though lying in heaps in the barn-yard, is realty ; ' but this does not apply to ma- nure which is not the produce of agricultural land, such as accumulates in a livery stable. . In the latter case it is personalty.*" So, if rails are built into a fence, by a te- nant under an agreement for their removal, they are per- sonal property." 1 Smith V. Jenks, 1 Denio, 680. ' Freeland v. Southworth, 24 2 Reynolds v. Shuler, 5 Cow., Wend., 191. 323. sparrarv. Stactpole, 6 Greenl., » Cook T. Champlain Trans. Co., 1 154 ; Bishop v. Bishop, 11 N. Y. R., Denio, 91 ; Kelsee t. Durkee, 33 123 ; Goodrich v. Jones, 2 Hill, 142. Barb., 410. a Goodrich t. Jones, 2 Hill, 142; *Murdook v. GifFord, 18 N. T. R., Middlebrook v. Corwin, 15 Wend., 28; see Martin v. Cope, 28 N. Y. R., 169. 180. wCarroU v. Newton, 17 How., 189. 6 Cressen v. Stout, 17 John., 116. " Mott v. Palmer, 1 N. Y. R., 664 ; 6 Lawrence v. Kemp, 1 Duer, 863. Ford t. Cobb, 20 N. Y. R., 344. IQQ PROVISIONAL REMEDIES. [Ci H. 27. If a man, having no estate in premises, ereet there- dn, by permission of the owner, a house, such house will be the personal property of the builder ; but it will be otherwise if the builder have an interest in theland.^ So, where a tenant erects a building for the more profitable, or comfortable enjoyment of the premises during hist e- nancy, where such building merely rests upon the soil, or is only slightly imbedded therein, and is. removable with- out injury to the inheritance, it is personal property and niay be removed.'' As a ball-room, erected by a lessee of an inn, and which rests upon stone posts slightly imbed- ded in the soil, and which can be removed without injury to the freehold ; ' or a cider mill and press, erected by a tenant, holding from year to year.* 28. And it may be stated as a general rule, that a tenant who makes additions to a freehold, or improvements upon it, for the better use or enjoyment of the land, while his interest continues, has the right to remove such additions and improvements at any time before his right of enjoy- ment expires, where such removal would not operate to the prejudice of the inheritance by leaving it in a worse con- dition than when the tenant took possession.' To constitute a fixture, there must be such an annexation as to render a removal impossible without injury to the freehold.* 29. But the tenant must avail himself of his privilege to remove fixtures during the continuance of his term, for if he forbear to do it within that period, the law presumes that he voluntarily relinquishes his claiui in favor of his landlord.' Thus, where a tenant, at his own expense. iMott V. Palmer, 1 Comst., 571 ; 1 Dubois v. Kelley, 10 Barb., 496; 2 Wasli. on Real Prop., 3 ; and oases. Peters, 137. 2 Dubois V. Kelley, 10 Barb., 496, eg^ifty. Thomson, 9 Conn. Hep., and. cases. 63. s Ombony v. Jones, 5 E. P. Smith, ' Amos and Perard on Fixtures, 234 ; S. C, 21 Barb., 520. 87 ; see Dubois v. Kelly, 10 Barb., * Holmes T. Temper, 20 John., 29. 496 ; Holmes T.Temper, 20 John., 29, 6 King T. Wilcomb, 7 Barb., 263; and cases. § I.] CLAIM AND DELIVEBY. 161 provided and hung bells in tlie house, and afterwards quitted the house, without removing the bells, it was held that, though he might have removed them during the term, they vested in the landlord on the determination of the term.* But the tenant's right to remove fixtures will con- tinue after the expiration of the original term, during such further period of possession by him, as he holds the premises under a ri^ht to consider himself as tenant.^ However, if the tenant, at the close of his term, renews his lease and ac- quires a fresh interest, his right to remove such fixtures as he had under the old tenancy, a right to sever, is deter- mined, unless he has reserved such right, and he is in the same situation as if the landlord, being seized of the land, together with the fixtures, had demised both to him.* There are cases, also, in which, from the very nature of the tenancy, the lessee must have the privilege of removing fixtures after the termination of his interest ; such as where he holds under any uncertain term, or contingency, as for life or upon the happening of an event. In such cases no presumption of gift arises, and the property still remains in the tenant. He, therefore, has the right of removing them after his term has ended, provided he exercise such right within a reasonable time.^ Another exception to the rule also prevails in favor of nursery- men, for in case of a letting of land for the purpose of nurturing trees and plants until they are ready to be transplanted, in the absence of any express agreement, the interest of the tenant 'in the land, for the purpose contemplated by the parties, will be held to continue until that purpose is accomplished ; and the tenant will be allowed to cultivate the trees until they are prepared iLydev. Russell, 1 Barn. & Ad., 'See Taylor's Landlord and Te- 394. . naut, g 552. 2 Dubois V. Kelly, 10 Barb., 496 ; * Id. Weeton t. Woodcock, 7 Mess. & W., 14; Penton v. Bobart, 2 Bast,, 88. ]^g2 PROVISIONAL REMEDIES. [Ch-H. for transplanting, and then, from time to time, to remove them.^ 30. Replevin cannot, ordinarily, be maintained for taking and detaining things affixed to the freehold ; but if after the sheriff has levied upon them, they are severed, they bedome personal property, and may be replevied.^ So, if the defendant has severed any thing from the plaintr iff's freehold, such fixture becomes personal property', and may be replevied.^ 31. A man can have no property in amvu&ls ferce natures, until they are reclaimed, and then only a qualified pro- perty ; so long as they are in his actual keeping, as deer in a park, oy doves in a cote, his property in them continues. It continues, also, while they are in his con- structive keeping ; a-s where they wander away with the habit of returning. But if they stray wjthout the habit of returning, his property ceases. If a deer has a collar, or other mark put upon it, and it goes and returns at pleasure, or if a wild swan or goose is marked and let loose upon a river, the owner's property still continues. So of wild geese, rendered so tame as to eat from the owner's hand ; though they have twice strayed and have been brought back.* A swarm of wild bees belongs to the person who first takes or hives it ; but if a swarm flies from the hive of the owner to the land of another, the owner's qualified property in them continues, so long as he can keep them in sight, and possesses the power to pursue and identify them.* If bees are found upon the land of another, the finder acquires no property in them by merely marking the tree with the initials of his name ; nor can he maintain an action against one who cuts down iSee Taylor's Landlord and Te- ' Id. ; Gardner t. Finley, 19 Barb., nant, ? 552; King t. Wiloomb, 7 317. Barb., 263. * Amory v. Fly, 10 John., 102. 2 Cressen v. Stout, 17 John., 116. s (joff v. Kilts, 15 Wend., 550. §1] CLAIM AJSro DELIVERY. 163 the tree and carries them away.^ The mortal wounding of a wild beast, by one not abandoning the pursuit, is such a possession as will give him a qualified property therein ; and the animal so wounded cannot be fairly in- tercepted by another.^ \ 32. Eeplevin lies generally for property improperly con- founded with other property ; and, under some circum- stances, the whole may be taken. . Whatever alteration in form property may have undergone, the original owner may take it, in its new shape, if he can identify the ori- ginal material.' As where logs are sawed into boards ; timber into rails ; leather made into shoes ; iron into bars, or into tools ; the manufactured articles still belong to the original owner of the materials, and he may maintain re- plevin therefor.* "If any one shall make wine of my grapes ; oil of my olives ; or garments of my wool, know- ing they are not his own, he shall be compelled by action to produce the said wine, oil or garments." * But, if the chattel come into the possession of an innocent holder, who, believing himself to be the owner, converts it into a thing of a different specie, as wheat into bread, olives into oil, or grapes into wine, the original owner cannot reclaim it. It is otherwise if the chattel retain its ori- ' ginal form.* Where corn is converted into whisky by a willful trespasser ; ^ or wheat into flour ; * or logs into boards ; ' the original owner may replevy such property. Nor can a willful wrong doer acquire any property in the goods of another, by any change wrought in them by his labor and -skill, however great the change may. be, pro- iGillet T. Mason, 7 John., 16; 6 Digest Jus., lib. 10, tit. 4, leg. Ferguson v. Miller, 1 Cow., 243. 12, § 3. 2 Pierson t. Post, 3 Caines, 175 ; sSilsbury v. McCoon, 3 N. T. E., Buster v. Kewkirk, 20 John., 75. 379. 8 Betts V. Lee, 5 John., 348 ; Curtis ' Id. T. Groat, 6 John., 168. ajyiallory v. Willis, 4 Comst., 76. < Silsbury v. MoCoon, 3 N. Y. E., sWingate v. Smith, 20 Maine, 287. 382. 154 ' PROVISIONAL REMEDIES. [Oh. n. vided it can be proved that the improved article was made from the original material.^ Where one fraudulently mixes another's wheat with his own; orsawsanother'slogs into boards and intermixes them with his own so that they cannot be distinguished, the owner may maintain replevin for all the wheat or boards.^ 33. Where the owners of property voluntarily mingle' them, so that they car^not be distinguished; as where' they mingle wheat, they become tenants in common,^ and nei- ther can maintain replevin against the other.* 34. In an action under this chapter, the plaintiff may recover such damages as arise from the depreciation, qf the goods, during the wrongful detention by the defend- ant ; and it is unimportant whether the decrease in value arises from the defendant's acts, or default, or from other causes.' It is not essential that specific damages be al- leged in the complaint, in order to recover damages from depreciation, resulting from lapse of time. Under a complaint alleging the wrongful taking and detention to the plaintiff's damage a specific sum, special damages for such depreciation will be allowed. Under such complaint evidence that the property depreciated, from change in the market value; or from decay from inherent causes, and not resulting from any neglect or default on the part of the defendant is admissible.' If the defendant has given the required bond and retained possession of the goods, the jury should assess the value of the property at the time of the verdict and its depreciation since the taking, and interest should be allowed on the whole amount. The amount of depreciation and interest will form the iSilsbury V. McCoon, supra. ^ Young v. Willett, 8 Bosw., 486; sWingatev. Smith, 20 Maine, 287; Rowley v. Gibbs, 14 Jolin., 385; Hart T. Ten Eyck, 2 John. Ch., 62, Sugdam v. Jenkins,,3 Saudf., 614, 108 ; Frost v. Willard, 9 Barb., 440. 644. 8 Newton v. Colt, 6 Hill, 461. e Young v. Willett, 8 Bosw., 486. 4 Russell T. Allen, 3 Kern., 173. 1 1.]' CLAIM AND DELIVERT. 165 damages ; and the judgment will be for the recovery of possession and the -damages, or in case delivery cannot be had, for the value at the time of the verdict and the damages.^ 35. In an action for the recovery of specific personal property, if the property have not been delivered to the plaipjtiff, or the defendant, by his answer, claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is .entitled to a return thereof; and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention, or taking and withholding such property^^ When the plaintiff succeeds in the action, a general verdict is proper : 1st. Where there has not been a delivery of the property to the plaintiff, and the answer does not deny the value of the property claimed to be as stated in the complaint. 2d. Where the property has been delivered to the plaintiff, and the answer does not claim a redelivery.^ Where the property has been delivered to the plaintiff he cannot elect to take judgment for the value ; and where it has not been delivered to him, the judgment must be in the alter- native.* Where the interest of a party, in the property claimed, is of a limited nature, and is less than the actual value of such property, the jury should, as between the party having such interest and the owner, assess the value of the property at such sum only as will be equivalent to the limited interest of the prevailing party.' Thus, where a sheriff levies upon property by virtue of an execution, he has a special interest therein, as against the owner, to the amount due upon the execution, including his fees ; 1 Young T. Willett, 8 Bosw , 486. < Jlookwell v. Saunders, 19 Barb., 2 Code, § 261. 474. s Archer v. Boudinet, 1 Code Rep., ' 6 Rhoads t. Woods, 41 Barb., 471, N. S., 372. "^ 476; 21 id,, 306. IQQ PROVISIONAL EEMEDIES. [Ch.II. and if the debtor bring replevin against the officer, and the latter has a verdict in his favor, the jury should assess the value of^ the property at that amount.' But a party having only special property in a chattel, may recover its full value of a person who wrongfully takes or converts it, if such person is not the general owner or some one act- ing, under his authority.^ "Where judgment is for the defendant, it must, likewise, be in the alternative, for he cannot elect to take, judgment for either a return or the value.^ 36. The judgment, if for the plaintiff, must be for the possession of the property claimed, or for the recovery of possession, or the value thei'eof, in case a delivery cannot be had, and of damages for the detention ; or, if for the defendant, for a .return of the property, or the value thereof, in case a return cannot be had, and damages for taking and withholding the same.* The plaintiff cannot elect, as under the revised statutes, to take judgment for the value of the property, but is entitled only to a judg- ment in the alternative as provided by this section.' So, if the verdict be for the defendant, and the plaintiff has possession of the goods, the judgment must be in the alternative, for a return of the property or the value thereof, in case a return cannot be had.^ Where the judgment is for the value absolutely, instead of in the al- ternative, it is an irregularity only, which does not invali- date the judgment, but which may be corrected by the court of original jurisdiction, though not reviewable on appeal.^ 1 Seaman t. Luce, 23 Barb., 240. 562; Dows v. Hush, 28 Barb., 158, =Alt V. Weidenberg, 6 Bosw., 176 ; 187. see Frost T. Motfc, 34N. Y. R., 253 ; sDwight t. Bnos, 5 Seld., 470; Johnson V. Oarnley, ION. Y. R., 579. Seaman v. Luce, 23 Barb., 240; ^Glann v. Younglore, 27 Barb., Glann v. Younglove, 27 Barb., 480. 480. ' Ingersoll v. Bostwiok, 22 N. Y. * Code, g 277. R., 425 ; Johnson v. Carnley, 10 id., s Fitzhugh T. Wiman, 5 Seld., 559, 570 ; see 4 Bosw., 94. 1 1.] ' CLAIM AND DELIVERY. 167 37. If the plaintiff" in the action recover less than fifty- dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which, with the damages, amounts to fifty dollars, or the possession of property* be adjudged to him, the value of which, with the damages, amounts to fifty dollars.^ Where the plaintiff recovers costs, even though it be only six cents, the defendant is not entitled to costs, for' by section 305 costs are given to the defendant only in those cases where the plaintiff" is not entitled to recover ; and it is the same, although no proceedings are taken by the plaintiff to obtain possession of the property pending the action.^ But where, the plaintiff had a verdict for a return of a portion of the property assessed at ■ two hundred dollars in value, and the defendant a verdict for the residue, it was held that each party might recover costs against the other.' 38. The execution to be issued upon a judgment in this action, is the same as in ordinary actions, except it sub- stantially requires the officer to deliver the possession of the property, particularly describing it, to the party entitled thereto, and may, at the same time, require the officer to satisfy any costs, damages or rents and profits recovered by the same judgment out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered to be specified therein ; if a delivery thereof cannot be had, and if sufficient personal property cannot , be found, then out of the real property belonging to him on the day when the judgment was docketed, or at any time thereafter, and shall, in that respect, be deemed an execution against property.* 89. An action for the recovery of specific personal iCode, ? 304,"su1d 4. "Porter v. Willet, 14 Abb., 319. 2 Corbin v. Milton, 27 How., 76. ■» Code, § 289. 268 PKO VISIONAL REMEDIES. [Ch. IL property wrongfully detained, against a sole defendant, wholly abates if the defendant dies before verdict or judg- ment ; and the court has no power in such case to order the action to be continued against the personal representa- tives of the defendant.' • 40. A plaintiff may, as a general rule, discontinue his action, on payment of costs merely ; but he cannot do so in an action where he has obtained possession of the pro- perty claimed. If, in such a case, the plaintiff neg- lect to proceed before issue, the defendant may, under section 274, have judgment for a dismissal of the com- plaint, for his costs, and for a return of the goods : or if the neglect to proceed is after issue, the defendant may notice the cause for trial under section 258, and have a dismissal of the complaint, verdict or judgment as the case may require. An order that the complaint be dis- missed,, unless the plaintiff bring the cause to trial within a specified time, is improper in such a case. Or if the plaintiff serves notice of discontinuance at any stage, the defendant may accept it, and sue on the undertaking given by the plaintiff, on procuring a delivery of the pro- perty 'to him.^ 1 Hopkins v. Adama, 6 Duer, 685 ; ^ Wilson v. Wheeler, 6 How., 4 5 Abb., 351. Sohroeder t. Kohlenback, 6 Abb., < § n-] • CLAIM AND DBLIYBEY. 169 SECTioif n. THE AFFIDAVIT. 1. § 307. Affidavit ttai Its lecLnisites. 3. Wlio may make. 3. When abonld not 1)e entitled. 4. Facts, how stated. 5. Ownership, how stated. 6. Specific property. t. Property, how described. 8. Wrongful detention. 9. Canse of detention. 10. Not taken for tax, etc., property exempt. 11. Value of property. 12. Affidavit may be controverted by de- fendant. 13. Amendment of affidavit. 14. BecLnisition to sheriff to take and deliver the property. 1. "Where a delivery is claimed, an affidavit must be made by the plaintiff, or by some one in his behalf, show- ing, 1. That the plaintiff is the owner of the property claimed (particularly describing it), or is lawfully entitled to the possession thereof by virtue of a special property therein, the facts in respect to which shall be set forth. 2. That the property is wrongfully detained by the defendant 3. The alleged cause of the detention thereof, according to his best knowledge, information and belief. 4. That the same has not been taken for a tax, assessment, or fine, pursuant to a statute ; or seized under an execu- tion or attachment against the property of the plaintiff ; or if so seized, that it is, by statute, exempt from such seizure. 5. The actual value of the property."' (For form, see appendix Nos. 40, 41, 42). 2. An affidavit is essential in every case where the remedy of claim and delivery is sought ; and the pro- ceeding being statutory in its nature, every requisite prescribed must be strictly complied with. Any one cognizant of the facts may make the affidavit. It matters ' Code, § 207. 12 YIQ PKOVISIpKAL EEMEDIES. [Oh. H. not so much who is the witdess, as it does that the evi- dence be suflB.cient. 3. Where the affidavit is made prior to the commence- ment of the action, it should not be entitled ; but if it be entitled, the entitling will be treated as a nullity under section 176.i 4. Every requisite fact must be positively stated, in the affidavit, except the grounds upon which the defendant claims the property, which may be to the best of the affiant's knowledge, information and b^liefr The principle in regard to affidavits in this proceeding is similar to that in relation to affidavits for an arrest, or attachment. The facts must be so stated, as that the court, if called upon, can say upon the facts, and the best apparent evidence of these facts, that a clear right to the remedy is made out.^ 5. When the plaintiff makes claim to the property as owner, a direct and positive allegation that he is the owner, is sufficient, without setting out the facts proving such ownership.* ' 6. But when the plaintiff claims possession by virtue of a special property, the facts which entitle him to such possession must be set out. When any fact, or the evi- dence of any fact, is based upon any writing or official document, such writing or document should 'be set forth as the basis of the conclusion. Thus, where a plaintiff claims immediate possession by virtue of written articles of copartnership between himself and another, such articles of copartnership must be set out as a part of the affidavit^* 7. The property must be particularly described in the affidavit. A mere general description will be insufficient, where one more definite can be given. It must be as particular as the knowledge of the plaintiff, or affiant, 1. Pindar v. Black, 4 How., 95. Vandenburgh v. Valkenburgh, 8 2Depew V. Leal, 2 Abb., 131. Barb., 217. » Burna v. Bobbins, 1 Co4e R., 62 ; * Depew y. Leal, 2 Abb., 131. § n.] CLAIM AND DELIVERY. 171 can, reasonably, enable it to be. Where chattels cannot be particularly described, by reason of their similitude to other and like articles, such as coal, or corn, or hay, a description as to the quantity, location, etc., must be given. Where the description was " about 400 tons of bog ore," the court held that the sheriff should have refused to execute the writ, on account of the Vague and indefinite description. The property must be so described either by its individuality or by its location, quantity and the like, that the sheriff may identify it, when found and feel justified in taking it. * 8. The affidavit must, likewise, state, not only that the property is detained by the defendant, but that it is wrong- fully detained by him. It will be sufficient to allege directly and positively, in the language of the statute, that the property is wrongfully detained. It is also proper to etate that the property is wrongfully detained by th^ defendant, even though he has parted with the possession ; for it is well settled that this proceeding lies against a de- fendant, although he has parted with the property before suit brought.'- 9. The cause of such detention must be set forth ac- cording to the affiant's best knowledge, information and. belief; and it should be stated with sufficient fullness, to make it clearly appear. (See forms Nos. 40, 41). 10. A simple allegation that the property has not been taken, where such is the fact, for a tax, assessment, or fine pursuant to a statute ; nor seized under an execution, or attachment against the property of the plaintiff, will be sufficient. ' There is a conflict of opinions in the courts, as to whether, if the property have been taken on execu- tion or attachment, a bare allegation that it is exempt would be sufficient, without stating, in detail, the facts ' • iBrockway v. Barnap, 16 Barb., B., 264; Ross v. eassidy, 27 How., 309 ; Nichols y. Michael, 23 N. Y. 416. 172 PROVISIONAL REMEDIES. [Ch. H. bringing it within a statutory exemption.^ An allegation of exemption made on belief, is clearly insufficient; unless it appear that such belief is founded on a knowledge of the law, or the advice of counsel, cognizant of all the facts in the case.'' It is obviously, the better course, in all cases, to state the facts, with sufficient d,etail, to show[ that the conclusion of law as' to exemption is based upon adequate grounds, and not upon the mere ipse dixit of the party. Where a portion only of the property of the same de- scription is exempt the debtor must make his election, and claim the specific portion, so as to give the officer an opportunity to return it ; or he cannot maintain his action.^ (See form No. 42). 11. The actual value of the property must be given according to the best estimate that can be made. Some value, must, in all cases, be stated, but it may be conting- ent, and have reference to extrinsic circumstances. Thus, replevin has been maintained for a warehouse entry, though bearing no actual value on its face, on the ground that it might turn out, in connection with evidence given on the trial, to be of value.* 12. The defendant may controvert the truth of the alle- gations in the plaintiff's affidavits. Thus, where the plaintiff made the usual allegation in his affidavit that the property was not taken for a tax, assessment or fine, pur- suant to a statute, a motion to set aside the proceedings was granted upon affidavit showing that the defendant was a deputy collector of internal revenues for the United States, and that the property was taken for' an assessment or tax under the internal revenue act.* 13. On motion to set aside the proceedings for defects in the affidavits, the court may, in a proper case, allow an 1 Spalding v. Spalding, S How., ' Seaman v. Luce, 23 Barb., 240. 297 ; EobertB t. Willard, 1 Code R., * Knehuey. Williams, 1 Duer, 597. 100. ^O'Reillyv. Good, 42 Barb., 521; 2 Id. 18 Abb., 106. . § n.] CLAIM AND DELIVERT. I73 amendment ; and it may also allow additional affidavits to be read in support of t^e original one.* A general ap- pearance in the action, or obtaining a rendition, waives all irregularities in the affidavits.* 14. The affidavit having been prepared and sworn, to, "the plaintiff may, thereupon, by an indorsement in writing upon the affidavit, require the sheriff of the county where the property claimed may be, to take the same from the defendant and deliver it to the plaintiff." ' The practice is for the plaintiff's attorney to make the indorsement in his own name as attorney, and this is un- doubtedly proper. (See form Fo. 43). 1 Depew T. Leal, 2 Abb., 131, and 248 ; Wis. Ins. Co. v. Hobb, 22 cases cited; Clickman y. Glickman, How., 494. 3 How., 365. 8 Code, § 208. » Id., Hyde v. Patterson, 1 Abb., 174 PROVISIONAL REMEDIES. [Oh. n. SECTION in. SECURITY BY PLAINTIFF — REQUISITION, AND HOW EXECUTED. 1, § 209. Secnrity by plaintiff. 8. Form of undertaking. 3. Sheriff cannot dispense witli nnder- taking. 4. Amendment of nndertaldng. 5. Liability of anreties. 6. "Where non-resident is plaintiff. 7. Action on undertaking. 8. Qualification of sureties. 9. Undertaking, how disposed of. 10. Seizure of property by sheriff. 11. Can only be taken from defendant or servant. 12. When protected by process. 13-15. § 214. Property Turn taken when con- cealed in, tuildings. 16. When sheriff a trespasser. 17. Service of copies on defendant. 18. Sheriff's return. 19. 1 215. Property, turn kept. 20. What care sheriff should use. 21. When the property to be delivered to plaintiff. 1. " Upon the receipt of the affidavit and notice with' a written undertaking, executed by one or more sufficient sureties approved by the sheriff, to the effect that they are bound in double the value of the property, as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the plaintiff, the sheriff shall forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his custody. He shall, also, with- out .delay, serve on the defendant a copy of the affidavit, notice and undertaking, by delivering the same to him personally, if he can be found, or to his agent, from whose possession the property is taken ; or, if neither can be found, by leaving them at the usual place of abode of either, with some person of suitable age and discretion." ^ 2. The undertaking must be in writing, but it is not 1 Code, \ 209. § m.] CLAIM AND DEUVEBY, 175 esseiatial that it be under seal or that it be in any. par- ticular form, 80 that it state all the facts and conditions required: by the above section. It must be executed by the plaintiff with one or more sufficient sureties ; or by one or more sufficient sureties without the plaintiff.^ The sheriff is to exercise a discretion as to whether there shall be only one or more than one, and, also, aa to their sufficiency ; and, he must indorse his approval in writing on the undertaking.^ The sureties must justify, and the undertaking must be duly proved or acknowledged,' in like manner as deeds of real estate.* But an omission to comply with this rule may be remedied, by amendment,* (See forms IsTos. 44, 45), 3. It is not in the power of the sheriff to dispense with the undertaking ; and if it be not executed and delivered to the sheriff the proceedings will be irregular,® 4. If the sheriff originally intended to require two sureties, he may require another name to be inserted in the place of that of the plaintiff, before he approves ; but no change can be so made without the consent of the original sui^ety. The statute provides that whenever any bond, required by law to be given by any person, in orde? to entitle him to any right or privilege conferred by law, or to commence any proceeding, shall be defective in any respect, the court, officer, or body, who would be author- ized to receive the same, or to entertain any proceedings in consequence of such bond, if the same had been perfect, may, on the application of all the obligors therein, amend the same in any respect, and such bond shall thereupon iBut see as to plaintiff's being * See Gonklin v. Dutciier, 5 How., surety, Burns v. Bobbins, 1 Code 38^6; Bellinger v. Gardiner, 12 Hot?., K., 62. 381. ■ «Id. ; Sup. Court, rule 6. « Wilson v. Williams, 18 Wend., 'Sup. Court, rule 6; Anon., 4 581. How., 290. 176 PROVISIONAL REMEDIES. [Ch. H. be deemed valid from the time of the execution thereof.* This provision applies to iindert£|,kings in this action.^ If an amendment is made by adding a new surety, his lia- bility will be the same as though he had signed the bond originally.* 5. The liabilities of the sureties are clearly defined by the statute. They are responsible for a prosecution of the suit, for a return of the property to the defendant if return thereof be adjudged, and for the payment of such sum as may, for any cause, be recovered against the plaint- iff. If an appeal be taken by either party to the supreme court at general term, or to the court of appeals, and judgment be given against the plaintiff, the sureties will be liable for all the costs.* 6. It was held in one instance that if a foreign corpora- tion, or non-resident is plaintiff, an undertaking pursuant to this section dispenses with the security for costs required by the revised statutes,^ but in another case that conclusion is denied, and the reverse held.* 7. The defendant may bring an action on the under- taking -without any assignment thereof to him. And if the defendant recovers in the replevin suit and assigns his judgment and all moneys to be recovered thereon, such assignment carries with it the undertaking, and the assignee may maintain an action thereon.^ 8. The qualifications of sureties and their justification shall be as are prescribed by section 194 and 195 in respect to bail upon an order of arrest.* 13 R. S., 870, ?? 35, 36 (5th ed.) ; 6 ^ia. Ins. Co. v. Hobbs, 22 How., Shaw V. Lawrence, 14 How., 94 ; 494. Potter V. Baker, 4 Paige, 290; « Boucher v. Pia, 14 Abb., 1. Hyde t. Patterson, 1 Abb., 248. ' Bowdoin v. Coleman, 3 Abb., 2 Newland v. Willetts, 1 Barb., 20. 431. s Decker V. Judson, 16 N. Y. R;, » Code,. §213; see ante, chap, i, 439. sects, xi, xii. * Tibbies v. O'Connor, 28 Barb., § m.] CLAIM AOT) DELIVERY. 177 ' 9. After the sureties shall have justified, the "sheriff shall deliver the undertaking to the defendant.^ 10. On receipt of the affidavit and notice indorsed thereon, and the undertaking, the sheriff, having first indorsed his approval on the latter, must forthwith take the property described in the affidavit, if it be in the pos- session of the defendant or his agent, and retain it in his custody. The requisition is directed to and must be exe- cuted by the sheriff of the county where the property is situated. A sheriff has no authority to execute it out of his county. He should be careful not to take any property but that described in the affidavit ; and to take no more than is therein described. If the description is not suffi- ciently definite to enable him to identify the goods, he may refuse to execute the process. 11. He has no right to take the property from the pos- session of any person other than the defendant^ or his agent; and if he do so he will be a trespasser. If he take the goods from the possession of any other than the defendant, the burden of proof to establish an agency is on the officer. The remedy provided by section 216, dpplies only to cases where the property has been taken from the defendant or his agent, and not where it has been wrongfully taken.'' 12. The sheriff is protected by the process in taking from the possession of the defendant the specific goods described in the affidavit, even though such goods belong to a third person; and the owner must resort to the remedy as provided by section 216 ; and he may also have an action against the issuer or instigator of such process.^ 13. " If the property or any part thereof be concealed in a building or inclosure, the sheriff shall publicly demand its delivery. If it be not delivered, he shall cause the 1 Code, 423. » Foster v. Pettibone, 20 Barb., ' King V. Orser, 4 Duer, 436. 350. IT'S PROVISIONAL EEMEDIES. [GJh. II. building or inclosure to be broken open, and take the property into Ms possession ; and, if necessary, lie may call to Ms aid the power of Ms county." "■ 14. The demand should be made in a manner most likely to come to the knowledge of any person that may be within the building, either at the door or window if any one within be in sight, or by knocking or ringing at the door. Should the sheriff be compelled to break open the building, he should do the least damage possible. He may also break, into any inner room, or into any* trunk, box, chest or drawers, where the property would be likely to be. found. 16. But it must be remembered that the statute does not authorize the breaking open of a building unless the property be concealed therein. The only justification of the officer is the finding of the property in the building. Ifo matter how strong his suspicions may be, or how much reason he may have to believe that the property is concealed in a building, he acts at his peril, and if he does not find it therein, the breaking will be trespass. The rule is the same as that relating to breaking buildings in cases of attachment.^ 16. So, if the process is defective on its face, or if the- sheriff is attempting to take property not described in the process ; or if, he take the property from the possession of any other than the defendant or Ma agent, he and all who act in his assistance will be trespassers.* 17. If the defendant can be found within the county, the sheriff shall, without delay, serve upon him, a copy of the affidavit, notice and undertaking, by delivering the same to him personally. If the defendant cannot be found, then such services must be made upon his agent from 1 Code, ? 214. s Elder T. Morrison, . 10 Wend., 'See post, chap, iv, sec. vi. 128 ; King v. Oraer, 4 Duer, 431. gin.] CLAIM AND DELTVBBY. 179 whom the property .is taken.^ But the service should never be made on the agent, if the defendant himself can he found witMn the county. If neither the defendant nor his agent can be^ found, then the service may be made by leaving such copies at the usual place of abode of either with some person of suitable age and discretion. 18. The sheriif, in making his return should state the manner in which the copies were served, whether on the defendant personally, or on his agent having possession of the goods, or at whose house and with whom, the copies were left. In making such return he is acting ministerially, and is liable to the injured party for an error therein.^ 19. "When the sheriff shall have taken property, as in this chapter provided, he shall keep it in a secure place, and deliver it to the party entitled thereto, upon receiving his lawful fees for taking, and his necessary expenses for keeping the same." ' ♦ ■ 20. The sheriff is an officer whom the parties are com- pelled to employ, and he should use great care and dili- gence in preserving the property while in his possession. He will be responsible for any negligence or want of skill, either of himself or of his agent, by which the goods' are damaged or lost ; and he would probably be held responsible for a higher degree of vigilance and care, than an ordinary bailee for hire.* He should be held to at least the same vigilance as he would in the care of property taken on execution or attachment, for which see post eh. iv, sec. vi. 21. If the defendant do not except to the plaintift''s sure- ties, nor demand a return of the property within three days after the service upon him of the affidavit, notice 1 Code, ? 209, ante pi. 1. •> Moore v. Westervelt, 21 N. T. 2 See Houghton t. Swarthout, 1 R., 103 ; see §ame case in Superior Denio, 589, and cases cited. Court, 2 Duer, 59 ; 1 Bosw., 358. 3 Code, ?215 180 PROVISIONAL REMEDIES. [Ch. TL and undertaking ; and if the property is not claimed by a third party within that time, the plaintiff becomes entitled to the possession of the property, and . his right to such possession is absolute.^ But if the defendant except to the plaintiff's sureties, the sheriff should retain the property until they have justified.^ If the property be demanded by the defendant, and the required under- taking be given, the sheriff must still retain the possession of the property until the defendant's sureties have justi- fied; or if they fail to justify at the time and place appointed, he must deliver possession to the plaintiff.* 1 McCann v. Thompson, 13 How., ' Moore t. Westervelt, 21 N. T. 380. R., 103 ; opinion at p. 108. sGraham v. Wells, 18 How., 376. §iv.] CLAIM AOT) DELIVERy. 181 SECTION" IV. EXCEPTION TO, AND JUSTIFICATION OF, PLAINTIFF'S SURETIES. 1. i 210 of Code. Exception to enreties. 2. IJptice of exception to be given witUn three days. 3. Jnetiflcation of sureties. i. Sheriff wlien Uahle to defendant. 5. When the sureties fail to jnstiiy. 6. Undertaking, how disposed of. 1. " The defendant may, within three days after a ser- vice of a copy of the affidavit and undertaking, give notice to the sheriff that he excepts to the sufficiency of the sureties. If he fail to do so, he shall be deemed to have waived all objection to them. When the defendant excepts, the sureties shall justify on notice, in like man- ner as upon bail on arrest. And the sheriff shall be responsible for the sufficiency of the sureties, until the objection to them is either waived as above provided, or until they shall justify, or new sureties shall be substituted and justified. If the defendant except to the sureties, he cannot reclaim the property, as provided in the next section." ^ 2. The defendant has three days after the service of the affidavit, etc., upon him, in which to determine . whether the plaintiff or himself shall retain the property during the pendency of the action. If he elect to leave it in the plaintiff's possession, and is not entirely satisfied with the plaintiff's sureties, he must serve a notice in writing, within the three days, to the effect that he excepts to the sufficiency of such sureties. Should he omit to give such notice within the time, he will be deemed to have waived 1 Code, ? 210. 182 PBOVISIONlL EEMEDIES. [Ch. H. all objection to tlie sureties, and tlie sheriiBE' will be dis- charged from liability. (For form, see E'o. 45). 3. On receipt of such notice flie sheriff or plaintiff may, within ten days, give notice to the defendant of the justi- fication of the sureties, before a judge of the court or a county judge, at a time not less than five nor more than ten daj^s thereafter. The qualification of sureties, and the manner of their justification, shall be as are prescribed by sections 194 and 195, in respect to bail upon an order of arrest,^ and new sureties may be substituted in like man- ner. But if one of the sureties fail to justify, and a new surety is substituted, a new undertaking should be exe- cuted. The original undertaking •cannot be altered by inserting therein a new surety without the consent of the other surety, and of those for whose benefit or protection it is required to be given.^ . All the sureties must justify or the undertaking will be irregular.* 4. The sheriff remains liable to the defendant until the sureties have justified or the defendant has waived a justification. If the sureties fail to justify, the sheriff becomes surety and is responsible to the defendant.* There is a dictum to the effect that where there is a failure to justify, the defendant is without remedy, except the re- sponsibility of the sheriff, and that, if the defendant does not demand a return of the property, the plaintiff becomes absolutely entitled to it at tlie expiratibn of three days, even though the sureties have been excepted to.° This interpretation may be sustained by a strict and literal construction of section 211 ; but it is open to grave objec- tions. The provision for justification would become a mere recommendation. The plaintiff would accomplish his object by getting hold of the property, and would gain ' Code, § 213. * Manley v. Patterson, 3 Code K., a Cobb T. Lackey, 6 Duer, 649. 89. s Graham v. Wells, 18 How., 376. 'Manley. v. Patterson, supra. § lY-l CLAIM AND DELIVERY. 183 nothing by justifying his sureties. It would seem to be the better course for the sheriff to retain possession of the property until the justification of the sureties ; and if the sureties failed, from any cause, to justify, that the defend- ant should get an order to show cause, why the proceed- ings upon the provisional remedy should not be set aside. A motion to have the action discontinued for such irregu- larity would be improper, as this remedy does not affect the merits of the action."- 5, It is no defense to an action by the defendant against the sureties that, having been excepted to, they failed to justify. The bringing suit on the undertaking may be regarded as a waiver of the exception.^ But in a later decision as to the liability of the sureties in an under- taking given on arrest, where the sureties were excepted to and failed to justify, the same court held that unless the bail, after being excepted to, justify, their liability on the undertaking ceases ; and that they are liable to the sheriff only for damages, and not on contract. The liabilities of sureties are similar in both cases, and it would seem that if the conclusion were proper in the one case it would be in the other.^ 6. When the sureties have justified, the sheriff must deliver the undertaking to the party for whose benefit it was taken.* 1 See Moore V. Westervelt, 21 N. sQlapp t. Schutt, 29 How., 255; Y. E., at p. 108. U Barb., 1. 2 Decker y. Anderson, 39 Barb., * Code, g 423. 346; Van Duynev. Coope, 1 Hill, 557. 184 PROVISIONAL REMEDIES. [Ch. n. SECTION" V. REDELIVERY TO DEFENDANT. 1. §211. Defendant, when entitled to rede- livery. 2. At any time before tlie expiration of three days. S. Undertaking. 4. Qnaliflcations of sureties. B. %%l'i.JiiMiJlcationofdefendamt''smreties, 6. Plaintiff need not except to emefieB. 7. Sheriff to retain property. 8. Undertaking, how to ho disposed of. 9. Undertaking evidence of possession. 10. Property cannot be returned to plaintiff. 11. Action on the undertaking. 1. " At any time before the delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties of the plaintiff, require the ' return thereof, upon giving to the sheriff a written undertaking, executed by two or more sufficient sureties, to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the pro- perty be not so required within three days after the taking and service of the notice to the defendant, it shall be de- livered to the plaintiff, except as provided in section 216."* (See form No. 47). 2. The construction given to the first clause of the section is that the defendant may require a return at any time before the plaintiff is entitled to a delivery ; and, as the plaintiff is entitled to a delivery after the expiration of three days from the notice, the defendant must claim a return within that time.'' . . iCode. § 211. *McCann v. Thompson, 13 How., 380. § v.] CLAIM AND DELIVERY. 185 1 3. For the purpose of procuring the return, the defend- ant must give to the sheriff a written undertaking to the effect provided by the above section. The form of the undertaking will be the same as that given by the plaintiff, with the relative positions of the parties reversed ; and it may be made either to the sheriff" or the plaintifi".' (See form No. 46). 4. The qualifications of the sureties are the same as are prescribed for bail upon an order of arrest; '^ that is, each of them must be a resident and householder, or free- holder, within the state, and worth double the amount specified in the plaintiff 's affidavit, exclusive of property exempt from execution; but the judge, or justice of the peace, on justification, may allow more than two sureties to justify severally in sums less than that in the under- taking, which is to be double the value of the property as stated in the affidavit of the plaintiff, provided the whole justification be equivalent to that of two sufficient bail.* 5. " The defendant's sureties, upon a notice to the plaintiff of not less than two nor more than six days, shall justify before a judge or justice of the peace, i]ji the same manner as upon bail on arrest ; upon such justification, the sheriff" shall deliver the property to the defendant. The sheriff" shall be responsible for the defendant's sure- ties, until they justify, or until justification is completed or expressly waived, and may retain the property until that time ; but if they or others in their place, fail to jus- tify at the time and place appointed, he shall deliver the property to the plaintiff"."* 6. It isnot necessary for the plaintiff to except to the defendant's sureties, as they are bound to justify in any case, before the property can be returned to the defend- > Slack T. Heath, 4 B. D. Smith, s Graham v. Wells, 18 How., 376; 95 ; Decker v. Judson, 16 N. Y. R., see ante, chap, i, sec. xi. 443. *Code, « 212. 2 Code, ? 213. 13 ]^gg PKOVISIONAL REMEDIES. [Ch. H. ant ; nor is any specific period limited within wMch the justification must take place, but the plaintiff must have notice of not less than two, nor more than six days. This notice must be in writing and should be entitled in the action. 7. The sheriff is to retain possession of the property until the justification has been completed ; or until it has been expressly waived by the plaintiff; but in case the sureties fail to justify at the time and place appointed, the sheriff should deliver the property to the plaintiff. The sheriff cannot withhold the property from the defend- ant because the sureties in the affidavit attached to the undertaking, deposed to being worth a less sum than the amount required, if afterwards, on justification, they jus- tify in the required amount.' 8. After the sureties shall have justified, the sheriff shall deliver the undertaking to the party for whose bene- fit it was taken.^ 9. Where the defendant claims a redelivery, and gives an undertaking under this section, which undertaking states that he, defendant, requires a return of the pro- perty, such undertaking is competent evidence to go to the jury to disprove an allegation in the answer that the defendant does not detain the property. It is for the jury to say how much weight sueh an undertaking is entitled to.* 10. There is no provision for a restitution of the pro- perty to the plaintiff, after it is redelivered to the defend- ant. No further change can be made before judgment, but in a proper case a court of equity will interpose, by injunction, for the preservation and protection of the pro- perty in the hands of the defendant ; but not for a restitu- tion of the property to the plaintiff. An injunction may 1 Grant v. Booth, 21 How., 354. s Black v. Foster, 28 Barb., 887. ' Code, 2 423. §V.] CLAIM AND DBLIVERT.! 187 be granted restraining tlie defendant from injuring or disposing of the property.^ 11. Where the plaintiff brings an action on the above undertaking, he is not required to aver or prove the regularity of the proceedings in the replevin suit. Nor is it necessary to aver the issuing of an execution against the property of the defendant, and its return unsatisfied. The parties to the undertaking are bound absolutely for the payment of the judgment, and must see to it that such payment is made.^ 1 Hunt T. Mootry, 10 How., 478 ; » Slack v. Heath, 4 B. D. Smitli,9 Erpstein v. Berg, 13 How., 91. 188 PEOVISIONAL REMEDIES. [Gh.il SECTION VI. CLAIM BY THIRD PERSON; FILING PAPERS; SETTING ASIDE PROCEEDINGS; ARfiEST OF DEPENDANT, ETC. 1. §216. Claim of property by third person. 3-3. Wlien the section applies. 4. When BherifTmnst prove agency. 6. The affidavit of third person. 6. Sheriff to notify plaintiff. 7. Undertaking by plaintiff. 8. SherUf to file papers. 9. Sheriff's return. 10. Moving to set ^side proceedings. 11. Amendment of affl^vlt. ! 1% piscpntinnance of action. 13. When the action abates. 14. Arrest of defendant. 15. When he may be arrested. 16. Not discharged because plaintiff's sure- ties fail to jnstify. 1. "If the property taken be claimed by any other person than the defendant or his agent, and such person shall make affidavit of his title thereto and right to the posses- sion thereof, stating the grounds of such right and title, and serve the same upon the sheriff, the sheriff" shall not be bound to keep the property or deliver it to the plaint- iff, unless the plaintiff on demand of him or his agent, shall indemnify the sheriff against such claim, by an un- dertaking, executed by two sufficient sureties, accompa- nied by their affidavit, that they are each worth double the value of the property as specified in the affidavit of the plaintiff", and freeholders and householders of the county. And no claim to such property by any other person than the defendant or his agent shall be' valid against the she- riff, unless made as aforesaid ; and notwithstanding such claim, when so made, he may retain the property a rea- sonable time to demand puch indemnity." * 2. This section applies only when the property is taken by the sheriff in the proper discharge of his duty ; as where >Code, §216. § VL] CLAIM AND DELIVERY. 189 the property of a stranger is taken from the possession of ' the defendant or his agent, in which case the owner is limited to the remedy given above. But, if the property be not that described in the affidavit, or if the sherijGF has taken it from the possession of any person other than the defendant, or his agent, the true owner may piaintain an action of trespass, trover, or replevin, against the sheriff for recovery of the property. In such ease he is not bound to make any affidavit as provided in this section.* ' 3. But where the goods were taken by the sheriff from the possession of the defendant or his agent, even though they were the goods of a stranger, the remedy prescribed by the above section is the only way in which such stranger can assert his claim. He cannot replevy the property as against the sheriff or the plaintiff.* 4. If the' goods be taken from the possession of any other person than the defendant, the burden is on the sheriff to establish the fact, that an agency exists, or he •will be liable.' But he is protected by the process in taking from the defendant the specific goods described in the affidavit, even though such goods belong to a third person. In such case the owner must resort to the remedy given abovCj andmay have an action for damages against the issuer or instigator of such process.* 5. Where a third person makes claim to property as provided above, his affidavit must be full and specific ; and must show clearly the existence and paramount nature of the title so claimed.. If such third person claim to own the property^ he should state the facts of the purchase, as to time when, price, and the person from whom. If he claim only a right of possession, he should set forth the ground of that right, in detail, (See form No. 48), 1 King V. Orser, 4 Duer, 431. s King v. Orser, 4 Duer,- 431. "Edgerton v. Ross, 6 Abb.; 189; 'Foster v. Pettibone, 20 Barb., 350. King V. Orser, supra. IQQ PROVISIONAL REMEDIES. [Ch. H. 6. On receiving sucli affidavit, the sheriff should at once notify the plaintiff of the fact of such claim, and demand a bond of indemnity from the plaintiff to protect him against such claim. Should the plaintiff neglect or refuse to furnish the proper bond, the sheriff should return the property to the defendant, or person from whom it was taken.' (See form ISo. 50). 7. But if the plaintiff still desires the possession of the property, in hostility to the claim of such third person, he must, without delay, execute and deliver to the sheriff, a bond of indemnity as provided by the above section. Such bond must be accompanied by the affidavit required in such section, but it need not be approved by the sheriff, nor need the sureties justify ; but it should be proved or acknowledged in like manner as deeds of real estate.^ The sheriff should allow the plaintiff a reasonable time to furnish the undertaking, and may retain the property for that purpose. (See form No. 51). 8. " The sheriff shall file the notice and affidavit, with his proceedings thereon with the clerk of the court in which the action is pending within twenty days after tak- ing the property mentioned therein." * 9. The sheriff's reurn should show truly and fally what has been done, where, when and from whom the property was taken, in what manner and upon whom the copies were served, and, also, what has been done with, or what proceedings have been had as to the property, since it was taken by the sheriff. In making such return the sheriff is acting ministerially and is liable for any error therein.* 10. Where the proceedings of the plaintiff are irregular, or where the property has been improperly taken out of ' Edgerton v. Rosa, 6 Abb., 189. < Houghton v. Swarthout, 1 Denio, 'Rule 6. 589 ; Wiokware v. Bryan, 11 Wend., sCode, ? 217. 545. §VI.] CLAIM AND DELIVERY. 191 the hands of the person in possession, such person may- move to set aside' the proceedings, and for a return of the property. Thus where the plaintiff alleged in his affidavit that the property was not taken for a tax, assessment or fine pursuant to a statute, a motion to set aside the pro- ceedings was granted upon its appearing, by affidavits on the part of the defendant, that the defendant was a deputy collector of internal revenues for the United States, and that the property was taken for an assessment or tax under the Internal Revenue act.^ So, where the proceed- ings were improperly instituted, they will be set aside ; as where the only remedy of the plaintiff is by proceeding under section 216 of the Code, and he has commenced proceedings for the claim and delivery of the property,' So, where plaintiff had the defendant arrested in the action for removing or concealing the property, and after- wards instituted proceedings to get possession of the pro- perty, the court set aside the latter proceedings, and directed a return of the property.' (See form IlTo. 52). 11. But on motion to set aside the proceedings for de- fects in the affidavit, the court may, in a proper case, allow an amendment ; and it may also allow additional affidavits to be read in support of the original one.^ If, however, the defendant has put in a general appearance in the action, or if he has procured a return to him of the property, he will be held to have waived all irregularities in the plaint- iff's affidavit.^ 12. The plaintiff cannot discontinue the action without providing for a return of the property to the defendant, as well as for the payment of costs. If the plaintiff neglect to proceed before issue, the defendant may, under section ' O'Reilly v. Good, 42 Barb., 521 ; oases cited ; Clickman v. Clickman, 18 Abb., 106. 3 How., 366. 'King V. Orser, 4 Duer, 431. 6 Id. ; Hyde v. Patterson, 1 Abb., . schappelv. Skinner, 6 How., 838. 248; Wis. Ins. Co. v. Hobb, 22 How., iDepew T. Leal, 2 Abb., 136, and 49. 192 PROVISIONAL REMEDIES. [Oh. II. 274 of tlie Code, have judgment for a dismissal of tlie complaint, with costs, and for a return of the property ; or if he neglects to proceed after issue, the defendant may notice the cause for trial under section 258, and have a dismissal, verdict, or judgment as the case may require. An order that the complaint be dismissed, unless the plaintr, iff bring the cause to trial within a specified time, is improper in such a case.^ 13. An action for the recovery of specific personal pro- perty wrongfully detained, against a sole defendant, wholly abates if the defendant dies before verdict or judgment ; and the court has no power in such case to order the action to be continued against the personal representatives of the defendant,^ 14. It is provided, as we have already seen, that the defendant in this action may be arrested and held to bail, where the property for the recovery of which the action is brought, has been removed, concealed, or disposed of so that it cannot be found or taken by the sherifl[j and with . the intent that it should not be so found or taken, .or with the intent to deprive the plaintiff of the benefit thereof.' 15. The property must not only be concealed but suc- cessfully concealed; or if disposed of, must be in such hands that the sheriff' cannot lawfully take it ; * and it must have been concealed or disposed of with a fraudulent intent. So that whpn the property has been disposed of in the ordinary course of business, no arrest can be made.° The plaintiff cannot have the defendant arrested and have a delivery of the property also. So, that if the property be found after the arrest, the plaintiff" cannot have posses- sion thereof 1 Wilson T. Wheeler, 6 How., 49; *MulYey t. Dayison, 8 How., 112. 1 Code B. (N. S.), 402. sReimer v. Nagel, 1 E. D. Smith, 2 Hopkins v. Adams, 6 Duer, 685 ; 258. 5 Abb., 351. "Chappel v. Skinner, 6 How. 338. 8 Code, g 179, sub 3. §VI.] CLAIM AND DELIVERY. 193 16. Where the defendant has been arrested, he will not be discharged either because the plaintiff's sureties have failed to justify ; nor because it appeared that such sureties were insufficient or insolvent. If the security is insuffi- cient, he must look to the sheriff.^ A female is not liable to arrest in an action of this kind, the third subdivision of section 179 of the Code being governed by the latter part of subdivision five." iManley v. Patterson, 3 Code R., 'See ante, chap, i, seo. vi, pi. 12. 89. CHAPTER III. INJUNCTIONS. Section I. Nature and purposes, and by whom granted. II. When granted. General principles. III. Trespass and waste. rv. Easements and servitudes. V. Nuisances. VI. Covenants relating to real .property. VII. Boads, rail roads and bridges. Vm. Taxes and assessments. IX. Contracts. X. Patents, copyrights, trade marks and signs. XI. Negotiable instruments, deeds and stocks. XII. Restraining suits and judgments. XIII. In creditor's suits. XIV. Corporations. XV. Partners, public officers and other parties. XVI. Restraining acts pending litigation. XVII. When granted; the affidavit. XVIII. Order to show cause ; after answer ; against corporations. XIX. Security. XX. Form, service of, and obedience due injunction. XXI. Dissolving and modifying. XXII. Assessment of damages. 196 PROVISIONAL REMEDIES. [CH.m. SECTION" I. t NATURE AND PURPOSES, AND BY WHOM GRANTED. 1. §218oftIieCoae. 3. Definition and nature. 3. In wliat cases applied. 4. FroTisional 01 peipetoal. 5. Preliminary or temporary. 6. A preventive remedy. t. Thewrltofinjnnction. 8. & ^a?^ application— dotice. 9. Order, by whom granted. 10. Against corporations and state officers. 11. Only issnes against parties. 12. And agents and servants. 13. DfFect of inclnding third persons. 14. Granted only to the plaintiff. 15. Never retroactive. ' 1. " The writ of injunction as a provisional remedy, is abolished, and an injunction by order is substituted there- for. The order may be made by the court in which the action is brought, or by a judge thereof, or by a county judge, in the cases provided in the next section ; and when made by a judge, may be enforced as the order of the court." ^ This section has remained unaltered since its passage in 1848. 2. An injunction is a prohibitory writ or order restrain- ing a person from doing, or suffering to be done, any act which appears to be against equity and conscience* It has always been the most efficient instrument for carrying into effect the equitable jurisdiction of a court of chan- cery, operating with great and salutary force in prevent- ing many public and private injuries, for which no other equally effective and comprehensive remedy exists ; and although the writ of injunction, as used in chancery pro- ceedings, is abolished by the Code, as a provisional reme- dy, and an injunction by order substituted therefor, yet the nature of this remedy remains substantially the same. 1 Code, g 218. §1.]' INJUNCTIONS. 197 Noi^ has it been materially affected by the attempt in the Code, to sweep away all distinctions between legal and equitable remedies, and to iceduce all actions to one homo- geneous form ; for the continuance of equity, as a distiiict branch of jurisprudence, and the application of equitable as well as legal remedies has been repeatedly recognized by the courts, under the Code. 3. Aihongi the various cases in which this remedy may be applied, are the following : To stay proceedings in courts of law, courts of admiralty, or in some other court of equity ; tO' restrain the indorsement or negotia- tion of notes and bills of exchange, the sale of lands, the Sailing of ships, the transfer of stock or the alienation of a specific chattel; to prevent the wasting of assets or other property pending litigation ; to restrain a trustee from assigning the legal estate, from setting up a term of yearsj or assignees from making a dividend; to restrain the commission of every species of waste to houses, mines, timber^ ' or any other part of an inheritance ; to suppress the continuance of public or private nuisance ; to prevent the infringement of patents, the publication of' private letters, and the violation of copyright, either by publica- tion or theatrical representation, and to check the pro- gress of vexatious litigation. These, however, are far from being all the instances in which this species of equi- table interposition is obtained, for in that almost illimit- able variety of cases in which a plaintiff is entitled to equitable relief; if that relief consists in restraining the compaission or continuance of some act of the defendant, a court of equity administers it by means of an injunc- tion.^ 4. Injunctions are either ^ovisimal or perpetual; the former issuing during the pendency of the action, either » See 1 Waterman's Eden, 10. J98 PEOVISIONAL EEMBDIES. [Ch. m at its commencement or at any time afterwards before judgment, while the latter are awarded by the decree or judgment after a final hearing upon the merits.^ It is to provisional injunctions only that this chapter applies. The rules and practice governing perpetual injunctions are the same as before the Code.^ 5. Provisional injunctions are either preliminary, or temporary ; but the distinction does not seem to be of any practical importance, the difference consisting mainly in this, that while a preliminary general injunction will not be granted without notice, after the defendant has ap- peared, or at least after he shall have answered ; yet, in order to prevent great or irreparable injury, an order to show cause will be granted, with a temporary injunction, restraining the defendant in the mean time.* 6. The object of the ;perjpetual injunction may be either preventive and protective, or restrictive and mandatory. It may not only command a party to refrain from doing an act, but may also order him, directly or indirectly to per- form some act ; * but the provisional injunction is wholly a preventive remedy. Its office is to restrain the acts of the defendant in the suit, and not to compel him to undo what he has already done, or to restore any thing further than results from such restraint.* 7. The writ of injunction is abolished only as a provi- sional remedy. This chapter of the Code has no applica- tion to final or perpetual injunctions, and they are consequently governed by the former practice, except as modified by other parts of the Code. But inasmuch as the final or perpetual injunction is always granted by decree or 1 1 Barb. Ch. Pr. 608 ; Wil. Eq. s Code, § § 221, 223 ; Van Sant- Pr. 841. Toort Eq. Pr., 338. 2 N. Y. Life Ins. Co. v. Superyi- < Howe v. Searing, 19 How., 14 ; sors of N. Y., 4 Duer, 200; Reubens 1 Barb. Cli. Pr., 607. V. Joel, 13 N. Y. K., 488. s Ward v. Kelsey, 14 Abb., 106 ; Hilliard on Injunctions, p. 6. § I.] INJUNCTIONS. 199 judgmeut, and the writ was never needed, save as a provi- sional remedy, it follows, that the writ of injunction is, in effect, abolished. 8. The application for an injunction at the commence- ment of the suit is, of course, ex parte, and is frequently made under such circumstances as demand the immediate interference of the court. But although the court has power to grant the order at once and without notice, yet, in cases of importance or doubt, it usually provides for giving the defendant notice by means of an order to show cause why such injunction should not be allowed, restraining the defendant in the mean time and until the hearing of the motion.* After the defendant has an- swered in the action, an injunction can only be allowed after due notice;^ and the rule was the same before the Code, except that the defendant was entitled to notice after an appearance, instead of after answer.' (See form H"o. 54). 9. In the ordinary cases, the order may be made either by the court, in which the action is brought, or by a judge thereof, or by a county judge. When granted by the court, it is generally by the court at special term,* although it may be granted by the supreme court at general term.* When granted by a judge of the court in which the action is brought, it may be made in any part of the state, and may be enforced, in all things, as an order of the court. When granted by a county judge, it must be by the judge of the county where the action is triable, that is, where the place of trial is laid in the complaint, or by the county judge of the county in which the attorney for the moving party resides ; and in any case, it can only be granted ex 1 Code, I 223 ; Van Sant., Eq. Pr., * Rule 40. 120; Androvettev. Bowue, 15 How., 6 Drake v. Hud; Eiv. R. R. Co., 2 75. Code R., 67 ; and see Town of Guil- 2Code, g221. ford v. Cornell, 4 Abb., 220; 18 s 1 Barb. Ch. Pr., 610. Barb., 615 ; 8 Kernan, 143. 200 PROVISIONAL REMEDIES. [Ch. HL parte, as a county judge has no power to hear a motion on notice, in an action pending in the supreme court.^ A judge related to either party by affinity, within the degree which would exclude ' him as a juror, cannot grant an injunction in an action between the parties, any more than he can do any other judicial act in a case where he is related.^ 10. But an injunction to suspend thfe general and ordi- nary business of a corporation can only be granted by the court or a judge thereof; * and an injunction to restrain a board' of state officers, or persons employed by them, from executing any duty devolved upon them by law, can be granted only by a general term of the supreme court; sitting' in the district in which the board of officers is located, or where such duty is required to be performed.* 11. It is a general rule, that injunctions can not be issued against persons who are not parties to the suit,' But the rule is subject to some exceptions. Thus, the court has power to grant an injunction against the ser- vants and agents of the party restrained, or to punish a violation of an injunction, on the part of such servants or agents, where knowledge of the injunction is brought home to them.* So where ever the court has power to make an order, in consequence of having jurisdiction over the subject matter of the suit or proceeding, and which a person is boUnd to obey in consequence of his being actu- ally or constructively a party to the suit, it may enforce obedience to such order by the process of injunction.' Accordingly, if there has been a decree for the administra- i Code, I ? 401, sub 3, 403 ; Mer- = Fellows v. Fellows, 4 John. Ch. rit V. Slocum, 3 How., 309 ; Rogers T. E. 25; Watson v. Fuller, 9 How., McElhone, 12 Abb., 292; 20 How., 425; see Edmonstone v. MoLoud, 441. 19 BarB., 356. 2 N. Y. & N. Haven E. R. v. Sohuy- « Vide People v. Sturtevant, 5 ler, 28 How., 187. Seld., 263 ; aff. same case, 1 Duer, ' Code, § 224. 512. * « Laws 1851, chap. 488, p. 920. » Matter of Hemiup, 2 Paige, 316. § I.] INJUNCTIONS. 201 tion of assets, the court will restrain a creditor who is not a party in the suit, from proceeding, at law, against the testator's or intestate's estate, for his own individual debt. This it does, because it considers the decree it has made as a, proceeding in rem in the nature of a judgment for all the creditors, and having taken the fund into its own hands, it will administer it equitably and not permit executors to be pursued at law. And this power is not con- fined to the executor or administrator only, but the in- junction will also be granted on the application of the heir, or of another creditor, or of a common legatee, or even, as it seems, of a residuary legatee. There is no instance, however, in which a creditor at law has ever been stopped, unless there was a decree, under which he could come in ; for until there is such a decree, the creditor ought not to be deprived of a prior judgment. But when the decree has been made, from that moment it must be preferred if it precedes the judgment in point of time, and all the creditors must be paid according to their priority as they stand.^ 12. To make a person, who is not a party to the action or named in the injunction order, liable for disobeying such injunction, on the sole ground that he is an agent or servant, the person should bear such a relation to the defendant as will enable the latter to control the action of the person sought to be charged, in regard to the subject matter as to which the injunction issues; this is but reasonable. The remedy by injunction is extraordinary, and should only be resorted to when there is a clear right, as there is much greater reason to apprehend that irre- parable injury will be produced by its too frequent use, rather than from the too frequent denial of this remedy.^ Lessees in good faith of a water power, who are not 1,1 Barb. Ch. Pr., 621, and oases ^Batterman v. Finn, 32 How., 501. cited. 14 202 PROVISIONAL REMEDIES. [Ch. HI. ipade parties to the action, are not liable in damages for disobeying an injunction against their lessor, to restrain him, his servants and agents, from an injurious flow of water upon the plaintiff's premises, upon the ground that they act as the servants and agents of the defendant, the lessor.* 13. "Where an injunction order includes persons who are neither parties, nor servants of parties, to the pro- ceeding ill which it issues, it is nevertheless valid as to parties to the proceeding ; ^ and may even operate as a sufficient notice to such third persons as are included.* 14. An injunction is usually granted only on behalf of the plaintiff in the action ; but if the complaint shall show upon its face that the defendant is entitled to that remedy, or if the defendant shows himself entitled to affirmative relief, it may be granted on behalf of such defendant. The usual course, however, is for the defendant to com- mence a cross action, and to obtain his injunction in that suit.* 15. An injunction is never retroactive in its effect, nor does it operate upon proceedings subsequent to its allow- ance, but before its service.® But actual knowledge or information of an injunction binds a party to obedience until the plaintiff has had a reasonable time to serve such injunction.® 1 Batterman v. Finn, 32 How., 501. 12 Aljt)., 171 ; 20 How., 358 ; Rams- 2 Tradesman's Bank v. Merritt, 1 dell v. Craighill, 9 Ham., 197. Paige, 302. ' ^People v. Sturtevant, 9 N. T. E., ' Sage V. Quay, Clark, 348. 278 ; Mayor of N. Y. v. Conover, 5 *Thorsl)y v. Mills, ICodeE., 83; Abb., 257; Hull t. Thomas, 3 Edw. Waller v. Harris, 7 Paige, 173. Ch. E., 238. 6 People V. Albany & N. E. E. Co., §11.] INJUNCTIONS. 203 SECTION" n. WHEK GRANTED. GENERAL PRINCIPLES. 1. § 219 of the Code. 2. Power of the court not abrldgei 8. Whree classes of injunctlonB. 4. Discretion of the court In granting. 6. Shonld be granted with great cantion. 6. The right mnst be clear. • 7. Exceptions to the role. 9. Eight to relief must appear in the com- plaint. 9. Must be specially prayed for. 10. Bzcept in some cases. 11. Injury must be inevitable and continu- ing. 12. No remedy at law. 18. Nor by special proceedings. 14. Plaintiff mnst be free from fault. IB. Judge to decide motion for order with- in twenty days. 1. " 1. Where it shall appear by the complaint that the plaintiff is entitled to the relief demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff; or, 2d. When, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, or procuring or suffering some act to be done, in violation of the plaintiff's rights respecting the subject of the action, and tending to render the judgment ineffectual, a temporary injunction may be granted to restrain such act. 3. And where, during the pendency of an action, it shall appear by aflSdavit that the defendant threatens, or is about to remove, or dispose of his property, with intent to defraud his creditors, a tem- porary injunction maybe granted to restrain such removal or disposition."^ The first clause of this section was slightly changed in 1849, and the third clause was then added, since which time it has been unchanged." 'Code, § 219. adjectives "great and irreparable" 2 In the first clause in 1848, the preceded " injury." 204 PEOVISIONAL EEMBDIBS. [Ch. HI. 2. This section bears upon its face unmistakable evi- dence of a discrimination Dy tbe legislature in its enact- ment between actions at law and suits in equity. The first and second branches of the section plainly apply to the latter class of actions exclusively, while the third is clearly intended to apply to actions at law, and is, there- fore, an obvious enlargement of the power of the court to enjoin. The first two clauses are, in substance, a mere embodiment of the established equity principles as they existed before the Gode, and cannot be construed to create n.ew rights of action, or to give new remedies ; nor are they in any sense an abridgment of the former jurisdic- tion of the court. The provisional injunction allowed by this section may be granted in every case where a tempo- rary injunction would have been proper under the former practice.^ 3. The injunctions obtainable under this section may be divided into three general classes, which will, as far as is practicable, be treated of in the following order : 1. Injunc- tions to restrain, pending the suit, some act, againstwhich a perpetual injunction is sought in the action itself. 2. In- junctions to restrain the defendant in an action from doing some act in violation of the plaintiff's rights, respecting ■ the subject of such action, and tending to make the judg- ment ineffectual. 3. Injunctions to restrain the defendant from disposing of his property to defraud his creditors. 4. The language of the section is permissive and not im- perative, and the granting or refusing of a preliminary injunction rests in the sound discretion of the court, to be exercised according to the circumstances of each case. It should not be granted on light grounds nor in doubtful cases. Where the right is not clear, or the danger great, or the mischief irreparable, it should be withheld until 1 Eeubens t. Joel, 13 N. T. R. 488; Merrill v. Thompson, 3 E. D. Smith, 284. I II.] INJUNCTIONS. 205 the rights of the parties are ascertained and settled upon a final hearing.^ 5. There are many cases in which the plaintiff may be entitled to a perpetual injunction on the hearing, when it would be manifestly improper to grant an injunction in limine,^ even wheie the plaintiff brings himself within the strict letter of the section. Some regard should be had to the nature and extent of the injury which the plaintiff would suffer if withheld; and also as to its conse- quences to the defendant, if granted ; ' and, in no case, should the remedy be disproportionate to the inj ury ap- prehended.* 6. As a general rule, clear legal, or equitable right, free from reasonable doubt, must be satisfactorily shown to authorize a preliminary injunction.^ It is an appeal to the extraordinary power of the court, and the plaintiff is bound to make out a case showing a clear necessity for its exercise ; ^ and especially is this the case, where it ap- pears that the defendant is responsible to answer any claim of the plaintiff for damages.' It is the duty of the court rather to protect acknowledged rights than to establish new and doubtful ones, 7. But the rule is not without qualification, for when the acts of the defendant in relation to the subject matter of the suit may be attended with great and irreparable in- jury, or when the defendant is irresponsible, an injunction may be so far granted as to restrain injury to the subject 1 Bruce V. Del. & Hud. Canal Co., *,Gallatm v. Oriental Bank, 16 19 Barb., 371 ; Gamee v. Odell, 13 How., 253. Abb., 264; Sixth Av. R. R. Co. v. 6 City of N. Y. v. Mapes, 6 John. Ketr, 28 How., 382; Redfield v. Ch. R., 46; Olmsted v. Loomis, 6 Middleton, TBoaw., 649 ; Roberts v. Barb., 152. Matthews, 18 Abb., 199. « Auburn, etc., v. Douglass, 12 2 N. Y. Printing Bstab. v. Fitch, Barb., 556 ; Dubois t. Budding, 15 1 Paige, 98. Abb., 445. 8 Bruce T. Del. & Hud. Canal Co., ' Stevenaon v. Fayerweather, 21 and cases cited above. How., 449; Powers v. Algers, 13 Abb., 284. 206 PROVISIONAL REMEDIES. [Ch-IH. matter in question, even though the plaintiff's right is not clear.^ Thus, the commission of waste of every kind, such as the cutting of timber, pulling down of houses, working of mines, and the like, is now a frequent ground for exercising the jurisdiction of a court of equity, even against persons acting under a claim of right, by restrain- ing such waste until the rights of the parties can be deter- mined ; and the interference by injunction in these cases is placed upon the ground of preventing irreparable mis- chief, and the destruction of the substance of the inherit- ance.^ So, where the defendant attempted to build a party- wall on the land of the plaintiff, under a contract or agreement which was in dispute, and it appeared that such act of the defendant would work irreparable injury to the plaintiff, the court granted an injunction, until the rights of the parties could be settled.* 8. And not only must a clear prima facie right to the relief sought, be showu, but if such relief is sought under the first clause of the section, such right must appear upon the face of the complaint itself, by, all necessary and proper averments; and it must likewise appear therein that the plaintiff is entitled to a final injunction as against the defendant sought to be enjoined ; and such injunction must be prayed for in due form.* 9. A preliminary injunction will not ordinarily be granted under a prayer for general relief, unless the necessity for it grows out of the proceedings, and not from the original situation of the parties.' 10. This rule, though true in general, is not in all cases 1 Spear v. Cutter, 5 Barb., 486 ; 'Eector, etc., of the Churehi of the 4 How., 176; Mallory T. Norton, 21 Holy Innocents v. Keeoh, 5 Bosw., Barb., 424; Brinton t. Wood, 19 691. How., 162; Eeotor of Church of * Corning v. Troy Iron & Nail Fact., Holy Innocents V. Keech, 5 Bosw., 6 How., 89; Hulce v. Thompson, 8 691. How., 475; Ward t. Dewey, 7 How., 'Livingston v. Livingston, 6 John. ' 17; Smith v. Eeno, 6 How., 124; Che- Ch., 497, and cases cited; Spear v. mical Bank v. Mayor, 12 How., 476. Cutter, Bupra. ^l Barb. Ch. Pr., 615. §11.] INJUNCTIONS. 207 rigorously applied. Where it appears by the coniplaint that the plaintiff is entitled to the principal relief de- manded, and it also appears that the defendant' threatens to do an act which, if done during the litigation, would manifestly operate injuriously upon the plaintiff's rights ; and the injury is both substantial and inevitable, the defendant may be restrained, although such restraint may form no part of the specific relief prayed in the action.* Thus, an injunction is sometimes granted in a creditor's bill where a perpetual injunction is no part of the final decree ; or in a mortgage foreclosure to restrain the com- mission of waste pending the litigation, where the mort- gaged premises are an inadequate security. So, an injunction may be granted to prevent the husband from wasting his estate, to cut off the wife's alimony pending a divorce suit, although such injunction is no part of the final relief prayed for.'' 11. From the nature of an injunction as a preventive remedy it necessarily results, that, in order to justify its application the injury in question must be likely to occur without it, and it must also appear that the mischief apprehended is not only real and substantial, but continuing; for no matter how clear the original right may be, if the trespass be complete and perfect, the court will not inter- fere.^ Nor will the court, as a general rule, restrain the completion of works from which injury is merely possible, but is not shown to be certain and inevitable.* 12. Where a party has a remedy at law, he cannot come into equity, unless, from circumstances not within his control, he CQuld not avail himself of his legal remedy; or where the plaintiff 's rights cannot be protected or en- iVermilyeav.Vfermilyea, 14How., 604; Perkins v. Warren, 6 How., 470. 348; Maripose Co. t. Garrison,' 26 2Kose V. Rose, 11 Paige, 163; How., 448. Vermilyea v. Vemilyea, 14 How., *Com. of Highways v. Albany N. 470. E. K. Co., 8 How.i 70; Harrison v. 3 Moreland v. Richardson, 22 Beav., Newton, 9 Leg. Obs., 347. 208 PKOVISIONAl REMEDIES. [Ch. HI. forced at law, except by numerous and expensive suits, equity may interpose to giv? the party redress by injunc- tion or specific performance, but in such cases, generally, the plaintiff must first establish his right at law before a court of equity will interfere.^ The general rule, or prin- ciple, undoubtedly, is that equity will not enjoin the commission of acts injurious to the plaintiff, if compensa- tion can be recovered at law ; ^ nor will it restrain by injunction the commission of an ordinary trespass or tort.* The threatened injury or grievance must be irreparable, or such as cannot be compensated in damages at law.*- Thus, a purchaser of land, who has a full and complete remedy at law on the covenants in his deed, cannot have an injunction against his vendor to restrain him from col- lecting the purchase money ; ° though a person who does not reside, and has no property in the state, may be restrained from collecting a note given for land to which he had no title, notwithstanding the remedy at law on a covenant of warranty.^ 13. Nor is the issuing of an injunction proper where an' adequate reinedy is given to the plaintiff by special pro- ceedings, or by certiorari, quo warranto, or other analogous remedy ; ' nor where it is not essential to secure the party's rights, and the object can be effected by filing a notice of lis pendens.^ 14. An application to a court of equity for the exercise of its prohibitory powers, must come recommended by the dictates of conscience, and be sanctioned by the clearest iPenn. Coal Co. v. Del. & Hud. , « Green v. Campbell, 2 Jones Eq., Canal Co., 31 N. Y. E., 91. 446. 2 Barnes v. McAllister, 18 How., 'Kelsey v. King, 32 Barb., 410; 534; Baloom t. Julien, 22 How., 348. Hyatt v. Bates, 35 Barb., 308 ; Hartt 'Sixth At. R. R. Co. v. Kerr, 28 v. HarYey, 32 Barb., 55; Handley v. How., 382, and oases cited. Mayor of N. Y., 16 How., 228. < Sixth Av. R. R. Co. v. Kerr, » Mills v. Mills, 21 How., 437; supra. Stevenson y. Fayerweather, 21 How., ^Wilkins t. Hogue, 2 Jones Eq., 449. 479. § n.] INJUNCTIONS. 209 principles of justice. It is the golden rule of the law, that "he who seeks equity must do equity." So, he who seeks an injunction must be himself free from wrong or fauit.i 15. It is the duty of the judge before whom a motion for an injunction order is made, to render and make known his decision of such motion within twenty days after the day on which it is submitted to him for his de- cision.^ I Clayton V. Tarrington, 33 Barb., 'Code, §401, svib 8, amend. o£ 144. 1867. 210 PROVISIONAL REMEDIES. [Oh. IIL SECTioiir m. TRESPASS AND WASTE. ^ 1. Trespass. S. Strong case must be presented. 3. Wlen equity will interfere. 4. Plaintiffs right must be clear. 5. Injury must be certain and inevitable. 6. Waste. 1. When defendant is in p.ossession. 8. Action of waste abolished. 9. Who may have injunction against waste. 10. Against whom injunction granted. 11. Subjects of OTOsfe. 12. Waste in timber. 13. WTmt acts tenants may do. 14. Not waste to remove fixtures not at- tached to freehold. 1. An injunction will not be granted to restrain the commission of an ordinary tort or trespass ; but the plaintiff will be left to his remedy at law.^ There are, however, cases of trespass where an injunction will be awarded, as where the trespasser is insolvent, or the in- jury irreparable and destructive to the very nature and substance of the plaintiff's estate. There must be some- thing particular or special in the case, for which, either from difficulty of proof, or some other cause, the party cannot obtain adequate satisfaction in the ordinary course of law.^ 2. The ancient doctrine of the courts was not to inter- fere by injunction in any case of trespass, but to leave the party to his legal remedy; but the modern practice is more liberal ; nevertheless, it is essential that a strong case of destruction or irreparable mischief be presented.* • S, While, for a mere naked trespass, when the remedy at law is full and adequate, equity will not interpose ; yet, 1 Sixth At. R. R. Co. f. Kerr, 28 How., 382 ; Marshall v. Peters, 12 How., 218. 2 Livingston v. Livingston 6 Jolin. Ch., 497 ; N. Y. Print. Es. v. Fitcli, 1 Paige, 97 ; Jerome v. Ross, 7 John. Ch., 315 ; Hart v. Mayor of Albany, 3 Paige, 213 ; Livingston v. Hud. K. R. Co., 3 Code R., 143. ^ Livingston v. Livingston, supra. § m.] INJUNCTIONS. 211 for the purposes of quieting a possession, or preventing a multiplicity of actions, or where the value of the inherit- ance is in jeopardy, or irreparable mischief is threatened in relation either to mines, quarries or woodland, the court will interfere by injunction even against a person acting under a claim of right. And the injury may be irreparable, either from the nature of the injury itself or from the want of responsibility in the person commit- ting it.* * 4. When the right of a party is doubtful, the court will seldom grant an injunction to prevent an illegal inter- ference with the same, until the right, is established at law. To warrant an injunction to prevent a mere trespass, the party invoking the aid of the court must have been in the previous undisturbed enjoyment of the property, under claim of right, or relief at law must be unattainable, from the irresponsibility of the defendant or otherwise.^ "Where the defendant was accustomed to land his steam boat at the dock of the plaintiff, as no serious damages were to be apprehended from the continuance of the act, the court refused to grant an injunction in limine.^ So, for cutting and carrying away timber, an injunction will not be granted.* So, where the plaintiff charged that one of the defendants had assumed to convey plaintiff's land to the other, and sought to restrain them from committing trespass thereon, the application was denied.' But where the plaintiff's title was disputed on the sole ground that he had dedicated the land to the public use, and, under such claim of right, the defendant had repeatedly thrown down fences erected by the plaintiffj and traveled over the iWillard'sEq. Jur., 382, and oases ^N. Y. Printing, etc., v. Fitoh, 1 there cited. Paige 91. 2 Hart V. Mayor of Albany, 3 Paige, * Stevens v. Beekman, IJohn. Ch., 214; Storm v. Mann, 4 John. Ch., 318; Johnson v. White, 11 Barb., 21 ; Partridge v. Menck, 2 Barb. Ch., 194. 101 ; Van Bergen v. Van Bergen, 3 ^ Van Rennselaer v. Griswold, 4 John. Ch., 282. Ch. Sent., 1; 3 N. Y. Leg. Obs., 94. 212 PROVISIONAL REMEDIES. [Ch. HI. plaintiff's land, an injunction was granted.^ So, in a case of sufficient importance, an injunction will be awarded to restrain the defendant from cutting trees standing on the line between the property of the plaintiff and the de- fendant.^ 5. An injunction to restrain an apprehended trespass is never allowed, except under special circumstances ; the injury must be shown to be certain and inevitable without it.^ Nor will the court interfere where the trespass is complete and perfect.* 6. "Waste is a familiar ground for injunction, and is per- haps an injury better entitled to be termed irremediable than any other. ° Tet, a court of equity will generally interfere, only when the plaintiff has no remedy at law, or a discovery is necessary, or there is some other ground for equitably interference.' 7i It was formerly held that an injunction to stay waste would never be granted against a defendant in possession, and claiming by title adverse to that of the plaintiff;' but in latter cases an injunction is allowed to restrain injury to land, even where the defendant is in possession, and the title in dispute, if the waste or trespass will be at- tended with irreparable mischief, or if, from the irresponsi- bility of the defendant or otherwise, the plaintiff can obtain no relief at law.* 8. The action of waste is abolished by the Code, but the wrongs remediable by that action are, like other wrongs, subjects of action, in which there may be judg- > Carpenter v. Gwynn, 35 Barb., ^i^alker v. Sherman, 20 Wend,, 395. 638. 2 Relyea v. Beaver, 34 Barb., 547. « Winship v. Pitts, 3 Paige, 259. 'Mayorof N.T.T.Con.0Ter,'5Abb., 'Lansing v. North River Steam 171; Com. of Highways v. Albany Boat Co., 7 John. Ch., 164; Storm v. N. R. E. Co., 8 How., 70. Mann, 4 John. Ch., 21. * Perkins v. Warren, 6 How., 348 ; s Spear v. Cutter, 5 Barb., 486 ; 2 Mariposa Co. V. Garrison, 26 How., Code, 100; Cornelius v. Post, 1 448. Stookt.,196. § III.] INJUNCTIONS. 213' ment for damages, forfeiture of the estate of the party- offending, and eviction from the premises.^ There are, also, statutary remedies for staying waste, pending an action by an order of the saime court ; providing that in all cases after the commencement of an action for the recovery of land, or for the recovery of the possession of land, if the defendant shall commit waste, the court may enjoin the commission of any further wastes, and enforce the order as a court of equity enforces an injunction.^ 9. Any one seized in remainder or reversion may have an injunction to restrain waste or injury to the inheritance, notwithstanding any intervening estate for life or years.* Bo, an intermediate tenant for life may enjoin the tenant for years against waste ; * so a second tenant for life may restrain the first tenant for life.® So, any remainder man, who is» injured, may maintain a bill in equity against waste ; though an action at law can be maintained only by the owner of the first estate of inheritance.* A land- lord may have an injunction, unless restrained by an express agreement; and, even when the lease contains the clause without impeachment of waste, which takes away the remedy at law, equity will, in many cases, restrain waste ; as where this power is exercised in an unreason- able manner and against conscience.^ So, a ground land- lord may enjoin an under lessee.^ An injunction to stay waste between tenants in common will be granted in special cases, as where the defendant is insolvent, or where the waste is destructive' to the estate, and not within, the usual and legitimate exercise of its enjoyment; or where one tenant in common occupies as tenant under 'Code, ? 450- « Dennett t. Dennett, 43 N. H., 2 2 R. S., 333. 503. '1 K,. S., 750, §8; see Van Deusen 'Kane v. Vanderburgh,! John. V. Young, 29 N. Y. R., 9. Ch. R., 11 ; Aston v. Aston, 1 Ves., < Roswell's case, 1 RoUe Abr., 377. 264. sperot V. Perot, 3 Atkins, 94. sparrant t. Lowell, 3 Atk., 723. 214 PBOVISIONAIi REMEDIES. [Ch. m. another.* So, a mortgagee, either legal or equitable, may have an injunction to stay waste, especially where the security is insufficient.^ So, a purchaser of part of a mortgaged estate may have an injunction, against waste by an assignee for benefit of creditors, of the mortgagor of another part ; standing in the light of a surety for the mortgaged debt.^ So, a bill to restrain wast^ may be filed in behalf of an infant en venire sa mere,* 10., By the revised statutes, guardians, tenants by the curtesy, or in dower, tenants for a term of years, or the assigns of any such tenant, are made liable to an action of waste." By the common law the assignee of the tenant by the curtesy could not be sued in waste for want of privity of estate.* It is the duty of a tenant to treat .the land in a husband like manner according to the custom of the country.' So an injunction will be granted against a mortgagor in possession to stay waste where it is made to appear that the security is insufficient.^ An injunction to stay waste between tenants in common will be sus- tained where the defendant is insolvent ; or where the waste is destructive of the estate and not within the usual and legitimate exercise of its enjoyment ; or where one tenant in common occupies as tenant under another. !N^or can a tenant for life or for years justify waste under a parol license, and the fact that the license was on con- dition that he should clear and seed the land on which he cut timber does not render the parol license admis- sible.' Every tenant for life, unless restrained by cove- 12 R. S., 334, ? 3; Hawley v. ^ Bates v. Sohroeder, 13 John. B., Clowes, 2 John. Ch. R., 122 ; Will. 263. Eq., 380. , 'Onslow v. , 16 Ves., 173 ; 2 Brady v. Waldron, 2 John. Ch., Kanev. Vanderhergh, 1 John. Ch.,11. 148; Ensign v. Colburn, 11 Paige, ^ Brady v. Waldron, 2 John. Ch., 503. 148 ; Robinson t. Preswiok, 3Edw., 8 Johnson V. White, 11 Barb., 194; 246 ; Ensign t. Colburn, 11 Paige, *Eden on Inj., 123, and oases 503. cited. ° McGregor v. Brown, 10 N. T. R., 6 2 R. S., 334. 114. § IH] INJUNCTIONS. 215 nantjhas a right to hoitse^bote,Jire-bote,phughboteaTLAfenc6- bote, that is, a right to take from the premises such wood as is necessary for fuel, for fences and for agricultural purposes.^ 11. The subjects of waste are mainly houses, gardens, orchards^ lands, woods, or any other thing belonging to a tenement.^ Thus, a tenant has no right to pull down valuable buildings, or t© make improvemepts, or altera- tions which will materially and permanently change the nature of the property, so as to render it impossible for him to surrender the same premises substantially at the expiration of his term ; ' but it is not waste to erect a new edifice if it can be done without destroying or materially injuring the buildings or other improvements already existing thereon.* 12. Waste in timber consists in cutting down, lopping, topping, or doing any act whereby it may be brought to decay ; ^ and the cutting of any sort of trees may be waste, whether they be timber, ornamental, or fruit trees, or whether they were planted for shade and ornament, or grew naturally in the position that renders them thus valuable to the owner.^ "With regard to what shall be deemed ornamental, it seems to be settled that it is not the taste of the court, or of the tenant for life, that is to control, and it must therefore, in an application for an injunction in cases of this kind, be alleged that the trees cut down were not only ornamental, but also that they were planted or left standing for the purpose of ornament.'' It is not waste in a tenant for life to cut down timber for the purpose of making necessary repairs on the estate. 1 Goke Litt., 416; Harder v. Ear- ^Ibid. der. 26 Barb., 409. i 6 will. Eq., 870. 2 2R. S.,334. «CokeLitt., 53. s Winship v. Pitts, 3 Paige, 259 ; 'Marquis, etc., v. Sandys, 6 Ves., Douglass' T. Wiggins, 1 John. Ch., 110; Faruworth v. Ferris, 6 Ves., 436. 419 ; Coffin v. Coffin, Jac, 70. 216 PROVISIONAL KteMEDIES. [Ch. IE. and to sell such timber and purchase, with the proceeds, hoards for such repairs, provided this be the most eco- nomical.^ The general rule is that if the tenant, or his assigns cut down wood in such a manner as to injure the inheritance, it amounts to waste ; though the principle is governed somewhat by the nature of the premises — for where a farm consisting mainly of woodland, is leased for agricultural purposes, the lessee has a right to fell the timber in order to fit the land for agricultural purposes, but he has no right to cut it for sale.^ The court will ordinarily interfere to prevent future waste only, and not to control the disposition of that already cut, before an injunction was applied for, but where the defendant is insolvent and his intent fraudulent, he may be inhibited from removing that already cut.' 13. The general rule is that a tenant may not dig in quarries for stone, or in mines ofmetal or coal unless they were open at the time of the demise ; * though a tenant for life may open the earth in new places, in pursuit of an old vein where the mine has been opened before he came to the estate, yet he has no power to open new mines such as had not before been opened.^ Courts of equity, are, in general, reluctant in granting injunctions restraining mining operations, from the great expendi- tures required to renew operations after they have been suspended.' 14. While in most cases it would be waste for a tenant to remove the fixtures from the premises, yet where such fixtures are movable and not annexed to the freehold, an iLoomis V. Wilbur, 5 Mason, 13. * Saunders' Case, 5 Coke, 22 ; 2 2Kidd V. Dennison, 6 Barb., 9; KoUes's Abr., 817. People T. Davison, 4 Barb., 109 1\ ^ciavering v. Clavering, 2 P. Cooper V. Stower, 9 John. B., 33i V Wms, 389 ; Whitfield v. Bewit, id., ' Watson T. Hunter, 5 John. Ch., 240; Coates v. Cheever, 1 Cowen, 169; Spear V. Cutter, 5 Barb., 486; 477. Johnson v. White, 11 Barb., 194; « Grey v. Northumberland, 17 Ves., Ensign Y. Colburn, 11 Paige, 504. 281. § m.] iNJUisrcTioNB. .217 injunction will not be granted ; as in ease of a dove cote, ■ and the removal of locks from the doors of the house, the chairs from the lawn, the statues, images and fences from the pleasure ground, or wardrobes, presses and closets from the house.^ As to what are, and what are not fix- tures, see ante page 157, seq. 1 Kimplin v. Eve, 2 Ves. & B., 349. 15 218 PROVISIONAL REMEDIES. [Ch. in, SECTION" IV. EASEMENTS AND SERVITUDES.. 1. Semtndeofliglitanaair. 2. Party-walls. 3. Wlat is — how repaired. 4. To what extent it may he altered by one owner. 6. When destroyed hy fire — how rebuilt. 6. Support of soil from soil. 7. Support of soil and buildings thereon. 8. Effect of carelessness, etc., in digging. 9. Dedication. 10. Effect of dedication. 11. Subjects of dedication. 12. How dedication accepted by the public. 13. What acts amount to a dedication. 14. When dedication cannot be revoked. 16. Watefoourses.* 16. When injunction in such cases granted. 17. Where the rights of the parties are fixed by contract. 18. General doctrine relating to water- course. 19. Eight to the usufruct of water incident in the soil. 20. Concerningtherightsofariparian owner. 21. For what purposes and to what extent he may use the water. 22. Concerning the rights of mill owners. 93.' Equitable interference in regulating such rights. 24. The erection of a dam and machinery. 25. To what extent mill owner may use or detain water. 26. Cases of unreasonable detention. 27. Eight to set back water. 28. Eight to fiow land by prescription. 29. The extent of the right to flow in such cases. 30. Eight to divert water by prescription. 31. Priority of occupation. 32. When injunction granted without esta* blishing right at law. * 33. Mill owner cannot divert waters of a stream. 34. Concerning subterranean waters. 35. Law thereon in this state. 36. Cases where injunction was refused. 37. Subterranean streams having definite courses. 38. Eaves drip. 39. Eclating to upper and lower lands. 40. Littoral rights in Innavigable streams. 41. Littoral rights in navigable streams. 42. Highways and roads. 43. Concerning pews. 1. The modern English, doctrine as to the servitude of light and air, has not been followed by the courts of this state, and the law appears to be fully settled that no pre- scription of time — nothing, indeed, but express covenant — will prevent the owner of property from making an erection thereon which will darken and obscure the light* of an adjoining building. The enjoyment of light and air is not an adverse user, nor, indeed, any user whatever, of another's property, and cannot, therefore, become the foundation of a presumption of right to continued use as § IV.] INJUNCTIONS. 219 against aq adjoining owner.^ So far has this principle been extended as to permit a' landlord^ who owned land adjoining the demised premises, to build on such land, although he might thereby darken and obstruct the win- dows in the tenement demised.^ 2. Among the urban servitudes of the civil law, was that of a right in one man to fix a beam or piece of timber," or stone, in his neighbor's wall. This servitude corre- sponds with that in the common law, known by the name of party-walls,^ and is founded upon the maxim that " equality of right requires equality of burden." By party-walls are understood walls between two estates, which are used for the common benefit of both, in the support of contiguous buildings standing thereon, by the agreement of the adjoining proprietors, and which have, been used, for such common support for twenty years ; or, else, walls built by the owner of an estate, between buildings erected thereon, for their mutual support. In thfe latter case a conveyance, by the owner, of either building con- veys with it an easement for its support on that part of the wall which stands upon the other lot.* 3. Every wall of separation between two ' buildings is presumed to be the common party-wall, if the contrary be not shown, and this not only is a rule of positive ordinance ; but is a principle of ancient law.^ If the common wall be in a state of ruin, and requires to be rebuilt, one party can compel the other, by action, to contribute to^ the expense of rebuilding it ; but the necessity of the repara- tion must be established by the judgment of men skilled, in the business, and made on due notice ; and if the new . 1 Parker V. Foote, 19 Wend., 309; * "Webster v. Stevens, 5 Duer, ijanks T. American, etc., 4 Sandf. 553 ; Eno v. Del Veoohio, 4 Duer, Ch., 438, 464; Palmer t. Wetmore, 53, and 6 Duer, 17; 3 Kent Com.. 2 Sandf., 316. 437 ; Partridge v. Gilbert, 15 N.Y. R., 2 Palmer v. Wetmore, 2 Sandf. R., 609, per Denio, C. J., and cases cited. 316 : Myers v. Gemmel, 10 Barb., 537. » Campbell v. Mesier, 4 John. Ch., 8 Wash, on Easements, 454. 334. 220 PROVISIONAL -EEMEDIES. [Ch. HI. wall be made wider, or higher, or deeper, or thicker, the party building must bear the extra expense.^ If he occupy no unnecessary time in completing the work and use pro- per care and skill in its execution he will not be responsi- ble to the tenant of the adjoining building for damages' resulting from its exposure to the weather, from loss of business or otherwise.^ 4. So long as a party-wall is capable of answering the purpose for which it was erected the owner of either part may landerpin the foundation, sink it deeper and increase its thickness within the limits of his own lot, or its length, or its height, if he can do so without injury to the building on the adjoining lot. But he cannot interfere with the wall in any manner unless he can do so without injury to the adjoining building ; or unless he have the consent of the owner of such building. He cannot pare off the part of the wall that stands on his own land, so as to render the rerfiainder insufficient or unsafe, or excavate under the party-wall upon his own premises, to the permanent injury thereof.* 5. Where the owner of a store granted to another the right of placing the wall of the third story of his house upon the top of the wall of the grantor's store, and of occu- pying the end of the store as the end of the house to be erected by the grantee, and the grantee erected his build- ing accordingly, it was held to be the grant of an ease- ment only, and to continue only as long as the wall stood, or in fee ; and he was held to have a right to make use of it although the rest of the grantor's store had been burned down.* But it seems, that, if the entire building, including the party-wall, be destroyed by fire, the parties are remitted 1 Wash, on Easements, 458 ; Camp- 3 Eno v. Del Veoohio, 6 Duer, 17; bell v. Mesier, 4 John. Ch., 334 ; 3 Webster t. Stevens, 5 Duer, 553 ; Kent Com., 488 ; Partridge t. Gil- Phillips v. Bordman, 4 Allen, 14'7. bert,15N.Y. R., 601. _ * Brondage v. Warner, 2 Hill, 145. 2 Partridge v. Gilbert, supra. § rv.] INJUNCTIONS. 221 to their original unqualified title to the division line, and he who rebuilds the wall must do so at his own expense.^ 6. The right of support of soil from soil has been recog- nized and protected by the courts, from the earliest times." It is founded on natural justice and is essential to the pro- tection and enjoyment of property in the land. Although it places a restraint upon what a man may do with his own property, it is in accordance with the maxim. Sic utere tuo, ut alienum non Icedas. The right to lateral sup- port is not like the support of one building upon another, to be gained by grant or prescription, but is a right of property passing with the soil. The principle is thus stated: "A man, who has land next adjoining my land, cannot dig his land so near mine, that thereby my land shall go into his pit." ^ But this doctrine has always been strictly confined to those cases in which the owner of lands has not, by building thereon or otherwise, increased the lateral pressure upon the adjoining soil. For if the plaintiff has himself erected buildings upon the margin of his own lands, he is regarded as being himself at fault, and therefore not entitled to recover.* 7. But there seem to be certain qualifications of the principle last stated, to the effect that if the owner of both lotS' shall convey one lot and the dwelling thereon, that the right of support passes with the same for the benefit of whoever may be the owner thereof, arid the owner of the adjacent lot takes it charged with the duty or servitude of supporting the house, as well as the natu- ral soil on which it stands.' So, if the house shall have stood so long as to have acquired a prescriptive right to such support, as an easement, and the owner of the adja- iSherred v. Cisco, 4 Sandf. 480; v. Marshall, 19 Barb., 380; S. C. 21 See opinion of Chief Justice Benio Barh., 409. in Partridge v. Gilbert, 16 N. Y. R., *Id. ; Lasalav. Holbrook, 4 Paige, 601. 169. 2 2 RoUe Abr. Trespass, 1 pi. 1. 6 Wash. Base., 436, citing, among '2 RoUe Abr., supra; Hay v. many other cases, Eno v. Del Vec- Gohoes Co., 2 Comst., 159 ; Farrand chio, 4 Buer, 63. 222 PBOVISIONAL EBMEDIBS. [Oh. IH. cent parcel dig the same to the injury of such house, he will be held responsible.^ 8. Although one may dig in his own land, for all lawful purposes, and by so doing may injure a dwelling house re- cently erected by another upon the adjacent parcel of land, yet he has no right to do this carelessly, nor with an intent to injure the occupant of the neighboring tenement.^ 9. Another easement which the courts are sometimes called upon to protect by injunction, is that of dedication, which arises from the devoting, or giving of property for some public use, and in such a manner as to conclude the owner. It is not essential that it be done in writing, but it may be done by an act in pais, as well as by • deed.^ !N"or is any certain period of time requisite to establish a dedication, as it depends, not on the lapse of time, but on the intent of the pai'ties.* It mijst originate in the volun- tary donation of the owner of the land, and be completed by the acceptance of the public.^ 10. The effect of a dedication is not to deprive a party of his land, but to estop him, while the dedication con- tinues in force, from asserting that right of exclusive possession and enjoyment, which the owner of property ordinarily has. He retains a right to use the land in any way compatible with the use to which it is dedicated." 11. The most usual subjects of dedication are highways and streets, but there are others, such as the dedication of a spring of water to public use,'^ or land for a public square in a city, or for* a public quay or landing-place upon the bank of a river,' or for public commons, or for 1 Id. J Lasala t. Holbrook, 4 Paige, « Hunter v. Trustees of Sandy Hill, 169. 6 Hill, 407; Post t. Pearsall, 22 aPanton t. Holland, 17 John, 92 ; Wend., 451 ; Wash. Ease., 137. Wash. Ease., 436, and oases cited. ' M'Connell, v. Lexington, 12 s Hunter v. Trustees of Sandy Hill, Wheat., 582. 6 Hill, 407. 8 Trustees of Watertown v. Cowen, *Ibid. - 4 Paige, 510. 6 Child V. Chappell, 5 Seld., 256 ; » New Orleans v. United States, 10 Clements v. West Troy,16 Barb., 251. Peter., 662, 712. §IV.] INJUNCTIONS. . 223 the site of a court-house or other public building,* or for a burying ground ; ^ and it would seem that all sorts of easements and rights to enjoyment of land, whether f(4r use or for pleasure which may be acquired by an individual by grant or prescription, may also be acquired by the public by actual dedication.^ 12. The common law mode of indicating an acceptance by the public of a dedication is by a user of sufficient length to evince such acceptance, the length of time depending, of course, upon the circumstances of each case ; * but by the statutes of this state a mere user of streets or ways, as such by the public, does not constitute an acceptance or adoption of them as higjiways by dedica- tion, unless there shall have been a location of the same, as public ways, by the proper officers of the town, city or county, authorized to ma^e such location.' 13, N'or is it essential that the streets should have been opened or wrought, for where owners of city lots have sold them by a plan on which streets have been designated by the proper officers to locate and establish the same, and have bounded the lots sold by such streets, these are held to have been dedicated to public use.* But the mere laying down of streets or squares upon the plot of a con- templated city or village, even though the same may be publicly exhibited or declared by the proprietors thereof, does not constitute a dedication of them to the public ; there must be a sale of some of these lots, having refer- ence to such streets or squares, and some adoption thereof ' Hunter v. Trustees of Sandy Hill, E., 257 ; Clement v. Village of West 6 Hill, 407. • Troy, 16 Barb., 251 ; Bissell v. N. T. ^li- Cen. R. R. Co., 26 Barb., 630. 3 Post V. Pearsall, 22 Wend., 480, « Matter of THirty-Second St., N. per Verplank. Y., 19 Wend., 128 ; Matter of Twenty- * Wash. Ease., 139. Ninth St. 1 Hill, 189; Wyman v. 5 2 R. S., 393 (5th ed.), City of Mayor of N. Y., 11 Wend., 486. Oswego V. Oswego Can. Co., 6 N Y. 224 PROVISIONAL EEMEDIES. [Ch. III. by the public, as such, in order to create a dedication of these to the public use.^ 14. And where a street has been dedicatedto the public, and adjoining lands laid out with reference to it and improvements made accordingly, and the dedication ac- cepted by the public, it cannot be revoked while the street continues in use.^ . 15. The.jurisdiction of a court of equity to grant relief by injunction against a diversion or obstruction of a water course is well established ; ^ and a temporary injunction will be granted where it is made to appear that a final injunction will be proper.^ 16. It is not necessary, in such cases, to allege in terms that the threatened injury will be great or irreparable, if it is apparent from the facts set forth, that such must be the ■ effect ; nor is.it necessary first to establish a right at law. The foundation of jurisdiction in such cases, is the neces- sity of a preventive remedy, where great and immediate mischief would arise to the comfort and enjoyment of property, and the remedy is concurrent at law and in equity.^ 17. And where the rights and relations of the parties to the use of water, are clearly fixed by contract, and one of the parties commits acts in violation of the contract, an injunction may be issued without regard to the ques- tion of damages or injury. 18. The general doctrine relating to water courses is, that every proprietor is entitled to the use of the flow of the water in the natural course, and to the momentum of iWash. Ease., 147; Clements v. 428; Belknap v. Trimble, 3 Paige, West Troy, 16 Barb.-, 261 ; see 600 ; Gardner v. Village of New- further Mayor t. Stuyvesant, 17 N. burgh; 2 John Ch., 162. T. R., 34; Huttemire t. Albro, 18 * Corning t. Troy Nail Factory, 6 N. Y. B., 48. How., 94 ; 34 Barb., 492 ; 39 id. 327. 2 Adams v. Saratoga and Wash. ^Q-ardner v. Newburgh, 2 John. E. E. Co., 11 Barb., 414. Ch., 165; Arthur t. Case, 1 Paige, a Olmsted t. Loomis, 9 N. Y. E., 447; Olmsted v. Loomis, 5 Seld., 423. §IY.] INJUNCTIONS. . 225 its fall, on Ms own land ; but though he may use the water while it runs over his own land, he cannot unreasonably detain it or give it another direction, and he must return it to its ordinary channel when it leaves his estate. "With- out the consent of the adjoining proprietors, he cannot divert or diminish the quantity of water which would de- scend to the proprietor below.^ Chancellor Kent states the rule on this subject in the following elegant and satis- factory manner : " All that the law requires of the party, by or over whose land a stream passes, is, that he should use the water in a reasonable manner, and so as not to destroy or render useless, or materially diminish, or affect the application of the water, by the proprietors above or below on the stream. He must not shut the gates of his dams, and detain the water unreasonably, or let it off' in unusual quantities to the annoyance of his neighbor."^ 19. This right to the usufruct of water, is a natural, permanent and inseparable incident or accompaniment, to the ownership of the soil, and is incapable of being divested by the act of any wrong doer, until twenty years adverse enjoyment have ripened the original wrong into a- legal right.^ 20. As a corollary to the above statements, it follows, that the owner of lands through which a stream of water flows, has a right, not only to have the water come to him' in its natural course and quantity, uncorrupted and un- changed in temperature ; but, also, the right to have it flow from his land, without obstruction, upon that of the inferior heritors.* And this principle applies to surface water as well as to that flowing in a proper watercourse.* 1 Van Hoeseu y. Coventry, 10 * Washb. Ease., 224 ; Brown v. Barb., 618; 3 Kent's Com., 439; Bowen, 30 N. Y. .K, 519. Angell on Water Courses, ?§ 90, 94. 5 Washb. Ease., 225 ; Bellows v. 2 3 Kent's Com., 440, 441. .. Saokett, 15 Barb., 96. 'Corning v. Troy Nail Factory, 39 Barb., 311. 226 PROVISIONAL REMEDIES. [Oh. HI. The law is, that where one piece of adjoining lands lies lower than the other, the lower one owes a servitude to the upper, to receive the water that naturally runs from it, provided the industry of man has not been used to create the servitude.''- 21. A riparian proprietor may make a reasonable use of the water flowing through his lands, for domestic pur- poses, for watering cattle, or even for irrigation, provided that it be not unreasonably detained, or materially dimi- nished. He must use it so as to do the least possible injury to his neighbor who has the same right as himself.^ The reasonableness of the detention of the water by the upper proprietor must depend on the circumstances of each case, and is to be judged of by the jury as a ques- tion of fact.* Two things, however, should be kept in mind in considering this subject. 1. that any diversion of water, propferly so called, except for domestic use or purposes of irrigation, is a violation of the natural rights of property in riparian proprietors below ; and 2. As it seems to be more than indicated by the cases, a riparian •proprietor may not stop the flow of the entire stream by a dam, and set the same back for the purposes even of irrigation, if, thereby, he substantially deprives^ other pro- prietors upon the stream of the natural flow thereof.* 22. There is no more fit case for the interposition of a court of equity, by way of injunction, than the regulating of the rights of mill owners in the use of streams of water. It is so essential to the manufacturing interests of our country, and in fact to every branch of domestic industry, that it would be deplorable if any of these important establishments could be materially injured or destroyed by any person, or combination of persons, and the owners iWashb. Ease., 226. 'Washb.Ease., 236. 2 Arnold v. Foot, 12 Wend., 830; ^Washb. Ease., 239; Arnold v. Crooker T. Bragg, 10 Wend., 264. Fbot, 12 Wend., 330. I IV.] INJUNCTIONS. 227 left to seek an uncertain remedy by an action for damages in a court of law.^ 23. "The resort to an equitable forum seems consonant to the established practice in such cases, makes the relief final and comprehensive, avoids a multiplicity of suits, and is equally effective with an action at law in preventing the adverse possession of the defendant ■ from ripening into a positive and perfect title.^ 24. Every riparian owner has a right to a reasonable use of the water of a stream as it passes over his land, and for this purpose he may "erect a dam- and machinery, sub- ject, however, to the limitation that the water must be so used as not seriously to interfere with the rights of owners of similar property above or below.^ The erection of a dam on a stream is necessarily injurious, in some degree, to those who have mills on the same stream below ; yet such injury, is damnum absque injurid, unless the waters be thereby diverted or detained in an unreasonable manner.* 25. But precisely to what extent the owner above may use or detain the water for manufacturing purposes does not seem to be very well defined ; the question as to what is a reasonable use, depends necessarily upon the size of the stream, as well as the business to which it, is subservient, and on the ever varying circumstances of each particular case.° 26. Where the defendants, by means of a dam and re- servoir, had. obtained control of the water of a stream, which they exerted to the great injury of the plaintiffs, who were mill owners below, sometimes withholding the water, and at others discharging it in torrents, an injunc- 1 Per Walworth, Chancellor, in Nail Factory, 6 How., 89 ; Palmer Arthur v. Case, 1 Paige, 447. t. Mulligan, 3 Caines, 307. 2 Corning t. Troy Nail Factory, 6 * Palmer v. Mulligan, supra ; Van How., 89; 34 Barb., 492; 39 Barb., Hoesen v. Coventry, 10 Barb., 518. 311-327. ■ 6 Thomas V. Braokney, 17 Barb., 'Van Bergen t. Van Bergen, 3 654. John. Ch., 282; Corning t. Troy 228 PROVISIONAL REMEDIES.: [Ch. III. tioD. pendente lite, was granted.^ So, when the defendant, the owner of a rolling mill, stopped the entire water, of the stream for more than an hour at a time, while Ke was heating his iron, and then let it out in such quantities as to run over the plaintiff's dam, and he wasted, whereby the plaintiff's mill was stopped from half an hour to two hours daily, the jury found for the plaintiff, and the court sustained the finding.^ But a different rule has obtained in the courts of Pennsylvania, they holding that the owner of an upper mill may wholly stop the water for two or three days, till his pond can fill, or rise to a suffi- cient height to drive his works, notwithstanding lower mills suffer by reason of such detentibn.^ 27. A mill owner has a right to set back the water in its natural state, by means of his datn, to the upper boundary of his own premises, and no further. Yet, he will not be liable, if, in time of extraordinary rise or freshet, the lands of an adjoining proprietor are flooded ; but by " extraordi- nary freshets" are not meant those Swells in the stream which ordinarily occur at certain seasons of the year. The owner of the dam is supposed to be aware of such freshets and must construct his dam in reference to them.* 28. But a mill owner may acquire a right by prescription to flow the lands of another by mean of a dam or ob- struction in the stream upon his own land." Yet such right can only be acquired by an uninterrupted adverse enjoyment for twenty years. The uninterrupted enjoyment is priyna facie evidence that it is adverse, but such conclu- sion may be rebutted, by showing that it was commenced and continued without claim of right.^ I rooming T. Troy Nail Factory, 6 82; Wheeler v. AM, 29 Penn. St., How., 89. 98. 2Merritt v. Brimkerhoff, 17 Joljn., *Washb. on Ease., 259, and cases 306. . cited. sHartzall v. Sill, 12 Penn. St., s Stiles t. Hoolier, 7 Cow., 266; 248 ; Hoy T. Sterrett, 2 Watts, 327 ; Belknap t. Trimble, 3 Paige, 577. Hetrioh v. Deadlier, 6. Penn. St., SHart v. Vose, 19 Wend., 365. § IV.] INJUNCTIONS. 229 29. The extent of the right to flow, in such cases, will be the height at which the water has been kept for twenty years, without reference to the height of the dam, and if the owner repair his dam which has kept the water at that height, so as to raise the water still higher and flow it further back upon his neighbors, he may be enjoined, although the dam remain at the same height.' 30. So, a riparian proprietor may, by twenty years adverse user and enjoyment, acquire the right to divert the water of a stream, to the injury of naill owners and pro- prietors below.^ ISor is it essential that the water should have been used, during the whole time, in the same precise manner, nor for the same purpose. The right does not relate to the purpose for which the water has been used, but to the manner and extent of the diversion.' 31. But the mere omission by one proprietor to make use of a right which belongs to him, however long con- tinued, will not prejudice him or confer any right upon the adjoining proprietor.* Nor does priority of occupancy alone give exclusive right to an undisturbed use of the water of a stream." 32. After a long enjoyment of a water course, a right will be presumed and protected by injunction, without requiring the plaintiff to establish his right at law.^ So, mill owners who have for twenty years enjoyed the use of the water of a stream in a particular way, upon which use the principal value of their mills depends, are not com- pelled to establish their right at law, before coming into chancery for relief against an attempt to deprive them of such use.'' So, an injunction was granted to restrain a 1 Stiles T. Hooker, 7 Cow., 266; * Townsend v. McDonald, 12 N. T. see contra, Wash. Ease., 263. E., 381. 2 Arnold v. Foot, 12 Wend., 330; » Piatt v. Johnson, 15 John., 213 ; Belknap v. Trimble, 3 Paige, 577. Merritt v. Brinkerhoff, 17 John., 320. SBelknapv. Trimble, 3 Paige, 577; « Gardner v. Newburgh, 2 John. Smith V. Adams, 6 Paige, 435. Ch., 162. / 'Belknap t. Trimble, 3 Paige, 577. 230 PEOVISIONAL REMEDIES. [Ch. IH. diversion of waters by means of a tunnel upon defendant's land.^ So equity will enjoin a mill dam which may cause irreparable injury ; ^ or restrain the defendant from increas- ing in height or keeping up a mill dam to the irreparable injury of the plaintiff's privilege above.^ Where hydrau- lic works are erected on opposite banks of a stream, if there is not sufficient water for a full supply of all, the owner on each side is entitled to an equal share of the water ; and if the owner of the mills on either side has been in the quiet enjoyment of the water privilege, and the other attempts to deprive him of it, a preliminary in- junction is proper.* So, where the complainant claims title under a recent grant from the defendant himself, there is no principle upon which he can be required to bring a suit at law against the defendant for diverting the water, in violation of the express provisions of the grant, before applying to equity for relief ; it is only where his right to the privilege claimed, admits of doubt, that the court requires a plaintiff to establish ii at law, before granting an injunction.' 33. In no case, has a mill owner a right to divert the waters of a stream, and thereby deprive a lower proprie- tor of the benefit thereof, unless such right has been acquired by prescription ; ^ and he may not divert it, although such diversion was made for the purpose of ena- bling the mill owner to repair his works.' 'Nov can he alter the level of the water either where it enters or where it leaves his property.* 34. The principles which apply to water flowing in cer- 1 Reid V. Gifford, Hop., 416. « Thomas v. Braokney, 17 Barb., 2 Lyon V. McLaughlin, 32 Verm., 654; Saokrider v. Beers, 10 John., 423. 241. sBemis V. TTpham, 13 Pick., 169. 'Van Hoesen v. Coventry, 10 * Arthur T. Case, 1 Paige, 447 ; Barb., 518. Aff'd, Case v. Haight, 3 Wend., 632. » Brown v. Bowen, 30 IJ. Y.. K., 5 Seneca Woolen Mills v. Tillman, 519. 2 Barb. Ch., 9. § IV.] INJUNCTIONS. 231 tain and definite channels, are wholly inapplicable to subterranean waters, percolating through the earth, and which have no certain course or definite limits, but which ooze through the soil in every direction in which the rain penetrates. "While, in the one case, a proprietor may be enjoined from obstructing or diverting the waters of a stream fiowing in a surface channel ; in the other, an adjacent owner may make any suitable or lawful use of his own land, although in so doing, he cut off or destroy the use of an underground spring or current of water, which has no known and definite course, but has been accustomed to penetrate and flow into the land of his neighbor.^ 35. It was the doctrine of the civil law, stated and approved by Tindal, C. J., in Acton v. Blundell, that, " If a man digs a well in his own field and thereby drains his neighbor's, he may do so, unless he does it maliciously." And it may be generally stated, as the law in this state, that an injunction will not be granted to restrain a defend- ant from sinking a ditch or shaft upon his own land, or from opening, or working mines or quarries therein, by which the subterranean waters which would otherwise have run under the plaintiff's soil and have been useful to him, are cut off".^ 36. When the sources of a spring existing upon the plaintiff's land, and which supplied a small stream of water flowing partly through the lands of each were ' intercepted ai^d cut off by the ditching and quarrying of an adjoining proprietor, upon his own land, an injunction was refused.' And, where a plaintiff operated his mill by water flowing from a well dug in his own premises, 1 Acton T. Blundell, 12 Mees. & ^ Ellis t. Duncan, and other cases, W., 336 ; Greenleaf v. Francis, 18 supra. Pick., 117 ; Goodale t. Tuttle, 29 N.. 3 Ellis v. Duncan, 21 Barb., 230. Y. B., 466; Ellis v. Duncan, 21 Barb., 230. 232 PROVISIONAL REMEDIES. [Ch. in. and the defendant opened and sunk a coal mine in Ms own land, at a distance of three-quarters of a mile from the plaintiff's well, which had the effect to cut off- the underground veins and currents which supplied such well, and to prevent him operating his millj it was held that the defendant was not liable.^ 37. But Subterranean streams that have certain and definite courses are governed by the same rules as surface streams.^ 38. Another subject that may sometimes require the interposition of equity to regulate, is that of eaves drip. It is the duty of every man so to construct his buildings, that the rain water falling thereon, shall not drip or be discharged upon the land of his neighbor, unless he have such neighbor's consent therefor evidenced by an express grant, or by prescription ; and it will be equally a wrong, whether the roof project beyond the line separating the two estates, or whether the roof be so constructed as to project the water beyond such line on to the contiguous estate.^ 39. While the owner of upper land has a natural ease- ment, as it is called, to have the water that falls upon his own land flow off the same, upon the land of an adjoining heritor below ; yet he cannot collect it, and precipitate it in a body upon the land below. !N"or is the inferior heritor obliged to construct sewers or ditches on his own lands for the purpose of draining the low, marshy land of an upper owner ; and Denio, C. J., says in Goodale v. Tuttle : " In respect to the running off of surface water, caused by rain or snow, I know of no principle which will prevent the owner of land from filling up the wet, and marshy places on his own soil for its amelioration and his 1 Acton T. Blundell, 12 Mees. & » Eellowa v. Sackett, 15 Bart., 96 ; W., 336. Washb. Ease., 390. 2 Smith V. Adams, 6 Paige, 435. grv.] INJUNCTIONS. ' 233 own advantage, becauae He neighbor's land is so situated as to be inconvenienced by it." ^ 40. 'It is a general principle that the bed of a fresh water river, to the centre of the stream, belongs to the owners of the adjacent banks ; but if the stream be naviga- ble the rights of the owners are subject to the servitjide of the public interest for passage or navigation.^ A river is navigable in the ordinary acceptation of the term when it is of sufficient depth naturally for valuable floatage, such as raft's, flat-boats and vessels of light draft.^ But a stream does not become navigable from the fact that logs can be floated thereon to market for a few days only in a year.* An erection, on a navigable river, rendering the passage of boats, etc., inconvenient and unsafe, is a nuisance and may be remedied by injunction.^ 41. But the beds of streams affected by oceanic tides, to high water mark, belong to the state, and the owner of lands adjoining has no private right or property in the waters of sUch streams, or in the shore between high and low water mark, and may be restrained by injunction at the suit of the attorney general, from erecting a nuisance or purpresture thereon.^ Where the bed of a stream belongs to the state, no person has a right to use the same, without its consent; but so long as the^ state officers make no objections to such appropriation, no individual or corporation has a right to complain of it.'' 42. An injunction may also be granted, to restrain the threatened appropriation of land for the purpose of a ' Goodale t. Tuttle, 29 N. Y. R., ^ Ex parte Jennings, 6 Cow., 527; 466; see Martin t. Riddle, 26 People v. Vanderbilt, 25 How., 140. Penn. St., 415, in note. e People v. Tibbetts, 19 N. Y. R., 2 Commissioners v. Kempshall, 26 523 ; Gould v. Hudson R.R., 2 Seld., Wend., 404; Child t. Starr, 4 Hill, 522 ; People v. Vanderbilt, 25 How., 369. 140. 3 Curtis T. Keesler, 14 Barb., 611 ; 'Port Plain Bridge Co. v. Smith, Morgan v. King, 18 Barb., 277. 30 N. Y. R., 44. * Morgan v. King, supra; Munson V. Hungerford, 6 Barb., 265. 16 234 PEOVISIONAL REMEDIES. [Ch. m. highway, where the proper steps have not been taken to secure a suitable compensation to the owner or to protept him from an improper appropriation.* Or to prevent the laying out and establishment of a road through a farm and improvements, without compliance with the require- ments of the law.^ So, it seems, the obstruction . of a public street by fencing it, may be restrained by injunc- tion.^ 43. An injunction cannot be granted at the instance of a pew owner to restrain the trustees of the church from making alterations in the building and removing the pews.* ^Anderson 7. CommisBioners, etc., 467 ; andsee further Hilliardonliy., 12 Ohio St., 642 ; McArthur v. 464. Kelley, 5 Ohio, 140. * Cooper v. First Pres. Church, 32 2 Floyd V. Turner, 23 Tex., 292. Barb., 222. ^Langsdale y. Bouton, 12 Ind., § v.] INJUNCTIONS. 235 SECTION V. NUISANCES. 1. Definition — public and private. 2. Nuisance to dwelling house. 3. When injunction granted. 4. Injuries to enjoyment of life and pro- perty. B. Slaughter house, etc. 6. Bowling alley— gunpowder. T. Interference with huBiness. 8. Emigrant depot — coal yard. 9. Obatmcting public street. 10. When such obstruction not a nuisance. 11. Appropriation of public property. 12. Things maintained by authority of legis . lature. 13. Who may have an injunction. 14. When nuisance erected first. 15. Not legalized by prescription. 1. Another frequent ground for the interference of a court by injunction, is to restrain the continuance of pub- lic or private nuisances, purprestures, and the like. A public or common nuisance is an offense against the public, either by doing a thing which tends to the annoy- ance of the public generally, or by neglecting to do a thing which the common good requires.^ A private nuisance is any thing done to the hurt or annoyance of the lands, tenements, or hereditaments of another.^ 2. Nuisances to one's dwelling house are all acts done by another which render the enjoyment of life within the house uncomfortable, whether it be by infecting the air with noisome smells or with gases injurious to health.^ And the term nuisance is not limited to such erections or employments as are prejudicial to health, but embrace every thing that incommodes or offends, and renders the enjoy- ment of life and property uncomfortable.^ iBao. Abr., title Nuisances. * Tanner v. Trustees, etc., 5 Hill, 2 3 Blaok.'s Com., 216. 121 ; Brady v. Weeks, 3 Barb., 157. '2 Greenl. Ev., 467, and cases ; Cropsey v. Murphy, 1 Hilton, 126. 236 PROVISIOKAL REMEDIES. [Ch. m. 3. A court of equity will not interfere to prevent or remove a private nuisance, unless it has been erected to the annoyance of the right of another long previously enjoyed. It must be a case of strong and imperious ne- cessity, or the right previously established at law, before the court will lend its aid.^ Where a thing is in itself a nuisance, and the complainant's right is not doubtful, the court will grant an injunction to restrain irreparable mischief, without awaiting the result of a trial ; but where the thing sought to be restrained is not, in itself, noxious, but only something which may, according to circumstances prove to be so, the court will await the result of a trial at law, or, in special cases, of an issue awarded ])j itself.^ So, where a nuisance is likely to occasion a special injury to one individual, which cannot well be compensated in damages, equity will entertain jurisdiction of the case at his suit.' 4. The loss of health and sleep, of the enjoyment of quiet and repose, and of the comforts of home cannot be restored or compensated in damages, and any thing which deprives one of these may be enjoined ; '' nor is it essen- • tial to constitute a nuisance, that a trade or business should endanger the health of a neighborhood. It is sufficient if it produce that which is oflensive to the senses, and impairs the enjoyment of life and property.' 5. Thus, a slaughter house in a part of a city where there are dwelling houses near it, and where lots are valuable for building purposes, is, prima facie, a nuisance, and may be enjoined.* So a fat boiling establishment, if it infect the air with a noisome smell or with gases injuri- iVan Bergen v. Van Bergen, 3 Echart, Penn. Law. Reg, Jan., John. Ch., 282. 1863, p; 169. 2 Mohawk Bridge Co. v. Utioa & 6 Catliu v. Valentine, 9 Paige, 675 ; Sch. R.R. Co., 6 Paige, 554; and see Brady v. Weeks, 3 Barb., 157. 9 Paige, 328. « Catliu v.Valentine, supra ; Brady 8 Milhau T. Sharp, 28 Barb., 228. v. Weeks, supra. *Per Thompson, J., Dennis v. § v.] INJUNCTIONS. 237 ouB to the health, is a nuisance. So, a hog-yard, slaughter house, and fat and offal boiKng house in an inhabited part of a city is, prima fade, a common nuisance ; but the pre- sumption may be rebutted by showing that the business is so carried on as not to endanger the health, or interfere with the comfort of the neighboring inhabitants.' 6. It has been held in this state that a bowling, or nine- pin alley, kept for hire or emolument, is a public nuisance, at common law, though gambling therein be expressly prohibited by its owner.^ So a gate kept up across a highway, after the right to take toll under a public grant has expired, is a nuisance.' So, gunpowder deposited and kept in an exposed place, as in a wooden building in a city, is- a public nuisance ; * but merely keeping gun- powder near a dwelling house, and near a public street, or transporting it through a public street are not nui- sances, unless rendered so by particular circumstances, such as negligent keeping and the like.° So, manufacto- ries, lawful in themselves, may become nuisances, if carried on in parts of town where they cannot but greatly incommode the inhabitants, as manufactories of steam engine boilers, etc.* And where the defendant had erected a marble works, with one wall of the building resting against the plaintiff's house, and it appeared that , the latter was greatly injured by the vibrations caused by the motion of the defendant's engine and machinery, an injunction was granted restraining the defendant from running such machinery.' 7. An interference with the business of a duly licensed auctioneer, by posting before his auction room, a man with a placard warning people against Tnock auctions, is a private 1 Dubois V. Budlong, 15 Abbott, < Myers v. Malcolm, 6 Hill, 292. 445. s People V. Sands, IJohn., 78. 2 Tanner v. Trustees, etc., 6 Hill, epigt y. Dodge, 4 Denio, 311. 121. 'McKeou v. Lee, 28 How., 288. s Adams v. Beach, 6 Hill, 271. 238 , PROVISIONAL REMEDIES. [Ch. m. nuisance which the court may enjoin ; but when this is done by the mayor of a cit/ in pursuance of a statute directing the police to warn strangers against mock auc- tions, an injunction will not be granted, but the party will be left to his remedy at law.^ 8. An emigrant depot within a city is not, of itself, a public nuisance. !N"or will an injunction be granted to restrain the erection of a building for such purpose. Its character must be established by the nature of the diseases of its inmates, the number of persons received, the peril to health arising from their presence, the location and many other circumstances peculiar to each individual case.^ So, a coal yard is not, prima facie, a nuisance, although it may be so. used as to become one.^ So, a person lying ill of an infectious or contagious disease in a hired room at a public hotel, or boarding house, is not a nuisance.* 9. One cannot legally carry on any part of his business in the public street to the annoyance of the public. The primary object of a street is to afford a free passage to the public, and any thing which impedes that free passage, without necessity, is a common nuisance. Thus, where dis- tillers delivered their slops daily in the street to purchasers, and the street was obstructed by carts and teams resorting thither for it, and' waiting for a load, the business was held to be a nuisance.' So, the erecting and maintaining build- ings, or obstructions in a highway, is a nuisance.* 10. But a temporary occupation of a street or highway by persons engaged in building, or in receiving or deliver- ing goods from a store or warehouse, or the like, is allowed from the necessity of the case.^ 1 Gilbert v. Mickle, 4 Sandf. Ch., « Boom v. City of Utioa, 2 Barb., 357. 104. 2 Phoenix t. Com. of Emigration, 5 People v. Cunningham, 1 Dedio, 1 AW., 466 ; Aff 'd, 12 How., 1. 524. 3 Russell V. Popham, Chan. Sent., « People v. Lambier, 5 Denio, 9. 80; 3 Leg. Obs., 311. 'People v. Cunningham, supra. § v.] INJUNCTIONS. 239 11. Courts of equity have, likewise, jurisdiction to re- strain any purpresture or unauthorized appropriation of public property to private use, which may amount to a public nuisance or may injuriously endanger or affect the public interest.^ Any appropriation of a part of a public harbor exclusively and permanently to private use, without the consent of the legislature, ia, prima fade, a nuisance, as where a canal boat is permanently located in a particular part of a canal basin for an unreasonable length of time;'' and such nuisance may be restrained at the suit of the attorney general.^ 12. But any thing maintained under the express author- ity of the legislature cannot be deemed a nuisance ; * unless there is an excess or irregularity in the exercise of the power conferred, in which case it becomes a public nuisance, pro tanto.^ 13. A public or comnion nuisance will be restrained by injunction, at the suit of the attorney general,^ or of any private person specially injured by it ; '^ and where several persons are specially injured, they may all join in a prayer for an injunction ; ' and the least special injury to an individual, by a public nuisance, entitles him to an action.^ 14. If the plaintiff has built his house after the erection of the nuisance, he is nevertheless entitled to relief against it, upon the principle that every continuance of a nuisance is a new cause of action." And in the case of a / 1 Attorney General T. Cohoes Co., 'Davis v. Mayor of N. T., supra; 6 Paige, 133. ' People v. Vanderbilt, supra. 2Hart V. Mayor of Albany, 8 'Milhau v. Sharp, 7 Abb., 220; Paige, 213; 9 Wend., 571. 28 Barb., 228; Pennimau t. N. Y. s Davis V. Mayor of N. Y., 2 Duer, Balance Co., 13 How., 40. 663 ; People V. Vanderbilt, 25 How., sPeck v. Elder, 3 Sandf., 129, 140. note; Murray v. Hay, 1 Barb. Ch. * Harris v. Thompson, 9 Barb., E., 59. 350; Williams v. N. Y. C. R.R. Co., 'Pierce v. Dart, 7 Cow., 609. 18 Barb., 222. "Brady v. Weeks, 3 Barb., 157; 6 Ren wick v. Morris, 3 Hill, 621 ; Beokwith v. Griswold, 29 Barb., 291. Aff'd, 7 Hill, 575. 240 PROVISIONAL REMEDIES. [Ch. IIL noxious trade whicli constitutes a nuisance, it is of no consequence whether ' the complainant reside on his pro- perty or not. It is sufficient that the nuisance is calculated directly to damage the value hy preventing profitable occupation, or to destroy the value of the property, for building.-' 15. !N"o length of time can legalize a public nuisance. It can never become valid by prescription. The maxim, Nullum tempus occurit reipublicce, applies with peculiar force against a public nuisance.^ iPeok V. Elder, 3 Sandf., 129. ^Dygert v. Sohenct, 23 Wend., 446; Mills V. Hall, 9 Weud., 315. §VI.] INJUNCTIONS. 241 SECTIOI^ VI. COVENANTS RELATING TO KEAL PROPERTY. 1. Courts of equity wUl enforce audi cove- nants. 2. In what cases. 3. Eestricting use of leased premises. 4. Covenants by purchasers. 6. Covenants by landlord. 6. When equity will not enforce covenants restricting use. 7. Building covenants. 8. Sale of land. 1. Injunctions are often applied for in connection with covenants relating to real property. A court of equity- will recognize and enforce agreements concerning the oc- cupation and mode of use of real estate, although they are not expressed with technical accuracy. Nor is it at all material that such stipulations should be binding at law ;^ nor that the breach of the agreement will not work irre- parable injury to the plaintiff.'' 2. In the case last cited, the vice-chancellor said : " The owner of land selling or leasing it, may insist upon such covenants as he pleases, touching the use and mode of enjoyment of the land; and he is not to be defeated, when the covenant is broken, by the opinion of any number of persons, that the breach occasions him no substantial injury. He has a right to define the injury for himself, and the party contracting with him must abide by the definition." And again the same learned judge remarks : " I^think that in cases where the parties, by an express stipulation have themselves determined that a particular trade or business conducted by the one will be injurious or offensive to the other, and there is a continu- iPer Bigelow, C. J., Parker v. * Steward v. Winters, 4 Sandf. Nightengale, 6 Allen, 344. Ch., 587. 242 PROVISIONAL REMEDIES. [Ch. IH/ ing breach of the stipulation by the one, which this court can perceive will be highly detrimental to the other, and it is manifest that the extent of the injury is difficult to be ascertained or measured in damages, it is the duty of the court to restrain further infractions of the covenant, there- by preventing a multiplicity of suits at law, and, at the same time, protecting the rights of the complainant."^ 3. Thus, where the parties covenanted that the leased premises should be used by the lessee for the regular dry goods jobbing business and no other, an injunction was granted to restrain the lessee from selling goods at auc- tion.^ So, where a store was leased, with a covenant that it should not be used for any other purpose than a jewelry and fancy goods store, an injunction was granted restrain- ing the use of the tenement as a hat store.* So, an in- junction lies against a purchaser with notice, to prevent the use of a house as a family hotel, in violation of cove- nants entered into between owners and purchasers of the lot upon a part of which guch house is built, not to carry on the business of an innkeeper.* 4. If the owners of laud lay it out into house lots and orally agree among themselves that they shall be thus exclusively used, and convey the lots with a condition to that effect, any purchaser is bound by such agreement, and the owners of other lots may have an injunction enjoin- ing him from converting a dwelling house into a public eating house.' So, where the owner of land divided it into lots and sold them to different purchasers, with the condition or covenant that no livery stable, slaughter house, glue factory, etc., should be erected upon any part of the lots so conveyed, or any manufacture, trade or busi- ness, which might be offensive to the neighboring inhabit- 1 steward v. Winters, supra. * Whatman v. Gibson, 9 Sim., 196. 2 Id. 5 Parker v. Nightengale, 6 Allen, 3 Howard y. Ellis, 4 Sandf., Sup. 341. Ct., 369. §YI.] INJUNCTIONS. 243 ants, it was held that the covenants in the deeds of the different lots were for the mutual benefit and protection of all the purchasers of such lots, and that the occupation of one of the lots as a coal yard was, upon the allega- tions of the bill, offensive.^ 5. So, where the owner of two adjoining lots, bounded by a river, erected a house on one, for his own use, and sold the other, the grantee covenanting that he would not use the lot in anyway, or for any business offensive to the grantor, and that he would not use it for a stone quarry, such grantee was restrained from building a wharf on such lot." So, where a lease of lands is made with a condition, expressed or implied, that the landlord shall permit natural ornaments, as a plantation of trees, to remain upon. his own land in proximity to the premises leased," such condition may be enforced by injunction.^ 6. Though such covenants do not run with the land, yet if an assignee have notice, at the time of the purchase of such covenant, equity will restrain him from violating it.* But equity will not enjoin the use of leased premises for one purpose, merely because the lease contains a pro- vision that they are to be used for another, unless it is also provided that they shall be used for the latter exclu- sively.* So, in case of a covenant by a purchaser, restrict- ing the mode of enjoyment of the purchased estate, equity will not enjoin a breach of such covenant by a second purchaser without notice ; nor where no real injury is likely to arise ; nor where there has been a change of circum- stances ; and an injunction against the erection of a building was refused, where the plaintiff had himself erected build- ings, which defeated the object of the covenant.* 1 Barron t. Richards, 3 Edward's * Mann v. Stephens, 15 Simons's Ch., 96; 8 Paige, 351. B,., 377. ' Seymour v. McDonald, 4 Sandf. 6 Brugman v. Noyes, 6 Wis., 1. Ch., 502. « Bedford v. British, etc., 2 My., ' Nicholson v. Rose, 4 DeGex & 552. Jones, 10. 244 PROVISIONAL REMEDIES. [Ch. HL 7. "Where adjoining proprietors covenant between them- selves, to build in a certain manner, or upon a uniform plan, or on designated lines, equity will enforce such agreement, as against such owners or as against a pur- chaser with notice.^ 8. Injunctions are often granted in connection with contracts for the sale and purchase of real estate. But where the same object can be accomplished by the filing of a lis pendens, the injunction should be refused.^ "Where a non-resident has not sufficient property within the state to make good the damages for a breach of a covenant for quiet enjoyment, he will be enjoined from collecting the purchase money for the land, where the title is defective.* • Cole V. Sima, citing ; Whitman ' Richardson T. Williams, 3 Jones V. Gibson, 23 Eng. L. & Eq., 588. Eq., 116. 2 Mills V. Mills, 21 How., 437. § VII.] INJUNCTIONS. 245 SECTION VII. ROADS, BAIL EOADS AND BRIDGES. 1. Kemedy often invoked, a. Wlien granted. 3. Bail road in a street. 4. Eestraining worlss authorized ty law. 5. Powers of the corporation of New York. 6. Cannot extend rail road without legisla- tive grant., 1. Proper remedy for property owners. 8. Cases where rail Boad enjoined. 9. When they will not be enjoined. 10. Enjoiningcompanyfromremovingrails. 11. Enjoining commissIonerB of highway. 12. Eestraining breach of contract. 13. Unauthorized use of property. 14. Covenant to stop train. 16. Eestraining erection of bridges. 16. In what cases legislative authority ne- cessary to build bridges. 17. Cases where injunction was refused. 18. Eestraining private road, near plank road. 1. The remedy of injunction is often invoked in refer- ence to rail roads, bridges, ferries and the like; and, although these subjects might have been properly treated of, under the head of corporations, it is thought that their importance would warrant a separate section. 2. An injunction will not be granted at the suit of one whose damages are not assessed to restrain the business of a rail road in actual operation until, at least, all ordinary remedies have been tried and found wanting. 3. A rail road track laid in a street pursuant to law, and so constructed as not materially to impair the public right of way, is not such a nuisance to the owners of property on that street as to authorize an injunction.' But when a judge has found that the extension of a rail road in a city is a public nuisance, that alone on a trial entitles the plaintiff to relief by injunction although no damages be shown.^ 1 Hamilton v. N. T. & Harlem E.R. Co., 9 Paige, 171. 2 The People v. Third At. E. R. Co., 45 Barb., 63. 246 PBO VISIONAL EEMEDIES. ' [Ch. III. 4. A court of equity cannot prevent the construction or use of a public work authorized by law ; as a rail road tunnel under a city street authorized by the corporation even on an allegation that the city corporation had ex- ceeded its power in making the grant.^ But the granting of a right of way to a street rail road, by the city corpora- tion, is not an act of legislation, but a grant upon condi- tion, and may be restrained by injunction.^ 5. The corporate authorities of the city of l^ew York have no power to confer upon individuals, by contract for an indefinite period, the franchise of constructing and operating a rail road in the public streets for their private advantage. Their power in respect to the control and regu- lation of the streets is held in trust for the public benefit and cannot be abrogated nor delegated to private indivi- duals. So, that a resolution of the common council author- izing private persons to construct and operate a rail road upon certain conditions, without limitation as to time, or reserving a power of revocation, is void because it would deprive the corporation of the power to control and regu- late the use of the streets.^ 6. Nor can the common council of the city of l^ew York authorize the extension of a rail road in that city, irrespective of any legislative grant, except, penhaps, when it may be necessary to the enjoyment of the principal legal grant.* 7. An injunction is the proper remedy for property- owners, who seek relief against the construction of a rail road in the streets of a city.° And an individual owner may maintain an action to enjoin the construction of a rail road which would be a nuisance.* 'Hodgkinson v. Long Island, 4 * People v. Third Avenue K. K. Edw., 411. Co., 30 How., 121. 2 People V. Sturtevant, 5 Seld., 263. ^ People t. Law, 34 Barb., 494 ; 22 » Milhau V. Sharp, 27 N. T. R., How., 109. 611. 6 Milhau v. Sharp, 28 Barb., 228 ; 27 N. Y. R., 611. § vn.] INJUNCTIONS. 247 8. So, an injunction may be sustained against a rail road company to restrain it from constructing their road upon land acquired by it through a farm without making a farm crossing at the proper place.^ So, where land has been gratuitously dedicated by the owner to the use of the public for a highway, a rail road company will be re- strained from taking it for the use of the road without compensation, or consent.^ 9. But a rail road company will not be restrained from excava:ting a highway, in anticipation that the bridge they intend to construct will not restore the highway to its former good condition.' ISor will a company be re- strained from building a rail road in a particular place, on the ground that the use of the locomotives there might or would be a nuisance.* 10. When a rail road has once been built and operated, the company will be enjoined from abandoning any portion of it, or removing the rails, unless in a case of the utmost necessity. The public have rights in it which should be protected.® So, a rail road company may be enjoined at the suit of a bridge company from permitting persons to cross the bridge without paying the toll.^ 11. An injunction will lie to restrain the commissioners of highways from taking possession of grounds acquired by a rail road company for the site of an engine house, etc., necessary for its use.^ So, where a rail road company alleges the right of way over a certain strip of land, and that the defendant is about to erect a flouring mill so near their track as not to leave sufficient room for its repair ' Wheeler V. Rochester, etc., R.R. 6 pgopie y. Albany & Vermont Co., 12 Barb., 227. E. E. Co., 19 How., 523. ^WilliamsT. N. Y. Cent. E.E. Co., « Thompson v. N. Y. & Harlem 16 N. Y. R., 97. R. R. Co., 3 Sandf. Ch., 625. 3 Baucus T. Albany Northern R.E. 'Albany Northern E. R. Co y. Co., 8 How., 70. Brownell, 24 N. Y. E., 345. * Hudson & Del. Canal Co. v. N. Y. & Erie E. R. Co., 9 Paige, 322. 248 PROVISIONAL REMEDIES. [Oh. in. and construction, an injunction may be granted to restrain the erection of the mill.' 12. So when the defendant agreed with a rail road company, that they might open a carriage way to their station over his land ; and after it had been opened and used some months, he proceeded to close it on the ground of an alleged violation of the agreement by the company. It was held that the damage which would be sustained by the plaintiff would justify the interposition of the court by injunction, leaving the defendant at' liberty to proceed for a specific performance of the contract.^ 13. When a rail road, authorized by the legislature to take private property for specific purposes, uses the same for unauthorized purposes, the corporation will be re- strained, at the suit of the original owner whose rights and comfort are prejudiced thereby.^ So, a rail road will be enjoined from using a highway without compensation to the owner of the fee.^ 14. So a covenant to stop all trains at a certain station willbe enforced by injunction.^ 15. An injunction against the building of a bridge will not be granted unless the evidence clearly shows that the • bridge, if erected, would be an obstructioil to the naviga- tion of the river.* Works of a public nature are not arrested by injunction, unless in clear cases of illegality and imminent and irreparable injury.' 16. There are three cases in which authority from the legislature is necessary to erect a bridge over a stream : One is where the stream is navigable ; second, where the 1 Cunningham v. Eome, etc., 27 ^Ljndgay v. 6t. North; R. R., 19 Geo., 499. Eng. L. and E., 87. 2N. Y. and N. H. R. R. Co. v. « Hutohinson v. Thompson, 9 Ohio Pixley, 19 Barb., 428. Rep., 52. sBoBtock V. North Staf. R R., 3 'Drake v. Hudson Riyer R. R., Smale and Giff., 283. 7 Barb., 508. * Williams v. N. Y. Cent. R. R., 16 N. Y. E., 111. § VII.] INJUNCTIONS. 249 state owns the bed of the stream ; and, third, where the right to take toll is desired.' 17. "But, though a bridge be built in one of the above cases without the authority of the legislature, no one, except the attorney general, can have an injunction to suppress it, unless specially injured. And where the plaintiffs were owners of a toll bridge, authorized by law, and the defendants were constructing a free bridge over the same stream at but a little distance, whereby the plaint- iffs would be greatly injured by losing their custom, an injunction was refused on the ground that the bridge of the defendants would not be a nuisance unless it obstructed navigation, and the plaintiffs not being navigators, were not in a condition to complain.'' So, where the plaintiff's charter prohibited & ferry within a certain distance of the bridge, it was held that such charter, being in derogation of the public rights, must be construed strictly, and an injunction was refused to restrain the defendants from erecting a bridge within one hundred rods of the plaintiffs' bridge.' 18. Where a company, incorporated to construct a plank road, had completed their road and erected a toll gate opposite the defendant's land, and the defendant opened and worked a road on his own land parallel to, and ad- joining the plank road, so that it was passable for travelers, and was used by them to pass the gate, to the injury of the plank road company, an injunction was granted to restrain the defendant from keeping the road open so as to be used for the public travel.* 'Fort Plain Bifidge Co. v. Smith, 'Mohawk, etc., v. Utica, etc., 6 SON. Y. K., 63. Paige, 554. 2 Fort Plain Bridge Co. v. Smith, * Auburn, etc., v. Douglass, 12 30 N. Y. R., 63. Barb., 553. 17 250 PROVISIONAL REMEDIES. [Ch. hi. SECTION- vni. TAXES AND ASSESSMENTS. 1. Wlien the sn*bject of equitable relief. 3. In what cases injunction proper. 3. Non-residents not to be relieved by. 4, Kemedles at law. B. Multiplicity of snlta — Belling property of (bird persons. 1. Taxes and assessments are not the subjects of equita- ble relief, except in special cases. Where the law has given to public officers, as assessors, a power which im- plies and requires the exercise of a sound judgment and discretion, the correction of their errors belongs to the supreme court as a matter of legal and not of equitable cognizance. In such cases a writ of certiorari, or of mati- damns, or of prohibition will be the proper remedy, rather than an injunction.^ 2. But in special cases, where the matter is brought within some acknowledged head of equity jurisprudence an injunction may be granted ; as where the tax or assess- ment asserts a lien upon real property^ and the defect is not apparent upon the face of the proceedings, or where, perhaps, in the case of personal property, it is shown that the enforcement of such tax or assessment will be an irre- parable injury, or will lead to a multiplicity of suits.^ Or where the tax is upon land, and the law allows it to be sold, to satisfy the tax, and the conveyance, to be executed by the proper officer, would be conclusive evidence of title, and the proceedings are regular on their face, a suit in the nature of a bill quia timet will lie. But independ- 1 Woodruff v. Fisher, 17 Barb., 224; Wilson v. Mayor, etc., 4 E. D. Smith, 675; see able opinion and analysis of oases in Wilson v. Mayor. 2 Heywood v. city of Buffalo, 14 N. Y. R., 534 ; Van Beck v. Village of Rondout, 15 Abb., 48. § vm.] INJUNCTIONS. 251 ently of such cases, there is no more reason for entertain- ing a suit of this character than there would he, where, in ^ an action for money, a party had a 'judgment against him upon an erroneous rule of law.^ 3. All injunction will not he granted to restrain the collection of a tax alleged to have heen illegally imposed upon the plaintiff, upon the ground that the. plaintiff was a foreign corporation and had no place of business within the state.^ Nor upon the ground that the plaintiff was a non-resident and had been duly assessed upon his per- sonal property and paid taxes thereon, in the state where he resides.* 4. The law provides ample means for rectifying such assessment, either by affidavit, while the assessment roll remains in the hands of the assessors ;* or on the review of such assessment by the board of assessors or commis- sioners of taxes, on the application of any person con- ceiving himself aggrieved ; ° or on an application to the board of supervisors to correct the roll and remit taxes;® or by a writ of certiorari, mandamus or 'prohibition.^ 5. An action in equity to restrain supervisors from im- posing a tax which will be a lien upon the plaintiff''s land, and a cloud upon the title, cannot be sustained upon the ground that it will prevent a multiplicity of suits, when it does not appear that any suits have been commenced or threatened against the plaintiff in respect to such tax.^ But an injunction will be granted to prevent an irrespon- sible officer from selling valuable property belonging to one person for a tax against another, upon condition that the tax be paid into court or a bond given for the amount.' 1 Susquehanna Bank V. Supervi- *! R. S., 392-3; Laws 1850, ch. 120. sors of Broome Co., 25 N. Y. K., 312. 6 id. 2]Vhitual Lifelns. Co. t. Supervi- « 1 B. S., 395, Laws 1844, chap, sora, etc., 33 Barb., 322; Aff'd by 250, §2; 1850, chap. 120. Court of Appeals, 32 How., 359. 'Wilson v. Mayor, etc., ut supra. 8 Wilson V. Mayor, etc., 4 E. D. sjiagee v. Cutler, 43 Barb., 239. Smith, 675. »Fuller v. Allen, 7 Abb., 12. 252 PROVISIONAL REMEDIES. [Cn. HI. SECTION IX. CONTRACTS. 1. In reatraint of trade. 8. Positive and negative covenants. 3. Covenants in articles of partnership. 4. Contracts for exclusive service. 6. Conditional contribation. 6. Goods pledged as security. 7. Agreements in court ; illegal contracts. 1. Equity is sometimes called upon to interfere by in- junction to restrain the breach of a contract or agreement, as an agreement not to exercise or practice some trade or profession within certain limits. The common law looks with disfavor upon contracts in restraint of trade, and a covenant not to exercise a trade anywhere, is void ; but a covenant not to exercise a trade or calling within such reasonable limits, as would render competition possible is valid and will be protected by the court.^ But where the contract itself fixes a penalty, as liquidated damages, the court will not interfere, but leave the plaintiff to his remedy at law.^ 2. The court cannot refuse to grant an injunction to restrain the violation of a contract, because there may be some part of the agreement which the court cannot com- pel the defendant specifically to perform; as where the contract contains positive and negative covenants, or covenants to do certain acts, and not to do certain other acts. Thus, where the agreement consisted of two parts, one by the defendant not to carry on the business of a tailor within twenty miles of Cornhill, the other by the 12 story's Eq. Jur., g 722 a; 2 a Vincent v. King, 18 How., 234. Pars, on Con., 254. § IX.] INJUNCTIONS. 253 plaintiff to employ the defendant and paty Mm certain wages, as long as he should carry on the business, and the defendant should conduct himself diligently and faithfully; although the court could not enforce the latter part, it could the former, and the defendant was enjoined accord- ingly.^ And a contract not to carry on a trade within a certain limit, is violated by acting as an employee is such business and will be enjoined.^ 3. So, where the articles of partnership contain an agreement by which each party covenants not to carry on any bueinesB, within one block of the premises occupied by the firm, within a certain limited period after the disso- lution of the partnership, suchi covenant will be enforced by injunction.' 4. But, as a general rule, in this country, an injunction will not be granted to restrain a party from violating a contract to render exclusive service, for a certain time, to one employer. Thus, where an actor covenanted with a manager, not to perform for a limited period, at any other than his theatre, the court refused an injunction to restrain a breach thereof.^ So, where the defendant, a singer, agreed to sing at the plaintiff's theatre for a specific period, and that during that engagement she would not sing elsewhere, an injunction was refused to restrain a breach.* So, under an agreement by the defendant, a danseuse, to dance at the plaintiff's theatre, or where he shall prescribe, with no negative or restrictive clause, the plaintiff cannot have an injunction to restrain a breach thereof.* So, an injunction will not be granted to restrain an artist from violating an agreement to work for plaint- iff.^ But a different rule is followed in England, and iRolfe V. Eolfe, 15 Simons, 88. Bganquirioo v. Benedetti, 1 Barb., 2 Vincent T. King, 13 How., 234. 315. s Shearman v. Hart, 14 Abb., 368. e Butler v. Galletti, 21 How., 465. *Hamblin v. Dinneford, 2 Edw., 'Frederick v. Mayer, 13 How., 529. 566. 254 PEOVISIONAL REMEDIES. [Ch. IIL violation of contracts, like the foregoing, will be re- strained by injunction.^ 5. Where a person contributes to a fiind for the erec- tion and endowment of a literary and theological seminary, on condition that it should be permanently located at a specified place where it was accordingly located, an injunc- tion was granted to restrain an illegal and unauthorized removal thereof to a,nother place.^ 6. "Where the plaintiff admits that there is a balance due from him to the defendant, he cannot have an in- junction and receiver to restrain the defendant from disposing of goods which he holds under a pledge as security for the amount due, without showing the de- fendant to be irresponsible.^ 7. A stipulation or agreement made by a party in the presence of the court, touching the subject matter of the litigation, is a contract with the court as well as the adverse party, and the court will enforce it for the pro- tection of the latter.* But an illegal contract to which, the party is a voluntary party will not be enforced.^ ^Lumley V. Wagner, 13 Eng. 'Bayard v. Fellows, 28 Barb;, 451. Laws and Eq., 252 ; Kemble v. Eean, * Banks t. American Tract Society, 6 Sim., 333. 48 Sandf. Ch., 438. ' Hasoall t. Madison, etc., 8 Barb., ^ Bennett v. American Art Union, 174. 5 Sandf., 614. §S.] INJUNCTIONS. 255 SECTI0I5" X. PATENTS, COPYRIGHTS, TRADE MARKS AND SIGNS. 1. Patents. 3. Copyrights, jurisdiction in case of. 3. Manuscripts. 4. Private letters. 6. Public lectures. 6. Manuscript books. *?. Evidence in an action. 8. Trademarks. 9. When imitation enjoined. iO. Imitation need not be perfect to jnstii^. 11. Must be a clear case. 13. Marks denoting quality not enjoined. 13. Names in common use. 14. Deceptive marks. 16. Sale of trade mark, 16. Similarity of parties' names. 17. Names of magazines and newspapers. 18. Names of hotels ; places of amusement, etc. 19. Consent to use of trade mark. 20. Preliminary Injunction granted only in clear case. 1. By the constitution of tlie United States, congress is empowered to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries. And, by successive acts of congress, the power of issuing injunctions in this class of cases is ex- pressly vested in the courts of the United States.^ In view of the foregoing provisions, it is decided in this state that the courts of the United States have exclusive jurisdiction, in cases of infringement of patents, and that the state courts cannot entertain an action instituted to restrain the infringement of a patent right.^ 2. The jurisdiction with respect to literary works stands on the same ground with mechanical inventions, so that our state courts could grant no injunction to restrain the invasion of a copyright.* 3. Akin to the violation of a copyright is the publica- tion of any manuscript without the consent of the author lU. S. Const., Art. 1, §8; 6 Laws V. S., 369; Laws of 1836, 242. 'Dudley v. Mayhew, 3 Comst., 9. 8 Id. 256 PROVISIONAL REMEDIES. [Ch. HI. or legal owner, and it matters not whether it be a manu- script treatise, or letter written by or to him, either of business or friendship, or on any other occasion. By the act of congress of 1831, in relation to copyrights, it is enacted that any person or persons who shall print or publish any manuscript whatever, without the consent of the author or legal proprietor first obtained (if such author or proprietor be a citizen or resident of the United States), shall be liable to an action for damages, and the seycsral courts of the United States are empowered to grant in- junctions to prevent such publication of any manuscript, according to the principles of equity.^ But the jurisdic- tion is not limited to the federal courts, and that of the state courts is concurrent. So, by the common law, an author has a right of property in his unpublished manu- scripts, of any kind, without reference to their pecuniary value.'' , ^ ' 4. The publication of private letters will be enj6inedby the court, without regard to their literary merit or value, and this either in pursuance of the common law,' or under the pro\dsion of federal laws above referred to.^ Though the right of property is enough to lay the foundation for an injunction to restrain the unauthorized publication of another's manuscript, or letters, still, it is believed, that, where the publication involves a breach of trust and confl-< dence, a court of equity may, on that ground, d,lone, inter- fere.° The writing and sending of a letter, does not give the receiver a right to publish it. That right remains in the writer, unless, where it is necessary for the receiver to publish the letter to maintain his action or defense in a court of justice ; or to vindicate himself from any unjust aspersions cast upon him by the writer.^ Private letters » Laws of 1831, chap. 15, g 9. 6 Peroival v. PJiipps, 2 Ves. and 2 Curtis on Copyriglita, 84 B., 19 ; Eden onlnj., 325. 8 WodlBoy V, Judd, A Duer, 379. ' Woolsey v. Judd, 4 Duer, 379 ; 2 *Bartlett v. Crittenden, 5 McLean, Story's Rep., 110, 111. 34. § X.] INJUNCTIONS. 257 do not become assets in the hands of the receiver's ad- ministrator, and cannot be sold by him for the payment of debts.'' An injunction was granted to restrain the pub- lication of letters from an old lady, under a weak attach- ment to a young man, there having been an agreement not to publish the letters, but to deliver them up for a valuable consideration^ and a sum of money having been actually paid to the defendant.^ 5. So a public lecturer may enjoin the publication of his lectures or notes of the same, without his consent,. and it is immaterial whether the lecture was written or oral. 1^0 person allowed, for fee or reward, to attend a lecture, has any right to publish, in any manner, such lecture. , He may make notes or copies thereof for his own private use, but nothing more.^ 6. So an injunction was granted against the printing of the manuscript of Lord Clarendon's History, a copy of which had been given by Clarendon to the father of the defendant, but not for publication.'' So the publication of a manuscript of a work on Bookkeeping may be enjoined, though the system is not complete.' Where one is em- ployed by the manager of a theatre to write plays, and in pursuance of that employment has written a drama, it amounts to an equitable assignment of the drama to the manager. But averring such facts on information and belief, is not suflBcient to dissolve an injunction, granted at the suit of the author against a third person.^ 7. But an injunction to restrain the publication of the evidence or proceedings in an action, can only be granted by the court in which the action is pending, and by an order in that cause.' lEyre t. Higbee, 35 Barb., 502. ^Queensbury v. Shebheare, 2 Ed., 2 V. Baton, cited in 2 Ves. 329. and B., 19; Grauard v. Dunken, 1 SBartlettv. Crittenden, 5 McLean, Ball & B., 209. 32. 3 Mott v. Bell, decided 1839, cited « Jones v. Thome, 1 N.Y. Leg. Obs. , in Hoff. Pro Kem, 233; see also 2 408. Kent, 378. > Wood v. Marvine, 3 Duer, 674 258 PROVISIONAL REMEDIES. [Ch. HI. 8. Somewhat analogous to the subject of patents and copyrights, is that of trade marks. The law of trade marks is of recent origin, and may be comprehended in the proposition that a dealer has a property in his trade mark. The ownership is allowed to him that he may have the exclusive benefit of the reputation which his skill has given to the article made by him, and that no other per- son may be able to sell to the public, as his own, that which is not his.-* The question, in such cases, is not whether the complainant was the original inventor or proprietor of the article made by him, and upon which he now puts his trade mark; nor whether the article made and sold by the defendant, under the complainant's trade mark, is an article of the same quality or value. But the court proceeds upon the ground that the complainant has . a valuable interest in the good will of his trade or busi- ness ; and that, having appropriated to himself a particu- lar label, or sign, or trade mark, indicating to those who wish to give him their patronage, that the article is manu- factured or sold by him, or by his authority, or that he carries on his business at a particular place, he is entitled to protection against any other person who attempts to pirate upon the good will of his friends or customers, or the patrons of his trade or business, by sailing under his flag, without his authority or consent.^ The law is per- fectly clear that any one who has adopted a particular mode of designating his particular manufacture, has a right to say, not that other persons shall not sell exactly the same article, better or worse, or an article looking exactly like it, but that they shall not sell it in such a way as to steal his trade mark, and make purchasers believe that it is the manufacture to which that trade mark was originally applied.' > Clark V. Clark, 25 Barb., 76. 'Farina v. Selverlock, 39 En. L. ^Partridge v. Menok, 2 Barb. Ch., and Eq. B,., 514. 101. § X.] INJUNCTIONS. 259 9. An injunction ought to be granted whenever the design, apparent or proven, of a person who imitates a trade mark is, to impose his own goods upon the public as those of the owner of the mark, and the imitation is such that the success of the design is a probable, or even a possible consequence; and an injunction must be granted whenever the public is, in fact, misled, whether intentionally or otherwise.^ Thus, where the manufac- turer of steel pens used the mark " No. 303," to denote an extra quality of pens, and the mark "No. 753," to denote an inferior quality, the former being sold by him for 75 cents per gross, and the latter for 18 cents, the defendant was enjoined from removing the maker's labels from the boxes containing the inferior pens, and placing thereon labels,- made in imitation of those used by the manu- facturer to denote the' superior pen.^ So, the manu- facturer of a soap, designated as the " Genuine Yankee Soap," was granted an injunction to prevent the use, by the defendant, of that name, and of labels and devices similar to those of the plaintiflf.' 10. 'Sot is it necessary, to justify an injunction, that the resemblance between trade marks should be entire and perfect. It is sufficient that the intent of misleading the public, as to the ownership or origin of the goods, is apparent, and the court will enjoin any imitation which requires a careful inspection to distinguish its marks from the genuine.* Thus where the plaintiff used the name or stamp of " Brooklyn White Lead Company," upon the kegs of white lead manufactured by them, the defendant was injoined from labeling his kegs "Brooklyn White Lead and Zinc Company," but might label them " Brooklyn White Lead." ®^ So, an injunction lies against 'Amoskeag Manuf. Co. t. Spear, «Id. 2 Sandf., 599. 6 Brooklyn White Lead Co., v. 2 Gillott V. Kettle, 3 Duer, 624. Masury, 25 Barb., 416. * Williams v. Johnson, 2 Bosw., 1. 260 PROVISIONAL REMEDIES. [Oh. HI. the running of omnibuses, bearing names, words and devices which colorably imitate those on the omnibuses of the plaintiff.^ So, where the plaintiff designated his manufactures by the term " Taylor's Persian Thread/' and the defendant imitated the title and also form and color of the spools, ' envelopes, etc., an injunction was granted.^ So, where the plaintiff gave a preparation pre- pared by him, the appellation of "Burnett's Cocoaine," the defendant was enjoined from using the term " Phalon & Son's Cocoaine." ^ 11. But where it is not clear that the compl&,inants' trade nlarks are simulated in such a manner as to deceive his customers and the public, the court ought not to grant an injunction, until after the right has been established at law. Though the court will hold any imitation colora- ble which requires a careful inspection to distinguish it from the genuine, yet it is not bound to . interfere where ordinary attention will enable a purchaser to discriminate. It is not sufficient to show that persons unable to read the labels might be deceived by the resemblance, but it must be shown that the ordinary mass of purchasers, paying that attention which persons usually do in buying the ar- ticle in question, might be deceived.* Thus, where the complainant put up and sold matches in boxes labeled "A. Golsh's Friction Matches," and the defendant used a label which was partly concealed by being turned under the cover, but which showed, when the box was closed, the words "Late Chemist for A. Golsh," and the defend- ant's place of business was stated, and the devices on the labels were materially different and the defendant's name was stated upon that part of the label which was beneath the cover. It was held that, as the difference was so great 1 Knott V. Morgan, 2 Keen., 213. 3 Burnett v. Phalon, 19 How., 530. 2 Taylor v. Carpenter, 2 Sandf. * Partridge v. Menok, 2 Sandf. Ch., 603, 11 Paige, 292. Ch., 622 . 2 Barb. Ch., 101. § X.] INJUNCTIONS. 261 that a person in the habit of buying one article would not suppose that the other was the same article, an injunction should not be gran^ed.^ So, where the plaintiffs' trade mark contained the words: "Merrimack Prints — Fast Colors — Lowell, Mass," but the defendant's was in form : "English Free Trade — Merrimack Style — "Warranted Fast Colors," it was held that the resemblance was not sufficient to warrant an injunction, pending a suit at law.^ 12. Where words, marks or devices do not denote the goods or property, or particular place of business of a per- son, but only the nature, kind or quality of the article in which he deals, a different rule prevails. No property in such words, marks or devices can be acquired.^ Thus, where it appeared that such words as " Lake," " Cylinder " "Gralen" and "E'ew York" were used by manufacturers and dealers in glass to denote a certain quality of glass, an injunction was refused.* So, 'where the plaintiffs claimed that their trade mark " A. C. A," used on their ticking, signified " Amoskeag Company, best quality," but it appeared on the other side that the label was used to denote best quality of the manufactory and was only an indication of quality, an injunction was not granted.^ So where it appeared that the term " Club House G-in " indi- cated merely the superior quality of the article, an injunc- tion was refused.* . 13. So, where the name or term has been in common use, as applicable to similar articles, prior to its use by the plaintiff, he can acquire no exclusive right to its use. As where it appears that the term " Schnapps " was in com- mon use in "Schiedam" to designate gin, it was held. iPartridgev. Menok, 2Saudf. Ch., *Id. 622; Aff'd. on appeal, 1 How., app. » Amoskeag Manuf. Co. v. Spear, case, 547. 2 Sandf., 599. 2 Merrimack, etc., v. Garner, 4B sCorwin v. Daly, N; Y. Superior D. Smith, 387. Ct., cited in Upton on Trade marks, 'Stokes T. Landgraff, 17 Barb., 187 608. 262 PROVISIONAL REMEDIES. [Ch. HI. that there could be- no such exclusive right to the phrase "Aromatic Schiedam Schnapps" as would sustain an in- junction.^ So of the term "Essence of Anchovies."'' So, it .was held, by Mr. Justice Duer, in Fetridge v. "Wells,* that a trade mark right could not be acquired in the term "Balm of a Thousand Flowers," as applied to a perfumed liquid soap. But it was held otherwise by Mr. Justice Hoffman in Fetridge v. Merchant.* 14. The court will not interfere by an injunction, in limine, to protect a party in the use of trade marks which are employed to deceive the public, and to deceive them by fraudulent representations contained in the labels and devices which are claimed to constitute wholly, or in part, such trade marks. The court does not refuse to interfere from any regard to the defendant, 'who is using the same efforts and misrepresentations to deceive the public, but on the principle that it will not interfere to protect a party in the use of trade marks which are employed to deceive the public, and to deceive them by fraudulent representa- tions contained in the labels and devices which are claimed to constitute wholly, or in part, such trade marks.' So, a court will not interfere where the name of a compound is deceptive as to its ingredients, and the plaintiff's adver- tisement is deceptive as to its virtues.* But, Mr. Justice Hoffman held in Fetridge v. Merchant, that if the article was innocuous, and the name merely a chemical untruth, the plaintiff should not be deprived of protection, and that the question should be judged of solely as between the immediate parties, and that the public should be left to its own guardianship.' But the use of fictitious names as a trade mark upon articles of intrinsic value, will be pro- 1 Wolf V. Goulard, 1-8 How., 64. 6 Hobbs v. Prancais, 19 How., 567. ^Burgess t. Burgess, 17 En. L. « Fetridge t. Wells, 4 Abb., 144; and Eq., 257. S. C, 13 How., 885. 8 18 How., 385; 4 Abb., 144. '4 Abb., 156. 4 4 Abb., 156. § X.] INJUNCTIONS. 263 tected. As where the plaintiff used, upon thread manu- factured by them, the mark "Hall & Moody's Patent Thread, Barnesley," and the defendants offered to show- that the thread was not patented, and that the thread was not made by Hall & Moody, nor at Barnesley, it was held that such facts would constitute no defense.^ But in such cases the legal right should be first established at law. 15. Where B, who had acquired a reputation as a watch maker, and who stamped all watches made by him, with his name, sold to S, the right to stamp his name on all watches made by S, and S sold such' right to the plaintiff, an injunction to restrain the defendant from selling genu- ine watches of the manufacture of B, and stamped with his name, was denied.^ i 16. In an alleged infringement of a right to trade marks, the court must ascertain whether the resemblance and differences are such as naturally arise from the necessity of the case, or whether they are simply colorable, and obviously intended to deceive the public. Where the similarity results from the like, or similar names of per- sons engaged in the same business, an injunction should not be granted.^ 17. An injunction will be granted against publishing a magazine in the name of one who no longer authoriz.es it.^ Or against assuming the name of a newspaper pub- lished by the plaintiffj for the purpose of deceiving the public, and supplanting the good will of such paper.® But the names, "Democratic Republican ]S"ew Era," and "New Era," are too dissimilar to deceive the public.^ 18. So the continued use of a name of a hotel will 1 Stewart t. SmithBon, 1 Hilton, s Clark v. Clark, 25 Barb., 76. 119; so held alBO in Dale v. Smithson, * Hogg t. Kirby, 8 Ves., 215. Com. Pleas Gen. Term, 1861, cited ^ Bell v. Look, 8 Paige, 75. HofF. Pro Rem, 248. e Id. 2 Samuel t. Berger, 4 Abb., 88; S. C.,24 Barb., 163; 13 How., 342. 264 PROVISIONAL REMEDIES. [Ch. HI. entitle a party to an injunction against its adoptidn by another. As where the plaintiff opened a hotel by the name of the "Irving Ho.use/' which soon became known as the "Irving Hotel," as well as the "Irving House; " the defendant was enjoined from adopting the name "Irving Hotel," for another house.' So, the owner or conductor of a place of public amusement may have an injunction to prevent the use, by another of the name or designation adopted by him.^ So, where the plaintiff and defendant were formerly copartners, an injunction may be granted to restrain the use by the defendant, of the signs containing the old firm name, without sufficient alterations to denote the change in the firm.^ 19. But the consent of a manufacturer, or other person to the use or imitation of his trade "mark by another, may be inferred from his knowledge and silence; but his consent whether expressed or implied, when purely gra- tuitous, may be withdrawn. It is merely a revocable license, and is no cause for refusing an injunction.* 20. A preliminary injunction to enjoin the defendant from the use of plaintiff's trade mark should in no case be granted, unless the legal rights of the plaintiff, and its violation by the defendant, are very clear. "Where the title is in dispute, the course is to let the motion for an injunction stand over, until the plaintiff has established his legal title in an action at law.' 1 Howard V. Henriques, 3 Sandf., White Lead Co. v. Masury, 25 725. ^ Barb., 416.. »Christyv. Murphy, 12 How., 77. ^jierrimack Manuf. Co. t. Gar- » Peterson v. Humphrey, 4 Abb., ner, 2 Abb., 318; S. C, 4 E. D. 394. Smith, 387; Samuel t. Berger, 24 < Amoskeag Manuf. Co. v. Spear, Barb., 163 ; 13 How., 342. 2 Sandf., 599 ; but see Brooklyn § XI.] INJUNCTIONS. 265 SECTION XI. NEGOTIABLE INSTRUMENTS, DEEDS AND STOCKS. 1. General rale as to negotiable paper. 3. In what cases transfer of, enjoined. 3. What holder of negotiahle paper must show, to enforce same. 4. Hiscellaneons cases where transfer en- joined. 5. Offsetting debts ; notes given for value- less bills of exchange. 6. Transfer of stocks. 7. Sailing of ships. 8. Canceling deeds and instruments. 1. " It is a general principle, applicable to the transfer of commercial paper, as bills of exchange, promissory notes and the like, that a transfer before the paper is dis- honored carries no suspicion on the face of it, and the holder, receiving it on its own intrinsic credit, is not bound to inquire into any circumstances existing between .the assignor and any of the previous parties to the bill or note, as he will not be aftected by them, unless, indeed, the circumstances under which he takes the same be such as would naturally have excited the suspicion of a prudent and careful man. Hence, should the note or bill be affected with fraud in its inception, but transferred in the . usual course of business, for a fair and valuable consider- ation, parted with at the time, and without notice of the fraud, or other infirmity in the title, it cannot be impeached by the maker." ^ A party, therefore, who has given a bill or note under circumstances which constitute a defense between the immediate parties, or where circum- stances arise, after the giving of such an instrument, which would constitute a valid defense, the maker or ' Will. Eq„ 859, and cases "cited. 18 266 PROVISIONAL EEMEDIES. [Ch. IH. indorser may restrain the transfer of such instrument.^ For should such note or bill be allowed to pass before maturity, into the hands of a bona fide holder, such de- fense would prove of no avail.^ 2. Thus, where a check or negotiable paper is made and delivered to a person, for the sole purpose of having such person raise money on it and take up a check of the same amount, loaned to him previously by the plaintiff, and there is an express agreement between them that it shall be used for that purpose only, an injunction will be granted to restrain the defendant, who has received it from such person as collateral security for an antecedent debt, from negotiating it.^ So, where the drawer of two bills of exchange obtained the accommodation indorse- ment of the plaintiff by fraud, and negotiated the bills thus indorsed to the defendants, to meet an old indebt- edness, and without receiving any new consideration, an injunction was granted to restrain the defendants from negotiating the bills, or from enforcing their collection.* 3. To entitle a holder of negotiable paper, which has been procured by fraud, to retain and enforce the same against the party defrauded, he must show that he paid value for it at the time, or incurred some responsibility, or relinquished some right, or discharged a precedent debt, upon the faith and credit' of the paper.^ 4. So, where it appears that an- individual partner, in- debted to the partnership, being unable to pay his separate bill holden by his bankers, substitutes for it by a negotia- tion with them, a partnership security, made and given without the consent or knowledge of his copartners, and the bankers are aware that it is so given, an injunction may be granted to restrain its negotiation.' So, where a 1 Smith T. Haytwell, Ambler, 67 ; * Farrington v. Frankford Bank, 3 R. S. (6fh ed.), 839. son, 11 Abb., 87; Ward v. Kelsey, 2The following cages held that it 14 Abb., 106. had been repealed: Cure v. Craw- 'Griffith v. Brown, 28 How., 4. ford, 5 How., 293; Capet v. Pai-ker, = Forrester v. Wilson, 1 Duer, 624. 3 Saudf., 662. e Ward v. Kelsey, 14 Abb., 106. • 'Forrester v. Wilson, 1 Duer, 'Capet v. Parker, 3 Sandf., 662. 624; Duigan T. Hogan, 1 Bosw. 8 yaUoton v. Seignette, 2 Abb.,121. 645 ; 16 How., 164 ; Marks V. Wil- »Hil. on Inj., p. 165, and oases. 278 PEOVISIONAL REMEDIES. [Ch. EL defense to au action, is prevented by the fraud of the plaintiff in the suit and others, from setting up that defense and a judgment is obtained against him without any neg- ligence or fraud on his part, an injunction may be issued to restrain the enforcement of such judgment.' But an injunction will not be granted to stay proceedings on a judgment, on the ground that defendant was prevented, by public business, from making preparation and attend- ing trial; and that by subornation of perjury plaintiff had recovered more than he was entitled to, and that a new trial had been refused.^ 22. Where-a judgment, which has been paid, is fraudu- lently kept on foot and sought to be enforced to the prejudice of a junior judgment, an injunction will be granted. So a landlord will be restrained from enforcing a judgment of dispossession, for non-payment of rent, if the judg- ment has been obtained by surprise, as where the defend- ant had not time to reach the court room after the service of the process and before the trial.' So, if after recovering judgment, the- judgment creditor enter into a new con- tract qualifying his rights under such judgment, he may be restrained from proceeding in violation of that con- tract.* Bht a court will not restrain the collection of a judgment which has been obtained without fraud or mis- take upon issue joined, and as the result of a litigation, unless it is shown that the execution of the judgment will be contrary to equity and good conscience, and that the facts which render the judgment inequitable were not available as a defense in the action.* 23. 1 So, where a judgment of a justice's court is regular on its face, but void for want of jurisdiction, the supreme iHugginsv. King, 3 Barb,, 616. 'Forrester v. Wilson, 1 Duer, 624; 2 Smith v. Lowry, 1 John. Ch., 320. Griffith v. Brown, 28 How., 4. Woodworth v. Van Buskerk, id., *Van Wagenen t. LaFarge, 13 482. How., 16. sciutev. Potter, 37 Barb., 199. § XII.] INJUNCTIONS. 279 court may, by injunction, restrain all proceedings on it.^ Or where a judgment has been regularly taken, in such court, but which ought on equitable grounds to be vacated, its enforcement may, be restrained, as such court has no power to vacate its own judgments.'' 24. But as has been before stated (pi. 6) the statutes have provided that proceedings on a judgment shall not be restrained unless security be given as therein provided, and it is held that the Code has not repealed or altered such provision.* An injunction cannot be issued to stay proceedings at law on a judgment or verdict, except those provisions are complied with, and the injunction; if issued without a compliance with those terms, will be set aside for irregularity.* 25. "When the commencement of an action shall be stayed by injunction or statutory prohibition, the time of the continuance of the injunction, or prohibition, shall not be part of the time limited for the commencement of the action." So, the time during which a party recovering a judgment shall be restrained from proceeding thereon, by any injunction of any court, shall not .constitute any part of the ten years limited as the period of active liens of injunctions ; but to entitle any party to such deduction he shall within ten years from the docketing of the judg- ment, file with a clerk of the court in which such judg- ment was obtained, a notice specifying the injunction by which proceedings on such judgment shall have been restrained, and the time of service thereof, and if such restraint shall have ceased, such party shall specify the duration thereof.^ 1 Cooper V. Ball, 14 How., 295, *CookT. Dickerson, 2Sandf., 691 ; ,and Bee Moore V. Lyttle, 4 John. Ch., Jenkins v. Wild, 2 Paige, 394; 185. Christie Y. Bogardus, 1 Barb. Ch., 'Martin v. Mayor, etc., 20 How., 167. 86 ; 11 Abb., 295, Aff'd 12 Abb., 243. 6 Code, ? 105. » Cook V. Diokerson, 2 Sandf., 691 ; «3 R. S., 5lh ed., 637. Watt V. Rogers, 2 Abb., 261. 280 PROVIBIOlirAL REMEDIES. [Ch. m. SECTION" xin. IN CREDITOR'S SUITS. 1. Provision of revifled etatates as to. S. Not aliolislied ty the Code. 3. Wliat creditor maet eliow to maintain ; recejyer. 4. Assignee Bding pending . injunction, guilty of contempt. 6. ConfesBlng jndgment when contempt. 6. CariTlng into effect a preTions assign- ment. 1. " Whenever an execution against the property of a 'defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied in whole or in pai't, the party suing out such execution may file a bill in chancery against such defendant and any other person, to compel the discovery of any property, or thing in action belonging to the defendant ; and of any property, money or thing in action, due to him or held in trust for him,- and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded from some person other than the defendant himself." ^ 2. So far as regards obtaining a discovery by means of this form of proceeding, the above provisions are entirely superseded, and, in fact, repealed by section 389 of the Code. The other relief for which the section provides is, however, still obtainable by means of this form of pro- cedure^ and, therefore, with the above exception, they may be looked upon as still existent, and unrepealed in matters of substance, though abolished, as regards pure 13R. S., 5th ed., 264, g 43. §Xin.] INJUNCTIONS. 281 matters of form, where inconsistent with the mode of procedure prescribed by the Code.^ 3. To enable a creditor to maintain an action under the above provision, he must be a judgment creditor and he must show that he has exhausted his remedies at law on the judgment, that is that an execution has been issued and duly returned. A simple contract creditor cannot maintain, the action.^ But an attaching creditor bias before judgment a sufficient lien for that purpose.* A mere contract creditor cannot maintain an action against a defendant and his fraudulent assignee, to restrain the latter from disposing of the assignee's property amd to have the assignment declared void.* Where the plaintiff obtains an injunction to restrain the defendant from dis- • posing of his property, it is his duty to apply for a receiver, and if he neglect to do. so the injunction will be dissolved.* 4. Where, in a creditor's suit against an assignor and assignee, to set aside a general assignment as illegal and void, an injunction was granted, restraining the defend- ants from disturbing, holding possession of, or interfering in any manner with the effects of the assignor, it is a vio- lation of the injunction, and a contempt of court, for the assignee thereafter, to bring an action against the plaintiff and others, to collect choses in action belonging to the assignor.^ 5. Though, confessing judgment would not be a viola- tion of an order in a creditor's suit, any actual interference by the defendant with his property, as procuring an execu- tion to be issued on behalf of another creditor and taking iWhittaker's Practice, vol. 1, p. 'Rinchey t. Stryker, 26 How., 921, citing Catlin t. Doughty, 12 75; Greenleaf v. Mumford, 30 How., How., 457 ; Hammond v. Hudaou K. 30. ,Ins. Co., 20 Barb., 378, etc. * Reubens v. Joel, supra. 2 Reubens v. Joel, 3 Ker., 488; see ^Osborn v. Heyer, 2 Paige, 343 ; also Bayaud v. Fellows, 28 Barb., Bloodgood v. Clark, 4 Paige, 574. 451 ; Cropsey T. McKinney, 30 egmith y. N. Y. Consolidated Barb., 47. Stage Co., 28 How., 277. 19 282 PROVISIONAL REMEDIES. [Ch. m. his property to the sheriff, would be a violation.* But, confessing judgment with a view to defeat the remedy of the plaintiff id a creditor's suit and interposing delay, so as to secure the prior appointment of a receiver in a proceeding upon the confessed judgment, is a violation of the injunction in the creditor's suit and a contempt of court.^ 6. So, merely cq,rrying into effect, by procuring novar tion, a previous assignment of a right of action, is not a breach of injunction in a creditor's suit; as, where an offi- cer, having unaudited claims against a county, assigned specific portions to various persons, in payment of debts, agreeing to give orders in favor of the assigneies, and was ' afterwards served with an injunction in a creditor's suit ; and, subsequently, when the claims were audited, re- quested supervisors to issue orders in pursuance of such assignment, it was held to be no breach of the injunction.' See further on this subject post, chapter v. 1 Lansing v. Easton, 7 Paige, 364. s Richardson v. Rust, Paige, 243 ; sRoBS V. Clussman, 3 Sandf., 676. see Ireland v. Smitli, 3 How., 244. §xiv.i INJUNCTIONS. 283 SECTION XIV. COBPOEATIONS. 1. May be eqjoined. 5. LijimctionB against, bow granted. 3. ProvlBlons of revised statutes concern- ing. 4. Alienation of property. B. On whose application, visitorial power exercised. 6. When stockholder cannot liave receiver on preliminary injunction. 7. Corporation a necessary party. 8. Directors cannot discontinue corporate business. 9. Corporation dissolved after one year's suspension. 10. What acts anionnt to a suspension. U. Corporations having banking powers when enjoined. 15. Eestraining proceedings at law by cre- ditors. 13. How creditors are to make themselves parties. 14. Wrongful acts by directors : neglect to hold election. IB. Moneyed corporations ; statutory defi- nition. 16. What acts unlawful in directors of moneyed corporations. IT. Transfers vrith intent to give preference ; when void. 18. Bestraining creditors &om obtaining judgments. 19. Banks formed under the act of 1838. 20. When a majority of a corporation can- not control, gl. Bestraining opening of transfer books. SS. Payment of dividend, when restrained. 23. Application by the attorney general. 24. Statute of 1849. Injunctions against banldng associations. 2B. Of the hearing before judge, Injunction continued till claim paid. 26. When declared Insolvent, and re- strained. , 27. On application of stockholders, when injunction granted. 28. Suspension of specie payment no proof of insolvency. 99. Injunction against munUiipal corpora- iione. 30. WiU not enjoin passage of resolution or ordinance. 31. Control and regnlation of streets. 32. Granting easement in a street. 33. Bestraining appropriation of money. 34. Enjoining wrongful injury to another. 3B. Enjoining assessments. 36. Who may have an injunction, 37. EeligiouB corporations. 38. All officers and members restrained by injunction against corporation. 39. How enforced against corporation. 1. Corporations, both municipal and private, may sue and be sued in all courts in like cases as natural persons ; and a court of equity may restrain them from any illegal, corrupt, fraudulent or oppressive exercise of their corpo- rate powers. But where the injunction, in limine, is sought on the ground of fraud, or corruption, some particular act of fraud or prima facie evidence of corruption should be 284 PROVISIONAL EEMEDIES. [Gh. HI. sliown ; ^ and where there is to be a trial involving a for- feiture of corporate rights, a preliminary injunction will not be granted unless it appear from the papers before the court that serious injury will follow the refusal.^ 2. An injunction to suspend the general and ordinary business of a corporation can only be granted by the supreme court, or a judge thereof ; nor cian it be granted without due notice of the application to the proper officer of the corporation, except when the people of this state are a party, or in proceedings to enforce the liability of stock- holders in corporations and associations for banking purposes, as such proceedings are or shall be provided by law ; or unless the plaintiff shall give the undertaking re- ■ quired by the Code.^ . ' 3. Although the Code has abolished the distinction between actions at law and suits in equity, yet the pro- ceedings against corporations in equity, as provided by tbe revised statutes, are preserved by section 471 of the Code, and provision made for securing them by civil action in conformity to that act. By the revised statutes it is 'provided that " upon a civil action being commenced by the attorney general, in the supreme court, it shall have power to restrain by injunction any corporation from . assuming or exercising' any franchise, liberty or privilege, or transacting any business, not allowed by the charter of such corporation ; and in the same manner to restrain any individuals from exercising any corporate rights, privileges, or franchises, not granted to them by any law of this state." * "Such injunction may be issued before the coming in of the answer, upon satisfactory proof that the defendants, complained of, have usurped, exercised or claimed any franchise, privilege, liberty or corporate 'Darisv. Mayor, etc., of N. Y., * People v. Harlem Bridge Co., 1 14 N. Y. K., 506 ; Champlln v. Abb., N. S. 169 note. Mayor, etc., of N. Y., 8 Paige, 573. sCode, ? 224. *8R. S,(5thed.), 762, §39. §SI¥.] INJUNCTIONS. 285^ right not granted to tliem; and after the coming in of the answer such injunction may be continued until judgment at law shall have been had." '■ 4. The statutes also provide that the supreme court shall have jurisdiction over directors, managers and other trustees and officers of corporations, to set aside all aliena- tions of property made by the trustees or other officers of any corporation contrary to the provisions of law, or fdf purposes foreign to the lawful business and objects of such corporation, in cases where the person receiving such alienation knew the purpose for which the same was made; and to restrain and prevent any such alienation' in cases where it may be threatened, or there may be good reason to apprehend it will be made.'' It further provides that the jurisdiction conferred by the section cited above shall be exercised as in ordinary cases, on bill" or petition, as the ease may requite or the supreme court may direct, at the instance of the attorney general, prose- cuting in behalf of the people of this state, or at the instance of any creditor of such corporation, or at the in- stance of any director, trustee or other officer of such corporation having a general superintendence of its con- cerns.^ 6. The visitorial power conferred by the above sections, can only be exercised by the supreme court, on the appli- catiop of the attorney general, prosecuting in behalf of the |)ieople of this state, or at the instance of a creditor of the corporation, or of a director, trustee or other officer having a general superintendence of its concerns. An action cannot be brought under this statute by a stock- holder, against the corporation and its trustees, to have the corporation dissolved, and to restrain the exercise of corporate power ; to restrain the trustees from exercising 13 R. S. (5th ed.), 762, ^40- » 3 B. S. (6th ed.), 763, i 43. nd. § 41. subs, 7, 8. V ;. .« 286 PROVISIONAL BBMEmES. [Ch. in. any powers as trustees, and for the appointment of a receiver and the sale of the property of the corporation ; nor can the court entertain such an action, or grant the relief prayed for under its general powers as a court of equity.^ 6. In no case, except in respect to moneyed corpora- tions, or insolvent corporations, can a stockholder have a receiver appointed on a preliminary injunction, with authority to take entire possession of the corporation, and thereby work its dissolution. Yet, on the application of a stockholder charging fraud against some of the trustees or directors, it seems such directors or trustees may be restrained by injunction from committing any such fraudulent acts as are charged. But such injunction should apply only to the particular acts complained of, and not to the general business of the corporation.^ 7. Upon a bill filed prior to the adoption of the revised > statutes by certain stockholders of an incorporated com- pany, against the individual.directors for fraud and mis- management in the execution of their trust, by which the property of the corporation was dissipated and lost, it was held that the corporation 'was a necessary party, either as complainant or defendant.' 8. The directors of a corporation, even with the consent of the stockholders, are not authorized to discontinue the corporate business, and to distribute the capital stock among the stockholders, unless they are specially author- ized by a legislative act, or by a decree of a court of equity dissolving the corporation in the manner prescribed by law.^ Where the money which should have been divided among the stockholders, is applied contrary to the charter, or articles of agreement, it is a breach of trust, and a • Howe V. Deuel, 43 Barb., 504. < Ward v. Sea Ins. Co., 7 Paige, 2 Howe T. Deuel, supra. 294. 8 Robinson v. Smith, 8 Paige, 222. § XIV.] INJUNCTIONS. 287' fraud on the part of tlie majority towards the minority, who may have remedy by injunction.^ 9. Whenever any incorporated company shall have remained insolvent for one whole year, or for one year shall have neglected or refused to pay and discharge its notes or other evidences of debt, or for one year shall have suspended the ordinary and lawful business of such corporation, it shall be deemed' to have surrendered the rights, privileges and franchise granted by any act of incor- poration, or acquired under the laws of this state, and shall be adjudged to be dissolved.^ 10. When a corporation which had been incorporated for the purpose of making marine insurance and of lend- ing money upon bottomry and respondentia security, suspended the business for which it had been incorporated, for more than a year, under a formal resolution to that effect, by the board of directors, it was held that the corporation had forfeited its charter, and was liable to be dissolved under the above provision of the statute, although the company in the mean time had attended to the adjustment of losses upon risks previously assumed, and to the business of coUfecting in and securing the corporate fund.* So, where a manufacturing corporation made a lease of all its works and property to its president, who owned a majority of its stock, for a period of two years and a half, and the business of the corporation was continued by the lessee, in the same manner as before the lease was given, it was held that the lease was void because it was the act of the stockholders and not of the directors, by whom alone a corporation could act, and, also, because the effect of such lease was to suspend the ordinary business of the corporation for more than a year 1 March t. Eastern, etc., 43 N. H., 294 ; see In the Matter of the Jack- 515- sou Marine Ins. Co., 4 Sandf. Ch., 2 3 R. S. (5th ei.), 763, ? 46. 569. 'Ward Y. Sea Ins. Co., 7 Paige, 288 PBOVISIONAL REMEDIES. [CH.:in. and thus amounted to a surrender of its rights, privileges and franchises, within the- above section.^ But in order to infer a surrender of corporate franchises from insolv- ency or suspension. of business for less than a year, the circumstances must bp such as to show that the corpora- tion had lost all power to continue, or to resume its busi- ness.^ 11. Again, the statute- provides that "Whenever any cor- poration having banking powers, or having the power to make loans on pledges or deposits, or authorized by law, to make insurances, shall become insolvent or unable to' pay its debts, or shall have violated any of the provisions of its act, or acts of incorporation, or of any other act binding on such corporation, the supreme court may, by injunction, restrain such corporation and its officers from exercising any of its corporate rights, privileges or fran. chises, and from collecting or receiving any debts or de- mands, and from paying out or in any way transferring or delivering to any person any of the moneys, property ol effects of such corporation until such court shall otherwise order."* " Such injunction may be issued on the appliea-i tion of the attorney general in behalf of this state or of any creditor or stockholder of such corporation, upon action commenced for that purpose, and upon due proof of any of the facts in the last section required to authorize the issuing of the same." * 12. Whenever any action shall be commenced, or any application made against any corporation, its directors, or other superintending officers, or its stockholders, accord- ing to the provisions of this title, the court may, by in- junction, on the application of either party, and at any iConro V. Port Henry Iron Co., '3E. S..(5th ed.), 764, J47. 12 Barb., 27. *Ib., §48. 2BradtT. Benedict, 17 N. T. K., 98. §1 XIV.] ' INJUNCTIONS. 289 stage of the proceedings, restrain all proceedings at law, by any creditor, against the defendants in such suit; and whenever it shall appear necessary, or proper, may order notice to be published in such manner as the court shall direct, requiring all the creditors of such corporation ' to exhibit their claims and become parties to the suit within a reasonable time^ not less than six months frpm the first publication of such order, and in default thereof^ to be precluded from all benefit of the decree which shall be made in such suit and firom any distribution which shall be made under such decree.* 13. The manner in which creditors of a corporation- are to make themselves' parties to a suit commenced against the corporation to wind up its affairs, must be substantially the same as that in which creditors of a de- ceased individual make themselves parties to a suit for the settlement of his debts and credits, by coming in before a master under a decree and proving the debts.^ 14. WheTe the directors of a corporation do any act which works a forfeiture of the charter of the company, it is such a violation of the law incorporating the company as to authorize a creditor, or a stockholder of the corpora- tion to institute proceedings against itj for the purpose of having a receiver appointed to close up the concern of the company, under the provision of the statute above cited.* Thus, the intentional neglect on the part of the officers of a corporation to notify and hold the annual elec- tion for directors as required by the act of incorporation^ is such a violation of the provisions of the charter as will authorize the court to appoint a receiver and to decree a dissolution of the corporation.* Btit, where it is, proved that an insurance company is insolvent, the court is not 13 R. S. (5tli ed.,), 767, ? 65. s Ward v. Sea Ins. Co., 7 Paige,. 'Judsou T. Rossie Oaileiia Co., 9 294. > S98. *Id. 290 PBOVISIONAL REMEDIES. [Ch. III. bound, as of course, to issue an injunction, but must use its discretion and take aucih course, as will inure to the benefit of all concerned. > 15. There are certain other provisions in the revised statutes relating to moneyed corporations, by which tenU' is meant every corporation having banking powers, or having the power to make loans upon pledges or deposits,; or authorized by law to make insurances ; ^ and the provi- sion is made applicable to every moneyed corporation created, or whose charter shall be renewed or extended after the first day of January, one thousand eight hun-r dred' and twenty-eight, unless such corporation shall be expressly exempted from the provisions of that title, in the act creating, renewing or extending such corporations.^ 16. By such statute it is declared to be unlawful for the directors of any moneyed corporation, among other things, to make dividends, except from the surplus profits arising from the business of the corporation ; or to divide,: withdraw, or in any manner pay to the stockholders or any of them, any part of the capital stock of the corpora- tion, or reduce such capital stock without the consent of the legislature ; ^ and no conveyance, assignment or transfer, not authorized by a previous resolution 'of its board of directors shall be made by any such corporation of any of its real estate, or any of its effects, exceeding the value of one thousand dollars; but this section shall not apply to the issuing of promissory notes, or other, evidences of debt, by the officers of the company in the transaction of its ordinary business, nor to pay-^ ments in specie or other current money, or in bank bills made by such officers ; nor shall it be construed'to render void any conveyance, assignment or transfer, in the hands of a purchaser for a valuable consideration, and 1 2 K. S. (5th ed.), 526, ? 54. '2 B. S. (5th ed.), 517, ? 1, subs 2Ib., §55. 1,2. §XIV.] INJUNCTIONS. 291 without notice.^ 'No such conveyance, assignment or transfer, nor any payment made, judgment suffered, lien created, or security given by any such corporation when insolvent, or in contemplation of insolvency, with the intent of giving a preference to any particular creditor over other creditors of the company, shall be valid in law ; and every person receiving by means of any such convey- ance, assignment, transfer, lien, security or payment, any of the effects of the corporation, shall be bound to account therefor to its creditors or stockholders, or their trustees, as the case shall require.^ 17. The provisions of the eighth section, "cited above, extend only to such moneyed corporations as are, by their charier, subject to the management of a board of directors, trustees or other officers.' Payment and transfer of property made by a moneyed corporation, when actually, though not avowedly, insolvent, or in contemplation of insolvency, which actually occurs, with intent to give preference to creditors, are void within the ninth section of the act cited above, even though knowledge of the pecuniary condition of the company be not brought home to the party receiving the transfer and payments,* 18. When an insolvent corporation was suff"ering cre- ditors of a certain class to obtain large judgments, with a view to give them preference, an injunction was granted at the suit of a creditor at large, restraining the creditors so proceeding to judgment from further proceedings, ex- cept to enter judgment as security.' So, an assignment after a judgment recovered, of all the real and personal property of a manufacturing company, in trust, to pay all creditors ratably, was held void as having been made in contemplation of insolvency.* 12 E. S. (5th ed.), 519, g 8. *Brouwer v. Harbeck, 9 N. T. R., 3 2 R. S. (5tli ed.), 519, g 9. 589. ' Gillett V. Campbell, 1 Denio, 520 ; 6 Galway v. -tl. S. Steam Sugar Ref. Matter Bank of Dansville, 6 Hill, Co., 13 Abb., 211; 21 How., 318. 870. 6 Harris v. Thompson, 15 Barb., 62. 292: PROVISIONAL EEMEDIES. [Calll.. 19.' There has been some question whether the provi- sions of the revised statutes relating to the insolvency ' of moneyed corporations (part of which is cited above), are applicable to associations formed under the general bank- ing act of 1838 ; but it seems, at length, to be decided that banks fornied under that act are not subject to the provisions relating to moneyed corporations ; but that, being of the nature of corporations, they are subject to the general act as to proceedings in equity against cor- porations.^ 20. While a corporation employs its powers and funds- for purposes within the scope 6f its charter, the will of a majority, properly expressed at a legal meeting, must' control ; but it is otherwise when such powers and funds are employed for any purpose not contemplated by the charter.^ Thus, where four out of seven trustees and directors of a manufacturing corporation sold all the property of the corporation, except the real estate, aild transferred the whole business to the purchaser, without the consent and against the wishes of the other trustees and corporators, the sale and transfer were held to b6 without power, and a violation of the trust and confidence reposed in the trustees and directors, and an injunction was granted.' ' So, where the money which should have' been divided among the stockholders was applied con- trary to the charter or articles of agreement, it was held a breach of trust and a fraud on the part of the majority towards the minority, who may have remedy by injunc- tion.* 1 See Leavitt v. Blatohford, 17 N. 'Abbott v. Amerioan Hard Rubber Y. K., 521; Curtis V. Learitt, 15 N. Co., 20 How., 199; 21 How., 193; Y. K., 180 ; International Bank v. 11 Abbott, 204. Bradley, 19 N. Y. R., 245 ; KobinBon * March v. Eastern, etc., 43 N. H., T. Bank of Attica, 21 N. Y. R., 406. 515. ^Gifford y. New Jersey, etc., 2 Stockt., 171. fXIV.] INJUNCTIONS. 293 21. So, where a stock corporation had fraudulently issued false certificates of stock, largely beyond the actual capital of the company, and the corporation had become insolvent, an injunction was granted restraining thp com- , pany and its officers from opening their transfer books for the transfer of stocks, even for owners who were stock- brokers, and required such transfer to be made in the regular course of business.^ 22. The payment of a dividend, by a moneyed corpora- tion, maybe restrained by injunction at the suit of a stock- holder, where no dividend has been earned, and the directors are about to misapply the funds of the corpora- tion in payment thereof; but after the dividend has been declared, the right of each shareholder in the dividend coming to him is separate and independent of that coming to other shareholders, and he cannot file a bill in behalf of such others to restrain the payment of such dividend.^ So, where a dividend had been declared by the directors of a corporation, an injunction was granted on the ground that among the persons designated as stockholders were several holding false stock, which had been fraudulently issued, and the corporation was re- strained from paying such dividend, or from declaring other dividends, until the true list of stockholders had • been ascertained.' 23. On an application of the attorney general for an in- junction against a banking corporation, to restrain a violation of law, it is not necessary to show any specific injury. In a suit by the people, the public wrong arising from a violation of law implies an injury during its con- tinuance.* 1 People T. Parker Vein Coal Co., 'Underwood y. N. Y. &. New 10 How., 186. Haven R. R. Co., 17 How., 538. ^ Carpenter v. N. T. & New Haven * People v. Metropolitan Bank, 7 R. R. Co., 5 Abb., 277. How., 144. 294 PROVISIONAL REMEDIES. [Ch. HI. 24. Again, it is provided among otlier things by the act of 1849, that upon the return of an execution against the property of any corporation or joint stock association for banking purposes, issuing bank notes or any kind of paper credits to circulate as money, after the first day of January, one thousand eight hundred and fifty, unsatisfied in whole or in part, or upon proof satisfactory to any justice of the supreme court, that any such execution, although not returned, cannot be satisfied out of any property of the defendant, he shall at once make an order declaring the insolvency of such corporation or association.^ Any cre- ditor of any such corporation or association having a de- mand exceeding one hundred dollars arising upon a debt or liability contracted after the first day of January next (1850), the payment of which shall have been refused by such cor- poration or association, may, at any time after ten days from the time of such refusal, apply to a justice of the supreme court for an order declaring such corporation or association insolvent and for an injunction as hereinafter provided. If, in the opinion of such judge, upon the facts presented, it be expedient, in order to prevent fraud or injustice, he may grant an order for a. temporary injunc- tion, restraining such corporation or association and its officers from paying out or in any way transferring or de- livering to any person, any money or assets of such cor- poration or association, or incurring any debt or obliga- tion, until such order be vacated or modified.^ *25. Upon a hearing of the parties on such short notice as the judge shall appoint, he shall determine whether such corporation or association be clearly solvent or otherwise, and may require the officers thereof to exhibit any and all of its books, papers, accounts, assets and effects, and to be examined on path touching the same 1 Session Laws 1849, ch. 226, g 6. "U., g 7. §XIV.] INJUNCTIONS. 295 before Mm, or a referee to be appointed by bim. If be determine tbat sucb corporation or association is clearly solvent, be sball, notwitbstanding, continue tbe order for a temporary injunction, if one bas been granted, until tbe demand of tbe applicant be fully paid witb bis costs on sucb application ; unless it sball bave appeared by affida- vit or otberwise tbat sucb corporation or association bave a good defense on tbe merits to sucb demand.* 26. If tbe judge determine tbat sucb corporation or association is not clearly solvent, be sball make an order declaring tbe same insolvent, and sball also by order re- strain sucb corporation or association and its officers from exercising any of its corporate rigbts, or any rigbts or privileges granted to it by law, and from collecting or re- ceiving any debts or demands and from paying out or in any way transferring or delivering to any person any of its property, money or jeffects, until sucb order be vacated; and be sball immediately appoint a receiver of tbe pro- perty of sucb corporation or association.^ 27. Any one or more stockbolders of any sucb corpora- tion or association owning stocks to tbe amount of one- tentb part of tbe capital tbereof paid in, may at any time, in like manner, apply to any justice of tbe supreme court for an order declaring sucb corporation or association insolvent,, or in imminent danger of insolvency. And if on tbe facts verified by affidavit presented, sucb justice sball deem it necessary or expedient in order to prevent fraud, undue preference or injustice to creditors, be ffiay grant an order in tbe nature of a temporary injunction, as specified in tbe seventb section of tbis act. Upon a bear- ing of tbe parties as soon as may be practicable, be may require tbe exbibition to bim, or to a referee to be ap- pointed by bim, of all tbe books, papers, accounts, assets 1 Session Laws 1849, oh. 226, § 8. » Id., | 9. 296 PKOVISIONAL EEMBDIES. [Ch. HI. and'effeqts of such corporation or association; and' on examination of the officers, servants, and agents thereof iTinder oath ; andif he determine that such corporation or association is not clearly solvent, or that it is in imminent danger of insolvency, he shall make an order declaring such determination, and shall by order restrain the said corporation or association and its officers, in the same manner as provided in the ninth section of this act, and ■shall also appoint a receiver of the property of such cor- poration or association.^ 28, "Within the meaning of the above act, a bank is clearly solvent, and consequently not to be proceeded ■against as insolvent, if it has property more than sufficient to satisfy all demands against it. Nor is the mere fact, of suspension of specie payment by a bank of circulation, proof of insolvency, when it appears that specie payment has been almost universally suspended among banks in general. In such a case, where no fraud or injustice is alleged, the court will not deem it expedient to grant a temporary injunction, or an order to show cause why an injunction should not be issued ; although the bank refuse to redeem its circulation.'' Nor is an affidavit, stating "upon information and belief" that a bank is insolvent, sufficient evidence to authorize the granting of an injunc- tion and the appointment of a receiver, especially when it is in direct contradiction to the regular official reports of the bank made, under oath.' 29. A clear violation of law, or a clear misuse or abuse of its corporate powers, by a municipal corporation, is an appropriate ground for an injunction, especially where the threatened act is one of serious consequence to the public; and, though a court of equity has no right to interfere 1 Session Laws 1849, ch. 226, g 10. » Livingston v. Bank of N. Y., 26 2 Livingston v. Bank of N. Y., 26 Barb., 304. Barb., 804. § XrV.] INJUNCTIONS. 297 witli, or control the exercise of a discretionary power, by substituting its own judgment for that of the party in whom the discretion is vested ; yet it is bound to interfere, where ever it has ground for believing that its interference is necessary to prevent abuse, injustice or oppression, the violation of a trust, or the consummation of a fraud.^ 30. But a court of equity will not ordinarily enjoin the passage of an ordinance or resolution by a municipal Corporation, that being an act of legislation, but will con- fine itself to enjoining any act towards carrying such resolution or ordinance into effect. Yet, if it be shown that the mere voting on, and formal passage of the pro- posed resolution or ordinance would instantly, without any action or attempt to enforce any right or privilege under it, work an irremediable private injury, such voting and passage may be restrained.^ A legislative act cannot be enjoined ; as for instance, an order of a city common council to a department to give an individual a particular contract, but the execution of such order may be re- strained.' But the granting of a right of way to a street rail road, by a city corporation, is not an act of legislation^, but a grant upon conditions and may be enjoined.* 31. The corporate authorities of the city of New York have no power to confer upon individuals, by contract for an indefinite period, the franchise of constructing and operating a rail road in the public streets for their private .advantage. The power in respect to the control and regulation of streets, is held in trust for the public benefit, and "cannot be delegated to private individuals ; so that a resolution of the common council authorizing private persons to construct and operate a rail road upon certain 1 Davis T. Mayor of N. Y., 1 Duer, 'People v. New. York, 32 Barb,, 451 ; People v. Sturtevant, 9 N. Y. 35. E., 263. i People t. SturteYamt, 9 N. Y. E., 2 Whitney v. Mayor, etc., 28 Bart)., 263. 233. 20. 298 PEO VISIONAL REMEDIES. [CH.in. conditions, without limitation as to time, or reserving a power of revocation, is void, because it would deprive the corporation of the power to control and regulate the use of the streets.^ N'or can the common council of the city of New York authorize the extension of a rail road in that city, irrespective of any legislative grant, except, perhaps, when it may be necessary to the enjoyment of the principal legal grant.^ 32. So the common council cannot dispose of an ease- ment in a street, without reference to the interest of the corporators, and where a common council grants a privi- lege to lay a rail road in a street, to individuals for a trifling consideration, when large payments could have been obtained, they are guilty of a breach of trust, and the court will grant -an injunction to restrain such privilege from being carried into effect.* But the fran- chise of laying gas pipe in a street,' is not a part of the city property, within the principle that an illegal disposi- tion of the private property of the city, may justify an injunction.* 33. The court will not review the propriety of a resolu- tion to pay money out of the treasury for some purpose. To sustain an injunction, it must appear that the appropri- ation was beyond the power of the corporate authorities by whom it was passed.^ Thus, an injunction will not be granted, at the suit of a tax-payer, to enjoin an appropria- tion of funds to pay for the portrait of the governor, under a power conferred on a municipal corporation to fur- nish a room for the common council.® But where the city of 'New London appropriated money for the celebra- iMilhau V. Sharp, 27 N. T. R., * Smith v. Metropolitan Gas Co., 611. 12 How., 187. 2 People v. Third Ayenue R.K. Co., « Roberts v. Mayor, etc., of N. Y., 80 How., 121. 6 Abb., 41. 'Milhau V. Sharp, 15 Barb., 193; « Reynolds v. Mayor, etc., of Al- Stnyvesant v. Pearsall, id,, 244. bany, 8 Barb., 597. § XIV.] UnTJUNotions. 299 tion of the anniversary of independence, a bill was sus- tained ,on behalf of certain tax-payers to restrain the payment of such appropriation. The court remarked: " The city corporation was in the nature of a trustee of the money in its treasury, for the corporators, the inhabit- ants of the city, for the purposes for which they were incorporated, and here was a meditated misappropriation of the trust fund ; and, secondly, it is extremely doubtful, whether the plaintiffs could have any other remedy. The amount appropriated by this vote, was in the city treasury, and, if abstracted, 'must, when wanted for other- and legitimate purposes, be supplied by a tax on the inhabit- ants. It is suggested that the plaintiffs should bring an action against the city, for a misappropriation of its funds, or that, when such tax is laid, they should, by a proper action, resist its collection. "We are by no means prepared to say, that an action could be maintained on either of these grounds, and are strongly inclined to think it could not. But, however this may be, we are clearly of opinion, that the plaintiffs are not bound to wait until the money is misspent, nor until such tax shall be levied, and attempted to be collected, but that they may call on a court of equity to interpose, by way of preventing the injury. " ^ 34. The court can enjoin a corporation, as well as a private individual, from so using their property as to wrong- fully interfere with the enjoyment of their estates by adjacent proprietors.^ So, a corporation may be restrained from pulling down the plaintiff's dam under an illegal claim of right to abate it as a nuisance.^ So, the court may enjoin the enforcement of an illegal ordinance against the plaintiff", under which he is imprisoned and his busi- iNew London v. Brainard, 22 'Clark t. Mayor, etc., of Syra- Conn., 552. cuse, 13 Barb., 32. ^Brower v. Mayor, etc., of N. T., 8 Barb., 254. 300 PKOVISIONAL EBMBDIES. [Ch; III. ness injured.^ So, a municipal corporaliioii may be en- joined from taking lands under an award of commissioner Sj whenever the proceedings in the subordinate tribunal will necessarily lead to a multiplicity of actions; or where their execution would cansfe iri-eparable injury to the free^ hold.^ But a corporation should not be restrained from disposing of a ferry privilege, on the mere ground that it proposes to allow its lessee to charge too high fare. The remedy for such over charge is with the legislature.* 35. Assessments are not the subject of equitable relief except in special cases, as where they assert a lien on real property and the defect is not apparent on the face of the proceeding ; or, perhaps, where, in case of personal property^ the enforcement is shown to be an irreparable injury or to cause a multiplicity of actions.* And the collection of an assessment imposed for a street improvement, will not be enjoined when the corporation has authority to make such improvement;'' 36. But as a general rule, only the people can maintain an action to restrain the violation of a public trust. To enable corporators and tax-payers to have an injunction they must have sustained some private or individual injury. No private person or number of persons can assume to be the champions of the community, and, on its behalf, chal- lenge the public officers to meet them in the courts of justice, to defend their official acts.* 37. An injunction cannot be granted to restrain indivi- duals, claiming to be legally elected trustees in a religious corporation, from acting as such. The remedy is by an action in the nature of a quo warranto J !N"or will the trus- 1 Wood V. City of Brooklyn, 14 « Merrill y. Mayor of Brooklyn, 8 Barb., 425. Edw., 421. 2 Baldwin v. City of Buffalo, 29 «Ketohum v. City of Buffalo, 14 Barb., 396. N. Y., 356 ; Doolittle v. Supervisors, 8 People V. Mayor of N. T., 82 etc., 18 N. Y., 155. Barb., 102 ' Hart v. Harvey, 32 Barb., 55 ; 19 *Von Beck v. Village of Bondout, How., 245. 15 Abb., 48.- § XIV.] INJUNCTIONS. 30X tees of a church be restrained, at the suit of pew holders, from removing their pews and erecting slips or other structures in their place. The interest of pew owners consists only in the right to occupy their respective pews as part of the auditory, on occasions of public worship, and they hold with ^11 the conditions incident to such property.^ 38. An order which restrains a corporation from doing an act, restrains every officer or member of such corpora- tion from doing such act, and this, notwithstanding the order is directed tp ths qorporate body by itp corporate name.^ ' 39. Although a corporation cannot be attached for con- tempt of an injunction order, as in the case of ^ natural person, yet, it may be punished for a disobedience of the order by a fijie or the sequestration of its property.' 1 Wheatoa v. Gates, 18 N. Y , 404 ; ' Davis t. Mayor of N. T., 1 Duer, Cooper V. Trustees of First Presby- 451 ; see 5 Seld., 263. terian Church of Sandy Hill, 32 ^people v. Albany & Vt. E.B. Co., Barb., 222. 20 How., 358 ; see, however, Davis V. Mayor, etc., 1 Duer, 484. 302 PROVISIONAL REMEDIES. [Ch. in. SECTIOISr XV. . PARTNERS, PUBLIC OFFICERS AND OTHER PARTIES. Partnership, when may be enjoined. When granted, on application of one partner. Mast make case for dissolntion. Particular actB of misconduct. Misapplication of property. Giving partnership security for indi- vidual debts. Staying execution against partnership property for individual debt. Miscellaneous cases where allowed. Injunctions against an agent. Enjoining executors, assignees and trustees. Seldom granted against executors. Rule as to executors and administrators. 13. Receivers. 14. Restraining attorneys ftom divulging privileged communications. 15. Husband and wife. 16. Public officers. ■ 17. Cannot be granted to restrain assuming office. 18. Nor to aid in trying title to office. 19. Restraining payment of salaries pend- ing suit to test title. 20. Officers having discretionary power cannot be enjoined. 21. Police officers. 22. State officers how enjoined. 23. Effect of injunctions against public officers by their individual names. 1. Partnership is a relation which in various ways calls for the action of a court of equity ; as, for the purposes of discovery, account, specific performance and dissolution, and in connection with some or all of these main objects, and, in some instances, without reference to any ulterior end, partnerships are made the subject of injunction.^ And it may be stated, as a general rule, that positive mis-i conduct of a partner in reference to the partnership busi- ness, is ground for an injunction, more especially in con- nection with a prayer for other relief. But courts of equity in interfering by way of injunction in cases of part- nership act upon a sound discretion, and will not interfere to restrain any breach or dereliction of duty, unless they are of such a nature as may produce permanent injury to iHill. onlnj., 356. § XV.] INJUNCTIONS. 303 the partnership, or involve it in serious perils or mis- chiefs in future. A mere fugitive temporary breach, in- volving no serious evils or mischiefs, and not endangering the future success and operations of the partnership, will, therefore, not constitute any case for equitable relief. Equity will not interfere in cases of frivolous vexation, or for mere differences of temper, casual disputes, or other minoV grievances, especially where the partnership is limited as to time.^ 2. An injunction may be granted on the application of one partner in a dissolved firm, to restrain the other part- ner from interfering with the partnership property, and a receiver may be appointed to take charge of the same; but this can only be done when a dissolution is shown, or a state of facts sufficient to justify a decree of dissolution.^ 3. It is a general rule that equity will not interfere by injunction, or grant a receiver, unless the plaintiff ask and make a case for a dissolutionj' But particular acts of misconduct on the part of the partners may be enjoined, although a dissolution be not prayed for. Thus, a partner may be restrained from destroying property.* So, it is said, " Equity will in case of a partnership, existing dur- ing the pleasure of the parties, with no time fixed for its renunciation, interfere (as it should seem) to qualify or restrain that renunciation, unless it is done under fair and reasonable circumstances ; for if a sudden dissolution is about to be made, in ill faith, and will work irreparable injury, courts of equity will, upon their ordinary jurisdic- tion to prevent irreparable mischief, grant an injunction against such a dissolution."* 4. The court has jurisdiction to prevent one partner ^Story Partn., 328-31; Henn v. 'Waters v. Taylor, 15 Vesey, 10; Walsh, 2 Edw. Ch., 129. Smith t. Jeyes, 4 Beav., 508 ; Jack- 2 Smith V. Jeyes, 4 Bear., 503; son v. DeForest, 14 How., 81. see Jackson v. DeForest, 14 How., * Miles v. Thomas, 9 Sim., 609. 81; Law v. Ford, 2 Paige, 310. si story Eq., 686, i 668. 304 PROVISIONAL REMEDIES. [Ch. IIL from excluding anotlier from, or from so acting as to' pre- vent the continuance of the partnership according to its terms. If two parties agree to devote their whole time to a partnership concern, the court will not permit one of them to exclude the other from the partnership, or to set up a separate business which makes it impossible that he should perform his partnership obligation. Though the court cannot compel, by injunction, a specific performance of the agreement, yet it can restrain the carrying on of a separate business with any other person.^ So, covenants in the articles of partnership, to the effect that neither party will carry on any business within one block of the premises occupied by the firm, within a certain limited period after the dissolution of the partnership, will be enforced by injunction.^ So, where one firm has sold out to another, and agreed with them not to resume the same business in the same place, and afterwards do so resume, a mere prayer for an injunction will be granted on the application of a single member of the injured firm, the injunction being equally for the benefit of his partners, though it would be otherwise where damages are sought.^ 5. So, where on a dissolution of partnership, between A and B, it was agreed that A should take the property, pay all of the debts, and indemnify B against them, an injunction was granted to prevent the misapplication of the property by A.* 6. There is one case constantly occurring where the court will interfere, namely, that of a partner receiving money for his private use on the credit of the partnership firm ; but the court only interferes in such cases, because there is ground for dissolving the partnership." Thus, where a partner gave his individual creditor a partnership iKemble v. Kean, 6 Sim., 333. *Deveau v. Fowler, 2 Paige, 400. 2 Shearman v. Hart, 14 Abb., 858. sjiarahall t. Colman, 2 Jac. & M. s Beard v. Dennis, 6 Ind., 200. 266; see 8 Kent, 61. §XV.] INJUNCTIONS. 305 security, made and given without the knowledge or con- sent of the other partners, the creditor having knowledge of the fact, an injunction was granted restraining the partner from drawing or accepting bills in the name of the firm, and restraining the holders from negotiating the bills taken by them.^ So, more especially, a partner who has become insolvent, or who has involved the firm, will be enjoined from drawing, indorsing, and accepting bills in the 'firm name, and from receiving the partnership debts.2 7. Although partnership assets should go to pay part» nership debts, in preference to the individual debts of the partners, yet an injunction will not be granted to stay an execution against the partnership property for the indi- vidual debt of one of the partners. The remedy by the partner injured is to proceed against the purchaser at the sheriff" 's sale, to ascertain what interest, after the payment of the partnership liabilities, and protection of the rights of the other partners, such purchaser acquired.^ 8. An injunction, without a receiver, was allowed against a surviving partner, being insolvent, on the appli- cation of the deceased partner's representatives.* So, an injunction was granted to restrain one partner, who had removed the partnership books from the counting house, in violation of a covenant, from continuing to retain them.° So, after dissolution, equity will restrain one part- ner from publishing the letters of another relating to the joint business, unless demanded by civil or criminal justice.^ So, after a firm has been dissolved, one of its members using the name in a manner calculated to deceive, 1 Hood T. Aston, 1 Russell, 415. 46 ; Mowbray v. Lawrence, 13 Abb., 2 Williams v. Bingley, 2 Vern., 278, 317; 22 How., 107. Eaithsby's note, 4 Hart v. Schrader, 8 Vesey, 317. 3 Moody T. Payne, 2 John, Ch., 6 Taylor v. Davis, 3 BeaT., 387, 548 ; Phillips v. Cook, 24 Wend., 389 ; note e. Hergman v. Dettleback, 11 How., « Roberts v. M'Kee, 29 Geo., 161. 306 PROVISIONAL REMEDIES. [Ch. IE. may be enjoined.^ So, a surviving partner may enjoin the executors of a deceased partner from using the partner- ship name in carrying on the business.'' 9. As a general rule, an injunction will not be granted against an agent where the principal is not made a party .^ 10. Injunctions will sometimes be granted to restrain executors, assignees and trustees from further interfering with an estate which they have mismanaged, or put in jeopardy by insolvency, either existing or pending,' But the prayer for an injunction must be accompanied by a prayer for a receiver, or the relief will not be granted.' 11. But the occasion for equitable interference, since the revised statutes, will not occur so frequently as formerly. Since non-resident executors are required to give bonds before entering upon their trust, and also since it is provided that, if an executor becomes incompetent by law to serve, or if his circumstances are so precarious as not to afford adequate security, or he has removed, or is about to remove, from the state, the surrogate is empowered, on the application of any one interested in the estate, to require from such executor a bond like that required of administrators.* 12. On a bill by a creditor, alleging that the testator devised his estate for payment of debts, and that the executor refused to distribute the assets, and threatened to secure favorite creditors, an injunction was allowed against the executors.^ "Where a temporary injunction had been granted, and a perpetual injunction was prayed for, against executors who had failed to file an inventory of personal property, and were wasting the estate, an 1 Peterson t. Humphrey, 4 Abb., ^ Boyd t. Murray, 3 John. Ch., 48. 394. 6Will.Eq., 368; 2B,. S., 70, |7; 2 Lewis T. Landor, 7 Sim., 421. Id, 72, J^ 18, 19, 20. 'Boyd T. Vanderkemp, 1 Barb. 'Depau v. Moses, 3 John. Ch.. Ch., 273. 849. * Elmendorf v. Lansing, 4 John. Ch., 563. § XV.] INJUNCTIONS. 307 injunction was refused, as it appeared that the surrogate had compelled them to give security until the inventory should be filed.' So, where an administrator had failed to plead, in an action against him, under advice that his plea would not avail, he was granted an injunction against judgment on default, as from the nature of his office he was obliged to rely on information.^ 13. A receiver, being an officer of the court, cannot be sued without its permission, and an injunction against him is not proper. The mode of restraining such an • officer, when engaged in the discharge of his official trust, is by application to the court for instructions, and not by injunction.' When a receiver is authorized to sue, he is bound to proceed, and can not be restrained by injunction out of another court.* 14. Where an attorney, solicitor or counsellor is pro- fessionally employed, any communication made to him by his client with reference to the subject or object of such employment, is under the seal of professional confidence, and is a privileged communication ; " and the fact that the relation has ceased makes no difference ; the mouth of the attorney is shut forever.* So, all documents and papers which have come into the attorney's hands by reason of his relation to his client, fall within the same rule.' 15. In an action by a wife against her husband for a decree of separation from bed and board, and for support, it appearing that the husband was about disposing of his property and removing with the proceeds frorii the state, an injunction was granted restraining such disposition and removal until after trial and judgment; * and it is held that in such cases it is no objection to granting an (injunction iWhitneyT. Munro, 4Edw. Ch., 5. 5 Bank of Utica t. Meraereau, 3 2 Hewlett T. Hewlett, 4 Bdw. Ch., 7. Barb. Ch. , 528, 595. 'Van Kensselaer v. Emery, 9 « Wilson v. Rastall, 4 T. R., 759. How., 135; DeGrootT. Jay, 9 Abb., 'March v.Ludlum, 3Sandf.,Cli. 35. 364. 8 Vermilyea v. Vermilyea, 14 How., *Winfield t. Bacon, 24 Barb., 154. 470. 308 PROVISIONAL REMEDIES. [Ch. HI, that no part of the relief sought is a perpetual injunction.* In a suit for separation of husband and wife, it appears that, in case of necessity, the court will grant an injunc- tion, tx farte, restraining the husband from carrying the children out of the jurisdiction of the court.'' So, in case of gross drunkenness and blasphemy, the father's right tp the control of his children is subordinate to the power of the court to take his child from him.^ 16. A court of equity has undoubted jurisdiction to interfere by injunction where publk officers are proceeding illegally and improperly, under a claim of right, to do any act to the injury of the rights of others.* The limits within which the court interferes with the acts of public officers are perfectly clear and unambiguous. So long as such officers confine themselves strictly within the exer- cise of those duties confided to them by law, the court will not interfere ; but if they are departing from that power which the law has vested in them — if they are assuming to themselves a power over property which the law does not give them — they are no longer considered as acting under the authority of their commissions, but are treated as persons dealing with property without legal authority .° 17. "Where an action in the nature of quo warranto is brought to test the title of the defendant to hold and exercise an office, a preliminary injunction, restraining the defendant, pending the suit, from exercising the office, cannot be granted. The public interests forbid that the discharge of the duties of the officers should be suspended. The title to the office must be determined in favor of the plaintiff, before he can have an injunction.^ Thus a court iRose V. Bose, 11 Paige, 166. *Conover v. Mayor, etc., 26Barb., 2 Laurie V. Laurie, 9 Paige, 234 ; 513. DeManneville v. DeManneville, 10 'GreenT. Mumford, 5 R. L, 475. Vesl, 64. « People v. Draper, 24 Barb., 265 ; sid. 14 How., 233; People v. Sampson, 25 Barb., 254. g XV.] INJUNCTIONS. 309 of chancery has no jurisdiction to enjoin a flour inspector, who entered upon the duties of his office^ under cover of an appointment by the governor, made, during a recess of the senatBj or to appoint a receiver of the fees or emolu- meflts of the office, until the rights of the former inspector, who claims to hold over, and of the defendant, can be determined at lawj although the latter is insolvents* 18. ISoT can the question of title to a public office be indirectly tried in an injunction suit brought to restrain the defendant from taking possession of the books and papers appertaining to such office.^ 19j "When an action was pending between two claimants of an office to test the title, and one of the claimants had brought an action against the plaintiffs •—- a corporation — for salaries, it was held to be a proper case for an injunc- tion restraining the comptroller of such corporation from allowing or paying any such claim and the other defend- ant from proceeding in such action for salaries, until the termination of the quo warranto} . 20i Where the law gives to officers a power which implies and requires the exercise of a sound judgment and discretion, the correction of their errors belongs to the supreme court as a matter of legal, and not of equita*- ble cognizance, and an injunction will not be proper.* An injunction cannot be granted to restrain commissioners of excise from granting licenses to sell intoxicating liquors. The legislature has granted them a discretion, and the court has no authority to interfere with, or con- trol that discretion, provided it is exercised in good faith.^ So, an action will not lie to set aside the proceedings of 1 Tfeppan V. Gray, 9 Paigte, 507 ; < Woodruff v. Fisher, 17 Barb., 7 Hill, 259. 224 ; Wilson v. Mayor, etc., 4 E. D. "Mayor, etc., T. Conover, 5 Abb., Smith, 676 ; 1 Abb., 4; Gillespie v. 171 ; see, however, id., p. 252. Broas, 23 Barb., 370. 3 Mayor, etc., v. Flagg, 6 Abb., ^Leigh v. Westervelt, 2 Duer, 618. 296. 310 PPO VISIONAL EEMBDIES. [Ch. HI. highway commisBioners, or to restrain them from carrying out an order made by them, removing an ineroachment, whether on the ground that they had not jurisdiction, or that their decision was unjust or irregular. The remedy in such cases is by certiorari} So, erroneous or illegal assessments made by assessors, may be reviewed by the court on certiorari, and set aside. But the general rule is that a court of equity will not entertain an action by the party aggrieved for relief against such an assessment.^ So, an injunction will not be allowed for the purpose of restraining a judicial ofScer from transcending his juris- diction ; the proper remedy in such case is by a writ of prohibition.^ So, when public officers are authorized by law, to issue bonds, an injunction will not be granted to restrain them from so doing, upon the ground of a mere apprehension that the officer who is designated to receive them will misapply the proceeds.* 21. So an injunction will not be granted to restrain police officers from exercising supervision over citizens, within the line of their duty as officers of the peace, although the performance of the supervision may be in an arbitrary and unlawful manner. A proper remedy may be had either by an action for damages, or, by a criminal prosecution.® 22. Injunctions to restrain state officers, or board of officers, or persons employed by them, from executing any duty devolved upon them by law, can be granted only by the supreme court, sitting in general term in the dis- trict in which such board is located, or such duty required to be performed.* And a notice of at least eight days must be given of the time and place of such application.' 1 Hyatt T. Bates, 35 Barb., 308. < Faulkner v. Metcalf, 43 Barb., 2 Heywood t. City of Buffalo, 14 255, note. N. Y. K., 534; Wilson v. Mayor, ^gterman t. Kennedy, 15 Abb., etc., 4 E. D. Smith, 675, and oases 201. cited. * Laws 1851, chap. 488. s Ward v. Kelsey, 14 Abb., 106. » Id. § XV.] INJUNCTIONS. 311 Some difference of opinion seems to exist as to whether a ,q delivered to him for prosecution ; but where the undertaking is in the usual form, it will not be necessary to remove it from the hands of the clerk, as an inspection and production will enable him to draw his complaint and maintain his 8uit.° (See forms herein, appendix Nos. 87, 88, 89). IWillett V. Soovill, 4Abb., 405. *Griffing v. Slate, 5 How., 205; 2 Wilde V. Joel, 15 How., 320; 6 Higgins v. Allen, 6 How., 30. Duer, 671. » Wilde t. Joel, 15 How., 320. SN. T. Cent. Ins. Co. v. Safiford, 10 How., 347. 23 CHAPTER IV. ATTACHMENTS. Section I. In what cases granted. II. The affldavit. m. The vmdertaking. rV. The warrant, by whom granted and what to contain, v. What property may be attached. VI. How warrant executed. VII. How levied on property incapable of manual delivery. Vni. Perishable property. Where property is claimed by third person. Vessels. IX. Effect of an attachment X. Judgment. How satisfied. Action by plaintiff. Where judg- ment is for defendant. XI. Discharge of attachment. XII. Return of warrant. Sheriffs fees. Costs and allowances. 348 PROVISIONAL REMEDIES. [Ch. IV. SECTIOlSr I. IN WHAT CASES GRANTED. 1. § 237 of tlie Code. Cases for an attach- ment. 3. Nature of the remedy. 3. How it differs from that under the revised statutes. 4. In what actions it may be had. B. Cannot be granted in actions on equita- ble debts. 6. Debt must be due. 7. When creditor, holding property as security, cannot have. 8. Who may have the remedy. 9. Against foreign corporation. 10. Assigning cause of action to resident. 11. Proof that plaintiff is a resident, etc., need not be made primarily. 12. Against non-residents. 13. Definition of term resident. 14. General rules relating to domicil or residence. IB. Who are held to be mmrresidents. 16. Persons residing out of the state, but doing business in it. 17. Who are not mm-residents, 18. As to persons having two residences. 19. Persons in the army or navy. 20. Domicil of wife living, separate. 21. Against debtor who absconds or con- ceals himself. 23. What constitutes an absconding. 23. Kelidence in this state essential. 24. Is a personal act. 25-27. What constitutes a concealment. 28. How fact of concealment stated in affi- davit. 39. When prbof of either of two intents will be sufficient. 30. Against debtors removing their pro- perty. 81. Must be with fraudulent intent. 33. What is meant by term '' his property." 33. Question of intent one of fact. 34. Against debtors fraudulently disposing of their property. 35-36. Threat to make assignment, when sufficient. , 37. Where assignment is already made. 38. What is included in the term "pro- perty." 39. Omissions in a deed not conclusive evi- dence of fraud. 40. What facts show fraudulent intent. 41. Must be sworn to positively. 43. Where one joint debtor absconds or is a non-resident. 43. Does not lie against executors, heirs, or other representative persons. 44. Attachment and arrest together. 45. Attachment in an action commenced by publication. 46. When the remedy may be had. 1. " In an action arising on contract for the recovery of money only, or in an action for the wrongful conver- sion of personal property, against a corporation created by or under the laws of any other state, government or country, or against a defendant who is not a resident of this state, or against a defendant who has absconded or concealed himself, or whenever any person or corpora- §1.] ATTACHMENTS. • 349 tion is about' to rem'oye any of his or its property from this state, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete any of his or its property with intent to defraud creditors, as hereinafter mentioned, the plaintiff, at the time of issuing the sum- mons, or any time afterwards, may have the property of such defendant or corporation attached, in the manner hereinafter prescribed, as a security for the satisfaction of such judgment as the plaintiff may recover; and for the purposes of this section an action shall be deemed com- menced when the summons is issued, provided, however, that personal service of such summons shall be made, or publication thereof commenced within thirty days."^ 2. The ■ attachment provided by this chapter of the Code, is an order in the action, for the arrest of the debtor's property, in the nature of bail for the payment of such judgment as the plaintiff may obtain. It is not a process for the commencement of an action, and by it a suit is not commenced, nor upon it alone can a judgment be recovered ; it is a provisional remedy, simply adopted in aid of a suit already commenced, to secure the eventual satisfaction of a creditor's demand.^ 3. There are two forms of proceeding by attachment, other than the one provided by the Code ; that under the revised statutes,^ and that under the act abolishing im- prisonment for debt.* But they are both essentially unlike the one under consideration. The attachments issued under the revised statutes and the act of 1831, are special proceedings, and are the original process by which the suits are commenced, and the judgment obtained is in the nature of a judgment in rem.^ So, an attachment iCode, ? 227, as amended, 1866. » 3 R. S. (5th ed.), 430, ?§ 24, 26 ; 2 Houghton -v. Ault, 16 How., 77; id., p. 78. Furman v. Walters, 13 How., 349 ; * Laws 1831, 404, ^ 34, 35 ; Laws Cole T. Kerr, 2 Sandf., 660. 1842, chap. 107, p. 74. 5 Id. 350 PROVISIONAL EEMEDIES. [Ch. IV. Tinder the revised statutes is for the benefit of all the creditors, while that provided by the Code is for the benefit of the creditor who applies for it.^ In these and other respects, the proceedings under the revised statutes and the act of 1831, differ from the remedy given by the Code, so that the latter is not cumu- lative, but is the only remedy known to the law in the cases prescribed.^ 4. As a general rule, in this country, all attachments are grounded upon actions of debt ; ' but our legislature have, by the amendment of 1866, extended the remedy to actions for the wrongful conversion of personal property. Prior to that amendment, an attachment could only issue, "in an action for the recovery of money ;" yet it was held in some cases that that language did not limit it to an action for the recovery of money only, and that the remedy could be had in that class of actions in which pecuniary damages are sought,* as in an action of assault and bat- tery.° But these decisions have been since disapproved ; and the courts have decided that an attachment could not be issued in any action of tort, independent of contract, as in an action of trespass de bonis.^ This question has been finally settled by inserting in the first clause of the section, the words, arising on contract, and also the word only, so that it now reads, " In an action arising on eon- tract for the recovery of money only.' Therefore, under the Code as it now stands, it is clear that an attachment cannot be granted in any action founded in tort, except for the conversion of personal property. The rule, as 1 Fisher V. Curtis, 2 Code R., 62 ; 2 spioydv. Blake, 19 How., 542; 11 Sandf.,660; seeFrazer V, Greenhill, Abb., 349. 3 Code R., 172. «Saddlesvene v. Arms, 32 How., 2 Skinner v. Stuart, 39 Barb., 206. 280 ; Shafferv. Mason, 29 How., 55 ; sDrakeonAttachments, p. 13, §10. Gordon v. Gaffey, 11 Abb., 1; see ■•Hernsteinv. Matthewson, 5How., also 9 Bosw., 601. 196; Ward v. Begg, 18 Barb., 139. 'Amendment of 1866. § I.] ATTACHMENTS. 351 laid down by the supreme court of "WiBconsin, is undoubt- edly correct, that though the plaintiff should, in his affi- davit for obtaining the attachment, allege a cause of action founded on contract, yet, whenever it appears, either by the pleadings or otherwise, that the true cause of action is not of that character, it is the duty of the court to vacate the order.^ 5. The debt or contract must be of such a nature as will sustain an action at law. Equitable debts are not sufficient to justify an attachment. Therefore, in an action for an accounting, or for the foreclosure of a mort- gage, Or in an action for an injunction against the in- fringement of a trade mark, with damages, an attachment is not allowable." 6. The debt must also be due, or it cannot sustain an attachment. Thus, no attachment can be granted upon a bond, bill or note not due ; nor for a book debt, for pay- ment of which time has been given, until such time shall have elapsed.' But where A agreed with B, that if B would sell him goods on credit, and also guaranty his liability to C for a certain sum, he would consign to B all the fish he should become possessed of in his business in Ifova Scotia, as security for the guaranty and the goods, and B accordingly sold him the goods and became gua- rantor to C, and, subsequently, A refused to consign the fish to B ; and thereupon, and before the term of credit had expired, B obtained an attachment against A ; it was objected that the attachment should be discharged, as the credit had not expired, and therefore no cause of action existed ; but the court held, that the contract to give security was broken, and an action might be sustained for 1 See Drake on Attach., g 10, citing Ackroyd v. Ackroyd, 20 How., 93 ; 11 Elliott V. JackBon, 3 Wis., 649. Abb., 345. 2 Shaffer v. Mason, 18 Abb., 291, s Drake on Attach., § 9. note ; Guilhon v. Lindo, 9 Bosw., 601 ; 352 PEO VISIONAL REMEDIES. [Ch. IV. the breach of it, without any reference to the time of the credit ; except that if a judgment were obtained before the credit expired, the court could stay the collection thereof until the credit should expire, or vacate it if the agreed security should be given.^ 7. But, it seems, one may be in fact a creditor, for an amount certain, and yet not be in a position to enable him to have an attachment. Thus, it was held in Massa- chusetts, that where one had received personal property in pledge for the payment of a debt, he could not lawfully attach other property for that debt without first returning the pledge.'' 8. Whoever can sustain the kind of action in which an attachment is allowable, may have that remedy. An at- tachment may issue in favor of a non-resident plaintiff, in the same cases as though he were a resident ; ^ except against a foreign corporation ; in which case a non-resi- dent plaintiff cannot have an attachment, unless the cause of action has arisen, or the subject of the action is situated, within this state.* And the rule is the same whether the plaintiff be a non-resident individual, or a foreign cor- poration.* The foreign character of a coiporation is not to be determined by the place where its business is trans- acted, or where the corporators reside, but by the place where its charter was granted. So far as it is regarded with reference to inhabitancy, it is considered as an in- habitant of the state in which it was incorporated.* The assignee of a demand may have an attachment in those cases where the assignor might have had one ; '' and it 1 Ward T. Bigg, 18 Barb., 139. R. E., 17 How., 16 ; see McDonough 2 Drake on Attach., \ 35, citing 8 t. Phelps, 15 How., 372. Mass., 150. 5 Western Bank v. City Bank, 7 'Ready v. Stewart, 1 Code R., N. How., 238. S., 297 ; see also 2 Barb. , 486. 6 Drake on Attach., \ 80, and oases. * Code, \ 427 ; Cantwell v. Dubuque ' Besley v. Palmer, 1 Hill, 482. § I.] ATTACHMENTS. 353 seems tliat a resident assignee may have that remedy, even where the non-resident assignor was not entitled to it.^ 9. An attachment may be granted against a corporation created by or under the laws of any other state, govern- ment or country.^ But an action against such corporation can only be brought in the supreme court, the superior court of the city of New York, or the court of com- mon pleas of the city and county of ISTew York, by a resi- dent of the. state for any cause of action ; and by a non- resident plaintiff, when the cause of action has arisen, or the subject of the action is situated, within this state.^ It has been held that the subject of the action in such case, is the claim asserted by the plaintiff, and the satisfaction of which he seeks out of the property. The property itself is not the subject of the action, and the mere fact that a foreign corporation has property in this state will not jus- tify an attachment. This was in an action for alleged breach of contract made out of this state.* So, where the demand in action arose upon a written contract for the payment of money, made, executed and delivered and made payable in Canada, and all the labor done, and ma- terials furnished, were under this contract and upon works located in Canada, for a corporation created by the laws of Canada, and existing there, except a small part of the work, which was performed in this state, under said contract; it was held, not t6 be a case where the subject of the action was situated in this state ; and although the defendant, the foreign corporation, had property within this state liable to attachment, the attachment could not be sustained, by a non-resident plaintiff.^ So, where a negotiable instrument was made at the office of the de- ' MoBride v. the Farmers' Bank, * Whitehead v. Buf. & Huron R. 26 N. Y. R., 450. E., 18 How., 218. '■' Code, ? 227. 6 Campbell v. Proprietors of Ch. 3 Code, § 427. & St. Law. R. K., 18 How., 412. 354 PEOVISIONAL REMEDIES. [Ch. IY. fendant, in the state of Iowa, and made payable in the city of New York, held that the cause of action arose out of the state.^ But in an action on a policy of insurance issued and delivered in this state, the cause of action was decided to have arisen within this state.^ 10. A cause of action on which a non-resident plaintiff would not be entitled to an attachment, may be assigned to a resident of the state, for the purpose of obviating the difficulty ; and such assignment will not be a fraud upon the statute or the rights of the defendant.^ 11. Although it is essential to the jurisdiction of the court in an action against a foreign corporation, that the plaintiff should be either a resident of the state, or that the cause of action should have arisen, or the subject of the action should be situated within it, yet it is not neces- sary to the validity of the proceedings against such cor- poration, that proof of either of those facts should have been made previous to the commencement of the proceedings ; and it is sufficient if a state of facts which sustains the jurisdiction is made out when a motion is made to vacate the proceedings.* 12. The attachment may issue against a defendant who is not a resident of this state.^ There has been much discussion, in the courts, as to the interpretation to be given to the term " resident," as used in the above and other statutes, regulating the rights and remedies of creditors. Most of the decisions, before the Code, leaned to a liberal construction of the law in favor of creditors. Some of them really, and others virtually, holding that actual residence, without regard to the domicil, was within the contemplation of the particular statutes which were 1 Cantwell v. Dubuque R. R. Co., ' McBride v. Farmers' Bank of 17 How., 16. Salem, 26 N. Y. R., 450. 2Burns t. Provincial Ins. Co., 35 * Bates v. New Orleans, etc., R. Barb., 525 ; 13 Abb., 425. E., 4 Abb., 72. 6 Code, II 227,229, supra. § I.] ATTACHMENTS. 355 the subjects of interpretation.^ Under our former practice respecting attachments and non-imprisonment of debtors, where the attachment or warrant was the process for the commencement of the action, and where there was no other way of reaching the property of a debtor, whose domicil was in this state, but who remained abroad, such a construction might be justified by the necessity of the case and in furtherance of justice. But as the necessity no longer exists, that rule should be no longer followed. 13. The leading decisions since the Code, hold, that, where the Code in its provisional remedies, uses the term, " resident " or " residence," legal residence is meant, or in other words, the place of a man's fixed habitation, where his political and social rights and duties are exercised ; and that the words legal residence, inhabitancy, and domicil, are convertible terms."^ Bouvier defines " resident " as a person coming into a place with intention to establish his domicil or permanent residence, and who in consequence actually remains there. Burrill, as one who has a seat, or settlement in a place ; one who dwells, abides, or lives in a place ; an '^ inhabiiani," one who resides or dwells in a place for some time ; and " domicil," as a place where a person has his home; a residence at a particular place, accompanied by positive or presumptive proof of an inten- tion to remain there for an uncertain time. - The Roman law defines domicil to be the place where a man has set up his household gods and made the chief seat of his affairs and interests.' Residence combined with intention constitute a domicil.* 14. The following are th« general rules relating to 1 See Haggart T.Morgan, 4 Saudf., 552; Houghton v. Ault, 16 How., 198; 1 Seld., 422; matter of Thomp- 77; see RooseTelt v. Kellogg, 20 son, 1 Wend., 45 ; Frost v. Brisbin, John., 210. 19 Wend., 14. s 2 Domat, 484. 2 Crawford t. Wilson, 4 Barb., * 2 Kent's Com., 430. 504; Chaiue v. Wilson, 16 How., 356 PROVISIONAL REMEDIES. [Ch. IV. domicil, or legal residence. Every person must have a domicil somewhere, and he can have only one domicil at one and the same time. Every person has a domicil of origin, which he retains until he acquires another. The domicil of origin arises from birth or connections. The domicil of a minor follows that of his father, and remains until he acquires another, which he cannot do until he becomes a person sui juris.''- The domicil of the wife is generally that of the husband.^ Where the father is dead, the domicil of the children follows that of the surviving mother.^ A man's being in a place is prima facie evidence that he is domiciled there, but it may be explained and the presumption rebutted.* His mode of living is not material, whether on rent, at lodgings, or in the house of a friend.' There is no fixed period of time necessary to create a domicil. It may be acquired after the shortest residence under certain circumstances, and, under others, the longest residence may be insufficient.' There must be both the fact of the abode and the intention of remain- ing indefinitely — factum et animus. Both must be proved. The first is readily proved by a single fact ; the other may be established by the declaration of the party, or his con- duct, which is, at least, as satisfactory evidence, as his declarations upon such a question.'' 'Nov is it enough that one intends to change his domicil, and sincerely believes that what he has done amounts in law to such a change, unless an acivul change has taken place.^ 15. Under these general rules it has been decided, that if a person leave his domicil temporarily, and for a par- 1 Crawford v. Wilson, 4 Barb., * Higli appellant, 2 Douglas, 515; 504; see 4 Cow., 516, note. Vischer v. Vischer, 12 Barb., 640; 4 ^Viaoher v. Visoher, 12 Barb., Cow., 516, note 640. ' Hegenian r. Fox, 31 Barb., 475; 3 4 Cow., 516, note. Vischer v. Vischer, 12 Barb., 640. 414 How., U. S., 401; 4 Cow., ^Lee v. Stanley, 9 How., 272; 516, note. Chaine v. Wilson, 1 Bosw., 673. 5 Parsonafield v. Perkins, 2 Green., 411 ; 4 Cow., 516, note. §1] ATTACHMENTS. 357 ticTilar purpose, as to teach a school, and does not take up a permanent residence elsewhere, he does not change his residence.'- So, a person does not become a resident by coming into the state on a commercial adventure, withT out intention of settling here.^ Where a foreigner, who had resided in this state, and transacted business as a commission merchant for seven years, returned home, taking with him his effects, uncertain whether he would return or not, but who, after a sojourn of only three weeks in his native land, returned to this state, intending to commence business in Canada ; it was held that he had not abandoned his domicil of origin, and was not a resi- dent, or inhabitant under the non-imprisonment act.^ An inhabitant of another state, who is here temporarily, for pleasure or business, intending to return, is not a resident/ As, where a person domiciled in l^ew Jersey, having a dwelling and establishment there, came to ITew York, for the benefit of his health, hired a house, and died here after two years, he was held not to be a resident of this state under the statutes relating to proof of wills.® So, where a person, who had formerly been a resident of another state, had with his family removed to this state, and was then residing with a relative, while he was look- ing for an opportunity to engage in business, and was undetermined whether he should finally settle in this state or not, he was held not to be a resident of this state within the meaning of section 227 of the Code.^ A resi- dent of this state went to Wisconsin with a stock of goods, with intent -to make it his permanent residence, leaving his wife and child at board in this state. He re- mained in Milwaukee ten months in business, and during 1 Crawford V. ■Wilson, 4 Barb., 504. ■» Boardman v. House, 18 Wend., 2 In the Matter of Fitzgerald, 2 512. Calnea. 317. sisham v. Gibbons, 1 Bradf , 69. aintheMatterof Wrigley,4Wend., SBurrows v. Miller, 4 How., 349. 602 ; Aff'd 8, 134. 358 PROVISIONAL REMEDIES. [Ch. IV. the time was appointed by the legislature of Wisconsin a commissioner to distribute the stock of a bank and director of the same. He then returned to this state on a visit, and after staying two months, was arrested and held to bail ; it was held that he was not a resident of this state.^ 16. It is also well settled that the carrying on a mer- cantile business in this state, and staying within our limits for the purposes of business, during all the hours usually devoted to business here, do not alone constitute residence within the meaning of the statute. And it follows, as a necessary consequence of this proposition, that whether a a man's absence from his family be for eight hours in each day, or six days in each week, if he has a family living in a neighboring state, for which he provides, to whom he resorts for comfort, relaxation and repose, and with whom he abides whenever the immediate demands of his business will permit, whenever sickness disables him from conducting that business, and when those days successively return on which business ceases, and man rests from labor, he resides in such neighboring state, and there, in every proper sense — as understood no less by those learned in the law, than by the common intelligence of every day life — ^ is his home? Therefore, a person doing business in !N"ew York, but who maintains his family in New Jersey, with whom he spends his nights and Sun- days, is not a resident of this state, notwithstanding he owns property and keeps his bank account in this state.' So, a person is not a resident, who does business in New York, and boards, as an ordinary guest, at a public hotel, during the week, but who maintains his family at his former residence, in Connecticut, and spends his Sundays ■' Frost V. Brisben, 19 Wend., 11. » Id. ; Baohe v. Lawrence, 17 How., 2 Barry v. Bookover, 6 Abb., 374. 554; Greaton v. Morgan, 8 Abb., 64. § I.] ATTACHMENTS. 359 with them.^ But, where a person domiciled in New York, removed to Connecticut, and called that his residence, but continued his business here, boarding all the week, but spending his Sundays with his family in Connecticut, it was held that he was a resident.^ These last two cases cited, though very similar, are not necessarily conflicting. The facts are essentially different. In the latter case, it does not appear whether the attachment was issued under the revised statutes or the Code. The defendant had resided with his family and done business in New York city for years. His domicil remained there until a new one had been actually acquired. When his family re- moved to Connecticut, he still remained in New York only spending his Sundays in Connecticut. While in the former case, the defendant was domiciled in Connec- ticut, until he came to New York. He left his family and farm there, returning to them every Sunday, and remained at one time for nearly five months, during which time he was not in New York for a day. A person own- ing property and carrying on business in Canada, where his family is keeping house, but who is also carrying on business in this state and spends most of his time here, is not a resident.^ Likewise of a person, having a store of goods and doing business in this state, but who keeps a house in New Hampshire, where his wife and family reside, and in which he entertains his friends, and which he calls " home." * 17. But an immigrant who has left his native land, with no intention of returning, and who is living in this state without any determination to reside elsewhere, is a resi- dent of the state.^ So, an inhabitant of this state, while 1 Chaine t. Wilson, 16 How., 552 ; * Lee v. Stanley, 9 How., 272. 1 Bosw., 673. SHeidenbach v. Schland, 10 How., 2 Towner V. Church, 2 Abb., 299. 477. s Houghton V. Ault., 16 How., 77 ; Aff'd on appeal. 360 PROVISIONAL EBMEDIBS. [Ch. IV. traveling in search of a place to tarry, or settle, with no place determined upon, is a resident, although he left the state with the intention of removing elsewhere. He would not lose his domicil here until he had acquired one elsewhere.! When came to 'New York, on ,the 18th of October, and had not since left, and had previ- ously hired a house and paid rent in advance, and on the 25th his family arrived there, it was held that he was a resident on the 21st of October.^ So, where a person leaves the state for the purpose of opening a store in a western town, leaving his family and business here, and intending to return as soon as he has accomplished his purpose, he is a resident.* So, where a person domiciled in lifew York moved to Connecticut, and called that his residence, but who continued his business here the same, boarding during the week, but spending his Sundays with his family in Connecticut, he was held not to have lost his domicil in this state.* 18. Where a person has two residences, for different seasons of the year, that will be his domicil, or legal resi- dence, which he himself selects, or deems to be his home; or which appears to be the centre of his affairs, or where he votes, and exercises the rights and duties of a citizen." 19. To sustain an attachment on the ground of non- residence against a person who had formerly a fixed habitation in this state, it must appear that such person has acquired a residence out of this state at the time the attachment issues. And, therefore, the enlistment of a person into the volunteer army or navy of the United States, and absence from the state in such service, do not render such person a non-resident.* iHegeman v. Fox, 31 Barb., 475. » Douglass v. Mayor of N. Y., 2 ' Matter of Crawford, 3 N. Y. Leg. Duer, 110 ; see also 27 Miss., 704. Obs., 76. «Tibbitts v. Townsend, 15 Abb., sHurlbut y. Seeley, 11 How., 507. 221. * Towner v. Church, 2 Abb., 299 ; see Chaine v. Wilson, 16 How., 552. § I.] ATTACHMENTS. 361 20. Where tlie husband and wife are living separate, by the decree of a competent court, a change of the domicil of the husband does not change that of the wife. ' {a) 21. An attachment may also issue against a defendant who has absconded or concealed himself; ^ but it must appear that he has departed from the state, with intent to defraud Ms creditors, or to avoid the service of a sum- mons, or keeps himself concealed therein with like intent.* An absconding debtor has been defined to be one who, with intent to defeat or delay the demands of his creditors, conceals himself, or withdraws himself from his usual place of residence beyond the reach of their process.* The term, as used in this chapter, is sufficiently defined by that part of section 229 above cited. The con- cealment which will justify an attachment is but a phase of absconding, and when they are connected together, as above, are regarded as undistinguishable. It has, there- fore, been held that an affidavit, stating that the defendant has "absconded or concealed himself," does not exhibit two separate grounds for attachment,. which, coupled by the disjunctive " or," would be vicious, but only one; for the terms are of equivalent meaning.^ 22. To constitute an absconding, it is necessary that the party should have departed from the limits of this state; but it is not necessary that such departure should have been (a) There are two or three of the earlier oases that seem to conflict with some of those cited above, but on a careful examination it will be found that the difference arises chiefly from the peculiar circumstances upon which the decisions rest,. as well as from the necessity of the case. Such are the oases of Haggart v. Morgan, 4 Sandf., 198, 1 Seld., 422 ; the matter of Thompson, 1 Wend., 45, and Frost v. Brisbin, 19 Wend., 14. For an elaborate analysis and explanation of these cases, see the opinion of Justice James, in Houghton v. Ault, 16 How., 78. 1 Visoher v. Vischer, 12 Barb. , 640. ^ Drake on Attach. , g 54, and oases ; 2 Code, § 227; ' see also Van Alstyne v. Erwine, 1 s Code, I 229. Kernan, 331 ; People v. Recorder of * Drake on Attach., ^ 48. Albany, 6 Hill, 429. 24 352 PROVISIONAL EEMBDIES. [Ch.IV. secret, as was required under the revised statutes, provided the intent either to defraud, or to avoid service, be shown to be existent at the time. As, where the defendant, who was on the verge of bankruptcy, openly and publicly left the state and went to England, intending to transact business abroad and then return, but with a view of having the explosion of his affairs take place in his ab- sence, and of avoiding the importunity and proceedings of his creditors, an attachment was sustained. The de- fendant having confessedly departed the state, all that is required is for the court to be satisfied that such departure was with intent to avoid the service of process, or to defraud creditors.^ But a departure from the state, with the intention of again returning, and without any fraudu- lent designs, is not absconding within the intendment of the law. Thus, where an attachment was granted upon an affidavit that the defendant had departed the state, with the intent of avoiding arrest, and of defrauding his creditors, and it subsequently appeared that he left his home to go to another place in the same state to sell some property; that, previous to his departure, the object of his journey was made known to his neighbors, and was generally understood, and that his departure was public and his return speedy, an attachment was superseded.^ And, so where it satisfactorily appeared that the defend- ant had not absconded, although from the facts and circumstances his creditors were authorized to say that they believed he had done so.^ 23. It is a general rule, and is undoubtedly true, under the Code, that one who resides abroad, and comes thence into this state for some purpose, and then returns to his domicil, cannot be considered an absconding debtor for so 1 Morgan v. Arery, 7 Barb., 656. » Matter of Warner, 3 Wend., 424. 2 Matter of Chipman, 1 Wend., '66. §1.] ATTACHMENTS. 363 leaving this state.^ And in Tennessee, under a statute authorizing an attachment against any person ahsconding, or concealing himself, so that the ordinary process of law could not be served upon him, it was held, that only resi- dents of the state, who absconded, were within the scope of the law, and that an attachment would not lie for that cause, against one who had not yet acquired a residence.^ 24. The act of absconding is a personal act, and can be alleged only of him who has done it. A person can neither abscond, keep concealed, or be absent by proxy. Therefore, the fact that one member of a firm has ab- sconded, will not justify an attachment against all the members on that ground.^ 25. The concealment contemplated by the above section, is a debtor's placing himself designedly, so that his cre- ditors cannot reach him with process, or so that he may defeat or delay their demands, and it matters not for how short a time, if the intent be clear. Thus a concealment for nine hours was held to be sufficient to authorize an attachment.* Nor is it essential that the concealment be exclusively with intent to defraud creditors ; but it must be with that intent or with intent to avoid the service of a summons. Either intent is sufficient to justify an attach- ment.° And though an attachment be granted on an affidavit, alleging one of the intents, and it afterwards appears that the other intent was the proper one, the attachment will nevertheless be sustained. It is not necessary to prove the intent as averred, provided the evidence shows the other intent to have existed.* 26. Where an attachment was issued on affidavit, that ' Matter of Fitzgerald, 2 Caines, * Cammann v. Tompkins, 1 Code 318; Matter of Sohroeder, 6 Cow., R., N. S., 12. 603. 5id., per Edmonds, J. ; Oenin t. 2 Drake on Attach., § 49 ; citing Tompkins, 12 Barb., 265. Shugart v. Orr, 5 Yerg., 192. 6 Morgan v. Avery, 7 Barb., 656. 8 Leach t. Cook, 10 Vermont, 239. 364 i'KOVISIONAL REMEDIES. [Ch. IV. the defendant was secreting himself, so that the ordinary process of law could not he served, and it was shown on behalf of the defendant, that he was temporarily absent from his place of abode, on a visit, in another county in the same state, that the plaintiff knew the defendant's intention to make said visit long before he started, and that his intention was also . publicly and notoriously known, it was held to be unnecessary for the defendant to show that he communicated to the plaintiff his design to make the visit, and that it was sufficient if it were known in the neighborhood and could have been ascer- tained on inquiry.^ 27. Concealment, to authorize an attachment, must be with intent to defraud creditors, or to avoid the service of a summons. Therefore, one who conceals himself for the purpose of avoiding a criminal prosecution, was held not to be within the purview of the law.^ 28. The fact of the concealment should be sworn to positively, it is not sufficient to swear that the plaintiff believes that the defendant keeps himself concealed to avoid the service of a summons. If the facts are alleged on belief, the grounds of such belief must be set out, so that the judge who issues the warrant may have -such be- lief, and that the court may determine whether it is well founded. It should not state generally that diligent inquiry has been made for the defendant ; that he was not to be found, nor could it be ascertained whither he had gone. But it should, state where, when, and of whom the inquiry was made, so that the judge can deterniine whether the ' inquiry has indeed been conducted in good faith and with diligence.* It is not essential that a sum- iDrakeon Attach., g 55, citing 6 'St.Amantv.DeBeixedon,3Sandf., Texas, 406. 703 ; Cammanu v. Tompkins, 1 Code 2 Drake on Attach., §56, citing 8 K,., N. S., 12. Martin (Louisiana), N. S., 247. ' § I.] ATTACHMENTS. 365 mons should have been issued and an attempt made to serve it. It is sufficient if the defendant has so disposed of himself, intentionally, that the summons could not have been served.^ 29. Where there may be one of two several intents coupled with an act, and' an attachment is issued on an affidavit alleging the act with one of these intents, it will be sustained by proof of the other intent. As where an attachment was granted upon an affidavit alleging a de- parture from the state with intent to defraud creditors, it was held that it was not necessary to prove the intent as laid, provided the evidence show the other intent to have existed.^ 30. Whenever any corporation, or person, has removed, or is about to remove, any of his, or its property from the state, with intent to defraud his, or its creditors, an at- tachment may issue, whether such defendant be a resident of this state or not.* 31. It is in accordance with the rulings under analogous provisions, as well as with the decisions in other states, that to justify an attachment for a removal of property, it must clearly appear that the act was done to defraud credit- ors ; the- mere fact of removal of property out of the state is insufficient. Thus, in Illinois, under a statute authorizing an attachment when the debtor " is about to remove his property from this state, to the injury of such creditor," a quantity of pig-iron belonging to the defendant was attached ; evidence ctf the possession of other property, sufficient to pay the demand, was held admissible, as tending to show that the removal would not operate to the plaintiff's injury.* 32. The term " his property " means any property in iCammann v. Tompkins, ut supra. * White v. Wilson, 10 Illinois, 21, ^Morgan v. Avery, 7 Barb., 656. cited in Drake on Attach., i 69. 3 Code, §2 227,229.' ^ 36g PEOVISIONAL REMEDIES. [Ch. IY. defendant's possession, and to whicli he claims title, although his title may he imperfect, or clearly bad. It is the intent that justifies the attachment, and that is as manifest in concealing or removing embezzled property, as in concealing or removing that which is his own.* But the open removal of property, under the honest impres- sion that it is exempt from execution, is not a fraudulent removal within the meaning of the non-imprisonment act, whose text is similar to the clause above.^ 33. The question of intent is one of fact and not of law, and must be proved by the circumstances and incidents connected with the transaction. Where an attachment was sought under the act of 1842, on the ground that the defendant intended to remove his property out of the county with intent to defraud creditors, and the facts sworn to, were that the defendant had closed, up his store, and immediately commenced packing his goods, and con- tinued packing them until midnight ; that his store was closed next morning, and that on the day previous he had removed his family without informing plaintiff who re- sided in the same^ house, the afl&davit was held to he insufficient, and the attachment was withheld.* But the rule is, perhaps, not so strict under the Code, as the suffi- ciency of the affidavit is not a jurisdictional question, and it is held that if it show enough to call upon the judge to exercise his judgment upon the weight of the evidence in establishing the grounds of the application, the attach- ment will not be set aside as irregular.* 84. An attachment may also be issued against any person or corporation who has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property, with intent to defraud his or its I Treadwell v. Lawlor, 15 How., 8. ' Mott v. Lawrence, 17 How., 559 ; ■^ Krauth t. Vial, 10 Abb., 189. 9 Abb., 196. * Furman t. Walter, 13 How., 348. |I.] ATTACHMENTS. 367 creditors, whether the defendant be a resident of this state or not.^ The principles stated above as to the proof of intent, are equally applicable to this clause. 35. A mere threat to make an assignment of property, granting preference to others, unless the plaintiff would accept certain terms, made in words which may be con- strued to mean that he would make a lawful assignment, is not, in itself, proof of a fraudulent intent sufficient to authorize an attachment." As where the defendant had said to plaintiff that he wished to compromise with hia creditors, and that if the plaintiff" did not consent to take 33J per cent, he would go home and make an assignment of his property, and that he would put his property out of his hands sooner than pay him more than 33 J per cent ; and the defendant did subsequently make a legal assign- ment ; an attachment was refused.* Nor does it alter the rule that the defendant had originally promised to give the plaintiff collateral security for his debt, if it is not shown that such security was to have been given out of the assets of the debtor.* For the debtor has the legal right to dispose of all his property to one or more pre- ferred creditors, without fraud, and without incurring any liability to attachment.' 36. But the debtor will not be allowed to use his power to assign in order that he may intimidate his creditors from pursuing the remedies allowed by law to collect their debts, without being chargeable with fraudulent intent. As where the defendant threatened that, if he were sued, he would make ah assignment, and the plaintiff would not get any thing, and that he would do business in the name of another ; and the defendant, on a motion to set 1 Code, U 227, 229. * Diokerson v. Benham, 20 How., ^Wilson T. Britton, 26 Barb., 562 ; 343 ; 12 Abb., 158. 6 Abb., 97. nd. ; Eigney v. Tallmadge, 17" 3 Id. How., 556. 3g8 PROVISIONAL REMEDIES. [Oh. IV. aside the attachment, claimed that he had prpperty enough to pay all his debts, if his creditors had giveii him a little more time ; it was held that the defendant's threat, in connection with his ability to pay all his debts, was evidence of an intent to defraud creditors, and the motion to set aside the attachment was refused.^ So, where a debtor refused to pay his note on demand, and was then told .by the holder that he would be sued, and the debtor, thereupon, threatened that if he was sued he would turn over all his property, and that the holder would not get a cent, the property of the defendant was held liable on such threat to an attachment.^ But in these eases, it will be observed, the intent was not mani- fest by the simple threat to assign, but by that in con- nection with other contemporaneous or subsequent facts. 37. So, where a debtor has made an assignment for the benefit of creditors, which is in fact fraudulent, though valid upon its face, an attachment will be granted.^ But property in the hands of an assignee for the benefit of creditors, cannot be attached on the ground of alleged fraudulent transactions of the assignor prior to the time of the assignment.* tJnder the fifth clause of section 179, the language of which is similar to that of the clause under consideration, it was held, that the making of an assignment constructively fraudulent, was not in itself a ground of arrest, a fraudulent intent must be shown.' But, if after an assignment for the benefit of creditors,, the assignor retain and sell a part of the property assigned, the transaction is fraudulent.* A mere refusal to pay, or provide for a debt, however gross in its nature, _ _ ^ iQasherie T. Apple, 14 Abb., 64. *Belmont v. Lane, 22 How., 365. aliivermore v. Rhodes, 27 How., ^Birohell v. Straus, 28 Barb., 506. 293 ; 8 Abb., 53 ; Spies v. Joel, 1 3 Skinner v. Oettinger, 14 Abb., Duer, 669. 109; Rinohey v. Stryker, 26 How., oMcButt t. Hirscb, 4 Abb., 441. 75. § I.] ATTACHMENTS. 369 does not necessarily show, or tend to show, intent of a fraudulent disposition." 38. By the term " property " is meant any property in the defendant's possession and to which he claims title, although his title is imperfect or bad. The attachment lies if the defendant has secreted or is about to secrete any single piece of his property, and extends to all pro- perty of every kind, because the single act shows a readi- ness and intent to extend the offense as far as may be necessary to promote his fraudulent design ; and this design is as manifest in concealing embezzled property as in concealing that which is lawfully his.^ 39. A mere omission to state, upon the face of a deed of conveyance, the objector purpi.ise for which it is made is not conclusive evidence of fraud, even though such deed be given under suspicious circumstances. The pur- pose and consideration of the conveyance may be shown by affidavits and the apparent fraud thereby negatived. As where a deed of property, appjarently absolute was made to a third person as security for certain liabilities, which, from the omission to state the purpose for which it was made, and other circumstances, was suspicious, and an attachmentwas therefor granted. The defendant satis- fied the court, by affidavits that it was made for honest purposes, in order to protect the grantee for his liability as security, fairly entered into, and the fraudulent intent was thereby disproved.^ 'Nov, is a neglect to defend an action", by means of which property is taken, a fraudulent dispo- sition of property, where no fraud or collusion is shown.* 40. Under the non-imprisonment act of 1831, the lan- guage of which is similar to the above, where it appeared that the defendant had left the state, two months before, ' Hathorn V. Hall, 4 Abti., 227. 'Rigney v. Talmadge, 17 How., ^Treadwell v. Lawler, 15 How., 556. 8, per Mitchell, J. * Id. 370 PROVISIONAL EBMEDIES. [Oh. IV. and had gone to Canada with intent to remain there, and had taken with him some portion of his personal property ; that he had no family and but little property ; that he was offering his property in this state for sale ; that he told the plaintiff that " he would be damned glad if he ever got his pay of him ; " that no civil process could be served on him, because he kept out of the state, and that he refused to pay any thing on plaintiff's debt. It was held, that these facts proved a strong case of inknt to dis- pose of property to defraud creditors.^ So, in Missouri, under a statute allowing an attachment where the de- fendant " had fraudulently conveyed, assigned, removed, concealed and disposed of his property and effects, so as to hinder, defraud and delay his creditors," it appeared that the defendant, being indebted to the plaintiff and others, was permitted by them to take a certain amount of goods, under a written agreement to make a weekly account of his sales, and pay over the proceeds, after deducting the charges, and that he made on one occasion a considerable sale of goods for cash, of which he made no return. It was held, that the money for which the goods were sold by the defendant, was as capable of being concealed as the goods were, and that the concealment of the money was not less a fraud, because it was accompanied with a concealment and misrepresentation of facts and circumstances.^ ' 41. The facts and circumstances tending to show the fraudulent disposition of the debtor's property should be sworn to by some person familiar with them. Where the affidavit did not state, upon actual knowledge, any material fact amounting to legal evidence of such purpose by the defendant, but stated all upon information and 1 Rosenfield v. Howard, 15 Barb., "Po^ell t. Mathews, 10 Missouri, 646. 49 ; cited in Drake on Attach., J 73. §1.] ATTACHMENTS. 371 belief, an attachment issued thereon was set aside as irregular.^ 42. "Where one of several joint debtors absconds, or is a non-resident, his interest in the joint property, as well as his individual property may be attached. But in such case, the attachment will not bind the joint property of all the partners, but only the interest of the party against whom the attachment issues. Nor is the absence, or absconding, of one joint debtor sufficient to authorize an attachment against the property of all.^ There is a con- flict in the decisions on the question, as to whether under an attachment against one member of a copartnership, the partnership property can be seized. In Abels v. "Westervelt, it was held, at general term, that the copartner- ship property could not be seized and sold under such attachment. That it is only the interest in the property of the partner attached that can be seized and sold, and that his interest is his share in the surplus of the property after paying the partnership debts, and also that the other partners have a right as against such an attachment to retain the property for the purpose of satisfying the partnership debts ; ^ and the decision in Stoutenburgh v. Vandenburgh, was similar.* But in G-oU v. Hinton, the decision in the latter case was overruled, and it was there held that upon an attachment against one of several co- partners, the sheriif may seize the leviable property of the copartnership and take it into possession aid sell the' defendant's interest insomuch thereof as is necessary, and further that the analogy holds between attachments and executions, and whatever property the sheriff may take under the latter process he may seize and take under iHill v. Bond, 22 How., 272; Ijergher, 2 Code R., 50; Baird v. Brewster v. Tucker, 13 Abb., 76. Walker, 12 Barb., 300. 'Stoutenburgh t. Vandenburgh, '24 How., 284. 7 How., 233; Brewster v. Honigs- *7 How., 229. 372 PROVISIONAL EBMBDIES. [Ch. IY. the former.* The case of GoU v. Hinton was referred to and approved in Smith v. Orser, and the court held in that case, that where an attachment is issued against one or more members of a firm, the sheriff must proceed to serve it upon the interest of the defendants in the property- owned by them jointly with others, in the same manner that he is required to do under an execution.^ In Drake on Attachments it is said that an interest which a defendant may have with others may be attached, and the property may be seized and removed, notwithstanding the rights of other joint owners, arising, out of an agreement be- tween the owners, may thereby be impaired. In such case, only the individual interest of the defendant can be sold, and the purchaser becomes a tenant in common with the other cotenants.^ But in an action against a special partner, his interest in the copartnership cannot be attached.^ 43. It was early held, in this state, that the statute respecting absent debtors did not warrant proceedings by attachment against heirs, executors, trustees, or others claiming merely by right of representation ; ° and, more recently, that proceedings by attachment, against execu- tors, are inapplicable for the purpose of compelling the settlement of the estate of the testator, or for enforcing payment of an individual demand, contracted by the testator, when the executors are not charged with any breach of duty, except a neglect to pay the debt.* But if an executor or administrator, in the course of the dis- charge of his duties as such, place himself in a position where he becomes, by principles of law, personally liable. > Gall V. Hinton, 8 Abb., 120. 574; see further on this subject 243 Barb., 187. post, sec. v., pi. 17. sg 248, Mersereau v. Norton, 15 ^jaoksou v. Wals worth, 1 John.'s John., 179; Phillips v. Cook, 24 Cases, 372; Matter of Hurd, 9 Wend., 389. Wend., 465. 4 Harris v. Murray, 28 N. Y. R., "Metcalf v. Clark, 41 Barb., 45. §1], ; ATTACHMENTS.. 373 lie may be proceeded against personally, and need not be named as exefeutor or adminietrator.* 44. There is no statutory provision prohibiting both an attachment and an order of arrest from being issued in the same action. Thus, where an order of arrest' had been made upon affidavits showing the obtaining of the goods on false pretenses, an attachment was also issued, upon the ground of fraudulent disposition of property.'' 45. It is provided, by a rule of the court, that "in actions for the recovery of money only, when the summons has been served by publication, under section 135 of the Code, no judgment shall be enteredj unless the plaintiff, at the time of making the application for judgment, shall show by affidavit that an attachment has been issued in the action and levied upon property belonging to the defendant, which affidavit shall contain a specific descrip- tion of such property, and a statement of its value, and shall be attached to and filed with the affidavits of publica- tion." ^ Where a judgment was procured by publication, and no property attached, the court held that the judg- ment was irregular, in consequence of the plaintiff's omission to attach the defendant's property, as it could, in no event, affect any property of the defendant, except such as had been taken by virtue of an attachment regu- larly issued in the action.* 46. The plaintiff may have the property attached at the time of issuing the eummoris, or at any time afterwards. Tor the purposes of this section, the action will be deemed commenced when the summons is issued, provided, how- ever, that personal service of such summons shall be made, or publication thereof commenced, within thirty days.® The. summons is "issued," within the meaning of the 1 Matter of Galloway,21Wend.,32. ^Rule 25. 2 Bebee v. Rogers, Superior Court, * Warren t. Tiffany, 17 How., 106. 1859, cited in Hoff. Pro Kern, 414. 6 gee ? 227, as amended, 1866. 374 PROVISIONAL REMEDIES. [Ch. IV. statute, wlien it is. made out and placed in the hands of a person authorized to serve it, with a bona fide, intent of having it served.^ The court acquires jurisdiction from the time of the service of the summons or the allowance of the attachment.^ The current of decisions, prior to the amendment of the above section in 1866, was to the effect that the attachment could not be served before the service of the summons ; but such amendment has over- ruled those decisions, so that it would be useless to refer to them.* It is probably not essential that the summons be delivered to the sheriff before the attachment is issued ; but it should be made out and presented to the judge together with the other papers on which the application is based.* 1 Mills V. Corbett, 8 How., 500. 661 ; 3 Bosw., 626 ; 16 Abb., 246, 2 Code, J 139. note. » See 28 N. T. K , 659 ; 2 Sandf., * See Gould v. Bryan, 3 Bosw., 626. §n.] ATTACHMENTS. 375 sECTioi^r n. THE AFFIDAVIT. 1. § S39. In wliat cases warrant may be leaned ; affidavits to be filed. 5. The affidavit mnst be positive. 8. Facts, how to be stated. 4. Intent may be stated on belief ; and in the alternative. 6. Words of the statute insufficient, but should be taclnded. 6. Cause of action, how stated. 7. Entitling affidavit. 8. Affidavit, by whom made. 9. Proceeding cannot be reviewed colla- terally. 10. Amending affidavit. 11. FUing affidavits. 1. " The warrant may be issued whenever it shall appear, by affidavit, that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof, and that the defendant is either a foreign corporation or not a resident of this state, or has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein, with like intent ; or that such corpora- tion or person has removed, or is about to remove, any of his or its property from this state, with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of or secrete, any of his or its property, with the like intent, whether such defendant be a resident of this state or not. It shall be the duty of the plaintiff procuring such warrant, within ten days after the issuing thereof, to cause the affidavits on which the same was granted to be filed in the office of the clerk of the county in which the action is to be tried." ^ The first division of this section, dowtf to "keeps himself concealed therein, with like intent," was iCode, ? 229. 376 PROVISIONAL EEMEDIES. [Ch. IV. in the Code of 1849. The second, giving the remedy for removing or concealing property, was added in 1857. And the third, or concluding paragraph, in 1860. 2. In a remedy of so grave a character as the attach- ment, which ties up the entire property of a party, pend- ing a suit, the affidavit upon which the proceeding is authorized should be explicit, and made, in general, upon positive knowledge of the deponent, so far, at least, as to establish & prima! fade case.^ Where any facts are alleged upon information and belief, the source of such informa- tion should be set forth. And it must be observed that there is a distinction between statitig the source, and seUiri^ it forth. If the affiant's knowledge is derived from letters, papers, or other documents, in his possession, or which it is "in his power to procure, it would not be sufficient to state that the knowledge or information was derived from such papers ; but the papers themselves, or copies of them, should be presented.^ Though facts may some- times be alleged on information and belief, yet an affida- vit on mere unsupported hearsay will be insufficient, and an attachment granted thereon will be set aside.^ Where the affidavit of the person, from whom is derived the information on which the application is based, cannot from any cause, be obtained, the reasons why it cannot be obtained, together .with a detail of the information derived from such person, should be presented to the judge, so as to satisfy him that the facts exist, on which the attachment is sought ; and that the best evidence in the plaintiff's possession has been produced to establish them.^ (See forms Nos. 90 to 94). 3. It is the duty of the judge to determine whether a 'St. Amant v. DeBeixedon, 8 ^ gee DeNierth v. Sidner, 25How., Sandf., 703 ; Hill v. Bend, 22 How., 419. 272; Mott v. Lawrence, 17 How., » Hill v. Bond, 22 How., 272. 569 ; Brewery. Tucker, 18 Abb., 76. < Id. I II.] ATTACHMENTS. 377 sufficient cause of action exists, and whether the case is one of those in which an attachment may issue ; and to enable him to do this, the facts constituting the cause of action, and those constituting the grounds for an attach- ment, should be plainly and fairly stated. It would be obviously insufficient to state simply that a cause of ac- tion - exists, and that the defendant is a non-resident, or that he has departed from the state with intent to defraud creditors ; or that he has disposed of his property with like intent, without stating any of the facts from which these conclusions are derived. Such a cburse would be substituting the conclusions of the affiant for those of the judge.i 4. But as the intent of the defendant is not a subject of positive knowledge, but can only be inferred from his words and acts, therefore the intent may be alleged on belief; but the words or acts from which such intent is to be inferred, should be specifically set forth, that the judge may be able to determine whether such inference be proper. Where the intent is positively sworn to, the court will regard the allegation as made on belief, and will require the facts to be set forth.^ And where the affidavit sets forth facts, which, coupled with either of two several intents, would justify an attachment under the above section, and the attachment is granted upon the averment of the facts with one of those intents, it will be sustained by proof' of the other intent. Thus, under that clause of the above section which provides that an attach- ment may issue when it shall appear that the defendant " has departed from the state with intent to defraud his creditors, or to avoid the service of a summons," an 'SeeFrostv. Willard, 9Barb.,440, can hardly be considered aa an Cammann v. Tompkins, 1 Code R., N. authority. S., 12;Genenv. Tompkins, 12 Barb., ^ Frost v. Willard, 9 Barb., 446; 265 ; the dictum in Furman t. Wal- Furman v. Walter, 13 How., 355. ter, 18 How., 354, to the contrary 25 378 PROVISIONAL REMEDIES. [Oh. IV. attachment was obtained upon an affidavit alleging a departure, with intent to defraud creditors. The defend- ant moved to set it aside, and adduced evidence to dis- prove the alleged intent. The court held that it was not necessary to prove the intent as averred, provided the evidence showed the other intent to have existed.* Where, under a given statement of facts, it is doubtful which intent should be coupled therewith, the affidavit ma,y charge the intent in the alternative.^ 5. "While it would not be sufficient to make the allega- tions in the bare words of the section, without facts and circumstances to confirm them, yet such words of the section should be alleged, distinctly and positively, either preliminary to, or at the conclusion of, the statement of facts. 6. It must be made to appear, that a cause of action exists against the defendant, specifying the amount of the claim and the grounds thereof. The cause of action need not be stated with the same fullness and precision that would be required in a pleading ; but it should be so stated that the judge can readily determine whether or not a cause of action really exists. And the amount of the claim must be specified. Where the plaintifi" was unable to state the amount, without an accounting between the parties, the attachment was set aside.* Where an affi- davit alleged " that the demand arose upon a judgment, which, deponent has been informed and believes, was obtained in or about the year 1842, by this deponent, etc., against said, etc., on a promissory note, etc.," it was held that the words " informed and believes," referred to the date only, and not to the existence of the judgment.* 1 Morgan V. Avery, 7 Barb., 656. 'Ackroyd v. Aokroyd, 20 How., 2 Van Alstyne v, Erwine, 1 Kern., 93 ; 11 Abb., 345. 831 ; Cammanu v. Tompkins, 1 Code < Donnelly v. Corbett, 3 Sold., 500. K., N. S., 12; Genin v. Tompkins, 12 Barb., 265. § II.] ATTACHMENTS. 379 7. It is not necessary to entitle the affidavit ; but if it is not entitled, it must intelligibly refer to the action in which it is made.^ Where an affidavit had no title, did not refer to the action, and did not mention the name of the plaintiff or defendant, nor whether deponent was plaintiff or defendant, and was so indefinite that it could be used in one action as well as another, it was held entirely insufficient to sustain any proceeding.^ 8. The affidavit may be made by the plaintiff, or by any other person, having knowledge of the facts. It should be made by some one having actual knowledge ; and where the facts are not all within the knowledge of one person, collateral affidavits may be used.^ 9. The sufficiency of the affidavit upon which an at- tachment under the Code issues, is not a jurisdictional question ; and, therefore, the proceedings cannot be re- viewed and set aside in a collateral matter.^ But, where the moving affidavit is clearly insufficient, it may be set aside, on a motion in the action for that purpose.^ 10. In Furman v. Walter, it is said that "it would seem that the attachment and original affidavits, being proceedings in the action, come within the 173d section of the Code, which authorizes the court, in furtherance of justice, to amend any pleading or proceeding by inserting material allegations therein."* 11. The last clause of the above section makes it the duty of the plaintiff" procuring the attachment, within ten days after the issuing thereof, to cause the affidavits on which the same was granted to be filed in the office of the 1 Code, J 406. Barb., 412 ; Furman v. Walter, 13 2 Burgess v. Stitt, 12 How., 401. How., 349. 'See St. Amant v. DeBeixcedon, sConklin v. Dutelier, 5 How., 3 Sandf., 703; Hill v. Bond, 22 386; Hill v. Bond, 22 How., 272; How., 272; Morgan t. Avery, 7 Burgess v. Stitt, 12 How., 401. Barb., 658. «13How., 349. * In the matter of Griswold, 13 380 PROVISIONAL REMEDIE8. [Ch. IV. clerk of the county in which the action is to be tried. But by a rule of the supreme court, the affidavits upon which an attachment has been granted, must be filed by the plaintiff's attorney, within ^^I'e days after the same has been granted, or in default thereof, the defendant may move the court to vacate the proceedings for irregularity, with costs.* But where a party inadvertently omits to comply with this rule, the court may undoubtedly relieve him upon or without terms.^ (For forms of affidavit, see appendix IsTos. 90 to 94). 1 Rule 4. 2 See Leffingwell v. Chave, 19 How., 55; 10 Abb., 472. §ni.] ATTACHMENTS. 381 SECTION in. THE UNDERTAKING. 1. §230. Security on obtaining the war- rant, 2. The nndertaklng, its form and execu- tion. 3. The amonnt for which it must he given. 4. Plaintiff need not join in ; how sureties to justify. 5. When surety becomes incompetent, court may substitute. 6. Undertaking to be filed. 7. Defects in, do not discharge sureties. 8. Who may bring action on. 9. Por what damages sureties liable. 10. Obligation continues on appeal. 1. " Before issuing the warrant, the judge shall require a -written undertaking on the part of the plaintiff, with sufficient surety, to the effect that if the defendant recover judgment, or the attachment be set aside by the order of the court, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be, at least, two hundred and fifty dollars."^ In 1862 the words " or the attachment be set aside by the order of the court " were added ; otherwise the section has remained unaltered. 2. The undertaking must be in writing, but no particu- lar form is prescribed ; and a substantial compliance with the language of the section is sufficient. It will be good even made in the form of a penal bond, provided it con- tain the conditions here required, and be otherwise regular.^ But the proper course is to follow the exact wording of the section. Before the undertaking can be received or filed, it must be duly proved or acknowledged 1 Code, g 230. 2 Conklin v. Butcher, 5 How., 386 ; 1 Code K., N. S., 49. 382 PROVISIONAL REMEDIES. [Oh. IV. in like manner as deeds of real estate;^ and after it has been passed upon by the judge, his approval must be in- dorsed thereon. But where the undertaking is otherwise sufficient, and there has been an omission to acknow- ledge it, it may be amended in that respect and acknow- ledged, nunc pro tunc ; ^ or, if improperly executed, in any respect, it can be amended on motion to the court.' (See form No. 95).' 3. The sum, for which the undertaking must be given, must be at least $250 ; and in ordinary cases this sum would probably be sufficient. But the judge may require more, and should do so, where it is probable that that amount will not cover all the costs and damages which the defendant may recover, if successfal. The plaintiff should take .the precaution to insert a sum sufficiently large to fully cover the probable amount of costs and damages which the defendant may sustain. But if defective in this respect, the court may allow an amend- ment, by filing a new undertaking.* The defendant is probably the only party that could take advantage of any defect or insufficiency in the undertaking. Such is the rule in several of the states.* 4. The plaintiff need not join in the undertaking ;^ but there must be, at least one surety; and there need be only one, provided the judge deem that sufficient. The sureties should justify, by an affidavit attached to or indorsed upon the undertaking, to the effect that they are householders or freeholders within the state, and worth severally the amount specified in the undertaking over and above all their^ debts and liabilities. But any omis- 1 Sup. Court, Rule 6. 6See Drake on Attach., 2d ed., 2 Conklin v. Dutoher, 5 How., 386. ? 143. s Bellinger T. Gardner, 12 How., « See Askius v. Hearns, 3 Abb., 381. 184; Leffingwell v. Chave, 19 How., ^KiBsam V. Marshall, 10 Abb. , 424. 54; 10 Abb., 472. I III,] ATTACHMENTS. 383 sion or irregularity in the juatification, may be amended on motion.^ 5. Should one of the sureties to the undertaking become insolvent, or otherwise incompetent, the court has discretionary power to require a substitute.* 6. When the undertaking has been properly executed and acknowledged, the judge must indorse his approval thereon, and the same must be forthwith filed by the plaintiff's attorney, with the clerk of the proper county; or in case it be not filed, within five days from the grant- ing of the attachment, the defendant shall be at liberty to move the court to vacate the proceeding for irregu- larity, with costs, as if no undertaking had been given.^ But when the party inadvertently omits to file the under- taking within the five days, the court may relieve him with or without terms.* 7. It is laid down by Mr. Drake, in his excellent work on Attachments, that the errors and defects of attachment bonds, however they might affect the attachment proceed- ings, do not interfere with the liability of the obligors to the defendant. Upon them the obligation continues, though the attachment might have been vacated because of the insufficiency or irregularity of the instrument.* And the same rule would no doubt apply to undertakings given as in this chapter. 8. As a general rule, the only party who can maintain an action on an attachment undertaking, is the defendant. The bond is not required for the protection of the officer executing the attachment, nor for the indemnification of a third party, whose property may be wrongfully attached, but simply as a measure for the benefit of the party against whom the writ issues.* iConklin V. Duteher, 5 How.,386; *Leffingwell v. Chave, 19 How., Bellinger v. Gardner, 12 How., 381. 55 ; 10 Abb., 472. ^Willett V. Stringer, 15 How., 6 Drake on Attach., 2d ed., ^ 150. 310 ; 6 Duer, 686. « Drake on Attach., 2d ed., | 162. » Sup. Court, Rule 4. 384 PROVISIONAL REMEDIES. [Ch. I?. 9. The damages for whicli the plaintift' will be liable under the undertaking, are the natural, proximate, legal result, or consequence of the wrongful act. Remote or speculative damages — such, for instance, as result from injuries to credit and business — cannot be recovered. If the property was taken out of the defendant's possession, he may be entitled to the value of it, or to loss occasioned by his being deprived of the use of it pending the attach- ment, or by an illegal sale of it, or by injury thereto, or loss or destruction thereof.^ "Where the attachment is a nullity the plaintiff is responsible for all damages resulting from the taking and keeping of the goods, and from the negligence of the sheriff in executing the same." So^ where the attachment is set aside for irregularities, it will afford no justification to the party at whose instance it was issued for acts done under it, and he becomes a tres- passer ab initio, and the return of the property will only go in mitigation of damages.^ 10. The undertaking is not limiDed in its obligation to the court in which the attachment proceedings were insti- tuted, but extends to the final determination of the pro- ceeding. So, that if an appeal be taken, the liability of the sureties continues until the final result.* (For form of undertaking, see appendix IJo. 95). 'See Drake on Attach, 2d ed., § ' Kerr v. Mount, supra. 175 ; see also Dunning v. Humphrey, * Bennett t. Brown, 31 Barb. , 158 ; 24 Wend., 31 ; Groat v. Gillespie, 25 20 N. Y. R., 99 ; Ball v. Gardner, 21 Wend., 383. Wend., 270. 2 Kerr v. Moffatt, N. T. Trans., Dec. 23, 1859 ; see Kerr y. Mount, 28 N. Y. R., 659. §HV.] ATTACHMENTS. 385 SECTIOIif IV". THE WARRANT, BY WHOM GRANTED, AND WHAT TO CONTAIN. 1. § 338. Warrant, by whom granted. 2. Application, liow made. 3. Wlieu granted by a county judge. 4. Wben warrant may be granted. 6. Judge related to either party cannot grant. 6. Wben proceedings may be continued before anottier judge. 7. § 231. Warrimt, to whom directed, and what to contain. 8. Merely an order of the judge. 9. MuBt state amount of plaintiff's de- mand. 10. Several warrants, when issued. 11. Must have signature of judge. 12. Formal defects in warrant amendable. 13. Within what time motion for attach- ment to be decided. 1. " A warrant of attachment must be obtained from a judge of tbe court in which the action is brought, or from a county judge." * 2. The affidavit and undertaking, having been prepared and executed, are to be presented to the judge from whom the remedy is sought, also the warrant or warrants to which his signature is desired. If satisfied with the papers, the judge will indorse his approval on the under- taking, sign the warrant and return all the papers to the plaintiff's attorney, who should at once file with the county clerk, the affidavit and undertaking, and deliver the warrant to the sheriff to whom it is directed. 3. When the attachment is granted by a county judge, it must be by the judge of the county in which the action is triable, or by the county judge of the county in which the attorney for the moving party resides ; "* and it can only be granted on an ex parte application, as a county 'Code, §228. 2 Code, ?n01, sub 3; 403. 386 PKOVISIONAL EEMEDIES. [Ch. IV. judge lias no power to hear a motion on notice, in an action pending in the supreme court.^ 4. Prior to the recent amendment of section 227, the superior court held that unless the court had already acquired jurisdiction of the controversy, by service, that an attachment issued by it would be void.^ But, since such amendment, service is no longer essential to give jurisdiction, as the action will be deemed commenced when the summons is issued, provided personal service of such summons shall be made, or publication thereof commenced, within thirty days.^ 6. A judge related to either party by affinity within the degree which would exclude him as a juror, cannot grant, an attachment between the parties. Such is the rule as to injunctions, and it undoubtedly holds good as to attach- ments/ 6. "When issued, the attachment is the act of the court, and not of the individual judge who grants it ; and, there- fore, it does not die when the latter's term of office expires ; but the proceeding may be continued with the same effect, before another judge.^ 7. " The warrant shall be directed to the sheriff of any county in which property of such defendant may be, and shall require him to attach and safely keep all the property of such defendant within his county, or so much thereof as may be sufficient to satisfy the plaintiff's demand, to- gether with costs and expenses ; the amount of which must be stated in conformity with the complaint, together with costs and expenses. Several warrants may be issued at the same time, to the sheriffs of different counties." ^ 1 Merritt t. Slooum, 3 How. , 309 ; » Code, § 227, as amended, 1866. Rogers v. MoElhone, 20 How., 441, * See N. Y. & N. Haven R. B. v. 12 Abb., 292. Schuyler, 28 How., 187. ^Fisherv. Curtis, 2 Sandf., 660; * Davis v. Ainsworth, 14 How., 346. Kerr v. Mount, 28 N. T. K., 659. oCode, J 231. § IV.] ATTACHMENTS. 387 The clause commencing "or so mucli thereof" was in- serted in 1851. (See form IsTo. 96). 8. The warrant was formerly held to be process, and like the snbpcena, execution, etc., was required to issue in the name of the people, under the seal of the court.^ But it is now held to be merely a judge's order, requiring only the signature of the judge, without any formal teste, signature of the clerk, or seal. The signature of the plaintiff's attorney should, however, be required. It is also held that no return day need be inserted in the warrant.^ 9. The warrant must state the amount of the plaintiff's ■ demand, as that alone forms a guide to the sheriff", as to the amount of property to be taken. But any defect in this respect, may be remedied by amendment.^ 10. Should there be property in more than one county, several warrants may be had ; but each should be an origi- nal, and have the judge's signature thereto. Should pro- perty of the defendant be discovered, after the issuing of the attachment, in a county to which no warrant has been issued, it is probable that, to obtain a new or supplemental warrant, a new and original application would be neces- sary. But the Code has made no provision for such a con- tingency, and there is no decided case on the subject ; and it might possibly be sufficient to present the original papers a second time, to the same judge.^ 11. The signature of the judge who grants the warrant ^ of attachment is indispensible to its validity ; without it there could be no assurance to the officer who executed it that it was genuine. But the same reason does not exist for adding the judge's signature to.the copy of the warrant, iCammannv. Tompkins, 1 Code R., s Kiggam v. Marshall, 10 Abb., N. S., 12 ; Morgan v. Avery, 7 Barb., 424 ; Cornish v. Cole, cited in Hoff 656. Pro Bern, 425. 2 Genin v. Tompkins, 12 Barb., 265. * 1 Whitt. Practice, p. 507. 388 PROVISIONAL REMEDIES. [Ch. IV. and if the copy is served without siich signature, it will not be an irregularity.^ 12. Any formal defect in the warrant may be remedied by amendment, on motion to the court." 13. Whenever a motion shall be made to obtain a war- rant of attachment, it shall be the duty of the judge before whom such motion is made, to render and make known his decision on such motion within twenty days after the day upon which such motion shall or may be submitted to him for his decision.' 1 Greenleaf t. Mumford, 30 How., ^ Kissam v, Marshall, 10 Abb., 424. 30. 8 Code, ? 401, sub 8. §V.] ATTACHMENTS. 389 SECTION" V. WHAT PEOPEETT MAY BE ATTACHED. 1. § 334. IntereBt in corporations- or asso- ciationBf liable to attacliment. a. What property may be attached. S. Whatever may be Belzpd on execntlon. 4-8. What property iB exempt from attach- ment. 9. Eight of exemption, how waived. 10. Wliat right attaching creditor acquires in attached property. 11. Property in poBBCBBion of third persons, having lien, how attached. 13. Lien mnst he valid and snhBisting. 13. Property in poBBession of factor having lien, cannot he attached for his debts. 14. Property in custody of the law, not lia- ble. 15. The interest of a chattel mortgagor, when liable. 16. Contingent interests not attachable. 17. Partnership property, when liable in action against one partner. IS. Interest of a special partner. 19. Of tenants in common. 20. Partnership books and papers, when liable. 21. Partnership credits and choses in action. 22. Debts dne from one non-resident to an- other, when liable. 23. Proceeds of property frandnlently as- signed, 24. Sheriff may attach property fl-audnlently 26. Beal estate snbject to attachment. 26. What is included in the term "real pro- perty." 1. " The rights or shares which such defendant may- have in the stock of any association or corporation, together with the interest and profits thereon, and all other property in this state, of such defendant, shall be liable to be attached and levied upon and sold to satisfy the judgment and execution." ^ This has remained unchanged since 1849. 2. By the revised statutes it is provided that all the real and personal estate of the defendant, except articles ex- empt from execution, is liable to be attached, including money, bank notes, all books of accounts, vouchers, and papers relating to his property, debts, credits and effects, and all evidences of his title to real estate.^ 3. It may b'e stated, as a general rule, that whatever iCode, I 234. « 3 E. S., Sth ed., 80. 390 PEO VISIONAL REMEDIES. [Ch. 17. property may be seized and sold under an execution, may be attached ; and, in addition to tbis, all shares or rights in any association or corporation, and choses in action, although not subject to levy under an execution.^ 4. The following property is exempt, under the revised statutes, from levy and sale on an execution against the owner when he is a householder : A " householder " is the head, master, or person who has charge of and pro- vides for a family.^ It has been held that one who rents a house, and keeps boarders and servants, is a householder, though he has neither wife nor child for whom he pro- vides.' And where a husband has left the state, leaving a wife and children together, she will be deemed a house- holder. A householder does not lose the character of housekeeper by ceasing temporarily to keep house and storing his property, with a view to retake it again and renew housekeeping.^ 5. The articles of personal property thus exempt are : 1. All spinning wheels, weaving looms, and stoves put up or kept for use in any dwelling house. 2. The family Bible, family pictures and school books used in the family of such person, and books not exceeding in value fifty dollars, which are kept and UBe(J as a part of the family library. 3. A seat, or a pew occupied by such person or his family in a house or place of public worship. 4. All sheep to the number of ten, with their fleeces, and the yarn or cloth manufactured from the same ; one cow, two swine, the necessary food for them ; all necessary pork, beef, fish, fiour and vegetables actually provided for family 1 Patterson v. Perry, 10 Abb., 93 ; N. Y. Leg. Obs., 248 ; Van Veohten GoU T. Hinton, 8 id., 120 ; Frost v. v. Hall, 14 How., 436. Mott, 34N. Y. R., 253. * See Crocker on Sheriffs, citing 2 Griffin v. Sutherland, 14 Barb., 18 John., 400; 14 Barb., 466; Voor- 466. ' hies's Code, § 291, note. 'Hutchinson T. Chamberlin, 11 § v.] ATTACHMENTS. 391 use, whether gathered or growing,^ and necessary fuel for the use of the family for sixty days. 5. All necessary wearing apparel, beds, bedsteads and bedding for such person and his family ; arms and accoutrements required by law to be kept by such person ; necessary cooking utensils ; one table, six chairs, six knives and forks, six plates, six tea cups and saucers, one sugar dish, one milk pot, one tea pot and six spoons ; one crane and its append- ages, one pair of andirons, and a shovel and tongs. 6. The tools and implements of any mechanic, necessary to the carrying on of his trade, not exceeding twenty-five dollars in value.'' 6. In addition to the above, there are also exempt, under section 1 of chapter 157, of 1842, amended by chapter 134, of 1859, the following : Necessary household furniture and working tools, and team, owned by a person being a householder, or having a family for which he pro- vides, to the value of not exceeding two hundred and fifty dollars ; and, in addition thereto, there shall be also exempted from such levy and sale the necessary food for said team, for a period not exceeding ninety days ; pro- vided that such exemption shall not extend to any execu- tion issued on a demand for the purchase money of such furniture, or tools, or team, or the food for said team, or the articles now enumerated by law. 7. One sewing machine, and the appurtenances thereto belonging, is, likewise, exempt.' So is land set apart for, and which has been actually used as, a burying ground, not exceeding one-fourth of an acre in extent, and on condition that the owner has recorded a description of the property in the manner prescribed.* And, lastly, a 1 Carpenter v. Herrington, 25 'Lawa of 1860, chap. 152 Wend., 370. i Laws of 1847, chap. 85 ;' see Cox 2 8 R. S., 5th ed., 646. t. Stafford, 14 How., 519. 392 PROVISIONAL REMEDIES. [Ch. IV. homestead to the value of $1,000, subject to^certain con- ditions and requirements prescribed by law.^ 8. The professional books necessary to a professional man, who supports a family by the practice of his pro- fession, are exempt from execution as a part of the family library. Also, the surgical instruments of a physician are exempt as his " tools." ^ So, the horse of a countty physician, whose patients reside at too great a distance to permit his visiting them on foot, is exempt as a necessary team ; ^ also, the buggy wagon used in his professional business.* A watch or clock may be exempt, either as necessary household furniture or as a working tool." The one-horse harness and cart of a carman can not be taken.* But a threshing machine can not be exempted as a " tool ; " ^ nor a printing press ; * nor printing type and ■ forms.' An article otherwise exempt, is not the less so because it is new and has never been applied to its intended use.^° 9. The right to exempt certain articles is a personal right and may be waived by the defendant ; but the mere silence of a party while an officer is stripping him of his property exempt from seizure, under color of legal authority, is no waiver, and furnishes no protection to the wrongdoer." The rule, however, as to exempt property, is to be strictly construed as against the owner, and if he sell the exempt property, a debt due him therefor may be . attached .'^ 10. The attaching creditor can acquire no greater right 'Laws of 1850, chap. 260, p. 499. TFord v. Johnson, 34 Barb., 366. 2 Robinson's case, 2 Abb., 466. 8 Buckingham v. Billings, 13 8 Wheeler v. Cropsey, 6 How., 288. Mass., 82. *Van Buren t. Loper, 29 Barb., ' Donforth v. Woodward, 10 Pick., 388 ; Eastman v. Caswell, 8 How., 75 ; 423. ^Bittingv. Vaudenburgh, 17How., i» Fields v. Moul, 15 Abb., 6. 80. "Frost y. Mott, 34 N. Y. R., 253. 6 Harthouse v. Kyker, 1 Buer, 606 ; " See Drake on Attach., g 244. see also Hoyt v. Van Alstyne, 15 Barb., 568. §V.] ATTACHMENTS. 393 in attached property than the defendant had at the time of the attachment, unless such property has been fraudu- lently transferred by the defendant. If, therefore, the property "be in such a situation that the defendant has lost his power over it, or has not yet acquired such interest in, or power over it, as to permit him to dispose of it adversely to others, it cannot be attached for his debt.' Thus, where goods were to be delivered to the defendant in New Orleans, for cash payment, it was hpld that they could not be attached while passing through New York, en route.^ So, merchandise sold and shipped to B by A, cannot be attached for B's debt, so long as A retains the right of stoppage in transitu} So, where property is sold and delivered, on condition that the title shall not vest in the purchaser, unless the purchase price be paid within a specific time, the purchaser has no attachable interest in the property until the condition is performed.* So, where one comes into possession of goods by . fraudulent means, he acquires no such title thereto, as will enable his cre- ditors to attach and hold them as against the person from whom they were fraudulently obtained.' 11. Where goods of the defendant are in possession of a third party, having a lien thereon, they may be attached by the service, on such third party, of a certified copy of the warrant, with a notice, as prescribed by section 235. But the goods themselves cannot be seized.^ In such case, the attachment binds the remaining interest of the defendant, after the satisfaction of the lien.^ If the plaint- \S desires the sheriff to seize and take possession of such goods, he must first discharge the lien thereon. Where _> Drake on Attach., J 245, and oases 6 Drake on Attachments, g 246, cited. citing many cases. 2 Bates T. N. Orleans R. R., 4 Abb., sfirownell v. Carnley, 3 Duer, 9 ; 72, 13 How., 516. Frost v. Willard, 9 Barb., 440. 8 Jones T. Bradner, 10 Barb., 193. 'Patterson v. Perry; 10 Abb., 82. *Buckmaster t. Smith, 22 Verm., 203. 26 394 PROVISIONAL REMEDIES. [Ch. IV. goods' are in the custom house with the duties unpaid, the sheriff cannot require a manual delivery, but may attach them by the service of the notice and a certified copy upon the collector and the consignees of the goods.^ 12. But to enable a third party to hold the defendant's property as against an attaching creditor, he must have a valid and subsisting lien ; mere possession will not be sufficient. If he have no lien, legal or equitable, nor any right, as against the owner, by contract, by custom, or otherwise, to hold the property as security for some claim of his own, he cannot hold the property to satisfy his claim, as against the att^-chment, but must attach it as any other creditor for his debts.^ 13. Goods in the possession of a factor, having a lien thereon, cannot be attached for the debt of the factor; for the lien does not dispossess the owner, until the right is exercised by the factor ; and the right being a personal one, cannot be set up as against the owner by any one but the factor himself.^ So, property loaned to one can- not be attached for his debts.* 14. Property in the custody of the law cannot be attached. Thus, money collected on an execution is held to be in the custody of the law and not liable to be attached." But this applies only where the sheriff is bound, virtute officii, to have the money in hand to pay to the execution plaintiff", and not where there is a surplus of money in his possession after satisfying the execution. ' In the latter case the surplus may be attached.* Thus, where an execution was issued and levied upon a horse, 1 Kuhlman v. Orser, 5 Duer, 242. 6 Muscott v. Woolworth, 14 How., 2 Allen T. Hall, 5 Metcalf, 263; 477; Overruling same cage, 13 Allen Y. Megffuire, 15 Mass., 490; Haw., 336: Dubois v. Dubois, 6 see Lawrence v. Bank of the Repub- Cow., 494, see Drake on Attaoh., ? lie, 31 How., "502. 251. sHolly T. HuggefoTd, 8 Pick., 73. e -wheeler v. Smith, 11 Barb., 345. 4 Chase v. Elkins, 2 Vermont, 290. I v.] ATTACHMENTS. 395 and an attacliment was subsequently issued against the same defendant, and also levied upon such horse, and the horse was sold under the execution, it was held that the lien of the attachment was transferred by the sale to the surplus proceeds left after satisfying the execution.^ It was held, in one instance, that money deposited in lieu of bail might be attached, even where it was deposited by a third party to enable the defendant in the attachment suit to obtain his release.^ But this decision was reversed at general term.^ 15. A mortgagor of a chattel mortgage, before it becomes due, has an interest in the property mortgaged which is subject to seizure by attachment and sale upon execution under it, whether such interest is subject to a levy on an execution or not.^ But after a failure on the part of the mortgagor to comply with the conditions of the mortgage, the mortgagee's title becomes absolute, and the-property cannot be attached, even when it remains in the mortgagor's possession.' So, if before sale under a levy on mortgaged property, the mortgagor's interest determines, and the mortgagee's title becomes 'absolute, the latter may claim an immediate delivery, without tender of expenses.* 16. So, an interest contingent upon the happening of some future event, is not, while the contingency lasts, a debt liable to attachment. Thus, where articles were made in this state for a corporation in New Orleans, and they were to be paid for on delivery in that city, it was held that such corporation acquired no title until delivery and payment, and that the' goods could not be attached ■for a' debt of such corporation, whil« in transit.' So, 1 Wheeler v. Smith, 11 Barb., 345. schamplin v. Johnson, 39 Barb., 2 Salter v. Weiner, 6 Abb., 191. 606. s See 1 Abbott's Digest, 360, note. 6 Fairbanks t. Bloomfield, supra. «HaU T. Samaon, 23 Jlow., 84; 'Bates v. N. Orleans E. K., 4 same case, 19 How., 481 ; Fairbanks Abb., 72. ' T. Bloomfield, 5 Cuer, 434. 396 PROVISIONAL REMEDIES. [Cp. IV, wages payable at a specified time, but liable to forfeiture , before tbat time, cannot be attached, until the expiration of such time."^ , '• 17. The leviable property of a copartnership may be seized on an attachment against one of the members of such partnership, and the sherifi" may take such proper^ into his possession and sell the defendant's interest inso- much thereof as is necessary. This is the rule on exe- cution, and an attachment, in so far as it relates to chattels, differs in no wise from an execution, as to the rights and duties of the officer in levying it.^ But the sheriff can only sell the interest or share of the defendant in the attachment, although he may deliver the whole ■ goods ' sold to the purchaser, who takes them as joint tenant with the other partners, and subject to account for the full value in favor of partnership creditors.^ 18. But the interest of a special partner in a firm is not subject to the same rule, and cannot be seized or sold, under an attachment against such special partner.* 19. The doctrine as stated above is not limited to cases of partnership, but applies to any interest which the defendant may have in common with others. The sheriff' may seize the property, even though it be in the possession ■ of the cotenant, but he can only sell the undivided interest of the defendant, and the purchaser becomes a tenant in common with the other cotenants.^ 20. Upon a levy of partnership property, either on an attachment against the firm, or against one of its mem- 1 Bal. & Ohio E. R. v. Gallashue, however, Abels v. Westervelt, 24 14 Grattan, 403. , How. , 284 ; see remarks on latter 'GoU V. Hinton, 8 Abb., 120, and case ; Smith t. Orser, 43 Barb., 187. oases; Smith v. Orser, 43 Barb., * Harris v. Murray, 28 N. Y. R., 187; Phillips v. Cook, 24 Wend., 574. 389; Hergman v. Dittlebaok, 11 'Mersereau y. Norton, 15 John., How., 46. 179; Drake on Attach., \ 248, and s Phillips V. Cook, 24 Wend., 389; cases cited ; see Waddle v. Cook, 2 Walsh V. Adams, 3 Denia, 125 ; Bur- Hill, 47, note, rail V. Ackers, 23 Wend., 606 ; see. §V.] ATTACHMENTS. 397 bers, the sheriff may seize tlie partnership books and papers ; but his power over them is limited to safe custody. He has no right to examine or copy such books or papers, nor to suffer them to be examined or copied by any one except the defendant, without special order of the court.^ But the letters and correspondence of the firm are not subject to attachment.'' , 21. The principle is laid down by Mr. Drake in his admirable work on Attachments, after an examination of the decisions of the courts of several other states, that while the tangible property of a firm may be seized on an attachment against one of the members, the partnership credits and choses in action are not, in such case, the subj ect of attachment.^ 22. . To render a debt due from a non-resident debtor to a non-resident creditor liable to attachment at the suit of a third party, such debt must be existent, within the state. Where the whole transaction took place elsewhere, it cannot be attached.* Nor will the fact that the mere evidence of such debt, as a bond or note, happens to be within the state, avail to make the debt itself attachable.® iNor are the bonds of a foreign corporation, executed and left in the hands of their agent for the purpose of raising money, attachable. In that condition they are neither* debt nor property." 23. Where assigned property has been sold by the assignee aild its identity gone, the proceeds cannot be attached, or levied upon by the sheriff as the assignor's property ; and m.erely setting aside the assignment will not vest the title to such proceeds in the assignor.'^ Where 1 Hergman v. Dittlebaok, 11 How., ^ Bates v. N. Orleans R. R., 13 46. How., 516 ; 4 Abb., 72. 'Id. sCoddington v. Gilbert, 17 N. T. 3 See Drake on Att., g 567, 570. R., 489 ; 5 Duer, 72. *Willett T. Equitable Ins. Co., 10 'Lawrence t. Bank of the Repub- Abb:, 193. ' lie, 31 How.,. 502. 398 PROVISIONAL REMEDIES. [Ch. IV. an action was brought by the general aesigaees of judg- ment debtors against a bank, to recover a debt due thelii for money — proceeds of the assigned property — which they had deposited to their credit as such assignees, and the bank, claiming the assignment to be fraudulent, set up as an offset or counter claim, that it had obtained a judgment against the plaintiff's assignor in an attachment suit; that an execution had been issued thereon and returned unsatisfied, and that the bank had a right to apply the money deposited by the plaintiff's toward the payment of their judgment, the sheriff having previously attached in favor of the bank, the funds standing upon the books of the bank to the credit of the plaintiffs ; it was held that the bank was not entitled to retain the money to satisfy the judgment against the plaintiff's assignor.^ 24. The sheriff may seize property in the possession of a person claiming title to it under a bill of sale, assign- ment or mortgage, from the defendant ,•• and it is now well settled that he may justify such seizure in an action brought by such person, by showing that the pretended transfer was fraudulent, notwithstanding that no judgment has been recovered in the attachment suit.^ ' 25. The real estate of the defendant is subject to attach- ment in the same manner as the personal estate, and the sheriff is under no obligation to exhaust the personalty first. 26. The words " real property," as used in this chapter, are coextensive with lands, tenements and hereditaments.' And the equitable interest which a defendant has in lands is subject to attachment.* I Lawrence T. Bank of the Kepub- Abb., 325; Greenleaf v. Mumford, lie, 31 How., 502. 30 How., 30. ' Klnchey v. Stryker, 26 How., 75 ; » Code, g 462. Kelley t. Lane, 28 How., 128; * Lee v. Hunter, 1 Paige, 519. Thayer v. Willett, 5 Bosw., 344; 9 §VI.] ATTACHMENTS. 399 SECTIOJS" VI. HOW WARRANT EXECUTED. 1. § 232. Mode of proceeding in executing warrant. 2. Provision of statute relating to absent ' debtors. ' S. Slieriff should see that warrant Is regu- lar in form. 4. Must executeSt without delay. 5. Bules governing executions applicable. 6. Sheriff must take actual possession. 7. Seizing exempt,property. 8. Must attach sufficient to secure plaint- iff's claim. 9. Must take only goods of defendant. 10. How sheriff to proceed in case of doubt. 11.' When goods of stranger are intermixed with defendants. 13. What sheriff must show to justify attaching goods thus intermixed. 13. How much^property sheriff must attach. 14. Should seize only sulScient to amply secure plaintiff. 15. Cannot execute attachment out of county. 16. Subject to same rules as to breaking dwellings, etc., as on execution or arrest. 17. Cannot breakSdefendant's dwelling. 18. When outer door open may enter, and break inner door, etc. 19. To whom the privilege extends ; not to ' house of a stranger. 20. Nor to one not used as a habitation, 21. What will constitute a dwelling. 22. Temporary absence from, does not sus- pend the privilege. 23. Where house is let to lodgers. 24. Sheriff may break in to complete levy, commenced in the house. 35. How long sheriffmay stay on premises of defendant or stranger. 26. What Is actual possession by sheriff. 27. Need not proclaim a levy in all cases. 38. Property must be in sight of officer. 39. How levy made on heavy articles. 30. Against the property of one member of a firm. 31. Against special partner. 32. Goods on board vessels, how attached. 33. Eeal estate, how attached. 34. Sheriff not to do any act to abandon attachment. 35. Imveniory, when and how made. 36. May make further levy, if sufficient has not been seized. 37. Sheriff to retain property, even though his term of office has expired. 38. Sheriff has right of action for Injury to property. 39-40. What care of property sheriff iB required to take. 41. What will excuse sheriff for failing to produce attached property. 42. Expense of keeping, wUl not. 43. Perishable property, sale of. 44. How sheriff to collect debts, ete. 45. Sheriff may continue action pending at the time of attachment. 46. What actions sheriff can bring. 47. May employ attorneys and counsellors. % 238. When plaintiff may maintain action, , Strict compliance with section neces- sary. 1. " The sheriff to whom such warrant of attachment is directed and delivered, shall proceed- thereon, in all respects, in the manner required of him by law, in case of 400 PROVISIONAL REMEDIES. [Oh. 17. attachments against absent debtors ; shall make and return an inventory ; and shall keep the property seized by him, or the proceeds of such as shall have been sold, to ansvrer any judgment which may be obtained in such action ; and shall subject to the direction of the court or judge, collect and receive into his possession all debts, credits and effects of the defendant. The sheriff may also take such legal proceedings, either in his own name or in the name of such defendant, as may be necessary for that purpose, and discontinue the same, at such times and on such terms as the court or judge may direct." ^ 2. The sheriff is to proceed to execute the warrant, in all respects, in the manner required of him by law, in case of attachment against absent debtors. The manner in which the sheriff is required to proceed in the case of attachment against absent debtors, is as follows : " The sheriff to whom any such warrant shall be directed and delivered, shall immediately attach all the real estate of such debtor, and all his personal estate, including money and bank notes, except articles exempt from execution ; and shall take into his custody all books of account, vouchers and papers relating to the property, debts, credits, and effects of such debtor, together with all evi- dences of his title to real estate, which he shall safely keep, to be disposed of as hereinafter directed."^ "He shall, immediately on making such seizure, with the ■ assistance of two disinterested freeholders, make a just and true inventory of all the property so seized, and of the books, vouchers and papers taken into his custody, stating therein the estimated value of the several articles of personal property, and enumerating such off them as are perishable; which inventory^ after being signed by the sheriff and the appraisers, shall, within ten days after such ' Code, § 232. !i 3 R. S., 5th ed.), 80, J 7. § VI.] ATTACHMENTS. 401 seizure, be returned to the officer who issued the warrant ; and the sheriff shall, under the direction of such officer, collect, receive and take into his possession, all debts, credits and effects of such debtor, and commence such suits, and take such legal proceedings in the name of such debtor as may be necessary for that purpose, and which suits and proceedings may be continued by the trustees to be appointed as hereinafter directed, until a final termina- tion thereof."^ 3. Where an attachment is placed in the hands of an officer to be executed, he should see that it be in legal form, and issued out of a court of competent jurisdiction ; for if defective in this respect, a levy under it may be in- operative', and the officer levying, liable as a trespasser. But if the warrant be regular on its face, and issued by a judge of a court having jurisdiction, it will be a complete justification to the officer in attaching the defendant's pro- perty, and -there can, therefore, be no obligation on him to investigate whether the preliminary steps, required for obtaining it, have been pursued.^ He should also mark thereon the time when the same was delivered to him for execution. 4. It is the duty of the sheriff to execute the warrant as I soon as he reasonably can, after it comes into his hands ; for if by his unnecessary delay in seizing the property, the plaintiff loses his debt, the officer will be liable.' But sueh warrant cannot be executed on Sunday, or the pro- ceedings founded on it will be vacated.* 5. In general, the rules governing executions, and regu- lating the duties of sheriffs in executing executions, are "SB. S. (5tli ed.), 80,1 8, as 187; Stimpson v. Reynolds, 14 amended Laws 1840, p. 296. Barb., 506. 2 Drake on Attach., § 185 (2d » Drake on Attaehments, g 191. ed.) ; Fulton T.Heaton,lBarh., 552; *Eob v. MoflFat, 3 John., 257; IB. see Kelley v. Breusing, 33 Barb., S., 678, § 69. 123 ; also Smith v. Orser, 43 Barb., 402 PROVISIONAL REMEDIES. [Ch. IV. applicable to attachments ; with the exception, however, that, there being no return day in an attachment warrant, the lien upon goods, not levied upon, does not, as in case of execution, expire with the return day.^ 6. The sheriflF, on receiving the attachment, is to attach, take into his possession and safely keep all the property of the defendant, not exempt from execution, within his county, or so much thereof as. may be sufBcient to satisfy the plaintiff's demand, together with all costs and ex- penses. To render the seizure effectual, it must be accompanied by possession. The sheriff must not only seize, but he must take the property attached into custody. In casie of neglect to perform his duty in this respect, he is subjected to personal responsibility.^ 7. But he should be careful not to seize any property not liable to attachment ; for if he do, he will be a tres- passer. If he seize all the property of a debtor, knowing that part of it is exempt, he cannot justify the seizure by the omission of the debtor to designate a particular portion thereof as nqt subject to execution or attachment. The mere silence of a party while an officer is stripping him of his property exempt from seizure, under color of legal authority, furnishes do protection to the wrong doer.^ 8. Personal property found in the possession of the de- fendant, may be presumed to be his, if nothing appear to the contrary. If the sheriff omit to attach property so situ- ated, when necessary for the plaintiff's security, he will be liable to the plaintiff, unless he can show that the property was not, in fact, the defendant's ; or unless there were reasonable grounds to suspect that the defendant was not the owner, and the plaintiff refused to indemnify the officer against liability to third parties.* If the goods 1 See People V. Schuyler, 5 Barb., 'Frost t. Mott, 34 N. Y. R., 253. 166. * Drake on Attach., § 188, (2d ed.). 2 Smith V. Orser, 43 Bart., 187. § VI.] ATTACHMENTS. 403 are not in the defendant's possession, but in the posses- sion of a third party who claims thein as his own, the sheriiff may refuse, to attach them, unless indemnified by the plaintiff.^ 9. The sheriff is bound, at his peril, to take only the goods of the defendant; and is liable as a trespasser if he take the goods of a third person, although the plaintiff assures him they are the defendant's.^ If the plaintiff take "part in, or direct such levy, he will be equally a trespasser, and liable to an action of either trespass, trover, or replevin ; ^ and the factthat there has been no manu-caption, or actual seizure of such goods, will not relieve either the sheriff or plaintiff from such liability, provided the property w^s bound by the levy, and was in the ofB.cer's power.* But where property of a copart- nership is taken on an attachment against some of the members of the firm, an action will not lie against the sheriff at the suit of all the members.^ 10. The sheriff should take every precaution to avoid levying on any projperty other thaa the defendant's. In cases of doubt, the law permits him to summon a jury de bene esse, to satisfy himself. This will justify him in re- turning, if it be so found, that the defendant has no goods within his bailiwick, although it should afterwards appear that the goods were the defendant's ; unless it is shown that he did not act in good faith.* But if the plaintiff tender a sufficient bond of indemnity to the sheriff, an inquisition will not justify that officer in returning that the defendant had no goods, if the fact turn out to be otherwise.'' 1 Chamberlam t. Seller, 18 N. Y. 79 ; Neffv. Thompson, 8 Barb., 213; B., 115. Knapp v. Smith, 27 N. Y. R., 277. 2Lummis v. Kasspn, 43 Barb., sgmith t. Orser, 43Barb., 187. 373. 6 Lummis v. Kasson, 43 Barb. , 373 ; 8 Kuhlman v. Orser, 5 Duer, 242 ; Rogers t. Wier, 34 N. Y. R., 463. Marsh t. Backus, 16 Barb., 483; 'Bayley v. Bates, 8 John., 185; Clark V. Skinner, 20 John., 468. Vancleef t. Fleet, 15 John., 147; *See Stewart t. Wells, 6 Barb., see Lummis v. Kasson, supra. 404 PROVISIONAL REMEDIES. [Ch. IV. 11. "Where the goods of a stranger are intermixed with those of the defendant, and the sheriff attaches the whole, the owner can maintain no action against the officer for taking them, until he notifies the officer of his title, and demands and identifies his goods. If, after such notice, the officer sell the whole, he will be liable.^ But if the stranger shall have willfully confused his goods with those of the defendant, so that they cannot lie distinguished, the whole becomes the property of the innocent party, and the sheriff may attach it.^ 12. But to justify* an attachment of the goods of a stranger, on the ground of confusion or intermixture, the burden is on the sheriff, to show that the goods were of such a character, or so commingled, as not to enable him, after due inquiry to distinguish between them and those of the defendant.' However, if the owner know of the attachment, it is his duty to notify the sheriff of his claim ; * and if the sheriff request him to point out his property, and he refuse, though able to do so, he cannot proceed against the officer for tort in taking the whole.^ 13. It is incumbent on the sheriff to attach sufficient property to satisfy the plaintiff's demand, as stated in the warrant, together with all costs and expenses, provided sufficient property can be found ; and if he neglect or fail to dp this, he will be liable for the deficiency. Thus, where a sheriff received three attachments and levied them successively upon the personal property of the de- fendant, and afterwards received a fourth, which he levied upon his real estate, the procee^Js of which were absorbed in satisfying that warrant, and upon sale, it appeared 1 Drake on Attach., ? 199, and 440; Silsbury y. McCoon, 3 N. Y. eases cited; Silisbury v. MoCoon, 3 R,, 379. N. Y. R., 379. 'Waloott v. Keith, 2 Foster, 196; 2 Hart V. Ten Byok, 2 John. Ch., Wilson v. Lane, 33 N. Hamp., 466. 62,108; Frosty. Willard, 9 Barh., *Id. s Sawyer V. Merrill, 6 Pick,, 478. § VI.] ATTACHMENTS. 405 that the personalty, on which the first three warrants were levied, was not sufficient to satisfy them, it was held that the levy under the fourth gave it preference over the others ; and that the sherifi" was liable for the deficiency, notwithstanding the fact that the -personalty was appraised at more than enough to satisfy the warrants levied upon it.' But the plaintifi" cannot insist upon the sheriff's attaching more than is reasonably likely to satisfy his demand, with costs'and expenses. Thus, where the sheriff' had attached property appraised at $466 to satisfy a claim of $200, it was held that the plaintiff could not require him to attach more ; though if upon sale, the property prove insufficient, the sheriff would be liable for the discrepancy.^ 14. There is no restriction upon the sheriff as to the amount of property he shall attach, and he may take the whole of the defendant's property ; but he should not do so where it is obviously unnecessary, but should only seize so much thereof as would afford ample security for the plaintiff's demand, with costs and expenses. How- ever, a seizure of more property than is necessary will not invalidate the attachment ; ailthough if the sheriff act oppressively and with malicious intent, he may be liable to the injured party for the damage sustained.^ 15. A sheriff cannot execute a warrant of attachment out of his 0]vn county ; and if he do so under a mis'take as to the boundaries, the property attached will be ordered released. But if the property be taken out of the county or state after it has been once attached by the sheriff, he may follow and retake it.* 16. The sheriff has the same power and authority in attaching property, as in making a levy under an execu- iKansom V. Halcott, 18Barb.,56; s Abbott v. Kimball, 19 Vermont, 9 How., 122. 551 ; Merritt v. Curtis, 18 Maine, 2 McKay v. Harrower, 27 Barb., 272. 473. ■ i Utley v. Sipith, 7 Vermont, 154. 406 PEOVISIONAL EEMEDIES. {Ch. IV. tion,^ and is subject to the same rules in reference to breaking into dwellings, as he is in cases of arrest in a civil action, or in case of making a levy under an execution.^ 17. He may enter the defendant's dwelling, peacefully, if he can, but has no right to do so in the absence of the owner and family, and against his known wishes ; and a mere raising the latch, or lifting a window to obtain en- trance to serve a civil process, is a breaking the house which cannot be justified;^ and not only is the forcing an unlawful act, but the attachment made by means thereof is unlawful and invalid.* I^or will the officer be justified in gaining an entrance by fraud. Nor if the door is opened by any person in answer to a knock or a ring, will he be justified in rushing in. But, if, on knock- ing or ringing at the outer door, any proper person appears and invites him into the house, he may lawfully enter and execute his warrant.^ 18. So, if any of the outer doors be open, the officer may lawfully enter the house and execute his process.^ And when he is once within the walls, having entered lawfully, at the outer door, he may break open every inner door, closet, box, drawer or trunk, and, when necessary, he should do so.' But before any such violence is used, he should demand that they be opened. 19. The law regards every man's house as his castle and fortress, as well for his defense against injury and violence, as for his repose ; and, therefore, it is that the outer door or window shall not be broken open by pro- cess.* The privilege is not the privilege of a debtor, iLearnedv. Vandenburgh, 7How., ^Impey, 74; Crocker on Sheriffs, 379. § 312. 2 Glover v. Whettenhall, 6 Hill., « Hubbard v. Maoe, 17 John., 127 ; 598, note. ' Haggerty v. Wilbur, 16 John., 287. 'People V. Hubbard, 24 Wend., 'Haggerty t. W,ilbur, 16 John., 369 ; Curtis v. Hubbard, 4 Hill., 437. 287 ; Cowper, 7. 1 People V. Hubbard, supra; Ilsley 83Ins., 64; 3 Coke, 92; 8 Cow- V. Nichols, 12 Pick., 270. per, 6. § VI.] attachme'nts. 407 properly speaking, but is annexed to^ the house and outer door, for the protection of a man and his family, including boarders, servants and domestics;^ and, even guests within the house, unless they shall have gone there to avoid process held by the sheriff.^ But the privilege does not extend to strangers ; so that if the goods of the de- fendant are in the house of another, who refuses to deliver them after demand, the sheriff may break the outer «door and enter into the house.^ But, in such case, the oflBcer's justification depends entirely upon the fact of the goods of the defendant being found in the house. No matter how recently they may have been there before the entry, nor how reasonable the cause to suspect that they were in the house, if the fact turns out to be, that the goods were not in the house at the time of the entrance and search, the officer will be a trespasser.* 20. The privilege is also limited to a man's house used for a habitation, and to the outhouses which are parcels thereof, and immediately connected therewith. The officer, may, therefore, break open any store, warehouse or barn, or any building not actually occupied as a dwelling, nor annexed to a dwelling house, nor forming any part of the curtilege.^ But a demand should be first made. 21. To exempt a building from liability to forceful entry, it must be actually used at the time as a dwelling house. The fact that a man's household goods are in a house, will not make it a dwelling, unless some one abide there ; nor will a house be a dwelling, though the owner has put all his furniture into it, and has generally gone to it in the day time, if neither he, nor any of his family have 11 Cowper, 6. *2 Dowl. & Lown., 199; 13 Meea. 2 Curtis V. Hubbard, 1 Hill, 336. & Wei., 52 ; 6 Taunt., 246; 6 Modern, 'Burton v. Wilkinson, 18 Ver- 105; Allen, 109. mont, 186; Allen, 109; 3 Black. ^HaggeHy v. Wilbur, 16 John., Com., 288 ; 6 Taunt., 246 ; 5 Coke, 93. 287 ; Hubbard v. Mace, 17 John., 127. 408 PROVISIONAL REMEDIES. [Oh. IV. yet slept there. And though persons sleep in a house thus situated, yet, if they are not of the family of the oc 3 R. S., 80, ?§ 13, 14, (5th ed.). ^ Fitzgerald v. Blake, 28 How., 110. 2 Learned t. Vandenburgh, 7 How., * French v. Stanley, 21 Maine, 612. 379 ; 8 How., 77. § VI.] ATTACHMENTS. 413 35. The sheriflE", having duly levied the attachment, and taken into his possession the attached property, his next duty is, to make, immediately, with the assistance of two disinterested freeholders, a just and true inventory of a!l the property so seized, and of the books, vouchers, and papers taken into his custody, stating therein the esti- mated value of the several- articles of personal property, and enumerating such of them as are perishable ; which inventory, ' after being signed by the sheriff and the appraisers, must, within ten days after such seizure, be returned to the officer who issued the warrant.' Although the property attached be appraised at more than enough to satisfy the plaintiff's demand, with costs and expenses, yet, if it afterwards prove insufficient, the sheriff will be liable for the deficiency, provided there was other property of the defendaiit which he might have attached.^ The y^lue of the articles should be estimated at what they are reasonably worth at the time the appraisal is made. It is not necessary that the inventory should be made on the same day that the property is attached.' (See form No. 98).. 36. Should it appear at the time of making the inven- tory, or afterwards before execution, that sufficient property' has not been seized, the sheriff may make a further levy on other property, as in ease of execution.* 37. It is the duty of the sheriff to retain in his posses- sion the property seized by him, or the proceeds of such as shall have been sold, to answer any judgment which may be obtained in the action, and if the plaintiff recover t judgment, until the property is sold under an execution issued thereon, unless the judgment be otherwise; satisfied, > 3 B. S. (5th ed.), 80 ; Code, J 232. s Greenleaf t. Mumford, 30 How., " Ransom v. Halcott, 9 How., 119 ; 30. 18 Barb., 56; see McKay y. Harrow- ^Denvrey v. Fox, 22 Barb., 622; or, 27 Barb., 463. Peck t. Tiffany, 2 Comst., 451. 414 PROVISIONAL REMEDIES. [Ch. IV. or the property be sold as perishable.^ The custody of the property, pendente lite, remains with the sheriff to whom the attachment was originally issued, and does not pass to his successor, on the expiration of his term of office.* Should he deem it proper, he may have the property insured, but he is under no obligation to do so.^ 38. By the levy of the attachment and the reduction of the property into his possession, the sheriff is vested with a special property ^n the latter, which enables him to pro- tect the rights he has acquired.^ For any injury to the property, the sheriff has a right of action, as, in any event, he is accountable for the property either to the creditor or debtor. His right over the property is independent of the plaintiff or defendant, as he is responsible for it to either the one or the other, as the judgment may determine ; and his right exists so long as the special property con- tinues in him, that is, so long as he remains liable for the property, either to have it forthcoming to satisfy the plaintiff's demand, or to return it to the owner, upon the attachment being dissolved.' 39. It is not, so far as I know, definitely settled, by the courts of this' state, as to what degree of care and dili- gence the sheriff' will be held, in keeping the goods at- tached on mesne process. But the general rule, as settled by the courts of some of the other states, appears to be, to hold Jiim responsible for such care and diligence as careful men would expect under the circumstances, or as would be required of bailees for hire. The conduct of prudent and careful men in ' the region where the attach- nlent is made, may be some guide to what ought to be required of the sheriff in keeping the property attached. He is bound to that degree of diligence which the manner iMoRayv. Harrower, 27 Barb., * Barker v. Miller, 6 John., 195; 463. Hotohkiss t. M'Vickar, 12 id., 403. ^ Id. ^Braley v. French, 28 Vermont, 3 White V, Madison, 26 N.Y. R.,117. 546. § VI.] ^.TTAOHMBNTS. 415 and nature of his employment make it reasonable to expect of him ; and any thing less than this is culpable in him, and renders him liable.^ 40. The rule as to the liability of a sheriff for goods seized on final process is, however, well settled, and from the analogy between proceedings on execution and on attachment, it would seem that the rule in both cases would be nearly the same. A sheriff is not an insurer of goods seized upon execution, and therefore, where there is no negligence on his part, is not liable for losses by theft, robbery, fire or other accident.^ But, if such goods are lost or injured, either through his own neglect, or through that of others intrusted by him with their cus- tody ; or if he keep them in an unsafe place, or exposes them to destruction, he will be liable for any damage sustained.* "Where the property is injured or lostj the sheriff must show clearly and satisfactorily, that it was not occasioned by neglect on his part, nor by the want of such care as a prudent man would take of his own pro- , perty.* But where the sheriff leaves the property in the defendant's possession, whether he takes .the receipt of a third person or not, he will be liable for a loss of the property, unless it is injured or lost by the act of God or the public enemy ; " or unless the- plaintiff directed him to leave such property in defendant's possession.* . 41. If the sheriff attach property and return the attach- • ment, he is, jprima fade, liable to produce the property on execution; but he may excuse his failure to do so by showing that it was not in his power, and that he had been guilty of no fault.' He may excuse himself by 'Bridges y. Perry, 14 Vermont, » Jeuner v Joliffe, 9 John., 385. 262 ; Briggs v. Taylor, 28 Vermont, * Browning v Hunford, 5 Den., 586. 180 ; see Moor v. Westervelt, 21 N. » Id. T. E., 103; 2 Duer, 59; 1 Bosw., 6 19 Pick., 520. 358t Jenner v. Joliffe, 6 John,, 9 : i Bridges T. Perry, 14 Vermont, andfg John., 381. 262. 2 Browning v. Hunford, 5 Hill, 588. ^IQ PROVISIONAL REMEDIES. [ChJ I?. showing that the property attached was not, in fact, the property of the defendant, hut of a third party; or that the property attached was exempt from execution and so not liable to attachment, or that it was in the custody of . the law, and so not attachable.^ So, even after he has been indemnified by the plaintiff, and has advertised the attached property for sale, he is at liberty to return the execution nulla bona, on the property being taken out of his possession, provided he act in good faith ; but in so doing he assumes the responsibility of proving property out of the defendant in the execution.^ 42. But the expense attending the keeping of attached property, will not justify a failure to produce it on execu- tion. Therefore, where cattle are attached, the sheriff cannot show, in defense of an action against him for fail- ing to produce them on execution, that the expense of keeping them would have exceeded their value.^ 'Sot will the expiration of his term of office excuse a failure to produce the property, since his special property in the goods remains during the pendency of the action and does not pass to his successor.* 43. The articles that are perishable, are to be enu- merated in the inventory, and the sheriff must sell the same, unless it be Vessels,, under the direction of the judge, at public auction, and retain in his hands the pro- ceeds of such sale, after deducting his expenses, to he allowed by such judge; which proceeds are to be disposed' of in the same manner as the property itself would have been, if unsold.^ The motion for an order to sell, perisha- ble property should be made to the judge who granted the attachment ; but if his term of office has expired, the motion should be made to the court.* The order must 1 Drake on Attachments, § 294. *M'Kay v. Harrower, 27 Barb., 2 Lummis 7. Eassen, 43 Barb., 373. 463. » Drake on Attaohments, § 302, and 6 3 b, g. (Sth ed. ), 80. cases. ° Davis y. Ainsworth, 14 How., 846. §VI.] ATTACHMENTS. . 417 prescribe tlife time, place and notice of sucli sale, and the manner in which such notice shall be published.* i 44.. The sherift shall, subject to the direction of the court or judge, collect and receive into his possession, all debts, credits and effects of the defendant. -He may also take such legal proceeding, either in his own name, or in the name of the defendant, as may be necessary for that purpose, and discontinue the same, at such times, and on such terms as the court or judge may direct.^ To enable the sheriff to collect such debts, credits and effects, and to maintain such legal proceedings, he should first have attached the debts, etc., in the manner prescribed by sec- tion 235 ; that is^ he should have left a certified copy of the attachment with the person owing such debt or hold- ing such property, and also a notice showing the property levied on, The certified' copy and notice should be served .personally on the debtor, merely leaving them at the debtor's place of business, with a third party found there, will not be sufficient.' 45. Where the sheriff would himself be entitled to bring an action for the collection of property seized, as a pro- missory note, he may continue an action for- that purpose, which has been already commenced by the debtor, either in the name of the latter, or be substituted as plaintiff. * I 46. But the sheriff can only bring such actions as the defendant himself could bring, except as against those who subsequently intermeddle with the property already attached. He cannot bring a suit to subject property to an attachment, which could not otherwise be attached. He has no standing in court to institute a creditor's suit, to reach the proceeds of assigned property for the benefit of creditors, which he could not otherwise attach as the debtor's property.^ 13B,. S. (Sthed.), 83, J29. * Eussell T. Euotman, 3 E. D. 2 Code, ? 232, cited ante, pi. 1. Smith, 419. ' Orser v. Grossman,' 11 How., 522 ; s Lawrence v. Bank of the EepuTj- 4 E.D. Smith, 448. lie, 31 How., 502. 418 PEO VISIONAL REMEDIES. [Ch. IV. 47. Where tlie sheriff brings an action for th© collection of the attached debts, or to set aside fraudulent transfers of property, or for any other purpose necessary in the execution of the attachment, he may employ attorneys and counsel for the prosecution of such action, and is entitled to his necessary disbursements therefor, to be allowed in the same manner as such disbursements were allowed to trustees under attachments, authorized by the revised statutes ; and the rule is the same, even where he fails in the action, provided he has acted in good faith.* But if the sheriff employ agents to aid him in collecting, debts, which he could himself have collected, without resort to an action, or to the employment of attorneys and counsel, he must himself compensate such agents, unless an agreement is made by him with all parties interested in the proceeds. 48. " The actions herein authorized to be brought by the sheriff, may be prosecuted by the plaintiff, or under his direction, ' upon the delivery by him to the sheriff of an undertaking executed by two sufficient sureties, to the effect that the plaintiff will indemnify the sheriff from all damages, costs, and expenses, on account thereof, not. exceeding two hundred and fifty dollars in any one action. Such sureties shall, in all . cases, when required by the sheriff, justify by making an affidavit that each is a house- holder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities." ^ (See form S"o. 105). *• 49. The plaintiff must comply strictly with the foregoing section, before he is entitled to maintain an action in his own name ; and the fact of such compliance should be mentioned in the complaint.^ > Mayhew v Duncan, 31 Barb., 87. s Skinner v. Stuart, 15 Abb., 391 ; 2 Code, § 238. 39 Barb., 206 ; 24 How.., 489. §VII.] ATTACHMENTS. 419 sECTioi^ vn. HOW SERVED ON PROPEKTT INCAPABLE OF MANUAL DELIVERY. 1. § 285. How executed on property incapa- ble of manual delivery. 2. Proceeding eimilar to garnishment. 3. Effect of service of copy and notice. 4. Service must be personal. 5. How property to be specified in notice. 6. Notice must be served. 1. Wliere third person has lien on the property. 8. Third person must have actual posses- sion. 9. Privity of contract and interest neces- sary to charge third person. 10. Claim must be positive, not contingent. 11. §236. CertiJUsatetoiefumisTied. 12. Sheriff must disclose attachment before he can require. 13. When certificate conclusive. 14. How examination conducted. 15. Cannot require certificate after judg- ment. 1. " The execution of the attachment upon any such rights, shares,' or any debts, or other property, incapable of manual delivery to the sheriff, shall be made by leaving a certified copy of the warrant of attachment with the president or other head of the association or corporation, or the secretary, cashier, or managing agent thereof, or with the debtor or individual holding such property, with a notice showing the property levied on." ' 2. The proceeding under the above section is similar, both in nature and design, to the proceeding called gar- nishment, as used in most of the other states, by which a third person, called a garnishee, is garnished, or warned not to pay the money or deliver the property of the defendant, in his hands, to such defendant.^ From the analogy between the proceedings, it is obvious that many of the rules and principles governing garnishment are equally applicable to proceedings under this section. 1 Code, I 236. 'Drake on Attachments, | 461. 420 PROVISIONAL REMEDIES. [Ch. W. 3. The service of the certified copy of the warrant, and the notice upon the third party, is an effectual attachment of the property of the defendant in the hands of such third party, differing in no essential respect from attachment by levy, except, as is said, that the plaintiff does not acquire a clear and full lien upon the specific property in the garnishee's or third- party's possession, but only such a lien as gives him the right to hold the garnishee person- ally liable for it or its value. The defendant's rights in the property are so far extinguished as to prevent his making any disposition of it which would interfere -with its subjection to the payment of the plaintiff's demand, when that shall have been legally perfected ; but for every purpose of making any demand which may be necessary to fix the garnishee's liability to him, or of securing it by legal proceedings or otherwise, his rights remain unim- paired by the 'pending garnishment ; but, of course, can be exercised only in subordination to the lien thereby created. From the time of the garnishment, the effects in the garnishee's possession are considered in custodia legis, and the garnishee is bound to keep them in safety, and, it is said, is not at liberty to change them, to convert them into money, or to exercise any act. of ownership over them.* 4. The copy of the warrant, and the notice, should be served upon the person holding the property personally, in the same manner as a summons; therefore, merely leaving the copy and notice with a man in the third party's, or debtor's store, without proof that it ever came to the possession or knowledge of such third party, is wholly insufficient.^ 6. The superior court of !N"ew York and, also the court of common pleas, have frequently held that the notice to 1 Drake on Attachments, g 453. ^ Orser t. Grossman, 4 E. D. Smith, 443; 11 How., 620. §VII.] ATTACHMENTS. 42 J be served upon, the debtor or garnishee, must specify the particular property sought to be attached ; and that a mere general notice such as, " all the property of A which is, or may come into your hainds," without any further description, is insufficient and void.^ But these decisions have been recently disapproved of, by the su- preme court, and the rule laid down that a general notice, as " all the property of the defendant in the attachment, and his effects, rights, and shares of stock with the inter- est thereon and dividends therefrom, and the debts and credits of the said defendant now in possession of the said person or under his control, will be liable to attach- ment, and the said person is required to deliver all such property into the custody of the sheriff without delay," is sufficient.^ (See form K'o. 100). 6. It is not a sufficient compliance with the section, to serve a copy of the warrant, without the notice prescribed and without making an inventory, and the property sought to be reached will not be thereby attached.^ 7. The attaching creditor does not acquire any greater right against the third person, or garnishee, than the de- fendant himself possesses ; unless such third person is in possession of the defendant's effects under a fraudulent transfer from the latter.* So, that where such third person has a lien upon the defendant's property in his possession, the attachment is subordinate to the lien, and binds only the remaining interest of the defendant, after the satisfaction of the lien.* In such case the sheriff cannot take actual pos- session of the property, but can only attach it by serving the notice and copy of the warrant, as provided in the above ' Wilson V. Duncan, 11 Abb., 3 Kuhlman v. Orser, 5 Duer, 242 Orser v. Grossman, 4 E. D. Smith ' Lyman v. Cartwright, 3 E. D. Smith, 117. 'Drake on Attach., ^ 458. 443 ; 11 How., 522. 6 Patterson v. Perry, 10 Abb., 82 ; ^Greenieaf V. Mumford, 80 How., Brownell v. Carnley, 3 Duer, 9; 80. Frost V. Willard, 9 Barb., 440. 422 PBOVISIONAL REMEDIES. [Ch. IV. section.^ Goods in the custom house, with the duties unpaid, or goods in the hands of a consignee for sale on commission, can only be attached in this manner ; unless the plaintiff first discharge the li^n thereon.^ A promis- sory note, in the course of litigation, may be attached by serving the required notice and copy upon the attorney.^ 8. In order to render the third party or garnishee liable, he must have actual possession, or control of the defendant's property at the time the notice and copy are served ; mere constructive possession is not sufficient. Thus vrhere goods were consigned to a consignee, and ^fter the latter had received the bill of lading, but before the arrival of the goods, they were attached, by the ser- vice on the consignee of the proper notice or warning, it was held that the consignee was not liable, not having the goods in his possession at the time.* So, where the notice and copy of warrant were served on a consignee, after the arrival of the bills of lading, but before the arrival of the goods ; and another notice and copy of at- tachment, against the same defendant, but in favor of other plaintiffs, were served upon such consignee, after the arrival of the goods ; the latter was held to have pre- ference over the first.^ 9. It is a well settled rule in the proceeding of garnish- ment, and to a great extent applicable to the proceedings under this section, that there must, in general, be a privity both of contract, either expressed or implied, and of interest, between the defendant and the garnishee, pr third person, in order to render defendant's goods in the hands of such third person liable to be garnished.^ There- fore, where the sheriff seized goods of the defendant, and 1 Frost T. Willard, 9 Barb., 440. * Grant v. Shaw, 16 Mass., 341 ; 2 Kuhlman v. Orser, 5 Duer, 242 ; Andrews t. Ludlow, 5 Pick., 28. Brownell v. Carnley, 3 Duer, 9. ^ Patterson v. Perry, 10 Abb., 82. 'Russell V. Ruokman, 3 E. D. « See Drake on Attach., § 485. Smith, 419. § VII.] ATTACHMENTS. 423 employed an auctioneer to sell them, the proceeds of such sale, while in the hands of the auctioneer, cannot be attached by service of notice on him ; for there is no pri- vity between him and the defendant, he being employed by, and bound to account to the sheriff.^ So, where the effects in the hands of the third party belong to the defendant as a mere trustee or agent for others, they can- not be garnished, there being no privity of interest. And it is in entire accordance with every principle of justice and equity, that though the legal title to property in the garnishee's possession be in the defendant, yet, if such property really belong to others, it should not be taken to pay his debts.^ , 10. Where the third party is sought to be charged as debtor of the defendant, the nature of the debt must be such as would give the defendant a right of action, either present or future against him. As has been before re- marked, the attaching creditor can acquire no rights or powers that the defendant did not have at the time of the attachment, save in relation to property fraudulently transferred. So, that if the debt is not absolutely payable, either in the present or future, but dependent on a contin- gency, it is not such a debt as can be properly attached.' 11. "Whenever the sheriff shall, with a warrant of at- tachment, or execution against the defendant, apply to such officer, debtor, or individual, for the purpose of ajttaching or levying upon such property, such officer, d^tor, or individual shall furnish him with a certificate, under his hand, designating the number of rights or shares of the defendant in the stock of such association or corporation, with any dividend, or any incumbrance ' Penniman v. Buggies, 6 New v. New Orleans R. R., 13 How., Hamp., 166. 516 ; Lyman v. Cartwight, 3 E. D. 2 Drake on Attach., § 489. Smith, 117. s Drake on Attach., J 651; Bates 424 PROVISIONAL KBMEDIES. [Ch. IV. thereon, or tiie amount and description of the property- held by such association, corporation, or individual, for the benefit of, or debt owing to, the defendant. If such officer, debtor, or individual refuse to do so, he may be required by the court or judge to attend before him, and be examined on oath concerning the same, and obedience to such order may be enforced by attachment." * 12. Before the sheriff is entitled to require a certificate designating the nature and extent of the defendant's pro- perty, he must disclose, to the person alleged to have such property in his possession, the fact that he has an attach- ment or execution against the defendant.^ 13. It seems that the certificate, when made, is conclu- sive, if it show any assets,in the hands of the third party ; and that an order for the further examination of the party who made it, cannot be granted. Thus, where the alleged debtor of the defendant, certified to having in his hands the sum of |75, belonging to the defendant, an order for his examination subsequently obtained, was held to be invalid.^ But, where the certificate is to the effect, that the alleged debtor holds no property of the defend- ant, it is held that the plaintiff may impeach the truth of such certificate, and if he can satisfy the judge of its falsity, the third party may be regarded as having refused the certificate, and an examination may be ordered.* It is difficult to see why the plaintiff may not be allowed to impeach the certificate as well in the one case, as the other ; why he may not show that the alleged debtor, has in his possession more of the defendant's property than he certifies to have, as well as to show that such debtor has some property, when he alleges that he has none. 'Code, 5 236. N. S., 210; Hopkins v. Snow, 4 2 Sohieb t. Baldwin, 13 Abb., 469 ; Abb., 368. 22 How., 278. * Carroll v. Finley, 26 Barb., 61 ; s Hoagland y. StodoUa, 1 Code R., Hopkins t. Snow, i Abb., 368. § VII.] ATTACHMENTS. 425 14. "WTiere an examination is had, it must be conducted in the same manner, and subject to the same rules, as an examination of third persons upon supplementary pro- ceedings. Its office is only to ascertain what the third person admits belongs to the judgment debtor ; So, that a claim by him, of an exclusive interest in the property will arrest the examination, and the plaintiff's only remedy will then lie in an action against such third person.^ (For forms of order of examination, see appendix llTo. 102). 15. On the recovery of judgment' in the attachment suit, the powers of the sheriff under the attachment are merged in those acquired under the execution, when lodged in his hands. He can no longer require a certificate under the former process, though he may under the latter.^ (For forms herein, see appendix Nos. 100 to 103). • Hopkins v. Snow, 4 Abb., 368 ; « Schieb v. Baldwin, 13 Abb., 469 ; per Mitchell, J. 22 How., 278. 28 426 PROVISIONAL REMEDIES. [Ch. IV. SECTION vin. PERISHABLE PROPERTT. WHERE PROPERTY IS CLAIMED BY THIRD PERSON. VESSEIS. 1. § 233. Proceeding In case of perishable property or veasels. S. Provision of the statute as to perishable property. 3. Order of sale, and by whom made. 4. Where property is claimed by third per- son. 5. Sheriff to summon jury; inquest how conducted. 6. Effect of the inquisition. 7.. When sheriff may require bond without summoning jury. 8-10. Proceedings on attachment of domes- tic vessels. 11-17. On attachment of foreign vessels. 18-19. Vessel, how disposed of if notclaimed. 20. Kotice to be given of sale of perishable property, etc. 1. " If any property so seized shall be perishable, or if any part of it be claimed by any other person than such defendant, or if any part of it consist of .a vessel or of any share or interest therein, the same proceedings shall be had in all respects, as are provided by law, upon attach- ments against absent debtors." ^ 2. The provision of the statute as to perishable pro- perty, is as follows : "If any of the property so seized, other than vessels, be perishable, the sheriff shall sell the same at public auction, under an order of the ofhcer who issued the warrant ; and shall retain in his hands the pro- ceeds of such sale, after deducting his expenses to be allowed by such ofBLcer, which proceeds shall be disposed t: of in the same manner as the property so sold would have been if it had remained unsold."^ 3. The motion for an order to sell perishable property should be made to the judge who granted the attachment ; but if his term of office has expired, the motion may be 1 Code, S 233. 2 3 R. S., (5tla ed.), 80. I VIII.] ATTACHMENTS. 427 made to the court.^ The order must prescribe the time, place, and notice of such sale, and how the same shall be published.^ (See form No. 99). 4. Again the statute provides that " if any goods or effects seized as the property of the debtor, -other than vessels, shall be claimed by or in behalf of any other per- son as his property, the sheriff' shall summon and swear a jury to try the validity of such claim, in the same manner and with the like effect as in case of seizure under execu- tion." " If, by their inquisition, the jury find the property of the goods and effects so' seized to be in the person so claiming them, the sheriff shall forthwith deliver them to the claimant or his agent, unless the attaching creditor shall by bond, with sufficient sureties, indemnify the sheriff for the detention of such goods and effects. In case of such indemnity, the sheriff shall detain such goods and effects, to be disposed of as hereinafter directed." "If the property in such goods be found to be in the claim- ant, the costs and charges arising from such inquisition, to be allowed by the officer issuing the warrant, shall be paid by the attaching creditor; but if it be found to be in the debtor, then the costs and charges, to be ascertained in the same manner, shall be paid by the claimant." * 6. The jury, to be summoned by the sheriff, must con- sist of twelve qualified jurors; and, before they proceed with the inquisition, they are to be sworn by the sheriff. Notice should be given to the parties of the time and place of the hearing ; and the attendance of witnesses may be compelled by subpoenas out of the court from which the attachment issues. The sheriff is to swear the wit- nesses, but takes no part in the determination of the issue. After hearing the testimony, the jurors should 1 Davis V. Ainsworth, 14 How., 346. s 3 R. S., (5th ed.), 80, §§ 10, 11, 12. 2 3R. S., (5tlied.), 83, §29. 428 PROVISIONAL REMEDIES. [Ch. IV. deliberate apart, as in other cases, land stould make and sign an inquisition, stating in whom they find the property to be ; which inquisition should also be signed by thq sheriff.^ ■ 6. If the jury find the property to be in the claimant,' and no bond of indemnity be given by the plaintiff, the sheriff will be thereby justified in returning that the defendant had no goods within bis bailiwick, although it should afterwards appear that the goods were the defend- ant's ; unless it is shown that the sheriff did'not act in good faith. But, if the plaintiff tender a sufficient bond of indemnity to the sheriff, an inquisition will not justify that officer in returning that the defendant had no goods, if the fact turn out to be otherwise.^ The inquisition is not conclusive, as against the claimant, and does not settle the right of property ; so that, where the jury find the property not to be the claimants, he may, nevertheless, if he be the real owner, have an action for damages against the sheriff, and that officer can introduce the inquisition in evidence, only to show that he had not acted maliciously^ and in mitigation of damages. The finding of the jury in the sheriff's favor will not justify him in taking the goods of a stranger.' 7. Where the property to be attached is manifestly in the possession of a third person, who claims the same, the sheriff may require a bond of indemnity from the plaintiff, before making the levy, without going through the form of summoning a jury.* 8. "When a vessel belonging to any port or place in this state, or any of the United States, or any share or any interest, in such vessel, shall be attached, on the applica- 1 Crocker on Sheriffs, § 438. SBayley v. Bates, 8 John., 185; i^LummisT. Kasson, 43 Barb., 373 ; Towngeud v. Phillips, 10 John., 98 ; Kogers v. Wier, 34 N. Y. R., 463; see Lummis v. Kasson, 48 Barb., 373. Bayley v. Bates, 8 John., 185; Van * Chamberlain v. Seller, 18 N. ¥., Cleef V. Fleet, 16 John., 147. K., 115.. §Vni.]' ATTACHMENTS.' 429 tion, within thirty days thereafter, of an^ person claiming such vessel or share, or of his agent, the officer who issued th« warrant may cause the vessel or share so seized to be valued by three indifferent men, to be appointed by such officer."! 9. " Within two days after such appraisement .shall be made, the claimant, or his agent, may execute a bond, with sureties, to be approved by such officer, to the people of this state, in a penalty double the amount of such appraised value, conditioned that, in a suit to be brought on such bond, the claimant will establish that he. was the owner of such vessel or share at the time of the seizure ; and, in case of his failure to do so, that he will pay the amount of such valuation, with interest; from the date of the bond, to any trustees who may be appointed on such attachment; or, in case none be appointed according to law, or the attachment be discharged, to such debtor or his personal representatives." * (See form No. 103). 10. "Upon such bond being executed and delivered to such officer, he shall order the vessel or share so seized to be discharged from the attachment, and the sheriff shall discharge such vessel or share accordingly."^ (See form No. 104). 11. " Whenever a foreign vessel, or share or interest in any foreign vessel shall be attached, such vessel or such share or interest may be valued in the manner above pre- scribed, upon the application of any person who shall, by his affidavit, swear that h6 is the owner thereof, or upon the application of rthe agent of such owner, who shall, by his affidavit, swear that he is such agent, and that he verily believes his principal to be the owner of the vessel, or share so attached." * 1 3 R. S., (5th ed.), 81, ? 15; '3 B.: S., (5th ed.), 81, g 17. »Id.,gl6. "Id., 82? 20. 430 PROVISIONAL REMEDIES. [Ch. IV. 12. " Such notice of such application shall be given to the attaching creditors, as the officer to whom the same is made shall deem reasonable." ^ > 13. " Within three days after such valuation shall be returned to the officer who directed the same, the creditors, at whose instance the attachment issued, shall execute a bond, with sureties, to be approved by such officer, to the person in whose behalf such claim shall be made, in double the amount of the valuation, with a condition to prosecute such attachment to effect, and to pay such damages as may be recovered against them, for seizing the said vessel, or share, in any suit that shall be brought against them within three months from the date of the bond, if it shall appear in such suit that the vessel, or share or interest therein, so attached, belonged, at the time of issuing such attachment, to the person in whose behalf such claim shall be made." ^ 14. " Unless such bond be given as above prescribed, the officer who issued the attachment shall grant an order discharging the vessel, share, or interest so claimed from such attachment, and the same shall be discharged accord- ingly."^ 15. " If, after an attachment has been levied upon a foreign vessel, a valuation of the same, or of the share or interest therein seized, be made, no other warrant of at- tachment shall issue against the same vessel, as being the property, in whole or in part, of the same debtor, until the security above prescribed shall be given by the person requiring such warrant."* i 16. " If, after the execution of any such bond by an attaching creditor, the attachment shall be discharged, or the proceedings shall cease, by the omission to appoint ' 3 R. S., (5th ed.), 82, ? 21. 8 3 B. S. (5th ed.), 82, ? 23. 2 Id., §22. *Id., ?24. § Vni] ATTACHMENTS. 431 trustees according to law, the debtor against whom such attachment issued, or his agent, shall be entitled to claim such vessel, share or interest, or the proceeds thereof if the same shall have been sold, only upon his discharging the bond so executed by such attaching creditor, or by his executing to such creditor a bond, in a penalty double the valuation made as herein directed, with sureties to be approved by the officer who issued the attachment, con- ditioned to indemnify such creditor against all charges and expenses in consequence of the bond so executed by him." 1 17. "If the bond of the attaching creditor be not dis- charged, or he be not indemnified as above directed, within one month after the debtor became entitled to claim such vessel, share, or interest, as above prescribed, such vessel, share or interest may be sold by the sheriff in. whose custody the same may be, upon an order of the officer who issued the attachment, and the proceeds of the sale shall be paid to the attaching creditor, who exe- cuted such bond for his indemnity."^ 18. "If no claim be made by any owner of a domestic vessel, or of a share in such a vessel, seized under any warrant of attachment, within thirty days after such seizure, and no bond be executed as herein directed by such claimant ; or, if no claim be made within that time, by or in behalf of the owner of any foreign vessel, or of a share therein, so seized, such vessel or share may be sold by the sheriff making such seizure under an order of the officer issuing the attachment, to be granted upon the application of any attaching creditor, whenever, in the opinion of such officer, a sale may be necessary."' 19. " When a share in any vessel, foreign or domestic, 23 R. S., (5th ed.), 82, g 25. » 3 B. S. (5th ed.), 83, ? 27. 2Id., 83, g 26. 432 PROVISIONAL REMEDIES. [Ch. IV. shall be seized, if no claim to such share be made by any owner thereof, as herein provided, within thirty days after such seizure, it may be sold by the sheriff, under an order of the officer issuing the attachment, to be granted on the application of any joint owner, or of his agent." * 20. "Whenever a sale of perishable property, or of a vessel, or share of a vessel, shall be ordered by any officer, as herein authorized, he shall, in such order, prescribe the time, place and notice of such sale, and how the same shall be published." ^ (See form No. 99). • 3 R. S. (5th ed.), 83, § 28. » Id., g 29. §IX.] ATTACHMENTS. 433 SECTION IX. EFFliCT OF AN ATTACHMENT. 1. When attachment binds property. 2. As to priority of attachments. 3. What essential to make priority availa- ble. 4. Priority covers only amount actually due. 5. When subsequent attaching creditors may move to vacate. 6. Plaintiff or sheriff may show fraud in assignment. 7. Effect of attachment as to defendant's title. 8. Gtoods subject to a lien, how attached. 9. Attaching property not a satis&ction of the debt. 1. The mere issuing of an attachment, and placing it in the sheriff's hands, has no force as against the defendant's property, either with reference to his rights or to those of third persons ; but its effect is to be dated from the time of its actual service,^ both as to personal or real estate.f When judgment is obtained in the attachment suit, the lien thereof relates back to the time of the levy, taking its priority , from that time;^ and when the execution is issued it must be directed to, and executed, by the sheriff who served the attachment, notwithstanding he may since have gone out of office.* 2. But where several attachments, issued under the Code, against the same defendant, are actually levied on the same property, the one first delivered to the sheriff has priority, though it was the one last levied. The pro- vision of 2 Revised Statutes, 366, sections 14, 15, that in case of the delivery of several attachments out of courts 1 Drake on Attach., § 221. 2 Kuhlman v. Orser, 5 Duer, 250 ; Burkhardt t. MoClellan, 15 Abb., 243, note ; Learned v. Vaudenbergh, 7 How., 379 ; 8, How., 77. 'Wilson T. Forsyth, 24 Barb., 105 ; Am. Ex. Bank t. Morris cadal, etc., 6 Hill, 362. * McKay v. narrower, 27 Barb., 463. 434 PROVISIONAL KEMEDIES. [Ch. IV. of record against the same defendant, the one first delivered should have preference, notwithstanding a levy on the same property might he first made under another attachment or execution, applies to attachments under the Code. But, in order to give such priority, the attachment first delivered must be actually levied on the same pro- perty as the other.' Therefore, where several attach- ments against the same defendant were successively delivered to the sherift', and were levied upon the personal property only, except the last, which was levied upon the real estate, it was held that the levy under the latter gave it a preference, notwithstanding the others had been first issued and delivered.^ 3. But, to make such priority available, as against subsequent attaching creditors, it seems that the "plaintiflF must recover judgment in due form and course of law, issue execution thereon and charge the property there- with. Hence, it was held, in Vermont, that where the first of several attaching creditors, having a claim large enough to absorb all the property attached, made an agreement with the defendant whereby he took all the property in satisfaction of his debt, and discontinued his action, that, as against subsequent attaching creditors, who had perfected their lien by judgment and execution, he acquired no title to the property.* 4. The object of an attachment is to secure a debt actually due, and has no reference to a judgment which may, according to the practice of the court, be recovered as a security for a debt thereafter to become due. Therefore, in an action on a money bond, payable in installments, where there was only one installment due at the time the 1 Yale V. Matthews, 12 Abb., 379, 'Brandon Iron Co. v. Gleason, 20 How., 430; Learned v. Vanden- 24 Vermont, 228; see Drake on bergh, 7 How., 379, per Harris, J. Attach., § 262. 2 Ransom V. Haloott, 18 Barb., 56. §IX] ATTACHMENTS. 435 attachment was issued and levied, but another installment had become due at the time of entering judgment, it was held that the plaintiff's lien, as against other attaching creditors, who had levied after the first attachment, but before judgment, was only to the extent of the amount actually due upon the bond at the time of the service of the attachment.' 5. While it is well settled that subsequent attaching creditors cannot take advantage of mere irregularities in the plaintiff's proceedings,^ yet, if the prior attachment is founded on fraud, or any thing that amounts to a fraud upon the rights of other creditors, they may move to have such attachment vacated. Thus, where , A issued ah attachment against one member of a firm, and seized the partnership property ; and, thereupon, the firm requested D, a creditor of the firm, to accept a confession of judg- ment, and levy on the attached property, and thereby gain priority over A, the court set aside the judgment as intended to defraud creditors. "Whereupon D issued an attachment on his claim against the partnership, and levied it on the attached property, but took no further steps in the actioa for over four months ; thus leaving his attachment dormant. The court held the facts sufficient to justify the inference that D's attachment was levied solely to hinder and delay creditors, and set it aside on motion.' 6. It may now be considered as settled, in this state, that a creditor, by attaching property, acquires such a specific lien on the property attached, as will entitle him to the intervention of the equitable jurisdiction of the court, to remove or set aside all fraudulent assignments, transfers 'Syracuse Bank y. Covelle, 19 Ketohum v. Ketohum, 1 Abb., N. S., How. 385. 167. 2Iii re Griswold, 1 3Baj:b. , 412 ; a Reed v.'Biinis, 4 Abb. 393. Isham V. Ketohum, 46 Barb., 43 ; 436 PROVISIONAL REMEDIES. [Ch. IV. and claims, or any other fraudulent obstacle in the way of the realizatioii of the lien, in case the plaintiff should recover judgment.^ And, also, that the sheriff, as bailee of the plaintiff, has a like lien ; and may show, in an action against him for wrongfully taking the property, that the purchase from the debtor was fraudulent and void as against the attaching creditors.^ 7. The levy of an attachment does not divest the defend- ant of his title thereto, nor give the plaintiff any estate therein. It only creates a lien on the property, and does not deprive the defendant of his power of alienation, subject, however, to the lien of the attachment.* 8. Nor can the attaching creditor acquire any greater in- terest or right in the property seized than the defendant had at the time of the attachment, unless the defendant's rights have been impaired by some fraud or collu- sion.* Therefore, where the goods are subject to a lien, at the time of the levy, the plaintiff acquires no interest as against the interests of the lien holder ; and the sheriff cannot take possession of them until the lien is discharged. The goods may be attached, however, subject to the lien, by the service of a certified copy of the warrant, and a notice as provided by sectiorr 235.® 9. The levy under an attachment does not amount to a satisfaction of the debt, and, therefore^ if the property attached be lost or destroyed, during the pendency of the action, without any fault of the sheriff, or plaintiff, the defendant must bear the loss and will still remain liable for the plaintiff's claim.^ iRinohey v. Stryker, 26 How., * Id., §223. 75; Kelley V. Lau6, 28 How., 128; SFrostv. Willard, 9 Barb., 440; Greenleaf v. Mumford, 30 How., 30; Brownell v. Carnley, 3 Duer, 9. Frost V. Mott, 34 N. Y. K., 263. sMcBride v. Farmers' Bank, 28 aid. ' Barb., 476. 3 Drake on Attach., g 222. §X.] ATTACHMENTS. 437 sectio:n' X. JUDGMENT HOW SAT^S: FIED. ACTIONS BY PLAINTIFF. WHEEE JUDGMENT IS FOR DEFENDANT. 1. § 337. Jadgment, bow satisfied. 2. Sheriff to retain property and apply on execution. 3. Where defendant dies, who may order execution. 4. Execution where sheriff's term of office has expired. 6. Proceeds of perishable property and debts first applied. 6. Sheriff to sell attached property. 7. To collect debts. 8. When to sell evidenceB of debt. 9. Notice of application for leave to sell to be given defendant. 10. How application made. 11. Sheriff to give certificate of sale of share In stock. 12. Where property has passed out of she- riff's hands. 13. Penalty for withholding or concealihg property. 14. Sheriff to deliver residue to defendant. 16. Where property is lost pending snit. 16. §338. When plaintiff may maintain action. 17. Must comply vrith the section. 18. 1 289. Where defendant recovers judgr ment. 19. Must be final jadgment. 1. "In case judgment be entered for tlie plaintiff" in such action, the sheriff shall satisfy the same out of the property attached by him, if it shall be sufficient for that purpose, 1. By paying over to such plaintiff the pro- ceeds of all sales of perishable property, and of any vessel, or share or interest in any vessel, sold by him, or of any debts or credits collected by him ; or so much as shall be necessary to satisfy such judgment. 2. If any balance remain due, and an execution shall have been issued on such judgment he shall proceed to sell, under such execu- tion, so much of the attached property, real or personal, except as provided in subdivision four of this section, as may be necessary to satisfy the balance, if enough for that purpose shall remain in his hands ; and in case of the sale of any rights or shares in the stock of a corporation or association, the sherifr shall execute to the purchaser a 438 PROVISIONAL REMEDIES., [Oh. IV. certificate of sale thereof, and the purchaser shall there- upon have all the rights and privileges in respect thereto, which were had by such defendant. 3. If any of the attached property belonging to the defendant shall have passed out of the hands of the sheriff,- without having been sold or converted into money, such sheriff shall repossess himself of the same, and for that purpose shall have all the authority which he had to seize the same under the attachment ; and any person who shall willfully conceal or withhold such property from the sheriff, shall be liable to double damages, at the suit of the party in- jured. 4. Until the judgment against the defendant shall be paid, the sheriff may proceed to collect the notes and other evidences of debt, and the debts that may have been seized or attached under the warrant of attachment, and to prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment. At the expiration of six months from the docketing of the judgment, the court shall have power, upon the petition of the plaintiff, accom- panied by an Etffidavit setting forth fully all the proceed- ings which have been had by the sheriff since the service of the attachment, the property attached, and the disposi- tion thereof, and also the affidavit of the sheriff that he has used diligence and endeavored to collect the evidences of debt in his hands so attached, and that there remains uncollected of the same, any part or portion thereof, to order the sheriff to sell the same, upon such terms and in such manner as shall be deemed proper. Notice of such application shall be given to the defendant or his attorney, if the defendant shall have appeared in the action. In case the summons has not been personally served on the defendant, the court shall make such rule or order as to the service of notice, and the time of service as shall be deemed just. When the judgment and all costs of the I X.] ATTACHMENTS. 439 proceedings shall have been paid, the sheriff, upon reason- able demand, shall deliver over to the defendant the residue of the attached property, or the proceeds thereof." ^ The portion of subdivision four, which provides for the sale of uncollected assets was added in 1859, otherwise the section remains unchanged. 2. Where property is seized by the sheriff under an attachment, he must retain it in his possession until the determination of the action in which the attachment was issued, and if the plaintiff recovers judgment, until the property is sold under an execution issued thereon ; unless the judgment is otherwise satisfied, or unless, in case of perishable goods, etc., he is ordered by the officers who issued the attachment, to sell the same. If he has the goods when a proper execution is lodged with him, and proceeds to sell thereon, it is all the plaintiff has a right to require of him." 3. Where the defendant in the attachment suit dies after the allowance of the attachment and before judg- ment, the right to order an execution is with the court in which the action is pending, and not with the surrogate. The execution should be indorsed with a direction to levy only upon the property attached.^ 4. When the execution is issued, it must be directed to, and executed by the sheriff who served the attachment, notwithstanding he may since have gone out of office. The execution, issued in such a case, should be a special one, directed to the former sheriff as such, reciting the issuing of the attachment, and the taking of the property thereon, and requiring the sale of that property by him. Such former sheriff is not bound to deliver the property to his successor in office to be sold on an execution di- ' Code, ? 237. » Thaolier v. Bancroft, 15 Abb., 2 McKay v. Harrower, 27 Barb., 243. 63 ; Dodge v. Porter, 13 Abb., 253. 440 PROVISIONAL REMEDIES. [Ch. IV. rected and delivered to the latter, and cannot be made liable for a refusal so to deliver it. IsTor can he be placed in default with regard to the attached property, until a proper execution has been put in his hands, directing a sale of the property seized.^ If the attached property, in such case, be not sufficient to satisfy the judgment, a supplementary or alias execution should be issued to the sheriff directing him to sell the defendant's property generally. There is a statement in the Syllabus to McKay V. narrower, to the efect that such direction may be included in the special execution to the late sheriff, but there is nothing in that decision to authorize it, and it is obviously incorrect. (For form, see No. 111). 5. Where the judgment is for the plaintiff, and an exe- cution is issued to the sheriff, he must first apply thereon all moneys received by him, from sales of the attached property previously made, or from any debts or credits collected by him, or so much thereof as may be necessary to satisfy the judgment.^ 6. If a balance still remain due, the sheriff must sell all the attached properfy, real and personal, except the evidences of debt, or so much thereof as may be ne- cessary.' 7. If such property is insufficient, the sheriff should proceed to collect the debts, notes, bonds, or other evi- dences of debt that have been attached ; and prosecute any bond that may have been taken in the course of the proceeding, and apply the proceeds to the payment of the judgment.* 8. Should the judgment remain unsatisfied at the expi- ration of six months from the docketing of the judgment, the court may order the sheriff to sell such part of the > McKay v. Harrower, 27 Barb., sCode, ?237. 463 ; Dodge v. Porter, 13 Abb., 253. *Id. 2 Code, §237. § X.] ATTACHMENTS. 441 evidences of del^t as remain uncollected, upon such, terms and in such manner as shall be deemed prftper.'' .9 Notice of the application for leave to sell such evi- dences of debt, must be givfen to the defendant. If he has appeared iti the action, the usual notice of eight days must be served upon him or his attorney. But if the summons has not been personally served on the defend- ant, the court will make an order as to the service of notice and the time of service.^ ■ 10. The application must be made upon the following papers : 1. The petition of the plaintiff. 2. An affidavit setting forth fully all the proceedings had by the sheriff, since the attachment, the property attached, and the dis- position thereof. ' 3. The affidavit of the sheriff that he has used diligence, and endeavored to collect the evi- dences of debt, attached by him, and that there remains . uncollected of the same, some part or portion thereof.* 11. In case of the sale of any tights, or shares, in the stock of a corporation or association, the sheriff shall execute to the purchaser a certificate of sale thereof, and the purchaser shall thereupon have all the rights and privileges in respect thereto, which were had by such defendant.* 12. If any of the attached property shall have passed out of the sheriff's hands, without having been sold, or converted into money, such sheriff shall repossess himself of the same, and for that purpose shall have all the author- ity which he had to seize the same under the attachCaent.' Where property has been once seized by the sheriff, he may follow and retake it in another county, or even in another state.* 13. Any person who shall willfully conceal, or withhold 1 Code, § 237. * § 237. 2 Id. 6 Id. 8 Id. eutley v. Smith, 7 Vermont, 154. 29 ' ' 442 PROVISIONAL REMEDIES. [Oh. IV. such property from the sheriff, shall he liable to douhle damages at the suit of the party injured.^ 14. When the judgment, and all costs of the proceed- ings shall have been paid, the sheriff, upon reasonable demand, shall deliver over to the defendant, the residue of the attached property, or the proceeds ^ thereof.^ 15. The attachment of property, is not in itself a satis- faction of the plaintiff's demand, since the property is seized merely as a security for the satisfaction of such judgment as the plaintiff may recover; therefore, if pend- ing the suit, the attached property be lost or destroyed, without fault of the plaintiff" or sheriff, the defendant will still remain liable.* 16. " The actions herein authorized to be brought by the sheriff, may be prosecuted by the plaintiff, or under his direction, upon the delivery by him to the sheriff of an undertaking executed by two sufficient sureties,, to the effect that the plaintiff will indemnify the sheriff from all damages, costs and expenses on account thereof, not ex- ceeding two hundred and fifty dollars in any one action. Such sureties shall, in, all cases, when required by the sheriff, justify by making an affidavit that each is a house- holder, and worth double the amount of the penalty of the bond, over and above all demands and liabilities."* (See form No. 105). 17. The above section must be strictly complied with, before the plaintiff can maintain the action, and the fact of such compliance should be set forth in the complaint.^ 18. " If the foreign corporation, or absent or abscond- ing or concealed defendant recover judgment against the plaintiff in such action, any bond taken by the sheriff, > Code, §237. ^ Code, § 238. nd. sSkiuner t. Stewart, 39 Barb., sMoBride T. Farmers' Savings 206 ; 15 Abb., 391 ; 24 How., 489. Bank, 7 Abb., 347 ; 28 Barb., 476. § X.] ATTACHMENTS. 443 except such as are mentioned in the last section, (§ 238), all the proceeds of sales and moneys collected by him, shall be delivered by him to the defendant, or his agent, on request, and the warrant shall be discharged, and the property released therefrom."^ 19. Judgment for the defendant is not, per se, a discharge of the attachment ; for in case such judgment is appealed from, its force is suspended pending such appeal.^ But a _^waZ judgment for the defendant dissolves the attachment, and necessarily discharges from its lien the effects or credits on which it may have been executed, whether in the hands of the sheriff, or of third persons. I Code, g 239. ' Lee v. Selleck, N. Y. Trans. Dec, 23, 1859. 444 PEOVISIOITAL REMEDIES. [Ch. rv. SECTION XI. DISCHARGE OF ATTACHMENT. 1. § 340. Discharge of attaclunent. 2. §341. trndertakiiig on part of the defenfl- ant. 3. Two methods of obtaining discharge. 4. By niotion on plaintitf's papers. 6. Such papers to be talien as true. 6. Who may malje the motion. 7. When the motion may be made. 8. To whom the motion may be made; notice.' 9. Where plaintiff cannot introduce new affidavits. 10. When attachment set aside plaintiff be- comes a trespasser. 11. Where facts in plaintiff's affidavit are not positive. 13. When defendant may renew motion to discharge. 13. Motion on opposing affidavits. 14. To whom made ; notice. 15. Plaintiff may oppose by affidavits. 16. But cannot introduce new grounds. 17. When issued against a resident on ground that he is non-resident. 18. CourtwiUnottrythe merits of the action. 19. ST. Where plaintiff's undertaking and affi- davits have not been filed. Where the cause is removed to the United States court. Effect of undertaking under § 341. Where attachment vacated will not be again gi'anted on same facts. Discharge on security; motion when made. Motion ae parte. Form of the undertaking. To be proved or acknowledged; sureties to justify. Who may be sureties. Sureties estopped by undertaking. Defendant may give undertaking before service of attachment. Sureties cannot allege fraud on part of defendant. May move to set aside on affidavit after giving undertaking. How appraisement to be made. Within what time judge to decide motion to vacate. 1. " Whenever the defendant shall have appeared in such action, he may apply to the officer who issued the attachment, or to the court, for an order to discharge the same; and, if the same be granted, all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, shall be delivered or paid by him to the defendant or his agent, and released from the attachment. And where there is more than one defendant, and several property of either of the defendants has been seized by virtue of the order of attachment, the defendant whose several property has been seized may § XI.] ATTACHMENTS. 445 apply to the officer who issued the attachment for relief under this section." ^ The last clause, relating to several defendants, was added in 1862. 2. " Upon such application, the defendant shall deliver to the court or officer an undertaking executed by at least two sureties, who are residents and freeholders, or house- holders, in this state, approved by such court or officer, to the effect that the sureties will, on demand, pay to the plaintiff the amount of judgment that may be recovered against the defendant in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his com- plaint. If it shall appear by affidavit that the property attached be less than the amount claimed by the plaintiff, the court or officer issuing the attachment may order the same to be appraised, and the amount of the undertaking shall then be double the amount so appraised. And in all cases the defendant, may move to discharge the attach- ment, as in the case of other provisional remedies. And where there is more than one defendant, and several property of either of the defendants has been seized by virtue of the order of attachment, the defendant whose several property has been seized may deliver to the court or officer an undertaking in accordance with the provisions of this section, to the effect that he will, on demand, pay to the plaintiff the amount of judgment that may be recovered against such defendant. And all the provisions of this section applicable to such undertaking shall be applied thereto." ^ The concluding provision was added in 1862. The first sentence formed the whole section in 1849. The intermediate portion was added in 1857. 3. Prior to the amendment of the above section, in 1857, the Code provided no specific means for discharging 1 Code, ? 240. 2 00(16,2 241. 44:6 PROVISIONAL REMEDIES. [Ch. IT. an attachment otherwise than by giving security. But, by that amendment, it was provided that, " in all cases, the defendant may move to discharge the attachment, as in the case of other provisional remedies." There are, therefore, two methods for obtaining a discharge of the attachment : 1. By a motion for that purpose, based either upon the plaintiff's application and proceedings, or upon opposing affidavits. 2. By giving security to the plaintiff. The first of these methods is appropriate when there is any defect or irregularity in the plaintiff's pro- ceedings, or when the attachment is not properly allow- able on the merits. The second, when the plaintiff's right to the remedy is not controverted, but the defendant desires to retain the possession of the property seized. These two methods will be considered in the order in which they are stated. 4. Where there are irregularities or defects in the plaintiff's application or proceedings the defendant should move on the plaintiff's papers alone. In such case the plaintiff cannot introduce additional affidavits to strengthen his case ; but the attachment must stand or fall upon the facts otiginally presented to the judge who granted the warrant.' There is, however, one exception to this rule, to the effect that where there has been a change in the relation and condition of the parties since the attachment was issued, ^ch change may be shown 'by additional affi- davits on the part of the plaintiff? 6. Where the motion to vacate is based solely on the plaintiff's'papers, such papers will be taken as true, being uncontradicted, and if they establish a prima facie case, the attachment should stand ; but they will be strictly con- strued against the plaintiff.' 'Hill T. Bond, 22 How., 272; ^ Dickinson v. Benham, supra. Brewer v. Tucker, 18 Abb., 76; » Hathorn v. Hall, 4 Abb., 227; Dickinson t. Benbam, 20 How., 343, Moers v. Morro, 17 How., 280, 29 12 Abb., 168. Barb., 361. § XI.] ATTACHMENTS. 447 6. The defendant is the proper person to make such motion, as a third party can take no advantage of the plaintijff's irregularities ; but if the defendant has parted with his interest in the property attached, as by an abso- lute and unconditional sale he cannot move to discharge.' The fact, however, that the defendaut has made an assign- ment of the goods for the benefit of creditors, either before or after the attachment, will not preclude his making the motion, as he has a residuary interest in the proceeds of such goods after his creditors are paid.^ A subsequent attaching creditor cannot move to discharge an attachment issued in a prior suit, on the ground that it was irregul'arly issued. He has no standing in court to make such a motion by petition or otherwise.' Neverthe- less, if the prior attachment is founded on fraud, or any thing that amounts to a fraud, upon the rights of other cre- ditors, they may move to have such attachment vacated.* ■ 7. As in case of other provisional remedies the defend- ant may move to vacate at any time before judgment, and it is held that he may make such motion even after judgment.* But if the motion is for irregularities in the application or proceeding it should be made at once, or it will be deemed to have been waived. Thus, where an attachment is issued against one as a non-resident debtor, when, in fact, he is a resident, it is an irregularity merely and must be taken advantage of at the first opportunity, or it will be waived.* 8. Where the warrant , was granted by a judge upon an Rx farie application, the motion to vacate the same, based upon the plaintift''s papers solely, may be made to such 1 Furman v. Walter, 13 How., 350. Ketchum t, Ketohum, 1 Abb., N. S., iiBrewerv. Tucker, 13 Abb., 76; 157. Dickerson v. Benham, 20 How., 843 ; * Reed v. Ennis, 4 Abb., 393. 10 Abb., 390; Gasherie v. Apple, 14 5 Thompson v. Culver, 15Abb., 97; Abb., 64. . 24 How., 286 ; 38 Barb., 442. 8 Isham v. Ketchum, 46 Barb., 43 ; « Lawrence v. Jones, 15 Abb., 110. 448 jeROVISIONAL EEMEDIES. [Oh. IV. judge, at chambers, without notice, or it may be made to the court, upon the usual notice of eight days.' The power of a judge to vacate a warfant, ex 'parte, should be most carefully exercised, and an order once granted should not be vacated or set aside, without notice tp the adverse party, except in extreme cases where the delay required by the notice would work great injury. Where the motion is made on notice, a county judge has no authority to hear it.^ (See forms of notice, appendix No. 106). 9. Where the motion to vacate the attachment is made on the original papers, and the defendant makes an affi- davit to procure an order to show cause, instead of giving the ordinary notice, this will not entitle the plaintiff to introduce new affidavits.^ 10. Where the attachment is set aside for irregularity, it will afford no justification to the party at whose instance it was issued, and he becomes a trespasser oh initio, and the return of the property will only go in mitigation of damages. But if the warrant is regular on its face, and issued by competent authority, it will protect the officer.* The court may require, as a condition of setting aside the attachment, that the defendant stipulate that he will not bring any action on account of the issuing of the attach- ment, other than an action on the undertaking, filed when the attachment was issued for such actual damages as he may have sustained.^ 11. Where the material facts in the plaintiff's affidavits are sworn to from information and belief, the attachment issued thereon will be set aside as irregular.® 'Code, § 324; see Qayuga Bank V. 'See Rigney v. Tallmadge, 17 Warfield, 13 How., 440. How., 556; Decker v. Judson, 16 2 Rogers v. McElhone, 20 How., N. Y. R., 446 ; Williams v. Biel, 5 441 ; 12 Abb., 292. Duer, 603. 'Brewer V. Tucker, 13 Abb., 76. « Hill v. Bond, 22 How., 272; 4 Kerr t. Mount, 28 N. Y; R., 659. Brewer v. Tucker, 13 Abb., 76, ' §XI.] ATTACHMENTS. 449 12. Where the defendant moves for a vacation on the plaintiff's papers, without introducing any opposing aflo.- davits, and fails in his liiotion, he may, if a proper case be shown, have leave to renew his motion on the merits. It rests, however, in the discretion of the court, and will not generally be granted, unless good faith be shown, and strong reason for such indulgence. As a general rule, the party moving for specific relief is bound, on such application, to present his whole case, and to exhaust all his grounds for interference.^ 13. Where the plaintiff's proceedings are regular, and, his application establishes a ^Jnwwf /acie case, the defend- ant must base his motipn for a vacation of the warrant, upon facts extrinsic to the case, as made by the plaintiff. Such facts may be presented by affidavits.^ The decisions to the contrary, are superseded by the amendment of 1867. Such affidavits may show a want of jurisdiction, or insufficiency in the plaintiff's case, or may contradict the statements of the latter, so as to determine generally, the propriety of granting the attachment.^ ; 14. Where the motion is made by the defendant upon affidavits, it must be made to the court, and on a notice of eight days. A county judge has no power to hear such motion.* 15. If the motion be made upon affidavits on the part of the defendant; but not otherwise, the plaintiff may oppose th,& same by affidavits or other proofs, in addition to those on which the warrant was granted.' 16. It is not yet fully settled whether the plaintiff may, in addition to rebutting the defendant's affidavits, state ad- ■ Desmond v. Woolf, 6 Leg. Obs., SBoschery. RouUier, 4 Abb., 396. 389. * Rogers v. MoElhone, 20 How., 2 Houghton V. Ault, 16 How., 77 ; 441 ; 12 Abb., 292. Brewer t. Tucker, 13 Abb., 76 ; » Code, U 205, 241. Hill V. Bond, 22 How., 272. 450 PROVISIOKAL REMEDIES. [Ch. IV. ditional facts upon which the attachment can be sustained.^ It may be safely stated, however, that the plaintiff should be strictly limited to controverting the defend- ant's affidavits, or to supporting his original cause ; and that he cannot introduce grounds in support of the remedy, different from those adduced at the outset.^ 17. The issuing of an attachment against a debtor on the ground that he is a non-resident when, in fact, he is a resident of the state is an irregularity only, and must be taken advantage of at the earliest opportunity, or it will be waived.^ Where a defendant residing in Canada, was inveigled into this state by a trick for the purpose of effecting a service of a summons upon him, the service of the summons and all proceedings dependent thereon, were set aside and a warrant of attachment vacated.* 18. While every allegation on which the attachment was granted may be disproved by the defendant on a motive to vacate, the court will not on such motion try the merits of the action in which the attachment is issued.' , 19. If the plaintiff's undertaking and affidavits used on the application for the attachment have not been filed within the time required by the rule of the court, the defendant may move the court to vacate the proceedings for irregularity, with costs.° But where the plaintiff inad- vertently omits to comply with this rule, he may be permitted to cure the defect, with or without costs, even upon the hearing of the motion to vacate.^ ' It is held in the following cases ' Lawrence v. Jon'es, 15 Abb., 110. that he can : Furman v. Walter, 13 * Metcalf v. Clark, 41 Barb., 45 ; How., 348; Genin v. Tompkins, 12 see Garbutt v. Hanff, 15 Abb., 189. Barb., 282; Morgan v. Avery, 7 s Bank of Commerce v. Rutland Barb., 656; see contra, Dickinson R. R., 1(5 How., 6; Bosoher v. V. Benham, 19 How., 410; Wilson v. Roullier, 4 Abb., 396. Britton, 6 Abb., 34. «Sup. Court, rule 4. 2 Granger v. Schwartz, 11 Leg. 'Kissam v. Marshall, 10 Abb., Obs., 346; N. Y, & Erie Bank v. 424; and see Leffingwell v. Chave, Codd, 11 How., 221; Wilson v. 5Bosw., 703 ; 19 How., 55 ; 10 Abb., Britton, 6 Abb., 33. 472. § XI.] ATTACHMENTS. ^452 20. Where the cause is removed intp the United States court, subsequent to the issuing of the attachment, such attachment is not thereby discharged. The sta- tute preserves its force, but any subsequent steps neces- sary in relation to it should be the subject of a special application,^ 21. The giving of an undertaking under section 241", has the effect of waiving all irregularities ; but it does not destroy the defendant's right to move, to vacate on the ground of a fatal objection.^ 22. Where an attachment has been vacated on motion of the defendant, and on the merits, another appli- cation by the plaintiff on substantially the same facts, whether before the same or another court, will not be entertained.^ 23. Where the plaintiff's proceedings are regular and the attachment has been properly issued, the defendant can only have a discharge thereof upon giving the secu- rity as required by the foregoing section. The motion cannot be made until the defendant shall have appeared in the action ; but it may be made at any time afterwards and before judgment. It is too late for the. defendant to avail himself of the remedy, after judgment for the •plaintiff in the action, even though an appeal has been taken.* 24. The application is purely exparte, but the court may and ordinarily should, direct that notice be given to the plaintiff. Should he attend, he may be heard in opposi- tion to granting the discharge, but he is heard only as a matter of favor, and not of strict right.' Nor has 1 Carpenter t. N. Y. & N. Haven * Spencer t. Rogers's Locomotive B. K. Co., 11 How., 481. Works, 13 Abb,, 180. ' ^Garbuttv. Banff, 15 Abb., 189; Bganborn v. Elizabethport Manu- see, however, Haggart v. Morgan, 4 faoturing Co., 22How., 106; 13 Abb., Sandf., 198; Aff 'd 1 Seld., 422. 433. sSchlemmer v. Myerstein, 19 How., 412. 452 PROVISIONAL EEMEDIES. [Ch. IV. the plaintiff any right to except to tlae sureties in the undertaking; but the court should require the usual justification and acknowledgment on their part*^ (See form IJfo. 107). 25. Before thp defendant is entitled to a discharge of the attachment he must present to the officer or court ^n undertaking executed, by at least two residents and free- holders or householders in this state. Where the pro- perty attached is equal to, or exceeds the plaintiff's claim, the undertaking is to be in double the amount claimed by the plaintiff" in his complaint, but if it is made to appear, by, affidavit, that the property is less than the amount, claimed by the plaintiff, it is; to be appraised, and the undertaking given for double the amount so appraised. (See form No. 108). 26. The undertaking should have attached thereto or indorsed thereon an affidavit, by the, sureties, to the effect that they are residents and householders, or freeholders, in this state, and worth severally the sum specified in the undertaking over all debts and liabilities. And , the undertaking must be proved or acknowledged in like manner as deeds of real estate.^ However, a defective compliance, or non-compliance with this rule, may be remedied by amendment.^ 27. It is not essential that the defendant should be a party to the undertaking. It has been held that co- defendants, jointly liable upon the dema,nd in suit, but who are residents, are not disqualified from being sureties in the undertaking.* Also, that if one of the sureties in an undertaking of this, kind becomes insolvent, the court has no power to order additional sureties." Where the ' See rule 6. * Mortimer v. Brunner, cited in 2 Sup. Court, rule 6. Hoff. Pro. Rem., 456. sConkliu V. Dutoher, 5How.,386; ^Dudley v. Goodrich, 16 How., 1 Code R. (N. S.), 49. 189; 7 Abb., 26. § XI.] ATTACHMENTS. 453 plaintiff, on affidavits showing that one of the sureties in an undertaking given under this section, was an infant at the time he executed the same, obtained an order to strike out the defendant's answer in the action, unless h^ furnished an undertaking with two sufficient sureties, and such undertaking not having been filed, the plaintiff took judgment against the defendant in the action as for want of an answer, it was held that the conditions of the uiidertaking were broken, and the sureties liable to an action, when judgment was obtained and execution returned unsatisfied in the attachment suit; and that the proper remedy of the sureties was to have applied for leave to defend that suit for their own protection, but that the facts constituted no defense to an action against them upon the undertaking.^ 28. The sureties in the undertaking are estopped from impeaching its validity by disproving any fact therein recited which may be material or necessary to sustain it.* Thus, in a suit on an undertaking given to obtain the release of property seized upon an attachment regularly issued against a' person as a non-resident debtor^ the defendants are estopped from denying that the person proceeded against is a non-resident, since the fact of non-residence is not jurisdictional.* But, wh^re the' undertaking is given to procure the discharge of an attachment which is void for want of jurisdiction of the subject matter, the whole proceeding being a nullity, the undertaking is of no effect whatever, and the sureties, when sued on it, may defend on that ground.* 29. Although the above section contemplates that the iJewett V. Crane, 35 Barb., 208; 'Haggart v. Morgan, 4 Saudf., 13 Abb., 97. • . 201 ; Aff'd, 5N. T. R., 422. 2 Coleman T. Bean, 14 Abb., 88; * Coleman v. Bean, 32 How., 370; same case in Court of Appeals, 32 per Smith, J., Cadwell v. Colgate, 7 How., 870. 'Barb., 254; Homan v. Brinkerhofff IDenio, 184. 454 PROVISIONAL REMEDIES. [Ch. IV. giving of the undertaking shall be preceded by the issuing of an attachment, and shall accompany an application to discharge it, and also directs that the undertaking shall be delivered to the court or officer, the non-compliance with those provisions is but an irregularity which the par- ties may waive. Therefore, the debtor may, with the plaintiff's consent, waive the issuing of the attachment and the levy under it, and give the undertaking as prx)- vided above directly to the plaintiff, and thereby save the damage to his credit, besides the annoyance and expense incident upon the seizure of his property. By such an arrangement the plaintiff will be debarred from suing out another attachment and procuring other security from the defendant in the same action, and the defendant, and his sureties will be estopped from repudiating the under- taking.^ 30. Nor will the sureties in such undertaking be allowed to show in an action against them on such under- taking, that they were induced to execute the same by the false and fraudulent representations of the defendant, unless it appear that the plaintiff was a party to, or know- ing to, such fraud. The plaintiff, having received the undertaking upon a valid legal consideration, and being ignorant of the fraud, and in no way responsible for it, cannot be deprived of the benefit of the undertaking by any such fraud.^ 31. The defendant in the attachment suit is not pre- cluded, by giving the undertaking as herein provided, from moving to set the attachment aside on affidavits.' 32. Where the property attached is of less value than the plaintiff's demand, the appraisement should be made by the sheriff with the assistance of two disinterested free- iColeman v. Bean, 32 How., 370. see otherwise, Haggart y. Morgan, 2 Id. ' 5 N. Y. R., 428. sGarbuttv. Banff, 15 Abb., 189; §XI.] . ATTACHMENTS. 455 holders, and notice of the time and place thereof should be' given to the attorney of the plaintiff. 33. Whenever a motion shall be made to vacate, mo- dify, or set aside a warrant of attachment, it is the duty of the judge before whom such motion shall be" made, to render and make known his decision on such motion within twenty days after the day upon which such motion shall have been submitted to him for his decision.* (For forms herein, see appendix Nos. 106 to 110). iCode, §401, sub 8. 456 PROVISIONAL REMEDIES. [Ch. IV. SECTION xn. EET0EN OF WARRANT. SHERIFF'S FEES. cdSTS AND ALLOWANCES. 1 . § 342. When sheriff to return warrant, etc. 2. §243. Sheriff's ffeea. 3. Liable for errors in return. 4. What fees sheriff entitled to. 5. Fees of appraisers on inventory. 6. When sheriff not entitled to fees. 7. When entitled to same compensation as trustees. 8. When to be allowed disbursements for attorneys, etc. 9. Plaintiff's attorney liable for sheriff's fees. 10. Sheriffmay assign claim for fees. 11. Sheriff to state items and verity. 12. Costs and allowances in the action. 13. Extra allowance, how obtained. 14. Cannot be had when attachment set aside. 15. Balance t6 be delivered to defendant. 1. " When the warrant shall be fully executed or dis- charged, the sheriff shall return the same with his pro- ceedings thereon, to the court in which the action was brought." 1 (See form No 97). 2. " The sheriff shall be entitled to the same fees and compensation for services, and the- same disbursements, under this title, as are allowed by law for like services and disbursements under the provisions of chapter five, title one, and part two of the revised statutes. Provided, however, that no poundage or other compensation shall be allowed to the said sheriff (except his fee of fifty cents for making the levy, and such compensation for his trouble and expense in taking possession of and preserving the property as shall be fixed by the oflicer issuing the attachment), unless a settlement shall be had, or a judg- ment shall be recovered and collected in whole or in part, in the action in which the attachment in this title referred 1 Code, g 242. §XII.] ■ , ATTACHMENTS. 457 to shall have issued. And .where a judgment shall have been recovered and collected in part only, the amount of his poundage shall not be estimated upon any sum greater than the sum collected upon such judgment. And where a settlement shall be had, the amount of his poundage shall not be estimated upon any sum greater than the amount at which said settlement is made."* All the above section, after the first sentence was added in 1865. 3. In making the return the sheriff acts ministerially and is liable to the injured party for any error therein.^ 4. The fee. for serving the attachment is fifty cents, with such additional compensation for the trouble and expense of the sheriff, in taking possession of and preserv- ing the property attached, as the officer issuing the warrant shall certify to be reasonable. The sheriff is also entitled to nineteen cents for a copy of the attachment^ and twelve and a half cents for returning it. For selling any property attached and collecting the proceeds, for two hundred and fifty dollars or less, two and a half per cent ; and for all over that sum, one and a quarter per cent. For advertising the same for sale, two dollars ; or if the action be settled, or the sale stayed, after advertising, one dollar; and where the sale of real estate is advertised in a news- paper, the fees paid by the sheriff to the printer not exceeding the sum allowed by law.* 5. For making and returning an inventory and appraisal, such compensation is allowed to the appraisers, not ex- ceeding one dollar to each per day, for each day actually employed, as the officer, issuing the attachment shall allow, and twenty-five cents for drafting, and twelve and a half cents for copying the inventory.^ 1 Code, ? 243. » 3 K. S. (5tli ed.), 926. 2 Houghton V. Swarthout, 1 Denio, *Id., 3 R. S., 646, 633. 589, and cases. 30 458 PROVISIONAL REMEDIES. [Ch. IV. 6. Where an attacliment has been issued and served, a sheriff is entitled to commissions on a settlement of the action, upon the amount which the debtor pays the credi- tor, although it does not come to his hands, as well as his necessary disbursements.^ But where he neither collects nor sells, and there is no settlement, he cannot claim poundage, and is merely entitled to his fee for the service of the attachment, and to his reasonable expenses, and a compensation for his trouble in taking^ possession of and' preserving the property levied upon, to be allowed by the officer granting the warrant.^ Where the property at- tached was a vessel, it was held that the charge for watch- ing it ought not to he more than that allowed the United States marshal for the same service, which is two dollars and fifty cents per day.* 7. Where the attachment is levied upon property not capable of manual delivery, and the sheriff is required to perform, in respect .thereto, services similar to those re- quired of trustees under the revised statutes,* he is held to be entitled to the same compensation allowed to such trustees, for like services ; that is, all necessary disburs- ments and a commission of five per cent, on all moneys which come to his hands.° But where he performs only the duties which usually devolve on a sheriff, as where he serves the attachment, by delivering a copy and notice, and the action is afterwards settled, he is entitled to only the same poundage as in ordinary cases. ^ In a recent case it was held, that where the sheriff attached the in- terest of the defendant in a mining company, and the I Trenor v. Faehiu, 20 How., 405 ; 368 ; Osborne v. Heyer, 2 Paige, Ironworks, ,8 Paige, 385; B.owery 342. - Bank Case, 5 Abb., 417. " ' Lottimer v. Lord, supra ; Cagger * Attorney General v. Bank of v. Howard, supra. Columbia, 1 Paige, 517; see, how- ever. Bowery Bank Case, 5 Abb., 416. §!•] RECEIVERS. 4g9 of an adverse party, and that the property, or its rents, and profits are in danger of being lost or materially in- jured or impaired.! The receiver of a bank, or insurance company, or corporation having power to make loans upon pledges or deposit, may be appointed on the appli- cation of the attorney general, or of any director, or of any stockholder.^ Where a limited partnership is in- solvent, and neglects to place its assets in the hands of a trustee for equal distribution among its creditors, such creditors may apply for a receiver. But all the creditors must join, or the plaintiff must sue for himself and all other creditors who will join. I^o single creditor can maintain the action in his own name.* The same rule does not, however, extend to general partnerships.* The receiver can only be appointed on the motion of an in- terested person. A stranger cannot make a nomination.* But where the persons nominated by the party are re- jected, the court may select a proper person.* 8. As a general rule, a receiver cannot be appointed until the action has been commenced.' But, in extreme cases, it seems that a receiver of an infant's or lunatic's estate may be had even before the commencement of the- action.* So, where the defendant has fraudulently with- drawn or condealed himself, or designedly keeps out of the way to avoid the service of process, a receiver may be appointed before action is commenced. But in the latter case, the agent or attorney of the defendant, if he has any, should be notified of the motion for the appoint- 1 2 244, supra. ' Smitli t. N. Y. Consolidated 2 3 R. S. (5tli ed.), 764. Stage Co., 28 How., 208. 8 Levy V. Ley, 6 Abb., 89; La- ' Kattenstroth v. Astor Bank, 2 chaise v. Lord,.l Abb., 213 ; 4 E. D. Duer, 632 ; Anon., 1 Atk., 578 ; see Smith, 612, McCarthy v. Peake, 9 Abb., 166; *Crippen t. Hudson, 13 N. T. R., Gibson v. MUrtin, 8 Paige, 481. 161; see contra, Dillon v. Horn, 5 'Hx parte Whitfield, 2 Atk., 315 ; How., 35. Pitcher t. Hilliard, 2 Dick., 580; 6 Bdw. on Reoeiyers, 22. McCarthy v. PeakB, 9 Abb., 166. 470 PROVISIONAL REMEDIES. [Ch. V. ment.' Where the action is commenced by publication, the application for a receiver will not usually be enter- tained until the service is completed.^ But v^here the property is of a perishable nature, or where irreparable injury may result from a delay, the receiver may be: appointed at once, without waiting for the service of the process.' 9. By the ancient practice of the court of chancery, in England, a receiver was not appointed until after the coming in of the defendant's answer. But it is now well settled, both here and in England, that a receiver can be appointed before answer, provided the complainant can show that he has an equitable claim to the property in controversy, and that a receiver is necessary to preserve the same from loss.* 10. In ordinary cases, the motion for the appointment of a receiver should be made upon the usual notice of eight days, or, in a case of urgency, by an order to show,, cause.'' But, in special cases, a receiver may be appointed without notice to the defendant where irreparable injury to one or both parties would flow from delay, as where the defendant has left the state and cannot be served, and his solicitor declines to receive notice, and there are rents to be collected ; ^ or where the defendant has fraudulently withdrawn himself from the state.' In order to justify an appointment, ex parte, the circumstances must be peculiar and demand immediate action; and these facts should 1 Quinn v. Gunn, 1 Hogan, 76 Maguire t. Allen, 2 Ball & Bea., 75 Sandford t. Sinclair, 8 Paige, 374 574; see West v. Swan, 3 Edw. Ch., 420 ; see Field v. Ripley, 20 How., 26. 3 Edw. Ch., 893. , 6 McCarthy v. Peake, 9 Atb., 166 ; 2 Sandford t. Sinclair, 8 Paige, Dorr v. Noxon, 5 How., 29 ; Kemp 374 ; 3 Edw. Ch., 398. t. Harding, 4 How., 178 ; Gibson v. 5 People T. Norton, 1 Paige, 17 Tanfield v. Irvine, 2 Rues. Ch., 119 see McCarthy v. Peake, 9 Abb., 166 Sandford v. Sinclair, supra. 874, *Bloodgood V. Clark, 4 Paige, Martin, 8 Paige, 482. " People V. Norton,. 1 Paige, 17. 'Sandford v. Sinclair, 8 Paige, §IJ. RECEIVERS. . "471 appear upon the papers on which the application is made.^ In such cases, the receiver is only appointed for the pro- tection of the property pendente lite, and the order will not assume to make a final disposition of the property with- out a hearing of the parties.^ After judgment for default of an answer, a receiver may he appointed without notice.^ (See forms M"os. 112, 113). 11. Where a receiver has been appointed in one action, and a motion is made to extend such receivership to another action aflfecting the same property, it is not necessary to give notice to the plaintiffs in the first suit.* But if the motion is for the appointment oi another person as "receiver of the same property, a notice should be given to the parties at whose instance the first receiver was appointed.' 12. A receiver may be appointed in an action although the coiiaplaint contains no prayer for one.^ But, where it is apparent at the commencement of the action, that a receiver may, by even a possibility, become necessary or proper, the better course would seem to be to demand a receiver pending suit.' In Tillinghast & Sherman's Prac- tice, however, this course is not commended, but it is there 'thought that under the Code the complaint should demand final relief only.' 13. The motion may be based on the complaint alone, if it be properly verified and contain the necessary allega- tions; but, in most cases, a:^davits will be necessary, either in connection with the complaint or alone.'' Under ' People V. Norton, 1 Paige, 17 ; ^ Lottimer t. Lord, 4 B. D. Smith, Gibson V. Martin, 8 Paige, 482. 183. ^Kemp V. Harding, 4 How., 178 ; s M'Crackan t. Ware, 3 Sandf., Dorr V. Noxon, 5 How., 29. 688 ; Bowman v. Bell, 14 Sim., 392 ; s Austin T. Figueira, 7 Paige, 56; see Edw. on Receivers, 21. Nesmith v. Halsted, 11 Paige, 647. 'Edw. on Keoeivers, 22. 4 Walsh T. Walsh, 11 Irish Eq. R., 8 i th. & Sher. Pr., 745. 607. "1 Til. & Sher. Pr., 745 ; 1 Whitt. P., 529 ; Edw. on Keoeivers, 77. 472 PROVISIONAL REMEDIES. [Oh. V. the former practice, where. affidavits were used inconnejE- tion with the complaint, such affidavits could not change or enlarge the case as made by the pleading.^ A sworn petition may, also, be ma,de the basis of an application, instead of affidavits.^ So, the motion may be made on the defendant's answer where the admissions therein are of such a character as to justify such practice.* 14. In mortgage cases, the moving papers should show that some party to the action, or tenant under him, has possession, that the premises will not bring the amount of the mortgage debt on sale, and that the person who is personally liable for a deficiency is not able to meet such liability.* In /partnership cases the moving papers should show eithei; that the firm has been dissolved, and that the partners cannot agree upon the settlement of its affairs, or a dissolution should be prayed for and facts alleged upon which the court will decree the same.^ And, in all cases, the moving papers should, establish an apparent right to property which is the subject of the action, that such property is in the possession of an adverse party, and that the property, or its rents and profits, are in danger of being lost, or materially injured, or impaired.^ The facts and circumstances relied upon as the ground of the appli- cation, must be fully and positively set forth, mere conclusions, or statements upon information and belief, standing alone, will not, as a general rule, be sufficient.' 15. The application must, in all cases, be made to the court. Though we are not aware of aijy express decision to this effect,' yet the entire absence of any authority, ' Hayea v. Heyer, 4 Sand. Ch., 485. Ch., 385 ; Jackson t. DeForeat, 14 a See Sea Ins. Co. v. Stebbins, How., 83. 8 Paige, 566. *§ 244, sub 1; see Goodyear v. 'Sprattv. Ahearne, Hayes & Betts, 7 How., 187 ; People T. Mayor Jones, 800; Edw. on Eeceivers, 77. of N. Y., 10 Abb., Ill; Smith v. * Sea Ins. Co. t. Stebbins, 8 Paige, Wells, 20 How., 158. 566. ' See Livingston v. Bank of N. T., "Garretaon v. Weaver, 3 Edw. 26 Barb., 304; 5 Abb., 338. §1.]^ RECEIVERS. 473 statutory or judicial, for the allowance oif a receiver by a judge out of court, and the unvarying course of practice, are conclusive on this point.'^ 16. The court may exercise its power either by making the appointment directly, or by ordering a reference. Where the latter course is pursued, the court'may direct the referee either to select and report a suitable person for such receiver, or to appoint such receiver himself, with- out further intervention of the court.^ The latter course appears to be by far the most usual. Where it is referred to a referee to report a proper person to be appointed a receiver, an order of appointment by the court is neces- sary ; but wh,ere the reference is to appoint a receiver and take the requisite security, the appointment by the referee needs no confirmation by the court, though any party interested may petition to have the appointment reviewed by the referee.* An order of reference to appoint a receiver is proper in a partnership case ; * but not in pro- ceeding supplementary to execution under section 298, according to the decision of Mr. Justice Hofiman in Wood V. Lambert.' In that case, the learned judge held that the authority was conferred upon the judge and not upon the court, and that he could not delegate it. That he could, under section 300, order a reference to report evi- dence or facts, as to who was a proper person to be appointed, and the proper security, but that a reference to appoint, under that section, was void. (See forms IsTos. 114 to 118, also No. 122). 17. The order of reference should be entered with the clerk, and a certified copy thereof served on the referee ; * 11 Til. & Sher. Pr., 746; 3 K. S. 'Matter of Eagle Iron Works, 8 (5tli ed.), 764. Paige, 385. 2 Matter of Eagle Works, 8 Paige, * Welter v. Sohlieper, 7 Abb.,. 92. 385; Welter v. ScKlieper, 7 Abb., 6 Cited in Hoff. Pro. Bern., 498. 92; Jackson v. DeForrest, 14 How., «! Barb. Ch. Pr., 670; Edw. on 82. Eeceivers, 81. 31 474 PBO VISIONAL KEMEDIES. [Ch. Y. copies should also be served upon all the parties interested ; for such parties may have a right to appeal, and the time of such right will be limited only from the time of service of a copy, or a v^ritten notice of entry .^ If such interested parties have appeared by attorneys the copies of the order may be served upon such attorneys, but otherwise the service should be personal.^ 18. The moving party should obtain from the referee a summons, notifying the parties to attend. And if the personal attendance of the party against whose property the receiver is to be appointed, is required for thepurpose of ascertaining what property is subject to the receiver- ship, that fact should be stated in the summons or an underwriting, and the date and purport of the order should be introduced.^ Under the former practice such summons for the party to attend might be served on his solicitor, provided he had appeared by a solicitor f but I take it, that under the present practice the service should be personal, inasmuch as a disobedience of the summons brings a party into contempt.^ (See form, lSro.119). 19. Where a party has been summoned and does not attend, the referee may proceed, ex parte ; and the pro- ceedings will not be opened to review, unless a proper excuse be shown and the costs of the proceedings be paid.* 20. "Where the parties have been duly summoned and the referee is ready to proceed, the moving party should lay before the referee, a written proposal containing the names and addresses of the intended receiver and his sureties, with an affidavit, stating the particulars of the property, over which the receivership is to extend, and ' Tyler V. Simmons, 6 Paige, 127 ; *Edw. on Receivers, 83, and Holoomb T. Jackson, 2 Bdw. Ch., cases. 620 ; Edw. on Eeceiyers, 82. 6 See Code, I 418. 2 Edw. on Receivers, 82 ; Tyler v. « Rule 104 of the New York Simmons, supra. Chancery. » Edw., on Receivers, 82 ; Holooml) V. Jackson, 2 Edw. Ch., 620. §1.] RECEIVERS. 475 the value thereof so far as he is able to state it.' The opposing party, or any party interested, may present similar proposals, on his part, and may introduce counter affidavits or other evidence as to the actual value of the property, or to contradict any statement on the part of the moving party.'' (See form H"o. 120). 21. It is the duty of the referee to appoint, or to report to the court, where the reference is for that purpose, the person whom he thinks the most fit, whether such person shall have been proposed by the one party or the other.* But other things being equal, he should give, the prefer- ence to the nominee of the party conducting the refer- ence.* Where none of the parties proposed are deemed proper, it seems that the court or referee may appoint some person of his own selection." A person not inter- ested cannot propose a receiver ; ^ nor can a party propose himself without first obtaining leave of the court.'^ (See form of report, Nos. 121, 123). 22. Security Vill invariably be required of the person appointed receiver, to insure the faithful performance of his duties, and it will not be dispensed with even where all the interested parties consent.* "Where a reference is order, either to appoint, or to report to the court, it is the duty of the rfeferee to fix the amount of security, and to approve the sureties.' Where the reference is to report a prbper person to be appointed receiver, and to approve of . the sureties to be given by him, the referee is to fix the amount of security, and pass upon the sureties, and to report the same to the court. If the sureties are not satis- 1 Bdw. on Eeoeivers, 87 ; 1 WUtt. « Smith v. N. T. Consolidated Stage Pr., 533. Co., 28 How., 208. 2 Id. 6 Att'y Gen. v. Day, 2 Madd., 246. SL'Espinasse v. Bell, 2 Jao. & i McCarthy v. Peake, 9 Abb., 168, Walk., 436. note. *Edw. on Receivers, 87; Wilson n Til. & Sher. Pr, 762, and cases. V Pee, 1 Hogan, 322. » Edw. on Receivers, 90. 476 ' PBO VISIONAL REMEDIES. [Ch. V. factory to the referee, the party may present an amended proposal.^ 23. As has been before stated, the moving party should ■present with his proposal of the nominee and his sureties, an affidavit stating the particulars of the property over which the receivership is to extend, and the value of that property so far as he is able to state it, in order to guide the referee in fixing the amount of the security to be given. The referee may also examine the defendant, or other person, as a witness, to get at the amount of property and may compel the production of books and papers."* Upon a reference to appoint a receiver in a creditor's suit, the referee may require the defendant to answer under oath as to the property in his possession or control, and may examine witnesses to ascertain if there is any in the hands of a third person, to which the receiver is entitled. But the examination must be confined to the subject of property, and the defendant may refuse to answer any question bearing upon the merits of the action.^ After the assets have been delivered to the receiver, the usual examination upon the order to appoint a receiver should not, in general, be renewed.* 24. The usual course is to require two sureties ; ° but one surety has been treated as sufficient in this state.^ The receiver is also to execute the undertaking or bond. The sureties of a receiver must be within the jurisdiction, and must be real and substantial persons, and capable of contracting ; therefore infants, lunatics, idiots and married women, are inelegible.' It is proper to allow the moving party to be one of the sureties for a receiver, if he is lEdw. on Receivers, 89. * Hudson t. Plets, 11 Paige, 180. 2Edw, on Receivers, 90. ^'Ei.vi. on Receivers, 89. 'Fltzhugh V. Everingham, 6 "See Mechanics Ins. Co. case, 5 Paige, 29; Copous v. Kauffman, 8 Abb., 446. Paige, 588 : Gihon V. Albert, 7 Paige, *Edw. on Receivers, 93 ; 1 Barb. 278. ' Ch.Pr., 673. § I.] RECEIVEE8. 477 otherwise qualified, but the practice is not commended by Mr. Edwards, in his admirable work on Receivers, on the ground that it might tend to give such party an undue control over the acts of the receiver.' The security musf be personal, and, therefore, the referee cannot take from the receiver an assignment of prope'rty, as a substitute for sureties.^ Nor can a corporation be accepted as surety.* If the sureties, or either of them, are rejected, a new surety, or sureties, must be proposed and approved. 25. When the referee has decided upon the person to be appointed receiver, and fixed the amount of security to be given, the prevailing party should prepare the proper undertaking. It is usually in the foAi of a penal bond conditioned, that the receiver shall, in conformity to the rules of the court, duly file his inventory, and annually or oftener, if required, account for what he shall receive or have in charge as receiver in the cause, and pay and apply what he shall receive or have in charge, as ordered by the court ; and, in all respects, faithfully to discharge his duties as receiver. This bond when executed by the receiver and his sureties, must be duly proved or acknow- ledged in like manner as deeds of real estate, before the same can be received or filed, and the sureties should justify by an af&davit of justification annexed to the bond and to be filed therewith.* But if this rule is not com- plied with, or is defectively complied with, the defect may be remedied by amendment.' The approval of the referee should be indorsed on the bond. (See form No. 125). 26. The bond must be filed with the referee's report, and this should be attended to by the attorney for the prevailing party, since the receiver may be restrained 1 See Edw. on Keoeivers, 94. * Sup. Court, Rule 6. 2 Meade v. Orrery, 3 Atk., 235. sgee Conklin v. Dutoher, 5 How,, 8 Manners v. Furge, 11 Beay., 30. 386 ; 1 Code E. (N. S.), 49. 478 PROVISIONAL REMEDIES. [Ch. V. from acting until it is filed.^ But if the filing is cmiitted through inadvertence, the court may order it to be filed, nunc pro tunc.^ 27-. The referee having made the appointment, and taken the proper security, or having selected the proper person to be recommended to the court for appointment, and fixed the amount of security, according to the terms of the order of reference, reports the facts to the pourt. Where the order directs the referee to report a proper person to be appointed a receiver, and to approve of the sureties to be given by him, the appointment is not com- plete until the report is confirmed by the special order of the con rt.^- But wfiere the referee is ordered to appoint a receiver, and to take from him the requisite security, no order of confirmation is necessary. The receiver is con- sidered as appointed from the moment the bond taken by the referee, and the referee's report are filed, and may immediately enter upon the duties of his office.* (See forms JSTos. 121, 123, 124). 28. If either party is dissatisfied with the receiver appointed by the referee, he cannot except to the referee's report ; his only recourse is to make a special application to the court for an order directing the referee to review his report.^ This application may be made either by petition or motion.* "Where made by petition, such petition should set forth all the grounds of objection, and contain a prayer that the referee review his report. Notice of the application must be served on all the parties interested.'^ 29. In order to support an objection to the referee's 1 Mechanics Ina. Co. case, 5 Abb., *Id. ; Edw. on Eeceivers, 95. 446 ; see Steele v. Sturges, id., 444. ^ in j-e Eagle Iron Works, 8 Paige, 2 Whiteside v. Prendergast, 2 385. Barb. Ch. B., 471. 61 Barb. Ch. Pr., 674. sin re Eagle Iron Works, 8 Paige, ' Id. ; Edw. on Receivers, 96. 885. § I.] RECEIVEK8. 479 appointment of a receiver, a strong case of disqualification is necessary.^ In fact, it is a settled rule, in this state, that the court will not set aside the appointment, unless the person selected by the referee is legally disqualified, or his situation is such as to induce a belief that the interests of the parties will not be properly attended to by him.^ The decision of the referee will not be disturbed merely because the court may think he could have made a better selection.' If the court should order the referee to review his report, the parties will proceed by proposing a new person or persons, and issuing summons as before.* iTharpe v* Tharpe, 12 Ves., 317. »Id. "In re Eagle Iron Works, 8 Paige, * Smith on Beceiyers, 11. 385. 480 PEOVISIONAL EEMEDIES. [Ch. V. SECTION" n. GENERAL POWEES AND DUTIES OF. 1. When the tit^e vests in receiver. 3. Does not effect liens on the property. 3. When bond is filed, title relates back. 4. Receiver to take possession of the pro- perty, — may appoint agent. 5. Referee to order delivery. 6. What property vests in receiver. 7. Concerning property without the state. 8. Appointed for benefit of all interested. 9. When to apply to the court for instruc- tions. 10. Who may apply for instructions. 11. Notice of application should be given. 12. What attorney receiver may employ. 13. How and when to take possession of property. 14. Court will protect possession of receiver. 15. When receiver to account to prior lien- holders. 16. Actions of ejectment by or against re- ceiver. 17. May let premises and collect rents. 18. When may-continue partnership busi- ness. 19. Not to pay out money without order. 20. Selling bad debts. 21. Purchases by, for the benefit of cestui que trusts. 33. Should apply for leave to sue. 33. Application, on what based. 34. May sue in his own narqp. 25. Must show right; of action in parties^ and his appointment. 26. Vested with all "the debtor's rights of action. 27. Actions to set aside fraudulent transfer. 28. Liability of persons interfering vritb the property. 29. Recovering costs from cestui que trust. 30. Maintaining actions outside the state. 31. Not to defend actions without leave of the com't. 33. Actions agaiast receivers. 33. His duties in preserving property. 34. Filing inventory and accounting. 35. Final accounting, and discharge. 36. Substituting one receiver for another . 37. Compensation of receivers. 1. When the appointment of a receiver has been per- fected by the filing of the report and security, the title to the personal propertj* covered by the receivership vests in such receiver without any assignment or transfer from the prior possessor.^ But not so the real property; that passes only by force of the debtor's own conveyance, which the court has power to compel him to execute.^ Such was the undoubted rule under the former practice ; but it » Porter v. Williams, 9 N. Y. R., 142; 12 How., 107 j.Moak v. Coats, 33 Barb., 498. 2 Chautauque Bank v. Eisley, 19 N. Y. R., 369. §11] RECEIVERS. " 4.QI haa been questioned since the Code. In Porter v. Wil- liams/ Mr. Justice Willard thought that the Code had placed real property and personal property, with reference to this question, on the same footing, and that the appointment operated to transfer real as well as personal property, and Mr. Justice Harris, in Edmonston v. Mc- Loud,^ used language involving the same proposition. "While the title of the receiver might perhaps be sufficient, by the bare appointment to enable him to impeach by ac- tion a fraudulent transfer, yet as to third parties and their rights, the title remains in the debtor until a conveyance. Whatever may be the effect of the appointment alone, it is well settled that the title to real property will pass by an assignment by the debtor to the receiver, made in pur- suance of an order of the court. And an assignment of personal estate, though not strictly necessary, may fre- quently save trouble and can do no harm. 2. The appointment of a receiver does not operate in such a manner as to derange the priority of legal or equi- table liens upon the property. As- the object of the ap- pointment of a receiver is to preserve the property for the person or persons entitled to it, the court will ultimately make such disposition of it as to preserve the legal as well as equitable rights of every claimant. Before the statute of 1845, the appointment of a receiver in a cre- ditor's suit, was treated as an equitable sequestration of the property of the defendant. And even if the tenant of real estate was not a party to the bill, he could be made to attorn to the receiver, and pay the rents and pro- fits to him. Much more could he be so required, when he was a party.^ 3. Upon the receiver's giving the requisite security, his 1 Supra. City Bank t. Schermerhorn, 9 Paige, 2 16 N. T. R., 543. 372 ; see Ins. Co. t. Stebbins, 8 s Wil. Eq. Jur., 334 ; citing Albany Paige, 565. 482 PROVISIONAL REMEDIES. [Ch. V, title to the personal estate of the debtor relates back to the date of his appointment ; or where an order of reference to appoint has been made, to the date of- such order ; and where, between the date of the order and the filing of the security, the property has been levied upon by the sheriff, the court, on motion, will order a return of the property.^ 4. On appointing a receiver, the referee, or court, di- rects the defendant to deliver the property covered by the receivership to the receiver. If the possessor of the property, whether a party or not, refuse to give it up, the receiver must apply to the court for an order requiring him to surrender the same ; and without such an order, he cannot justify a forcible taking of such property.^ After the receiver has obtained the order, he must himself, per- sonally, demand a delivery of the property ; a demand by the plaintiff in the action, his attorney or the referee appointed to see the delivery made, will not warrant an attachment for disobeying the order to deliver.^ He may appoint an agent- to assist him in managing the property, but it would be better to get the direction of the court to that effect.* 5. Where the defendant is directed to deliver over his property to the receiver, under the direction of a referee, it is customary for the receiver to call upon the referee to decide upon the examination Of the defendant, and other evidence, if any is before him, what property, legally or equitably belonging to the defendant, and to which the receiver is entitled under the order of the court, is in the possession of the defendant or under his power and con- trol! And it is the duty of the referee to direct the defendant to deliver over to the receiver the actual pos- ' Steele V. Sturges, 5 Abb., 442; ' banning v. Monaghan, 1 Bosw., Deming v. N. Y. Marble Co., 12 465; Parker v. Browning, 8 Paige, Abb., 66 ; Wilson v. Allen, 6 Barb., 390. 542 ; Lotimer t. Lovel, 4B. D. Smith, » Panton v. Zebley, 19 How., 394. 183. 4 V. Lindsay, 15 Ves., 91. §n.] RE0EIVBE8. " 433 session of all such, property, in such manner and within such time as the referee may think reasonable. Where such direction is given, the defendant, if he is dissatisfied with the decision of the referee, can apply to the court to review the same ; and he can, if the same be confirmed, be compelled, by process for contempt, to comply with that decision.^ If the property is in possession of a third person, claiming a right to retain it, the receiver can proceed by suit against such person in the ordinary way, and thus try the right, or the plaintiff may amend his comjplaint, making such third person a party, and have the receivership extended to the property in his hands ; so that the order for the delivery of the property may be binding upon him, and be enforced if necessary, by process of contempt.^ 6. Every kind of property of such a nature that, if legal, it might be taken in execution, may, if equitable, be put into the possession of a receiver ; and hence the appoint- ■ ment of such a person has been said to be an equitable execution.^ A claim for a personal tort does not pass to the receiver, unless it has been reduced into a debt by judgment ; * but torts not personal pass even when such torts were committed before Ifis appointment.^ In short, all legal and equitable claims that survive the person at common law, even though such claims are in litigation, vest in the receiver.* But a mere possession upon suffer- ance, to which the defendant has no legal right, will not pass, nor can he be compelled to surrender it to the receiver,^ 7. It was thought by Chancellor Walworth that a re- ceivership covered property outside of the jurisdiction of iWill. Bq. Jur., 335; Parker v. ^ QiHet v. Fairohild, 4 Denio, 80; Browning, 8 Paige, 390. Brouwer v. Hill, 1 Sandf., 629. 2 Id. 6 Ten Broeok v. Sloo, 2 Abb., 236. sEdw. on Receivers, 6. 'Gardner v. Smith, 29 Barb., 76. * Hudson V. Plets, 11 Paige, 183. ^34 PROVISIOKAL REMEDIES. [Oh. V. tte court, provided the person of the defendant or owner of such property was within the jurisdiction, and that by the ordinary course of proceeding, the defendant may be compelled either to bring the property in dispute, or to which the plaintiff claims an equitable title, within the jurisdiction of the court, or to execute such a conveyance or transfer thereof as will be sufficient to vest the legal title, as well as the possession of the property, according to the lex loci rei sitCB.^ 8. As we have before seen, a receiver is the officer of the court, appointed for the benefit of all the parties inter- ested in the property, and not merely for the benefit of the person at whose immediate instance that appointment takes place.. He is therefore bound to act in all things with a view to the equitable interests of all the parties entitled, and to follow such directions as the court may from time to time give. It was formerly held, that in the ordinary cases, he had no powers except such as were con- ferred upon him by the order for his appointment and the course and practice of the court.^ But since that decision, additional powers have been conferred on receivers by the statutes of 1845, ' and 1858.'' 9. When the receiver is doubtful as to the nature and extent of his duties, he may apply to the court for instruc- tions ; '' and, in many cases it is his duty to do so before acting. Thus, before bringing ejectment, or leasing pre- mises for more than one year, or selling bad debts, or seizing property held adversely, or paying out money, or commencing a suit, he should obtain the order of the court.^ The application for instructions should be made 1 Mitchell V. Bunoh, 2 Paige, 615 ; * Laws 1858, chap. 314. see Edw. on Receivers, 6 ; Abraham ^ Curtis v. Leavitt, 10 How., 481; V. Plestoro, 3 Wend., 538. 1 Abb., 274. 2Verplanokv. Meroantilfelus. Co., ^l Til. & Sher. Pr., 768; Edw. on 2 Paige, 452. * Receivers, 113, et seq. ? See Laws 1845, chap. 112. §n.] RECEIVERS.' 485 to the court whicli appointed him, and no other court ought to interfere with him in his official capacity.^ 10. The receiver himself usually applies to the court for its instruction, but a party to the suit may also apply ; not so a stranger, unless it is necessary to protect his rights. A stranger is not authorized to apply to the court to Secure him any advantage by means of the receivership, that he would not have been entitled to if no receiver had been appointed. But the court will give such directions, on the application of astranger as are necessary to protect his rights.^ The court will not direct the payment of debts due strangers, out of the fund, but if such debts are equi- table claims on the fund, the court may allow actions to be brought thereon against the receiver.^ 11. Where application is made to the court for instruc- tions, notice of such application should be given to all interested parties, although an ex parte application will not be irregular.* 12. As a general rule the receiver cannot employ the attorney of either party, to aid him in the discharge of his duty.' If he does, the proceedings may be set aside for irregularity, but the irregularity is so far waived by ap- pearance without objection, that on a motion afterwards made to set aside the proceedings, the court will not do more than stay the proceedings until another attorney is substituted,- and perhaps saddle the receiver with the costs of the motion.* But the objection to employing such attorney extends only to such proceedings as are adverse to the interests of either party to the suit. There- 1 Edwards v. Bostwick, oitedl Til. *Smith v. N.Y. Consolidated Stage & Sher. Pr., 769 ; Winfield v. Bacon, Co., 28 How., 377. 24 Barb., 159.. 6 Warran v. Sprague, 4 Edw. Ch., 2 Vincent T. Parker, 7 Paige, 65 ; 416; Panton v. Zebley, 19 How., Howell V. Kipley, 10 Paige, 46 ; 394 ; Eyokman v. Parkins, 5 Paige, Walter of Ingraham, 2 Barb. Ch., 35. 543. s Hubbard y. Guild, 2 Duer, 689. « Id. 486 PEOVISIONAL REMEDIES. [Ch. V. fore in any proceeding which is for the common interest of both parties, and not adverse to either, the receiver may employ the attorney of either party.^ He may em- ploy such attorney on applicaton to the court for instruc- tions.^ Btit the better course is for the receiver in all cases to retain attorneys and counsel other than those engaged in the action. He should do this, even though he be a professional man himself, for if he himself act as counsel in the business, he will not be entitled to any extra coun- sel fees for his work.' The rule that a receiver cannot employ the attorney of a party, is for the protection of the parties ; and a stranger sued by the receiver cannot raise the objection.* 13. The receiver may take possession of the property covered by the receivership as soon as his appointment is completed, but it is not absolutely essential that he should do so, as, in the absence of fraud or collusion, mere delay in taking possession will not divest him of * his title.^ Where there is no opposition to his possession, no order of the court is necessary ; but if the possessor of the property, whether a party or stranger, refuses to deliver it up, the receiver must apply to ftie court for an order requiring him to do so ; and without such order he cannot justify a forcible seizure of such property.^ On obtaining such order, the referee must himself make the demand of delivery, if he desires to have a disobedience of the order punished ; a demand by the plaintiff in the action, or his attorney, will not warrant an attachment for refusing to deliver.' Where a third party claims property already in 1 Bennett T. Chapin, 3 Sandf., 676; ^Fessenden v. Woods, 3 Bosw., Ryckman v. Parkins, 5 Paige, 543. 557. 2 Smith V. N, Y. Coneolidated Stage « Manning v. Monaghan, 1 fiosw., Co., 28 How., 377. ' 465 ; Parker v. Browning, 8 Paige, 5 Re Bank of Niagara, 6 Paige, 213. 390. *Warren T. Sprague, 11 Paige, 'Panton v. Zebley, 19 How., 394. 200 ; 3 N. Y. Leg. Obs., 122. § II.] RECEIVERS. 4g7 the possession of the receiver, the proper course for such party is to apply to the court by\petitioii for an order directing such receiver to surrender such property to the claimant ; an attempt to obtain possession by force or suit against the receiver is a contempt.^ Where the property is in possession of a third person, claiming a right to it, the. receiver may proceed by suit against such person, and thus try the right, or the plaintiff may amend his com- plaint and make such person a party, and have the receivership extended to the property in his hands, so that he would be bound by^an order for delivery of. such property.^ 14. The court will protect the legal and proper pos- session of its receiver against suits at law as well as violence, and will treat as a contempt any effort to deprive him of his rightful possession, either by force or suit, or by other proceedings, without the permission of the court which appointed him.^ Thus, a third party was held to be in contempt for distraining the property for rent.* So, it is a contempt for a purchaser under a prior judgment against the debtor to attempt to divest the receiver's pos- session.^ So, if tenants of the defendant have attorned to the receiver, or agreed to account to him for his share of the crops, and the sheriff afterward levy upon them.* But a mere formal levy by a sheriff, upon personal pro- perty held by a receiver, without interfering with the possession, is not contempt.' 15. Since the appointment of a receiver does not inter- fere with the priority of legal or equitable liens upon the property, therefore^ when goods subject to prior liabilities 1 Riggs V. Whitney, 16 Abb., 390 ; * Noe v. Gibson, supra. Noe V. Gibson, 7 Paige, 513 ; Chau- s Albany City Bank v. Schemer- tauque Co. Bank v. Eisley, 19 N. Y. horn, 10 Paige, 263. K., 370. 'U. 2 Parker v. Browning, 8 Paige, 390; ' Id. 3 Parker v. Browning, 8 Paige, 399 ; Noe v. Gibson, 7 Paige, 513. 4g8 PROVISIONAL REMEDIES. [Oh. V. have come into the possession of a receiver, he is bound to account, under the directions of the court, for the pro- ceeds to the. proper party entitled to such priority. Thus, where the property taken by the receiver has been previ- ously levied upon by the sheriff on execution issued upon judgments obtained prior to the appointment of such receiver, the receiver will be required to first pay the amount of such executions to the sheriff out of the pro- perty in his possession.^ 16. A receiver cannot bring an action of ejectment without leave of the court. Where leave is granted, the court will direct in whose name the suit shall be brought, and will direct the receiver to indemnify the person in whose name the suit is commenced out of the fund of the receivership.^ S'or can an action of ejectment be brought against a receiver in possession without leave of the court, ^uch a course would amount to a contempt, for after a tenant has attorned to the receiver, the court is the land- lord.* 17. Nor can a receiver let premises for a longer term than one year without the order of the court. He may let premises from year to year without a special order, but not longer.* It is the duty of a receiver to collect the rents of the estate, and he should, immediately after his appointment, call upon the tenants to attorn to him. He should produce and serve upon such tenants certified copies of the order appointing him, and a certificate of the officer of the court that the referee's report has become absolute. If the tenants should refuse to attorn, the receiver should apply to the court for an order upon 1 Becker v. Torrance, 31 N. T. E., ^Green t. Winter, 1 John. Ch., 60 ; 631 ; Eich t. Loutrel, 18 How., 121 ; in the Matter of Merritt, 5 Paige, Ee N. American Gutta Percha Go., 125 ;' 16 Wend., 405. 17 How., 549; see Field t. Eipley, 'Edw. on Eeoeivera, 115. 20 How., 26; see contra, Eutter v. *Edw. on Eeceivers, 122. Tallis, 5 Sandf., 610; § 11.] RECEIVERS. 489 them to attorn and pay the rent to the receiver in the cause, and any further refusal on their part may he treated as a co.ntempt.^ Where a receiver lets premises, he may give notice to quit, and such notice will be respected in a court of law.* 18. Where a receiver of a partnership business is appointed, he should ordinarily proceed and sell the establishment without delay, but, in the mean time, the business should be carried on by him as usual, so that the good will thereof may be secured to the purchaser and the full value of the establishment realized by the partners on such sale.^ Such is no doubt the rule when the good will would become valueless or seriously depre- ciated by a stoppage of the business, or where the pro- perty is of such a kind as would be at great expense and suffer injury by not being used ; as the horses of a livery stable.* But in other cases the court should not, generally authorize the receiver of partnership property to carry on the business in the iise of the firm property until a sale can be made.° The i-eceiver of a firm whose business is to publish a newspaper, may be empowered to carry on such paper until it can be advantageously disposed of.* So, under like circumstances, the defendant may continue to edit a paper under the direction of a receiver.' 19. A receiver should not, except, perhaps, in very special cases, pay out money of the estate without the order of the court.* Where he pays out money in pur- suance of an order, he must act strictly within its legal limits, and not upon any equitable views of a claim sub- mitted to him.^ Nor should a receiver lay out the money > Edw. on Eeoeivers, 128. « Dayton v. Wilkes, 17 How., 510. 2 Doe v. Read, 12 East., 58. ' Marten v. Van Sohaiok, supra. 3 Marten v. Van Schaick, 4 Paige, 8 See Edw. on Receivers, 121. 480. 9 See Brown t. N. Y. & Erie R. R., * Jackson T.DeForest, 14 How., 81. 19 How., 84. 6 Id. 32 490 PKOVISIOKAL KBMEDIES. [Ch. T. in repairing, much less in improving, the premises of which he has charge, without first obtaining leave of the court so to do.^ 20. Although a receiver may have power, under hjs general authority, to sell bad debts, yet it would be ad- visable to apply for leave to sell. Where the receiver is appointed in a creditor's suit, leave of the court to sell desperate debts is expressly required by rule 92.^ (See forms ]Sros. 128, 129). 21. A receiver, like any other fiduciary, cannot himself buy at a sale made by him. Any purchase, if made by him, will enure to the benefit of the cestui que trusts at their election.^ 22. Where a receiver desires to bring a suit in relation to the trust estate, he should apply to the court for leave.* Should he bring the action without such leave, he acts at his peril, and, if unsuccessful, will be charged with costs.* Thus, where a receiver had prosecuted an action as such receiver, without leave of the court, and had failed in his action, on motion for costs against him personally, the motion was granted.* A receiver should apply for an order to prosecute for debts, etc' Having obtained such leave he is bound to sue.* But, of course, the claim to be prosecuted will not be altered or strengthened by reason of such leave.' Where it is necessary that the action be brought in the name of some person other than the re- ceiver, such person must have notice of the application for leave to sue ; "* and if *the leave be granted, the court 'Blunt T. Clitherow, 6 Vesey, « Id. ; see, however, Marah v. Hus- Jr., 801 ; Waters v. Taylor, 15 Vesey, sey , 4 Bosw., 614. Jr., 25. 'Id. ; Merritt v. Lyon, 16 Wend., 2 Edw. on Receivers, 152. . 410. 3 Jewett V. Miller, 6 Seld., 402. 8 Winfield v. Bacon, 24 Baf b., 154. ' 4 Smith V. Woodruff, 6 Abb., 65; » Williams v. Lakey, 16 How., 206. Phelps V. Cole, 8 Code E., 167. '"Merritt v. Lyon, per Cowan, ^ Id. supra. §11.] RE0EIVEE8. • 491 will direct tlie receiver to indemnify such person out of the trust fund.' (See forms Nos. 126, 127). 23. The application for leave to sue should be based upon a petition or affidavit specifying the particular debts, or claims, on which the action is sought to be commenced, the probability of recovering the same ; that he has made diligent inquiry concerning the pecuniary circumstances of the debtors, and that, from such inquiry, he believes such debtors to be solvent and able to pay.^ 24. With the exception of actions for ej ectment, receivers may sue in their own names. By the act of April 24, 1845, it is provided that, " Receivers and committees of lunatics and habitual drunkards, appointed by any order or decree of the court of chancery, may sue in their own names for any debt, claim or demand transferred to them, or to the possession and control of which they are en- titled as such receiver or committee." ^ lu actions for ejectment it seems the former rule must prevail.'' 25. But a receiver, in general, is not clothed with any right to maintain an action which the parties or the estate which he represents, could not maintain. He must show a cause of action existing in those parties, and that, by the appointment of the court, lawfully made, in a matter where the court had jurisdiction, the power has been con- ferred on him in his representative capacity as receiver to prosecute the action.* One suing as receiver, should at least state the place of his appointment, and distinctly aver that he has been appointed by an order of the court. Merely alleging that he was duly appointed on such a day is not sufficient* 26. A receiver, as such, is vested with all the rights of 1 Gr«en v. Winter, 1 John. Ch., 60. ^Coope v. Bowles, 28 How., 10. 2 Edw. on Eeoeivers, 186. ' Gillett v. Fairohilds, 4 Denio, 80 ; 3 Laws of 1845, chap. 112. White v. Low, 7 Barb., 204. *See 2R. S., 303, | 3. 492 PROVISIONAL BEMEDIES. [Oh, V. action whicli the individual or company, of which he is receiver, had when he was appointed, and he can sue for torts comraitted before his appointment.^ He can also sue the debtor himself, for a conversion of the trust pro- perty after his appointment.^ 27. So, the receiver has an unquestionable right to bring an action in his own name to set aside a fraudu- lent transfer of the property.^ Such power has for a long time been acknowledged by the courts, and is also ex- pressly given by statute.* By the act of 1858, it is provided, " That any executor, administrator, receiver, assignee, or other trustee of an estate, or the property and eflects of an insolvent estate, corporation, association, partnership, or individual, may, for the benefit of credit- ors or others interested in the estate or property, so held in trust, disaffirm, treat as void, and resist all acts done, transfers and agreements made, in fraud of the rights of any creditor including themselves, and others interested in any estate or property held by, or of right belonging to any such trustee or estate." * * 28. " That every person who shall, in fraud of the rights of creditors and others, have received, taken, or in any manner interfere with the estate, property or effects of any deceased person, or insolvent corporation, association, partnership or individual, shall be liable in the proper action to the executors, administrators, receivers or other trustees of such estate or property for the same, or the value of any property or effects so received or taken, and for all damages caused by such acts to any such trust estate." * 29. " That any indorser or other surety, and any as- 1 Brouwer v. Hill, 1 Saudf., 629. < Laws 1858, chap. 814. 2 Gardner v. Smith,-29 Barb., 68. » Id., g 1. s Porter v. Williams, 5 Seld., 142 ; »M., § 2. 12 How., 107. § IL] RECEIVERS. 493 signee, executor, or administrator, or other trustee stall be entitled to and allowed to recover from his principal or cestui que trust, all necessary and reasonable costs and expenses paid or incurred by him in good faith as such surety or trustee in the prosecution or defense in good faith of any action by or agaiust any' assignee, executor, administrator or other trustee as such.^ 30. Whether a receiver can maintain an action outside of the jurisdiction within which he was appointed, has given rise to a conflict, or an apparent conflict, of deci- sions. The United States court holds that he cannot ; ^ while the state court holds the reverse.' In Tillinghast & Sherman's Practice, an attempt is made to reconcile the two decisions by interpreting the first, as follows : "An ordinary receiver cannot maintain an action out of the state in which he was appointed." And the second : "But a statutory receiver, having the powers of a general as- signee, will be allowed in comity to do so." * 31. A receiver should not defend an action without leave of the court, ^e has no right to do any act which may involve the estate in expense without first applying to the court, and the defense of an action is clearly im- proper without leave, since the action may be of such a character as to be enjoined by the court on a proper ap- plication. If he defends without leave he does so at his peril, and is liable for costs.' 32. An action cannot be commenced against a receiver without leave of the court appointing him.' If such ac- tion is brought without leave, it will be a contempt, and the receiver may have an order restraining the action.^ 1 Id., § 3. ^ Swaty v. Dickon, 5 Simons, 629. sBooth V.Clark, 17 How. (U. S.), «Hubbellv. Dana, 9 How., 424; 322. / DeGroot t. Jay, 30 Barb., 488 ; 18 s Kunk V. St. John, 29 Barb., 585 ; How., 121. see Hoyt v. Thompson, 1 Seld., 320. 'DeGroot v. Jay, supra. *Seel Til. & Sher. Pr., 770. 494 PROVISIONAL REMEDIES. [Ch. V. But the omission to obtain leave to sue does not in any way affect tlie legal rights of the party, or the validity of the proceedings in the suit, but is purely a question of contempt.^ The irregularity may also be waived by a general appearance in the action without objection; and it seems that leave to sue a receiver is usually granted of course ; and, if necessary, can be granted at any stage of the action.^ 33. The receiver should keep the exclusive control of the trust fund, otherwise he will be liable, if loss ensue.^ It is also his duty to keep the trust moneys entirely sepa- rate and distinct from his own money. If deposited in a bank, the money should be deposited to a separate ac- count, in his name as receiver, to the end that the fund may be at all times identified and traced. If he mixes the trust moneys with his own, and uses them.indiscriminately, he will be charged with interest, although he make no profit from such use.* So, if a receiver loan out such moneys, to his friends or others, even temporarily, it is a breach of trust. Nor is the receiver, allowed to make any profit out of the funds, and if he employ them in trade he will be charged with the whole profit.^ 34. It would be well in all important cases, for the order appointing a receiver, to contain a direction that the receiver file an inventory, and render an account annually under oath. However, I understand it to be the duty of the receiver to make such inventory and render such account, whether the order so direct or not. By the 469th section of the Code, it is provided, that, " The present rules and practice of the courts in civil actions, inconsistent with this act, are abrogated, but where consistent with 1 Chautauque County Bank v. * TJtioa Ins. Co. v. Lynch, 11 Paige, Risley, 19 N. T. R., 369. 520. 2 Hubbell V. Dana, 9 How., 424. 6 la. 'Edw. onBeeeivers, 573. § II-] RECEIVERS. 495 this act, they shall continue in force, subject to the power of the respective courts to relax, modify, or alter the same." ^ This section, it may be presumed, saves the old equity rules and practice where ever they may be found consistent with the Oode.^ Among the rules of chancery, not inconsistent with the Code, or relaxed, modified or altered by the supreme court rules, is the following: " Every general guardian, receiver or committee appointed by this court, shall, within six months after his appoint- ment, and every special guardian for the sale of an infant's estate, shall, within six months after the order confirming the sale of the estate or any part thereof, file in the office where the appointment is entered, a just and true inven- tory, under oath, of the whole real and personal estate committed to his care or guardianship, and of the manner in which any funds under his care or control, belonging to the estate are invested ; stating the income and profits of the funds or estate and the debts, credits and effects, so far as the same have come to his knowledge. And he shall annually thereafter, so long as any part of the estate or of the income or proceeds thereof, remains in his hands or under his care or control, file in the same office an inven- tory and account, under oath, of his guardianship, or trust, and of any other property or effects belonging to the estate which he has since discovered, and of the amount remaining in his hands or invested by him, and of the manner in which the same is secured or invested; stating the balance due from or to him at the time of rendering his last account, and his receipts and expenditures since that time, in the form of debtor and creditor."^ The re- ceiver cannot be compelled to account and show his books > See Rule, Supreme Court, 93. » Chancery Rule, 154. a Allen v. Smillie, 1 Abb., 357; see Edw. on Receivers, 610. 496 PBO VISIONAL BEMBDIES. [Oh. V. to a party to the suit. He is an officer of the court and is to account to the court only.^ 35. When the duties of the receiver are at an end, whether by the termination of the suit, or by other means, he should petition the court to be allowed to account and be discharged, and to have the undertaking of him- self and sureties annulled.^ The mere discontinuance of the suit does not discharge a receiver appointed therein. But it will entitle him to apply ' for his discharge and to have his account passed, and his sureties discharged from further liability.^ The receiver, in a judgment cerditor's suit, will not be discharged without a special order ob- tained upon a written consent of all the parties interested in the property in his hands, or on due notice of the applica- tion.^ (See forms Nos. 130, 131, 132). 36. The court may, for good cause shown, discharge a receiver, on his own application, before the completion of his duties, and appoint another in his stead.^ But there must be strong grounds for such a course, or the applica- tion will be denied ; especially is this so, where his dis- charge and the appointment of another in his place will inconvenience parties in interest, and third parties.® In a case cited by Mr. Edwards, as having occurred in his own practice, the receiver wanted to go to Europe on his own affairs, to be absent a year, and the chancellor, on a petition, allowed him to pass his accounts, be discharged, have his recognizance vacated, and a new receiver ap- pointed, and gave him the costs of being discharged.' 37. The receiver is the officer of the court, and in the absence of any positive legislation on the subject, the ' MuBgrove v. Nash, 3 Bdw., 172. ^ j;,!^, qq ReoeiTers, 660. ' See Edw. on Keceivers, 627. ^ Beers v. Chelsea Bank, 4 Edw. 8 Whiteside v. Pendergast, 2 Barb., Ch: R., 278. Ch., 471. ' Purdy v. Rapelye, cited in * Edw. on Receivers, 667 ; citing Edw. on Receivers, 661. Chancery Rule, 193. §11.] RECEIVEE8. 497 court has authority to determine his compensation.^ The general mode of compensating, is by a commission on the receipts and disbursements. A per diem compensation will not be allowed. The commissions are intended to be a full compensation for his services, and if he acts as counsel in the business of the receivership, he is not entitled to special remuneration beyond the taxable fees as counsel.^ Where the account of a receiver is made up, without a direction from the court to make periodical rests therein, his commissions for receiving and paying out must be computed upon the aggregate amounts of his receipts and expenditures for the whole time of .accounting. If the receiver renders annual accounts in conformity with the usual practice, and the rules of the court, he may charge his commission of the receipts and disbursements of the previous year, exclusive of such sums as have been re- ceived for interest and reinvested.^ A receiver is not to be allowed full commissions, both on the receipts and disbursements.* The proper rule is, to allow him one-half of the commissions upon all moneys received by him, as such receiver, other than as principal moneys received from investments, made by him, on account of the trust estate. And he is also to be allowed his half commissions on all moneys invested or reinvested by him in bonds and mortgage, or other securities, for the benefit of the trust estate, leaving the residue of the half commission upon the funds which remain invested, or unexpended, at the time of passing the accoun| for future adjustment, when such funds shall have been expended, or on the final ac- counting.^ The receiver is usually allowed the same compensation as is allowed by law to executors.^ That is, > Edw. on Keoeivers, 642. » Re Kellogg, 7 Paige, 266 ; re 2 Re Bank of Niagara, 6 Paige, 213. Roberts, 3 John. Ch., 43. aid. 6 Howes v. Davis, 4 Abb., 71. Sea Ins. Co. v. Stebbins, 8 Paige, Abb., 235; 13 How., 502 ; Bayard v. 565. FellowK, 28 Barb , 452. 2Quinii V. Brittain, 8 Edw., 314. » People v. Mayor of N. Y., 10 ' Jenkins v. Hinman, 5 Paige, 309. Abb., Ill ; reversing, 8 Abb., 7. 4 Patten v. Accessory Trans. Co., 4 « pignole t. Busbe, 28 How., 9. gQg PROYISIONAL REMEDIES. [Oh. V. his own claim.^ But a receiver will not be allowed in favor of a mortgagee, on tlie ground of waste ; an injunc- tion is the proper remedy.^ 17. But where, either by action, or proceedings in par- tition, or division, or for the construction of a last will and testament, an estate has been brought within the posses- sion, direction or control of the supreme court of this state, which shall have acquired jurisdiction over the same, such supreme court may, upon the death of the surviving executor of said will and testament, and during the pen- dency of such action or proceedings, and until they are finally carried into effect, appoint a receiver of said estate, upon such terms and conditions, and upon such notice to all parties and persons interested, as said court shall direct, and upon such order as to security or otherwise, as to said supreme court may seem expedient ; and to enable it to carry into effect its orders and decrees, in relation to said estate, such receiver, when appointed, shall be the successor in interest of said surviving executor, and shall have like power and authority as administrators with the will annexed, appointed by the surrogate, but subject to the order of said supreme court in thepremises.^ 18. In an action for specific performance, where it appears that the purchaser can be compelled to execute a contract, the court will appoint a receiver.* Thus, a re- ceiver was appointed where a party had received mort- gage money in advance, and had not executed the mort- gage according to agreement.' So, where a party takes possession of an estate under an agreement to pay money, but afterwards refuses to perform his covenants, the court ' Talbot T. Scott, 4 Kay & John., ' 3, of the Eevised Statutes ; as am'd, 126, 133 ; see Edw. on Keoeivers, 1863, chap. 460, page 804. 445. * Edw. on Receivers, 552. ^Eobinaou v. Preswick, 3 Edw. sgijakeiy. Marlborough, 4 Mad. Ch., 246. Ch., 463. 3 Seo. 45, art. 3, tit. 2, chap. 6, page § III.] RECEIVEKS. 5Q9 will grant a receiver.^ So, a receiver has been appointed in a suit, for the specific performance of an agreement to purchaae an estate, against the purchaser, after an answer upon the lien for the remainder of the purchase money, and where there has been a mixed possession, and his insolvency and intention are admitted.^ 19. The proper use of joint property by one joint tenant, will not, as a general rule, be restrained or a receiver appointed, unless abuse be reasonably apprehended, or in a case where security has been given for a due account- ing. But where there is any doubt of the safely of the fund, the application will almost be of course.^ Whether a receiver will be appointed in any case between tenants in common, is a matter of doubt. The cases in which a receiver has been appointed between such tenants, are very unsatisfactory, and can hardly be regarded as precedents.^ 20. Pending proceeding for the appointment of a com- mittee of a lunatic, the court may, in urgent cases, appoint a receiver of the property.' Contrary to the general rule, such receiver may be appointed on petition only, without any bill having been filed as is requisite in other cases.' By the act of April 28, 1845, receivers and committees of lunatics and habitual drunkards, appointed by any order or decree, may sue, in their own names, for any debt, claim or demand transferred to them or to the possession and control of which they are entitled as such receiver or . committee. And when authorized to sell such demands, the purchaser of the same may sue and recover therefor in his own name, but shall give such security for costs to the defendant as the court in which such suit is brought, 1 Free v. Hinde, 6 Mad. Ch., 7. ing Tyson v. Fairlough, 2 Sim. & S., ' Hall V. Jenkinson, 2 Ves. & B., 142. 225. s In re Heli, 3 Atk., 635. 8 Dunham v. Jarvis, 8 Barb., 88. SEx parte Whitfield, 2 Atk., 147. *See Edw. on Receivers, 552; oit- 510 PKO VISIONAL REMEDIES. [Ch. V. may direct. But the above statute does not have the effect to vest the receiver with the title to the real estate by the mere order of the court and without an actual conveyance from the party to the suit in whom such legal title is vested.^ 21. If an infant's estate is in danger, a receiver can be appointed immediately after filing a bill.'' The receiver of an infant's estate should never have his bond or recogni- zance discharged until one year after the infant has attained his age. This is for the purpose of giving the infant ample opportunity to examine the accounts.^ 22. Where a person takes a conveyance of a legal estate subject to equitable charges, which he does not pay or keep down, a receiver may be appointed.* So, where lands are charged with the payment of an annual sum, a receiver may be appointed as a means of enforcing pay- ment.' Therefore, where a tenant for life neglects to dis- charge the ordinary taxes, or other charges on the estate which he is equitably bound to pay, a receiver will be appointed for so much of the rents and profits as may be necessary for that purpose.* 23. In an action for divorce on the ground of adul- tery, the injunction, receiver, and ne exeat, may all be . properly made use of to aid the court in doing justice between the parties.'^ 'Wilaon v. Wilson, 1 Barb. Ch. ^Owing's case, 1 Bland, 297. E., 692. « Cairns v. Chabert, 3Edw., 312. ■2Edw. on Receivers, 549. 'Kirby v. Kirby, 1 Paige, 261. s Id. ; In re Van H orne, 7 Paige, 46. * Pritobard v. Fleetwood, 1 Meriv., 55. § IV.] RECEIVERS. 511 SECTION IV. AFTER JUDGMENT. 1. Under snbdivlsionB 2 and 3 of § 344. 3. After judgment to carry the judgment into effect. 3. After judgment to dispose of property. 4. To preserve property pending an appeal. 5. Where judgment debtor refases to apply property. 6. How and when receiver appointed. 7. In creditor's actions, Sup. Pro, etc. 1. The second subdivision of section 244 provides for the appointment of a receiver "after judgment, to carry the judgment into effect ; " and the third subdivision pro- vides for a receiver "after judgment, to dispose of the property according to the judgment, or to preserve it during the pendency of an appeal, or when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judg- ment." 2. The former of these proAdsions may, perhaps, be construed to embrace all cases of the sequestration of property, so that instead of issuing a writ and sequestrat- ing the property of a defendant, who is in contempt for disobeying a judgment, and who persists in such disobe- dience, as was the practice in the late court of chancery, the simpler, and no less efficient remedy of appointing a receiver over such property may be adopted.' So, cases sometimes arise, in which the usual modes of enforcing a judgment requiring some specific act to be done, as by execution, process for contempt, or by writ of assistance, injunction or sequestration are ineffectual, as for example, ' Van Sant. Eq. Pr., 643 ; see Franklin v. Colquhon, 3 Swans., 389, note. 512 PKOVISIONAL EEMEDIES. [Ch. V where a conveyance is directed to be made, or satisfaction of an instrument acknowledged, and the party is absent, so as not to be amenable to process of contempt, and has no property to be sequestrated. In such cases the coiirt may appoint a referee or a receiver, and authorize him to make the conveyance, acknowledge, etc.^ Referees or receivers are also appointed in mortgage and partition cases to carry out the provisions of the judgment therein, by making sales of the premises, executing conveyances and disposing of the proceeds.^ 3. In relation to the first clause of the third subdivisioii providing for the appointment of a receiver " after judg- ment, to dispose of the property according to the judg- ment," it is thought to contemplate powers and dutiep, broader and more extended than are the powers and duties of referees appointed to sell property under section 287 of the Code. It is created "to dispose of the property ac- cording to the judgment," that is, theproperty in litigatioi, any property personal as well as real, notes, bills, ani choses in action, with all the incidental powers in regard to such property which the law and the practice of the court confer upon receivers, and which a mere refere* does not possess, he being limited in his powers and duties by the specific direction and. authority contained in the judgment' 4. A receiver may be appointed also to preserve pro-| perty pending an appeal. By section 336, it is providedl that, "If the judgment appealed from direct the assign-i ment or delivery of documents, or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered be brought into court, or placed in the custody of such iSee Franklin y. Colquhon, 3 'Id. Swans., 389, note. ^See Van Sant. Eq. Pr., 644. §IVJ ■ ' RECEIVERS. 5^3 officer or. receiver as the court shall appoint, or unless an undertaking be entered into ok the part of the appellant, by at least two sureties, and in such amount as the court, or a judge thereof, or county judge, shall direct, to the effect that the appellant will obey the order of the appel- late court upon the appeal." 5. So, where an execution has been returned unsatisfied and the judgment debtor refuses to apply his property in satisfaction of the judgment, a receiver is proper. The remedy provided by the second subdivision of section 292 is similar, and is usually resorted to in preference to the above. The order is made in the same manner as in cases under subdivision one of section 244, and is based on proof of the recovery of the judgment, the issuing and return of the execution unsatisfied, in whole or in part and the refusal of the debtor to apply his property in satisfaction of the judgment. 6. The receiver contemplated by either of the provi- sions of subdivision 2 and 3 above cited, is to be appointed in all respects in a manner similar to receivers pending an action, and the order and proceedings are substantially the same. He is not appointed by the judgment or decree, but after judgment, and there must be a special applica- tion for the purpose, upon notice to the debtor.' Such receiver is also vested with the same powers and duties, and is governed by the same rules as receivers in an action. 7. Receivers in creditor's actions come properly under these two subdivisions, as they are usually appointed to carry the judgment into effect and to dispose of the pro- perty according to the judgment. So, also, to a great degree do receivers in proceeding supplementary to exe- cution. I shall, therefore, treat of those subjects in the 1 Boylan v. Byrne, 1 Malloy, 29. 514 PROVISIONAL REMEDIES. [Ch. V. following two sections. So, it would be proper to arrange under these subdivisions, the practice relating to receivers appointed after a judgment at law or a decree in equity, against a corporation, and execution returned unsatisfied. But I have thought it better to treat of that subject under the head of receivers of corporation. §V.] RECEIVERS. 515 SECTION V. IN SUPPLEMENTARY PROCEEDINGS. § 298. BeceiTerB in Bupplementary pro- ceedings. When appotntecl. Where the examination has not dis- closed property. Can he appointed in proceedings under §294. When may be appointed hefore return of execution. May be where defendant was arrested by warrant under sub 4, § 292. Also on voluntary appearance of defendant. At what time appointment may be made. Notice of application to debtor and third persons. By whom appointed; reference to select. Kecelver under control of court. Order how drawn; order to be filed, and copy given to receiver. Bond hy receiver, Its form and execu- tion. When bond dispensed with. 14. When property vests in receiver. 15. When the property vested in the re- ceiver prior to the amendment of i862. 16. What property vests in receiver. 17. Eeceiver entitled to immediate posses- sion of property. 18-20. Powers and duties of receivers herein. 21. Only one receiver to be appointed. 22. Restraining debtor from disposing of property. 23. Eeceiver takes debtor'sproperty subjeo to liens. 24. § 299. Where third person claims pro- perty, etc. 25. In what cases proceedings under this section fnay be maintained. 26. To what cases the section applies. 27. What claim of interest is Intended. 28. Nature of the injunction herein pro- vided. 29. How served. 30. How long it continues in force. 1. " The judge may, also, by order, appoint a receiver of the property of the judgment debtor, in the same man- ner, and with the like authority, as if the appointment was made by the court, according to section 244. But 'before the appointment of such receiver, the judge shall ascertain, if practicable, by the oath of the party or other- wise, whether any other supplementary proceedings -are pending against the judgment debtor, and if such pro- ceedings are so pending, the plaintiff therein shall bave notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to said 516 PROVISIONAL BEMBDIES. [Ch.V.. receivership. 'So more than one receiver of the property of a judgment debtor shall be appointed. The judge may, also, by order, forbid a transfer or other disposition of the property of the judgment debtor, not exempt from execution, and any interference therewith. Whenever the judge shall grant an order for the appointment of a receiver of the property of the judgment debtor, the same shall be filed in the office of the clerk of the county where the judgment roll in the action or transcript from justice's judgment, upon which the proceedings are taken, is filed ; and the said clerk shall record the order in a book to be kept for that purpose, in his office, to be called " book of orders appointing receivers of judgment debtors," and shall note the time of the filing of said order therein. A certified copy of said order shall be delivered to the re- ceiver named therein, and he shall be vested with the property and effects of the judgment debtor from the time of the filing and recording of the order as aforesaid. The receiver of the judgment debtor shall be subject to the direction and control of the court in which the judg- ment was obtained, upon which the proceedings are founded ; or if the judgment is upon a transcript from justice's court, filed in the county clerk's office, then he shall be subject to the direction and control of the county court. But before he shall be vested with any real pro- perty of such judgment debtor, a certified copy of said, order shall also be filed and recorded in the office of the clerk of the county in which any real estate of such judg- ment debtor sought to be affected by such order is situated, and, also, in the office of the clerk of the county in which such judgment debtor resides."^ 2. Wher^ the plaintiff has perfected judgment and has issued an execution thereon which has been duly returned 1 Code, ? 298. § v.] RECEIVERS. 5I7 unsatisfied, in whole or in part, it is a matter of course, on his application to reach the equitable property of the defendant, to appoint a receiver. And a plaintiff should always make such an application when he has obtained an injunction against the judgment debtor, to protect the property and effectuate his lien.^ On such application the court cannot go behind the judgment to examine into the merits of the action in any respect.^ Where, how- ever, the judgment debtor's property is of such a nature, or so situated, that it can be applied to the satisfaction of the judgment by an order of the judge, under section 297, a receiver will be unnecessary. 3. It is no answer to the application for a receiver, that the examination has not shown the debtor to be possessed of, or to be the owner of any property. The creditor proceeds at the peril of costs, if there is no property ; and if there is nothing for the receiver to take, the debtor cannot be injured by the appointment.^ l^or is it any objection to the appointment of a receiver that the debtor has no property, other than an equity of redemption which he is willing to have sold under execution.* But the practice in the superior court of 'New York seems to have been different. It is stated to have been the course there, where the plaintiff had wholly failed to discover property, to discharge the injunction order, and hence the ground for the appointment of a receiver failed.^ 4. Some of the courts hold that to authorize the ap- pointment of a receiver under this section, the proceedings should be against the debtor, to reach his property gene- rally, and that the debtor should have notice of the application; that is, that a receiver can only be' had iLentT. McQueen, 15 How., 313; *Bailey v. Lane, 15 Abb., 373, Webb v. Overman, 6 Abb., 92. note. "Lent V. McQaeen, supra. ^HoflF. Pro Rem. 524. sMyre's case, 2 Abb., 476; see also Webb v. Overman, 6 Abb', 92. 518 PROVISIONAL REMEDIES. [Oh. V. when the proceedings ai-e instituted under section 292, and that the proceedings provided by section 294 is simply a proceeding in aid of that under section 292, and must he had in connection with it, and cannot be resorted to independently of any proceedings against such judg- ment debtor.' The practice is, however, settled in the supreme court of the first judicial district, to allow a proceeding under section 294 independent of, and without any resort to, a proceeding under section 292. But pro- ceeding under the latter section is required to be first instituted in all cases where it is practicable.^ Whether or not notice shall be given to the debtor is held to be in the discretion of the judge making the order.^ 5. Where the proceedings against the debtor are under the second subdivision of section 292, a receiver may be appointed before the return of the execution.* This would seem to be clear upon its face, but, in Darrow v. Lee, the New York common pleas held otherwise.^ 6. A receiver may also be appointed where the defendant has been arrested by virtue of a warrant under subdivision four of section 292. The object of the warrant is to secure the defendant from absconding, and thus to compel an examination, and a reference may be had to take such examination, and a receiver appointed the same as in other cases.^ So, where the judge has jurisdiction of the subject matter, a receiver may be appointed upon a voluvr tary appearance and examination of the judgment debtor, without affidavit or order ; '' and the regularity of the appointment, in that or any other case, cannot be ques- tioned collaterally by a third person.* 1 Kemp V. Harding, 4 How., 178 ; ^li.; see, however, Gibson t. Hag- Hinds V. Canandaigua R. E. Co., gerty, 15 Abb., 406 ; 23 How., 260. 10 How., 489; Sherwood v. Buf. & ^People v. Hulburt, 6 How., 446. N. Y. City R. R. Co., 12 How., 136; 6 16 Abb., 215. Barker v. Jolmaon, 4 Abb., 435. ^^iiggu v. Andrews, 9 How., 39. i 2 Ward V. Beebe, 15 Abb., 372; 'Bingham v. Disbrow, 14' Abb., 17 Abb., 1; Holmes v. -Jordan, 16 251; 37 Barb., 24. Abb., 410, note. » Tyler v. Whitney, 12 Abb., 465. § v.] RECEIVERS. 519 7. If tlie examination has been had before the judge, and the judgment debtor is present, and there are no other supplementary proceedings against him, the appli- cation for a receiver may be made immediately on the close of the examination,^ or at any stage of the proceed- ings, in the discretion of the officer, when property is disclosed of such a nature that it might be dissipated by the delay incident upon a continued examination.^ If the appointment is made during the progress of the examina^ tion, it seems that the examination may be continued afterwards the same as before.^ 8. But, if the examination has been had before a referee, notice of the application should be given to the debtor.* So, if there are other proceedings pending against him, notice must be given to the plaintiff therein. And if is made the duty of the judge, by the foregoing section, to ascertain, if practicable, by the oath of the party or otherwise, whether any other supplementary proceedings are pending against the judgment debtor. And this is equally the duty of the referee, where the examination is had before one. But this requirement is directory merely, and any failure to comply therewith, or to give the other creditors notice, does not avoid the order appointing a receiver.' No person is entitled to notice on the ground that he has a lien on the fund sought to be reached, unless he has supplementary proceedings actually pending against the debtor.* "Where it is necessary to give notice either to the judgment debtor or to third I Todd T. Crook, 4 Sandf., 694. not be given, Ward v. Beebe, 17 ^PeoBle V. Mead, 29 How., 360. Abb., 1; 15 id., 373; Seeley t. Gar- 3 Id risen, 10 Abb., 460. i Kemp V. Harding, 4 How., 178; 6 Lottimer v. Lord, 4 E. D. Smith, Gibson v. Haggerty, 15 Abb., 406 ; 183. 23 How 260 It is the practice in scorning v. GlenviUe Woolen Oo., the First District to appoint a 14 Abb., 339; see also Myriok v. receiver under J 294, without notice Selden, 36 Barb., 15. to the debtor where such notice can- 520 PEOVISIONAL REMEDIES. ' [Ch. V. parties, a notice of less than eight days will suffice.* It is the practice at the chambers of the supreme court of the first district to require a notice of from two to four days.^ 9. The appointment of a receiver should, except in the first district, be made by the same judge who granted the original order instituting the proceedings, and no other judge has the power to interfere. Thus, where the original order was granted by a county judge, a justice of the supreme court has no authority to appoint the receiver.^ The judge may order a reference to select a proper person for a receiver, .to determiae the amount of security to be required and to approve of the sureties offered by the pro- posed receiver, but it is held that the judge cannot order a reference to appoint a receiver as is frequently done in appointing receivers under § 244, and. that an appointment made by a referee is void.* 10. Though the receiver is appointed by a judge, he is, nevertheless, under the control of the court in which the judgment was obtained upon which the proceedings are founded, and not of the judge who appointed him, .and must apply to such court for all directions and instruc- tions necessary to the proper execution of his trust. Where the judgment is upon a transcript from justice's court, filed in county clerk's office, the receiver is subject to the control of the county court.* 11. The order appointing the receiver should be care- fully drawn, and should be sufficiently full and definite to enable the receiver to know the extent of his powers and duties. It would be better to make such order ample enough to cover the provisions of the 92d rule of the supreme court. After the order is granted, the plaintiff's iLeggettv. Sloan, 24 How., 479. * Wood v. Lambert, cited in Hoff. 2 Riddle's Sup. Pro., 136. Pro Rem, 498; Sp'l, T. Superior 8 Smith T. Johnson, 7 How., 39; Court, Hoffman, Justice, see Hatch v. Weyburn, 8 How., 165. 6 ^ 298, supra. §V.] RECEIVERS. 521 attorney should file the same in the office of the clerk of the county where the judgment roll in the action, or trans- cript from justice's judgment, upon which the proceedings are taken, is filed. It is the duty of the clerk to record such order in a book to be kept for that purpose. The plaintiff's attorney should procure from such clerk a certified copy of such order and deliver the same to the receiver named therein, and he shall be vested with the property and effects of the judgment debtor from the time of the filing and recording of the order.' (See form No. 116). 12. But before the receiver's appointment is complete so as to authorize him to act and take possession of the debtor's property, he must execute and file the required bond.^ He is, however, as an officer of the court, vested with the debtor's property immediately on the filing and recording of the order ; so that such property cannot be seized by the sheriff by virtue of an execution or attachment between the appointment and the filing of the required bond. Should he fail to give the required bond, the order will not be thereby invalidated, but the effect is the same as if he had instantly complied, and had after- wards been removed and another appointed in his place.^ The penalty of the bond is usually double the amount of the personal property, together with double the yearly value or rental of the real estate.^ It is generally in the form of a penal bond, made to the people of the state of New York, conditioned that the receiver shall, in all things, well and truly perform the duties of his office in conformity to the rules and practice of the court, and pay and apply what he shall receive or have in charge, as he may from time to time be ordered by the court. The 1 g 298, supra. ' See Steele t. Sturges, 5 Abb., 442. » Voorhies v. Seymour, 26 Barb., *Edw. on Receivers, 92. 570 ; Conger v. Sands, 19 How., 8. 34 522 PROVISIONAL REMEDIES. [Oh. V. usual course is to require the bond to be executed by the receiver and two sureties ; * the latter to be residents and householders or freeholders within the state, and worth severally the amount of the penalty mentioned in the bond. After the bond has been executed by the receiver and his sureties, it must be duly proved or acknowledged in like manner as deeds of real estate, before the same can be received or filed ; ^ and the sureties should justify by an affidavit of justification annexed to the bond and to be filed therewith. The approval of the judge should be indorsed upon the undertaking. If the undertaking is defective in any manner not fatal, it may be remedied by amendment.' The bond, having been duly executed, acknowledged, and approved, is to be filed with the clerk of the court where the judgment roll is filed, or, where the receiver is appointed on a judgment rendered in an inferior court, where the transcript of such judgment has been filed. If the filing of such bond has been inad- vertently omitted, the court may order it to be filed nunc pro tunc* But, ordinarily, the appointment is not con- sidered as complete until the bond is filed.' 13. "Where a receiver has given ample security on his first appointment, the judge can dispense with further security on appointing him, pending his first appointment, receiver of the same estate in another action.* 14. The receiver becomes vested with the debtor's property and effects from the date of filing and recording the order in the clerk's office, as provided in the above section, and of his real property from the time of filing and recording such order in the office of the clerk of the county in which any real estate of such judgment debtor. ' Edw. on Receivers, 89. * Whiteside v. Prendergast, 2 2 Sup. Court, Rule 6. Barb Ch. R., 471. 'See Conklin t. Dutoher, 5 How., ^Voorhies v. Seymour, 26 Barb., 386. 570 ; Conger v. Sands, 19 How., 8. 6 Banks v. Potter, 21 How., 469. § v.] RECEIVERS. 523 sought to be affected by sucb order is situated, and also in tbe office of the clerk of the county where such judg- ment debtor resides.^ "Where the defendant is a non- resident, the latter clause is inapplicable. The language of the section would seem to imply that an actual recording would be necessary, before the receiver could become vested with any property. My own impression is, how- ever, that the order, like deeds of real estate under 1 Eevised Statutes, p. 760, § 24, would be considered as re- corded from the time of its delivery to the clerk for that purpose. If it were otherwise, a delay in recording might greatly prejudice or defeat the rights of the plaintiff. 15. Prior to the amendments of section 298, made in 1862 and 1863, the receiver did not become vested with the debtor's property, until he had filed the requisite security; but when such security was filed, his title related back to the date of the order appointing him, and was not affected by an intermediate levy.^ The amend- ment of 1863 settles the disputed question as to whether the receiver became vested with the debtor's real property without an assignment from him.* 16. The property that vests in the receiver is only such as the debtor owned at the time of the granting of the order for his examination.* That acquired after the granting of such order remains in the debtor, as does also that acquired after the appointment of the receiver." A receiver, by mere force of his appointment, does not become vested with a title to the interest of the judgment debtor, as cestui que trust, in the income of a fund inalienable by such cestui que trusts 'Ear does he become vested with' 1 1 298, supra, as am'd in 1862. * Campbell v. Genet, 2 Hilton, 1863. 290. 2Rutterv. Tallis, 5 Sandf., 610; straff v. Bennett, 25 How., 470; Steele v. Sturgis, 5 Abb., 442. Genet v. Foster, 18 How., 50. 8 See Chautauque Co- Bank v. « Genet v. Foster, supra. Bisley, 19 N. Y. R., 370; Porter v. ■Williams, 5 Seld., 142. 524 PROVISIONAL EEMEDIBS. [Ch. V. the right of action for taking and converting property exempt from execution, nor with the judgment recovered thereon.* 17. When the receiver's title has become perfect by the filing and recording of the order, and the filing of the bond, he is entitled to the immediate possession and control of all such property and efiiects of the debtor as are in his possession, or in the possession of a third person not claiming any right or interest in them. If a third party, alleged to hold property of the debtor, claims an interest in the property adverse to such debtor, the re- ceiver can only recover such property by an action against such third person.^ But all these claims of adverse title or interest must antedate the vesting of the debtor's pro- perty in the receiver ; for any such claim founded on a transfer from the debtor, after that period, is utterly void and will be disregarded.' The order appointing a receiver should contain a clause directing the debtor to deliver his property to the receiver ; but if the order does not contain such direction, the receiver should make a special applica- tion for an order to that effect.* Any refusal to comply with such order will be punished as a contempt. 18. A receiver appointed under this section possesses, generally, the ordinary powers of one appointed under section 244. He represents all the creditors of the judg- ment debtor who have proceedings pending, as well as the judgment debtor himself,' and is to administer the pro- perty vested in him, under the direction of the court, for the benefit of all concerned, first discharging those debts which have acquired an equitable priority.* He can im- 1 Andrews v. Bowan, 28 How., * Watson t. Fitzsimmous, 6 Duer, 126. 629. 'Code, I 299, Kodman v. Henry, ^ Bostwick v. Beizer, 10 Abb., 197; 17 N. Y. B., 482 ; Teller t. Bandall, Seymour v. Wilson, 15 How., 365. 40 Barb., 242. ^Bostwick v. Beizer, supra. ' See Kodman v. Henry, supra. §T-] RECEIVERS. 525 peach fraudulent or illegal transfers made by the debtor, as effectually as the creditor himself could,i and can sue in his own name as receiver.^ But if the transfer of the property is fair and valid, and has taken place before such property became vested in the receiver, he acquired no interest in it whatever. So, if there is a valid lien upon the property, it binds the receiver as fully as the debtpr, and he acquires only such interest in the property as the debtor had at the date of the vesting.^ The receiver may appoint an agent to act for him ; but the appointment should be in writing, and should be exhibited to third parties when the agent is dealing with them on behalf of the receiver.* 19. Every receiver of the property and effects of the debtor shall, unless restricted by the special order of the court, have general power and authority to sue for and collect all the debts, demands and rents belonging to such debtor, and to compromise and settle such as are unsafe and of a doubtful character. He may, also, sue in the name of a debtor, where it is necessary or proper for him to do so; and he may apply for and obtain an order of course, that the tenants of any real estate belonging to the debtor, or of which he is entitled to the rents and profits, attorn to such receiver, and pay their rents to him. He shall also be permitted to make leases, from time to time, as may be necessary, for terms not exceeding one year. And it shall be his duty, without any unreasonable delay, to convert all the personal estate and effects into money ; but he shall not sell any real estate of the debtor without the special order of the court, until after judg- ment in the cause. He is not to be allowed for the costs of any suit brought by him against an insolvent from 1 Seymour v. Wilson, 15 How., 'Gardener v. Smith, 29 Barb., 68; 355 ; Bostwick v. BMzer, supra. Voorhies v. Seymour, 26 Barb., 585. 2 Porter v. Williams, 5 Seld., 143. * v. Lindsey, 15 Vesey, 91 ; see People v. King, 9 How., 97. 526 PEOVISIONAL EEMEDIES. [Ch. V. whom he is unable to collect his costs, unless such suit is brought by order of the court, or by the consent of all persons interested in the funds in his hands. But he may, by leave of the court, sell such desperate debts, and all other doubtful claims to personal property, at public auction, giving at least ten days' public notice of the time and place of such sale." ^ 20. The foregoing rule is a transcript from the 192d rule of the late court of chancery, defining the duties of a receiver appointed in a judgment creditor's suit. Although the rule authorizes the receiver to sue in the name of the debtor, where it is necessary or proper for him to do so, yet this does not seem to dispense with an indemnity on the fund from the receiver to protect the debtor against costs and damages on account of the use of his name. Nor does it, in fact, do away with the propriety of the receiver's obtaining leave of the court to sue in all cafees, for if he sue without such leave, and it turn out not to be a " necessary and proper " case, or the defendant be an insolvent from whom he is unable to collect his costs, he will not be allowed his costs out of the trust fund.^ It would be proper, and, indeed, preferable, so to draft the order appointing the receiver as to incorporate substan- tially the above rule of the court. K that is not done, and the debtor refuses to surrender his property peaceably, or to permit the receiver to take possession thereof, or if the tenants of the debtor's real estate refuse to attorn to him, or if it becomes necessary to sue, and in many other cases, it will be necessary for the receiver to apply to the court on notice for an order specially directing the required thing to be done. 21. It will be observed that the above section provides that no more than one receiver of the property of a judg- 1 Sup. Court, Rule 92. » See Edw. on Eeoeivers, 481. § "V.] RECEIVERS. 527 ment debtor shall be appointed. 'WTiere subsequent judgment creditors apply for a receiver, the original receiver is extended so as to cover the subsequent case. Where two or more happen to be appointed, and there is a conflict between them, the date of appointment, or of order of reference to select, will determine the priority between them.^ 22. The judge may, also, by order, forbid a transfer or other disposition of the property of the judgment debtor, not exempt from execution, and any interference there- with.^ It was provided by a rule of the old court of chancery (and it may be regarded as a good guide herein) that no injunction issued upon any creditor's bill shall be construed to prevent the debtor from receiving and apply- ing to the support of himself or his family, the proceeds of his earnings, subsequent to the service of the injunction order on him ; nor from defraying the expenses of the suit, or to prevent him from complying with any order of this court made in any other cause, to assign and de- liver his property or effects to a receiver, or to restrain him from making the necessary assignment to obtain his discharge under the insolvent laws, unless an express provision to that effect is contained in the injunction. IN'either shall such injunction prevent any other creditor from levying upon such property of the debtor as he may be able to find, and to reach by execution, previous to the entry of an order for a sequestration, or for the appoint- ment of a receiver.' The injunction provided for under this section is similar to that provided in the next section against third persons, and is governed by like rules.* 23. The receiver of the debtor's property appointed in supplementary proceedings, like other receivers, takes > Demlng v. N. Y. Marble Co., 12 2 § 299, supra. Abb., 66; Lottimer v. Lord, 4 E. D. schano. Eule 195. Smith, 183. * See post, p. 530. 528 PEOVISIONAL REMEDIES. [Ch. V. tlie debtor's property subject to all valid liens existing upon it at the time the property vested in such receiver. Therefore, where the receiver has been appointed after the goods have been levied upon by another creditor, such receiver holds them subject to such levy-, and he will be liable upon his promise made to the officer to sell the goods and apply the proceeds upon the execution levied. The title of the receiver only relates back to the date of the order appointing him. The issuing and service of an order instituting proceedings supplementary to execution create no lien against other creditors, who, in the meantime, discover property subject to execution and levy upon the 24. "If it appear that a person or corporation alleged to have property of the judgment debtor, ormdebtedto him, claims an interest in the property adverse to him, or denies the debt, such interest or debt shall be recoverable only in an action against such person or corporation by the receiver ; but the judge may, by order, forbid a transfer or other disposition of such property or interest, till a sufficient opportunity be given to the receiver to commence the action, and prosecute the same to judgment and execution ; but such order may be modified or dissolved by the judge granting the same, at any time on such security as he shall direct." ^ 25. It has been held that the proceedings under this section can only be had in connection with proceedings under section 294; and that before an injunction should be granted as above provided against a person or corpo- ration, such person or corporation should have been examined under section 294.^ Thus, on a motion to re- ' Becker v. Torrance, 31 N. Y. E., 356 ; Woodman v. Goodenough, 18 631. Atb., 265; King v. "Tuska, 1 Duer, 2 Code, § 299. 685. 8 Edmonston v. McLoud, 19 Barb., § v.] RECEIVERS. 529 Strain a third person from disposing of property of tlie debtor, the motion was denied because the affidavit on which the motion was founded did not show that any order had been made under section 294, requiring such third person to appear. Bosworth, J., remarked, "This seems to be necessary in order to make him a party to ■the proceedings, and to enable the court to properly en- join him under section 299." ' 26. This section does not take away the old right of a judgment creditor to maintain an action in the nature of a creditor's bill, against his debtor and a fraudulent as- signee.^ The section is restricted to receiverships under the proceedings supplementary to execution, so that, in those cases, the receiver only can bring action to recover property or debts from persons or corporations in posses- sion thereof, or indebted to the judgment debtor, but who claim an interest adverse to him, or deny the in- debtedness.* The section also applies only to actions against third persons, not to those between the judgment creditor and the judgment debtor alone.* 27. The claim of interest as intended in the foregoing section means something more than a mere naked asser- tion. The party claiming the interest must show some ground or foundation for it, capable of forming an issue of fact for trial, and the court or judge, entertaining the proceedings, has the power to deteripine whether any suffi- cient claim exists, or whether it is a mere pretense.* But a denial of indebtedness by a third party, however, seems to necessitate a proceeding under this section.* And, it may be further observed < that all these claims of adverse title or interest must antedate the vesting of the property ' King T. Tuska, supra. *Catlin v. Doughty, supra. 2 Goodyear T. Betts, 7 How., 187; ^Rid. Sup. Pro., 125, 126. Catlin V. Doughty, 12 How., 457. ^See People t. Hulburt, 6 How., 8 Id. ; and see Edmonston v. M'- 446. Loud, supra. 530 PROVISIONAL REMEDIES. [Ch. V. in the receiver, for any such claim by virtue of a transfer or otherwise made after that period, is utterly void and will be disregarded.^ 28. The order herein provided, to restrain a third party claiming an interest in the property from transferring or otherwise disposing of such property is a different remedy from the provisional injunction, and governed by differ- ent rules. ISo copy of the affidavit on which the order is granted need be served with such order on the defendant, nor is security on the part of the creditor required. The granting of the order rests in the sound discretion of the judge. It may be made at the commencement of, or at any time during the proceedings.^ But no person can be enjoined unless he has been proceeded against under sec- tion 294.3 29. If the order restraining the third person is made by the court, it must be served like a court order, that is, it must be entered and a certified copy obtained and served on such third party without exhibition of the original ; or a copy may be served and a certified copy shown.* But if made by the judge, it may be served in like manner as supplementary orders, by delivering to and leaving with the party to be enjoined personally a copy, and at the same time exhibiting to him the original. If addressed in the ordinary way to a corporation and its agents, etc., and served on the president, it will be sufficient.^ So, knowledge of the injunction, information of its contents, or presence in court when it was made, will be sufficient to impose upon the debtor the duty of obeying it.® 30. The injunction continues in force till the matter in I See Rodman v. Henry, 17 N. Y. ^ See People v. Sturtevant, 5 geld., E., 482. 277 ; see, also, Batterman v. Finn, 2 Green v. BuUard, 8 How., 313. 32 How., 501. 'King V. Tuska, 1 Duer, 635; >= Livingston v. Swift, 23 How., 1 ; Edmonston V. M'Loud, 19Barb., 356. see, also, Edmonston v. M'Loud, 19 *See Mayor of ^. Y. T. Conover, Barb., 361. 5 Abb., 244; Smith v. Smith, 14 Abb., 130, 468. §V.] RECEIVERS. ' 531 controversy is fully disposed of according to the judgment in the receiver's action, if one is brought, or until it is dissolved or abandoned. Any party aggrieved by such injunction may move to have the same dissolved or modi- fied, but the motion should be on notice to the creditors.' 1 See Bid. Sup. Pro., 180. 532 PROVISIONAL REMEDIES. [Ch. V. SECTION VI. RECEIVERS IN CREDITORS' SUITS. 1. When action may be maintained by judgment creditor. 3. Fraudulent conveyances and judg- ments. 3. Actions to cancel prior judgments which have been paid ; concerning bona fide purchaser under fraudulent judgment. 4. Creditor must have judgment, and exe- cution issued and returned. 5. Eeceivers in judgment creditor's action. 6. May be appointed before answer ; for whose benefit he holds property; opposing application. 7. Eeceiver's powers and -duties. 8. Where property has been fraudulently conveyed, creditor may elect to sell it under his execution, or bring action. 9. Creditor cannot issue execution on judgment in the action after appoint- ment of receiver. 10. Powers and duties same as in supple- mentary proceedings. 1. The Code has not taken away the right of a judg- ment creditor under 2 Revised Statutes, 173, sections 38, 39, to commence an action against a judgment debtor and his assignee to set aside a fraudulent assignment and to obtain a receiver.^ But it is otherwise where such action is against the judgment debtor and third persons to dis- cover property belonging to the former, and such remedy can be had now only by supplementary proceedings.^ The remedy was formerly known as a creditor's bill, but, since the Code, the action is commenced by summons and complaint, the same as other actions.* 2. It is provided by the statutes that all conveyances made with the intent to hinder, delay or defraud creditors, shall be void ; * also, that a bill may be filed to discover fraud in confessing a judgment, purporting to be for a sum or debt due, when, in fact, nothing, or only a part of 1 Edw. on Receivers, 364 ; Good- year V. Betts, 7 How., 187 ; Catlin T. Doughty, 12 How., 469. 2 Orr's Case, 2 Abb., 457 ; Sale t. Lawsou, 4 Sandf., 718. 8 Catlin V. Doughty, supra. * 2 R. S., 137. § VI.] RECEIVERS. 533 the sum mentioned in the warrant of attorney or judg- ment is due.i An assignment will be set aside as fraudu- lent and void where, by its express terms, the assignees are authorized to sell the property on credit, and a receiver will be appointed.^ And it has been held that unless an assignment for the benefit of creditors is accompanied by an immediate delivery of the assigned property, and is followed by an actual and continued change of possession, the court will presume it fraudulent and void as against creditors, unless they are satisfied that it was made in good faith and without any intent to defraud.* 3. A judgment creditor may maintain an action to obtain the cancellation of a prior judgment, which is an apparent lien upon the lands of his debtor, but which he alleges has been paid, and this without charging any collusion on the part of the debtor to keep the judgment on foot to defraud creditors.* A party who, in good faith, purchased the property at a sale under a fraudulent judg- ment and assignment, should not be held liable in a creditor's action brought to set aside the judgment and assignment, and to reach the property.' 4. To enable a creditor to maintain an action to set aside a fraudulent transfer, or to remove any impediment to the execution, he must be a judgment creditor, a simple contract creditor cannot maintain the action.* However, an attaching creditor has, before judgment in the attach- ment suit, such a specific lien as will enable him to bring the suit.' The creditor must also show that he has ex- hausted his remedies at law before resorting to this remedy ; that is, that an execution has been issued and 12 K. S., 173; see, also, Sewall v. 6 Dunham v. Waterman, 6 Abb., K. M. & I. Kussell, 2 Paige, 175. 357; 17 N. T. R., 9. 2 Barney t. Griffin, 2 Coms., 365; « Reubens v. Joel, 3 Kern., 488 ; Porter v. Williams,. 5 Seld., 142. Cropsey v. McKinney, 30 Barb., 47. 'Connah t. Sedgwick, 1 Barb., 'Rinohey v. Stryker, 26 How., 210. 75 ; Greenleaf v. Mumford, 30 How., * Shaw V. Dwight, 27 N. Y. R., 244, 30. 534 PEOVISIONAL KEMEDIBS. [Ch. V. returned unsatisfied.^ This is essential to the jurisdiction of the court though there be no property that can be reached by execution at law. And the execution should have been issued to the county in which the property is situated that is alleged to have been fraudulently assigned. Of course, to render such execution of force as to real property, the judgment must be first docketed, or a tran- script thereof filed in such county.^ It seems necessary, also, to issue the execution to every county in which any of the defendants reside.^ It is not essential, however, that the creditor await until the sixty days aftw the issuing of the execution, have elapsed, he may. proceed at any time after the return of the execution.* I^or is it necessary that the assignee of a judgment upon which an execution has been returned unsatisfied issue a new one before filing a creditor's bill thereon.* 6. The appointment of receivers is a matter of frequent occurrence in suits of this kind ; indeed, it is declared to be a matter of course, where the equity of the complaint is not denied on the hearing of the application ; ^ or where the plaintiff' shows a . judgment perfected and execution issued thereon and returned in due form of law. Where an injunction has been obtained in the action to prevent the defendant from disposing of his property, it is the duty of the plaintiff", within a reasonable time, to move for a receiver to preserve and care for the property during the litigation.'^ 6. The application for the receiver may be made before 1 Field T. Hunt, 22 How., 329; * Forbes v. Waller, 25 N. Y. E., Field T. Chapman, 13 Abb., 820, 430 ; Forbes v. Logan, 4 Bosw., same case ; Millard v. Shaw, 4 475 ; Knauth v. Baasett, 34 Barb., How., 137 ; Dunlevy v. Tallmadge, 31 ; Field v. Hunt, 23 How., 80. 29 How., 397. ^(jieaaonv. Gage, 7 Paige, 121. 2 Scholefield v. Hull, cited in Edw. ^ Bloodgood v. Clark, 4 Paige, 574 ; on Receivers, 401 ; Millard v. Shaw, Lent v. McQueen, 15 How,, 314. supra ; Dix y. Briggs, 9 Paige, 695. ' Osborn v. Heyer, 2 Paige, 342 ; 3 Millard v. Shaw, supra ; see otherwise, Scholefield v. Hull, supra. § VI-] EECEIVERS. 535 answer, and the practice is to move for Ms appbintment immediately after the service of the summons. But the debtor should have notice of the motion.' If the receiver be appointed he is not merely a trustee for the party at whose instance he was appointed, but holds the property for the benefit of all creditors who have commenced or shall commence similar suits during the continuance of his trust to be disposed of according to their legal or equitable priorities.^ The application cannot be opposed on the ground that the judgment or execution was irregu- lar. Such question can only be raised by a motion to set aside the irregular proceeding.^ But it seems to be other- wise where the judgment is fraudulent and collusive.* 7. The general powers and duties of receivers in cre- ditor's actions are the same as ordinary receivers in most cases, for which see ante sections 1 and 2. In addition to this they have the powers and duties prescribed by rule 92 of the supreme court. They were also required by rule 194 of the old court of chancery to keep a separate account of any property or eflPects of the debtor which had been acquired since the commencement of the first suit, or which may have been assigned to them under the appoint- ment.° 8. "Where a judgment debtor has made a fraudulent conveyance of his property, the judgment creditor has his election, either to stand upon his judgment lien, and sell upon his execution, and leave the purchaser to impeach the conveyance ; or to proceed by creditor's bill to annul the conveyance and have a receiver. Where he takes the latter course, and the conveyance is set aside, the title of the receiver to the real property and the title of any pur- 1 Bloodgood V. Clark, 4 Paige, 574. * Sandford v. Sinclair, 8 Paige. 374; 2 Edw. on ReoeiTers, 405. §liottenkirg v. Wheeler, 3 John. Ch., sLent V. McQueen, 15 How., 314 ; 280. Hone Y. Woolsey, 2 Edw., 290. sjjciw. on Receivers, 489. 536 PROVISIONAL REMEDIES. [Oh. V. chaser from him are derived from, and rest upon, the debtor's own conveyance to the receiver under the order of the court, and have no relation to the judgment, and are, therefore, subject to a judgment obtained after the judgment on which the bill is filed, but prior to the filing of such bill and the conveyance by the debtor to the receiver.^ 9. In a creditor's suit brought by the plaintiff on behalf of himself and others who may come in, the plaintiff can- not, after judgment, and the appointment of a receiver to collect the debts and assets and apply them to payment of the various creditors, issue execution on the judgment. The receiver only can enforce the judgment.^ 10. For a full statement of the powers and duties of receivers in creditor's actions, see section previous under the head of receivers in supplementary proceedings. The principles, there stated, are equally applicable to receivers , herein. 1 Chautauque Co. Bank v. Risley, * Rigney v. Tallmadge, 19 Abb., 19 N. Y. R., 369. 16. \ §vn.] EECEIVBRS. 537 SECTioiq- vn. RECEIVERS OF CORPORATIONS. 1. Under snb 4, § 244. Eeceivers of oorpora- tione. 2. Must be clear case to authorize. 3. What court may appoint. 4. In actions to vacate charter. 6. Actions by attorney general in name of the people. 6. Judgment of forfeiture against. 7. Bestraining corporation and appointing receiver. 8. Cases provided by special statutes. 9. Not abolished by the Code. 10. Where execution against corporation returned unsatisfied. 11-12. Powers of receiver in such case. 18. Effect of the appointment of. 14. Farther powers and duties. 15. Call meeting of creditors, etc. 16. Order of paying debts, and making divi- dends. 17. Second dividend, and how made. 18. Surplus, how disposed of. 19. Eeceiver subject to supreme court. 20. To render account to court, when and how. 21. Hearing thereon ; account Itom time to time. 22. Dividends in case of banking corpora- tions. 23. To make dividends as ordered by the court. 24. To pay over money to successor. 25. Is a trustee for both parties ; appoint- ment not impeachable collaterally. i. Assets, how distributed among credi- tors. When corporation may satisfy judgment and have receiver discharged. Proceedings against directors, etc., of a corporation. Jurisdiction, how exercised. On whose.application. Effect of suspending business, etc., for one year. What acts amount to a suspension. Voluntary dissolution. Petition to be referred; appointing receiver. Who may be receivers, and their powers. Their general powers and duties. Proceedings against insolvent banking and insurance corporations. Appointing and duties of receiver there- upon. . When to file statements, to distribute moneys, etc. Of mutual insurance companies to make assessments on premium notes. Where officers have misapplied pro- perty. In mutual insurance cases controversies may be referred. Eeceivers of savings banks how to dis- tribute money. Compensation of receivers of corpora- tions. 1. By the fourth subdivision of the section, it is pro- vided that a receiver may be appointed : " In the cases , provided in this Code, and by special statutes, when a cor- poration has been dissolved or is insolvent, or in imminen^ danger of insolvency, or has forfeited its corporate rights ; 35 538 PROVISIONAL REMEDIES. [Ch. V. and, in like cases, of the property within this state of foreign corporations. Eeceivers of the property within this state of foreign, or other corporations shall be allowed such commissions as may be fixed by the court appoint- ing them, not exceeding five per cent on the amount received and disbursed by them." 2. To authorize an injunction and receiver of a corpo- ration, the case must be brought clearly within the provisions of the statute; and there must be a well grounded apprehension of injury about to be .done.^ 3. The supreme court is the only court that has juris- diction to wind up the afiairs and appoint a receiver of a corporation, either domestic or foreign ; " and it is also held that a county court has no jurisdiction to appoint a receiver in a statutory proceeding in relation to the pro- perty of a corporation.® 4. The "cases provided in this Code " are to be found in sections 429, 430, 432, 442 and 444. Bj section 429 it is provided that " an action may be brought by the attorney general, in the name of the people of this state, whenever the legislature shall so direct, against a corporation, for the purpose of vacating or annulling the act of incorpo- ration, or an act renewing its corporate existence, on the ground that such act or renewal was procured upon some fraudulent suggestion or concealment of a material fact by the persons incorporated, or by some of them, or with their knowledge and consent." And, by section 430, it is pro- vided that " an action may be brought by the attorney general, in the name of the people of this state, on leave granted by the supreme court, or a judge thereof, for the purpose of vacating the charter or annulling the existence of a corporation, other than municipal, whenever such cor- 1 1 Edw. Ch., 84 ; Kean v. Colt, 1 Duer, 608 ; Kattenslroth v. The Hals. Ch., 265. Astor Bank, 2 Duer, 632. 2Day v. U.S. Car Spring Co., 2 ^wiieatonT.Gates, 18N. Y.R.,395. § ^II-] EECErVERS. ggg poration shall : 1. Offend against any of the provisions of the act or acts creating, altering or renewing such corpora- tion ; or, 2. Violate the provisions of any law by which such corporation shall have forfeited its charter by abuse of its powers ; or, 3. Whenever it shall have forfeited its privi- leges or franchises by failure to exercise its powers ; or, 4. Whenever it shall have done or omitted any act which amounts to a surrender of its corporate rights, privileges or franchises ; or, 5. Whenever it shall exercise a fran- chise or privilege not conferred upon it by law. And it shall be the duty of the attorney general, whenever he shall have reason to believe that any of these acts or omissions can be established by proof, to apply for leave, and upon leave granted to bring the action in every case of public interest, and, also, in every other case in which satisfactory security shall be given to indemnify the people of this state against the costs and expenses to be incurred thereby." 6. By section 432 it is provided, among other things, that an action may be brought by the attorney general in the name of the people of this state, upon his own information or upon the complaint of any private party; against the parties offending in the following cases: 3. " When any association or number of persons shall act within this state as a corporation,, without being duly incorporated." 6. "If it shall be adjudged that a corporation, against which an action shall have been brought pursuant to tthis chapter, has, by neglect, abuse or surrender, forfeited its corporate rights, privileges and franchises, judgment shall be rendered that the corporation be excluded from such corporate rights, privileges and franchises, and that the corporation be dissolved." * 1 Code, i 442. 540 • PEOVISIONAL REMEDIES. [Oh. V. 7. " When such judgment shall be rendered against a corporation, the court shall have the same power to restrain the corporation, to appoint a receiver of its property, and to take an account, and make distribution thereof, among its creditors, as are given in article three, title four, chapter eight of the third part of the Kevised Statutes ; and it shall be the duty of the attorney general, immediately after the rendition of such judgment, to institute proceedings for that purpose." ^ 8. The cases provided by special statutes are to be found in the second and third articles of title four, chapter eight, part third of the Eevised Statutes.^ Those articles are entitled, " Of proceedings against corporations in equity, etc.," and " Of the voluntary dissolution of corporations." There are, also, several acts, enlarging or defining the powers and duties of receivers of corpora- tions, which will be cited hereafter in extenso. 9. The proceedings against corporations in equity, as they are provided by the revised statutes, are by section 471 of the Code, preserved ; and provision is made for se- curing them by civil action to be prosecuted in conformity with the Code. The powers which were before exercised by the chancellor over directors, managers, trustees and officers of corporations now vest in the supreme court.* 10. Whenever a judgment at law, or a decree in equity, shall be obtained against any corporation, incorporated under the laws of the state of New York, and an execu- tion has been returned unsatisfied, in part or in whole, a receiver maybe appointed to take, charge of the pro- perty and effects of such corporation. The petition is to be made by the person obtaining such judgment or decree, or by his representatives.* The judgment creditor may 'Code, ? 444. 3 3 R. S. (5th ed.), 762; Edw. on ' 3 E. S., (5th ed.), 461. Receivers, 163. * 2 E. S., 463, J 36. § VII.] RBCBIVEES. ' 541 proceed by bill or action, instead of by petition, and this will be a proper course where he intends, also, to proceed against the directors or stockholders, to charge them per- sonally, in case the corporate property is insufficient to pay the debt.^ 11. Any receiver appointed by virtue of the foregoing section, has the same rights, power and authority, and is subject to the same obligations and duties, as are provided in article third, title fourth, chapter eight, part third of the Revised Statutes in relation to receivers appointed in case of the voluntary dissolution of a corporation.^ The decisions in Verplank v. Mercantile Insurance Company (2 Paige, 448), and in Mann v. Pentz (3 Comst., 415), to the effect that such receiver was simply a common law receiver — without other authority than that conferred by the order appointing him — are no longer offeree. 12. The provisions of the statute in relation to receivers in case of the voluntary dissolution of a corporation which are thus made applicable to receivers under section thirty- six, are as follows : Such receiver shall be vested with all the estate, real and personal, of such corporation, from the time of their having filed the security hereinbefore required, and shall be trustees of such estate for the benefit of the creditors of such corporation and of its stockholders.^ Such receiver shall have all the power and authority conferred by law upon trustees to whom an assignment of the estate of insolvent debtors may be made, pursuant to the provisions of the fifth chapter of the second part of the Revised Statutes.* If there shall be any sum remaining due upon any share of stock sub- scribed in such corporation, the receivers shall imme- 1 Judson V. The Roesie, etc., Co., 481 ; Bangs t. Duckenfield, 18 N. T. 9 Paige, 598; Corning v. Mohawk B., 592. Ins. Co , 11 How., 190. S2 R. S., 469, ? 67. 2 Laws' 1852, chap. 71 ; 1866, chap. * Id., J 68. 403 ; see, also, Be Campbell, 13 How., 542" PROVISIONAL REMEDIES. [Ch. V. I diately proceed and recover tlie same, unless the person so indebted shall be wholly insolvent ; and for that pur- pose may commence and prosecute an action for the recovery of such sum, without the consent of any creditors of such corporation.^ The receivers, immediately on their appointment, shall give notice thereof, which is to contain the same matter required by law in notices of trustees of insolvent debtors ; and, in addition thereto, is to require all persons holding any open or subsisting contract of such corporation to present the same in writing, and in detail to such receivers, at the time and place in such notice specified ; which shall be published for three weeks in the state papers, and in a newspaper printed in the county where the principal place of con- ducting the business of such corporation shall have been situated.^ 13. The effect of the appointment of such receiver, is to render void all sales, assignments, transfers, mortgages, and conveyances, of any part of the estate, real or per- sonal, including things in action, of every such corpora- tion, made after the filing of the petition for a dissolution thereof, in payment of, or as security for, any existing or prior debt, or for any other consideration, and all judg- ments confessed by such corporation after that time, shall be absolutely void as against the receivers who may be appointed on such petition, and as against the creditors of such corporation.* 14. After the first publication of the notice of the appointment of receivers, every person, having possession of any property belonging to such corporation, and every person indebted to such corporation shall account and answer for the amount of such debt, and for 12R. S., g69. 3 Id., ? 71; Ke Waterbury, 8 2 2 B. S., 469, ? 70. Paige, 380. § VIL] RECEIVERS. .543 the value of such property to the said receivers ; and all the provisions of law, in respect to trustees of insolvent debtors, the collection and preservation of the property of such debtors, the concealment and discovery thereof, and the means 'of enforcing such discovery, shall be applicable to the receiver so appointed and to the property of such corporation.'^ Such receivers shall have the same power to settle any controversy that shall arise between them and any debtors or creditors of such corporation by a reference as is given by law to trustees of insolvent debtors ; and the same proceedings for that purpose shall be had, and with the like effect, and application for the appointment of referees may be made to any officer authorized to appoint such referees on the application of trustees of insolvent debtors, who shall proceed therein in the same manner, and the referees shall proceed in like manner and file their report with like effect in all respects.^ 15. The receivers shall be subject to all the duties and obligations by law imposed on trustees of insolvent debtors, so far as they may be applicable, except where other provisions shall be herein made. They shall call a general meeting of the creditors of such corporation, within four months from the time, of their appointment, when all accounts and demands for and against such cor- poration, and all its open and subsisting contracts, shall be ascertained and adjusted so far as may be, and the amount of the moneys in the hands of the receivers declared.^ If there shall be any subsisting engagements or contracts of such corporation, which are in the nature of insurances or contingent engagements of any kind, the receivers may, with the consent of the party holding such engagement, cancel and discharge the same, by refunding 12R. S., 469, § 72. «U., § 74. 2Id., ? 73. 544 PROVISIONAL REMEDIES. [Ch. V. to such party the premium or consideration paid thereon by such corporation, or so much thereof as shall be in the same proportion to the time which shall remain of any risk assumed by such engagement as the whole premium bore to the whole term of such risk, and upon such amount being paid by such receivers to the person hold- ing or being the legal owner of such engagement, it shall be deemed canceled and discharged as against such receivers.' The receivers shall retain out of the moneys in their hands, a sufficient amount to pay the sums, which they are herein before authorized to pay, for the purpose of canceling and discharging any open or subsisting engagements.^ If any suit be pending against the cor- poration, or against the receivers for any demand, the receivers may retain the proportion which would belong to such demand if established, and the necessary costs and proceedings, in their hands, to be applied according to the event of such suit, or to be distributed in a second or other dividend.' 16. The receivers shall distribute the residue of- the moneys in their hands, among all those who shall have exhibited their claims as creditors, and whose debts shall have been ascertained, as follows : 1. All debts entitled to preference under the laws of the United States. 2. Judgments actually obtained against such corporation, to the extent of the value of the real estate on which they shall respectively be liens. 3. All other creditors of such corporation, in proportion to their respective demands, without giving any preference to debts due on specialties.* 17. If the whole of the estate of such corporation be not distributed on the first dividend, the receivers shall within one year thereafter, and within sixteen months 1 2 E. S., 470, ? 75; Ee Croton Ins. » Id., § 78. Co., 3 Barb. Ch., 642. *Id., | 79. 2 Id., §77. § VII.] RECEIVERS. 545 after their appointment, make a second dividend, of all the moneys in their hands among the creditors entitled thereto ; of which, and that the same will be a final dividend, three weeks' notice shall be inserted once in each week, in the state paper, and in a newspaper printed in the county where the principal place of business of such corporation was situated.' Such second dividend shall be made in all respects in the same manner as herein prescribed, in relation to the first dividend, and no other shall be made thereafter among the creditors of such corporation, except to the creditors having suits against it " or against the receivers, pending at the time of such second dividend, and except of the moneys which may be retained to pay such creditors as herein provided; but every creditor, who shall have neglected to exhibit his demand before the first dividend, and who shall deliver his account to the receivers before such second dividend, shall re- ceive the sum he would have been entitled to on the first dividend, before any distribution be made to the other creditors.* 18. After such second dividend shall have been made, the receivers shall not be answerable to any creditor of such corporation, or to any person having claims against such corporation, by virtue of any open and subsisting engagement, unless the demands of such creditor shall have been exhibited and the engagements upon which such claims are founded, shall have been presented to the said receivers, in detail and in writing, before or at the time specified by them in their notice of a second dividend.* If, after the second dividend is made, there shall remain any surplus in the hands of the receivers, they shall distribute the same among the stockholders of 12K. S.. 470, ?80. ni.,i 82. 2 Id., i 81. 546 PROVISIONAL REMEDIES. [Ch. V. such corporation, in proportion to the respective amounts paid in by them, severally on their shares of stock.^ When any suit pending, at the time of the second divi- dend shall be terminated, they shall apply the moneys retained in their hands for that purpose, to the payment of the amount recovered, and their necessary charges and expenses ; and if nothing shall have been recovered, they shall distribute such moneys, after deducting their ex- penses and costs, among the creditors and stockholders of the corporation, and in the same manner as herein directed ' in respect to a second dividend.^ 19. The receivers shall be subject to the control of the supreme court, and may be compelled to account at any time; they may be removed by the court, and any vacancy created by such removal, by death or otherwise, may be supplied by the court.' 20. Within three months after the time herein pre- scribed for making a second dividend, the receivers shall render a full and accurate account of all their proceedings to the supreme court, on oath, which shall be referred to a referee to examine and report thereon.^ Previous to rendering such account, the receivers shall insert a notice of their intention to present the same, once in each week, for three weeks, in the state paper, and in a newspaper of .the county, in which notices of the dividends are herein required to be inserted, specifying the time and place at which such account will be rendered.^ The referee to whom such account shall be referred, shall hear and examine the proofs, vouchers and documents offered for or against such account, and shall report thereon fully to the court.^ 21. Upon coming in of such report, the court shall hear 12R. S., 471, § 83. *Id., ? 86. 2 Id., g 84. 6 Id., I 87. 'Id., ? 85. 8 Id., ? 88. § Vn.] EEOBIVEBS. 547 the allegations of all concerned therein, and shall allow or disallow such account, and decree the same to be final and conclusive upon all the creditors of such corporation, upon all persons who have claims against it, upon any- open or subsisting engagement, and upon all the stock- holders of such corporation. Such receivers shall also account, from time to time, in the same manner, and with the like efiect, for all moneys which shall come to their hands after the rendering of such account, and for all moneys which shall have been retained by them for any of the purposes hereinbefore specified, and shall pay into court all unclaimed dividends.^ The order upon any such accounting may be appealed from the same as other orders of the court.^ 22. It shall be lawful for receivers of the property and effects of banking corporations, from time to time, to make dividends of the moneys in their hands among the creditors of such corporation, until the payment of such creditors in full ; and no dividends shall be made to the stockholders of such corporations until after the final dividends to the creditors.^ 23. Such receiver shall be subject to the direction and control of the supreme court, as to the time of making dividends, both to the credit&rs and stockholders of such corporations, and as to the time of closing up the concerns of such corporations, and rendering their final account.* 24. Whenever the receiver of any insolvent corpora- tion, or joint stock associations for banking purposes, has been removed, and has neglected, for the period of sixty- days after the appointment of his successor, to pay to such successor tbe moneys remaining in his hands, or any part thereof, then, and in that case, such successor may 12 K. S., 472, I 89. sLaws 1844, chap. 239, § 1. 2 Id., I 90; Laws 1854, p. 592. * Id., ^ 2. 548 PROVISIONAL REMEDIES. [Ch. V. bring and maintain an action, in any court of competent jurisdiction, for the moneys so neglected to be paid over, or any part thereof, against the receiver so removed and his surety or sureties, on the bond given by such receiver so removed for the performance of his duty as such receiver.^ 25. The receiver stands as a representative and trustee both of the creditors and of the corporation.^ He is bound by all the legal acts and transfers of such corpora- tion ; but not by those that are illegal.* It is his duty to require the solvent stockholders to pay up the balance due from them on their stock ; * and the rule is the same whether the stock be held by the original stockholders or by assignees.' A resolution of the company that there shall be no further call on shares will be void as against a receiver appointed after its insolvency.^ Should the receiver bring an action against the shareholder to compel him to pay up his share, the defendant therein cannot question the regularity or propriety of the receiver's ap- pointment.'^ 26. It will be observed that the provisions of the statute contemplate an equal distribution among all the creditors, without reference to the time in which their respective debts accrued, although the creditor upon whose applica- tion the receiver may have been appointed, has actually pro- ceeded to judgment and execution against the company.* To entitle a creditor to a preference in payment over ano- ther, he must have obtained a specific appropriation or an equitable lien upon the same particular part of the fund.' iLaws 1866, chap. 26. ^Sagory v. Dubois, 3 Sandf. Ch., 2 Gillett T. Moody, 3 Comst., 479 ; 466. Tallmadge v. Pell, 3 Seld., 328. ' Id. 2 Hyde V. Lynde, 4 Comst., 887 ; *Lowene v. American Fire Ins. Brouwer v. Harbeok, 1 Duer, 114. Co., 6 Paige, 482. * Pentz T. Hawley, 1 Barb. Ch., 9 De Peyster v. American Fire 122. Ins. Co., 6 Paige, 486. 5 Mann v. Currie, 2 Barb., 294. § VII.] EECEIVEE8. 549 27. Should the corporation pay the claim and costs of the petitioning creditor, the court may order the proceed- ings to be discontinued, and the receiver to be discharged, provided there is no other creditor that has sought to avail himself of the benefit of the proceedings.' 28. The statute also provides that the supreme court shall have jurisdiction over directors, managers and other trustees and officers of corporations : 1st, To compel them to account for their official conduct in the manage- ment and disposition of the funds and property committed to their charge ; 2d, To decree and compel payment by them to the corporation whom they represent, and to its creditors, of all sums of money, and of the value of all property which they may have acquired to them- selves or transferred to others, or may have lost or wasted by any violation of their dutie's as such trustees ; 3d, To suspend any such trustee or officer from exercising his office, whenever it shall appear that he has abused his trust ; 4th, To remove any such trustee or officer from his office, upon proof or conviction of gross misconduct ; 5th, To direct new elections to be held by the body or board duly authorized for that purpose, to supply vacan- cies created by such removal ; 6th, In case there be no such body or board, or all the members of such board be removed, then to report the same to the governor, who shall be authorized, with the consent of the senate to fill such vacancies ; 7th, To set aside all alienations of property made by the trustees or other officers of any corporation, contrary to the provisions of law, or for pur- poses foreign to the lawful business and objects of such corporation, in cases where the person receiving such alienation knew the purpose for which the same was made ; and 8th, To restrain and prevent any such alienation in ' Angell V. Silabury, 19 How., 48. 550 PROVISIONAL REMEDIES. [Oh. V. cases where it may be threatened, or there may be good reason to apprehend it will be made.^ 29. The jurisdiction conferred by the statute cited above shall be exercised as in ordinary cases, on bill or petition as the case may require, or the supreme court may direct, at the instance of the attorney general, prosecuting in behalf of the people of this state, or at the instance of any creditor of such corporation, or at the instance of any director, trustee, or other officer of such corporation hav- ing a general superintendence of its concerns.^ 30. The visitorial powers above conferred can only be exercised by the supreme court on the application of the attorney general prosecuting in behalf of the people of this state, or at the instance of a creditor or of a director, trustee or other officer having a general superintendence of the corporate concerns. Therefore a stockholder, or any trustee or officer not having such general superintend- ence, cannot maintain an action under this section, to have the corporation dissolved, and for the appointment of a receiver. N'or can the court in such case entertain such action or grant such relief under its general powers as a court of equity.^ 31. Whenever any incorporated company shall have remained insolvent for one whole year, or for one year shall have neglected or refused to pay and discharge its notes or other evidences of debt, or for one year shall have suspended the ordinary and lawful business of such corppration, it shall be deemed to have surrendered the rights, privileges, and franchises granted by any act of incorporation, or acquired under the laws of the state, and shall be adjudged to be dissolved.* 32. A suspension of business for more than a year. 12 R. S., 462, § 33. ' Howe v. Dewel, 43 Barb., 504. 2 Id., §35. *2 R. S., 463, § 38. § Vn.] RECEIVERS. 551 under a formal resolution to that effect, by the board of directors, is a forfeiture of its charter under the above provision, although the company in the mean time had attended to the adjustment of losses upon risks previously assumed and to collecting in and securing the corporate funds.^ So, where a manufacturing corporation leased its works for two years and a half, it was held to amount to a suspension of its ordinary business for more than a year, although the business was conducted as usual by the lessee.^ 33. Whenever the directors, trustees, or other officers having the management of the concerns of any corpora- tion, or the majority of them shall discover that the stock, property and effects of the corporation have been so far reduced by losses or otherwise, that it will not be able to pay all just demands to which il maybe liable, or to afford a reasonable security to those who may deal with such corporation, or whenever such directors, trustees or officers, or a iaajority of them shall, for any reason, deem it beneficial to the interest of the stockholders that the corporation should be dissolved, they may apply to the supreme court by petition, for a decree dissolving such corporation, pursuant to the provisions of the statute.-' This does not extend or apply to an incorporated library society, religious corporation, or to any select school or academy incorporated by the regents of the university, or by the legislature.* ' 34. The petition will be referred to a referee, to .hear the allegations and proofs of the parties, and take testi- mony in relation thereto ; and he is with all convenient speed to report the same to the court with a statement of the property, effects, debts, credits and engagements of iWardv. Sealns. Co.,7Paige,294. '2 B. S., 467, § 58. 2 Conro T. Port Henry Iron Co., 12 *Id., 472, ? 91. Barb,, 27. 552 PROVISIONAL REMEDIES. [Ca V. such, corporation and of all other matters and things per- taining to the affairs of such corporation. Upon the coming in of the report, if it shall appear to the court that such corporation is insolvent, or that for any other reason, a dissolution thereof will be beneficial to the stockholders, and not injurious to the public interest, a decree is to be entered dissolving the corporation and appointing one or more receivers of its estate and effects ; and such corporation will, thereupon, be dissolved and cease to exist.^ 35. Any of the directors, trustees, or other officers of such corporation, or any of its stockholders, may be ap- pointed receivers ; but before they enter upon the duties of their appointment, they will have to give security to the people of the state in such penalty as the court shall direct, conditioned for the faithful discharge of the duties of their appointment, and for the due accounting for all moneys received by them. Such receivers will be veste'd with all the estate, real and personal, of such corporation, from the time of their having filed their security, and be trustees of such estate for the benefit of the creditors of such corporation, and of its stockholders. And they will have all the power and authority conferred by law upon trustees to whom an assignment of the estate of insolvent debtors may be made.^ 36. The general powers and duties of receivers under the above provisions relating to a voluntary dissolution of a corporation, are iudentical, in all respects, with the powers and duties of receivers on proceedings by judg- ment creditors as given in the former part of this section.' 37. "Whenever any corporation having banking powers or having the power to- make loans on pledges or 1 2 R. S., 468, ? 65. ' See Laws, 1852, chap. 71 ; 1860, 2 Id., § § 66,67, 68. chap. 403. § Vn.] RECEIVERS. 553 deposits, or authorized by law to make insurances, shall become insolvent or unable to pay its debts, or shall have violated any of the provisions of its act or acts of incorpo- ration, or of any other act binding on such corporation, the supreme court may, by injunction, restrain such corpora- tion and its officers from exercising any of its corporate rights, privileges, or franchises, and from collecting or receiving any debts or demands, and from paying out, or in any way transferring or delivering to any person any of the moneys, property or effects of such corporation, until the court shall otherwise order.^ 38. Upon such application being made, and in any stage of the proceedings thereupon, the court may ap- point one or more receivers to take charge of the pro- perty and effects of such corporation, and to collect, sue for and recover the debts and demands that may be due, and the property that may belong to such corporation, who shall in all respects be subject to the control of the court.^ The powers and duties of receivers herein are the same as are the powers and duties of receivers appointed in case of the voluntary dissolution of a corporation.' What those powers and duties are has been stated at large in the former part of this section. 39. It is also the duty of the receiver to keep an account of all moneys received by him, and on the first days of January, April, July and October, in each and every year, to make and file a written statement, verified by his oath that such statement is correct and true,' showing the amount of money received by the receiver, his agents, or attorneys, the amount he has a right to retain under the provisions of the statute and the items for which he claims to retain the same, and the distributive share due each 12E. S., 463, §39. sid., §42- "Id., ?41- 36 554 PROVISIONAL REMEDIES. [Ch. V. person interested therein. He is required, also, to pay- such distributive share to the person or persons, entitled thereto, on demand at any time after such statement. Such account, statement, and all the books and papers of the corporation in the hands of the receiver, shall at all reasonable times be open for the inspection of all persons having an interest therein. And, in case of neglect or refusal to comply with either of the above requirements, or any duty imposed upon him by the statute, the supreme court, at either a general or special term, shall, on the application of the party aggrieved, unless such neglect or refusal shall be satisfactorily explained to the court, forth- with remove such receiver, and appoint some suitable person as receiver in his place. Such removal shall not vitiate or annul any legal proceedings had by such re- ceiver ; but such proceedings shall be continued by such successor as if no removal had been made. Such receiver shall also be liable to pay to the party interested, interest at the rate of ten per cent per annum, on all moneys due to such party and retained by him more than one day after such demand made as aforesaid.^ 40. In case the corporation in regard to which the receiver is appointed, is a mutual insurance company, such receiver has full power under the authority and sanction of the court appointing him, to make all such assessments on the premium notes belonging to the corpora- tion as may be necessary to pay the debts of the corpora- tion, as by the charter thereof the directors of the corporation have authority to make ; and the notice of such assessment may be given in the same manner as is provided in the charter of the company for the directors of the company to give ; and the receiver shall have the like rights and remedies upon and in consequence of the 1 2 E. S., 464, ? 42 ; as amended, Laws 1858, p. 592. § VII.] RECEIVERS. 555 nonpayment of the assessment as are given to the cor- poration or the directors thereof by the charter of the corporation.^ The receiver in mutual insurance cases may receive a voluntary surrender of all policies issued by the corporation, or may cancel the policies issued by the corporation, in all cases where by the charter of the corporation the directors thereof are authorized to receive the surrender of, ' or to cancel the policies issued by the corporation.* 41. Upon a proper action instituted for that purpose by the receiver, the court appointing the receiver, may examine by a reference or otherwise, into the proceedings and acts of the corporation ; and if it shall appear upon such examination, that the directors or officers of the corporation, or either, or any of them, have in any man- ner misapplied, or improperly disposed of the fund, property, or effects of the corporation, the court may decree that the directors or officers of the corporation that have been guilty of the misapplication or improper disposition of such funds, property, and effects, pay the same to such receiver, and may enforce such decrees by such process as may be necessary to accomplish that object.^ 42. In respect to mutual insurance companies it is far- ther provided that the receiver, in case of a controversy in the settlement of any demand or claim against any member or stockholder of the company or other person may consent to a reference of such controversy.^ 43. The receiver or receivers of any savings bank or institution for savings, now or hereafter appointed in pur- suance of section forty-one of title four of chapter eight of the third part of the Revised Statutes, shall, after having iLaws 1852, p. 67; Bangs v. aid., g 4. Duokinfield, 18 N. Y. R., 592. * See Laws 1862, p. 743. ' Laws of 1852, p. 67, g 3. 556 PEOVISIONAL REMEDIES. [Ch. V. complied with all the provisions of said title from the section aforesaid to and including section seventy-eight of said title, distribute the residue of the moneys in their hands among all the creditors of said savings bank or institution for savings whose debts shall have been ascer- tainedfrom an examination Of the books of account which shall have been kept by such savings bank, or institution for savings or otherwise in the order prescribed by section seventy-nine of said title, whether such creditors shall then have exhibited their claim or not.^ 44. Receivers of the property within this state of foreign or other corporations, shall be allowed such com- missions as may be fixed by the court appointing them, not exceeding five per cent on the amount received and disbursed by them.^ But the revised statutes provide that receivers of moneyed corporations are entitled to the same commissions and compensation for their services as are now allowed by law to executors and administrators.' And also that receivers of a corporation seeking a volun- tary dissolution, are entitled, in addition to their actual disbursements, to such commissions as the court shall allow, not exceeding the sum allowed hy law to executors or administrators.^ The compensation of executors and administrators is as follows ; For receiving and paying out all sums of money, not exceeding one thousand dol- lars, at the rate of five per cent. For receiving and pay- ing out any sums exceeding one thousand dollars and not amounting to ten thousand dollars, two and a half per cent. For all sums above ten thousand dollars, one per cent.' (For forms herein, see 'So. 133). • Laws 1855, chap. 336, p. 612. <'2 R. S., 469, | 76. 2 Code, § 244, sub 4, as amended, »§ 58, art. 3, tit. 3, chap. 6, part 2, 1867. K. S. ; as amended, 1863, chap. 362, s Laws 1842, p. 4. ?8. §viii.] RECEIVERS. 557 SECTION vni. OTHER PROVISIONAL REMEDIES. DEPOSIT OF MONEY, ETC., IN COURT. 1. Deposit of money, etc., in cooit. a. Similar to ttie old practice. 5. In what caseB order granted. 4. In actions against execntore and admin- istrators . 6. Wliat property contemplated. 6. Motion, by whom made, on what papers, and to what court. 7. Order what to contain, and how served. 8. Property, etc., how deposited. 9. Disobedience, how punished. 1. " When it is admitted by the pleading or examina- tion of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be depo- sited in court, or delivered to such party, with or with- out security, subject to the further direction of the court. " Whenever, in the exercise of its authority, a court shall have ordered the deposit, delivery, or conveyance of money, or other property, and the order is disobeyed, the court, besides punishing the disobedience, as for contempt, may make an order, requiring the sheriff to take the money or property and deposit, deliver, or convey it, in conformity with the direction of the court."* 2. The above provision covers the subject of payment of money into court, which was formerly an important branch of equity practice." I have been able to find but very few decisions directly on the subject, made since the 'Sub 5,^ 244. " See 1 Barb. Ch. Pr., 236 ; 1 Hoff. Pr., 319. 558 PEOVISIONAL REMEDIES. [Oh. V. Code, and shall, therefore, rely more fully on the old practice. 3. "Where the defendant, by answer, clearly admitted that he had trust moneys in his hands, the court would always osder it to be paid into court, upon an interlocutory application therefor,^ without regard to any question of violation of trust, or insolvency of the trustees.^ The order was also proper upon admissions appearing from the examination of the defendant before the master.' But, as a general rule, to entitle the plaintiff to an order directing the delivery of property into court, he must show himself to be solely entitled, or to have such an interest jointly with others as to entitle him, on behalf of himself and those others, to have the fund or property secured.* 4. Where the defendant — an executor — admits that he has moneys of the testator in his hands, the court will order it paid into court, notwithstanding the executor alleges that he has loaned such money upon a promissory note bearing interest.* So, in an action against executors or administrators for a distribution of the estate of dece- dent, if it clearly appear that there is money belonging to the estate in their hands uninvested, and to which such executors or administrators have no claim, the court will order it brought into court.^ 5. The above provision of the Code undoubtedly has reference to specific property, whether money or any thing else, that can be traced or identified.' "Where it appeared, by the pleadings that the plaintiff had deposited money which was the subject of the action with the defendant to be by him paid to a third party (the defendant being iClarkson v. De .Peyster, Hopk., * Freeman v. Fairlie, 3 Mer., 29. 274; 1 Barl). Ch. Pr., 237. * Vigrass v. Binfield, 3 Mad., 62. 2Id. 'Hosaok t. Rogers, 6 Paige, 416. 8 1 Barb. Ch. Pr., 237. ' Lane v. Losie, 11 How., 360. §Vin.] RECEIVERS. 559 security for the payment thereof to such third party) which money was in the defendant's possession, an order was granted that such money be paid into court or delivered to the plaintiff.^ So, the order may be made though the defendant holds the money as agent merely, and not as trustee ; as where an action was brought to recover from the defendant a sum of money which came into his hands as agent for the plaintiff; and an injunc- tion had been granted to restrain the disposition of the fund, the defendant moved for and obtained an order allowing him to pay the money into court.^ 6. The motion to pay into court may be made by either party,^ and should be addressed to the court, at special term, on the usual notice of eight days, or order to show cause. It is based on the pleadings, or pleadings and examination, or other proceedings in the cause, showing the admission of the defendant. 7. The order should clearly direct what disposition is to be made of the money or other property, whether it is to be paid into court or to be delivered to the plaintiff, and, in the latter case, whether the plaintiff" is to give security or not, and as to the amount, etc. It should also direct within what time the delivery or deposit is to be made. The order is to be entered and served the same as other orders, but it must be served personally on the defendant to bring him into contempt. (See form No. 134). 8. The property or thing directed to be brought into court is to be deposited with the clerk of the county where the action is triable.* If, however, it be money, it must be paid to the county treasurer of the county in which the action is triable, pursuant to the directions oT the 81st rule of the court. iBurhans t. Casey, 4 Sandf., 706. ' Id. »Merritt v. Thompson, 1 Abb., * 1 Van Sant. Eq. Pr., 271. 223 ; 10 How., 428. 560 PROVISIONAL REMEDIES. [Ch. V. 9. Should the defendant disobey the order, the plaintiflF should move, upon proof of such disobedience, and on due notice of motion, for an attachment against him as for a contempt. Or he may obtain and serve an orSer to show cause why he should not be punished for the con- tempt. And, in addition to that, the court may make an order requiring the sheriff to take the money or property, and deposit, deliver or convey it in conformity with the directions of the court. §ix.] EEOEIVBRS. 561 SECTION IX. SATISFACTION OF PAKT OF CLAIM ADMITTED DUB. 1. SatiBfaction of part of claim admitted dne. 8. Wlien order will be granted. 5. MiBcellaneoiiB caBeB. i. Cases where the order was denied, 6. Where plaintiff's claim is single and entire. 6. Motion, where and how made. 7. Order, how made and entered. 8. How served. 9. Where order is not obeyed. 10. Order, how enforced. 11. Order, when appealable. 1. " When the answer of the defendant expressly, or hy not denying, admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy." ^ The words in italics were inserted by the amendment of 1857. 2, This power to order payment of an admitted part of a claim pending suit as to the balance, is of long usage in courts exercising equity jurisdiction.^ The motion is addressed to the discretion of the court, and should only be granted in a clear case.* The admission should be distinct and unequivocal of a definite sum being due, or such facts should be admitted as necessarily amount to such an admission ; and it must be an admission of part only of the plaintiff 's claim, where the whole claim is admitted, there should be a judgment.^ It was the former practice, and is, no doubt, true now, that an application to pay money into court, or to a party before final decree, or, at least, before a report of a master, must be founded ' Last clause of sub 5, § 244. ^ Clarkson v. De Peyster, Hopk., 274. 'Eussell T. Meaoham, 16 How., 193, per Harris, J. *Slausoii V. Conkey, 10 How., 57. 562 PROVISIONAIi REMEDIES. [Oh. V. upon a full and explicit admission in the answer, or exa- mination of the defendant, of a sum being due. The court will not investigate the case to decide whether it is so.^ A plea of tender is an unequivocal admission of the justice of the plaintiff's claim to the extent of the sum admitted.^ So, where an admission is made by way of an offer of judgment, the sum so offered may be ordered paid under this provision.^ 3. Where a surviving partner, sued by the adminis- trator of the deceased partner for an accounting, admits a balance in his hands due to such partner's estate, but alleges that there are outstanding claims against the firm, and that the firm has claims to enforce which will require time and disbursements, he may be ordered to pay over such balance, less the contested claims against the dece- dent on the administrators giving security to pay the decedent's proportion of the claims against the estate, and of the costs and expenses.'' So, where a fund in litigation has been brought into court, and the answer of the defendant admits a part of it to be due to the plaintiff, but disputes his claim to the residue, the court may order the sum admitted to be due to be paid over to the plaintiff, without prejudice to his further claims.' So where, in an action on contract, the defendant makes an offer pursuant to section 385, which is not accepted, he may be ordered to pay the plaintiff the amount of such offer.* 4. But the order was refused where the answer tra- versed the plaintiff's claim as stated, and then stated that the work to recover the value of which the action was brought, was not worth more than a certain sum, less ' Coursen v. Hamlin, 2 Duer, 513. ^ Merritt y. Thompson, 3 E. D. 2RooseTelt v. N. Y. & Harlem R. Smith, 599 ; 10 How., 428 ; 1 Abb., R. Co., 30 How., 226. 223. ' Id. * Dusenbury v. Woodward, 1 Abb. , *RobertsT. Law, 4 Sandf., 642. 443. §IX.] EECBrVBBS. 563 than the amount claimed.* Also, where the defendants admitted that , they had the fund the plaintiff sought to have paid over to him, but that they were ignorant whether it belonged to him or to a third party who claimed it, and asked leave to pay the money into court.^ So, where the plaintiff, on a sale of a bill of goods on a credit of six months, claimed that the sale was conditional; that the title, although the goods were received by defend- ant, did not pass from them in consequence of the con- ditions not having been complied with, and alleged that the defendant had wrongfully converted such goods to his own use, and claimed damages to the amount of the goods by reason thereof; and the answer of the defendant admitted the purchase, amount, and receipt of the goods, but denied the conditional purchase and the conversion of the plaintiff's goods to his own use, it was held that the provisional order obtained by the plaintiff, directing the defendant to pay and satisfy the amount of the plaintiff's claim admitted in the answer to be due, was improvi- dently granted. The defendant admitted the whole claim and a judgment would have been proper, but to justify the order herein, only part of the claim must be ad- mitted.^ 6. The court may authorize a defendant to satisfy a part of a plaintifl"'s claim as well where the plaintiff's cause of action, as set up, is single and entire and the answer admits a part thereof to be just, as where the complaint alleges more than one cause of action, and more than one item of claim, one of which is admitted to the precise extent set up by the plaintiff.^ And it is no reason that this order should be refased, that the defend- 1 Dolan V. Petty, 4 Sandf., 673. * Quintard t. Secor, 3 Sandf., 614 ; 2 Bender v. Sherwood, 15 How., Guiet v. Murphy, 18 How., 411 ; see 258. an obiter dictum, otherwise, in Rus- 3 Slauson v. Conkey, 10 How., 57 ; sell v. Meaoham, 16 How., 193. see same case, 1 Abb., 228. 564 PROVISIONAL REMEDIES. [Ch. V. ant has made a previous offer to pay the sum to the plaintiff, in full satisfaction of his claim.' 6. The motion is to be made to the court at special term, on the usual notice of eight days to the defendant, or on an order to show cause. It is based on the plead- ings alone, and, therefore, no papers need be served with the notice. 7. The order is allowed, certified and entered the same as other orders. It should direct the specific sum of money to be paid, or describe, with reasonable certainty, the particular act Or thing to be done, and should limit or specify the time within which the money is to be paid, or the act performed.^ (See form No. 136). 8. If it is desired to bring the party into contempt for a disobedience of the order, a copy, certified by the clerk, must be served upon him personally, as well as on his attorney, but otherwise a service on the attorney will be sufficient. 9. If the money be not paid or the act performed within the time limited by the order, the plaintiff may apply to the court on an affidavit of that fact, and on the order, for an attachment to punish the party as for a con- tempt. The defendant should have notice of the motion. In such cases where the court will not enforce the order by attachment, the party should enter judgment on the order, usually with the costs of the motion, and enforce the same by execution. The entry of judgment will be similar to the case of a judgment upon a frivolous answer, and the judgment roll will consist of the summons, plead- ings, order and judgment.^ 10. The court may enforce the order as "it enforces a judgment or provisional remedy," that is, by execution or iMerritt t. Thompson, 3 E. D. ^1 Van Sant. Eq. Pr., 239. Smith, 599 ; 10 How., 428. 'Id. § IX.] EEOBIVERS. 565 by an attachment, as for a contempt. Where the action is on contract for the payment of money only, the court will usually order the amount admitted to be due, to be satisfied by judgment.^ It will enforce the order by at- tachment only ia those cases where the defendant upon final judgment in the same action would be liable to imprisonment.^ Previous to the amendment of 1857, by which the word "judgment," was inserted before "pro- visional remedy," it was doubted whether or not in all cases where the defendant admitted part of the plaintiff's claim, the court might not enforce obedience to the order by attachment ; ' but since such amendment the practice is as stated above. 11. An order directing the payment of money admitted to be due by the answer is an appealable order, but where no right of the defendant, and no rule of law has been violated, it seems the discretion of the court, as to the terms or conditions upon which such order should be granted, will not be reviewed.^ 'Kussell V. Meacham, 16 How., 'See Meyers v. Trimble, 1 Abb., 193; Duncan v. Ainslie, 26 Barb., 399; Quintard v. Seoor, 1 Abb., 393. 199. *Merritt v. Thompson, 1 Abb., aid. 223; 10 How., 428. CHAPTER VI. WRIT OF NE EXEAT. 1. Ne exeat, not aboliBhed "bj the Code. S. Nature of the remedy. 3. TJpon what demands. 4. For an account ; to prevent a feilure of justice. 5. When not allowed. 6. Debt must be dne ; against whom. 1. Complaint need not be filed. 8. At what stage of the action, 9. The affidavit, what to contain. 10. Affidavit, by whom made. II. When notice of application to be given. 13. By whom granted. 13. Form of. 14. Hanner of application and allowance. 15. How executed. 16. Sheriff to take bond. 17. Motion to discharge npon security. 18. Discharge for cause. 19. When giving security waives irrega- laritleB. 1. The superior court of 'Sew York have decided that the writ of ne exeat was abolished by section 178 of the Code ; ^ while the supreme court of the state have uni- formly decided otherwise, and held that it is an existing remedy.^ It will be unnecessary here to give the argu- ments on the one side or the other. It is sufficient for our purpose to know that the supreme court still acknowledge its existence in cases of equitable cognizance. 2, The writ of ne exeat is a process to prevent a person's leaving the state. Although originally a prerogative writ, it is now as much a writ of right as any other process used in the administration of justice.' It is resorted to for the purpose of obtaining equitable bail, and its object and 1 Fuller V. Emerie, 2 Sandf., 626; Johnston v. Johnston, 16 Abb., 43 ; 25 How., 181.- ^Forrest v. Forrest 5 How., 125 ; 10 Barb., 48 ; Bushnell v. Bushnell, 7 How., 393; Aff'd 15 Barb., 399 ; see also Glenton v. Clover, 10 Abb., 422; Neville v. Neville, 22 How., 500; Rogers V. Mich. So. E. R., 28 Barb., 539 ; see 3 R. S. (5th ed.), 834 ; Laws 1854, chap. 96, | 12. 'Gilbert v. Colt, Hopk., 496; Mitchell V. Bunch, 2 Paige, 606. 568 PROVISIONAL REMEDIES. [Ch. VI. design is to hold a party amenable to justice, and to render him personally responsible for the performance of the orders and decrees of the court by preventing him from withdrawing himself from its jurisdiction.^ It seems to be the deduction of one author, drawn from the above decisions, that, under the Code, the writ of ne exeat exists only as a prerogative writ, to compel the performance of some act, to compel which the ordinary process of execu- tion would be insufficient, or the giving of adequate security by the defendant for that performance before he will be allowed to leave the state.^ 3. As a general rule, a ne exeat is allowed only upon an equitable demand.* But in case of an action for an account, or for alimony, it may be granted.* It may be granted upon a bill filed by a wife against her husband, for alimony, previous to the decree.^ It is remarked by Chancellor Kent in Porter v. Spencer,^ " that since the time of Lord Eldon it has become settled in the English chan- cery that though the plaintiff may sue at law for the balance of an account and hold the party to bail, yet, as chancery holds a concurrent jurisdiction upon the head of account, the plaintiff may have the ne exeat on a positive affidavit of a threat or purpose of going abroad, even though the defendant's general residence was abroad." 4. In the case last cited, the bill was for an account and a ne exeat, and stated that the plaintiffs were merchant tailors, that they had sold clothing to the defendant on a credit of six months, that on the. 1st of January then past there was a balance of account due them from the defend- ant with interest of $317. To recover which sum the plaintiff had brought an action at law and held the defehd- iQleasonv. Bisby, Clark, 551. ^ Denton v. Denton, 1 John. Ch., 2See 1 Whit. Pp., 400. 264 ; Forrest v. Forrest, andBushnell ' Mitchell T Bunoh, 2 Paige,. 606; y. Buahnell, supra. Seymour v. Hazard, 1 John. Ch., 1. ^ 1 John. Oh., 169. «1 Barb. Ch. Pr., 652. Oh. VI.] WRIT OF NE EXEAT. 569 apt to bail, and that the defendant had pleaded the gene- ral issue merely for delay. It was further alleged that the defendant's father was bail, and that he was selling his property and was about to remove permanently from the state ; and also that the defendant was to go with his father, not leaving any property behind. The writ of ne exeat was allowed. Chancellor Kent said, among other things, " In the present case, I have some doubts whether the bill states matter of account on which the jurisdiction of the court can attach. To sustain a bill for an account there must be mutual demands, and not merely payments by way of set off. A single matter cannot be the subject of an account. There must be a series of transactions on one side and of payments on the other. I place my inter- ference on the necessity of the case. From the facts charged and sworn to, it appears to me that the remedy in the suit pending at law would be absolutely defeated without the interposition of this court. The books assume and admit principles that will justify the allowance of the writ under the peculiar circumstances of the present case. The remedy sought is indispensable to prevent a failure of justice, and this creates a marked diffierence between this and the ordinary cases. I should think it would reflect discredit pn the administration of justice, if the plaintiff could find no relief from the impending mischief arising from a failure of the remedy at law, by the imme- diate removal of the defendant and his bail. I have no option or discretion to refuse the writ when a case is brought within the established rules of the court." And again, in the same case, the learned judge remarked, refer- ring to the case of Brunker, 3 P. "Wm's, 312., " The im- port of this case is that the rule against the allowance of the writ, where the matter was of legal cogtiizauce, was not then understood to be inflexible, but would be made 37 570 PROVISIONAL REMEDIES. [Ch. VI. to yield to cases of necessity, when justice would be defeated without the aid of the writ." 5. The writ of ne exeat will Hot be allowed in an action for specific performances, unless the act to be compelled is the payment of money due.^ IJfor Where the defendant might be held to bail at law, except in an action for an accounting.^ JSTor against a non-resident coming into the state as a witness ; ^ Nor where the defendant is an execu- tor or administrator not shown to have assets in his hands.* 6. The debt must be due,^ or so far matured that present payment or performance can rightfully be de- manded, and therefore the writ cannot issue to protect an accruing debt or contingent claim.* The demand must also be satisfactorily ascertained, a mere declaration of belief of the existence and amount of his claim is not sufficient.^ It may be issued on a creditor's bill to reach equitable assets,* or against the citizen of another state, or country on demands arising abroad, ' or against a foreign executor or administrator for an account,^" or in a proper case against a married woman." 7. It was formerly necessary to file a bill or complaint before the writ could be granted, but this is no longer necessary. It will be proper if the writ is issued and served with the summons in the ordinary manner of issu- ing and serving an injunction." 8. It may be granted at any stage of the suit, either upon commencing the action or before judgment or ' Cowdin T. Cram, 3 Edw. Ch., Bivafinoli v. Corsetti, 4 Paige, 264 ; 231 ; see, however, Gleason t. Bishy, Brown t. Haff, 5 Paige, 235. Clark, 551. ' Mattock v. Tremain, 3 John. Ch., 2 Seymour t. Hazard, 1 John. Ch., 75. 1; Porter T. Spencer, 2 John. Ch., SEllingwood v. Stevenson, 4 169. Sandf. Ch., 366. s Dixon V. Ely, 4 Edw., 557. ' Woodward v. Schatzell, 3 John. *Smedlt)ergh v. Mark, 6 John. Ch., Ch., 412. 138. '" MoNamara V, Dwyer, 7 Paige, 239. 6 Seymour v. Hazard, supra. "Neville v. Neville, 22 How., 500. 'Gleason v. Bishy, Clark, 551; De i2Buaii^giiy_B„gijQell,7How.,389. Ch. VI.] WEIT OF NE EXEAT. 571 decree, or after decree.^ It may be allowed upon a claim for alimony before any decree for alimony has been granted.^ 9. The application is usually founded on affidavits. In such affidavits the facts on which the plaintiff relies must be set forth. They must state positively the existence of the debt, except in matters of account where the affidavit must be positive as to the existence of the debt, though the amount may be on belief.^ If the claim is against an administrator, the party should also swear to his belief of assets come to the defendant's hands.* There must also be a positive affidavit of a threat or purpose to leave the state, or of such circumstances as authorize the inference that the defendant intends to go abroad." It will be suffi- cient if his declaration of such intention is sworn to on information from members of his family.* It must be stated also that the debt will be endangered by the defend- ant's going abroad.'' But it need not be shown that he is going immediately, nor for the purpose of avoiding the debt.* The affidavit should mention the facts on which the debt arises and on which it is grounded.^ (See form No. 136). 10. The plaintiff should make the affidavit as to the debt, amount, circumstances, etc. ; ^'' but the affidavit as to the intent to go abroad may be made by third persons. And if the information of defendant's intended departure come from one who, if applied to, to make affidavit of the fact, would be likely to inform defendant of the intended 1 Bushnell v. Buahnell, 7 How., 138 ; MeNamara v. Dwyer, 7 Paige, 389; Dunham v. Jackson, 1 Paige, 289. 629. 6 Mattock v. Tremain, 3 John. Ch., 2 Denton V. Denton,! John. Ch., 75; Bushnell v. Bushnell, supra. 441; Forrest v. Forrest, 10 Barb., 6 1 Barb. Ch. Pr., 650. 54; 5 How., 125. 'Mattocks v. Tremain, supra. 'Thornev. Halsey, 7 John. Ch., ^i Barb. Ch. Pr., 650. 189; Gibertv. Colt, Hopk., 500. 'Anon., 2 Ves. Sen., 489. * Smeaburg v. Mark, 6 John. Ch., >» Stewart t. Graham, 19 Ves., 812. 572 PEO VISIONAL REMEDIES. [Ch.VI. application for the writ, tliat will be a sufficient reason for not producing his affidavit.^ 11. The writ may be granted without notice to the defendant, if he have not appeared in the action ; but after his appearance, he must have notice. Such was the old chancery rule, and it is probably the same now.^ Where notice it required, it must be the usual notice of eight days, unless an o,rder to show cause is obtained. 12. Ne exeats were formerly allowed by the same officers who were authorized to allow injunctions.* The same practice is probably correct now, so that the writ may be granted either by the court or a judge thereof at chambers, or by a county judge in cases in which he may grant an injunction, The granting of this writ is in the discretion of the court, and is granted with much caution.* 13. It is not necessary, though usual, that a ne exeat should be by writ ; it may be by order, and enforced by attachment for contempt.' In order to avoid all diffi- culty under the Code, it is thought in one case to be advisable to have it in the form of an order.' When it is by writ, it should be under the seal of the court,' and the grounds on which it issues should be stated in the body of it.« (See forms IsTos. 137 to 139). 14. If the judge to whom the application is made is of opinion that it is a proper case for a writ of ne exeat, he indorses upon the affidavit or petition an allowance, as follows : " Let a writ of ne exeat issue in this cause against the defendant, D, and let such writ be marked in the sum of |1,000 ; and let an order to thateffisctbe entered." ' An order for the writ is then drawn and entered with the , 1 1 Barb. Ch. Pr., 650. « Id. 2 Chancery Rule, 30. '1 Van Sant. Eq. Pr., 414. 3 Laws 1847, chap. 470, ? 13, 1 s Hydev. Whitefield, 9 Ves., 345. Barb. Ch. Pr., 649. » 1 Barb. Ch. Pr., 650 ; 1 Van Sant. 4 Pratt T. Wells, 1 Barb., 426. Eq. Pr., 414. SBushuellv. Bushnell, 16 Barb., 406; Forrest V. Forrest, lOBarb.,48. Ch. VI.] WRIT OP NE EXEAT. 573 clerk, and the papers filed. The writ is then issued by the clerk under the seal of the court.' The writ must contain the sum in which the defendant is to be held to bail, and this sum should only be sufficient to cover the plaintiff's demand, and a reasonable amount of future interest; and the sheriff is not to double that sum in taking a bond.** When the ne exeat is in the form of an order, the application should be made in the same manner as an application for an injunction. 15. The writ must be served by the sheriff of the ebunty in which the defendant is found. If the ne exeat is in the form of an order, a copy of the order and of the affidavits on which it was granted should be served with the order. So, if the ne exeat be by writ, it must be personally served on the defendant by delivering to and leaving with him a copy of the writ, and at the same time showing him the original under the seal of the court. 16. IJpon serving the writ or order the sheriff is to take a bond to himself from the defendant, in the penal sum, designated in the writ or order, and conditioned that the defendant will not depart from, or leave the state without the permission of the court.' The sheriff acts upon his own responsibility in executing the writ, and is the sole judge of the sufficiency of the sureties offered by the defendant.* But if he take a bond, and the defendant afterward leave the state, the sheriff will be allowed a reasonable time to produce him ; or to prosecute the bond and recover the amount of the sureties.* An action should not be commenced upon the bond without leave of the court.^ If the defendant, on being arrested upon a ne exeat, fails to give such bail as shall be satisfactory to " 1 Barb. Ch. Pr., 650 ; 1 Van Sant. s 1 Barb. Ch. Pr., 654. Eq. Pr., 414. iBrayton v. Smith, 6 Paige, 489. aQibert v. Colt, Hopk., 600; ^id. Gleason v. Bisby, Clark, 561. cHarris v. Hardy, 3 Hill, 393. 574 PROVISIONAL REMEDIES. [Ch. VI. the sheriff, he must be kept in custody, according to the command of the writ, and the sheriff must state that fact in his return to the ne exeat} (See form No. 140). 17. After a party has been arrested upon a ne exeat, he miy apply to the court, by motion or petition, and on notice to the plaintiff, for an order to discharge the writ. It is a matter of course to discharge a ne exeat, upon the defendant's giving security to answer the bill, and to render himself amenable to the process of the court to be issue pending the suit, and upon the decree. This secu- rity, if not accepted by the plaintiff, is to be approved by the judge who granted the order or writ, on notice to the plaintiff, so that he may be heard in relation to the suffi- ciency of the sureties.^ Or if the defendant cannot find such security as will satisfy the sheriff, he may apply to the court, which will take such security as it may deem sufficient, and discharge the sheriff from liability.' 18. The defendant may move to discharge the writ, not only upon giving security as above, but for want of equity appearing upon the face of the complaint, the insufficiency of the affidavit on which the writ was granted, upon the facts set up in the defendant's answer, or affidavits, or for an irregularity of any kind in the granting or issuing of the writ. And every thing going to show that the writ ought not to have been issued, is a reason for discharging it.* Affidavits may be read by either or both parties on a motion to discharge the writ. And the defendant may, in his affidavit, deny the allegation on which the writ was issued.' But a mere denial of the plaintift''s affidavit will not be sufficient to obtain a discharge.^ !N"or will it suffice to deny that the defendant was about to leave 11 Barb. Ch. Pr., 654. ^lA.; Cowdin v. Cram, 3 Edw„ 2 MoNamara v. Dwyer, 7 Paige, 231 ; see Glenton v. Glover, 10 Abb., 239. 422. 8 Brayton v. Smith, 6 Paige, 489. e i m. &- gjigr. Pr., 620, and cases. n Barb. Ch. Pr., 656. Ch. VI.] WRIT OF NE EXEAT. 575 immediately and to allege that he had given up all inten- tions of leaving. He must show affirmatively that he intends to remain here.' 19. The giving to the sheriff of the usual security upon a ne exeat does not preclude the defendant from applying upon the complaint only, or upon the coming in of the answer, to have the writ discharged and the bond can- celed. But where the defendant for his own conven ne applies to the court and gives the usual bond, without asking to reserve the right of applying to cancel the bond, the right of objecting to the writ, as improvidently granted, is waived.^ If defendant is in custody he should obtain leave to execute the bond without prejudice to his rights.^ 1 Glenton v. Clover, 10 Abb,, 422. » Id. 2 Jesup V. Hill, 7 Paige, 95. APPENDIX OF FORMS. CHAPTEE I. POEMS FOE ARREST AND BAIL. No 1. Affidavit of Injury to Person. See ante p. 57 et seq. [Title op cause.] Omit title if action is not commenced. County of Kensselaer, ss : A B, plaintiff in the above entitled action, being duly sworn, gays, that he has a good cause of action therein against C D, the defendant, arising from the following facts, viz : * That on the fifth day of July last, at the town of Pittstown, in said county, said C D, defendant, without any cause or provocation, violently- as- saulted and beat this deponent, by kicking him and knocking and throwing him on the ground (or in whatever manner the assault was committed), whereby deponent was much bruised and injured ; and has since been seriously ill, by reason thereof, to the damage of this deponent one thousand dollars. And this deponent further says, that he has commenced (or is a,bout to commence) an action, in the supreme court, against said defendant for the recovery of said damages. A B. Sworn, etc. No. 2. Allegation of Non-BeMence. See ante p. 62. {Proceed as above to the * then set forth the cause of action and then allege :] That said defendant is not a resident of this state, but resides at Kenosha in the state of Wisconsin.- 578 APPENDIX OP FORMS. [Ch. I. No. 3. Of Intended Defortwe. See ante p. 62. That said defendant is about to remove permanently from this state ; that he has disposed of all his property in this state ; has closed up his business, and has taken passage for himself and family on board the steamer Baltic, for Europe (as this deponent is informed by J Gr, brother of said defendant, and verily believes). No. 4. Money Received in a Fiduciary Ca-pacity. See ante p. 28 et seq. {As in No. 1, to the * then continue:'] That on the ninth day of July last past, this deponent delivered to C D, a note broker, doing business in the city of New York, a certain promissory note for one hundred dollars, made by M N, and payable to the order of this deponent. That said note was so delivered to the said C D in trust, to sell the same for cash, as a broker aforesaid, and to return the proceeds thereof, immediately to this deponent, and for no other purpose whatever. That said C D informed this deponent on the same day, that he had sold said note for ninety-five dollars cash. That said C D has neglected and refused to pay said sum of ninety-five dollars, or any part thereof, to this deponent, although requested so to do, to the damage of deponent one hundred dollars. That deponent has commenced (etc., as in No. 1). A B. Sworn, etc. No. 5. Mmey Collected by Agent. See ante p. 25 et seq. {As in No. 1 to* then ;] That on the sixth day of January last, this deponent employed C D, the defendant, as his agent, to collect a ch.1.] arrest and bail. 579 certain debt due this deponent of L M of Troy, in said county, that said D was to collect the same in the name of, and for the benefit of this deponent, and was to return the proceeds thereof to him immediately upon collecting the same. That said D has collected the whole of said debt from the said L M and received the money thereon, as will more fully appear by the affidavit of L M, hereto annexed. That this deponent did, .on the first day of April last demand of said D, that he account to him for the money so received, and pay the same over to him ; but hitherto the defendant has wholly neglected and refused so to do. That this deponent has commenced, etc. (as in No. 1). Sworn to, etc. AB. No. 6. For Injury to Property. See ante p. 16 et seq. [J.S in No 1 to * then continue :] That said C D on or about the 13th day of June last wrongfully and willfully took from the pos- session of this deponent the following goods (describe them), of the value of one hundred dollars : That this deponent did, on the first day of July last demand of said C D, a return of said property . but that he refused to return the same, and that he has converted said goods to his own use, to this deponent's damage one hundred dollars. That this deponent has commenced, etc. (as in No 1). No. 7. To Recover the Possession of Personal Property. See ante p. 86 et seq. [.4s in No. 1, to the * then continue ;] That on the sixth day of May last, this deponent was lawfully possessed of certain goods and chattels, then and ever since, the property of this deponent, con- sisting of ( here describe the property/), of the value of five hundred dollars. 580 APPENDIX OP FORMS. [Oh. I. That on the said sixth day of May, at Johnsonville, in said county, C D above named (wrongfully) took the said property from the possession of this deponent, and still wrongfully detains the same, to the damage of this deponent five hundred dollars. And deponent further says, that he has commenced an action against said defendant, in the supreme court, to recover the posses- sion of said property. That on the tenth day of May last, the annexed summons was issued herein to the sheriff of the county of Kensselaer, for service ; and the annexed affidavit with the requisition indorsed thereon, together with the prescribed undertaking, were delivered to him for the purpose of obtaining an immediate delivery of such property, pursuant to the provisions of the Code of Procedure. That since the commencement of said action {or whenmer it was), said property has been removed (or concealed, or disposed of) by said defendant, so that it cannot be found or taken by the sheriff, as more clearly appears by his return hereto annexed ; and that, as deponent believes, it has been so removed {or concealed or disposed of) with the intent that it should not be so found or taken {or with the intent to deprive this plaintiff of the benefit thereof) ; which belief is founded upon the following facts, namely : (State the facts showing the intent in detail). A B. Sworn, etc. No. 8. For Fraud in Contracting a Debt. See ante pp. 40, 60. [Title op OAtjse.] If action is commenced. County of Kensselaer, ss : A B, the above named plaintiff, being duly sworn, says that he has commenced (or is about to commence) an action against (the above named) C D, in the supreme court, to recover a debt due this deponent from said C D, to the amount of five hundred dol- lars, for the following described goods, sold and delivered by this deponent, to said D. (Here describe goods). Ch. I.] ARREST AND BAIL. 581 That the said C D was guilty of fraud in contracting the said debt. That said debt was contracted as follows : On or about the ninth day of February last, the said C D requested this deponent to sell him the above described goods on credit ; that for the purpose of inducing this deponent to sell such goods on credit, the said C D, then and there falsely and fraudulently stated and represented to the deponent, that he, the said C D {setting forth the exact repre- sentations), That this deponent believed such statements to be true, and was thereby induced to, and did sell and deliver to the said C D, upon credit, the said goods, so applied for by him, and that, except for such statements and representations, this deponent would not have made such sale and delivery as aforesaid. And this deponent further alleges that all of such statements and representations (or apart of the same, specifying which), were false and untrue when so made to the knowledge of the said C D, and that said D made the same with intent to defraud this deponent by obtaining 'said goods upon credit, without paying for them. ( Give detailed statement of all the facts and circumstances within deponent's knowledge going to show that the representations were false and fraudulent when made to the haowledge of defendant). AB. Sworn, etc. No. 9. For Fraudulent Disposal of Property. See ante pp. 51, 62. \_As in No. 1 to * then continue :] That on the 1st day of Janu- ary, 1867, C D made and delivered to this deponent, his certain promissory note in writing, bearing date on that day, whereby for value received, he promised to pay, thirty days from date, to the order of this deponent, the sum of three hundred dollars. That at the time of making such note, and for some time prior thereto, said C D was carrying on business in the village of Albia in said county as a grocer. That on the day said note became due, to wit : on the third day 582 APPENDIX OF FORMS. [Ch. I. of February, 1867, this deponent called at the store of said C D, in the village of Albia aforesaid, and presented said note to him and demanded payment thereof. . That said C D informed this deponent that it was not conve- nient for him to pay the note then, but that if he would call again in three days he would settle the matter. That at the expiration of the three days, to wit : on the sixth day of February, 1867, this deponent called again at the said store as requested, and found said store in the possession of one M N, who then stated to this depo- nent that on the preceding day the said C D had sold the store and all the goods therein to said M N for which M N had paid him four hundred dollars; and said M N exhibited to this depo- nent a bill of sale thereof, executed by said C D. That said C D was not present at said store, and, as this deponent is informed and believes, has not been present thereat since said sale, andt hat this deponent has made diligent search for said C D at his recent abode at Albia and elsewhere, but has been and still is unable to find him or to learn of his whereabouts. That said C D has no other property in this state to the know- ledge of this deponent, and thai he has so disposed of his property with intent to defraud his creditors as this deponent verily believes. That this deponent has commenced etc. (as in No. 1). AB. Sworn, etc. No. 10. Undertaking by Plaintiff. See ante p. 63. [Title of Cause.] Whereas, A B, the plaintiff in the above entitled action, has made application to. the Hon. Charles R. Ingalls, one of the jus- tices of the supreme court, (or to G E, Rensselaer county judge), for an order to arrest C D, the defendant in said action. Now therefore, we, E F of Troy, merchant, and Gr H of Pitts- town, farmer, do, pursuant to the statute in such case made and provided, hereby undertake, that if the said defendant recover Ch. I.] ARREST AND BAIL. 583 judgment in said action, the plaintiff will pay all costs which may be awarded to the said defendant, and all damages which he may sustain by reason of his arrest in said action, not exceeding the sum of one hundred dollars. Dated, etc. E F. G H. Signed and delivered in the presence of. Add affidavit of justification, and acknowledgment, as in the following two forms. No. 11. Affidavit of Justification. See ante p. 64. County of Kensselaer, ss : B F and G- H, the sureties named in the foregoing undertak- ing, being severally, duly sworn, doth each for himself depose and say, that he is a resident and householder (or freeholder) within this state, and worth two hundred dollars over and above all his debts and liabilities and exclusive of property exempt from execu- tion. E F. Sworn, etc. Gr H. No. 12. Acknowledgment. See ante p. 64. County of Kensselaer, ss : On this tenth day of July, 1867, personally appeared before me, E F and Gr H, to me known to be the persons described in and who executed the foregoing undertaking, and severally acknow- ledged that they executed the same. John O'Beien, Commissioner of Deeds. 584 APPENDIX OF FORMS. [Ch. I. No. 13. Indorsement of Judge's Approval. See ante p. 64. I approve of the within undertaking, and of the sufficiency of the sureties therein named. Dated, etc. Signature. No. 14. Order of Arrest. See ante p. 66. [Title of cause.] To the sheriff of the county of Kensselaer : You are required forthwith to arrest G D, the defendant in this action, and to hold him to bail in the sum of one thousand dollars ; * (the amount rests in discretion of the Judge, but is generally double theplaintiff's claini) and to return this order to Kobley D. Cook, plaintiff's attorney, at his office, No. 53 Congress street, Troy, on the third day of September, 1867. Chaeles E. Ingalls, Dated, etc. Justice Supreme Court. Eobley D. Cook, Plaintiff's Attorney. No. 15. Order of Arrest under Sub 3 of Section 179. See ante p. 89. [J.S above to the * then add :'\ By a written undertaking to the- same effect as that provided by section 211 of the Code and to return this order to Jerome B. Parmenter, plaintiff's attorney, at his office in the city of Troy, on the third day of September, 1867. Charles K. Ingalls, Dated, etc. Justice Supreme Court. Jerome B. Parmenter, Plaintiff's Attorney. Oh. I.] ARREST AND BAIL. 585 No. 16. VnderiaJcing of Bail. See ante p. 89. [Title of cause]. i I Whereas, G D, the above named defendant, has been arrested in this action ; Now therefore, we, L M, of Troy, grocer, and 0. P. of the same place, hatter, do, pursuant to the statute in such case made and provided, hereby undertake, in the sum of one thousand dollars, that the said defendant shall, at all times, render himself amenable to the process of the court, during the pendency of this action, and to such as may be issued to enforce the judgment therein. Signatures. Dated, etc. Justification and acknowledgment as in Nbs. 11, 12. No. 17. tJndertalmg of Bail in an Action for Chattels. See ante p. 90. [Title op cause.] 'Whereas, the above entitled action has been brought to recover the possession of the following personal property : (here describe it) which is alleged to be unjustly detained; and whereas, C D, the defei)dant in such action has been arrested therein for the cause mentioned in the third subdivision of section 179 of the Code of Procedure ; Now therefore, we, L M, of Troy, grocer, and P, of the same place, hatter, do acknowledge ourselves bound in the sum of (double the value of the property as stated in the plaintiff's affidavit) for the delivery of the said personal property to the plaintiff, if such delivery be adjudged, and for the payment to him, of such sum as may for any cause, be recovered against the defendant. Signature. Dated, etc. Justification and acknowledgment as in Nbs. 11, 12. 586 APPENDIX OF FORMS. [Oh. L No. 18. Notice of Exception to Bail. See ante p. 95. [Title op cause] Sir : Take notice that the plaintiflF does not accept the bail offered by the defendant in this action. Yours etc., Dated, etc. Koblet D. Cook, Plaintiff's Attorney. To the Sheriff of the county of Kensselaer. No. 19. Notice of Bail's Justifying. See ante p. 95. [Title of cause.] Take notice that the same bail heretofore proposed by the defend- ant in this action, will justify before the Hon. Grilbert Kobertson, Jr., Rensselaer county judge, at his office, in the city of Troy, on the tenth day of August next, at ten o'clock in the forenoon. Tours etc., Dated, etc. Parmentee Bbothers, Or Defendant's Attorneys. (G-. W. C, sheriff of Rensselaer county). To Irving Hayner, Plaintiff's Attorney. No. 20. Notice of Justifying of other Bail. See ante p. 95. [Title of cause.] Take notice, that J D, tailor, and P G, merchant, both resi- dents of the city of Troy, who are proposed as bail in the place of L M and P, the bail already offered, will justify (same as m last form). Ch. I.] ARREST AND BAIL. 587 No. 21. Affidavit for Farther Time to Justify, etc. See ante p. 96. [Title of oatjse.] Rensselaer county, ss : C D being duly sworn says, that he is the attorney for the de- fendant in the above entitled action. That E F, one of the sureties proposed by said defendant as his hail in this action, and whose name is mentioned in the notice of justification hereto annexed, promised and consented to become bail in this action for the said defendant, and has executed the required undertaking of bail. That he promised to attend this morning, at ten o'clock, before the Hon. Gilbert Bobertson, Jr., Rensselaer county judge, at his office in the city of Troy, to justify as such bail. And this deponent verily believes that said E F was, and is, able to justify as good and sufficient bail in this action. That this deponent fully, expected that said E P would have at- tended this morning to justify accordingly, but he has not yet appeared for that purpose ^to the knowledge of this deponent. That this deponent has no knowledge of the cause of the absence of the said E F and is at present unable to account for the same,* but fully expects and believes that he will be able to produce the said B F for such justification to-morrow morning, July 23, before the Hon. Gilbert Robertson, Jr., at his office (or if other hail is ' pro- posed, continue as above to the * and continue). That this deponent, as attorney for the defendant, will propose, and desires further time to justify, as bail, in the stead of E F and G H, K, merchant and R W, physician, both residents of Lansingburgh, in said county, who as this deponent believes are able to justify as good and sufficient bail in this action. Signature. Sworn, etc. 588 APPENDIX OF FORMS. [Ch. L No. 22. Order Extending Time to Justify. See ante p. 96. [Title or cause.] Upon reading and filing the affidavit of C D herein, it is ordered that the defendant have ten days further time to justify K and R W as bail for the said defendant in the stead of E F atid Gr H. Judge's signature. Dated, etc. No. 23. Examination of Bail. See ante p. 99.- [Title of Cause.] On this 7th day of July, 1867, before the undersigned G. Robert- son, Jr., Rensselaer county judge, personally appeared K and R W, the bail proposed by defendant C D in this action, for the purpose of, justifying pursuant to notice j and the said K being duly sworn, says (take down the testimony showing the qualifications of hail). And the said R. W., also being duly sworn, says, etc. Signature of bail. Taken and sworn to before me this 7th day of July, 1867. Gt. Robertson, Jr., Rensselaer County Judge. No. 24. Allowance of Bail. See ante p. 100. [Title op Cause.] K and R W, the bail of the defendant C D, within men- tioned, having appeared before me and justified, I do find the said bail to be sufficient and allow the same. Signature. Dated, etc. Ch. I.] ARREST AND BAIL. 539, No. 25. ' Same, with Order to Befund Mmey. See ante p. 102. [^Add to the above :] And further order, that the sum of one thousand dollars deposited in the hands of the sheriff of the county of Kensselaer by the defendant, on his arrest in this cause, instead of bail, and since brought into court by the sheriff pursuant to the statute, be refunded by said sheriff to the said defendant. Signature. Dated, etc. N6. 26. Certfiicate of Deposit in Lieu of Bail. See ante p. 102. [Title of Cause.] This is to certify that I have received from C D, the above named defendant, the sum of one thousand dollars, as a deposit in lieu of bail, being the amount mentioned in the order of arrest in this action. G. W. COKNELI., Sheriff of Eensselaer county. Dated, etc. / No. 27. Certificate by Clerk. See ante p. 102. [Title of Cause.] I certify that G. W. Cornell, sheriff of Kensselaer county, has this day paid into court, the sum of one thousand dollars, being' the amount mentioned in the order of arrest in this action. J. D., Clerk of Rensselaer county. Dated, etc. JFor order to refimd on substituting bail, see No. 25. 590 APPENDIX OF FOBMS. [Oh. I. No. 28. Notice of Motion to Vacate Order of Arrest. «. See ante p. 122. [Title of Cause.] Take notice that on an affidavit, of which the within is a copy, and on all the papers in this action, the undersigned will move, at a special term of this court, to be held at the Court House in the city of Troy on the 29th day of July, 1867, at ten o'clock in the forenoon or as soon thereafter as counsel can be heard, to vacate the order of arrest granted in this action : and for such other or further order as may be just, and for the costs of this motion. "Tours, etc., Ed. L. Cole, Defendant's Attorney. Dated, etc. To Francis Eising, Esq., Plaintiff's Attorney. No. 29. Order Vacating Order of Arrest. [Title of oausb.J On reading and filing notice of motion and affidavits of A B, and C D, and on the pleadings and proceedings in this action, on motion of M N, counsel for defendant, and after hearing H F, counsel for plaintiff' {or, and on proof of due service of notice of motion on the plaintiff, and no one appearing in opposition) ; * Ordered, that the order of arrest granted by D L, one of the jus- tices of the supreme court, on the 14th day of June, 1867, against C D, the above named defendant, be vacated ; and that the bail here- tofore given for the defendant be exonerated from liability. Signature. Dated, etc. Ofl. I.] ARREST AND BAIL. 59X No. 30. Same, Order on Condition. l_As in the above to the * continuing :] Ordered, that on the defendant's stipulating within five days, to bring no action for false imprisonment, against said plaintiff by reason of arrest herein, said motion be granted, and the order of arrest heretofore granted in this action against said defendant be vacated, with ten dollars costs to the defendant, otherwise that said motion be denied with costs to the plaintiff. Signature. Dated, etc. No. 31. Authority from Bail to Arrest Defendant. See ante p: 106. Know all men by these presents, that we, M N and K, the within named bail, do'hereby depute, authorize and empower, in our place and stead, and in our behalf, E F of the city of Albany, N. Y. (if officer add title'), to take, arrest, seize and surrender to the sheriff of the county of Kensselaer, C D, the within named defendant, in exoneration and discharge of our undertaking as bail for the said C D in said action ; and we further authorize and empower him to employ such persons and assistants as may be necessary to effect such purpose, and to do any and all acts that we or either of us might lawfully do in the premises. Dated, etc. No. 32. Oertijicate of Surrender. [Title of Cause.] I hereby certify that C D, the defendant in this action, has this day surrendered himself to me (or been surrendered by his bail), and is now in my custody. Signature. Dated, etc. 592 APPENDIX OP FORMS. [Ch. I. No. 33. Notice of Moiioh to Exonerate. See ante p. 111. [Title oi' Cause.] Take notice, that on the certificate (or affidavit), of which a copy is herewith served, and on the undertaking of bail in this action, I shall move before the Hon. C. K. Ingalls, one of the justices of this court, at his office in the city of Troy, on the sixth day of August next, at ten o'clock in the forenoon,* for an order exonerat- ing M N and K, the defendant's bail in this action, from all further liability as such bail, and for such other relief as may be just. Yours, etc., C. E. Patterson, Defendant's Attorney. To T. S. Banker, Plaintiff's Attorney. No. 34. Order Exonerating Bail. See ante p. 111. [Title of Cause.] On reading and filing the annexed certificate of the sheriff of Eensselaer county (or affidavit of M N), and a copy of the under- taking of bail given by M N and K in ihis action, and on motion of C M, counsel for defendant, and after hearing S T, counsel for plaintiff (or on proof of due service of the notice of this motion on the plaintiff ) ; Ordered, That M N and K, the said bail, be, and the same are hereby exonerated from all liability. Signature. Dated. Oh. L] arrest AND BAIL. 593 No. 35. Notice of Motion to Mnlarge Time to Surrender. See ante pp. 107, 114. [As in No. 33 to the *, then continue :] For an order that M N and K, the defendant's bail in this action, have thirty days' further time to surrender such defendant to the sheriff in their exoneration, ' and for such other relief as may be just. Signature. Dated. Address. No. 36. , Affidavit to Support such Motion. See ante pp. 107, 114, . [Title or Cause.] Eensselaer county, ss : M N being duly sworn, says that he is one of the bail for the above named defendant, C D ; that said C D was arrested on or about the third day of January past, by virtue of an order of arrest, granted in said action by the Hon. H E, one of the justices of this court, on the ground that (here state ground), and that on the sixth day of January last this deponent and K became bail for said defendant by an undertaking of which a copy is hereto annexed. That (here state excuse for not surrendering in season, giving particulars). That (state, if possible, facts showing that a surrender is possi- ble). ■ That no action has been commenced against said bail, as deponent is informed and believes. Signature. Sworn, etc. If an action has been commenced against the hail, mahe the motion in such new action. 594 APPENDIX OF FOEMS. [Ch. L No. 37. Bond for Jail Liberties. See ante pp. 86, 138. Know all men by these presents, that we, C D, M N of Troy, and K of Pittstown, Eensselaer county, N. Y., are held and firmly bound unto Gerotham W. Cornell, sheriff of the county of Bensselaer, in the sum of one thousand dollars, to be paid to the said Gerotham W. Cornell, his executors, administrators and assigns, for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors, administrators and assigns firmly by these presents. Sealed with our seal, and dated the tenth day of May, 1867. Whereas, The above bounden C D is now in custody of the above named sheriff, by virtue of an order of arrest granted by the Hon. C E, one of the justices of the supreme court, at the complaint of A B, on the first day of May last, which order directs said defendant, to be held to bail in the sum of one thousand dollars. Now, therefore, the condition of this obligation is such that if the above bounden C D shall remain a true and faithful prisoner in custody as aforesaid, and shall not at any time, nor under any cir- cumstances, go without the limits of the jail liberties, as established for the jail of said county of Rensselaer, until discharged by due course of law, then this obligation to be void ; otherwise to remain in full force and virtue. Signatures and seals. Sealed and delivered in presence of. Add justification and acknowledgment as in Nbs. 11 and 12. No. 38. Requirement of Bail to Jail Keener. See ante p. 86. To C P, keeper of the jail in and for the county of Eensselaer : We, M N and K, sureties in a certain bond executed by us, together with C D, to Gerotham W. Cornell, sheriff of the county Ch. I.] ARREST AND BAIL. 595 of Eensselaer, bearing date on the tenth day of May, 1867, for the purpose of obtaining for said C D, then in custody of said sheriff, jail liberties of said county, hereby require you to take said D into your custody, and to indorse upon the said bond an acknow- ledgment of the surrender of the said C D. And we also require you to give us a certificate acknowledging such surrender. Signatures. Bated, etc. No. 39. Certificate of Surrender. See ante p. 87. I, C F, keeper of the jail in and for the county of Kensselaer, hereby certify that M N and K, of said county, sureties in a certain bail bond, executed by them with C I) on the tenth day of May last, to Grerotham W. Cornell, sheriff of Kensselaer county, for the purpose of obtaining for said C D the jail liberties- of said county, have this day surrendered said C D into my custody, in exoneration of themselves as sureties in said bond. And I further certify that an acknowledgment of such surrender has been by me duly indorsed on said bond according to the statute. CF. Dated. 596 APPENDIX OF FORMS. - [Ch. H. CHAPTER n. FORMS IN CLAlk AND DELIVERY. No. 40. Affidavit to Obtain Delioery. See ante pp. 141, 169. [Title op cause.] Omit title of action if not commenced. County of Kensselaer, ss : A B (or E P the agent of), the plaintiff in the above entitled action, being duly sworn, says, that he is the owner (or that the said A B is the owner), and entitled to the immediate possession of (or that he has a special property in (describing it"), and is entitled to the immediate possession of) the following personal property, to ■wit: (describing it particularly). That the said property is wrongfully detained by D, the defendant above named (or D of the city of Troy).* That the alleged cause of the detention thereof, according to deponent's best knowledge, information and belief is as follows. (State the alleged causey That the said property has not been taken for a tax assessment, or fine, pursuant to a statute, or seized under an execution or attachment against the property of the said plaintiff. That the actual value of said property is the sum of five hundred dollars. A B. Sworn, etc. No. 41. Denial of Knowledge of Cause of Detention. See ante p. 171. (Substitute for clause third in form 40). That this deponent has no knowledge or information of any cause alleged for such detention. Oh. n.] • CLAIM AND DELIVERY. 597 No. "42. Of Property Exempt frmi Executhn. See ante p. 171. [Same as in No. 40 to the * continuing :'] That the said property has not been taken for a tax, assessment or fine, ' pursuant to a statute, or seized under an execution or attachment against the property of the said plaintiff, except as hereinafter stated. That the said C D claims to be the sheriff of Kensselaericounty, and as such sheriff to have levied upon the said property under an execution alleged to have been issued against the property of this ■plaintiff, which is the alleged cause of the detention of said property according to deponent's best knowledge, information and belief That this plaintiff is a householder and resides in this state, and that said property is a part of his necessary household furniture, the whole value of which was less in the aggregate than two hundred and fifty dollars, besides the articles specified in the revised statutes as exempt, and that the said property so seized by the said C D is exempt by law from levy and sale on execution, as deponent is advised by counsel and verily believes (or that the plaintiff is a householder, within the state, and has a family depending upon him for support, and that he is by occupation, a carpenter ; that the property above mentioned are the working tools of this plaintiff necessary to the carrying on of his said business). That the actual value of the said property is the sum of one hundred dollars. A B. Sworn, etc. No. 43. Requisition to Imdarse on Affidavit, See ante p. 173. To the sheriff of the county of Kensselaer : Sir : You are hereby required to take the within mentioned and described property from the defendant, and to deliver the same to the plaintiff in this action. William Shaw, Plaintiff's Attorney. 598 APPENDIX OP PORMS. [Ch. H. No. 44. Undertaking by Plaintiff. See ante p. 174. [Title or cause.] Whereas the above named plaintifif has commenced (or is about to commence) an action against the above named defendant, for the recovery of the following personal property, to wit. (^Specify property). And whereas the said plaintiff has, by his affidavit and indorse- ment thereon,' duly required the sheriff of the county of Kensselaer, to take the said property, from the said defendant, and to deliver the same to the plaintiff. Now therefore, in consideration of the premises, and of the taking of such property, or any part thereof, by the sheriff, and its delivery to the plaintiff, as in such indorsement required, We, M N of Albany, merchant, and K of New York, banker, do hereby undertake and become bound unto the defendant, in the sum of Aolhxs (douhh the value of the 'property as stated in the affiidaviC), for the prosecution of this action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him, of such sum as may, for any cause, be recovered against the plaintiff in this action. Signatures. Dated, etc. Signed and delivered in presence of. Justification and acknowledgment as in J^os. 11 and 12. No. 45. Approval of Sheriff, Indorsed on Under iaJdng. See ante p. 175. I approve of the within undertaking, both as to its form and as to the sufficiency of the sureties therein. Signature. Dated. Notice of exception and justification may he similar to Nos. 18 and 19. Oh. n.] CLAIM AND DELIVERY. 599 No. 46. Vndertakmg by Defendant to Obtain Eetwm of Fro-perty. See ante p. 184. [Title op cause.] Whereas, the plaintiff in this action has claimed a delivery to him of the following personal property, to wit : (describe if) of the alleged value of one thousand dollars; and whereas, the said plaintiff has caused such property to be taken by the sheriff of the county of Kensselaer. pursuant to the second chapter, of the se- venth title, of the second part of the Code of Procedure, but the same has not been yet delivered to the plaintiff; and whereas the defendant is desirous of having said property returned to him. Now therefore, we MN of Pittstown, farmer, and K of Graf- ton, broker, for the procuring of such return, and in consideration thereof, do hereby undertake and become bound to the said sheriff in the sum of two thousand dollars for a delivery of said property to the plaintiff, if such delivery snail be adjudged, and for the payipent to him of such sum as may, for any cause be recovered against the defendant in this action. | Signature. Witness. Justification and acknowledgment as in Nbs. 11 and 12. Notice 0/ justification and proceedings thereon similar to Nbs. 19 and 23. No. 47. Ifoiice to Sheriff to Return Froperty^ See ante p. 184. [Title of cause.] To M N, sheriff of, etc. Tou are hereby required to return to the defendant the personal property taken and held by you in this action. * F. W. ACKLET, Defendant's Attorney. Dated, etc. 600 APPENDIX OF F0EM8. [Ch. H. No. 48. Affidavit of Clam hy Third Person. See ante p. 188. [Title of clause.] County of Renssalaer, ss : E S of Troy, in said county, being duly sworn says, that lie is the sole owner (or that he and one P, are joint owners), of cer- tain personal property taken by the sheriff of the said county of EensSelaer in this action, which property is described as follows. (describe property) That this deponent purchased the said property of the defendant, on the third day of April, 1867, paying therefor the sum of six hundred dollars, and that he has not sold or disposed of the said property, or any part thereof (^Show clearly nature of title). Sworn, etc. E S. No. 49. iVo&e to Sheriff, Claim of Third Person. , See ante p. 190. To the sheriff of, etc. Sir : You will please take notice that I claim the personal property mentioned in the within (or annexed') affidavit, and that you are required to deliver the same to me. Dated, etc. E S. No. 50. Sheriff's Notice of Third Person's Claims. See ante p. 190. [Title of cause.] You will please take notice that E S claim? the property taken by me in this action, and that unless the plaintiff indemnifies me against such claims, I shall not keep the property or deliver it to the plaintiff. Yours etc. , Signature. Dated, etc. Ch. n.] AREE8T AND BAIL. 601 No. 51. Undertaking to Indemnify Sheriff. •See ante p. 190. [TlTliiE or CAUSE.] WTiereas, the above named plaintiff, claims tlie possession of the following personal property {describe it), now in the possession of the sheriff of the court of Rensselaer and taken by him in this action; and whereas, one K. S claims to own and have the right of possession of said property : Now therefore, we M N of No. 93 Congress street, Troy, drug- gist, and K of No. 29 Eiver street in said city, grocer, undertake to indemnify the said sheriff against the claims of the said B S, if Jhe said property be delivered to the plaintiff. Signature. Witness. Add Justification and achnowledgment as in Nos. 11 and 12. No. 52. Notice of Motion to Set Aside Proceedings. See ante p. 190. [Title of cause.] You will please take notice that on the annexed affidavit (or on whatever the motion is based) a motion will be made, at a special term of the supreme court to be held at the office of Hon. C. E. Ingalls, in the city of Troy, on the twentieth day of July, 1867, at ten o'clock in the forenoon or as soon thereafter as counsel can be heard, that the affidavit made by the plaintiff in this action and the requisition indorsed thereon, and all proceedings taken by the plaintiff, or by the said sheriff, respectively, by virtue thereof, may be set aside as void (or as irregular) in that, etc. (specifying ohjec- 39 602 APPENDIX OF FORMS. [Oh. II. ), and that the property taken by the said sheriff under said affidavit and requisition may be restored by him to the said defend- ant, and for such other or further relief as may be just, and for the costs of this motion. Yours, etc., ^ Jeeome B. Parmenter, Defendant's Attorney. Dated, etc. To Kobley D. Cook, Esq., Plaintiff's Attorney. Ch. m.] INJUNCTIONS. 603 CHAPTER in. FORMS FOR INJUNCTIONS. No. 53. Affidavit in Support of Oomphint. See ante p. 817. [Title of cause.] Bensselaer county, ss. A B of Troy in said county, being duly sworn says, that he has read the complaint in this action, that he is familiar with all the material matters therein stated on the information and belief of the plaintiff, and has actual knowledge thereof. That from such knowledge he knows that the matters therein so stated are true. (^Set forth the source of information), * Signature. Sworn, etc, Another Form. See ante p. 317. [Title of cause.] Bensselaer county, ss. A B of Troy, being duly sworn says, that he is the attorney in fact for the above named plaintiff, for the purpose of suing for and recovering the sum of money mentioned in the complaint in this action, by virtue of a power of attorney under seal, for that purpose duly executed. That the said plaintiff is now absent from the state, and that he left the city of New York for Liverpool in England, on the third day of May last, and, as this deponent verily believes, has not yet returned to this country. 604 APPENDIX OP POEMS. [Ch. HI. That this deponent has read the complaint in this action, and knows the contents thereof, and that he has actual knowledge (or information) of all. the material allegations therein stated, and from such knowledge (or information) believes such matters to be therein truly stated and such complaint to be true. (Sere may set forth source of information). A. B. Sworn, etc. No. 54. Notice of Motion for Injunction. See ante p. 199. [Title of cause.] Please take notice, that on the complaint in this action (and on the annexed affidavit), a motion will be made at a special term of this court, to be held at court house in the city of Troy, on the first day of November next, at ten o'clock in the forenoon, or as soon there- after as counsel can be heard, for an injunction order to restrain the defendant, his agents and servants from (Jiere state concisely the object'), and for such further or other order as may be just. Yours, etc., Banker & Kising, Dated, etc. Plaintiff's Attorneys. To James Lansing, Defendant's Attorney. No. 55. Order to Shoie Cause with Injunction. See ante p. 821. [Title op cause.] On the annexed complaint and affidavit of A B, let the defendant show cause before me (or at a special term of this court), at , on the ... day of 18..., why an injunction should not be issued restraining him from (here state acts to be enjoined), and for such other or further relief as may be just. " • Ch. Ill] INJUNCTIONS. 605 And it is fttTther ordered, that said defendant, his agents and servants, be and are hereby enjoined and restrained from committing or suffering to be committed any of said acts until the decision of the court (or judge), granting or refusing the said injunction. Signature. Dated, etc. Address. No. 56. Undertaking for Injunction, See ante p. 324. [TjTJiE OP CAUSE.] Whereas, the plaintiff in the above entitled action has applied (or is about to apply), for an injunction restraining the above named C D from (state briefli/ the object). Now, therefore, we, M N of Troy, merchant, and K of Lan- singburgh, mason, do hereby undertake, pursuant to the statute in such case made and provided, that the said plaintiff will pay to the said C T> such damages, not exceeding five hundred dollars, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. (The damages may be ascertained by a reference, or otherwise, as the court shall direct), usual, though not essential. Signatures. Dated. Witnesses. . Add justification and acknowledgment as in Nbs. 11 and 12. No. 57. Bond to Stay Proceedings as Provided by Statute. See ante pp. 270, 324. Know all men by these presents, that we, A B of the city of Troy, C D of the same place, and E F of the city of Albany, are held and firmly bound unto K of said city of Troy, ' in the sum of one thousand dollars, to be paid to the said K, his executors, adminis- 606 APPENDIX OP FORMS. [Ch. III. trators and ajsaigns, for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents. Sealed with our seals and dated this ninth day of June, 1867. Whereas, the above'bounden A B has applied to the supreme court of the state of New York for an injunction against the above named K to stay proceedings at law in a certain personal action pending in the said court, wherein the said K is plaintiff and the said C D is defendant, after (verdict and before) judgment therein. Now, the condition of this obligation is such that if the above bounden A B shall well and truly pay unto the said K, his executors administrators or assigns, all such damages and Costs as may be awarded to him or them by the court at the final hearing of the cause (and if deposit is dispensed with add, and shall also pay the sum of , specifying the amount of deposit, whenever ordered by the court), then this obligation to be void, otherwise to remain in full force and virtue. ,' Signatures and Seals. Signed, sealed, etc. Add justification and acknowledgment as in Nos. W and 12.' No. 58. Injunction by Judge. See ante p. 199. [Title or cause.] It appearing satisfactorily to me, by the complaint in this action, and the affidavit of A B, the plaintiff, that sufficient grounds there- for exist : I do hereby order, that the defendant C D, his agents and ser- vants, do refrain from (state act to be enjoined as in forms Nos. 61 to 84) until the further order of this court, and in case of disobedience to this order, the said G D, his agents and servants, will be liable to the punishment therefor prescribed by law. Signature of Judge. Dated, etc. R. D., Plaintiff's Attorney. Ch. in.] INJUNCTIONS. 607 No. 59. Iryunction by Court. . See ante p. 199. At a special term of the supreme court, held in and for the county of Eensselaer at the Court House in the city of Troy, on the tenth day of June, 1867. Present, Hon. C. R. Ingalls, Justice. [Title of catjse.] On reading and filing the complaint in this action (and the affi- davit of A B, dated the 9th day of June, 1867), and on motion of Jerome B. Farmenter, counsel for plaintiff; Ordered that (proceed as in previous /orm). No. 60. Continuing Injunctim after Order to Show Cause. See ante p. 321. [TitlH of cause.] On return of the order to show cause made bi/. me, in the above entitled action on the tenth day of May, 1867, and returnable this day at my office in the city of Hudson, and after hearing Irving Haynor, for the plaintiff and Robley D. Cook for the defendant ; Ordered, that the injunction order, granted with the said order to show cause, be and the same is hereby continued until the further order of this court on the said plaintiff's executing a written under- taking (with two sufficient sureties) pursuant to the statute and the practice of this court, to the effect that he will pay said defendant, such damages, not exceeding the sum of one hundred dollars, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff is not entitled thereto. Henbt Hogeboom, Dated, etc. Justice Supreme Court. Irving Haynor, Plaintiff's Attorney. 608 APPENDIX OF FORMS. [Oh. HL No. 61. Statement of Acts Enjoined to be Inserted in Form No. 58. Against Waste or Ali&natipn. See ante p. 210. From pulling down or otherwise injuring the buildings standing on the premises hereinafter described, or any part thereof, or from committing any waste or destruction upon said premises, and from executing and procuring to be executed any instrument of convey, ance of said premises, to any person or persons other than the plaint- iff, or as he; shall direct. QBound and describe premises)„ No. 62. Against Waste by Cutting Timber. See ante pp. 210, 606. From cutting, felling, barking or otherwise wasting or impairing, or in any way disposing of any wood, timber or trees now standing or growing upon that certain farm of land (describe ii)^ and from committing any further, or other waste, or destruction in or upon the said land or premises. No. 63. Against Working Mine. ' See ante pp. 210, 606. From working the veins or seams of coal, iron, stone and other minerals, lying in, upon, or under (designate lands), and from dig- ging, getting and carrying away or selling, or disposing of the coal, iron, stone and other minerals produced therefrom, and from inter- fering in any manner with said mines. Ch. Ill] INJUNCTIONS. 609 No. 64. Against Eemoving Lateral Support. See ante p. 221. Prom exoayatiiig or removing any soil or dirt from any land adjoining the plaintiff's premises (designating ihern), which shall cause, or greatly tend to cause the plaintiff's land, by reason of the withdrawal of its kteral support, to pull away, crack or subside. No. 65: Against Taking Possession of Lands without Payment. See ante pp. 210; 244. From entering upon, or in any way, occupying any part of the lands hereinafter described, until the said defendants shall have complied with the terms of a certain award made on the eighth day of April, 1867, by L M, D and K, arbitrators duly chosen by the parties hereto, and shall have paid to the said plaintiff, the sum oi three hvmdred dollars, as by said award provided. No. 66. Against Eemoving Fixtures. See ante p. 210. From Severing or removing, or causing to be severed or removed from the premises hereinafter described, any growing trees, fruit or grass (or any looms, engines, or machinery), or fixtures of any kind. Said premises are known as (describe thetn). ■ No. 67. Against Obstruelmg a 'Way, See ante p. 288. From stopping up, obstructing, or injuring or causing" to be stopped up, obstructed or injured, the free passage of (distincH]/ designating the way). 610 APPENDIX OF FORMS. [Ch. m. No. 68. Against Erecting or Continuing Buildings. From erecting, constructing, or continuing to erect or construct any building or 'structure whatever, on the piece or parcel of land described as follows (description') or any part thereof (and also'from permitting and continuing any such building or strnctme, or parts thereof, as have already been commenced or erected on said land from remaining thereon). This form was approved in Rankin v. BJuskisson, 4 Sim., 13. The latter clause will seldom, if ever, he proper, in a preliminary injunction, as its object is merely restrictive. Nq. 69. Against Violating Building Covenant.. See ante p. 241. From erecting upon (designate the land) any brewery, or other building, except one private house, or ornamental cottage, to be erected on (designate what pari). (Approved in Maun v. Stephens, 15 Sim., 377). No. 70. , Against Nuisance. — Slaughter House. See ante p. 236. From occupying or using, or causing to be occupied or used as a slaughter house, a certain building, standing (particularly designat- ing it), and also from slaughtering, or permitting to be slaugh- tered therein any animals (so as to occasion damage or annoyance to the plaintiff as owner, or to his tenants respectively as occupiers of a dwelling house situated (designating). Ch. Ill] INJUHTCTIONS. gjl No. 71. Against Laying a Rail Road in a City. See ante p. 245. From entering into or upon Congress street in the city of Troy, for the purpose of building, laying, or establishing a rail road therein, or from breaking or removing the pavement, or digging, or removing the soil therefrom, or from doing any other act in such street tending to encumber it, or to prevent the free and common use thereof, as the same has been heretofore used and enjoyed (until compensation etc."). ' No. 72. Against Authorizing Laying of Rail Road in City Street. See ante pp. 245, 297. From granting to G I) and others, the persons named in a resolu- tion, a copy of which is hereto annexed, or their associates, or any other person or persons whatsoever, the right, liberty or privilege of laying a double track, or any track for a railway, in said Broad- way,- from the south ferry to 57th street, or of breaking or removing the pavements, or digging or removing the dirt therefrom, or in any manner of obstructing said street, preparatory to or for the purpose of laying or establishing any railway therein _ or in any manner authorizing them so to do. (^Sustained by People v. Sturte- vant, 9iV. T.S.,263. No. 73. Against Carrying on Business Forbidden by Lease. See ante p. 241. From carrying on, or continuing, the auction business, or selling goods at public auction ig the store (particularly designated), and from conducting therein any business other than the regular dry goods jobbing business. 612 APPENDIX OF FORMS. [Oh. HI. No. 74. Against Transfer of Negotiable Paper. See ante p. 265. From indorsing, assigning, or in any manner transferring (here particidarli/ describe jaaper). No. 75. Against Publishing Private Letter. See ante p. 256. From printing, publisMng, cireulatingj or. in any manner, either by writing or otherwise, making public a letter written by (describ or any part thereof. No. 76. Against Disclosure of Secret by Clerk. From taking or retaining any copy of, or extract from, any of the books, papers, or documents of the above named A B & Co., or either of them, in the possession, custody or power of the defendant ; and from communicating any contents thereof, or any information therein contained, to any person or persons whatsoever ; and from communicating, or in any manner disclosing, any of the information possessed or acquired by him relating to the said copartnership, or the affairs or secrets thereof, or the clients^thereof, by means of his having been employed as clerk by said A B & Co., and having access to said books and papers. Ch. III.] INJUNCTIONS. 613 No. 77. Against Use of Secret in Trade. See ante p. 255. From selling, or causing to be sold, under the title and designa- tion of " Morison's Universal Medicine," or " Morison's Vegetable Universal Medicine," any medicine or compound made or manu- factured by the defendant, or by or under his order or direction, and from mating or compounding any medicines according to the secrets in the complaint mentioned, etc. j and from in any manner using the secret of compounding the said medicine or any part thereof ((Sfee this form, in Morison v. Moat, 9 Hare, 241). No. 78. Against Infringing Trade Mark. See ante p. 255. From selling, or exposing for sale^ or procuring to be sold, any composition or blacking described as, or purporting to be, blacking manufactured by Day & Martin, in bottles, having affixed thereto such labels as are mentioned in the complaint in this action, or any other label, so contrived or espressed as, by colorable imitation or otherwise, to represent the composition or blacking sold by the said defendant, to be the same as that manufactured and sold by the plaintiff ; and from using trade cards so contrived or expressed as to represent that any composition or blacking sold, or proposed to be sold by the defendant, is the same as that manufactured or sold by the plaintiff. No. 79. In PartnersMp Cases. See ante p. -302. From selling, assignisg, or transferring, receiving, collecting, dis- charging or encumbering, or in any manner disposing of, or inter- fering with any portion of the property, real or personal, of the 614 APPENDIX OP POEMS. [Ch. HI. copartnership heretofore (and now) existing between the plaintiff and the defendant herein, or of the debts, accounts, demands, bills, notes, eyidences of debt, things in action, or other equitable property or interest whatever of said copartnership, and from doing or suffer- ing to be done, any act or thing to enable any person to obtain any portion of said property. No. 80. Where Dissolution is not Sought. ■ See ante p. 302. From applying any of the moneys and effects of the copartnership heretofore and now existing between the said C D and this plaintiff, in any manner otherwise than in the usual and ordinary business, from obstructing or interfering with the plaintiff in the exercise and enjoyment of his rights and privileges under the partnership articles. No. 81. Against Proceedings at Law. See ante p. 269. From proceeding further in the action at law against' the said A B, and in which the said G D is plaintiff, upon a bond made, etc. {describing it"), and from instituting or proceeding in any new or other action at law upon such bond ; and from instituting any action against the said plaintiff for the recovery of (designate the debt, etc.'). No. 82. Against Dispossessing Tenant. See ante p. 269. From proceeding to dispossess the plaintiff of the (describe pre- mises') or from issuing or causing to be issued, any warrant of dispos- session, or from taking possession under the proceedings commenced before T N, a justice of the peace in the city of Troy, on the ground that rent was unpaid. Ch. III.] INJUNCTIONS. 615 No. 83. In Oreditofs Action, See ante p. 280. From selling, assigning, or transferring, receiving, collecting, discharging or incumberiiig, or in any manner disposing of, or inter- fering with, any property, real or personal (not exempt by law from execution) things in action, or other equitable property or interests of any kind whatsoever, held or controlled by him, or by any other person in trust for him, or for his use or benefit, or in which he has any interest whatsoever, and alsd from making any assignment of his property, or from confessing any judgment for the purpose of giving preference to ^ny other creditor over the plaintiff, or for any other purpose, or from doing or suffering to be done, any other act or thing to enable other creditors or persons to obtain any portion of his said property. No. 84. Frcm Disposing of Property with Intent to Defraud Creditors. See ante p. 313. From selling, assigning, transferring or otherwise disposing of, or removing any of his property, cither real or personal, except what is by law exempt from execution, with intent to 'defraud, hinder or delay creditors, or from any manner interfering therewith with such intent. No. 85. Notice of Motion to Dissolve or Modify Injunction. , See ante p. 334. [Title of cause.] Please take notice that on (^designate the papers) a motion will be made at .a special term of this court, to be held at the Court House, in the city of Troy, on the third day of November, 1867, at ten o'clock in the forenoon, or as soon thereafter as counsel can be 616 APPENDIX OF FOEMS. [Ch. m. heard, or before (designating the judge who granted the ord&r) at his office, etc., to dissolve the injunction issued in this action {or to modify the injunction issued in this action so as to permit the defendant to, etc.), with dosts, and for such other or further relief as may be just. Yours, 'etc.. Dated, etc. Banker & Rising, Defendant's Attorneys. To Parmenter Brothers, Plaintiff's Attorneys. . No. 86. Qrier Dissolving Injunction. See ante p. 334. [Title of cause.] If made hi/ the court, say: At a special term, etc. On reading and filing the answer'of the defendant in this action (and the affidavit of C D), and on motion of Francis Rising, counsel for defendant, and after hearing Jerome B. Pa/tmenter, counsel for the plaintiff (or, and on proof of due' service of notice of motion, and no one appearing) in opposition thereto j Oidered, that the injunction grafted by me (or by C K., a justice of this court) on tjie first day of July, 1867, against the above named Q D b^ vad^ted and dissolved (with ten dollars costs' to abide the event of th^ action). Signature. No. 87. Notice of Motion to Ascertain Damages. See ante p. 341. [Title of cause.] Please take notice, that, on the undertaking and proceedings in this action, and on the affidavit of C D, a copy of which is herewith served, a motion will be inade, at a special term of this court, to Ch. m.] INJUNCTIONS. 617 be held in the City Hall, in the city of Albany, on the twenty-eighth day of July, 1867, at'ten o'clock in the forenoon, or as soon there- after as counsel can be heard, for a reference to ascertain the damages sustained by the defendant, by reason of the injunction granted in this cause, on the tenth day of June, 1867, by G K one of the justices of this court j and for such other and further relief as may be just, besides the costs of this motion. Yours, etc.. Dated, etc. Seymour & Patteeson, Defendant's Attorneys. To Beach & Smith, Plaintiff's Attorneys. No. 88. Order of Heference. See ante p. 341. [Title op oatjse.] At a special term, etc. On reading and filing notice of this motion and the affidavit of C D, and on motion of M N, counsel for the defendant, and after hearing K, counsel for the plaintiff; Ordered, that it be referred to E D, of the city of Troy, to ascer- tain the damages sustained by the defendant by reason of the said injunction, and to report the same to the court (and that eight days' notice of the hearing be given H K and E F the sureties named in the undertaking on obtaining *ch injunction). Signature. Dated, etc; No. 89. Order Oovfirming Meport. See ante p. 841. [Title op cause.] At a special term, etc. On reading and filing the notice of this motion, and affidavit and certificate, and the referee's report and the evidence on which the 40 618 APPENDIX OF FORMS. [Ch. m. same was based, and on motion of M N, counsel for the defendant, and after hearing K, counsel for plaintiff (and for sureties) in opposition thereto ; Ordered, that the said report of the referee herein be, and the same hereby is, in all respects confirmed (except as to the item, etc., and as to that item, that it be reduced to three dollars, and that on the defendant's consenting to such reduction the report be thereon confirmed) with ten dollars costs of this motion. Ch. rv.] ATTACHMENTS. 619 CHAPTER IV. POE.MS IN ATTACHMENTS. ' No. 90. Affidavit — general form. See ante p. 375. [Title of oatjse.] County of Rensselaer, ss : A B, plaintiff in the above entitled action being duly sworn says, that the above named defendant is indebted to this deponent in the sum of Jive hundred dollars, upon a promissory/ note made by the defendant, dated May \st, 1867, payable to the plaintiff or order, sixty days after date. That the above entitled action is 'brought for the recovery of said indebtedness, and that the summons therein has been issued (or is about to be issued), to the sheriff to be served.* And defendant further says, that the said defendant is not a resi- dent of this state, but resides in the city of Kenosha in the state of Wisconsin. AB. Sworn, etc. • No. 91. Same — Foreign Corporation, See ante p. 875. [As above to * continuing ;] And plaintiff further says, that the defendant is a foreign' corporation, created by, or under the laws of the state of Vermont, having its office and place of business at Bur- lington, in said state. (That the defendant has property within 620 APPENDIX OF FORMS. [Oh. IV. this state at Albany, consisting of (describe property). That the plaintiff is a resident of this state, and resides at Troy. ( Or, that the cause of action above stated arose in this state ; or, that the sub- ject of the action is situated within this state). AB. Sworn, etc. No. 92. Affidavit .where Defendant has Absconded. See ante pp. 361, 375. [J.S in No. 90 to * continuing:'] That defendant is a resident of this state, but has departed therefrom (or keeps himself concealed therein) with intent as this deponent believes to defraud his cre- ditors, or to avoid the service of a summons, and the grounds of his belief are as follows : (JSere state fuUy and in detail the facts and circumstances. Thus) the said defendant has, until within a week past, been engaged in business as a merchant in the village of Cohoes, in the county of Albany, that he has lately been engaged in collecting in all debts and moneys due him, and in converting his property into money, and has sold the goods in his store for a less price than the real value. That on Monday last he closed his • store, and placed a card on the outer door, whereon; was written " Gone to New York, return on Friday." That he stated, on the same day to this deponent, and others, that he was going to New York to purchase goods. That since that time said defendant has not returned to his said residence. That on Saturday last it was found on examination, that all defendant's goods and property had been removed from his said store. That J K of Troy saw said defendant on Monday last at Buffalo, as will appear more fully by his affidavit hereto annexed, and that said defendant then and there informed him that he was going to the state of Wis- consin, and should purchase land and settle there, and should also send for his family. A B. Sworn, etc. Ch. IV.] . ATTACHMENTS. 621 No. 93. Another Form. ■ See ante pp. 361, 375. {As in the above to the statement of facts continumg :'\ Depo- nent is informed by K, and believes that the said C D stated to him, on the first day of April, 1867, that " he meant to get out of the • •way for a while and let the storm blow over," meaning that he wished to avoid his creditors. That K being clerk of the said C D, refuses to make his affi- ■ davit to the above. AB. Sworn, etc. No. 94. Affidavit where Defendant is about to Remove Property. See ante pp. 365, 375. \As in No 90 to * continuing ;] That, as deponent is informed and believes, said defendant is about to leav^ this state, and take with him his family, and that he is going to Europe, and that the sources of deponent's information are as follows : (specifying them carefully, and indicating, why informant's affidavit is not obtained). That, as deponent is informed and believes said defendant has packed up a large amount of silver-ware, and other valuables, which said defendant is about to take with him out of this state, and which are the property of said defendant, and that deponent's sources of information are as follows : (as above"). That as deponent is informed and believes, said defendant is making arrangements to convert other portions (or the remainder) of his property into cash, with the intention, as deponent verily believes, of removing the same from this state, and that deponent's Sources of information are as follows : (as above). That the said defendant has repeatedly said to the deponent that he did not intend to pay one cent on the aforesaid note : and depo- nent verily believes that said defendant intends to remove and dis- pose of his property as aforesaid in order to defraud his creditors. A B. Sworn, etc. 622 APPENDIX OF FORMS. [Ch. IV. No. 95. Undertaking for Attachment. See ante p. 381. [Title op cause.] Whereas the above named plaintiff has applied to the Hon. Rufus W. Peckham^ one of the justices of this court, for a warrant of attachment against the property of the defendant C. D. on the ground that the said defendant is a non-resident of this state (or other cause). Now therefore we, John Doe of Pittstown, . in the county of Rensselaer, farmer and Richard Roe, of the same place, blacksmith, do undertake, pursuant to the statute in such case made and pro- vided, in the sum of five hundred dollars, that if the said defendant recover judgment in this action, or the said attachment be set aside by the order of the court, the plaintiff will pay all costs that may be awarded to the defendant and all damages which he may sustain by reason of the attachment, not exceeding the sum above mentioned. Add justification and acknowledgment as in Nos. 11 and 12. No. 96. Warrant of Attachment. See ante p. 885. [Title op cause.] The people of the state of New York, To the sheriff of the county of Washington, Greeting : Whereas, an application has been made to the undersigned by A B, plaintiff, for a warrant of attachment against the property of C D, defendant; and it appearing by affidavit that a cause of action exists against the said C D for the sum of one thousand dollars, the grounds whereof are set forth, and that the said C D is a non- resident of this state {or other cause), and the said plaintiff having given the undertaking provided by law ; Now therefore, you are hereby required to attach and safely Ch. IV.] ATTACHMENTS. 623 keep all the property of the said defendant D within your county, or so much thereof aa may be sufficient to satisfy the plaintiff's demand of one thousand dollars, together with costs and expenses, and that you proceed hereon in the manner required of you by law. Witness, W F A, one of the justices of the supreme court, at the village of Salem, this tenth day of July, 1867. (_The teste clause is not essential, though proper). Signature. John H. McParland, Pkintiff's Attorney. No. 97. Sheriff's Return to Attachment. See ante p. 466. County of Washington, ss : I, H M, sheriff of said county, do hereby certify and return, that, by virtue of the within attachment, I have seized and taken into my possession the property of the defendant within named, specified in the inventory hereto annexed, and have appraised the property therein specified at the sums stated in the said inventory. HM. Dated, etc. No. 98. Inventory of Property Attached. See ante p. 413. [Title of cause.] We, H M, sheriff of the county of Washington,'and K andB F, two disinterested freeholders of said county, hereby certify that the following is a just and true inventory of all the property seized by H M, the said sheriff, on a warrant of attachment issued'in the above entitled action by W F A, a justice of the supreme court, together with a statement of the books, vouchers and papers taken into the custody of said sheriff by virtue of said warrant, and the value of 624 APPENDIX OF FORMS. [Ch. IV, each article of personal property, and also a true statement of such articles thereof as are perishable, as the same have been appraised by us, viz : {insert list of items of real and personal property, setting value opposite each). We do further certify that the following property mentioned in said inventory is perishable, viz : (items}. Signatures. Dated, etc. No. 99. Order for Sale of Perishable Property. See ante p. 426. [Title op cause.] It appearing to me, by the inventory made and returned under the warrant of attachment, granted by me in this action, that the following property, mentioned in said inventory, is perishable, viz : (describe it"). It is hereby ordered, that the said property so specified as perish- able, be sold by the said sheriff, at public auction, at such time and place as he shall deem advisable, within the town of Cambridge, and that said sheriff give notice of such sale, in like manner as on sale of personal prpperty, on execution. It is further ordered that said sheriff retain the proceeds of such sale, and dispose thereof in the same manner as of the property had the same not been sold. Signature. Dated, etc. No. 100. Notice of Levy on Property not Capable of Manual Delivery. See ante p. 419. [Title op dAUSE.] To E P : . Take notice, that by virtue of a warrant of attachment issued in this action, a certified copy of which is jherewith served Ch. IV.] ATTACHMENTS. 625 upon and left with you, I have levied upon, and do hereby levy upon, your indebtedness, amounting to ninety dollars, or thereabouts, to the defendant above named (^describe as pq/rticularly as possible the property levied on). ' G-W, Sheriff. No. 101. Certificate to be Indorsed on Copy of Attachments. See ante p. 419. I, G W, the within mentioned sheriff, do hereby certify that the within is a true copy of the warrant of attachment in my posses- sion issued in this action, and of the whole thereof. G W, Sheriff. No. 102. Order to Examine Third Person Holding Property. See ante p. 419. [Title of cause.] It appearing to me by the certificate of G W, sheriff of the county of Eensselaer, that said sheriff, with a warrant of attachment against the property of C D, the above named defendant, has applied to K for the purpose of levying on property of said defendant held by said O K, and that the said K refused to furnish said sheriff wjtji a certificate designating the amount and description of the prop^ ' ' held by said K for the benefit of the defendant. I hereby order and direct the said K to attend before me at my office in the city of Troy, on the fifth day of August, 1867, at ten o'clock in the forenoon, and be examined on oath concerning the same. Signature of Judge. Dated, etc. • 626 APPENDIX OF POEMS. [Oh. IV. No. 103. Bond on Claiming an American Vessel. See ante p. 429. Know all men by these presents, that we, A B, shipmaster of the city of New York, C D, merchant of the same place, and B T, broker of the city of Brooklyn, are held and firmly bound unto the people of the state of New York, in "the sum ot fifty thousand dol- lars, for which payment will and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the 9th day of July, 1867. The condition of this obligation is such, that if the above named A B shall establish, in an action to be brought on this bond, that he was the owner of the steamer Kennebec (or the one-fourth share of the steamer Kennebec), heretofore seized under a warrant of attachment granted by D P, a justicji of the supreme court, by the sheriff of the county of Kings, at the time of such seizure, or in case the said A B shall fail to establish such ownership on his part as aforesaid, if he shall pay on demand the sum of {the valuation), with interest from the date of the bond to the sheriff of the county of Kings, or in case the attachment aforesaid be discharged, to L M defendant, his executors, administrators, or assigns, then this obliga- tion to be void, otherwise to remain in full force and virtue. Signatures and seals. Witness, etc. Add justification and acknowledgment as in Nos. 11 and 12. No. 104. Order Discharging Vessel. See ante p. 429. [Title of cause.] A warrant of attachment having been granted by me against the property of the defendant in this action, and the steamer Kennebec having been seized by the' sheriff of the county of Kings, under and Ch. IV.] ATTACHMENTS. 627 by virtue of such warrant, whioli vessel is claimed by A B of the city of New York, as his property, and a sufficient bond having been given according to statute ; Ordered, that- the said steamer Kenndtec be discharged from attachment under the warrant aforesaid, and that th.e said sheriff deliver the same to the said A B. Signature. Dated, etc. No. 105. Undertaking to Enable Plaintiff to Prosecute Actions. See ante pp. 418, 442. [Title op cause.] Whereas, M N, sheriff of Albany county, has attached certain property of C D, the above named defendant, including three pro- missory notes made by H M, N L. and B. S, Upon which it is intended to bring actions ; And, whereas, the above named plaintiff desires to prosecute such actions himself, or to have them prosecuted under his direction ; Now, therefore, we, A B, the said plaintiff, and J B, merchant, and K, grocer, of the city of Troy, undertake in the sum of seven hundred and fifty dollars that the said A B will indemnify the said sheriff from all damages, costs and expenses on account of such actions, not exceeding the sum